author: BAREFOOT, J. DAYENPORT, J.

text:
    GENE SWEET v. STATE.
    No. A-9529.
    Oct. 26, 1939.
    (95 P. 2d 242.)

      M. O. Counts and Robert J. Bell, both of McAlester, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Wallace Wilkinson, Sp. Co. Atty., of Mc-Alester, for the State.
   BAREFOOT, J.

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

The first contention of defendant is that the evidence is insufficient to sustain the verdict, and that the court erred in failing to instruct the jury to return a verdict of not guilty.

The record in this case contains 557 pages. We shall give only a brief statement of the main facts, which, to our mind, are convincing that the court did not err in refusing to sustain the motion for a directed verdict

The defendant, Gene Sweet, was engaged in the grocery business at Hartshorne, and deceased, Jim Davis, was engaged in the restaurant business at Haileyville, both in Pittsburg county, Haileyville being located between Hartshorne and McAlester. On March 9, 1937, both of the parties were witnesses in a case that was to be tried in McAlester on that date. The deceased phoned defendant and. asked Mm to come by and pick Mm up and take him to McAlester to court. Defendant did so, and bad with him his son, Marshall Sweet, and Joe Kinnikin, who were also witnesses in the case. After attending court in the morning defendant was asked by one of the lawyers to take some of the witnesses to dinner, including deceased. Just before lea,Ting the courthouse it was suggested by deceased that they get a drink. This was agreed to by all the parties, six in number, and they went in defendant’s car to “Peggy’s Place”, and defendant bought a pint of liquor. All of the parties drank. All testified that there was no difficulty of any kind and all were in a good humor. After eating dinner they returned to the courthouse. About the time court adjourned for the evening, the deceased, Jim Davis, met the son of defendant and asked him if he knew where defendant was, and upon being told that he did not, he said he believed they were back down at “Peggy’s Place”, and they went down there and found defendant and Joe Kinnikin, both drinking. They went in and all drank. The deceased had carried a; bottle of whis-ky away when they were first there, and he and Marshall Sweet had had several drinks. They stayed there for some time, and played the nickelodeon and some of them danced with a girl who worked there. When they left to go home all of them were under the influence of intoxicating liquor, and pretty drunk. There had been no difficulty or ill feeling of any kind among them. Some outside person had slapped defendant on the back and he resented it, and showed the gun he was wearing in his belt. He had what was known as a “courtesy card” from the sheriff by reason of the fact that someone had threatened to Mil him. He had also made'the statement that he could shoot a plug out of the nickelodeon that was hung, there. There were no ill feelings of any kind between defendant and deceased, and from appearances they were good friends. When they started home the son of defendant, Marshall Sweet, was driving and defendant was by his side. The deceased was in the back seat directly behind the defendant, and Joe Kinnikin was by his side. When they had gotten out from McAlester, and near Alderson, deceased said something about being a good shot and wanting to shoot at the fence posts. Defendant got his gun out, and said something about having a good boy, but “being a tough son-of-a-bitch himself”. Joe Kinnikin reached over and tried to get the gpn out of defendant’s hand, telling him someone would get killed. In the scuffle inside the car the gun was discharged through the floor of the automobile. All of the parties rolled out of the car, which had been stopped at the side of the. road when the first shot was fired. Up to this point there was hardly any conflict in the testimony.

The witness Joe Kinnikin testified as follows:

“A. I will say it this way, he reached over and got this gun and he says ‘Marshall is one of the finest boys in the Avorld, I would not want a better boy,’ but he said, ‘Myself, I am a tough son-of-a-bitch,’ and it excited me and I jumped up and over and grabbed the gun and I said, ‘Hell, Gene, don’t do that, somebody is liable to be hurt’, and the firing pin came down and it was an old model Colts gun, hit me on the finger and I jerked my hand back then and Marshall grabbed hold of him at that time and said: ‘Dad, don’t do that’, and I reached back and grabbed him again and the gun fired down to the floor and we kept trying to get the gun away from him and we all scuffled out of the car and Marshall pulled the car to the side of the highway and stopped and we all scuffled on out then onto the highway and the road is slanting there and we fell off this dump and about that time the gun fired again and Marshall said: ‘Look, Dad,, what you have done, you have killed Jim Davis’, and I broke and ran. Q. Any other shots fired? A. Yes, sir, I ran 20 or 30 feet, I would say and the gun fired again, another shot fired. Q. Then you say the second shot killed Jim Davis? A. Yes, sir. Q. Now, when, while — just before the first, — the second shot was fired there while you were on the ground, what did Gene Sweet say? A. Well, he says, ‘Let me up, if you don’t let me up I am going to shoot my way up’. Q. How long after that before this gun fired? A. Well, I could not say, it was right'immediately. We were not down there very long in the scuffle. Q. What position did Gene have the gun at that time? A. He had it in his hands like this, both hands. Q. Both hands like that? A. Yes, sir, and Marshall had hold of this hand and I had hold of this wrist. Q. You had hold of this hand? A. Yes, sir, the left hand and — (interrupted by counsel) Q. And Marshall the right hand? A. Yes, sir. Q. And Gene had the gun in both hands? A. Yes, sir. Q. Now, you know whether that gun will fire without the trigger being pulled or not? A. The gun will not fire unless the hammer comes back. Q. Well, when the hammer comes back, do you know whether or not it will fire then? A. The trigger would have be pulled. Q. The trigger would have to be pulled? A. Yes, sir.”.

The defendant and his son, Marshall Sweet, both testified as to the scuffling over the gun, and that the gun was discharged accidentally, and by reason of the action of the witness Joe Kinnikin, and not of defendant. That defendant and deceased were the best of friends. That they had traded and visited with each other and nothing had ever occurred to cause any enmity or bad feelings between them. They both testified that the second shot was fired into the air before the witness Joe Kinnikin left the scene of the difficulty, and also the third shot, which they claimed killed the deceased.

After the shooting defendant and his son tried to stop cars to get them to take deceased to' the hospital. The gun was thrown by Marshall Sweet about 34 feet fi> the side of the road, where it was afterwards found by the officers who were told by Marshall Sweet where it was. The defendant got in the car and drove east a couple of miles where he was overtaken by the officers. His son remained, with the body of deceased until the officers arrived.

From the above statement it will readily be seen that the court did not err in refusing to instruct the. jury to return a. verdict of not guilty. The deceased was killed in a drunken brawl. From the evidence defendant and deceased had been friends, and there is no evidence to show any ill feelings between them on the day of the killing, and up to the very time of the killing. The jury evidently took all of these facts into consideration, and found the defendant guilty of manslaughter in the second degree, and assessed his punishment at four years in the penitentiary. It cannot be said that this verdict was contrary to the evidence. As was said by this court in the case of Skeen v. State, 61 Okla. Cr. 188, 66 P. 2d 1106, 1111, in a case somewhat similar to the case at bar:

“Upon the question of intoxication as a defense, this court has in many opinions discussed this question giving the authorities, not only from the various states, but from the Supreme Court of the United States, and the leading text-writers. These cases distinguish between voluntary and involuntary intoxication and insanity caused by constant intoxication, and as the court expresses it: ‘Intoxication cannot operate as an entire exemption from criminal responsibility, and it is not conclusive against the existence of a criminal intent. At the utmost it only extenuates the crime from murder to manslaughter, and it does not do this as matter of law. Whether the accused was so intoxicated as to render him incapable of entertaining the specific intent necessary to constitute the crime is a question of fact for the jury.’ See Cheadle v. State, 11 Okla. Cr. 566, 149 P. 919, 922, L. R. A. 1915E, 1031; Collier v. State, 17 Okla. Cr. 139, 186 P. 963, 12 A. L. R. 839; Copperfield v. State, 37 Okla. Cr. 11, 255 P. 590; Huffman v. State, 24 Okla. Cr. 292, 217 P. 1070; Perryman v. State, 12, Okla. Cr. 500, 159 P. 937.
“The evidence in this case shows that the deceased came to his death by reason of a drunken brawl. The evidence clearly shows that the defendant and deceased were drunk at the time of the difficulty. The quarrel between them came up about nothing; there was no ill will nor malice on the part of either of them. The only eyewitness, Levi Peyton, did not see any instruments being used by the defendant in striking deceased. He used only his bare fists.” Miller v. State, 9 Okla. Cr. 55, 130 P. 813; Quinton v. State, 53 Okla. Cr. 194, 9 P. 2d 51; Larkin v. State, 55 Okla. Cr. 81, 24 P. 2d 357.

For a reversal of this case it is urged that the court erred in refusing to sustain the motion of defendant to quash the jury panel, and in refusing to grant a new trial by reason of one Leo M. Martin being permitted to serve as a juror. The facts with reference to the jury panel are, that a jury commission of Pittsburg county met on August 16,1937, and selected 200 names for jury service, and they were placed in the jury box. Upon investigation the court found that they had not been selected in the manner provided by law, and on September 24, 1937, ordered the commissioners to select 200 names. The commission, in compliance with this order, did, on the 28th day of September, 1937, select 200 names and placed them in the jury box. The record does not reveal whether any of the 200 names first selected were among- the second 200. We are of .the opinion that if the commissioners deemed proper, there was nothing wrong with their selecting, those whose names were among the first 200, if they were properly qualified for jury service under the law.

