text:
    A. Y. HEMBREE v. STATE.
    No. A-8185.
    Jan. 23, 1932.
    (7 Pac. [2d] 491.)
    J. H. Long, for plaintiff in error.
    J. Berry King, Atty. Gen., for tbe State.
   EDWARDS, J.

Tbe plaintiff in error, hereinafter called defendant, was convicted in tbe district court of Cotton county of rape in tbe first degree, and was sentenced to serve a term of 25 years in tbe state penitentiary.

Tbe prosecution was instituted in Stephens county. Defendant was jointly charged with E. S. (Choc) Hem-bree, who was sentenced to death, and his sentence affirmed by this court. Hembree v. State, 50 Okla. Cr. 174, 296 Pac. 502. This defendant was given a severance, and a change of venue was granted to Cotton county. After judgment and sentence, defendant made application to the trial court that the case-made be furnished at the expense of ¡Stephens county, setting out that defendant was without means and unable to pay the expense of a record for appeal. This was denied by the trial judge, and an application was then made to' this court for an order that the record for appeal be furnished at the expense of Stephens county, which application was denied by this court. The case is here by transcript. This court has adopted a liberal policy in protecting the constitutional rights that justice shall be administered without sale, 'denial, delay, or prejudice, section 6, art. 2 of the state Constitution, and the statutory enactment in aid of the constitutional guaranty. Section 786, Comp. St. 1921; Jeffries v. State, 9 Okla. Cr. 573, 132 Pac. 823; Hutchins v. State, 13 Okla. Cr. 717, 167 Pac. 338; Young v. State, 33 Okla. Cr. 255, 243 Pac. 763; Brogdon v. State, 38 Okla. Cr. 269, 260 Pac. 784; Clark v. State, 39 Okla. Cr. 116, 263 Pac. 679. This constitutional guaranty and the statute in aid of it are not to be construed as requiring the county in which a prosecution arises to furnish the record in all cases, but only in those cases in which to deny the record would in effect be imposing a penalty or denying the right of appeal to one who by reason of poverty is unable to provide the record. Wainwright v. State, 11 Okla. Cr. 547, 149 Pac. 914. Upon the filing of the application to the trial judge for a free record, testimony was taken which is incorporated in the transcript. It discloses that at the time the charge was lodged against defendant he had 200 acres of land in Grady county and 20 acres in Atoka county. He deeded the 20 acres in Atoka county, which he states was of the value of $500, to one of his attorneys. The land in Grady county had a mortgage on it for $1,500, and he paid another of his attorneys $3,000 by a mortgage on the land in Grady county. He got $400 additional, and paid $300 of that to his attorneys. He made an appeal bond in the sum of $20,000. By this recital, we do not wish to be understood as criticizing counsel, but we are satisfied defendant, with the financial resources and backing as shown, is not entitled to have a record furnished him at the expense of the county.

We have examined the record presented to us by transcript, and nothing appears therein that in any way affects the validity of the judgment.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J.. concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex parte H. L. WELSHER.
    No. A-8331.
    Jan. 30, 1932.
    (8 Pac. [2d] 76.)
    G. P. Watkins and C. W. Garrett, for petitioner.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Phil K. Oldham, Co. Atty., for the State.
   PER CURIAM.

This is an original proceeding in habeas corpus. Petitioner alleges, in substance, that he is unlawfully restrained by the sheriff of Muskogee county on a charge of murder, wherein petitioner is accused of causing the death of one Bertha Cottingham while he was engaged in the commission of a felony in driving an automobile while intoxicated. That the proof of his guilt is not evident, nor the presumption thereof great.

After commitment for a capital offense by an examining magistrate, the burden is on one seeking bail to show facts entitling him to bail, unless such appear from the evidence of the prosecution. The testimony for the state with the physical facts discloses that at the time charged petitioner drove a truck against a Ford coupe in which deceased was riding. The coupe at the time was on its own side of the street, was struck with such force it was pushed against the curb, the hind wheel broken down, the car forced onto the parking, and the occupants violently thrown out, the truck overturned. There was testimony that at the time defendant was in a state of intoxication. Petitioner has not sustained the burden placed upon him.

Bail is denied.


author: EDWARDS, J.

text:
    FRANK YUNKER v. STATE.
    No. A-7847.
    Jan. 30, 1932.
    (7 Pac. [2d] 916.)

      0. S. Shaw, and Rizley & Sweet, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith 0. Matson, Asst. Atty. Gen. (George H. Copeland, of counsel), for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Cimarron county of obstructing a highway, and was sentenced to pay a fine of $5.

The information charges a violation of section 10161, Comp. Stat. 1921, in obstructing a county highway between sections 11 and 12, township 5 north, range 7 E. C. M., by maintaining a fence across it. It is agreed by counsel that the question raised is more important than the small amount assessed as a fine would indicate. The constitutionality of the law is not questioned. There is no substantial dispute as to the facts. A county highway was designated and laid out by the county commissioners along the section line between the said sections, and defendant erected and maintained a fence with a gate opening across this highway. He contends that under the provisions of section 3975, Comp. Stat. 1921, as amended by chapter 54', Session Laws 1927, construed in connection with sections 3977 and 3978, Comp. Stat. 1921, the act in maintaining this fence and gate is not unlawful. Section 3975, as amended with sections 3977 and 3978, classifies the counties, and in effect provides that in certain counties in districts where grazing is more important than agriculture under the conditions and provisions named, fences with gates as specified may be erected and maintained across the highways.

It is undisputed that defendant was the owner or lessee of more than two sections of land, unsuitable for cultivation, and which was being used for grazing purposes, lying partly on each side of the highway in question. None of the provisos or exceptions in chapter 54, Session Laws 1927, apply. It is the contention of the state, and the court in substance so instructed the jury, that chapter 54 is not applicable in any case unless a grazing district shall have been designated by the county commissioners. No provision of law for the creation of a grazing district as provided for in said chapter has been called to our attention. Apparently the grazing districts mentioned in chapter 54 are not the herd law or stock districts defined by section 3929 and following sections of Comp. Stat. 1921, but districts formed by the owners of lessees of grazing lands. The validity of such grazing district, in case of dispute, to be determined by the county commissioners acting as a board of inspectors. A petition to open and grade the section line was made to the board of county commissioners; but there was no objection by fifteen or more landowners or lessees of the locality to the fencing of the section line, nor dispute as to the character of the land nor finding and order of the board of commissioners as a board of inspectors abolishing the grazing district. Cimarron county being one of the counties within the purview of this law, it was not unlawful for defendant to erect the fence in question and maintain gates.

The case is reversed and remanded.

DAVENPORT, P. J., and CHAPPELL, J., concur.


author: DAVENPORT, P. J.

text:
    BESS DAVIS v. STATE.
    No. A-8136.
    Jan. 30, 1932.
    (7 Pac. [2d] 911.)
    Wieck & Armstrong, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of having possession of intoxicating liquor, with intent to barter, sell, give away, or otherwise furnish to others, and was sentenced to pay a fine of $50 and be imprisoned in the county jail for 60 days; from which judgment the defendant appeals.

The testimony on behalf of the state tends to show the officers went to the place of business of the husband of defendant, which was a filling station, grocery, and family residence, searched the place, and in a room where the defendant and the husband of the defendant were standing, near a door that led to the rear of the building, the officer saw the defendant go out of the door with something in her hands; he called to her and stopped her, and took the packages from her, and claim they contained four one-half gallon jars containing whisky; the defendant’s husband was arrested, and later this defendant was arrested.

The defendant testified in her own behalf she had been down to a telephone some distance away and got back a short while before the officers came; that, when the officers came in the front way, one of them came on back to their living apartments, and the husband came back from the front of the building to this room; she was standing near the door leading out the back way and her husband told her to take those paper sacks near the door out, and she did as he directed her. The officer making the search says he did not hear the husband say anything to the wife. Some time after the search was made the defendant was arrested.

The defendant states positively that her husband commanded her to take the packages out of the building; she further states she did not know what they contained; that she had nothing to do with the packages her husband directed her to take out of the building, nor did she know what was in the paper sacks; the officer states he could not tell what was in the paper sacks when the defendant went out of the door with them, and could not see what they contained until he opened up the sacks. This is in substance the testimony.

The defendant has assigned several errors alleged to have been committed in the trial of her case. It is argued by the defendant that the court erred in overruling her motion for a new trial. Under this assignment, all the other questions raised and discussed by the defendant are included.

There is no evidence on behalf of the state contradicting or rebutting the evidence of the defendant that ■whatever action defendant took with reference to the whisky was taken by command and direction of Bert Davis, her hnsband. The state’s evidence shows clearly whatever action the defendant took with reference to handling any whisky was in the immediate presence of her husband. The only connection the defendant had with "the whisky, as shown by the record, is that she started from the door in one of the rooms where the family lived with the paper sacks, and when the sacks were taken from her by the officer they contained jars filled, or partly filled, with what the officer said was whisky. There is but little dispute between the testimony of the state and the defendant as to what took place in the building. The only dispute being the officer claims he did not hear the husband say anything to the defendant about taking the paper sacks out of the house. He would not say the conversation did not take place.

It is urged by the defendant that the testimony in this case is sufficient to show that any part the defendant in this case took in handling the whisky was at the direction and command of her husband, and that she did not have any knowledge there was any whisky in the paper sacks the husband ordered her to take out of their home.

Section 1514, C. O. S. 1921, is as follows:

“The involuntary subjection to the power of a superior which exonerates a person charged with a criminal act or omission from punishment therefor, arises either from: First: Duress; or, second: Coverture.”

