text:
    CARL BERRY et al. v. STATE.
    No. A-6696.
    Opinion Filed August 17, 1929.
    (279 Pac. 982.)

      Tom Payne, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the superior court of Okmulgee county of the crime of robbery with firearms, and each sentenced to serve a term of five years’ imprisonment in the state penitentiary.

The information charged these plaintiffs in error jointly with one Blanche Berry, the wife of Carl Berry, with robbing W. H. Caswell and Mrs. W. H. Caswell of $810 in money and notes of the value of $435. On the trial the court instructed the jury to return a verdict of not guilty as to Blanche Berry.

Carl Berry and his wife, Blanche Berry, lived in the city, of Henryetta at the time of this robbery. Carl Berry was employed as an automobile salesman previous to that time, but had worked in the lead and zinc mining business in connection with the smelters. The defendant E. E. Smith also lived in Henryetta and roomed at a rooming house known as the “Yale Booms.” At the time of this robbery he was employed in a smelter, and previous to the robbery had worked with the defendant Carl Berry, and they were well acquainted with each other. Carl Berry also bad held a commission as deputy sheriff of Okmulgee county some time previous to the commission of this offense.

W. H. Caswell and his wife, who' were the victims of the robbery, lived at Spelter City in a one-room shack, and Caswell was connected with the mining business. The Berrys and the Caswells became acquainted with each other through the purchase of an automobile by the Cas-wells some two or three months before this robbery occurred. This automobile was purchased from the people for whom Berry was working. Some time after the purchase of this automobile, which was paid for by the Caswells in cash, Berry negotiated the sale of a note, that he held secured by a mortgage on an automobile, to the Caswells. This note amounted to $225, but Berry sold it to the Caswells for $200, and at the time the Caswells paid him the money, which was at their house, Mrs. Cas-well took the money out from under a pillow on a couch, and Berry at that time saw the way the Caswells had of keeping their money, to wit, in a paper bag. After Berry had sold the Caswells the note, he told them to put the note in the bag with the money, and to always keep the note and the money together.

Some weeks later to this transaction, and just a short time before the robbery, according to the testimony of the Caswells, Berry borrowed $175 from them, giving a mortgage on his own Essex car to secure the payment of the same. Caswell gave him $150 in cash, discounting the loan in the sum of $25. This note of Berry’s was also placed in the paper bag with the money, and at the time Berry told them that, if they were ever out with him, always to take the money and the notes with them, and they would be perfectly safe.

This robbery occurred on the 17tb of September, 1926. On the evening previous to that date, Berry took the Caswells to the Free County Fair at Okmulgee, and when returning from the same it appears that they passed a man who evidently was drunk, driving an automobile, and the subject of intoxicating liquor was brought up, and Berry asked the Caswells if they ever drank any wine, and was told by them that they liked wine. Whereupon Berry suggested that he knew a man who had some very good wine; that the man had given him a drink of it the day before, and in the course of the conversation it was arranged that on the following evening the Berrys should take the Caswells out to this place, which was over in McIntosh county, to get some wine. On the trip after the wine in McIntosh county, the party was held up and robbed. Mrs. Caswell threw the paper sack, with the money and notes, in the weeds, and the robber failed to get that. Berry then proposed they return home, as they had no money to buy wine. Mrs. Caswell then told them that she had thrown the money and notes in the weeds, and Berry then proposed that they go on, which they did. When they reached the place where the wine was supposed to be kept, Berry got out of the car and left them for 10 or 15 minutes. On the way home they were held up again, and Mrs. Caswell' again threw the money and notes in the paper sack in the weeds; but the robber, without paying much attention to searching the parties, went out into the weeds and found this sack, and got on the back of the car and forced them to drive him to Spelter City. The Caswells postively identified Smith as the person who robbed them both times. There is evidence in the record showing that Berry and Smith were well acquainted, and that they were seen together in the Yale Booms the night before the robbery, and that Berry drove by this garage where Smith worked on the evening of the robbery, and waved at some person in the garage, but it was not shown who that person was.