On September 28, 1937, the names of 60 persons were drawn by the clerk and sheriff in the manner provided by law, to report for jury service on October 11, 1937. The ease of defendant was set for trial October 18, 1937, and a case of State v. Steve Alexander was- set for trial on October 11, 1937. Steve Alexander was a nephew of defendant, and after a conference had by the court and the attorneys representing the state and the defendant, it was agreed that it would be in the interest of a fair trial for defendant that the same jurors should not try both cases. The court then ordered the 60 jurors that had been drawn for jury duty on October 11, 1937, to report October 18, 1937, and a new panel was used in the trial of the case of State v. Steve Alexander, supra. On account of trouble with the heating plant the court continued the case of defendant to October 26, 1937, and ordered the same jury panel to convene at that time. On that date defendant presented a motion for continuance on the ground that his wife was ill and was to be confined. The court overruled the motion for continuance, but continued and reset the case for December 6, 1937, and the same jury panel was ordered to report at that time. On November 22, 1937, a conference was had by the court and counsel for the state and defendant. At this conference counsel for defendant had not filed any motion of any kind, but on the 23d day of November, 1937, filed a motion to quash the panel. On the 26th day of November, 1937, the court issued an order for 25 additional jurors to- be drawn from the box, in the manner provided by law, and to report on December 6, 1937, when defendant’s case was called for trial. This was in addition to the panel of 60 that had already been ordered to report on December 6, 1937. Prom these 85 the jury to try the defendant was selected. In the motion to quash the panel, the facts as herein before recited were stated, and also alleged that by reason of the publicity given in the newspapers, and the jurors having knowledge that they had been selected for jury service, that the panel should be set aside, and further alleged that 18 persons named in the panel were residents of or near Hartshorne and Haileyville, where the defendant and deceased resided, and that certain members of the panel, whose names were unknown, had signed a petition asking the county attorney of Pittsburg county to disqualify in this case. No proof was offered to sustain these allegations at the time the motion was considered. An examination of the record reveals that no juror whose residence was either Hartshorne or Haileyville served as a member of the jury which tried defendant. Prom an examination of the record we fail to find that the court committed any error, or that defendant was deprived of any substantial right by the overruling of the motion to set aside the panel. Munn v. State, 5 Okla. Cr. 245, 114 P. 272; Maddox v. State, 12 Okla. Cr. 462, 158 P. 883; Oklahoma Statutes 1931, sec. 2981, 22 Okla. St. Ann. § 633.

With reference to the juror Martin, the record reveals that he had served on a jury, in October,-1935, wherein a brother of defendant, Cleve Sweet, had been tried for murder. The result of this case was a hung jury. This juror, while being questioned on his voir dire, was asked if he had ever served on a murder case before and he answered, “Yes”, and when asked what case, he replied, “the Cooper case”. He was not asked directly as to whether he had served on the Cleve Sweet case, or any other case. The same counsel that represented Cleve Sweet was counsel for defendant. We think the juror should have stated that he was a juror in the Cleve Sweet case, but on examination he stated that he did not know defendant; that he had no knowledge of the facts of this case, and there was no reason why he could not give defendant a fair and impartial trial. There was a hung jury in the Cleve Sweet case, and, of course, the record does not reveal whether this juror was for conviction or acquittal. An affidavit of the juror attached to the response to the motion for a new trial states that the juror did not state that he had been a juror in the Cleve Sweet case, because he was not asked that question, and that- be knew nothing of the facts in defendant’s case, only as he read the newspapers, and had no opinion as to the guilt or innocence of defendant. It may be stated that the killing of which defendant was charged occurred during the second trial of Cleve Sweet, but not during the time when the juror Martin was a juryman, but at a subsequent trial. When the killing occurred with which defendant was charged, the court declared a mistrial in the Cleve Sweet case, and the case had not been tried at the time of this trial.

It is urged that counsel for defendant, or the defendant himself, should have recognized the juror, and that not having asked him if he had served as a juror in the Cleve Sweet case, he waived any right he may have had. We can readily see how counsel, or the defendant, might not have recognized the juror.

Where, in a motion for a new trial, it is contended that a juror was prejudiced against a defendant, by reason of having served on a jury in a previous case where the brother of defendant was being tried, and the record reveals that that case did not arise, or grow out of the facts, and. was in no way connected with the facts in the case in which defendant was being tried, and the state contests the motion, and attaches to such reply the affidavit of the juror denying that he was prejudiced, and giving his reason for not stating that he was a member of the previous jury, this presents a question of fact to be determined by the trial court, and in the absence of a showing of abuse of discretion, the trial judge’s determination of this question of fact will not be disturbed by this court on appeal. Smith v. State, 5 Okla. Cr. 282, 114 P. 350; Spradlin v. State, 13 Okla. Cr. 376, 164 P. 990. Taking all the facts into consideration, we do not think the substantial rights of defendant were denied by the serving of the juror Martin upon the jury which tried defendant. The record does not show any way in which defendant was prejudiced thereby. Horton v. State, 10 Okla. Cr. 294, 136 P. 177; Johnson v. State, 1 Okla. Cr. 321, 97 P. 1059, 18 Ann. Cas. 300; Fisher v. State, 18 Okla. Cr. 540, 196 P. 724; Bills v. State, 48 Okla. Cr. 233, 290 P. 935; Klugas v. State, 53 Okla. Cr. 212, 9 P. 2d 962; Oklahoma Statutes 1931, section 2998, 22 Okla. St. Ann. § 660.

The next error urged is with reference to remarks of the special county attorney in his opening statement and closing argument. It Avould unduly lengthen this opinion to give these statements. They have been given careful consideration, together with the cases cited in the brief. We do not find that they are such statements that under the law as announced by this court would cause a reversal of this case. While county attorneys should, in their statements and final arguments, confine themselves to the facts, and the evidence introduced in the case, they have the right to draw their deductions, and unless the statements or arguments are such as to take from defendant his substantial rights, or are such that would arouse the passion or prejudice of the jury, to that extent that they would be swayed from giving a just verdict, the judgment and sentence will not be set aside on appeal. We find no error in the record which would warrant a reversal in this case. Rice v. State, 66 Okla. Cr. 434, 92 P. 2d 857; Williams v. State, 4 Okla. Cr. 523, 114 P. 1114; Morgan v. State, 9 Okla. Cr. 22, 130 P. 522.

It is next urged that the court erred in the admission of incompetent evidence. Many of these objections are to testimony that the court did not permit to go to the jury, but counsel insist that notwithstanding this, it was prejudicial. The fact that certain clothing worn by deceased was permitted to be introduced it is contended was prejudicial. It was shown that the bullet which killed deceased had passed through the clothing and the hat which was introduced in evidence. Under these circumstances we do not think it was error to permit the clothes to be intro-, duced in evidence. We do- not find any error by refusal of the court to permit the testimony with reference to the statement made by the witness Joe Kinnikin to the county attorney.

It is next urged that the court erred in certain instructions given. One of these exceptions was to the court submitting to the jury the issue of second degree manslaughter. We are of the opinion that the facts in this case fully justified the submission of this instruction. Cooper v. State, 61 Okla. Cr. 318, 67 P. 2d 981.

It is further objected to instruction No. 17, upon culpable negligence. This instruction was as follows:

“Culpable negligence is the want of that usual and ordinary care and caution in the performance of an act usually and ordinarily exercised by a person under similar circumstances and conditions, and you are instructed that a person handling a deadly weapon will be required under the law to use a higher degree of care and circumspection than in using an instrument ordinarily harmless.”

We have many times approved an instruction such as this and think it was proper. Cooper v. State, supra; Swan v. State, 13 Okla. Cr. 546, 165 P. 627; Kent v. State, 8 Okla. Cr. 188, 126 P. 1040; Nail v. State, 33 Okla. Cr. 100, 242 P. 270; Clark v. State, 27 Okla. Cr. 11, 224 P. 738.

The defendant did not offer any special written instructions. After the instructions had been read to the jury by the court, counsel for defendant made a statement to the court, with reference to the court charging the jury that, if the killing occurred by reason of the act of one or more parties and not defendant, defendant should be acquitted. No written instruction to this effect was offered by defendant.

The defense in this case was that of accidental homicide. The court fully presented this issue to the jury, and advised them that “if they entertained a reasonable doubt as to whether or not the killing of deceased was accidental or occasioned by misfortune in the doing of a lawful act by lawful means with usual and ordinary care and caution, and without any unlawful intent”, then it would be their duty to resolve said doubt in favor of defendant and return a verdict of not guilty. This instruction, together with the other instructions given, fully presented the issue of accidental killing.

We have carefully examined all of the instructions and find that they covered every phase of the law as applied to the facts in this case, and fully protected every right of the defendant.

Finding no error we are of the opinion that the judgment of the district court of Pittsburg county should be affirmed, and it is so ordered.

DOYLE, P. J., concurs. DAYENPORT, J., dissents.