In Neff v. State, 28 Okla. Cr. 448, 231 Pac. 898, the court said:

“Notwithstanding the recent development in the emancipation of women, a wife is still presumed to be under duress of her husband, where a crime is committed by the husband in her presence. In this case the husband had just been carried away and incarcerated in jail. The whisky the officers smelled may have belonged to- him, and the wife may have had no intention of disposing of the liquor.”

In Ferguson et al. v. State, 29 Okla. Cr. 238, 233 Pac. 497, in the second syllabus, the court said:

“Under Comp. St. 1921, § 1516, wife acting in concert with husband, in his presence, in commission of offense, is presumed to be under his influence and duress.”

In Sanders et al. v. State, 48 Okla. Cr. 65, 289 Pac. 798, in the first paragraph of the syllabus the court said:

“A subjection sufficient to excuse from punishment may be inferred, in favor of a wife, from the fact of cover-ture, where she committed the act charged in the presence and with the assent of her husband, except where such act is a participation in the crimes named in section 1516, C. O. S. 1921.” Zammer v. State, 51 Okla. Cr. 125, 300 Pac. 325.

The charge in this case is not embraced within the crimes enumerated in section 1516, C. O. S. 1921. It is not denied that whatever action was taken by the defendant in this case was done by direction and command of her husband and in his presence.

For the reasons stated, the case is reversed.

EDWARDS and CHAPPELL, JJ., concur.


author: CHAPPELL, J.

text:
    ROBERT AYERS v. STATE.
    No. A-7950.
    Jan. 30, 1932.
    (7 Pac. [2d] 919.)
    Sigler & Jackson, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Johnston county of the crime of manslaughter in the first degree, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of 50 years.

This is a companion case to that of J. Arthur Keltner, No. 7949, decided at this sitting of the court. The defendant and Keltner were jointly charged with the murder of Ira Sanson. Being granted a severance, Keltner was tried first and found guilty, and thereafter this defendant was tried and found guilty.

Por a statement of the facts, see Keltner v. State, 52 Okla. Cr. 150, 3 Pac. (2d) 451.

Defendant contends: First, that the court erred in admitting evidence of defendant’s connection with the whisky-making business; second, that the court erred in admitting deceased’s dying declaration; third, that the court erred in admitting the testimony of Dr. Clark as to the statement made by deceased a short time after the killing in which deceased said, in the presence of defendant, “Keltner murdered me in cold blood.”

There is no merit in these contentions.

Defendant next contends that the trial court erred in refusing to give his requested instruction on circumstantial evidence.

This court has uniformly held that where the evidence of the state is wholly circumstantial, a refusal to give requested instructions on circumstantial evidence is reversible error. Rutherford v. United States, 1 Okla. Cr. 194, 95 Pac. 753; Bock v. State, 34 Okla. Cr. 313, 246 Pac. 642; Moore v. State, 34 Okla. Cr. 277, 246 Pac. 648.

In the recent case of Breedlove v. State, 49 Okla. Cr. 428, 295 Pac. 239, this court said:

“Where circumstantial evidence alone is relied on for a conviction, it is the duty of the court to instruct on the law applicable thereto when requested to do so by defendant.
“When the evidence relied on for a conviction is wholly circumstantial and a proper request for an instruction on circumstantial evidence is made and refused by the trial court, such refusal is reversible error unless the evidence of guilt is so conclusive that this court can say that the refusal to give the requested instruction did not affect the verdict.”

The evidence in the case at har to connect defendant with the killing being wholly circumstantial, it was reversible error for the trial court to refuse to give defendant’s requested instruction applicable thereto.

For the reason stated, the cause is reversed and remanded solely because of the error of the court in refusing to give such instruction, with directions to proceed with the trial of the case in conformity with this opinion.

DAYENPOET, P. J., and EDWAEDS, J., concur.


text:
    E. C. WHITTEN v. STATE.
    No. A-8182.
    Jan. 30, 1932.
    (7 Pac. [2d] 693.)
    C. L. Hill and Warren B. Phillips, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Seminole county on a charge of forgery in the first degree, and his punishment fixed at ten years’ confinement in the state penitentiary, and he has appealed.

It is charged in the information that the defendant E. C. Whitten, “did then and there willfully, designedly, unlawfully and feloniously and with intent to defraud school district No. 23, Seminole county, Oída., a municipal corporation and subdivision of the county of Seminole, Okla., and feloniously forge, make, counterfeit, utter, pass, present and cash a false certificate and purported security, to wit: A school warrant, which said warrant purported to have been issued under authority of this state by virtue of the laws thereof, and purporting to be a good and valid warrant drawn on the funds of said school district No. 23, aforesaid, and being then and there a promise for the payment of money, by then and there writing said warrant and uttering the same as a true and genuine warrant drawn on the funds of said school district No. 23, aforesaid, but which warrant was and is false and forged in this, to wit: That said warrant on its face purports to' have been issued to pay indebtedness due one H. L. Freeman for teaching performed for said school district, when in truth and in fact said school district was in no wise indebted to the said H. L. Freeman, which fact the said E. C. Whitten then and there well knew; that said warrant is a forgery in this, to wit: That the signature of the director of said school district No. 23, appearing thereon, to wit: H. R. Streater is not the true and genuine signature of the said H. R. Streater, nor authorized by him, but that said signature is false and forged, Avhich fact the said E. C. Whitten then and there Avell kneAV, said warrant being in words and figures as follows: ‘A copy of the warrant alleged to have been forged is set out in the information.’ ”

The testimony on behalf of the state shows that H. B. Streater was a director of school district No. 23, Seminole county; that the defendant, E. C. Whitten, was the clerk on January 9, 1930, and for some time prior thereto; that defendant’s duty as secretary of the school board was to keep the books and records of the school district relative to the school district business; part of the duty of the defendant was to prepare and sign as secretary of the school board all the school warrants for the payment of the various items of indebtedness against the school district; when the warrants were prepared, they were required to be signed by H. B. Streater, director of the school board.

The testimony further shows that in January, 1930, Henry L. Freeman was employed as teacher in second district No. 23, and on January 9, 1930, a warrant was drawn payable to H. L. Freeman, for $185, purporting to be for teaching; Freeman’s salary at the time was $175 per month. In the proper place for the signatures the name of H. B. .Streater, a director, and the defendant, E. C. Whitten, were signed., H. B. Streater examined the warrant and stated that it was not his signature, and that he did not authorize any one to sign his name to this particular warrant.

The state called Ed Haunschild, who stated in substance he was teller of the Farmers’ National Bank of .Seminole; he further stated he was familiar with the signatures of the regular bank customers; that defendant had been a customer of the bank since he had been working there until about one year previous to his testifying; the signature of the warrant in question was the signature of the defendant, E. C. Whitten; that on the 9th day of January, 1930, “while working at teller window No. 2, I cashed the warrant in question; Mr. E. C. Whitten’s signature is on it; as well as I remember, Mr. Whitten presented the warrant and I cashed it; I don’t swear positively that I cashed it, but it was his signature on the back of the warrant and I am familiar with his signature; the money was counted out and delivered to Mr. Whitten.”

H. L. Freeman stated that on the 9th day of January 1930, he was teaching school in school district No. 23 of Seminole county; his salary was $175 per month; that he never received any of the proceeds of the money from the warrant in question; that he did not write H. L. Freeman on the back of the warrant; the H. L. Freeman in-dorsement on the back of the warrant is not his signature; he authorized no one to sign his name on the warrant; the first he heard of such a warrant was about the middle of April, 1930; I was in the county attorney’s office at the time.

Considerable testimony was offered in behalf of the state showing, that other school warrants had been issued bearing the signature of H. R. Streater and E. C. Whitten that were not based on work performed by any of the teachers. The name of E. C. Whitten on the back of the warrant in question was positively identified by the witnesses as being the signature of the defendant, E. C. Whitten. The bank teller testified he cashed the warrant and passed the money out to the defendant. No testimony was offered by the defendant.

Several errors have been assigned by the defendant as grounds for reversal. The information states facts sufficient to advise the defendant that he was charged with forging a school warrant against the funds of school district No. 23 in Seminole couty, Okla., and his demurrer was properly overruled. The testimony sustains the allegations and is sufficient to sustain the conviction. No explanation is made by the defendant as to why he indorsed the warrant, nor is there any explanation as to why he presented the same for. payment at the bank without authority of the payee in the warrant. Without extending this opinion further, we hold that the court properly instructed the jury as to the law applicable to the facts, that the defendant was accorded a fair and impartial trial, and that there are no fundamental or prejudicial errors in the record sufficient to warrant a reversal.

The cause is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    VERN BROTHERS v. STATE.
    No. A-8218.
    Jan. 30, 1932.
    (7 Pac. [2d] 692.)
    Frank Leslie, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of the crime of robbery with firearms, and, upon failure of the jury to agree upon the punishment, the court assessed the same at imprisonment in the state penitentiary for a period of 20 years.

The plaintiff in error was charged with having robbed one Lonnelle Hovis of the sum of $174, the property of Morris Feenberg, doing business under the. trade-name of the Morris Grocery; that Hovis was a delivery boy working for the Morris Grocery, and that he had collected, that morning, a little more than $174 from various customers; that defendant accosted Hovis on a street in Tulsa, near a viaduct, and got into the grocery truck and compelled Hovis to drive out to Mohawk Park, which is also in Tulsa county, and at the point of a pistol, and by putting Hovis in fear of his life from such weapon, defendant took from the person of Hovis the $174; that defendant was wearing a peculiar jacket; that when arrested defendant was in bed; that this jacket hung on a chair, and in the pocket of the jacket was a pistol.

The defense was an alibi.

