text:
    ALBERT LUELLEN v. STATE.
    No. A—9377.
    July 1, 1938.
    (81 P. 2d 323.)

      L. E. Roseboom, of Enid, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Roy Holbird, Co. Atty., of Enid, for the State.
   BAREFOOT, J.

The defendant was charged by information in Garfield county with the driving of an automobile while under the influence of intoxicating liquor, was convicted and sentenced to pay a fine of $200, and serve six months in the penitentiary, and has appealed.

The information in this case charged the defendant, Albert Luellen, did “unlawfully, wilfully, knowingly, and feloniously drive and operate a certain motor vehicle * * * over and upon a public highway * * * while under the influence of intoxicating liquor.” From the above it will be noted that the only charge made against the defendant was that he operated an automobile upon the public highway while under the influence of intoxicating liquor. It is contended by defendant that the verdict of the jury is contrary to and not supported by the evidence.

In the first place the information in this case charges the defendant with driving a car upon the public highway while under the influence of intoxicating liquor. The charge is brought under section 10324, Okla. Stats. 1931 (Okla. St. Ann., tit. 47, sec. 93), which is as follows:

“It shall be unlawful for any person who is under the influence of intoxicating liquor, or who is a habitual user of narcotic drugs, and the having on or about one’s person or in said vehicle of said intoxicating liquor is prima facie evidence of a violation of this act, to operate or drive a motor vehicle on any highway within, this state, as defined in section 1, of this act, and any person violating the provisions of this section shall be deemed guilty of a felony and shall be punished by imprisonment in the penitentiary not more than one year, or by fine of not more than two thousand ($2,000) dollars, or by both imprisonment and fine.”

In the highway laws of many states, in addition to a provision similar to the above, they have an additional statute defining careless and reckless driving, and making the same a crime, and usually providing as a punishment that of a misdemeanor. The statute of Oklahoma with reference to driving upon the public highway, Session Laws, 1933, section 14, ch. 113 (Okla. St. Ann., tit. 47, sec. 92), provides:

“Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and no person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead. Provided, no motor bus or other motor vehicle transporting passengers for hire shall be driven upon any public highway of this state at a rate of speed in excess of 45 miles per hour.”

And further provides, that any person guilty of violating said section shall be guilty of a misdemeanor and shall, upon conviction, be fined not less than $10 and not more than $100, or imprisonment in the county jail not less than 10 days, nor more than 30 days, or by both such fine and imprisonment. Under the law these are distinct statutes, and the violation of each constitutes a crime within itself. Here the defendant was charged under the first provision with the crime of driving an automobile upon a public highway while under the influence of intoxicating liquor. He could not be convicted under this charge of a violation of Session Laws, 1933, sec. 14, ch. 113 (Okla. St. Ann., tit. 47, sec. 92), and as stated in 86 A.L.R. p. 1274, Note B., Driving while intoxicated.

“The general rule precluding the punishment as reckless driving of an act made a separate offense for which a punishment is provided has been applied in cases involving statutes making it an offense to drive an automobile while under the influence of intoxicating liquor.
“Thus in People v. McGrath (1928) 94 Cal. App. 520, 271 P. 549, it was held that, where one section of a statute made it unlawful to drive an automobile on a highway while under the influence of intoxicating liquor and another declared that a person who knowingly and willfully drove any vehicle on a highway either without due caution and circumspection or in such manner as to endanger the life, limb, or property of any person, would be guilty of reckless driving, the defendant could not be convicted of reckless driving under an information charging him merely with driving while under the influence of intoxicating liquor, since the two crimes were distinct in law and fact, and the former was not included in the latter.
“Also, in State v. Andrews (1928) 108 Conn. 209, 142 A. 840, on an appeal from a conviction of reckless driving and driving while under the influence of intoxicating liquor, the court, applying the test whether the same facts required to support the proof of one offense would be sufficient to prove the other, held that the offenses were distinct, and said that facts might establish the offense of driving under the influence of intoxicating liquor and yet show a degree of care for the safety of others.
“And a Maine statute declaring that whoever shall operate a motor vehicle on any way recklessly or while under the influence of intoxicating liquor, so that the lives or safety of the public are in danger shall be punished as prescribed, was held in State v. Derry (1920) 118 Me. 431, 108 A. 568, to denounce two distinct offenses.”

The evidence in the case at bar on behalf of the state in chief revealed: That the defendant was driving a Chrysler automobile on U. S. Highway No. 64, east of Enid in Garfield county, on the night of June 22, 1936; that accompanying him were two ladies, one of whom he has since married, and one man by the name of Clint Mitchell. The ladies were in the back seat and the men in the front seat; when at a point about six miles east of the city of Enid they passed a truck going west on said highway in which were Joseph Johnson, driver, and Gene Bachelder, the owner of the truck. They collided with the back end of the truck and just after this collision had a head-on collision with a Buick automobile, which was following the truck in a westerly direction. This car was occupied by Dr. H. O. Warrick and his wife who were in the front seat, and John Carey, Joe Felrath and his boy Bobby were in the back seat. They were returning to their home in Enid after attending a Sunday school party at Covington. It was between 10 and 10:30 p.m. Mr. War-rick, after stating the above facts, testified that just before the collision he was driving on the north side of the road and about 100 feet behind the truck; that he saw a car coming east which was seemingly going from one side of the road to the other, ahead of the truck. Just at this time he heard the noise of the car striking the truck and he attempted to pull his car to the northwest off of the highway but was struck and knocked unconscious. He did not regain consciousness until the next day and was in the hospital for a period of ten days. There was no testimony on his part as to the defendant being under the influence of intoxicating liquor.

The next witness called by the state was Joseph Johnson, the driver of the truck, who testified to seeing the car coming from the west at a high rate of speed, and that it was swerving nearly in the center of the pavement, and was going from right to left; that he gave him the signal to dim his light, but he did not do so, and that he pulled over to the right as far as he thought he dared to go without getting off the pavement; that the car missed the front end, but hit the back end and he slapped on the brakes, and the brakes set, and he kept the truck upright, but it pulled the brake rod and punched a hole in one of the tires. He heard the noise of the head-on collision of the other cars in an instant, and after stopping his truck, went back to the scene of the collision. He saw the two ladies that were in the Chrysler car, and one of them seemed to be groaning as if dead, and the other one was cursing. She seemed to be drunk. Some one took Mr. Mitchell from under one of the cars. He did not see or speak to the defendant as he did not know him. There was no testimony from him as to the defendant being under the influence of liquor, and he was not doing or saying anything that would indicate that he was.

The next witness called by the state was Gene Bachelder, •the owner of the truck. His testimony as to the coming of the Chrysler car and the collision was as stated by the witness Johnson. He was asked:

“Q. Did you smell the odor of liquor around him? A. I smelled it around the car.” (The proof showed that Clint Mitchell was under the influence of intoxicating liquor at the time of the collision.) Afterwards, this witness testified: “Q. Did you see the defendant, Albert Luellen, there? A. Yes, sir. Q. Where was he when you first saw him ? A. I met him as I started toward the car to see about the man that this lady claimed was dead. Q. Did you have a conversation with him? A. Yes, sir. Q. What was that conversation? A. I asked him if he was in there and he said he was driving the Chrysler car. Q. You got close to him while talking to him did you? A. Yes, sir. Q. Did you observe the odor of liquor on his breath? A. To a certain extent. Q. You say you did? A. Yes, sir. Q. You also smelled liquor in and about the car? A. Yes, sir.”

Also on cross-examination he testified:

“Q. Mr. Bachelder, I believe you said you talked to the defendant and he said he was driving the Chrysler car ? A. Yes, sir. Q. He seemed to know what he was talking about, didn’t he? A. Yes, sir. Q. I don’t suppose you have had much experience with drunk men, but from what experience you have had would you say that he was drunk or sober? A. I wouldn’t say he was drunk. Q. You wouldn’t say he was drunk? A. No, sir. Q. He answered your questions intelligently? A. Yes, sir. Q. And knew what he was doing? A. Yes, sir, seemed to.”

On recross-examination he testified:

“Q. Talking about smelling an odor on him, you couldn’t tell whether he had been drinking 3.2 beer, or whisky, could you? A. No, sir. Mr. Roberts: No, and no one else could.”

The next witness for the state was Ralph Fricken-schmidt, and he testified that he was going from Enid to his home east on Highway No. 64, between 10 and 11 o’clock, on June 22nd, 1936. He saw a car in front of him which seemed to stop and then start up; that it went from one side of the road to the other and he was afraid to pass it. He followed the car for over a mile and until the collision occurred. He saw it sideswipe the truck and strike the other car. He got out of his car. His testimony was:

“Q. What did you see then? A. A woman sitting off the pavement there on the grass there on the side of the road. Q. How many women? A. There was two of them. Q. Was there a young woman and an older woman? A. Yes, sir. Q. What were they doing? A. One of them was groaning. Q. Which one? A. The older one. Q. Anything else? A. No, sir, she was sitting near the slab. Q. The young one, what was she doing? A. She was cursing and hollering and everything else. Q. Do you know what her condition was? A. No, sir. Q. Do you know whether she was drunk or sober ? A. I don’t know.”