DAYENPORT, J.

(dissenting). The evidence may be sufficient to' sustain the judgment if the defendant was accorded a. fair and impartial trial by the court and an unbiased jury. However, I cannot agree with the majority of the court that the juror Leo M. Martin was a competent juror under the facts as disclosed by the record.

In my opinion the defendant’s motion to quash the panel of jurors should have been sustained. It is shown by the record that prior to the witness Leo M. Martin being called as a juror in this case, he sat in the trial of a case of the brother of this defendant, and that the jury in the brother’s case failed to agree upon a verdict.

It is further shown by the record that at the time of this killing, Steve Alexander, a nephew of the defendant, was on trial for murder, and the presiding judge at the trial of Alexander ordered a mistrial because of the killing of Davis by the defendant in this case, while the Alexander case was being tried.

■ When the juror Leo M. Martin was examined on his voir dire, he was asked if he had ever sat in a trial of a murder case, and he answered, “Yes.” He was asked what case, and he said the Cooper case.

In response to the motion to quash the panel of jurors on the ground that Leo M. Martin was not a qualified juror by reason of the fact that he had been a juror in the trial of the defendant’s brother on a charge of murder, the juror gives as an excuse as to why he did not tell he had been on the Sweet jury, who' was the brother of this defendant, that they did not ask him.

In my opinion the question submitted to the juror Leo M. Martin as to whether or not he had ever sat in the trial of a murder case prior to the time he was called in this case was sufficiently plain that he should have answered that he had not only sat in the Cooper case, but in the case of Sweet where the jury failed to agree.

There is nothing in the record to show how the juror Martin voted in this first Sweet trial, nor does it disclose how he stood on the trial in this case.

It may be that the juror was not biased or prejudiced against this defendant, but in my opinion he should have told the court and lawyers when he was being interrogated on his voir dire that he had sat in the trial of the Sweet case, where no verdict was rendered.

If he had made this disclosure to the court and the attorneys in the case, I am sure that be would have been excused from the jury panel.

In my judgment, it is a human impossibility for a man to sit in the trial of a case, even though the jury did not agree, and afterwards called in another case to sit in a trial of a man of the same name as the first, that the juror would not remember that fact, and so state to the court and attorneys examining him when questioned specifically as to whether or not he had ever sat in the trial of a murder case.

It is unexplained by the juror as to why he could remember why he sat in the trial of the Cooper case and did not answer that he had sat in the .Sweet case. He attempts to say that he was not asked about the case. He was not asked about the Cooper case either, but in his answer on his voir dire he stated that he sat in the Cooper case.

The juror Martin may have gone into the jury box unbiased and unprejudiced against this defendant. No one can say when the testimony began to develop and disclose that this defendant had the same name of Sweet that the juror had sat in the trial at a time prior to the time called to sit on the jury in this case, what facts were recalled to the mind of the juror of the previous trial and what impression it made upon his mind, and whether or not it caused him to be biased or prejudiced against the defendant.

In my opinion, Leo M. Martin was not a competent juror to sit in this case, and that it would be a bad preee-dent to follow in the trial of criminal cases to let a juror sit in one case, and then when a relative or brother later is called for trial in another murder case, to fail to answer specifically as to the murder cases in which he has sat as a juror.


source: Caselaw Access Project

author: DAVENPORT, J.

license: Public Domain

text:
    Ex parte WALTER LEE MIDKIFF. Petition of ALICE DYER.
    No. A-9762.
    Oct. 30, 1939.
    (99 P. 2d 525.)
    Alice Dyer, in pro. per.
    Sid White, of Oklahoma City, for petitioner.
    Clay M. Roper, of Oklahoma City, for George Mitchell, a friend of petitioner.
    Sam H. Lattimore, Asst. Atty. Gen., for respondent
   DAVENPORT, J.

Now on this the 30th day of October, 1939, this matter comes on for hearing upon the verified petition of the petitioner, the rule to show cause hereby issued herein, and the response of Fred Hunt, warden of the State Reformatory at Granite, Okla.

The said rule to show cause in which response said warden claims as his only authority, the commitment referred to in the petition, the petitioner appeared in person and by her attorney, Sid White, the respondent appeared by Sam H. Lattimore, Assistant Attorney General, and also came Clay M. Roper, representing George Mitchell, a friend of the petitioner, and the court having heard the evidence, documentary and oral, and being well and fully advised in the premises, doth find:

That Walter Lee Midkiff, the infant son of the petitioner, is now confined in the State Reformatory, at Granite, Okla,, as alleged in the said petition, and as admitted in said writ, and that said confinement and his detention is unlawful.

The commitment claimed by the response of the warden as his authority for confining and detaining the said Walter Lee Midkiff is wholly void, of no effect, and affords no authority for such confinement and detention for that: The district court of Craig county, Oklahoma, from which said commitment issued was without jurisdiction to render any judgment against the said Walter Lee Mid-kiff to commit him to any institution or to exercise any authority over his person.

That it is right and proper in the premises to- direct the respondent warden to forthwith deliver custody of said Walter Lee Midkiff to- George Mitchell.

It is therefore by the court considered, ordered, and adjudged: That the writ of habeas corpus as prayed for issue, and that the Warden of the State Reformatory at Granite, Okla., Fred Hunt, be and hereby is commanded forthwith to deliver into the custody of Lee Barrett, Walter Lee Midkiff. The said Lee Barrett in turn to take the said Walter Lee Midkiff and surrender him into- the custody of said George Mitchell.

It is further directed that the said George Mitchell keep the said Walter Lee Midkiff for a period of ten days subject to the jurisdiction or order of the juvenile court, if any such assertion or authority be made by the said court within the said ten days.

Herein the said Fred Hunt, warden of the State Reformatory of Granite, will fail not, excepting this writ for his authority, to comply with the order of this court.

Let a copy hereof be by the clerk of this court forthwith transmitted to the clerk of the district court of Craig county, Oklahoma, and by him spread of record in case No. 2108, same being State of Oklahoma v. Walter Lee Midkiff et al.


author: DOYLE, P. J.

text:
    IRENE ROBBINS v. STATE.
    No. A-9620.
    Nov. 2, 1939.
    (95 P. 2d 653.)
    W. C. Henneberry, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for tbe State.
   DOYLE, P. J.

Appellant, Irene Robbins, was convicted and in accordance with tbe verdict of tbe jury was sentenced to confinement in the county jail for 30 days and to' pay a fine of $50 and the costs, on a charge that she did have in her possession certain intoxicating liquors.

Tbe information charged that in Tulsa county, on the 20th day of May, 1937, Irene Robbins did have in her possession 306 pints of whisky, 44 quarts of whisky and 44 pints of gin, with the unlawful intent to1 barter, sell and give away the same.

It appears from the record that defendant filed a motion to' suppress the evidence, for the reason that the affidavit for the search warrant was not made, and warrant issued and served according to law, which was overruled.

From the judgment rendered in accordance with the verdict, an appeal was taken by filing in this court on April 6, 1939, a petition in error with case-made.

Tbe errors assigned are that tbe verdict is contrary to law and not supported by sufficient evidence, and that tbe court erred in overruling defendant’s motion to suppress the evidence.

Tbe state relied for this conviction upon the testimony of two witnesses, E. H. King and Howard Gregory, deputy sheriffs. They each testified that in executing a search warrant they went to the residence of the defendant in the city of Tulsa, delivered her a copy of the warrant, made the search and found the liquors described in the information. They each testified they found said liquors in the garage of her home, and they asked her who the liquor belonged to and defendant said it belonged to her.

There was no testimony on the part of the defense.

Upon a careful examination of the complaint or affidavit for the search warrant, and the warrant issued thereon, we find that the contention made that the evidence was obtained in violation of defendant’s constitutional rights is without merit in any view of the case.

It follows from the foregoing that the appeal in this case is wholly destitute of merit.

The judgment of the court of common pleas of Tulsa county herein is therefore affirmed.

BAREFOOT and DAVENPORT, JJ., concur.


author: PER CURIAM.

text:
    IRENE ROBBINS v. STATE.
    No. A-9621.
    Nov. 2, 1939.
    (95 P. 2d 654.)

      W. C. Henneberry, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Dixie Gilmer, Go. Atty., of Tulsa, for the State.
   PER CURIAM.

In the information in this case Irene Robbins was charged with the unlawful possession of intoxicating liquors, in Tulsa county, on the 11th day of June, 1938, to wit: “116 pints of whisky; 11 quarts of whisky, 6 quarts of Port wine; 18 pints of gin and 6 quarts of gin.”

Upon her trial the jury returned a verdict finding her guilty as charged in the information and fixed her punishment at confinement in the county jail for 30 days and a fine of $75.

Prom the judgment rendered on the verdict an appeal was taken by filing in this court on April 6, 1939, petition in error with case-made.

No brief has been filed and no appearance made for oral argument. We have examined the record and find no material error. In our opinion the evidence sustains the verdict. The judgment of the lower court is therefore affirmed.


author: BAREFOOT, J.

text:
    WAID THOMAS v. STATE.
    No. A-9560.
    Nov. 2, 1939.
    (95 P. 2d 651.)