The first assignment of error questions the sufficiency of the evidence to sustain the conviction.

It is unnecessary to cite authorities of this court to the effect that it is the conclusive province of the jury to determine what witnesses they will believe and what witnesses they will not believe; that the credibility of the witnesses and the weight to be given their testimony is exclusively for the jury. The jury does not have to accept as true the testimony of defendant’s witnesses.

In Horn v. State, 13 Okla. Cr. 354, 164 Pac. 683, this court said:

“When thé record discloses facts sufficient either to warrant an acquittal or to support a conviction, only errors of law will he reviewed.”

Under a record such as the case at bar, this court will not weigh the evidence, but will sustain the judgment where there is any competent evidence that would warrant a conviction. Birdwell v. State, 22 Okla. Cr. 184, 210 Pac. 558; Johnson v. State, 22 Okla. Cr. 332, 211 Pac. 425.

The record containing sufficient competent evidence to warrant the jury in returning a verdict of guilty, the court did not err in overruling defendant’s motion for a new trial upon that ground.

Defendant next contends that the trial court erred in overruling the motion for a new trial on the ground of alleged newly discovered evidence.

This motion was properly overruled: First, because there is no showing of diligence to discover this evidence nor to produce the witnesses at the time of trial; second, because the evidence is only cumulative of other testimony given at the trial; and, finally, because there is nothing in the record to indicate that, had this evidence been produced at the trial, it would likely have changed the result. See section 2754, C. O. S. 1921; Howey v. State, 9 Okla. Cr. 453, 132 Pac. 499; Penn v. State, 13 Okla. Cr. 367, 164 Pac. 992, L. R. A. 1917E, 668; Stilwell v. State, 18 Okla. Cr. 10, 192 Pac. 253; Carr v. State, 22 Okla. Cr. 371, 211 Pac. 423; Peters v. State, 35 Okla. Cr. 367, 250 Pac. 1032.

A careful examination of the record discloses that the defendant was given a fair and impartial trial, and that the evidence supports the verdict of the jury. The cause is therefore affirmed.

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


text:
    HUBERT WILSON v. STATE.
    No. A-8249.
    Feb. 5, 1932.
    (8 Pac. [2d] 1118.)
    W. H. Hussey and J. F. Thomas, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, for convenience referred to as the defendant, was by information charged with robbery by the use of firearms, was convicted, and his punishment fixed at imprisonment in the state penitentiary for eight years, and by transcript has ap-. pealed.

The record in this case was filed on September 2, 1931; no brief has been filed in support of the defendant’s assignment of errors. The record has been carefully examined, and we hold that the information stated facts sufficient to advise the defendant of the charge against him, and that there are no fundamental errors in the transcript.

The case is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    FRED STRONG v. STATE.
    No. A-8215.
    Feb. 5, 1932.
    (8 Pac. [2d] 76.)
    J. Q. A. Harrod and Laynie W. Harrod, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Canadian county of the larceny of an automobile, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of five years.

Defendant in his brief says:

“We wish to urge for a reversal of this case our second and third assignments of error:
“Second. The court erred in overruling the petitioner’s objection to going to trial for the reason that the issues in this case had not been joined until the 19th day of January, 1981, and the petitioner was forced to trial on the 21st day of January, 1931, and did not have sufficient time to prepare for trial, duly excepted to at the time.
“Third: Because the court erred in overruling petitioner’s application for a continuance, duly accepted to at the time.”

It appears from the record that this action was commenced by the filing of a sworn complaint before the county judge and examining magistrate on July 26, 1930; that defendant was discharged on bond on the same day; that on. August 4, 1930, he was held to appear in the district court upon this charge; that an information was filed in the district court on November 29, 1930; that on January 9, 1931, the case was docketed for trial on January 21st, and written notice thereof given the defendant’s counsel; that defendant was arraigned on January 17, 1931, at which time he was granted twenty-four hours in which to pleád; that on January 19, 1931, defendant pleaded not guilty and for the first time objected to going to trial on January 21st. Defendant then filed his motion for a continuance on the ground that he was not being given sufficient time to prepare for trial. Upon the hearing of this motion, defendant’s counsel admitted that on January 9, 1931, he had received notice that the case was set for trial on January 21st. It is apparent, therefore, that counsel for defendant had at least ten days’ notice of the date upon which this case was set for trial; that he caused no subpoenas to be issued and made no effort to get ready for trial, although the case had been commenced against the defendant more than six months prior thereto, and had been pending in the district court for more than two months. There is no showing of any diligence upon the part of defendant or his counsel to prepare the case for trial during that period of five months; there is no showing of what any witness would testify to if the case was continued, and the defendant himself did not testify.

It was the duty of the defendant under the state of this record to be ready for trial. Having failed to do so, the court properly overruled his motion for a continuance.

Defendant next contends that the state failed to prove the corpus delicti, or that any automobile was stolen. This contention is not supported by the record.

Defendant next contends that the court erred in failing to instruct the jury on circumstantial evidence. Defendant made no objection to the instructions given by the court, and saved no exception to the same, and requested no instruction on circumstantial evidence.

In Klaber v. State, 35 Okla. Cr. 238, 250 Pac. 142, this court said:

“Where the conviction rests wholly upon circumstantial evidence, and the court gave no instruction on the law of circumstantial evidence, and no instruction on this phase of the evidence was requested, the failure to so instruct the jury is not necessarily reversible' error.” Lumpkin v. State, 5 Okla. Cr. 488, 115 Pac. 478; Merriott v. State, 18 Okla. Cr. 247, 194 Pac. 263; Newcomb v. State, 23 Okla. Cr. 172, 213 Pac. 900.

Defendant next complains of misconduct of the county attorney in his argument. There is no proper recital in the case-made to the effect that counsel for the state made any improper argument. All that is found in support of this assignment of error is the statement of counsel for defendant that the county attorney made certain remarks in his closing argument to the jury, which statement reads as follows:

“Mr. Mathers: The county attorney stated in his argument to the jury that they have not attempted to explain why Fred Strong was in possession of this car, to which the defendant objects, as it’s prejudicial and incompetent, irrelevant and immaterial, and an indirect reference to the defendant’s not taking the witness stand.”

And the court said:

“The jury will, in no sense, so construe it, and such an attempt would be highly improper, but the jury will disregard any statement made by the county attorney which would, in any way, call attention to the defendant, in so far as his own testimony might be concerned.”

It appears from the further argument of the county attorney that he was not referring to the defendant, but to a man named Pettis, who was a witness for the defendant and in possession of the stolen car. Counsel was arguing that, since Pettis was the defendant’s witness, it was the duty of the defendant to have him explain his connection with the car.

This court has repeatedly held that the county attorney has a right to refer to the evidence and make deductions therefrom, to urge upon the jury the truth or falsehood of the testimony given in the case. Bouie v. State, 9 Okla. Cr. 345, 131 Pac. 953; Spann v. State, 19 Okla. Cr. 9, 197 Pac. 531.

A careful examination of the record discloses that the evidence supports the verdict of the jury, and that no fundamental error was committed in the trial of the case.

The cause is therefore affirmed.

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


text:
    JOHN DILLON STRONG v. STATE.
    No. A-8224.
    Feb. 5, 1932.
    (7 Pac. [2d] 917.)
    J. Q. A. Harrod and Laynie W. Harrod, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Canadian county of the larceny of an automobile, and his punishment fixed by the jury at imprisonment in the penitentiary for 15 years.

The evidence of the state was that Lee Pierce was a merchant in the city of El Reno; that he was the owner of a model 1930, motor No. 1572389, Chevrolet sedan; that this automobile was taken, without his knowledge or consent, on the 22d day of November, 1930; that a few days later this automobile was found in the town of Okarche; that the motor number and serial number had been changed; that the automobile was found in the possession of a man named Tom Leonard, who had been jointly charged with defendant with the larceny of the car; that about the second day after the automobile was stolen defendant presented a purported registration of this car from the state of Texas to the tag agent at El Reno, under the name of C. F. Foster; that the numbers on the automobile stolen had been changed to correspond with the numbers on the Texas registration; that, when Leonard was arrested and the stolen car recovered, he had a bill of sale for the car signed by C. F. Foster; that the name “C. F. Foster” on the bill of sale was written by the same person who wrote the name “C. F. Foster” when applying for the registration and license to the tag agent at El Reno; that the automobile registered by defendant under the name of C. F. Foster was the same automobile found in the possession of Leonard, in Okarche; that there were certain other identification marks on the stolen automobile by which the owner could positively identify it.

The defense was an alibi; defendant contending that on the 22d day of November, 1930, and for more than a week thereafter, he was in Kansas City.

At the time the case was called for trial, defendant moved for a continuance, and for an order of court to take depositions, setting out that he desired to take the depositions of Mildred Jackson, Opal Talley, B. J. Strong, and others, at the office of C. W. Middleton, 1204 Commerce building, Kansas City, Mo.; and thereupon the case was continued, and the court made an order authorizing defendant to take such depositions, but none were ever taken. Defendant called no witness and offered no evidence except his own upon the question of the alibi.

Defendant first contends that the trial court erred in overruling his motion to quash and set aside the information in the district court, for the reason that the record discloses that the name of plaintiff in error was added after the information was filed, and after it had been sworn to, and for the further reason that the preliminary information introduced in evidence showed upon its face that James Dillon Strong had been informed against, which is not the plaintiff in error.