He testified that he did not see the defendant and knew nothing with reference to whether he was under the influence of intoxicating liquor; that he did not see anyone in the crowd that he thought was drunk.

Raymond Shaffer, the next witness called by the state, testified that he lived at Enid, and attended the Covington Sunday school meeting. He left there just before Dr. War-rick did, and met a car on the highway coming east. This car failed to dim its lights, and he pulled off the slab. The car was going from the south side of the pavement to the north side. He did not know who was in the car, but to the best of his knowledge it was a Chrysler car, a brown or tan car.

Kenneth Murray, called by the state, testified that he was in company with Ray Shaffer, and corroborated his testimony. With this testimony the state closed its case.

There was no demurrer filed to the evidence and no motion for a directed verdict, but defendant immediately began the offering of evidence in his own behalf. From the above statement of the evidence, it will be readily noted that it was insufficient to prove that defendant was “under the influence of intoxicating liquor” at the time of the collision, which as heretofore stated was necessary, under the terms of the allegations of the information filed in this case. No witness, up to this time, had sworn that defendant had drunk any intoxicating liquor of any kind or character. A goodly number of witnesses were present at the time of the collision. Others came soon after it happened. None testified that the defendant was drunk or under the influence of intoxicating liquor, or that he acted in any manner that would indicate that he was. The only evidence was by the witness Bachelder, who, when asked if he smelled the odor of liquor around him, replied he smelled it around the car, and when further pressed and asked if he observed liquor on his breath, he said, to a certain extent. But he would not testify on cross examination that he was under the influence of intoxicating liquor, and that he did answer his questions intelligently, and acted intelligently and knew what he was doing, and this, coupled with the testimony of the witness Ralph Frickenschmidt that he did not observe any one there whom he thought was drunk. Under this testimony, if a demurrer had been made thereto it would have been the duty of the court to sustain the same. But instead of demurring or moving for a directed verdict, the defendant took the witness stand in his own behalf and testified:

That he lived in Enid and worked most of the time at the Enid Poultry & Egg Company; that he had been tried in this case once before and had a hung jury; that he had never been arrested before; that on the 22d day of June, 1936, he went with Mr. Clark, his former employer, and his son to Blackwell about 2 o’clock in the afternoon; that on the way over there they stopped at Pond Creek and had a bottle of 3.2 beer; that he drank a glass of 3.2 beer while at Blackwell, and also when they started for Enid in the afternoon they stopped in Tonkawa, and had a bottle of beer and arrived back in Enid about 7 o’clock; that he ate a sandwich at a restaurant and went around to the pool hall, and was sitting on the ice box when he met a friend of his named Clint Mitchell, whom he had formerly worked with at the Enid Poultry & Egg Company, and that Mitchell was drunk at that time; that he asked him to have a glass of beer and that he did so. Just at this time a lady came to the pool hall and he went out to talk to her. It was his girl friend and he has since married her. While talking to her, his friend Clint Mitchell came out and began to look for his car. He could not remember where it was parked. Mr. Clark, who ran the pool hall, asked him to help him find his car, and take him out for a drive and try to get him sobered up. The car was found in a few minutes, and he drove back to where his girl friend was and picked her and a lady friend up. She was an elderly woman named Mrs. Ray, about 50 years of age, and conducted a rooming house where she lived. He drove out to the Peacock Inn and Mr. Mitchell insisted that all of them take a bottle of beer, which they did. That afterwards they drove around, and started out on Highway No. 64, east of Enid, and the collision occurred as testified to by witnesses for the state. Defendant testified that a car with lights was approaching him, and that he got off the pavement, and when he got back he misjudged the car, and his car skidded on the pavement, and struck the back end of the truck, and knocked the front wheel down so that he could not control the car, and that Dr. Warrick’s car hit him head-on. He got out of the car, and assisted in getting Mr. Mitchell from under the car, and tried to calm the women who were hollering and excited ; that he saw a car approaching and asked him to bring them to town, and that by that time another party came up and said he would haul them in. He put his lady friend and Mrs. Ray and Mr. Mitchell in the back seat and he got in the front seat with the driver, and they were brought to Springs Hospital in Enid; that his wife was hysterical. He carried Mrs. Ray to her home; that he misjudged the distance of the car; that he was not drunk; that he was only driving Mitchell around to get him sober.

Juanita Luellen testified for the defendant that she had married him July 22, 1936; that she was with him on the night of the collision. She corroborated his testimony as to the drinking of beer with him, after she was with him, but that he was not drunk at the time of the accident.

A. L. Clark testified that defendant went with him to Blackwell and they stopped at Pond Creek and got a bottle of beer and one at Blackwell and one at Tonkawa when they returned. He testified to asking the defendant to take Mitchell out for a ride, because he was pretty drunk, and he wanted to get. him away from his place of business, and that defendant was sober when he left in the car.

Harold Brown testified that he lived at Marshall; that he was the man who brought the parties to the hospital on June 26, 1936; that defendant rode in the front seat with him; that he did not smell any liquor on his breath that he knew of; that he did not know if he was drunk or sober; that he seemed to talk intelligently; that he was trying to calm his wife who was very much excited; that the odor of liquor was very strong from the man in the back seat and he was drunk. With this testimony the case was closed. No demurrer to the evidence or motion for a directed verdict was asked by counsel for defendant and after the instructions were given by the court the case was submitted to the jury, and a verdict was returned finding the defendant guilty, and assessing his punishment at a fine of two hundred dollars and six months in the penitentiary. The statute under which defendant was prosecuted has been before this court in many cases. Daft v. State, 56 Okla. Cr. 449, 42 P. 2d 146; Little Star v. State, 55 Okla. Cr. 294, 29 P. 2d 995; Curry v. State, 54 Okla. Cr. 225, 17 P. 2d 521; McFadden v. State, 53 Okla. Cr. 287, 10 P. 2d 731; Harragara v. State, 52 Okla. Cr. 41, 3 P. 2d 749; Lee v. State, 49 Okla. Cr. 258, 293 P. 1114; Davis v. State, 48 Okla. Cr. 186, 290 P. 347; Brown v. State, 48 Okla. Cr. 251, 290 P. 416; Ware v. State, 47 Okla. Cr. 434, 288 P. 374; Brown v. State, 47 Okla. Cr. 169, 286 P. 911; Bruce v. State, 46 Okla. Cr. 214, 287 P. 809; Ryan v. State, 46 Okla. Cr. 5, 283 P. 809; Welch v. State, 43 Okla. Cr. 47, 277 P. 280. The latest case is that of Haithcock v. State, 63 Okla. Cr. 276, 74 P. 2d 641, which is more similar to the facts in this case than any of the others. A reading of all these cases will reveal the fact that the proof of the state in chief was to the fact that the defendant was either “drunk” or “under the influence of intoxicating liquor.” This fact was positively sworn to by some witnesses. In the case at bar no witness for the state swore to this fact, but the defendant, when he took the witness stand in his own behalf, testified that on the afternoon prior to the collision he had drunk a bottle or glass of beer on five different occasions and several of them were just prior to the collision. When this fact is taken into consideration, it supports the evidence of the state’s witnesses, who testified that the car which defendant was driving was zigzagging from the north to the south side of the pavement just prior to the collision, and of his misjudging the distance when he said he collided with the truck and went head-on into the Buick car driven by Dr. Warrick.

As above stated the Oklahoma statute does not define what is meant by the term “under the influence of intoxicating liquor.” This court in several of the cases heretofore cited, beginning with Welch v. State, 43 Okla. Cr. 47, 277 P. 280, has held that this term is of common use, and requires no definition or explanation to be understood by persons of ordinary intelligence, and is not error for the court in cases brought under this statute to fail to define or explain such term. This court, as it is now constituted, is not prepared to say that the above statement is wrong as a matter of law, but we do think it is much better for the court to give an instruction defining this term, so the jury may have some conception and understanding of what the law considers being “under the influence of intoxicating liquor.” This is the very gist of the crime. Without it being defined one juror may construe it to mean that a party must be “drunk,” another that he be “completely out” and devoid of reason, another may construe it to mean that if it is proven that he has taken one drink that he is therefore “under the influence of intoxicating liquor.” For this reason we believe it best for the court to define the term, so that the jury may know what the law considers as one being under the influence of intoxicating liquor. A definition of this term will in our opinion defeat many mistrials in cases brought under this statute. It is a well known fact that intoxicating liquor has a different effect upon the system of different parties. Some persons may drink a quantity of liquor, and still be in their normal senses, others with a very limited quantity will be completely out. Some people are not so much affected by the drinking of beer, others become completely drunk by the drinking of the same. These are all questions to be determined by the jury, under proper evidence, and proper instructions, to meet the issues of each case, and when the jury has been properly instructed, and the evidence properly admitted, this court as reflected under its many decisions heretofore cited will not set the verdict aside. In the instant case the court instructed the jury defining what was meant by the term “under the influence of intoxicating liquor” in the following instruction:

“Instruction No. 5. You are instructed that when any person, from the use of intoxicating liquors, has affected his reason or his faculties, to any extent, or has rendered himself incoherent of speech, or has caused himself to lose control, in any manner, or to any extent, of the actions or motions of his body, such person, in contemplation of the law, is under the influence of intoxicating liquor.”