      W. C. Henneberry, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for tbe State.
   BAREFOOT, J.

An information was filed in Tulsa county, charging defendant with the crime of assault with a dangerous weapon upon Waite Sixkiller. He was tried, convicted, and sentenced to serve a term of one year in the penitentiary, and has appealed.

Defendant owned and operated a place of business where beer and other soft drinks were sold in the city of Tulsa. The prosecuting, witness, Waite Sixkiller, who was a Creek Indian, came to defendant’s place of business ' on the night of December 31,1937. He was under the influence of intoxicating liquor, and, as witnesses testified, was drunk and boisterous, and using profane language. The young lady who was serving customers testified that he was cursing and swearing, and when she asked him to desist and not bother the other customers he threatened to throw her out of the building. She reported his conduct to the defendant, and he went to where prosecuting witness was and requested that he be quiet and have a good time and put up the corn liquor which he had, and that the prosecuting witness said: “I don’t have to — that his name was Sixkiller and that he did whatever he pleased wherever he went.” Defendant went- back to the front and sat down, and the young lady came back and reported to him again of the conduct of the prosecuting witness. That he went back and led him ont of the front door and defendant testified as follows: “He said he was going to tear up the God-damned place”, and I said: “I will try and take care of that myself”. Just as he left him on the outside, he heard the window crash. A glass window that cost $40 to replace. He went outside with his pistol in his pocket and was told that the prosecuting witness was the party who had broken the window. He went across the street to arrest him and hold him until the officers arrived. He started back across the street with him and defendant testified as follows:

“A. I ran across the street and says, ‘Come on, Six-killer — I am going to turn you over to the police’. He says, ‘You are, like hell — I am going to break out every glass you got’. I got him by the arm and started back, and we got back pretty close to the middle of the street, while I was taking him back to the place and he started fighting me, and clinched me and run his hand in his pocket, and Avhen he did, I hit him with the pistol. Q. Where did you have the pistol? A. In my trousers with my vest over it. He clinched me and I pulled it out and pulled him over and slapped him this way (indicating). I did hit him with the pistol, but I hit him with a short blow, this way. Q. Did you stand up and fight all the time? A. For the time being, we did, and, in some way, as I remember it — it was kind of raining — and in some way, he tripped me, and we fell to the pavement, and just about the time we fell, I heard Felix say, ‘Waid, give me that pistol.’ Q. By ‘Felix’ you mean Altaffer? A. Yes, sir. I don’t believe he said, ‘Waid’. I recognized him and gave it to him. I says, ‘Take him to- jail’. He says, ‘Do you want to file charges’, and I says, ‘I certainly do-.’ Q. Did you? A. I did. I got in my car and followed him down there and filed charges. Q. The police, did not arrest you? A. No, sir. I showed up the next morning as complaining witness against Sixkiller. He didn’t, so they then issued a bench warrant for him. Mr. Simms: We object to all that. The record is the best evidence. The Court: Sustained. By Mr. Henneberry: Q. He was not there that morning? A. He was not. Q. You have never been notified again to be down there? A. No, sir. They said they wo-uld notify me.”

The prosecuting witness denied striking defendant or doing anything, but says that defendant struck him without cause. He further testified that he did not break out the window, and that he did not appear at the police station the next morning for the reason that he was in the hospital.

Several errors are assigned, but we deem it only necessary to consider but one. The defendant requested the court to instruct the jury as follows:

“The court instructs the jury that, if a person is-assaulted in such a manner as to produce in the mind of the person so assaulted a belief that he is in actual danger of losing his life or suffering great bodily harm, he will be justified in defending himself, though the danger be not real, but only apparent, and such person will not be held' responsible criminally if he acts in self defense from real and honest convictions as to the character of the danger, though he may be mistaken as to the actual extent of the danger.”

The court refused to give this instruction and defendant excepted. It is contended by defendant that the requested instruction presented to the jury his defense, and the only defense he had, that of self-defense.

We have carefully examined the instructions given by the court and find that they nowhere presented to the jury the theory of the defense. That is the issue of self-defense as testified to by him. This court has universally held that it was the duty of the court to present to the jury instructions in plain and concise language, giving hot only the contention of the state, but that of the defense, and it has always been held as reversible error for the court to fail to give an instruction covering defendant’s theory or defense where the issue is material. Here the court not only failed to give an instruction presenting the defense of defendant, but also refused to give the requested instruction covering this defense that was offered by him.

In the case of Daniel v. State, 67 Okla. Cr. 174, 93 P. 2d 47, recently decided by this court, the facts are almost identical to the facts in the instant case. The court there said:

“In prosecution for assault with a dangerous weapon, wherein evidence tending to show justification of self-defense, trial court had duty to1 submit instructions defining self-defense.”

In this case many cases are cited from this court upholding this principle. It is useless to cite them here. The testimony of the defendant, as above quoted, presents the question of self-defense. The instruction requested by defendant called it to the attention of the court, but it was refused. The instruction given by the court nowhere contained one that presented this issue.

Other assignments of error are presented, but it is unnecessary to pass upon them, and for the reason above stated, the judgment of the district court of Tulsa county is reversed.

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


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    STATE v. G. M. COBURN.
    No. A-9569.
    Nov. 2, 1939.
    (95 P. 2d 670.)

      Mac Q. Williamson, Atty. Gen., for the State.
    John W. Whipple, of Stillwater, for defendant in error.
   DAVENPORT, J.

This an appeal by the state of Oklahoma from a judgment of the district court of Payne county, Okla., sustaining a motion of the defendant to suppress the evidence of the state secured by a search of the defendant’s home.

The defendant in his motion alleges that the search and seizure of his home and premises was without authority of law and in violation of the law, and the search of his domicile, premises, and-messuage was in violation of the defendant’s legal and constitutional rights; that the officers arresting him first came upon his premises without a. search warrant of any nature, kind, or description, and without having been invited by the said defendant; that two of the said officers came into the house and home of the defendant, and one remained on the front porch; and that a search was started by the officers; and later they discovered that they had no search warrant; and one of the officers went back to the town, and the other two remained in and around the house until the one that went back to town got back with what he claimed to be a search warrant; that the defendant was not committing any offense in the presence of the arresting officers, and was not engaged in the commission of a felony or any other act in violation of the laws of the state of Oklahoma.

A hearing was had upon the motion to suppress; testimony was taken; and it is not disputed by the state’s officers that they went to the defendant’s home; that one of the officers went to the back door; one to the front door and went in and began to look and search around in the house; and finally one of the other officers came from the front door inside, and stated, “I haven’t got a search warrant,” or words to that effect; that two of the officers who were present and took part in the search and seizure after it had begun, one stayed on the front porch, and the other stayed in the house and remained there until the other officer went back to town and got a search warrant to come back to the defendant’s premises, where two of the deputies were present, one in the house and one on the porch, apparently guarding the house and premises and the defendant until they could go back and procure a search warrant before proceeding further with the search.

Upon a hearing had, the trial court sustained the motion of the defendant, G. M. Cobum, to suppress the testimony for the reasons herein stated, and held that the search was unlawful.

This court has repeatedly held that from the time an officer entered upon the premises of a party, the search began; and if the entry upon the premises was unlawful, the search and seizure would be without authority of law, and void.

The officers, when they entered upon the premises of the defendant and began the search, do not claim that the defendant gave them permission to search his house or any part of it.

The officers entered willfully and unlawfully upon the premises of the defendant, and began to search the hack part of the defendant’s house and on the inside of one of the rooms without any authority in the way of a search warrant or permission of the defendant to enter his home.

Ballentine’s. Law Dictionary, p. 117, defines a search as follows:

“A search implies a quest by an officer of the law. The quest of the officer acts upon the things themselves, it may be secret, intrusive or accomplished by force.”

2i Ruling Case Law, p. 717, defines an unlawful search in part as follows:

“An unlawful search is an examination or inspection without authority of law of one’s premises or person, with a view to the discovery of stolen, contraband or illicit-property, or for some evidence of guilt to be used in the prosecution of a criminal action.”

The right of an individual to be exempt from such searches is guaranteed by the Fourth Amendment to the Constitution of the United States, U. S. C. A., and the substance of the amendment is incorporated in the constitutions of the several states.

The record in this case clearly shows that the officers making the search entered upon the curtilage of the home of the defendant for the purpose of making a search for intoxicating liquor. They did not have a warrant for the defendant’s arrest or to search his house or premises. They were trespassers from the moment they left the street and entered upon the curtilage of the defendant’s home. They admit they had not seen the defendant commit any offense. The officers admit that they did not know that there was any intoxicating liquor upon the premises of the defendant or in his home. They admit that they entered upon the premises and began the search, and entered the defendant’s home without permission and without any search warrant. Bush v. State, 64 Okla. Cr. 161, 77 P. 2d 1184, and authorities therein cited.

The officers claim that later they stopped searching, and one of the officers went back to town and secured a search warrant.