It appears from the record that the complaint originally filed with the magistrate was against Perry Moore and Tom Leonard, and that later, by leave of the magistrate, the name of James Dillon Strong was inserted in the preliminary complaint. It further appears that, when defendant was arrested and brought before the magistrate, he made no objection to the complaint nor to the warrant upon which he was arrested, and, after being advised of his rights by the court, waived time to plead, and entered a plea of not guilty; that a preliminary hearing was had, and he was bound over to the district court without any objection on his part. It further appears from the record that defendant was informed against in the district court as John Dillon Strong, which is his true name.

When defendant was arraigned in the district court, he took 24 hours to plead, and on January 21st made application for a continuance to enable him to take depositions, at which time the case was continued and the trial of the same set for February 2d. When the case was called for trial, defendant filed his motion to quash the information, and for the first time raised any question of the sufficiency of the preliminary complaint, the legality of his arrest, the preliminary hearing had on the complaint, or the jurisdiction of the court over his person. The failure to verify a preliminary complaint in a felony case was a matter he could waive and did waive by not raising the question before entering his general appearance to the charge in the magistrate’s court.

In Steiner v. State, 33 Okla. Cr. 298, 243 Pac. 1002, this court said:

“Where an unverified complaint charging a felony is filed before a magistrate, it is insufficient to authorize the issuance of a warrant, but, if a warrant is issued on such complaint, and a defendant apprehended and arraigned and submits to the jurisdiction of the magistrate, and has a preliminary trial on such complaint without challenging its sufficiency for lack of verification, such defect is waived.” Keeler v. State, 24 Okla. Cr. 206, 217 Pac. 228.

It is next contended that the trial court erred in permitting the county attorney to attack the character and reputation of defendant, without such reputation having been first put in issue by himself.

The record discloses that the trial court permitted the state to ask defendant on cross-examination if he had not stated to one of the officers that he had been stealing automobiles in different places and disposing of them. Defendant denied making any such statement. The state then placed the officer on the witness stand, and the court permitted him to testify that defendant had made such statements to him, but later, on motion of defendant’s counsel, the evidence was taken from the jury, and they were admonished by the court not to consider such statements.

In Leslie v. State, 22 Okla. Cr. 111, 210 Pac. 297, this court said:

“Only those questions can be considered upon appeal, unless jurisdictional, which were decided adversely to the appellant in the trial court.” See, also, Mitchell v. State, 7 Okla. Cr. 563, 124 Pac. 1112; McNeill v. State, 18 Okla. Cr. 1, 192 Pac. 256.

In view of the final ruling of the court on this matter, there is nothing before this court for review, since no jurisdictional question is involved.

While the error complained of cannot be considered by this court on the record, and while it is not such as would require a reversal of the case, the error in permitting the jury to hear this evidence may have resulted in a greater penalty than would otherwise have been given.

It is also contended that the evidence is insufficient to support the verdict of the jury.

The evidence is wholly circumstantial. The court gave the usual instructions on circumstantial evidence. When all the facts and circumstances are considered together, they were sufficient to support the verdict of guilty.

Upon consideration of the whole record, the court finds the punishment is excessive and the judgment should be modified, and the punishment reduced from 15 years in the penitentiary to 5 years in the penitentiary, and, as modified, the cause is affirmed.

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


text:
    A. M. HARRIS v. STATE.
    No. A-8248.
    Jan. 2, 1932.
    Withdrawn, Corrected, Refiled, and Rehearing Denied Feb. 5, 1932.
    (7 Pac. [2d] 914.)

      Sid White, for plaintiff in error.
    J. Berry King, Atty. Gen. (Lewis R. Morris, Co. Atty., and Draper Grigsby, Asst. Co. Atty., on the brief), for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of the crime of murder, and his punishment fixed by the jury at death.

The evidence of the state was that defendant left his family on numerous occasions and stayed away from a few days to two years; that he was the father of five children, and made practically no provision for their support; that during his absence his wife, with their help, supported herself and the children; that, after an absence of about two years, defendant returned; that his wife applied for a divorce; that, while the case was pending, she was brought to Oklahoma City and taken to the University Hospital for an operation; that she had become acquainted with deceased some time before the homicide; that, after she was taken to the hospital, deceased visited her there; that defendant followed her to- Oklahoma City and sought to see her, but she refused to have anything to do with him; that on Friday morning before the homicide defendant bought a .38 Smith & Wesson revolver in the negro section of Oklahoma City; that on Friday evening defendant went out to the hospital and met deceased, and, after some conversation, ordered him not to see his wife any more; that defendant, armed with his pistol, came back to the hospital grounds Friday evening and sat where he could watch his wife through an upper window of tlie hospital; that deceased was at the hospital that evening and called on defendant’s wife, and that defendant waited outside for him, but deceased left the hospital by another entrance, and defendant failed to see him; that defendant was watching the hospital and for deceased on Saturday evening; that on Sunday evening defendant returned and stationed himself on the parking, where he could see his wife or any one near her after the lights were turned on; that at about 8 o’clock in the evening defendant saw deceased sitting beside his wife’s bed; that he rushed upstairs, past the nurses, and into the hospital where his wife and some 33 sick and helpless women were.

A woman lying on a cot adjoining that of defendant’s wife testified that defendant came into the door of the ward, hurried over to where deceased was sitting with his back turned toward him, and, without any notice to deceased, fired one shot into his back; that deceased threw up his hand after the shot, and turned toward defendant, and defendant fired four other shots into his body; that deceased grappled with defendant and threw him to the floor and took the pistol away from him before the guard and the nurses reached him; other witnesses testified that all of the shots were fired into' the front of deceased’s body. All the eyewitnesses for the state were unanimous in their testimony that deceased made no move and did nothing to cause the defendant to begin shooting.

Defendant testifying for himself, claimed that he saw a handkerchief in deceased’s pocket and thought it covered a weapon, and, when deceased threw up his arm, he fired in self-defense. No weapon was found on deceased and no evidence offered, except that of defendant, himself, that deceased had a weapon. Defendant also offered evidence in an attempt to show that he was insane at the time the offense was committed.

Defendant contends, first, that the trial court abused its discretion in oyerruling his motion for a new trial on the ground of newly discovered evidence.

What is claimed to he newly discovered evidence is included in the affidavits of his former wife, Ola Harris, his son, Haskell H. Harris, and Anna Richardson, wherein they made oath to threats made by deceased toward defendant, and that deceased went armed, but make no claim that these threats were ever communicated to defendant nor that defendant had any reason to believe that deceased went armed.

Defendant, testifying for himself, said that deceased had never made any threats toward him.

The evidence of the state is that deceased was' unarmed ; that defendant rushed into the hospital room, and, while deceased was seated in a chair, made an unprovoked attack upon him, firing five shots into his body, from the effects of which he later died.

Uncommunicated threats and the fact that deceased went armed would only be admissible for the purpose of establishing who probably was the aggressor. Since there is no question as to who was the aggressor, there is no reasonable probability that this evidence, even if admissible, would have changed the result of the trial.

A motion for a new tidal on the ground of newly discovered evidence is addressed to the sound discretion of the trial court. The presumption is that the discretion was properly exercised, and the ruling of the trial court will not be disturbed, except for an abuse of this discretion. Carter v. State, 35 Okla. Cr. 421, 250 Pac. 807; Peters v. State, 35 Okla. Cr. 367, 250 Pac. 1032; McColloch v. State, 45 Okla. Cr. 442, 283 Pac. 1026.

No diligence having been shown and no abuse of discretion appearing, the trial court properly overruled the motion for a new trial.

It is next contended that the record is convincing that the plaintiff in error was not mentally responsible at the time of the fatal difficulty.

We have carefully read all of the evidence, and find nothing to support this contention. It appears from the record that the defendant had mental capacity to know right from wrong, and to know the consequences of his act. This is all that is required. Smith v. State, 12 Okla. Cr. 307, 155 Pac. 699; Owen v. State, 13 Okla. Cr. 195, 163 Pac. 548; Turner v. State, 43 Okla. Cr. 380, 279 Pac. 525.

Insanity as a defense to a crime is a fact for the jury to determine under proper instructions. Baker v. State, 9 Okla. Cr. 47, 130 Pac. 524; Reed v. State, 23 Okla. Cr. 56, 212 Pac. 441. The question of defendant’s sanity having been submitted to the jury upon proper instructions, the finding of the jury is conclusive thereon where there is competent evidence to support it.

Counsel next contends that the punishment is excessive, and says: “This was not an unnatural or revolting killing. This was the act of an honorable man driven beyond the limit of human endurance by a studied outrage of his affections and insult to his pride.”

Defendant’s conduct toward his wife and his failure to make any provision for her support is a complete answer to this contention. Here we have a case Avhere the husband is callous and indifferent toward his wife and children, leaving them for long periods entirely unprovided for. When the time came when he wanted a reconciliation, he was outraged because his long-neglected wife and family refused to be reconciled. He bought this pistol on Friday morning-, no doubt with the deliberate intention to' use it to kill either the deceased or his wife.; His conduct in watching the hospital, waiting for deceased, and his final unprovoked attack and cold-blooded killing of the deceased, completely refutes the argument of counsel.

In the recent case of Kell v. State, 53 Okla. Cr. 45, 6 Pac. (2d) 836, this court said:

“The so-called unwritten law, The right to avenge wrongs done a female member of a defendant’s family by killing the wrongdoer,’ does not exist in this state.”

The errors of law complained of being without substantial merit, the evidence supporting the verdict of the jury, and no mitigating circumstances appearing in the record, the cause is affirmed.

The original time for the execution having passed, owing to the pendency of this appeal, it is considered, ordered, and adjudged by this court that the judgment and sentence of the district court of Oklahoma county be carried out by the electrocution of the defendant on the 11th day of March, 1932.