This instruction was not excepted to by defendant and counsel (who did not represent defendant at the trial) in his brief says: “Under instruction No. 5, given by the court, which counsel believes to be the law and believes that the trial court fairly stated the law under instruction No. 5.” He would, therefore, be precluded from questioning the instruction at this time. And while we are not prepared to say the instruction was erroneous, the words “to any extent” and “in any manner” tend to limit the definition within very narrow bounds. In view of the fact that many cases arise in Oklahoma under this statute, and the increased automobile traffic, and danger from drunken driving, we have searched the books for what we believe to be a fair definition of the words “under the influence of intoxicating liquor.” This definition we have found in the case of People v. Dingle, 56 Cal. App. 445, 205 P. 705, which definition has been adopted by Berry on Automobiles, vol. 2 (6th Ed.) sec. 2022, p. 1638, and is as follows (page 706) :

“However, with respect to the meaning of the phrase ‘under the influence of intoxicating liquor,’ as used in this statute, we think we are well within the bounds of accuracy in saying that if intoxicating liquor has so far affected the nervous system, brain or muscles of the driver of an automobile as to impair, to an appreciable degree, his ability to operate his car in the manner that an ordinary prudent and cautious man, in the full possession of his faculties, using reasonable care, would operate or drive a similar vehicle under like conditions, then such driver is ‘under the influence of intoxicating liquor’ within the meaning of the statute.”

See, also, People v. Ekstromer, 71 Cal. App. 239, 235 P. 69.

Evidently it was not the intention of the framers of the motor vehicle act, section 10324, Okla. Stats. 1931 (Okla. St. Ann., tit. 47, sec. 93), to fasten guilt in the case of any and every “influence” due to the use of intoxicating liquor however slight. It was enacted to protect the public from those who, while under the influence of intoxicating liquor, attempt to operate an automobile upon the highways of this state, and especially at a time when there is a world of traffic difficulties. This law should be liberally construed so as to effect its purpose, and bring safety to those who drive the public highways in an orderly and lawful manner. The term “under the influence of intoxicating liquor” is one of fact to be determined by the court or jury after hearing all the facts and circumstances in the case.

In the case at bar the defendant testified that he had five bottles of beer during the afternoon and night prior to the collision. The witnesses offered by him corroborate this. The state’s witnesses showed that his automobile zigzagged down the highway just prior to the accident, and to such an extent that it was necessary for them to stop their automobiles and attempt to leave the highway in order to avoid a collision. These were all proper facts to be considered by the jury, and it is not for us to say they came to the wrong conclusion. But in view of all the evidence, and after a careful consideration of all the facts, we have come to the conclusion, that justice in this case would best be met by reducing the sentence from a fine of $200 and six months in the penitentiary to a fine of $200. The statute under which defendant was prosecuted does not permit a jail sentence.

The judgment of the district court of Garfield county is, therefore, modified and affirmed.

DAVENPORT, P.J., and DOYLE, J., concur.


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    BUD HUCKLEBERRY v. STATE.
    No. A—9384.
    July 8, 1938.
    (81 P. 2d 493.)

      C. L. Hill and D. E. Ashmore, both of Wewoka, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Tom Finney, Asst. Atty. Gen., and Hubert Hargrave, Co. Atty., and Tommie Biggers, Asst. Co. Atty., both of Wewoka, for the State.
   BAREFOOT, J.

The defendant was charged with the crime of rape by force in Seminole county, was tried, convicted and sentenced to serve a term of 15 years in the penitentiary, and has appealed.

The first assignment of error is that the court erred in failing to sustain defendant’s objection to the introduction of testimony by the state, for the reason that the information did not state a cause of action, charging said defendant with the crime of rape in the first degree, and for the further reason that the information was duplicitous. The charging part of the information was as follows:

“That at and in the County of Seminole, and the State of Oklahoma, on or about the-day of 9th, 1936, October, Bud Huckleberry did then and there feloniously by means of force overcoming her resistance and by means of threats of immediate and great bodily harm, accompanied by apparent power of execution, preventing such resistance commit an assault upon the person of one Vesta Raper, a female person, not the wife of him, the said Bud Huckleberry, a male person, and did then and there by use of the force and threats of immediate and great bodily harm, aforesaid, overcoming her resistance, have sexual intercourse with and rape the said Vesta Raper.”

The statute under which this information is based is section 2515, Okla. Stats., 1931 (Okla. St. Ann. tit. 21, sec. 1111), which is as follows:

“Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances: * * *
“4th. Where she resists but her resistance is overcome by force and violence.
“5th. Where she is prevented from resistance by threats of immediate and great bodily harm, accompanied by apparent power of execution.”

It is contended that under the terms of the above information the “defendant was charged and tried upon two distinct charges.” There was no demurrer filed, or motion to quash, the information in this case. The first objection was to the introduction of evidence. If it is the desire to question the sufficiency of the information, it is the duty of counsel to file a demurrer or motion to quash the information, which was not done in this case. But regardless of this fact, we are of the opinion that the information does not charge two offenses and is not duplicitous. The cases cited by defendant do not in our opinion bear out this contention. They are: Slover v. Territory, 5 Okla. 506, 49 P. 1009; Elliott v. State, 4 Okla. Cr. 224, 111 P. 820, 140 Am. St. Rep. 683; Merchant v. State, 12 Okla. Cr. 360, 157 P. 272; Kime v. State, 14 Okla. Cr. 111, 167 P. 1159; Williams v. State, 16 Okla. Cr. 54, 180 P. 559. The case of Slover v. Territory has been distinguished in the case of Berry v. State, 44 Okla. Cr. 150, 279 P. 982, and the court refused to follow it in the case of Payne v. State, 53 Okla. Cr. 37, 6 P. 2d 1073.

The case of Short v. State, 42 Okla. Cr. 437, 276 P. 703, is decisive of this question. In this case the court says:

“An act of sexual intercourse is rape in the first degree without regard to the age of the female, when accomplished with a female, not the wife of the perpetrator, where she resists but her resistance is overcome by force and violence, or where she is prevented from resistance by threats of immediate and great bodily harm, accompanied by apparent power of execution.
“Where an information alleges an act of sexual intercourse accomplished with a female under the age of 16 years by force and violence overcoming her resistance and by threats of immediate and great bodily harm, accompanied by apparent power of execution, such allegation constitutes a charge of rape in the first degree. The state may establish such charge by proof that the female was under the age of 16 years, or that the act of sexual intercourse was accomplished by force and violence overcoming the resistance of the female, or by threats of immediate and great bodily harm which prevented her resistance; the proof of either or both of such conditions is sufficient to establish rape in the first degree.”

In cases of this character, the true test is, whether the act charges and the statute defines more than one crime, or whether it defines a single crime which may be committed in a number of different ways. Whether there is a readily perceived connection between the things charged. If there is no reasonable connection one with the other, and they are disconnected transactions, the information is duplicitous, otherwise it is not. State v. Hennessy, 114 Wash. 351, 195 P. 211. Applying this test to the case at bar, it will be readily seen that only a single crime is here charged which may be accomplished in different ways, and there is a readily perceived connection between the things charged. Under the authorities and the facts in this case the allegation that “she was prevented from resistance by threats of immediate and great bodily harm” might be considered as surplusage. State v. Morrison, 46 Mont. 84, 125 P. 649; Sowers v. Territory, 6 Okla. 436, 50 P. 257; Wines v. State, 7 Okla. Cr. 450, 124 P. 466; Adams v. State, 5 Okla. Cr. 347, 348, 114 P. 347; 31 C.J. 764; Dobbins v. State, 21 Okla. Cr. 403, 208 P. 1056.

Defendant’s second assignment of error is, that the court erred in excluding competent, relevant, and material testimony offered by the defendant, and admitted incompetent, irrelevant and immaterial testimony introduced by the state, and that the verdict of the jury is contrary to the law and the evidence. The record reveals that many of the questions asked and of which complaint was made were not excepted to by the defendant. Many of the others reveal that the answers given were favorable to the defendant, and under the rules of this court, would not be subject to review unless the action of the court was found to be fundamental error. However, we have carefully examined the record, and do not find where the court committed any error in the permitting of evidence to be introduced or to the exclusion of the same which could have been prejudicial to the rights of the defendant.