Smith’s defense was an alibi, and Berry’s that he was the innocent victim of a high-jacker. It is first urged by the defendant that the evidence is insufficient to support the verdict. This court has repeatedly held that, where the evidence is conflicting, and where there is competent evidence in the record to support the verdict of the jury the cause will not be reversed for insufficiency of the evidence. While the evidence on the part of the state is mostly circumstantial, it is sufficient to support the verdict of the jury. Under all the facts and circumstances shown by the evidence in this case, an honest jury could not have returned any other verdict, except guilty.

It is next contended that the information is insufficient to charge the crime of robbery. The charging part of the information is as follows:

“* * * That the said Carl Berry, Blanche Berry and E. E. Smith, at and in the county of Okmulgee and the state of Oklahoma, on the said 17th day of September, 1926, then and there being and then and there acting conjointly and together, did then and there knowingly, willfully, wrongfully, unlawfully and feloniously make an assault on and upon one W. H. Caswell and Mrs. W. H. Caswell with a certain weapon and firearm, to wit, a revolver, by pointing said weapon, firearm and revolver at the said W. H. Caswell and Mrs. W. H. Caswell, then and there placing and putting the said W. H. Caswell and Mrs. W. H. Caswell in fear of immediate injury to their lives and persons by threatening to shoot and kill them, the said W. H. Caswell and Mrs. W. H. Caswell with the said firearm and revolver, and did then and there by the force and fear aforesaid produce in the minds of them, the said W. H. Caswell and Mrs. W. H. Caswell, such fear of unlawful and immediate injury to their lives and persons as was sufficient to and did overcome all resistance of the said W. H. Caswell and Mrs. W. H. Caswell, and while the said W. H. Caswell and Mrs. W. H. Caswell were under the influence of the fear aforesaid the said defendants, Carl Berry, Blanche Berry and E. E. Smith, and each of them, did then and there unlawfully, willfully, wrongfully and feloniously take, steal and carry away from the persons and possession and immediate presence of the said W. H. Caswell and Mrs. W. H. Caswell, the sum of $810.00, good and lawful money of the United States of America, and notes of the value of $435.00, good and lawful money of the United States of America, of the personal property of the said W. H. Caswell and Mrs. W. H. Caswell, and with the unlawful, willful, and felonious intent then and there of them, the sáid Carl Berry, Blanche Berry and E. E. Smith, and each of them, then and there to convert and appropriate said property to their own use and benefit and to permanently deprive the true owners thereof, contrary to the form of the statutes, in such cases made and provided, and against the peace and dignity of the State.”

In this connection it is contended that the information is indefinite and uncertain, in that it does not sufficiently apprise the defendants of the crime attempted to be charged, so as to enable them to prepare a defense thereto. It is argued that the information both charges the defendants with robbery from the person and possession of W. H. Caswell and Mrs. W. H. Caswell, and also from the immediate presence of said persons, of money and notes, and it is contended that the defendants were placed on trial and required to defend against two separate and distinct charges — the first charge being that the defendants took the money and notes from the persons and possession of the Caswells; and, secondly, that they took the money and notes from the immediate presence of the said Caswells. In support of this contention defendants cite the case of Slover v. Territory, 5 Okla. 506, 49 Pac. 1009, in which case an indictment was held to be defective because the charge was stated in the disjunctive, which is entirely different from the manner in which this charge is stated. Here the manner of committing the crime is stated in the conjunctive, to wit: “Prom thé persons and possession and immediate presence of the said W. H. Caswell and Mrs. W. H. Caswell.”

This court has repeatedly held that, where a statute enumerates several acts or ways disjunctively, which separately on together constitute the offense, the indictment or information, if it charges more than one of them, which it may do in the same count, should do so in the conjunctive. Adams v. State, 5 Okla. Cr. 352, 114 Pac. 347; Snoddy v. State, 30 Okla. Cr. 235, 235 Pac. 248; Campbell v. State, 31 Okla. Cr. 39, 237 Pac. 133.