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


text:
    JOHN PECCIO v. STATE.
    No. A-8002.
    Feb. 5, 1932.
    (7 Pac. [2d] 913.)
    Monk & McSherry, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Pittsburg county on a charge of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

At the time charged, defendant resided on certain property belonging to one Watson. An affidavit for a search warrant was made and a search warrant procured for the premises, and a search made which resulted in the officers finding 15 quarts of “choc” beer and about a quart of whisky.

The property searched belonged to one Watson and wife. They left the property the last day of September and resided for a time at Oklahoma City. Defendant, a son-in-law of Watson, resided with his wife on these premises after Watson left. The affidavit for a search warrant sets out probable cause for searching the premises Which is based on the conduct of Watson and wife and the reputation and condition of the premises while occupied by them. The search warrant recites that the property is the residence of Watson and wife. Defendant filed a motion to suppress the evidence, and objected to the introduction of the evidence as having been obtained by an illegal search. It is apparent the facts on which the affidavit was made and the warrant issued were stale at the time. Proceedings by search warrant must be directed to existing violations of the law. People v. Chippewa Circuit Judge, 226 Mich. 326, 197 N. W. 539; Cornelius, Search and Seizure, §§ 87, 88. The affidavit sets out very meager facts and is of doubtful validity. When it was made to appear that the affidavit and. warrant was predicated on the acts of the Watsons and that the premises were the residence of defendant, as these facts were disclosed and undisputed, the evidence should have been suppressed. An affidavit setting out misconduct of a former resident of premises as a basis for a search warrant does not justify the search of a private residence of a subsequent resident of the premises. Such search violates section 30, art. 2, state Const.

The case is reversed and remanded.

DAVENPOKT, P. J., and CHAPPELL, J., concur.


text:
    FRANK DUNKIN v. STATE.
    No. A-8275.
    Feb. 5, 1932.
    (7 Pac. [2d] 912.)
    J. M. Springer, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of the crime of perjury, and sentenced to serve a term of 12 years in the state penitentiary at McAlester, and appeals.

The defendant has assigned several errors alleged to have been committed by the trial court; his third assignment being:

“The court erred by overruling demurrer of the defendant to the amended information upon which he was placed on trial.”

The information has been carefully studied, and, without lengthening this opinion by setting out said information, we hold it charged sufficient facts to advise the defendant of the charge against him, and the de-. murrer of the defendant was properly overruled.

It is further urged by the defendant that the testimony is insufficient to sustain tbe verdict of the jury upon the charges filed against the defendant. The crime of perjury is defined in section 1628, C. O. S. 1921, as follows :

"Any person who, having taken an oath that he will testify, declare, depose or certify truly before any competent tribunal, officer, or person, in any of the cases in which such an oath may by law be administered, willfully and contrary to such oath, states any material matter which he knows to be false, is guilty of perjury.”

Section 2726, Comp. Stat. 1921 is as follows:

"In cases of perjury, where the perjury is charged to have been committed in a court, it. shall be sufficient to show that the oath was administered by an officer of the court authorized so to do, or that the defendant testified and gave his testimony as under oath, or if the question be in doubt as to what particular officer administered the oath, it may be shown that it was administered by any officer authorized so to do.”

One of the important things to' be established where a defendant is being tried on a charge of perjury is that an oath was administered, and the false testimony given by the defendant under oath, and that the oath was administered by some officer having authority to administer the oath. There is no> testimony showing that the defendant in this case was sworn before he gave testimony in the case of State of Oklahoma v. Frank Dunkin and Cynthia Bower, alleged to have been false.

It is not deemed necessary to' consider the other errors assigned by the defendant, for the reason that the state failed to prove the defendant was under oath when it alleges he gave false testimony.

The case is reversed.

EDWARDS and CHAPPELL, JJ., concur.


author: EDWARDS, J. DAVENPORT, P. J.

text:
    R. W. HEWITT et al. v. STATE.
    No. A-7975.
    Nov. 28, 1931.
    Dissenting: Opinion Dec. 3, 1931.
    Rehearing Denied Feb. 5, 1932.
    (7 Pac. [2d] 495.)

      Wallace & Wallace and Streeter Speakman, for plaintiffs in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

R. W. Hewitt, Fred Browning, and Wallace Foreman, hereinafter called defendants, were convicted in the district court of Creek county of conducting a gambling game and were each sentenced to pay a fine of $500 and to> serve a term of one year in the state penitentiary. Fifteen defendants were jointly charged in the information. Only the three named were tried in this case.

The record discloses that at the time charged defendants with others were in the possession of a large building near the town of Oakhurst. This building was surrounded by a high wire fence. Within it was conducted a restaurant and cabaret with orchestra. Off from the dining room was what may be termed the gambling room, in which there were two crap tables, two roulette wheels, chuck-a-luck table, black jack table, money racks, chairs, cashier’s cage, dice, cards, chips, a bird cage for chuck-a-luck — the usual equipment for the old time gambling house. Photographs are in the record. At the time charged defendants had or had caused this equipment to be set up and were operating the gambling house. Some 60 persons were engaged in gambling when the officers entered. Defendants did not take the stand and offered no testimony.

Complaint is made that the information is duplicitous. The material allegations are:

“That they, the said R. W. Hewitt, Fred Browning and Wallace Foreman * * * did then and there unlawfully, wilfully and feloniously, open, conduct and carry on and cause to be opened, conducted and carried on in a certain house called and known as Beau Monde Club, situated and being * * * within the county of Creek, State of Oklahoma, and by them occupied and of which they had control and did then and there permit and cause to be set up and used for the purposes of gambling, certain tables, apparatus and devices, to wit:
“Roulette wheels, crap tables, poker tables, black jack tables, chuck-a-luck and divers other gambling devices, at which banking and percentage games were played with cards, dice, and wheel and ball for chips, money, credits and other representatives of value and were conducted by the said R. W. Hewitt, Fred Browning and Wallace Foreman. * * *”

Defendants assert this information charges both the misdemeanor defined by section 1926, and the felony defined by section 1938, Comp. Stat. 1921. These sections are:

“1926. Any person wlm shall permit any gaming table, bank, or gaming device prohibited by this article, to be set up or used for the purpose of gambling in any house, building, shed, shelter, booth, lot or other premises to him belonging, or by him occupied, or of which he has, at the time, possession or control, shall be, on conviction thereof, adjudged guilty of a misdemeanor, and punished by a fine not exceeding $200, nor less than $100, or by imprisonment in the county jail for a term not exceeding six months nor less than 30 days, or by both such fine and imprisonment in the discretion of the court.”
“1938. Every person who opens, or causes to be opened, or who conducts, whether for hire or not, or carries on either poker, roulette, craps or any banking or percentage, or any gambling game played with dice, cards or any device, for money, checks, credits, or any representatives of value, or who either as owner or employee, whether for hire or not, deals for those engaged in any such game, shall be guilty of a felony, and upon conviction thereof, shall be punished by a fine of not less than $500, nor more than $2,000, and by imprisonment in the state penitentiary for a term of not less than one year nor more than ten years.”

It will be seen that section 1938 is directed against the-person who opens, causes to be opened, conducts or deals the prohibited games. It denounces the opening, causing to be opened, conducting, or dealing such games as a felony. This statute is directed against one who actively does these prohibited things. Section 1926 is not directed against the person who actively does the things prohibited by section 1938, but against the person who permits another to use his property or property in his control for such purpose. If he does or causes to be done the prohibited act, he is guilty of a felony. If he permits another to use his property for the prohibited use, he is guilty of a misdemeanor. Moore v. State, 9 Okla. Cr. 9, 130 Pac. 517. Inspecting and analyzing the allegations to determine just what charge is made, it is evident the pleader is attempting to charge the active doing by defendants of the things forbidden by section 1938, and not the permitting of another to do them as prohibited by section 3926. Stripped of descriptive and formal matter, the information charges that defendants did “open, conduct, carry on and cause to be opened, conducted and carried on, the Beau Monde Club by them occupied and of which they had control, and did (permit and) cause to be set up and used for the purpose of gambling certain tables, etc.” The words “by them occupied and of which they had control” are not used in section 1938, but is a proper allegation in charging the offense defined by that section. The word “permit” is a departure from the terms of section 1938, and is in section 1926; if it were controlling or used alone with the allegations following it, defendants’ contention would be of much more force, but it is coupled with the word “cause,” i. e., “permit and cause to he set up,” etc. The mere throwing in of the word “permit” does not bring the charge under section 1926; it is a surplusage. In Reed v. State, 17 Okla. Cr. 662, 191 Pac. 1041, a conviction for felony under section 1938 was affirmed. The information there was in practically the same words as in the instant case. The objection of duplicity of the information was not made in the Eeed Case. The information here is not misleading and the trial court properly held it charged the felony defined by section 1938.

It is argued the search warrant is invalid and the evidence obtained thereby inadmissible for the reason the affidavit or complaint for the search warrant does not state that the personal property described is “concealed” nor name or describe the person to be searched.