The contention of defendant that the verdict of the jury is contrary to the law and the evidence cannot be sustained. The evidence on behalf of the state revealed that the defendant, Bud Huckleberry, Carl Stokes, Pearl Robertson, 17 years of age, and the prosecutrix, Vesta Raper, 16 years of age, lived near Konawa, in Seminole county; that on the evening of the 8th of October, 1936, the defendant, who owned a one seated Ford coupe automobile, in company with Carl Stokes, accompanied the above-named young girls for an automobile ride through some of the oil fields near their home. The defendant was 23 years of age, and had been married and had two small children, but was not living with his wife at the time; that he was living with his father, and that Carl Stokes got in his car and went to the home of the prosecutrix about 7:30 p.m. and after getting her, returned and the three went to the home of Pearl Robertson, where she joined them. Prose-cutrix was sitting next to defendant and Pearl Robertson sat on Carl Stokes’ lap; they drove to different places in the oil field. Defendant bought two bottles of whiskey. The evidence was conflicting as to whether prosecutrix drank any of the liquor. She claimed that she did not. Some time after 12 and on the morning of October 9, 1936, they started for home. There is practically no conflict in the testimony up to this point. The prosecutrix, Vesta Raper, testified that when they left the oil lease and started home the defendant, who had been drinking considerably, was driving; that they first went to the home of Pearl Robertson, and she got out of the car; that she and the two boys then took Carl Stokes to his home, and then defendant and prosecutrix started to her home and defendant stopped his car by the side of the road, and she testified as follows:

“Q. Will you tell the jury what happened then? A. Yes, sir. Q. Without hurrying, now, the reporter has to take down all you say. A. Well, Bud pulled out to the side of the road and stopped and he just took hold of my bloomers and pulled them down, and I said ‘Bud, what are you going to do?’ and he said ‘By God, I will show you what I am going to do.’ And we started scratching and fighting. Q. What did you do? A. I jerked loose from him after we struggled a little while and run about 30 or 40 steps, and he caught me and he drug me back to the car and I wouldn’t get in and he opened the door and put me back in. Q. How did he put you in ? A. Forced me to get in the car, and then he got in and wrestled a while longer, and there was a car come along from the east and I hollered and screamed and Bud put his hand over my mouth until the car passed, and I waved with one foot, but the car didn’t stop, and then he went on with this intercourse. Q. Had he done anything with his clothes in the meantime? A. I do not think so. Q. Had he unbuttoned them, or disarranged them in any way? A. He had them unbuttoned, yes, sir. Q. You know what sexual intercourse is? A. Yes, sir. Q. Did he have sexual intercourse with you there? A. Yes, sir. Q. Tell the jury what you did, if you did anything, to keep him from that. A. Well, I wrestled and fought him for a long time, but still he went on and forced the deal anyway. Q. Did you use all the force you could? A. Yes, sir. Q. All the strength you had? A. Yes, sir. Q. How was he holding you in the car? A. He had his hands around the back of my waist, and had my feet around his waist, and had the top of my legs pressed up against his stomach and he was between my feet on his knees. Q. Did you get away from him any more? A. No, sir. Q. Did you try to? A. Yes, sir, I tried to. Q. How long would you say you were wrestling and scuffling before he accomplished his purpose? A. Something like two hours. Q. Do you know what time it was when you reached home? A. Yes, sir. Q. After he accomplished what he started out to do, did he take you home then? A. Yes, sir. Q. When you got to your home, what happened? A. He slowed down. He didn’t drive out towards my house, he stayed in the road and I got out and the car was going right slow. Q. What did you do ? A. I got to the gate and I called mother and she didn’t answer and I got inside the. gate and called again, and she answered, and I said, ‘M^mma, I want you to have old Bud Huckleberry arrested because he raped me.’ ”

She and her mother then testified to going to a neighbor’s house, and calling him to get assistance to go to town to see a doctor; that finally arrangements were made with a man who lived on their place to drive the car and take them to Konawa; that they arrived there about 3 o’clock in the morning. They went to the home of Dr. H. M. Reeder. He called in Dr. W. T. Huddleston. Both reputable physicians, and they testified that they examined Yesta Raper, the prosecutrix. They found from this examination the hymen was torn in two places, a bad tear about the middle, and one at the top. These torn places were bleeding and the blood was from the wounds. Her clothing was torn and bloody. Her underclothing was torn and bloody and the blood came from the wounds. They testified to other facts corroborating the evidence that had been given by the prose-cutrix which it is unnecessary to state.

Mrs. Anna Raper, the mother of prosecutrix, corroborated the evidence of prosecutrix after her arrival home, which she stated was 2 a. m., and also testified to having her examined by the family physician, Dr. Bynum of Shawnee, the day following, but Dr. Bynum did not testify in this case.

The defendant’s testimony corroborated the prosecutrix up until the time they left the oil lease near 12 o’clock on the night of October 8th. He testified that when they left there they took the prosecutrix, Vesta Raper, to her home first; that they then took Pearl Robertson to her home and he then took Carl Stokes to the home of his brother, and that he then went to his home and arrived there between 12 and 1 a. m.

Pearl Robertson testified for the defendant and corroborated his testimony as to the taking of Vesta Raper home first, and then herself, and the two boys leaving her place with Joe Lee who had been there to see her sister. Joe Lee also swore to this. The defendant also testified that on the way home he and Carl Stokes met Edgar Hedgar, who was fixing a flat tire, and stopped and talked with him, and also passed Batt Ingram, Jr., at his home and stopped and conversed with him; both of these witnesses, testifying for the defendant, corroborated this testimony. The father and sister of defendant corroborated his testimony as to the time of his arrival at home at about 12:30 o’clock.

The state in rebuttal placed Carl Stokes upon the witness stand. He corroborated the prosecutrix, Vesta Raper, in every detail, testifying as she did to the taking of Pearl Robertson home first and then himself, and that the defendant, Bud Huckleberry, and prosecutrix, Vesta Raper, left his home together in the Ford car a little after 12 o’clock. He denied the fact that Joe Lee had accompanied them from the home of Pearl Robertson, or that he was at that home, and denied they met the witnesses Edgar Hedgar and Batt Ingram, Jr., as testified to by them. He also testified of efforts to secure a statement from him different from that of the testimony he was now giving. From the above statement it will be seen that the evidence was highly contradictory. Under these circumstances, as has been often held by this court, the verdict of the jury will not be set aside where there is any evidence to support it. The action of the prosecutrix at the very time of leaving the presence of defendant; her trip to Konawa in the nighttime; the corroborating evidence of the condition of her clothing, and the evidence of her physical condition as found by the examination of two reputable physicians, all corroborate her testimony. We have often stated that cases of this character should be carefully examined. We are not unmindful of the words of Sir Matthew Hale, as quoted in defendant’s brief:

“It is true that rape is a most detestable crime, and therefore severely to be punished, but it must be remembered that it is an accusation easily to be made, and hard to be proved, and harder to be defended by the party accused, though never so innocent.”

But in this case, as before stated, the testimony of the prosecutrix was that defendant overcame her resistance by force, and that she used all the force within her power to resist, but that defendant,, despite this resistance, accomplished his purpose. Her testimony is corroborated in the manner heretofore shown. From a reading of the record in this case it is clearly evident that perjury has been committed by some of the witnesses, and the wonder is that complaints were not filed. Frank Hinson v. State, 29 Okla. Cr. 210, 232 P. 955; Burtt v. State, 64 Okla. Cr. 68, 77 P. 2d 580.

The next assignment of error is that the court erred in giving instruction No. 2, which is as follows:

“Rape in the first degree, insofar as it is necessary to define the same in this case, is an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female resists and her resistance is overcome by force and violence.”

It is contended that the court should have set out the whole of section 2518, Okla. Stat. 1931 (Okla. St. Ann. tit. 21, § 1114). We do not think this was necessary. The defendant was charged with rape by force. íhe only issue involved in this case was whether or not the defendant had accomplished his purpose by force. It was unnecessary to have the jury consider the other paragraphs of this statute which were not involved in the issues in this case. It would have not been error for the court to have set out the whole of the statute but we see no reason as to why it was necessary to do so.

The objection to instruction No. 5, because it does not use the words “reasonable doubt,” cannot be maintained. This instruction should be construed in connection with instructions Nos. 6, 7 and 8, which fully protected the rights of defendant with reference to the jury being convinced of defendant’s guilt beyond a reasonable doubt before returning a verdict of guilty. A reading of the case of Harmon v. Territory, 15 Okla. 147, 79 P. 765, does not, in our opinion, bear out the contention of defendant.

Finding no substantial error in this case, the judgment of the district court of Seminole county is affirmed.