The information in this case charges that the defendants took this money and property both from the persons and possession, and also from the immediate presence, of the said W. H. Caswell and Mrs. W. H. Caswell. Of course, 'if the defendants took it from the persons and possession of the Caswells, they also took it from their immediate presence, and the state under a charge of this kind would have a right to prove that the defendants took the money and notes from the immediate presence of the Caswells, even if they did not take it actually from the persons and possession of the said Caswells, because the charge is lodged in the conjunctive, instead of disjunctive, and the defendants were charged with the knowledge of the fact that the state might prove either a taking from the persons and possession, or from the immediate presence, or both, and the defendants could not claim surprise, or that they had been misled by a charge of this bind, made in the conjunctive.

It is also contended that the information is insufficient, in that it fails to make a particular description of the notes alleged to have been taken at the time of the robbery; that the description “notes of the value o;f f435.00” is not a sufficient description of said notes, in that it does not set out the dates, the amounts of the notes, the payees or payors on said notes, nor the dates when the notes became due. This description was sufficient to sustain a charge of robbery.

In the case of Hill v. State, 19 Okla. Cr. 406, 200 Pac. 253, 254, this court said:

“Generally speaking, * * * robbery is a larceny with aggravated features added, and the larcenous taking of money or goods of any value from the person of another, or in his presence against his will, by force, or by putting in fear, is robbery.”

Section 1788, C. O. S. 1921,As as follows:

“When property is taken under the circumstances required to constitute robbery, the fact that the property was of trifling value does not qualify the offense.”

In a robbery case, the value of the property taken is immaterial; it being sufficient merely that it has some value, although that value may be trifling. This court will take judicial notice of the fact that $810 in money was of some value; also that $435 in notes, alleged to be of the value of $435, was presumably of some value, and this not being a larceny case would be sufficient to sustain an allegation of value as to the commission of the crime of robbery, where it is only necessary to prove that the property itself was of trifling value.

It is next contended that the trial court erroneously permitted the state to impeach the defendant, Carl Berry. In this connection it is argued by the defendant that the state had no right to cross-examine the defendant as to his associations with his codefendant, Smith, unless the defendant had touched that subject on the examination in chief. At page 325 of the case-made the defendant in his examination in chief was asked the following question by his counsel:

“Q. Was E. E. Smith here, your codefendant, the man that held you up and robbed you in McIntosh county or at Spelter City? A. No. sir.”

The state on cross-examination asked the defendant if he was acquainted with Smith, and when he said he was he was asked how long he had known him, and the defendant was then asked if he had been with Smith the night before the robbery. The defendant objected to this cross-examination, for the reason that, the defendant having not opened up the subject, it was improper cross-examination. This examination was proper for at least two reasons: First, the state had a right to lay the predicate to impeach the testimony of the witness; and, secondly, because, when the defendant testified that Ms codefend-ant, Smith, was not the man who had robbed them, the state had a right on cross-examination to go into the question of his acquaintance with Smith, how often and when he had seen him, and what their relations were. The defendant denied that he had seen Smith the night before. The state then produced a witness on rebuttal who testified that she had seen the defendant and Smith, his codefendant, on the night previous together at Smith’s room in the Yale Hotel. This court has held that, when the defendant presents himself as a witness and voluntarily takes the witness stand as a witness in his own behalf, he waives all privileges to which he is entitled by remaining silent, and subjects himself to the same rules of cross-examination and impeachment as any other witness. Davis v. State, 35 Okla. Cr. 156, 249 Pac. 164; Radney v. State, 36 Okla. Cr. 240, 253 Pac. 913.

The association of the defendant Berry with the defendant Smith, immediately prior to the commission of this robbery,, was a matter material to be inquired into, and the defendant’s attorneys could not foreclose this line on cross-examination on the part of the state by failing and refusing to ask the defendant Carl Berry about it on his examination in chief. But in this case the defendant had opened up the subject by denying that his codefendant, Smith, was the man who had committed the robbery. This court has also held that the acts and conduct of the witness, variant from his testimony and inconsistent therewith, may be shown for the purpose of weakening the testimony of such witness. Gibbons v. Territory, 5 Okla. Cr. 212, 115 Pac. 129; Meadows v. State, 33 Okla. Cr. 330, 244 Pac. 58.