The search warrant is issued under the general provisions of chapter 7, art. 19, Comp. Stat. 1921. Section 7009, Comp. Stat. 1921, pertaining to search warrants under the prohibitory liquor law, has no application. The affidavit or complaint is in positive terms and states that gambling paraphernalia, to wit, “roulette wheels, dice, crap tables, black jack tables and chips, are being kept and used for gambling in the described premises.” Affiant then sets out the source of his knowledge and states the place is a public resort where persons gather and congregate for the purpose of gambling. The warrant directs the search of the house and the seizure of the described gambling paraphernalia, if found therein. Sections 2877, 2878, and 2879, Comp. Stat. 1921, state the grounds on which a general search warrant may issue. These sections are:

“2877. It may be issued upon either of the following grounds:
“First. When the property was stolen or embezzled, in which case it may be taken on the warrant, from any house or other place in which it is concealed, or from the possession of the person by whom it was stolen or embezzled, or of any other person in whose possession it may be.
“Second. When it was used as the means of committing a felony, in which case it may be taken on the warrant from any house or other place in which it is concealed, or from the possession of the person by whom it was used in the commission of the offense, or of any other person in whose possession it may be.
“Third. When it is in the possession of any person, with the intent to use it as the means of committing a public offense, or in the possession of another to whom he may have delivered it for the purpose of concealing it or preventing its being discovered, in which case it may be taken on the warrant from such person, or from a house or other place occupied by him, or under his control, or from the possession of the person to whom he may have so delivered it.
“2878. A search warrant shall not be issued except upon probable cause, supported by affidavit, naming or describing the person, and particularly describing the property and the place to be searched.
“2879. The magistrate must, before issuing the warrant, take, on oath, the complaint of the prosecuting witness in wilting, which must set forth the facts tending to establish the grounds of the application, or probable cause for believing that they exist.”

Defendants contend that under these sections a search warrant can only issue, first, to search a person in possession of contraband, or, second, to search a place in which the property sought is concealed; that the search warrant is invalid because tbe affidavit or complaint does not name or describe any person to be searched, and it is not alleged nor claimed that the property is concealed but, on the contrary, was in a place of public resort.

The first subdivision of section 2877, supra, applies to property stolen or embezzled only. The second subdivision, for the taking of property from the possession of the person by whom it was used in the commission of an offense or of any other person in whose possession it may be, is broad enough to authorize the seizing of gambling paraphernalia being used as shown by the record in this case. It did not require a search of the person of any one to' discover this gambling paraphernalia, and it was not necessary that the warrant direct a search of any person. The third subdivision, for the seizing by search warrant of property in the possession of any person with intent to use it as a means to commit a public offense, is also broad enough to authorize a seizing of property of this kind when being used for gambling.

Under this assignment it is also urged the search was unlawful because the affidavit or complaint did not conclude, “against the peace and dignity of the state,” as required by section 19, art. 7, state Constitution, citing several cases, none of which are applicable to an affidavit or complaint for search warrant.

Section 2879, supra, refers to the affidavit for search warrant as a complaint. It is, however, a mere showing by affidavit in the nature of testimony to make to the magistrate a prima facie showing, of probable cause. The indictment, information, or complaint meant by section 19, art. 7, of the Constitution, are the formal pleadings under which a person is charged with an offense. It does not include the complaint or affidavit to procure a search warrant.

It is also argued the search warrant is void because directed to and served by Sam B. Turner, superintendent of the Bureau of Criminal Identification, and not by an officer named by the statute. Sections 2880, 2882, Comp. Stat. 1921. The warrant is directed to :

“Any sheriff, constable, marshal or policeman, or Sam B. Turner, Supt. of Okla. State Bureau of Criminal Identification and Investigation, in the county of Creek.”

By chapter 127, Session Laws 1925, the superintendent of the Bureau of Criminal Identification is made a peace officer and is given the power of sheriffs, constables, and municipal officers except in the service of civil process. The search warrant having been directed to him jointly with the other officers named, the holding of this court in the case of Dunn v. State, 40 Okla. Cr. 76, 267 Pac. 279, and Key v. State, 43 Okla. Cr. 450, 279 Pac. 931, is not in point. The superintendent having the power of a peace officer and the search warrant being jointly directed to him, service by him is valid.

Upon a consideration of the whole record, no material error is made to appear.

The case is affirmed.

CHAPPELL, J., concurs.

DAVENPORT, P. J.

(dissenting). In dissenting from the opinion of the majority of the court, I do so for the reason that, after a careful study and examination of the authorities, I have reached the conclusion that the information upon which the defendants in this case were tried is duplicitous. Omitting the caption and signature, the charging part of the information is as follows:

“That they, the said R. W. Hewitt, Fred Browning and Wallace Foreman, and other parties named in the information * * * did then and there unlawfully, wilfully, and feloniously, open, conduct and carry on and cause to be opened, conducted and carried on in a certain house called and known as Beau Monde Club, situated and being on the southeast quarter of the northwest quarter of section five (5), township eighteen (18) north, range twelve (12) east, and within the county of Creek, state of Oklahoma, and by them occupied and of which they had control and did then and there permit and cause to be set up and used for the purpose of gambling, certain tables, apparatus and devices, to wit:
“Roulette wheels, crap tables, poker tables, black jack tables, chuck-a-luck and divers other gambling devices, at which banking and percentage games were played with cards, dice, and wheels and ball for chips, money, credits and other representatives of value and were conducted by the said R. W. Hewitt, Fred Browning and Wallace Foreman, together with other parties named in the information.”

The defendants demurred to the information on the ground that it is duplicitous; which demurrer was considered by the court, overruled, and exceptions allowed.

The record further shows that at the conclusion of all the evidence the defendants again raised the question of the duplicity of the information, directing the court’s attention to the fact that the information, as the defendant contended, charged a misdemeanor and a felony in the same count. This motion was overruled and exceptions allowed.

The defendants then requested the court to instruct the jury that it might find the defendants guilty of the offense of permitting gambling tables and devices to be set up; which request was denied. The defendants insist in their brief that the information in one count charged both a misdemeanor and a felony. That the information charges a misdemeanor under section 1926, C. O. S. 1921, and a felony under section 1938, C. O. S. 1921.

Section 2558, C. O. S. 1921, in part is as follows:

“The indictment or information must charge but one offense; but where the same acts may constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be guilty of, the different offenses may be' set forth in separate counts in the same indictment or information.”

From a careful reading and study of the information in this case it is disclosed that the information contains the following provisions of section 1926, C. O. S. 1921:

“Any person who shall permit any gambling table, bank, or gambling device prohibited by this article, to be set up or used for the purpose of gambling in any house, building, shed, shelter, booth, lot or other premises to him belonging, or by him occupied, or of which he has, at the time, possession or control, shall be, on conviction thereof, adjudged guilty of a misdemeanor.”

The information contains the following provisions of section 1938, C. O. S. 1921, which defines the crime of conducting a gambling, game:

“Every person who opens, or causes to be opened, or who conducts, whether for hire or not, or carries on either poker, roulette, craps or any banking or percentage, or any gambling game played with dice, cards or any device, for money, checks, credits, or any representatives of value, * * * shall be guilty of a felony.”

It cannot be denied that the information in this case uses all of the necessary provisions of both sections of the statute hereinabove referred to, one of which makes the conviction a misdemeanor and the other a felony. The provisions in section 1926 make the permitting of gambling devices to be set up in a building by one who has possession and control of the building an offense, and there is sufficient language in the information to charge an offense under this statute; and these provisions are in no wise essential to the crime of conducting a gambling house, yet they are all charged in the same information. When in doubt as to whether the indictment or information 'Charges a felony or misdemeanor, the defendant should be given the benefit of the doubt, and the offense charged should be held to be a misdemeanor. Bowes v. State, 8 Okla. Cr. 277, 127 Pac. 883.

From a comparison of the sections of the statute with the allegations in the information it is clear to me that the information charges two offenses, one a misdemeanor and the other a felony.

In Kimbrell v. State, 7 Okla. Cr. 354, 123 Pac. 1027, 1028, this court, in the body of the opinion, said:

“It is true that in the case of De Graff v. State, 2 Okla. Cr. 540, 103 Pac. 538, this court expressed the opinion that, where an information or indictment charged more than one offense, the state might elect the count upon which the trial should proceed; but upon more mature reflection we are satisfied that we were wrong in saying that this could be done. If it is permissible to incorporate more than one offense in the same indictment or information, then an indefinite number of offenses might be so incorporated; and when the case was reached for trial the state might dismiss all of the counts in the indictment or information, except as to one offense. The purpose of the Constitution is that a defendant shall be informed as to the specific offense for which he is to be tried, in order that he may prepare for trial. It would be a violation of the letter and spirit of our Constitution, and also of our statute, to inform a defendant of a number of different offenses, and require him to prepare- for trial on all of them. This would give to the state the right to- elect, when the trial began, which count would be pressed against the defendant. This would be a regular ambuscade, and would be a mockery on justice. We are of the opinion that an indictment or information must charge but one offense; and, where more than one offense is charged, it is bad for duplicity, and, upon objection being made to an indictment upon this ground, the case should be dismissed.”

Kimbrell v. State, supra, is cited with approval in Weitz v. State, 24 Okla. Cr. 56, 215 Pac. 962.

This court has had the question of the duplicity of the information or indictment before it many times for consideration. Clark v. State, 5 Okla. Cr. 704, 115 Pac. 377; Kime v. State, 14 Okla. Cr. 111, 167 Pac. 1159; Williams v. State, 16 Okla. Cr. 54, 180 Pac. 559.

In Keenan v. State, 33 Okla. Cr. 400, 243 Pac. 1001, the court in the first paragraph of the syllabus says:

“The information does not come within the scope of section 2558, Comp. Stat. 1921, which provides that an indictment or information must charge but one offense, but that where the same act may constitute different offenses, the different offenses may be set out in different counts in the same information and the accused may be convicted of either offense, because the facts charging the making of mash and the facts constituting the erection and possession of a still constitute two distinct transactions and charge two separate offenses.”

The opinion by the majority of the court goes into the analysis of the two sections on the question of gambling and maintaining a gambling house, and held the information good on the theory that the language was not applicable to the offense of which the defendants were convicted, and to be surplusage, and in support of its contention cites Reed et al. v. State, 17 Okla. Cr. 662, 191 Pac. 1041. An examination of the Reed Case shows that the question of the duplicity of the information was not raised by the defendants. The only question raised in the Reed Case is the question that the information did not state facts sufficient to constitute a cause of action against the defendants.