DAVENPORT, P. J., and DOYLE, J., concur.


author: PER CURIAM.

text:
    Ex parte CHARLES T. WILCOX.
    No. A—9538.
    July 15, 1938.
    (81 P. 2d 671.)

      Tillman & Tillman, of Pawhuska, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sim T. Carman, Co. Atty., of Pawhuska, for the State.
   PER CURIAM.

Petitioner has made application to this court for a writ of habeas corpus, alleging that he is unlawf ully restrained of his liberty by R. B. Conner, sheriff of Osage county. That an information has been filed against him in said county charging him with the crime of murder, and that he has been held without bail, and that he has heretofore made application to the district court of Osage county for a writ of habeas corpus to be permitted to be discharged upon the giving of bail, and that the application has been denied. Upon the presentation of the writ, an order was made by this court to show cause, and a hearing was had, and a transcript of the evidence and oral testimony was heard by the court upon the application. The defendant testified in person at said hearing and also Dr. W. H. Aaron of Pawhuska.

It is contended by petitioner that his restraint is illegal and unauthorized and that he is entitled to bail for the reason:

(a) That the proof of guilt of the defendant is not evident or the presumption thereof, great.

(b) That the health of defendant is such that if he is confined in jail that it will be extremely detrimental to his health and may result fatally to him.

It was stipulated and agreed between counsel representing the state and defendant that it would be impossible to try the case at any time prior to the second week in September. Counsel for defendant, in order to substantiate the second contention, placed Dr. W. H. Aaron of Pawhuska upon the witness stand. His qualifications were admitted. He testified that he had made two physical examinations of defendant since he had been placed in jail, and had examined him the day before his testimony was given at this hearing. He testified:

“Q. I wish you would tell the court what condition you found him in? A. Generally? A. Yes, sir. A. I examined him sometime about the 22nd or 23rd of June, then I examined him again yesterday. I saw him once since the 22nd of June. I found him to be a man, appeared to be 70, he said he was 61, he is emaciated — poor, skin in wrinkles; the skin was loose over his face, body, palms and limbs, he coughed constantly when I examined him the first time, he had been burned nearly to the elbow on both hands, at least above the wrist, that pealed off, he evidently sucked fire into the throat, lungs and nose, the whole mouth raw from the lips back through the throat. An examination of the lungs shows deposition of moist rales becoming pronounced around the area of the center. He has got an enlarged heart, he has got arteriosclerosis, probably cirrhosis of the liver. He can’t shut his eyes and put his feet together, he falls over, that is a disturbance of the brain. He has fallen off appreciable since I saw him the last time, he complains of the head, that ‘I can’t see.’ Every time I saw him he complained of headache, rests bad at night, he told me he did not have it before the night of this fire, I didn’t examine his nose, probably he got as much fire in the nose as in the throat. Q. Now, doctor, from the examination of the defendant, will you state to the court whether or not, in your opinion, confinement in the county jail is detrimental to his health, if he is confined there until the second week of September, whether or not in your opinion that confinement will result fatal to him? A. I look for it to, I don’t think he can stand it.”

No testimony was offered by the state to contradict this evidence. Under this state of the record, and without any comment upon the evidence respecting the guilt or innocence of defendant of the crime charged against him, and without passing upon the first proposition presented by defendant, we are of the opinion under the law as heretofore announced by this court defendant is entitled to bail. Ex parte Watson, 1 Okla. Cr. 595, 99 P. 161; Ex parte Smith, 2 Okla. Cr. 24, 99 P. 893; In re Farley, 4 Okla. Cr. 91, 111 P. 662; Ex parte Emma Rivers, 9 Okla. Cr. 720, 131 P. 1197.

It is therefore ordered that the petitioner Chas. T. Wilcox be and he is hereby admitted to bail upon the charge of murder now pending against him in the district court of Osage county, and that his bail be, and is hereby fixed at the sum of $15,000; and that upon the execution of said bond and the approval of the same by the court clerk of Osage county, defendant is ordered discharged.


text:
    HENRY GRANSBURY v. STATE.
    No. A—9509.
    July 22, 1938.
    (81 P. 2d 874.)

      A. 0. Manning, of Fairview, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Ellis W. Eddy, Co. Atty., of Medford, for the State.
   BAREFOOT, J.

The defendant was charged with the crime of burglary in Grant county, was tried, convicted of burglary in the second degree, and sentenced to serve a term of four years in the penitentiary, and has appealed.

Defendant’s first assignment of error is that the verdict of the jury is contrary to law and the evidence, and the court erred in overruling his demurrer to the evidence offered by the state.

This contention is based principally upon the fact that the evidence relied upon by the state is partially circumstantial, and there was no direct evidence that the defendant was present, or entered the granary which it was claimed was burglarized. The evidence discloses that Sam Halcomb owned a granary located eight miles southwest of Pond Creek, in Grant county, Okla., that there was stored in said granary about 2,800 to 3,000 bushels of wheat; that on Sunday August 8, 1937, he was called and given information with reference to someone having entered his barn and taking his wheat; that about 12 or 1 o’clock, on the afternoon of said date, he went to the granary for the purpose of making an investigation, and found that the granary had been broken into. He noticed where a truck had been backed up to the door and “when he opened the door he found a piece of tin nailed on one of the door boards, and a hole cut out, and a piece of tin slipped in to keep the wheat from running out”; that the door to the granary was closed but not locked; and that at the time that he left there on Sunday afternoon, August 8,1937, he left the board with the tin attached inside of the granary. He identified this board at the time of the trial, as being the board which was taken from defendant’s truck by the sheriff on Sunday night, August 8, 1937, at the time of his arrest. He notified Mr. Northcutt, the sheriff of Grant county, and he came to his home just about dark on August 8, 1937, and in company with the sheriff they went to the home of Mr. Kuykendall, who lived in close proximity to the granary, for the purpose of securing his services to watch the granary that night. He could not get him to do so, and they then went to the home of Mr. Zickefoose, a son-in-law of Mr. Kuykendall, and who lived a quarter of a mile east. They arrived there at about 11 o’clock at night, and while there received information from Mr. Kuykendall and his daughter that a truck was seen to enter his premises where the barn was located, and after staying there for some time had driven away. He and the sheriff went immediately to the granary, and upon investigation found that a truck had backed up to the granary, and that a part of the wheat was gone. He also noticed that the board with the tin on it which he had left there at noon was also gone. He and the sheriff made a careful examination of the tracks, and followed them until they hit the paved highway about two miles west of the granary. They went on two miles further west and defendant was apprehended driving a truck loaded with wheat, and on top of the wheat was found the board and tin as heretofore described. Defendant was arrested and charged as before indicated. The tires taken from his truck were introduced in evidence, and it showed that the tracks at the granary and a place where he went into a ditch at the side of the road were very similar. The defendant stated at the time of his arrest, according to the evidence of Mr. Halcomb and Sheriff Northcutt, that he secured the wheat which was in his possession “from my uncle down by El Reno.”

Other witnesses testified to corroborating facts which it is unnecessary to give.

The defendant, testifying in his own behalf, stated that he had planted about 300 acres of wheat during the season of 1936-1937; that the hail had ruined part of it, but he had harvested about one-half of it; that on Saturday, August 7, 1937, about noon he had loaded his Ford V-8 truck with wheat for the purpose of taking it to Enid in Garfield county, and about 70 miles distance, where he had made arrangements with a party working at an elevator and whose name he did not know to. exchange it for seed wheat. He arrived at Enid late Saturday afternoon, August 7, 1937, and could not find the party with whom he had made arrangements to exchange the wheat, and after staying there for about two hours started back toward his home with his original load of wheat; that his truck developed engine trouble and he stayed all night at the side of the road just north of Enid; and worked on his car the next day, and with the assistance of others, whose names he could not give, he finally got the engine fixed and was coming home Sunday night when he was arrested, and that the wheat which he had on his truck was his own wheat, and the same wheat he had taken to Enid for the purpose of exchange. His explanation of the possession of the board and tin attached thereto, as heretofore stated, was that he had stopped at an abandoned filling station just before he was arrested, and seeing this board lying on the ground had picked it up and thrown it on his truck. One witness testified for the defendant that he helped him load the wheat on his truck about noon Saturday. Other witnesses testified to his having planted wheat during the season 1936-1937, and to having seen him combining a part of the same during the year.

The state, on rebuttal, offered two witnesses who testified to selling the defendant gasoline in and near the small towns of Amorita and Byron, Alfalfa county, Saturday and Sunday evenings, August 7, and 8, 1937. This evidence was for the purpose of rebutting the fact that defendant had gone to Enid at 1 p.m., August 7, and for the purpose of showing that he was in Alfalfa county at that time. Defendant denied this testimony.