Have we reached a point in law enforcement that a man cannot peaceably be in his home with his family without the officers of the law insulting and outraging him by driving upon his premises, surrounding his house, coming upon the porch, knocking on the door, and when the door is opened, coming into his house, with the search starting from the time they entered upon the defendant’s premises? We think not. The home of an individual is his castle; and any one, be he an officer or a private citizen, who enters or trespasses upon the same without lawful authority does so at his peril.

It is difficult to understand that men sworn to enforce the laws of our state will violate the law in an effort to secure evidence against an individual.

In this case the sheriff and two of his deputies willfully violated the law and trespassed on the rights of a citizen of this state, be he guilty or innocent of the crime charged.

This court has so- often passed on the question involved in this case that it seems a waste of time to cite authorities.

In Strong et al. v. State, 42 Okla. Cr. 114, 274 P. 890, this court in the first paragraph of the syllabus stated:

“The search of a car without warrant of arrest or search warrant or knowledge by the officer that it contained whisky held illegal, and evidence obtained should be excluded upon timely objection.”

Britton v. State, 34 Okla. Cr. 391, 246 P. 666. In Keith v. State, 30 Okla. Cr. 168, 235 P. 631, in the first paragraph of the syllabus this court said:

“Constitutional provisions against unreasonable searches and seizures, and against compelling one to be a witness against himself, secure the individual in his person, his home, and his property from invasion through unbridled and unrestrained executive or administrative will.”

In the fifth paragraph of Keith v. State, supra, the court said:

“Where the officer does not know of the act constituting the offense, it is not committed in his ‘presence.’ ”

The trial court did not err, in sustaining the motion to suppress the evidence of the state.

The judgment is affirmed.

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


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    JAMES FLYNN v. STATE.
    No. A-9608.
    Nov. 2, 1939.
    (96 P. 2d 96.)

      Mathers & Mathers, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Att-y. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The defendant, James Flynn, was by information charged in the district court of Oklahoma county, Okla., with the crime of forgery in the second degree; was tried, convicted, and sentenced to serve a term of five years in the penitentiary at McAlester, Okla. The defendant filed his motion for a new trial, which was considered and overruled by the court; and he appeals.

The testimony on behalf of the state in substance is as follows:

Fred E. Sanders, called as a witness for the state, stated:

“My name is Fred E. Sanders. I am employed by the Liberty National Bank of Oklahoma City, Oklahoma, as assistant cashier. I was with the bank and acting in the capacity of assistant cashier on July 20, 1938, and have been since that time. I am familiar with the records of that bank, and with many of the customers as well. The instrument which you have handed me, marked state’s exhibit 1, is a check which was presented to my bank for payment. The check was not paid for the reason that the bookkeeper turned the item down. By Mr. Mathers: We object to that as incompetent, irrelevant, and immaterial. By the Court-: .Sustained as to what the bookkeeper did. By the Witness: Well, the check was turned down because — . By Mr. Mathers: Wes object to that as incompetent, irrelevant, and immaterial, and a conclusion. By the Court: If he knows of his own knowledge, he may testify about it. By Mr. Marlin: Q. Do you know why payment was refused on that check? A. No account.”

The witness continued:

“We did not have a customer on July 20,1938, by the name of W. H. McWhorter or William H. McWhorter. I do not know a man by the name of W. H. McWhorter or William H. McWhorter.”

On cross-examination the witness stated:

“I do not know whether Mr. McWhorter signed the check or not. The reason the check was turned down was that the records did not show that William H. McWhorter' had an account at our bank. I do not know the man, W. H. or William McWhorter.”

Redirect examination:

“I have been with the Liberty National Bank about seven years, and have never known a man in Oklahoma City by the name of W. H. or William McWhorter.”

On re-cross-examination he stated:

“I do not mean to say as to whether or not W. H. McWhorter lives in Oklahoma City. I only stated that I did not know a man by that name.”

S. L. Wilson, called on behalf of the state, stated:

“My name is S. L. Wilson. I am a pharmacist at the Roach Drug Company, down in the First National Bank Building. I have been with this company for 18 years. I have seen the check marked state’s exhibit 1 before this time. The occasion for my seeing that check was that I O. K.’d it for the cashier to cash in our pharmacy. A lady, Mrs. Johnson’s daughter, presented the check to be cashed. I have known her for sometime. Her mother is in business in the same building with our pharmacy. Miss Johnson was in the store at the time she indorsed the check. I do not know the gentleman who had indorsed it. The lower indorsement on the check, Vinita Johnson, is her indorsement. She just asked me to> cash the check and knowing her, I O. K.’d the check. Afterwards the check came back; and Mr. Roach presented it to me. The drug store got the $11 back from this young lady’s mother. That is all I know about it.”

On cross-examination the witness, stated :

“This lady came in; and I cashed the check at her request. I do not know James Flynn; nor do I know Mr. McWhorter, the man that signed the check. I do know the young lady, Vinita Johnson.”

On redirect examination:

“I do not know whether the young man was there at the time the check was cashed or not. The $11 was paid upon the indorsement of Vinita Johnson.”

Mrs. Iva Johnson, testifying for the state, stated:

“My name is Mrs. Iva Johnson. My present address is 931 First National Bank Building. Vinita Johnson, of the same address, is my daughter. The check for $11, marked state’s exhibit 1, came back; and Mr. Roach came and told me.”

Upon objection being made as to the statement as to what Mr. Roach told the Avitness, the objection was sustained.

“By the Witness: Well, Mr. Roach called me — . By Mr. Mathers: We object to^ what somebody told this lady. By the Court: Sustained. By Mr. Marlin: She will tell it correctly if he Avill quit barking. By Mr. Marlin: Q. Don’t tell what somebody told you or what you heard; just what you know. Who presented the check to you? A. That is what I was trying to say. I don’t know whether Mr. Roach presented it to me or the girl in the office.”

The witness further stated:

“Some one of them presented it to me. I told them I would check on it, and see if it Avas one of our patrons.”

An objection was made to Avhat she told them.; and the court sustained the objection.

“I paid off the check. By Mr. Marlin: Q. That is all I want you to' say. A. Yes, I paid off the check. By the Court: The part about AAdiat she said to somebody else or somebody said to her will be stricken, and the jury instructed to disregard it. By Mr. Marlin: Q. But you did pay Mr. Roach, of the Roach Drug Company, $11 for that check. A. I paid it to Mr. Roach.”

The witness continued:

“That was the $11 check that my daughter indorsed. I was not present when the check was indorsed. I don’t know Mr. Flynn, the man who is on trial; nor do I know a Mr. McWhorter. I did not know Mr. Sanders at the bank. I know Mr. Wilson, who has just testified very well. He is in the same building with me.”

George Catron was called as a Avitness on behalf of the state, and stated:

“My name is George Catron. I know the defendant James Flynn. I came to know James Flynn on September 25th. The occasion for meeting him was that he was picked np at Shawnee. By Mr. Mathers: We object to that as incompetent, irrelevant, and immaterial, and prejudicial. By the Court: Overruled. By Mr. Mathers: Exception.”

The Avitness continued:

“He was picked up by the police department of Shawnee on a larceny charge. By Mr. Mathers: We object to that as prejudicial and hearsay. By Mr. Marlin: Q. Did you have a Avarrant for the man’s arrest? A. T did, yes, sir. Q. What was the warrant for? A. Larceny of an automobile by fraud. By Mr. Mathers: We object to that as incompetent, irrelevant, and immaterial; and move that the answer be stricken as prejudicial. By the Court: Overruled. By Mr. Mathers: Exception. By Mr. Marlin : Q. Then you took him into custody and brought him back to Oklahoma City and put him in jail? A. Yes, sir.”

The witness continued:

“I never did know him as Ed Flynn. He gave me the name Jimmie Flynn. The police department there knew him and picked him up. I never knew him a's James Flynn, or J. W. Flynn, or as James W. Flynn.”

Cross-examination:

“All I know him by is Jimmie, Jimmie or James. Jimmie is all I kneAV him by. That is the boy right here.”

Redirect examination by Mr. Marlin:

“Q. If he had any of those other names at any other place, you didn’t know about it? A. No.”

Yinita Johnson, testifying, stated:

“My name is Vinita Johnson. Mrs. Iva Johnson is my mother. I know the defendant. I saw him on July 20, 1938, at the Roach Drug Store. He had in his possession at the time that he saw me the check that has been marked state’s exhibit 1. I recognize it; and I indorsed it for him. I saw the defendant write James Flynn on the cheek just above my name there in the drug store. I had known him before the day I indorsed the check for him. He and I went in the drug store together that day I indorsed the check. He asked me to* identify him; and I did. I took the check to Mr. Wilson; he knew me at the time Mr. Wilson O. K.’d it. The money was obtained on my indorsement. The check came back unpaid. My mother paid the money that had been paid out on the check. When the defendant was introduced to me his name was given as James Flynn. I never knew him as Jimmie Flynn or as Ed Flynn; nor have I ever known him as James William Flynn, or as James W. Flynn. I didn’t know his middle initials. I have known him about a year now, since sometime this spring. I always called him Jimmie. I think every one called him Jimmie. That is his name, true and correct. Something was said about buying a Coca Cola or. a, soda pop. He said he had a check that he wanted cashed, and went to the cashier to get it cashed, and wanted me to identify him; and I went and identified him, because I knew it was his name, and that it was made out to1 him. The check Mr. Marlin has is the check I indorsed. He signed his name on the check in my presence. So far as I know, he signed his right name. I signed my name, Yinita Johnson. Mr. Wilson O. K.’d the check. The check was returned, because they said that Mr. McWhorter did not have any account in the Liberty National Bank; and my mother paid the $11. The defendant paid $4 of the $11 to us. When I advised Mr. Flynn that the check had been returned, he said he would try to find Mr. McWhorter.. I had called him quite awhile before he paid the $4 on the bad check. He did not pay the $4 the first time I called him. It was after I had asked him for quite awhile. I asked him quite a few times for the money for my mother, because she had been so nice to pay it; and he said he would pay $5; and one day he paid $4. He said he would get the rest of it in a few days, but left before I could get any more. He claimed to' have tried to' locate Mr. Mc-Whorter. I don’t know Mr. McWhorter.”