It is further disclosed in the Reed Case that while the language used in the information is similar to the language used in the information in this case, the duplicity of the information was not called into question and the court was not given an opportunity to pass upon the same. In the Reed Case the defendants were convicted of operating and conducting prohibited gambling houses, and this court held that the evidence was sufficient.

In this case the state proceeded to trial after the demurrer to the information, on the ground of duplicity, had been overruled, and introduced its testimony which resulted in a conviction of the.three defendants an trial.

There are many other questions raised by the defendants in this case that are of vital importance and to my mind were prejudicial to the rights of the defendants and- deprived them of that fair and impartial trial guaranteed to them under the Constitution and laws of this state. Our statutes provide-that in charging a defendant with crime the indictment or information must set forth the acts constituting the offense in ordinary and concise language. It also provides that a demurrer may be filed on the ground that the information does not state facts sufficient to constitute a public offense, and that more than one offense is charged in the information or indictment.

I have carefully considered the record, and the briefs of the plaintiffs in error and the state in this case, and in my opinion the court erred in overruling the demurrer of the defendant on the ground that the information was duplicitous and charged more than one offense. The demurrer of the defendants should have been sustained. For the errors herein mentioned, the case should be reversed, with directions to the court below to sustain the demurrer and proceed further in the case as provided by law.


text:
    Ex parte DICK CANTERBURRY.
    No. A-8335.
    Feb. 8, 1932.
    (8 Pac. [2d] 1116.)
    Darnell & Larue, for petitioner.
    J. Berry King, Atty. Gen., Jess L. Ballard, Asst. Atty. Gen., and H. E. Thompson, Co. Atty., for the State.
   PER CURIAM.

Petitioner, Dick Canterburry, alleges that he is wrongfully restrained of his liberty by, J. R. Greer, sheriff of Custer county, Okla., and-Boucher, sheriff of Gove county, Kan., by reason of an extradition warrant which authorized the immediate arrest of the petitioner to take him back to Kansas to answer a charge of bank robbery.

Petitioner further alleges that said purported charge of bank robbery is alleged to have taken place on the 15th day of October, 1931; that he has never been in the state of Kansas; that on the date of said alleged robbery he was in Washita county, Okla., and never left the county of Washita, on the 15th day of October, 1931; that he had no knowledge the said bank was going to be robbed and did not know the bank was robbed until he was so advised by the officers of the law after he was arrested and placed in jail.

After hearing the evidence offered in support of the petitioner and the state of Kansas, and the argument of counsel, this court finds that the testimony fails to establish that the petitioner is a fugitive from justice; there being no testimony to show that he was ever in the state of Kansas, either before or at the time of the alleged robbery.

It is therefore ordered that the writ be awarded, and the petitioner discharged.


text:
    CHARLIE PATTERSON v. STATE.
    No. A-8037.
    Jan. 30. 1932.
    Rehearing Denied Feb. 19, 1932.
    (12 Pac. [2d] 702.)

      Mauntel & Spellman, Freeling & Box, and Owen F. Renegar, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Woodward county of the crime of robbery with firearms in the robbing of the Sharon State Bank of said county, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of 32 years.

Defendant was charged in 1925, and upon conviction appealed to this court. The case was reversed September 14, 1929, being reported in 44 Okla. Cr. 298, 280 Pac, 862.

On May 19, 1930, the case was again tried with verdict and judgment as above set forth, and is again before this court on appeal.

Defendant contends that the court erred in overruling his objection to the introduction of evidence at the beginning of the trial, for the reason that he had not been served with a list of the witnesses to be called by the state at least two days before the case was called for trial.

It appears from the record that on the 12th day of September, 1925, the state served upon the defendant a list of the witnesses to be used against him in the trial of the case; that on September 28, 1925, an additional list of witnesses was served upon defendant; that on the 6th day of March, 1930, the court ordered the names of additional witnesses indorsed upon the information; and that this order was served by the sheriff upon the defendant.

Article 2, section 20, of the Constitution provides, among other things:

“* * * And in capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief, to prove the allegations of the indictment or information, together with their postoffice addresses.”

This requirement is to enable defendant to interview the witnesses, to ascertain if possible what they will testify to, and to learn something of their character in the community where they reside to enable him in his defense to meet their testimony.

Where, in a case like the one at bar, the list of witnesses was served on the defendant more than two days before the trial, and where, upon appeal to this court from a conviction, the cause is reversed, it is not necessary for the state to again serve its list of witnesses upon the defendant.

Defendant next contends that the evidence is insufficient to support the verdict of the jury.

Jack Brackett and R. B. Brackett, owners of the Sharon State Bank, positively identified the defendant as one of the robbers; L. E. Wheeler and Pearl L. McNeil testified to seeing defendant in Sharon that morning, near the front of the bank.

There can be no doubt from this" evidence of the guilt of defendant.

The cause is therefore affirmed.

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


text:
    J. E. ANDING v. STATE.
    No. A-8271.
    Jan. 15, 1932.
    Rehearing Denied Feb. 19, 1932.
    (12 Pac. [2d] 705.)
    C. B. Leedy, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, for convenience hereinafter referred to' as the defendant, was by information charged jointly with Oris Sober of the crime of larceny of domestic fowls, to wit, chicken hens; was tried separately, convicted, and sentenced to serve a term of three years in the state penitentiary. Motion for a new trial was filed, considered, overruled, and exceptions saved.

The record discloses the prosecuting witness C. D. Jeffreys and his wife to be a brother-in-law and sister-in-law of the defendant; that for some time prior to the date of the alleged larceny the two families were not on good terms; did not visit or speak to each other; each of the families raised chickens; the defendant and his wife bought eggs from the prosecuting witness and hatched the chickens; both families had chickens raised from the same flock.

It is further shown that the defendant sold chickens on the 18th of November, 1930, to R. R. Richards, at Harmon; that the prosecuting witness and his wife left home about noon November 19, 1930, and returned before dark of that day; two days later they claim to have missed 30 of their chickens; they began a search to see what had become of them, going to several towns near where the prosecuting witnesses resided. Jeffrey learned that the defendant sold some chickens at Harmon and inspected some of the chickens that Mr. Richards had in his pounltry pens and claims to have identified one of his chickens — a pet hen that was a part of the flock of chickens owned by himself and wife.

The record further discloses that Oris Sober, C. D. Jeffrey, and J. N. Anding married sisters; that all the witnesses are related, and that this is what might be termed in law a family quarrel or feud. There is some testimony tending to show that the defendant and Oris Sober had been seen together near the home of the prosecuting witness on November 19,1930.

R. R. Richards, of Harmon, was not positive, thought he bought sixteen chickens about the middle of November, but did not remember exactly the date. The defendant, his wife, and his sister, Audry Sober, testify that the defendant’s wife got eggs from Mrs. Jeffrey; that they caught 26 chickens on November 18, 1930; 21 of the chickens were sold at Harmon; that the defendant, when he returned from Harmon, on the 18th of November, 1930, brought the others back home with him.

The prosecuting witness and Mrs. Jeffrey did not know when their chickens were taken; they claim to have had a pet hen that was found at the poultry yard, at Harmon, and when Jeffrey brought the hen home and turned it loose it went to the feeding place at once and began eating. The defendant did not identify any of the chickens in the poultry yard but this pet hen.

The proof on behalf of the defendant shows that at the time of the alleged larceny of the chickens the defendant and his wife had about 138 chickens, about fifty of them were mixed breed; that he brought five chickens back home with him from Harmon, three were dead when they reached home, and he returned one rooster and a pet hen.

The prosecuting witness claims to have lost 30 chickens ; while the defendant claims to have sold 21; the merchant who bought the chickens was not positive, but thought he only bought 16. There is no proof in the record that the defendant sold, or offered to sell, as many as 30 chickens. The defendant admits he sold 21 to R. R. Richards on November 18, 1930, and his testimony tends to show that the chickens were from the same flock of chickens as those owned by the prosecuting witness and his wife; that he lived near a family who owned some of the same kind of chickens and sold his chickens in order to get a. different breed so it would not be so difficult to keep track of the chickens he raised.

The defendant’s wife testified to the pet hen that was returned, and described it as being one belonging to their flock as accurately as the prosecuting witness identified the pet hen she claims to have owned, and that it was recovered at the Richards poultry yard.

The-first question discussed by the defendant is that the verdict is not supported by sufficient evidence, and is contrary to the evidence; that he was denied a fair and impartial trial. A careful examination of the record clearly shows a conflict in the testimony, and further shows the prosecution in this case is largely based upon the enmity that existed between the prosecuting witnesses and defendant and his family. The testimony is positive on behalf of the state that the pet hen which was secured at the Richards poultry house was the hen belonging to the prosecuting witnesses, C. D. Jeffrey and wife. On the contrary, the testimony on behalf of the defendant is positive that the hen was a pet hen belonging to the defendant and his wife.

The question of the conflict in the testimony was a question for the jury to decide, and the jury decided the facts against the defendant and found him guilty. The defendant urges the court committed error in the rejection of certain testimony, and that by reason of that fact he was prejudiced before the jury. The court permitted the defendant and his wife to refresh their memory from certain entries on calendars they claimed were made by them each day as the work was done, and on cross-examination the county attorney asked the defendant and his wife if the calendars were not made up for the purpose of the trial, and the witnesses answered that they had not been made up for the purpose of the trial. When the calendars were offered in evidence, the state objected, and the court sustained the objection; the calendars were offered by the defendant for the purpose of showing the entries made on the calendars had not been recently made.