From the above statement it will readily be seen that there was a conflict in the evidence and this conflict was passed upon by the jury against the defendant. This court has recently passed upon three cases which we think are decisive of this question. They are Jim Hart v. State, 57 Okla. Cr. 372, 48 P. 2d 337, John Hart v. State, 61 Okla. Cr. 224, 67 P. 2d 66, and Adams v. State, 61 Okla. Cr. 5, 65 P. 2d 420. In the case of Jim Hart v. State, supra, it is said (page 338):

“At the close of the evidence, there was a motion for a directed verdict of acquittal for the reason that the evidence was insufficient to warrant a conviction.
“It is insisted that there was no proper or sufficient evidence connecting this defendant with the burglary or taking of the corn. We think this contention is without substantial merit.
“It has been held by this court, following the rule recognized by the courts generally, that mere possession of property recently stolen is not sufficient to convict the possessor of a larceny of it. Shaw v. State, 13 Okla. Cr. 511, 165 P. 617; Graham v. State, 12 Okla. Cr. 84, 152 P. 136. When, however, this fact is supplemented by other facts inconsistent with the idea that the possession is honest, it then becomes a question of fact for the jury to determine.
“Where the charge is burglary, if property taken from the owner is soon thereafter found in possession of the person charged with the burglarious entry, proof of this fact, together with circumstances showing guilty conduct, is presumptive evidence, not only of the larceny, but also that he made use of the means by which the property was taken from the owner.
“Burglary is one degree removed from larceny; but when the facts in evidence warrant the finding of the larceny, and the surrounding circumstances are such as to show that the larceny could not have been committed without the burglarious entry, the evidence is sufficient to warrant the finding of the burglary also.
“In order to establish defendant’s guilt, it was not necessary that any of the witnesses should have seen him or his codefendants in the vicinity of the warehouse about the time the burglary was committed. It rarely happens that perpetrators of an offense, committed in the manner here proven, can be shown by witnesses who saw and recognized the defendants in the act, and resort must therefore ordinarily be had to circumstantial evidence.
“The jury evidently did not believe the explanation made by defendant as to how he came into possession of the stolen corn.
“The rule repeatedly announced by this court is that it has no power to reverse a judgment of conviction upon the ground that the verdict is not supported by the evidence, unless there is no substantial evidence tending to show defendant’s guilt, or the evidence fails so far to support the verdict that the fair inference is that the jury must have acted from passion or prejudice. We have set forth a substantial statement of the material testimony introduced by the state, and it is apparent that there is subsantial evidence tending to show defendant’s guilt, and we think it is amply sufficient to support the verdict of the jury.”

In the case of John Hart v. State, supra, it is said (page 67):

“The rule which is recognized by the great weight of authority may be stated as follows: There is no presumption of guilt of burglary attaching to the mere possession of stolen property by the defendant, but such fact, if the alleged crime be of recent occurrence, has a tendency to prove his guilt, and if there be other proved circumstances tending to connect him with the commission of the offense, the fact of possession thus aided, will sustain a conviction. Drew v. State, 61 Okla. Cr. 48, 65 P. 2d 549, and cases cited.”

The facts in the case at bar and in the above cases are very similar. If anything, the facts in the instant case are the stronger. Here the defendant was found in possession of 130 bushels of wheat, driving his own truck, and at a distance of about four miles from the scene of the burglary, and within a few hours after it was committed. Not only the possession of the wheat was proved, but on defendant’s truck were certain instruments which were at the scene of the burglary just a few hours before it was committed. The defendant’s statement when arrested that he received the wheat from his uncle east of El Reno, and afterwards changing his story as testified to by him at the time of the trial, and the reasonableness or unreasonableness of his story that he had hauled the wheat from his home in Alfalfa county to Enid, 70 miles distance, for the purpose of exchanging it for seed wheat, were questions to be taken into consideration iy the jury. It was up to the jury to say whether or not they believed the evidence offered by the state or the evidence of the defendant. From a reading of the record we are unable to say that the jury were wrong in the conclusions drawn and that the evidence was insufficient to support the verdict.

It is next assigned as error that the court erred in permitting to be introduced incompetent, irrelevant and immaterial evidence over the objection and exception of the defendant. In this connection it is claimed that the court permitted a certain tin chute to be introduced in evidence which was marked “Exhibit D”, and which was found at the house of defendant after his arrest, and that no search warrant was had in securing the same. A careful examination of the record reveals that while certain questions were asked about this tin chute it does not show that it was introduced in evidence by the state. When the county attorney offered the different exhibits in evidence, “Exhibit D”, was omitted. The court reporter placed a picture of the same in the record along with other exhibits but the record shows that it was not introduced. We find no substantial error of the court in its action in this matter.

It is next contended that the court erred in giving instruction No. 6, which was as follows:

“The jury are informed that in this action the state, to establish the commission of the oifense charged in the information, relies wholly upon circumstantial evidence.
“In this connection, you are instructed that the circumstances relied upon and proven must not only be consistent with the guilt of the defendant, but must also be inconsistent with his innocence, and incapable of any other reasonable explanation except that of his guilt.
“It will be your duty to carefully weigh and consider all the facts and circumstances submitted in evidence in this case, and upon consideration thereof, if you find that such facts and circumstances are consistent with the guilt of the defendant and inconsistent with his innocence, and that such facts and circumstances are incapable of any other reasonable explanation except that of his guilt, and the evidence convinces you beyond a reasonable doubt of the defendant’s guilt, then and in such event it will be your duty to convict him.
“Upon the other hand, if, after a careful consideration of all of the facts and circumstances submitted in the case you entertain a reasonable doubt of the defendant’s guilt, you should acquit him.
“Given in Court. Excepted to by defendant.
“[Signed] O. C. Wybrant, Judge.”

It is earnestly contended by defendant that the above instruction fails to instruct the jury “that the circumstances relied upon to establish the crime charged must be consistent with each other circumstance relied upon by simply instructing the jury that they must be inconsistent with his innocence.” In support of this contention the following cases are cited: Tomlinson v. State, 27 Okla. Cr. 429, 228 P. 608; Carney v. State, 29 Okla. Cr. 83, 232 P. 451; Bass v. State, 29 Okla. Cr. 92, 232 P. 955; England v. State, 29 Okla. Cr. 38, 231 P. 1087; Prock v. State, 33 Okla. Cr. 339, 244 P. 54; Sanders v. State, 43 Okla. Cr. 69, 277 P. 605; De Bose v. State, 18 Okla. Cr. 549, 197 P. 176; Inklebarger v. State, 8 Okla. Cr. 316, 127 P. 707; Brown v. State, 12 Okla. Cr. 343, 156 P. 1150. We have carefully read the above cases, also instruction No. 6, given by the court, and also requested instruction No. 2, offered by defendant, and which it is claimed was an exact copy of the approved instruction in the case of Carter v. State, 6 Okla. Cr. 232, 118 P. 264. In the Carter Case the instruction was quoted in the opinion, but no reference was made thereto by the court. The requested instruction offered by defendant quoted from this instruction, but added a paragraph thereto. In the case of Carney v. State, and Prock v. State, the court holds:

“The facts proven must be such as to exclude every reasonable hypothesis inconsistent with the guilt of defendant.”

The case of Inklebarger v. State, 8 Okla. Cr. 316, 127 P. 707, Judge Furman, speaking for the court, says:

“In cases of circumstantial evidence, the court should instruct the jury that the facts necessary to establish the conclusion of the guilt of the defendant must be proven by competent evidence and beyond a reasonable doubt; and they must not only be consistent with the guilt of the defendant, but they must exclude, to a moral certainty, every other reasonable hypothesis except that of guilt. That is all that the law requires in such cases.”

While the language of instruction No. 6 may not be expressed as well as in the Carter Case, we think it is sufficient under the law as announced by this court, and as applied to the facts in this case. The state does not rely wholly upon circumstantial evidence in the case at bar as stated by the court in the above instruction. There is much direct and positive testimony, and many cases have held, that where there is direct and positive testimony it is unnecessary to give an instruction upon circumstantial evidence; however, we think it is proper and right to define circumstantial evidence where the state relies partially upon same for a conviction. State v. Rickmire, 144 Minn. 32, 174 N.W. 529. Instruction No. 6, given by the court, is not in our opinion in conflict with the law as announced by this court. It embraces all the essential elements of a charge on circumstantial evidence, although it may not be as full, or worded as is usually given. Ex parte Jefferies, 7 Okla. Cr. 544, 124 P. 924, 41 L.R.A., N.S., 749; Star v. State, 9 Okla. Cr. 210, 131 P. 542; Davis v. State, 18 Okla. Cr. 112, 193 P. 745; Penrod v. State, 38 Okla. Cr. 46, 258 P. 1052. See, also, State v. Heusack, 189 Mo. 295, 88 S.W. 21; State v. Sharpless, 212 Mo. 176, 111 S.W. 69; Brown v. State, 74 Tex. Cr. R. 356, 169 S.W. 437; Porch v. State, 50 Tex. Cr. R. 335, 99 S.W. 102.