Redirect examination:

“If the defendant knew Mr. McWhorter, or there was such a man, he could never find him. I never was in Tulsa where he might have been called Jimmie Flynn. I never knew him in Granite; nor did I ever know him at Drum-right as J. W. Flynn. I never knew him in Tulsa as James W. Flynn.”

Re-cross-examination hy Mr. Mathers:

“I know nothing about anything that he did. wrong in violation of the law. I know nothing about it except about this time. I don’t know he ever worked. By Mr. Marlin: Q. Now, since he asked you that, I will ask you if you didn’t know he had. been to Granite for forgery? By Mr. Mathers: We object to that as incompetent, irrelevant, and immaterial. By Mr. Marlin: You went into this man’s character, and I have the right to cross-examine her, and go into it, too. By the Court: Overruled and exception. By Mr. Marlin: Q. You didn’t know him at Granite in 1929, when he did six months for a bogus check? A. No, sir. By Mr. Mathers: We object to that as incompetent, irrelevant, and immaterial, and prejudicial. By the Court: Overruled. By Mr. Math-ers: Exception. By Mr. Marlin: Q. How about 1930, two counts for forgery, when he went to Granite for a year? A. No, sir. By the Court: It is evident she don’t know anything, about that. By Mr. Mathers: We object to' it as incompetent, irrelevant, and immaterial, and prejudicial. By Mr. Marlin: The only reason I am asking that — and I am not arguing it — is that he wanted to leave the impression with these twelve men that he was an upright man. By the Court: Well, I think you have gone far enough along that line with this witness. By Mr. Marlin: That is all. By Mr. Mathers: I move the court to strike and instruct the jury to disregard the statements and questions and answers propounded to the witness in the last three or four questions. By the Court: Overruled and exception.”

The check was introduced in evidence.

At the close of the state’s testimony in chief, the defendant demurs to the evidence introduced by the state for the reason the same is insufficient to constitute a cause of action as charged in the information, or to show any other violation of the laws of the state of Oklahoma.

“By the Court: Overruled and exception.”

The defendant, testifying in his own behalf, stated:

“My name is James William Flynn. I live at Shawnee, Oklahoma. I go by the name of James Flynn; also, by the name of Jimmie Flynn. James W. Flynn is my correct name. The instrument marked state’s exhibit 1 is a check I received from Mr. McWhorter. He gave me the check at that Manhattan Park or the one next to it. I don’t' remember which one now. He gave it to me the date written on the check. He wrote the check out and gave it to me. Miss Yinita Johnson O. K.’d the check and had it cashed. I learned that the check was returned when Mrs. Johnson called me over the phone. Mrs. Johnson is Vinita’s mother.' I did not go down and talk to her the day she called me. I have seen Mr. McWhorter once since he gave me the check, and told him about it. I made a $4 payment on the check to Miss Yinita Johnson. It was three or four days after she called me the first time that I made the $4 payment. It was the 24th of September that I was arrested. I have been in jail since that time. I have not had an opportunity to see Mr. McWhorter or hear from Mm since I have been in jail.”

Cross-examination by Mr. Marlin:

“Q. You have been in jail since that time? A. Yes, sir. Q. Not just on this forgery check charge? You have been in jail on larceny of an automobile, have you not? By Mr. Mathers: We object to that as incompetent, irrelevant, and immaterial. By Mr. Marlin: I have a right to show why he was in jail. By the Court: Overruled and exception. By Mr. Marlin: Q. You also have a charge of larceny of an automobile against yon? A. Yes. Q. Yon were in jail on that at the same time, too, were yon not? Q. Are you the same James Flynn that went to Granite in 1929 for forgery? By Mr. Mathers: We object to that as incompetent, irrelevant, and immaterial, and prejudicial. By the Court: Overruled and. exception. By Mr. Marlin: Q. Is that right? A. Yes, for writing checks on my father. Q. Well, you went to the penitentiary for it, didn’t you? A. Yes, sir. Q. Now, in 1931, did you plead guilty to, or were you convicted of forgery on two counts, and sent to the penitentiary for a year each? A. Writing more checks on my father. Q. Well, he let you go to the penitentiary, didn’t he? A. Yes. Q. Well, then, James William Flynn, in 1934, what is this A and B investigation, fined $40 in the police department? By Mr. Mathers: We object to that as incompetent, irrelevant, and immaterial, and prejudicial. By the Court: Overruled and exception. By Mr. Marlin: Q. You are the same James William Flynn there? A. Fined $40 in the police department? Q. Yes, in 1934. By the Court: Oklahoma City police department? By Mr. Marlin: Oklahoma City police department. Q. They tagged you as No. '5046? By the Court: Do you remember that? A. I don’t remember of ever being fined $40. By the Court: If you don’t remember, just say so. By Mr. Marlin : Q. How about James William Flynn in the police court, fined $40? By Mr. Mathers: We object to that as incompetent, irrelevant, and immaterial, and prejudicial.' By the Court: Overruled and exception. By the Court: Q. Do you remember that? A. I don’t remember that. By Mr. Marlin: Q. How old are you? A. Thirty years.”

The witness continued:

“I have spent part of my life as a pugilist; and I am now an ex-pugilist. The state’s exhibit 1 here, I indorsed that, and got the little lady to cash that over at the drug store.”

•Redirect examination by Mr. Mathers:

“Q. Sit down to the table and write the name ‘ J ames Flynn’. Q. Now, will you write the name William H. McWhorter’? By the Court: This is written with pen and ink. By Mr. Mathers: May I have a pen and ink? By the Court: Surely. Take another piece of paper and start over again. By the Witness: How is that name again? By the Court: William H. McWhorter, M-cW-h-o-r-t-e-r. By the Witness: I didn’t get how you spelled the last name. By’ the Court: Just write it out like you think it ought to be. I guess that Avill be all right. By the Witness: M-te-Q.-u'-a-r-^-e-sr? By the Court: McWhorter, yes. By Mr. Mathers: We will ask that this be marked Defendant’s Exhibit 1. Do you have any objection? By Mr. Marlin: We object to it as incompetent, irrelevant, and immaterial, the writing having been made subsequent to the time of the forgery, and furthermore, he is not charged with writing the name, McWhorter’. He is charged with passing a forged check. We do not say that he wrote the name, ‘McWhorter’, on it. By Mr. Mathers: We offer that as Defendant’s Exhibit i, and this other one as Defendant’s Exhibit 2. By the Court: Let them be admitted over the objection of the state.” -

Be-cross-examination by Mr. Marlin:

“Q. Since 1929, from time to time, you have been charged with bogus checks and forged writings, have you not? A. No, sir. Q. James Flynn, you went to Granite in 1929 for a year for forgery, did you not? By Mr. Mathers: We object to that as incompetent, irrelevant, and immaterial, and repetition. By the Court: That is repetition. By Mr. Marlin: All right. That is all.”

The foregoing is all the material testimony offered by the state and the defendant.

The defendant, in his assignment of errors, alleges:

(1) The trial court erred in overruling the motion of the defendant below for a new trial, duly excepted to at the time.

(2) The court erred in permitting the county attorney to introduce certain evidence, over the defendant’s below objection, duly excepted to at the time.

(3) Because of errors of law occurring during the course of the trial, duly excepted to at the time.

(4) Because the court erred in overruling the defendant’s below demurrer to the state’s evidence, at the close of the state’s case, duly excepted to at the time.

(5) Because the verdict of the jury is contrary to the law.

(6) Because the verdict of the jury is contrary to the evidence.

(7) Because there was no legal or competent evidence to support the verdict of the jury.

The assignment of errors will be considered together, as they raise the questions of whether or not the defendant was accorded a fair trial, and did the court permit the introduction of testimony prejudicial to the rights of the defendant, and by so doing, deprive defendant of a fair and impartial trial?