If the jury believed that the witness Carl Berry testified falsely as to his association with Smith prior to the commission of this crime, the jury had the right and privilege to believe that he probably testified falsely as to other material facts in the case, and the jury was at liberty to entirely disregard the testimony of Berry. It is apparent, therefore, that it was perfectly proper for the state, not only to cross-examine the defendant Berry upon the subject of his association with Smith immediately prior to the commission of this crime, and also that it was proper, if the defendant Berry denied any such intimate association as would probably convince the jury of his connection with Smith in the commission of this crime, for the state to impeach him as a witness, the same as it would have impeached any other witness on a material matter involved in the case.

Tbe evidence convinces ns beyond a reasonable doubt of tbe guilt of tbe defendant. Under tbe guise of friendship, Berry induced this old couple to go with him on a pretended trip to procure some wine for Mrs. Caswell, who bad been sick. He induced them to carry their money and notes with them on this trip, and by a prearranged plan with bis codefendant Smith they were robbed of their lifetime savings.

The errors of law complained of by tbe defendant not being fundamental, and the evidence being sufficient to support tbe verdict, the cause is affirmed.

EDWARDS, P. J., concurs.

DAVENPORT, J., absent.


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    L. E. CARMICHAEL v. STATE.
    No. A-6418.
    Opinion Filed June 30, 1929.
    Rehearing Denied August 18, 1929.
    (279 Pac. 515.)

      See, also, 32 Okla. Cr. 429, 241 Pac. 1117.
    White & Reid and Lunsford & Windham, for plaintiff in error.
    Edwin Dabney, Atty. Gen., J. H.-Lawson, Asst. Atty. Gen., and Jas. S. Babb, Co. Atty.,, for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Le Flore county of manslaughter in the first degree and was sentenced to a term of 15 years in the state penitentiary.

Prior to September 8, 1925, defendant and L. E. Thrasher, the deceased, were joint owners and officers of the local telephone company at the city of Poteau. They were brothers-in-law, having married sisters. Differences had arisen between them over the management of the company, and there was considerable ill feeling. Mamie Fries was auditor and bookkeeper and performed some duties as office manager for the company. On the morning of the date charged, Thrasher and Mamie Fries opened the office. Thrasher seated himself at a desk sorting the long distance call tickets of the previous day, and Mamie Fries engaged in office work. In a short time defendant came into the office. There are two versions in sharp conflict as to what then took place. Mamie Fries testified : That when defendant came in Thrasher was seated at the desk at work, and the witness was just finishing some work on the typewriter. Defendant said: “Thrasher, can I see you a minute?” Deceased answered: “Yes.” Defendant closed the front office door, which locked itself, then came around and closed the operators’ restroom and locked it, put a stool by Thrasher, and told witness to take the stool, that he wanted to talk to them, and he then took the chair just left by witness, who seated herself on the stool by Thrasher. Defendant then said: “Thrasher, what are you going to do about the business?” Thrasher continued his work and said: “Nothing, Lewis; you started this thing. You wanted to do it, and I am leaving it up to you.” Defendant further said: “Well; I am being mistreated.” And Thrasher answered: “I don’t think so. If any one has been mistreated, I am the one.” Defendant then drew a revolver from under his coat, and witness ran across the room and began screaming and heard shots. When she reached the wall she discovered that she was wounded. That she was crouched or crumpled down on the floor and saw defendant about that time, who had stopped shooting, but had a gun in his hand. He broke it, put it 'back, laid it across his left hand, pointed it at her, and fired, and it seemed as if something had burst in her head. The next thing she knew the office was full of people. She was picked up, put in a chair, taken to her home and later removed to a hospital. Defendant testified in substance: That there was unfriendly feeling between him and Thrasher. That Mamie Fries bore an enmity toward him because some two years before he had caught her in bed with Thrasher in Oklahoma City. That he was informed by Brehm, a minor employee, that Thrasher wanted to see him that morning. He went to the telephone office and asked Brehm to go with him. When they arrived there Thrasher was in the door, and he and defendant went into the office, and Thrasher told Brehm it was none of his affair, he need not come in. That Thrasher directed defendant to take the chair, and Thrasher closed the door and the door of the restroom, and the witness Miamie Fries seated herself on a stool near him. When seated Thrasher said, “Lewis, damn you, you have ruined Mamie and me.” That the witness Mamie Fries then drew a gun and with both hands held it on him. He grabbed it, and Thrasher said: “Shoot him, Mamie, shoot him!” Defendant grabbed the gun barrel, and about the same time Thrasher also grabbed the gun, and Mamie Fries ran around, took him by the ear and around the neck, and defendant was trying to get his gun out of his shirt, and Thrasher fired and then fired again, and the gun fell from Thrasher’s hand. That Mamie Fries ran around the corner, and he thought she was reaching for another gun, and he shot three times. He turned and Thrasher was standing by the desk reaching in the desk, and he fired again, and Thrasher fell back in the chair. He turned around again and Mamie Fries was reaching in a shelf. That he told her to leave the gun alone and shot again, then turned the gun down, put another shell in it, and shot her again. About that time some one knocked and ordered the door opened, and he answered and opened it.