The Legislature of this state passed an act approved April 13, 1937, being article 7, chapter 15, of the Session Laws of 1937, 21 Okla. St. Ann. §§ 1723, 1724, which was as follows:

“Section 1. Any person entering and stealing any money or other thing of value from any house, railroad car, tent, booth or temporary building shall be guilty of larceny from the house. Larceny from the house is declared to be a felony.
“Section 2. Any person convicted of larceny from the house shall be punished by imprisonment in the state penitentiary for a period of time not to exceed five (5) years.
“Section 3. All laws and parts of laws in conflict herewith are hereby repealed.”

It is the contention of defendant that the court erred in giving instruction No. 7, which defines burglary in the second degree, section 1931, Okla. Stats. 1931, Okla. St. Ann., tit. 21, § 1435, for the reason that the act of the Legislature above quoted repealed the above section, the same defining burglary in the second degree. No cases are cited by defendant to support this contention. He is content with stating the proposition. There is no direct repeal of any statute mentioned in the act. Repeals by implication are not looked upon with favor. We do not think it was the intention of the Legislature to repeal section 1931, Okla. Stats. 1931, Okla. St. Ann., tit. 21, sec. 1435, by the enactment of the above law. We rather think it was the intention, by the enactment thereof, to make it a felony for any person who committed larceny in any house, railroad car, tent, booth or other temporary building, regardless of the amount taken. This the same as the statute making it a felony to commit larceny from the person in the nighttime, regardless of the amount. Section 2260, Okla. Stats. 1931, Okla. St. Ann., tit. 21, § 1708. It being the intention of the Legislature to make the same a felony whether there was burglarious breaking or not. For this reason the contention of defendant cannot be sustained.

We are, therefore, of the opinion that the judgment of the district court of Grant county should be affirmed.

DAVENPORT, P. J., and DOYLE, J., concur.


author: DOYLE, J.

text:
    CHERRY B. JOHNSON v. STATE.
    No. A—9474.
    July 22, 1938.
    (81 P. 2d 872.)

      Davis & Patterson, of Wewoka, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Cherry B. Johnson, was convicted in the county court of Seminole county upon information charging a violation of section 10329, St. 1931 (47 Okla. St. Ann. § 104), providing in substance that whenever a motor vehicle strikes any person, or collides with any vehicle containing a person, the driver of such motor vehicle shall stop, and shall give to the person struck or to the occupants of the other vehicle, if requested, the number of the motor vehicle, the name of the owner and of the passengers, with the address of each.

Motion for new trial duly filed, was on November 23, 1937, overruled. Thereupon the court rendered judgment in pursuance of the verdict and sentenced the defendant to pay a fine of $100 and the costs.

The information jointly charged that Cherry B. Johnson and Herbert Dunlap did unlawfully drive one Ford truck upon and along Hitchiti street, in the city of Wewoka, and did strike one Frank Pittman, and after said accident did then and there fail and refuse to stop the said motor vehicle and furnish such information as is required by law.

Upon arraignment the state dismissed the case as to the defendant, Herbert Dunlap, and by leave of court endorsed his name on the information as a witness for the state.

The errors assigned and relied on for a reversal of the judgment question the sufficiency of the evidence to sustain the verdict.

The testimony on the part of the state was substantially as follows:

Frank Pittman testified that on the date alleged he parked his car on Park street and Hitchiti and attended services at the nearby Baptist Church; that when they started taking up the collection he left and went to his car, he told the woman with him to get in and unlock the other door; that he saw a truck coming and as it passed it knocked him against the fender and carried him to the end of his car where he fell; that he kept hallowing for them to stop, and the truck went dead and stopped about ten feet beyond his car, and he hallowed for them to come and help him, but they cranked it up and went on; that the truck had side boards and had the name “C. B. Johnson” on the side. That this happened about 9:30 p.m.

Elizabeth Sewell testified that she was with Frank Pittman at church on the night of the day alleged; that she witnessed the accident. She further testified:

“After church I came out and we went to get in the car and just as I got in the car Cherry Johnson’s truck was coming around the corner of Hitchiti; Mr. Pittman was coming around the car to get in and the truck knocked him down and I hallowed ‘stop’, I got out of the car, Frank Pittman was in the ditch; I saw Cherry Johnson and a woman on the truck; Johnson had a big white hat on.”

That the truck had no tail lights and the front lights were dim. That she is well acquainted with Cherry Johnson, and she is sure that he was driving this truck at the time Mr. Pittman was injured.

William Gibbs testified that he came out of church and saw a man falling and a woman was calling to come and help him up. He recognized the truck, a two ton Model Y Ford. The name “C. B. Johnson” was on the side of the truck, that he didn’t know who was driving the truck.

Frank I. Johnson testified that he was at the Baptist Church on Hitchiti and saw a truck passing as Frank Pittman was getting in his car and the truck struck him. It killed the motor, and the truck stopped. As quick as they could start the motor the truck went on; that he heard the woman with Frank Pittman call to them to stop and ask them to come back and help.

Herbert Dunlap testified that on the 23rd day of May he drove a truck for Cherry Johnson; that he finished driving for them about 8 o’clock; they had been on a fishing trip with a group of people in the truck, it was a V8; when he finished driving he got out at his home 108 South Hitchiti Street and Cherry Johnson and some Indian woman was in the truck; that Cherry drove the truck away; that they went south from his house to the corner, then turned and went north; that he lives south from the Baptist church about three blocks; that Cherry Johnson was wearing a khaki suit and a big white hat.

At the close of the testimony for the state, the defendant interposed a demurrer thereto and moved for a directed verdict of acquittal, on the ground that the evidence was insufficient to prove the offense charged, which was overruled.

The defendant testified as a witness in his own behalf and in the course of his testimony stated that he remembers the night that he is charged with running into somebody up at the church, on Park and Hitchiti streets; that he did not drive his truck there that night, and his truck did not strike any person that night; that he was in his car when Herbert Dunlap got out at his home that night; that Herbert Dunlap was driving the car until he got out; that when they left Herbert Dunlap’s house he was in the front seat with a woman called Georgia; that he proposed to Georgia to take a drive, and she said she didn’t care; that this was about 8:30 or 9 o’clock; that they drove out to a farm that he had rented, two or three miles from town; that when they went to the house the folks were not there, that they sat in the car, he don’t know how long, and finally Georgia said she was getting sleepy and asked to be taken back.

He further testified:

“I came back to the highway and came until I hit Seminole street east of the Armory building, turned and went north down on Cedar and let her out at Carter’s hotel, on Cedar street. I didn’t have any business one block north and I didn’t drive the truck up there for any purpose. I didn’t hit anybody, if I did I would stop and see about it.”

On cross examination he stated that his truck was a Y8 ’26 model that had his name, “C. B. Johnson”, on it.

At the close of all the testimony the defendant again moved for a directed verdict of acquittal, which was overruled.

It is urged that the court erred in refusing to advise the jury to return a verdict of acquittal because the evidence was not sufficient to warrant a conviction, in that the evidence was insufficient to show request made or refusal to furnish information as by law required.

We think the foregoing statement shows that the evidence sustains the verdict. It appears that there is evidence tending to sustain every essential allegation of the information.

It has been the uniform holding of this court that where there is competent evidence supporting the theory of the state, and there is other evidence conflicting therewith, the issues so raised are solely for the jury under proper instructions of the court, and the finding of the jury on such issues will not be disturbed by this court.

The case having been submitted to the jury upon correct instructions, it was the exclusive province of the jury to pass upon the credibility of the witnesses and the weight of the testimony.

Finding no error in the record, and it appearing that the defendant had a fair and impartial trial, the judgment appealed from is affirmed.

DAVENPORT, P. J., and BAREFOOT, J., concur.


text:
    HENRY GRANSBURY v. STATE.
    No. A—9372.
    Aug. 12, 1938.
    (82 P. 2d 240.)
    Finis 0. Stewart, of Cherokee, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and 0. Mark Ginder, Co. Atty., of Cherokee, for the State.
   BAREFOOT, J.

The defendant was convicted in the district court of Alfalfa county, where he was charged with the crime of unlawful possession of liquor, and as a second and subsequent violation, and given a sentence of 18 months in the penitentiary, and to pay a fine of $1,500 and has appealed.

Defendant in his petition in error alleges 18 different specifications of error. In his brief he relies upon four of the 18, for a reversal of the judgment. Three of the specifications refer to the motion of the defendant to quash the search warrant, and the fourth is that the court erred in overruling the demurrer to the evidence offered by the state. At the conclusion of the state’s testimony this would naturally follow, if any of the first three specifications of error were valid. They may all be considered together.