The defendant was tried upon an information charging that he did willfully, unlawfully, and feloniously commit the crime of forgery in the second degree, in a manner and form as follows to wit: that is to say, the defendant in the county and state aforesaid, and on the day and year aforesaid, did then and there willfully, unlawfully, felon-iously, and with intent to cheat and defraud, sell, utter, exchange and deliver to Yinita Johnson for a valuable consideration, a false and counterfeit check; and that in presenting this check to Miss Johnson, it is contended that the defendant did so with the felonious intent to' defraud the same; uttered it, and passed it as true and genuine; and that the said defendant knew that the said check was forged and counterfeit; the name of William H. McWhorter signed to said check, being in truth and fact, a forgery, and not the true signature of said William H. McWhorter, and not done with his knowledge and consent.

The testimony in this case is sufficient to sustain the conviction of the defendant, if the defendant was accorded a fair and impartial trial, according to the law and legitimate evidence presented to the court and jury.

The defendant argues at great length that the court committed error in permitting a deputy sheriff, by the name of George Catron, to testify over his objections that the defendant James Flynn was picked up by the police at Shawnee on a larceny charge; that the court erred in permitting this testimony to be introduced for the reason that it is based upon hearsay; and was incompetent and immaterial, and should not have been permitted to have gone tO' the jury, as the witness was not present when the defendant was arrested.

It is urged by the defendant that the court committed further error in permitting the Deputy Catron to testify over his objections that he arrested James Flynn for larceny by fraud of an automobile.

In the trial of all criminal cases, whether guilty or innocent, the defendant is entitled to a fair and impartial trial, and entitled to have only competent evidence introduced to the court and jury against him.

The testimony of Deputy Catron stated that the defendant was picked up at Shawnee by the police department over there; and his testimony as to the arrest on a charge of larceny of an automobile was not admissible in evidence in the case in which the defendant in this case was charged.

This court in many cases has held that it was inadmissible to introduce evidence before the jury against a defendant of other crimes or offenses unless they related to and show a system and scheme carried out by the defendant, leading up to and having some connection with the offense with which the defendant was charged.

In Jones v. State, 20 Okla. Cr. 154, 172, 201 P. 664, 670, this court in the body of the opinion stated:

“It is not admissible to show the bad character of the defendant until after the defendant himself puts his good character in issue, and then only by showing his general reputation, and not by particular acts. Evidence of other criminal acts not in issue in the case should be excluded; such testimony has a tendency to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the charge at issue, or to take proof of it as justifying the defendant’s condemnation, irrespective of his guilt of the crime for which he is being tried. Moreover the use of alleged particular- acts, ranging over the entire period of the defendant’s life, makes it impossible for him to prepare to refute the charges, any or all of which may be mere fabrications. The rule as above stated has received the judicial sanction of the courts of this country for more than a century. Underhill on Evidence, § 82; 1 Wigmore on Evidence, 233; 10 R. C. L. 953; Porter v. State, 8 Okla. Cr. 64, 126 P. 699; Corliss v. State, 12 Okla. Cr. 526, 159 P. 1015.”

In Porter v. State, 8 Okla. Cr. 64, 126 P. 699, this court said in the first syllabus:

“Where the character or reputation of the accused is not an element of the crime charged, the prosecution cannot put it in issue by offering evidence of his bad character, unless the defendant first offers evidence of his good character. The prosecution may then rebut it by evidence of bad character.”

In the third syllabus of Porter v. State, supra, this court said:

“It is improper to ask a witness if he has ever been indicted, arrested, or imprisoned, before conviction, for any offense whatever. Where such question is asked, it should be promptly excluded, with a rebuke to the lawyer asking the same; and if the question is repeated it should be treated as a contempt of court and punished as such.”

The record in this case shows that the state called George Catron as a witness to testify on behalf of the state; and before any testimony had been given or offered by the defendant, the court permitted the witness Catron to state that the defendant was picked up by the police department of .Shawnee on a larceny charge, which was objected to by the defendant for the reason that it was hearsay evidence and incompetent, which objection was overruled; and the defendant was required to answer. The witness was also asked if he had a warrant for the defendant; and over the objections of the defendant, was required .to answer, ‘Yes, for the larceny of an automobile by fraud.” The witness Catron was further permitted to testify that he took the defendant into custody, brought him back to Oklahoma City, and put him in jail.

We are of the opinion that this testimony was inadmissible because, if true, it would refer to a separate and distinct crime; and its admission cannot be otherwise than prejudicial to the defendant.

Evidence of an offense other than the one charged is admissible only when it tends to prove the offense charged. To be competent and admissible, it must have some logical connection with the offense charged.

The hearsay testimony that the defendant was picked up in Shawnee, and the statement of the officer that he had a warrant for the arrest of the defendant has no bearing whatever upon the charge for which the defendant was being tried, and was not only prejudicial to the rights of the defendant, but was in violation of what the courts of this state have many times held.

Testimony of the character which the court permitted to go to the jury, as stated by the witness Catron, was inadmissible for the reason that it is in the nature of hearsay and related to' a fact that the state had no right to introduce in evidence. The fact that a warrant might be out for a man charged with a crime other than the one for which he is being tried is not admissible as direct evidence in the case he is on trial for; and if permitted to he introduced, it is against the principles of the law in securing to the defendant a fair and impartial trial by legal and competent testimony.

The minds of this court are not clear as to why the state, when the defendant was being prosecuted on a charge of passing a bogus check or having one in his possession, offered the testimony of the witness Catron, it being incompetent, irrelevant, and immaterial, and prejudicial to the rights of the defendant.

The question as to where the defendant was picked up (using the language of the witness) is immaterial to the charge upon which the defendant was on trial, as there is no testimony showing that the defendant was a fugitive from justice; and the defendant states his home was in Shawnee.

In this case the defendant was charged with a specific crime; and the fact that the witness may have had a warrant for the defendant’s arrest on a different charge from the one he was on trial fori did not make such testimony admissible; and the court erred in admitting the same over the defendant’s objections.

The defendant stated that he had tried to locate McWhorter, the man whom he claims signed the check that he had, and that he had been unable to do so. He was asked by his attorney these questions:

“Q. When were yon arrested? A. It was on the 24th of September, 1938. Q. Have yon been in jail since that time? A. Yes, sir. ' Q. Have yon had an opportunity to find Mr. McWhorter, or see him, or hear from him since you have been in jail? A. No, sir.”

In Miss Yinita Johnson’s testimony on cross-examination, the defendant’s counsel asked her the following question:

“Q. You did not know anything he had done wrong,. in violation of the law, anything he ever did that was improper? A. I know nothing about him except about that time. I don’t know as he ever worked.”

The testimony of Miss Yinita Johnson was conclusive that she only knew the defendant here in Oklahoma City, and that she did not know whether he worked or not. The witness’ statement clearly shows that she made no effort to put the character of the defendant in issue; nor can this court interpret the questions propounded to the witness as being questions that put the defendant’s character in issue. However, Mr. Marlin on redirect examination asked Miss Johnson the following question:

“Q. Now since he asked you that, I will ask you if you didn’t know he had' been at Granite for forgery?”

And over the objections of the defendant, the court required the witness to answer ; and the witness said, “No, sir.”

He also asked her if she did not know the defendant at Granite in 1929, when he had six months for a bogus check; also about 1930 on two counts for forgery, when he went to Granite for a year; and she answered, “No, sir.”

All of these questions and answers were admitted over the objections of the defendant. The state contends that the statements of the defendant that he had been in jail since Ms arrest and of the witness Miss Johnson that she knew nothing about the defendant, except this check for which he was being tried, put the character of the defendant in issue.

With this contention this court cannot agree, as the witness Vinita Johnson positively stated that she knew nothing about the defendant, excepting the incident of the check here in Oklahoma City; and the statement of the defendant that he had been in jail since his arrest in no way whatever tends to put in issue the good character of the defendant; and the questions and answers propounded to the witness Yinita Johnson were incompetent, irrelevant, and immaterial, and prejudicial to the rights of the defendant on trial for a specific charge, as the questions asked by the state in no way whatever tended to establish the charge against the defendant in this case, and only tended to bias and prejudice the minds of the jurors against the defendant.

In Kirk et al. v. State, 11 Okla. Cr. 203, 145 P. 307, in the first paragraph of the syllabus, the court stated:

“The state cannot attack the character of a defendant unless he first puts that in issue' by introducing evidence of his good character.”

In Smith v. State, 14 Okla. Cr. 348, 171 P. 341, in the third paragraph of the syllabus, this court said:

“Evidence of an offense other than the one charged is admissible only when it tends to prove the offense charged. To be competent and admissible, it must have some logical connection with the offense charged.”

In the fifth paragraph of the syllabus of Smith v. State, supra, the court stated:

“Section 5046, Rev. Laws [1910], 12 Okla. St. Ann. § 381, permits the proof of a prior conviction of a defendant in a criminal case for the purpose of affecting his credibility. This proof may be made either by the record or by the cross-examination of the defendant, and cross-examination as to other separate and distinct transactions and offenses is not permissible, unless such testimony tends to prove the commission of the offense charged, and should in general be limited to matters pertinent to the issue, or such as may be proved by other witnesses.”

In Cline et al. v. State, 57 Okla. Cr. 206, 47 P. 2d 191, in the first paragraph of the syllabus, this court stated:

. “Conduct of prosecuting attorney in persistency cross-examining the accused by assumptions and insinuations as to previous unlawful acts and transactions, in spite of rulings against him, held improper and prejudicial.”