It is clear from the testimony that the prosecution in this case is the result of a family row or feud. When families fall out, there seems to be nothing too mean to be said or done by the factions.

After considering the facts in this case and the value of the chickens alleged to have been taken, and the fact that the prosecution seems to be the outgrowth of a family row or feud, the punishment should be modified. That the einds of justice will be met by reducing the punishment to one year, and, as modified, the judgment is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    LLOYD ADAMS et al. v. STATE.
    No. A-8229.
    Feb. 19, 1932.
    (8 Pac. [2d] 1115.)
    Hughes & Hughes, for plaintiffs in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiffs in error, hereinafter called the defendants, were jointly charged with the crime of transporting intoxicating liquor, were convicted, and Lloyd Adams sentenced to- pay a fine of $100, and imprisonment for 30 days in the county jail; G. W. Ross was sentenced to pay a fine of $50, and imprisonment in the county jail for 30 days, and appeal.

The record in this case was filed in this court on August 27, 1931; no brief has been filed in support of the defendant’s assignment of errors. A careful examination of the record discloses no fundamental error, and the evidence is sufficient to support the verdict of the jury.

The case is therefore affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    S. E. HENSON v. STATE.
    No. A-7990.
    Feb. 19, 1932.
    (8 Pac [2d] 692.)
    Joe W. Simpson and Ed Crossland, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of grand larceny, and his punishment fixed at a term of two and one-half years in the state penitentiary.

Defendant was jointly charged with one Ridenour and one Castleman with the larceny of oil well casing of the value of $419. He was tried separately. The pipe was stolen from a lease in Washington county, was moved from there to Tulsa, and was later moved and sold in Pawnee county.

At the preliminary Ridenour testified for the state. At the time of the final trial he was out of the state, and transcript of his testimony taken at the preliminary was used. In the final trial Castleman testified for the state.

Defendant contends that the testimony of the claimed accomplices is insufficient to connect him with the original taking, and that, if the evidence of the accomplices should be held sufficient for this purpose, there is no corroboration of the claimed accomplices tending to connect him with the original taking. That the pipe was stolen by Ridenour and Castleman as alleged, was taken to Tulsa where it was put at one location and in two or three days by different trackers moved to another location and later moved to Pawnee county, is beyond dispute. The only testimony tending to connect defendant with the original taking is a single question propounded to Castleman and his answer as follows:

“* * * Q. Go ahead and tell what was said, and where it was? A. Well, he agreed on some pipe, Charlie Ridenour asked Henson if he knew where we could sell a string of hot pipe, and Henson said he could sell all we could get, if we would split the money three ways with him. * * *”

This was not followed up by any testimony that defendant knew that any pipe was to be stolen or agreed that the two claimed accomplices were to steal pipe and deliver to him. Ridenour did not testify to the same effect as Castleman. The substance of his testimony is that the conversation testified to by Castleman was after tbe pipe had been stolen and was at Tulsa. This appears in his testimony:

“* * * Q. The first you heard of the pipe was when it was in Tulsa at Thirteenth and the Midland Valley tracks? A. Yes, sir, that is the first; I never had seen it before at all. * * * By the Court: Q. When is the first time that- you learned anything about this pipe deal? A. It was when I went to see Posey Short. * * * Q. Is that the first time you had heard anything about this pipe? A. Yes, sir. Q. Where was the pipe at that time? A. It was out on the Midland Valley tracks between Eleventh and Thirteenth. * * * Q. Well, what was said to you at that time about the pipe, that first time that you heard about the pipe, what was said to you and who said it, the first time? What I want to get at is the first time you ever heard about this pipe; was it in West Tulsa? A. Yes, sir. * * * Q. Now, who said it to you at that time — who told you about it? A. Mr. Castleman is the one that told me where the pipe was. Q. What did he tell you? A. Told me he would go three ways with me; told me where the pipe was. * * *”

There is evidence of a dispute and difficulty having arisen between defendant and Ridenour over the division of the money received after the pipe was sold. There is sufficient proof of defendant’s connection with the pipe after it had been stolen and was in Tulsa. This tends to prove a receiving of stolen property or an accessory after the fact of the crime of larceny. Section 1522, Comp. St. 1921; Jolliffee v. State, 21 Okla. Cr. 278, 207 Pac. 454; Vann v. State, 21 Okla. Cr. 298, 207 Pac. 102. The evidence that defendant was connected with the original taking of the property stolen is insufficient.

The case is reversed and remanded.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    JIM ENGLAND v. STATE.
    No. A-8247.
    Feb. 19, 1932.
    (8 Pac. [2d] 690.)
    Hughes & Dickson, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Texas county of the unlawful transportation of intoxicating liquor, and his punishment fixed by the jury at a fine of $50 and imprisonment in the county jail for a period of 30 days.

The evidence of the state was that the defendant came to the courthouse of Texas county and through the office of the county attorney into the office of the county judge; that he began a conversation with one of the county commissioners over the highway; that the county judge and the county attorney withdrew to another room and after some talk returned; that, when defendant got up to leave the judge’s office a pint bottle of whisky fell out of his clothes on the floor and was broken.

Defendant, testifying for himself, said he came to town for a different purpose, but after he got there he came into the courthouse to see Judge Dickson; that he had a civil suit pending; that as he went to the courthouse he met a fellow named John Edwards that he had worked and traded with some; that Edwards told him he had something for him; that he went on to the courthouse; that, after he got up in the courthouse, this Johnnie came up; that he heard him open and close a door; that he pushed the door and said “ ‘Here is something for you,’ and handed me a bottle”; that he pulled his overcoat open and put it in the belt of his trousers; that he knew that it was whisky; that he had never seen Edwards since; that he had not tried to find him.

The witnesses for the state swore that nobody came into the room, and that nothing was handed to defendant while he Avas in the judge’s office.

The evidence of the state shows a brazen effrontery on the part of defendant in bringing his whisky into the office of the court and the county attorney.

Defendant’s contention is that the evidence is insufficient to; support the charge of transportation, because he received the whisky from another man in the office of the judge, and that the taking of the whisky from one room to another in the same office would not be transportation.

The question of where and when the defendant received the whisky and hoAV it reached the office of the county judge were questions of fact to be determined by the jury. They were not bound to believe the story of defendant that the whisky was handed to him by a third party in the outer room of the judge’s office. If that was the only question in the case, the cause should be affirmed.

Defendant next contends that the court erred in giving instructions Nos. 4 and 5, which read:

“You are further instructed that the taking or carrying of whisky from one room, or part of a building, to another room, or part of the same building, not a public building, is not transportation of intoxicating liquor, under our law, unless you should find from the facts and circumstances, that said transportation of intoxicating liquor was intended for an illegal purpose; then, and in that event, the distance that said intoxicating liquor was transported is immaterial, and the defendant would be guilty of the transportation of intoxicating liquor, even though said transportation was from one room, or part of a building, to another room, or part of the same building.”
“You are further instructed that the conveying, of intoxicating liquors from one public office to another public office, although both of said public offices are in the same building, is transportation of intoxicating liquors, under our law; but should you find that the room to the west of the room actually occupied by said county judge and county court reporter was. a part of the county judge’s office, then said two rooms would be considered as the county judge’s office, and constitute one public place, and the transportation from one of said rooms to the other room would not be transportation, under our law, unless said transportation was for an illegal purpose.”

The instructions complained of were both erroneous.

First, because it is unnecessary to either allege or prove intent in such a case.

In Maynes v. State, 6 Okla. Cr. 487, 119 Pac. 644, this court said:

“It is not necessary for an information or indictment, charging the unlawful conveyance of whisky from one place to another in this state, to contain an allegation that the whisky is being conveyed for an unlawful purpose, nor for the proof to so show.”

In Barnett v. State, 31 Okla. Cr. 413, 239 Pac. 680, 681, this court said:

“Any transportation of liquor from one place to another, particularly where there is a change in the physical possession of the liquor, is illegal, notwithstanding the transporter may have intended it for his own use.”

Second, the instructions complained of are erroneous in that they do not correctly state the law of transportation.

In De Graff v. State, 2 Okla. Cr. 519, 103 Pac. 538, this court said:

“The removal of liquor from one room in a house to another room in the same house is not an offense within the meaning of the law. Each house constitutes but one place.”

In Nowlin v. State, 43 Okla. Cr. 305, 278 Pac. 398, this court said:

“ 'Place’ as used in the Compiled Statutes 1921, § 7002, forbidding conveying of intoxicating liquor, means, 'region or locality.’ ”

In the body of the opinion, this court said:

“The gist of the offense charged in this case is the conveyance from one place to another. The word 'place’ has a variable meaning; as used in the statute it means 'region or locality.’ ”

In Proctor v. State, 8 Okla. Cr. 537, 129 Pac. 77, 78, this court said:

“On the essential ingredient of the offense charged, that there must be a conveyance from a place beyond the premises of the defendant.” Boswell v. State, 26 Okla. Cr. 193, 223 Pac. 208; Wilder v. State, 34 Okla. Cr. 291, 246 Pac. 660; Davis v. State, 38 Okla. Cr. 39, 259 Pac. 172.

In Shirley v. State, 31 Okla. Cr. 174, 237 Pac. 627, this court said:

“Where one is charged with the illegal transportation of liquor, the distance which the liquor is conveyed over streets, alleys, and public places is immaterial.”

Another vice of these instructions is that they permitted the jury to find defendant guilty, even though they believed his story that another person handed him the whisky in the office of the judge, and he merely carried it into another room of the same office.

For the error in giving the instructions complained of, the cause is reversed.

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