The defendant was charged in the information with having the unlawful possession on January 14, 1937, of 134 pints of whisky; 30 pints of gin; 20 pints of apricot liquor; and 69 pints of alcohol, with the intention of selling, bartering, giving away and otherwise furnishing said intoxicating liquor to others, in violation of the prohibitory liquor law of the state of Oklahoma, and with having been previously convicted in the county court of Alfalfa county on the 14th day of February, 1936, of the unlawful possession of intoxicating liquor, and to have been sentenced and served a term of 30 days in the county jail and paid a fine of $150.

The possession of the liquor as alleged in the information grew out of the execution of a search warrant based upon the affidavit of Ted Guffy, a deputy sheriff of Alfalfa county, and the issuance of the same by the county judge. The affidavit as a basis for the issuance of the search warrant was in part as follows:

“State of Oklahoma, County of Alfalfa, ss.:
“In the County Court in and for Said County and State.
“Complaint and Affidavit for Search Warrant.
“I, Ted Guffy, being first duly sworn depose and say, that in Alfalfa County, in the State of Oklahoma, on the 14th day of January, 1937, Henry Gransbury and John Doe, whose name is otherwise to your informant unknown, in certain buildings and premises described as follows, to wit: The west y%, of section 1, township 28, range 10, W.I.M., in said county and state, did then and there unlawfully and willfully have in their possession and under their control, and did then and there unlawfully keep and does now unlawfully have in their possession and under their control, and does keep intoxicating liquors, described as wine, whisky, beer and other spirituous, fermented and malt liquors, the exact quantity thereof, and a more particular description thereof this af-fiant cannot give, and certain personal property, fixtures and furniture, consisting of bars, glasses, jugs, bottles and other furniture, containers and fixtures, a more particular description of which this affiant cannot give, use for same.
“That the said persons are still willfully and unlawfully keeping the said property and intoxicating liquors above described for the purpose and with the intent to violate the laws of the state of Oklahoma, and that they are used in and about the business of keeping a place where intoxicating liquors are wilfully and unlawfully sold, and that all of the above said described devices, furniture, fixtures and appliances are being used by said persons in aid of said unlawful business.
“And the affiant further says that the above named persons, at the said place and in the said buildings, are now engaged in the business of keeping a place where intoxicating liquors are sold, given away and otherwise furnished to divers persons whose names are to this affiant unknown, in violation of the prohibitory laws of the state of Oklahoma, and is using all of the said above described property in connection with and in aid thereof.
“Affiant says that the above mentioned premises is in part a private residence, and that which is a private residence the same is a place of public resort. That divers persons, whose more full and correct names to the affiant are unknown, are permitted to congregate and do congregate on said premises for the purpose of purchasing and drinking intoxicating liquors.”

Upon the filing of the above affidavit a search warrant was issued by the county judge and was executed on the same day by searching the premises therein described on the land shown, and there was found on the premises 134 pints of whisky; 30 pints of gin; 20 pints of apricot liquor; and 69 pints of alcohol.

Upon the filing of the information against the defendant, a motion was made to suppress the evidence and a hearing was had thereon. Evidence was taken both by the defendant and the state. This evidence revealed that the defendant and one Nellie Minnick had been husband and wife and had obtained a divorce in June, 1936; that at that time they had a property settlement and the property described in the search warrant became the property of Nellie Min-nick, defendant’s wife, other real property a few miles distant had been taken as the property of the defendant, however the defendant had secured a lease from his former wife and occupied the house located upon the premises described in the search warrant, and used the pasture for grazing purposes. The house occupied by the defendant was where the liquor was found, and the defendant was present at the time of the search, and at that time he admitted to the deputy sheriff who made the search, and in the presence of others, that the liquor belonged to him; and that if he had been given a little time he would have disposed of the same as he intended to quit. He did not move from the premises until in February, 1937.

Without reviewing all the evidence in this opinion, it may be said that the contention of the defendant that Nellie Minnick, his former wife, was in possession of the premises, is not borne out by the evidence. It reveals that she had abandoned the premises and was staying at the home of her parents, several miles distance; that she had gone to the premises on the date of the search for a definite and specific purpose. There is nothing to show that she was in any way interested in the liquor found.

The contention that the brother of the defendant resided on the premises, and also Clara Hoefer, an incompetent ward of the defendant who acted as his housekeeper, is wholly without merit. The evidence revealed that the brother had moved away from the premises prior to the search, and Clara Hoefer was an incompetent ward of the defendant, who had no control or supervision over the premises where the liquor was found. Certainly the defendant should not be allowed to hide behind the skirt of this unfortunate and incompetent ward.

The contention of the defendant that Floyd and Mollie Gonzales, Mexican sheepherders, resided in a tent on the premises at the time the search was made, was wholly disproved by the witness Jim Mills, who testified that these parties moved away from the premises, going to New Mexico, just after July, 1936, and long prior to the time the search was conducted and the liquor found.

The contention of defendant: “That at the time of the issuance of said search warrant there were three separate and distinct sets of people living on said premises, maintaining separate and distinct quarters, and living as much apart as persons in a rooming house or hotel, all of which was well known to the complainant,” is not supported by the evidence in this case. The question having been decided by the trial court against the contention of the defendant, we do not find it erred. The evidence supports the finding.

The contention of the defendant that the description in the search warrant embraced too large body of land is untenable.

A careful examination of the cases cited by the defendant to support this proposition will show that the pivotal point in each case was not that the premises described in the search warrant embraced too large a body of land, but that the facts clearly show that the premises described in the search warrant were owned and occupied by several persons, so that it was in fact several places. Reutlinger v. State, 29 Okla. Cr. 290, 234 P. 224.

Defendant in his brief complains that the name of the person owning the place searched should have been stated in the affidavit and the search warrant.

The decisions of this court do not support this contention. In fact the cases hold that the name of the occupant does not have to be stated if the place is otherwise particularly described. Sherwood v. State, 48 Okla. Cr. 263, 290 P. 1112; State v. Skelton, 36 Okla. Cr. 377, 254 P. 754; Ross v. State, 38 Okla. Cr. 252, 260 P. 90.

The affidavit for the search warrant and the search warrant itself in the case at bar both contain the name of the defendant, and the evidence conclusively shows that he was in the possession and control of the premises where the liquor was found. Certainly he did not have to be the owner of the premises to be in possession of the liquor found thereon. The affidavit in this case is in positive language, and was unquestionably sufficient to give the court jurisdiction to issue the warrant.

If specific facts are known by the party making the affidavit, it is always best to state those facts in the affidavit.

The case of McHenry v. State, 61 Okla. Cr. 450, 69 P. 2d 90, is very similar to the case at bar, and fully supports the position here taken.

See, also, McCullough v. State, 39 Okla. Cr. 293, 264 P. 916; Dobbs v. State, 39 Okla. Cr. 376, 265 P. 658; State v. Skelton, 36 Okla. Cr. 377, 254 P. 754; Smith v. State, 30 Okla. Cr. 144, 235 P. 273.

The cases relied upon by the defendant to support this proposition are: Seick v. State, 57 Okla. Cr. 364, 48 P. 2d 355; Hall v. State, 34 Okla. Cr. 334, 246 P. 642; Brandt v. State, 34 Okla. Cr. 400, 246 P. 1106; Weise v. State, 32 Okla. Cr. 203, 240 P. 1075; Daniels v. State, 32 Okla. Cr. 426, 241 P. 836; Myer v. State, 34 Okla. Cr. 421, 246 P. 1105; Dobbins v. State, 40 Okla. Cr. 146, 267 P. 678; Lucas v. State, 56 Okla. Cr. 413, 41 P. 2d 131; Bryson v. State, 59 Okla. Cr. 130, 56 P. 2d 1198.

We have carefully examined the above cases, and they are based upon entirely different facts than are shown by the evidence in this case. In many of those cases no names are given as to the owner of the land, or as to the occupants thereof. Many of the affidavits are shown to have been on information and belief, and nowhere state that the premises are being used as a place of public resort. The lands are described as certain sections and the proof shows that many different persons not only owned, but occupied the premises, while in the case at bar the proof shows that the defendant was in the exclusive possession and control of the premises where the liquor was found, and admitted to the officer who made the search that the liquor belonged to him. The affidavit of the officer in the instant case is positive as to the allegations that the liquor was on the premises for the purpose of sale, and that the premises were being used as a place of public resort. The evidence taken as a whole does not show anyone in possession and control of the premises, except the defendant, and the affidavit was amply sufficient to justify the court in issuing the search warrant, and under the evidence the jury was justified in finding the defendant guilty as charged in the information.

The evidence at the trial of the case was practically the same as introduced on the motion to suppress the evidence. The defendant did not testify at the time of the trial, nor was any evidence offered in his behalf.

Finding no error in the record, we are of opinion that the judgment should be affirmed. It is so ordered.

DAVENPORT, P.J., and DOYLE, J., concur.