In the third paragraph of the syllabus of Cline et al. v. State, supra, the court stated:

“It is the trial court’s duty to uphold the guaranty of a fair and impartial trial to all persons whether innocent or guilty.”

In the body of the opinion in Cline et al. v. State, supra, the court said:

“It is a fundamental principle of criminal law that the character of the defendant cannot be impeached or attacked by the state, unless he puts his character in issue by introducing evidence of good character. Kirk v. State, 11 Okla. Cr. 203, 145 P. 307.”

The court further stated:

“We have repeatedly condemned this practice.”

The defendant in this case may be guilty of the charge for which he was tried and convicted; but in the trial of the case, he was entitled to have only competent evidence introduced against him, and the jury advised as to the law applicable to the facts in the case.

The defendant did not deny that he had presented this check, and got Miss Johnson to indorse the same, and cash it; but his defense is that a man by the name of W. H. McWhorter had signed the check, and given it to him. Whether this be true or not, this court is in doubt.

Defendant’s attorney asked him if he had been in jail since his arrest, September 24, 1938; and he answered, “Yes, sir.”

On cross-examination of the witness, Mr. Marlin, assistant county attorney, asked the defendant if he had been in jail since his arrest. The witness answered, “Yes, sir.”

“Q. Not on this forged check charge? You have been in jail on larceny of an automobile, have, you not?”

The defendant objected to the question and answer, as the defendant had only testified that he had been in jail since his arrest.

Mr. Marlin stated: “I have a right to show why he is in jail.”

The defendant’s objection was overruled, and exception saved.

Mr. Marlin proceeded then to ask the defendant if he did not have a charge of larceny of an automobile against him; and he answered, “Yes.”

All of these questions and answers asked by Mr. Marlin were objected to by the defendant; and he was asked about having been in the reformatory at Granite, Oklahoma, and also in the penitentiary for check forgery, and showed specifically the character of each offense that he claimed the defendant had been in the reformatory or penitentiary for. The defendant was, also, asked about a $40 fine in police court; and he did not remember anything about that.

The court said to the defendant: “If you don’t remember, just say so.”

Mr. Marlin then set out about James W. Flynn in the police court, fined $40. This was objected to, overruled, and exception saved.

“By the Court: Q. Do you remember that? A. I don’t remember that.”

Mr. Marlin then asked the defendant:

“Q. Since 1929 from time to time you have been charged with bogus checks' a,nd forged writings, have you not? A. No, sir.”

The assistant county attorney, Mr. Marlin, commenced asking him how about his being incarcerated in Granite; but the court said: “That is repetition;” and the examination closed.

No evidence was offered on behalf of the state to prove the defendant had been fined $40 in the police court, and to these questions about which the state inquired.

All of the facts brought out by the state with reference to former convictions, over the objections of the defendant, were attacking the character of the defendant, and also putting his character in issue before the defendant had put his character in issue by introducing, evidence of good character.

In Smith v. State, supra, in the fourth paragraph of the syllabus, the court stated:

“A defendant, by availing himself of the privilege of testifying in his own behalf, thus waives his constitutional privilege and has all the rights and is subject to the same rules of cross-examination and impeachment as other witnesses.”

This court has repeatedly adhered to the rulings by stating that when the state attempts to introduce testimony of prior convictions of a defendant, it may introduce prior convictions in criminal cases for the purpose of affecting his credibility, which proof by the state may be made either by the record or cross-examination of the defendant. Cross-examination as to other separate and distinct transactions and offenses is not permissible, unless such testimony tends to prove the commission of the offense charged, and should in general be limited to matters pertinent to the issue, or such as may be proved by other witnesses.

In this case there was no denial by the defendant that he did have the check for $11; that he got Miss Johnson to indorse it for him. The defendant admitted that Miss Johnson indorsed the check and had it cashed for him; and, therefore, there was no necessity for introducing testimony to impeach the defendant on that point, or to prove that the check was bogus. The fact that the check was returned unpaid from the bank shows conclusively that McWhorter had no funds in the Liberty National Bank from which the check might be paid.

The questions propounded to Miss Johnson by the state and to the defendant with reference to the commission of other crimes were not permissible for the reason that the offenses inquired about did not tend to prove the commission of the offense charged, and for which the defendant was on trial; and the court should have sustained the objections to the introduction of such testimony for two reasons:

(1) That it did not tend to establish or prove the commission of the offense for which the defendant was on trial.

(2) That it put the character of the defendant in issue before the defendant had placed his character in issue by evidence of former good character.

Many of the questions propounded by the state to the defendant on cross-examination were denied by the defendant; and the state failed to introduce any proof to contradict him. The objections of the defendant to these questions should have been sustained.

Guilty or innocent, the defendant was entitled to have a fair and impartial trial; and it is the duty of the county attorney, as well as the trial judge, to see that the defendant is accorded that fair and impartial trial guaranteed to him by the Constitution and the laws of the state.

It is plain to' be seen that the prosecution in this case was anxious to sustain a conviction. There was no desire of the state to go- beyond what the law permits it to do in introducing testimony; yet in the heat of the trial of a case, they often forget and go beyond the law and the opinions of our courts on the questions about which they inquire.

The flagrant impropriety of the cross-examination of the defendant by the state is self-evident. Its effect upon the jury could not fail to bias and prejudice the jury against the defendant. It does not seem that this examination by the state of this defendant and Miss Johnson was inadvertent, but was purposeful is apparent; and it would be discreditable to counsel’s competency as attorney for the state to' impute to him lack of knowledge of the impropriety of the questions asked on his cross-examination of the defendant.

In Vickers v. United States, 1 Okla. Cr. 452, 98 P. 467, 473, this court said:

“A public prosecutor is presumed to act impartially in the interest only of justice. If he lays aside the impartiality that should characterize his official action, to become a heated partisan, and by vituperation of the prisoner, and appeals to prejudice, seeks to procure a conviction at all hazards, he ceases to properly represent the public interest, which demands no victim, and seeks no conviction through the aid of passion, sympathy, or resentment. The only way to' secure fair trials is to set aside the verdicts so procured.”

In Watson v. State, 7 Okla. Cr. 590, 124 P. 1101, this court in the syllabus stated:

“The repeated asking of incompetent questions, which clearly have for their purpose the intimation of something to the jury that is either not true or not capable of being proven if true is wrong, and such conduct of counsel is not cured because the court sustains objections to the questions.”

In all cases the defendant is entitled to the full benefit of the legal presumption of innocence and cannot be properly convicted until his guilt is established beyond a reasonable doubt.

Considering all the facts as shown by the testimony in this case and the questions propounded to the defendant and his witnesses, we hold that the defendant was not accorded a fair and impartial trial as guaranteed to him by the Constitution and laws of this state; and for the reasons stated in this opinion, the judgment of the trial court is reversed, with directions if the defendant is retried to proceed in accordance with this opinion.

The warden of the state penitentiary will surrender defendant James Flynn to the sheriff of Oklahoma county, who will hold him in custody until he shall be discharged or his custody changed by due course of law.

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


text:
    Ex parte JOHN CHARLES FEAGINS. Petition of FRED C. FEAGINS.
    No. A-9767.
    Nov. 4, 1939.
    (99 P. 2d 526.)
    Fred C. Feagins, in pro. per.
    Clay M. Roper, of Oklahoma City, for petitioner.
    Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   DOYLE, P. J.

Now, on this the. 4th day of November, 1939, this matter comes on for hearing upon the verified petition of the petitioner, for a release from the respondent, Fred Hunt, warden of the state reformatory, at Granite, Oklá., John Charles Feagins.

The petitioner appeared in person and by his attorney of record, Clay M. Roper, and the respondent appeared by Sam H. Lattimore, Assistant Attorney General, said matter coming on for hearing by agreement of all parties, said case being a companion case of In re Walter Lee Midkiff, 68 Okla. Cr. 59, 99 P. 2d 525, and it being agreed that the evidence and pleadings in. said companion case together with the exhibits attached to petitioner’s petition, to- be considered as evidence in this case, and the court being fully advised in the premises, finds that said petition should be granted, and the writ of habeas corpus issued. The court further finds that the father, Fred C. Feagins, is a fit and proper person to whom the said child should be delivered.

It is therefore by the court considered, ordered, and adjudged: That the writ of habeas corpus as prayed for issue, and that the warden of the state penitentiary at Granite, Okla., Fred Hunt, be and hereby is commanded forthwith to deliver into the custody of Fred C. Feagins the said John Charles Feagins.

It is further directed that the said Fred C. Feagins keep the said John Charles Feagins for a period of ten days, either at his home in Vinita, Okla,, or at the Oklahoma Military Academy at Claremore, Okla., subject to the order of the juvenile court of Craig county, Okla.

Let a copy hereof be by the clerk of this court forthwith transmitted to the clerk of the district court of Craig county, Okla., and by him spread of record in case No. 2108 same being State of Oklahoma v. John Charles Feagins et al., and the said proceedings be held null and void.