Defendant and Mamie Fries were the only witnesses of what took place in the room. Almost by the time the shooting had ceased the sheriff, the chief of police, the mayor, and others were at the door of the telephone office. Justin Byers, chief of police, was in a car a half block from the scene and rushed at once to the office door of the telephone building. The shooting was over, and he shook the door and demanded admittance. Receiving no response he went aronnd to the restroom, knocked and demanded admittance, but, receiving no response, returned to the office door, and defendant then opened it. He entered and took a pistol from defendant. Thrasher was dead at the time, leaned back in a spring-back chair as far as the chair would go, with his head over to one side, his left hand in his lap, with the telephone tickets between the thumb and forefinger, his face covered with blood, his glasses in place on his nose. A 38 Harrington-Richardson pistol lay on the floor at the left side, with two loaded shells and three empty shells, appearing to have been recently fired. There were powder specks on the right hand and two bullet wounds on the body of Thrasher, one entering at the second button from the bottom of his trousers in front ranging upward and lodging just below the right shoulder blade; the other entering under the chin on the left side and ranging upward and coming out near the center of the top of the head. Mamie Fries was lying on the floor in the north part of the room, suffering from various wounds. There was a shot wound through her right shoulder, two wounds on the left arm, one two inches below the elbow, and one across the top of the forearm. Another bullet wound penetrated the right thigh, seven inches above the knee from the outside, coming out five inches above the knee on the inside, shattering the thigh bone, a slight wound on the inside of the left leg between the knee and ankle, and a bullet wound in the right temple passing downward and inward, coming out in the palate of the mouth.

There are many details in the evidence not here recited; some testimony of malice and threats; some testimony of contradictory statements made by the defendant and some of the witnesses. As a whole, however, the testimony is clean-cut, presenting two widely divergent theories, that of the state showing a murder deliberately planned and coldly executed, that of defendant showing his presence at the scene of the tragedy in response to a request from deceased and there attacked in a manner leading him to believe as a reasonable man he was in danger of losing his life or of suffering great bodily injury. It is not contended that the evidence is insufficient. The case was closely and carefully tried by counsel for the state, counsel for the defendant, and the trial judge. The jury evidently believed the testimony of the state’s witnesses, but made some concessions to the testimony offered by defendant.

The first assignment of error argued is that the court admitted incompetent evidence prejudicial to defendant. This is directed to various items of testimony. Nannie Mae Jenkins testified, in substance, that some time prior to the homicide defendant tore from the wall of the telephone exchange at Wister, where this witness worked, a set of rules signed by Mamie Fries, and said that within 80 days Mamie Fries’ name would not be signed to anything, that there would be a new manager and that when he was manager things would be run his way; that subsequent to the homicide he said to her that he would be a free man in a few days; that he had too much money to lose and would be back in the company. Defendant upon cross-examination bad been asked concerning these statements. Defendant asserts that this is impeachment upon a collateral matter; that it could be no more than an idle boast and likely inflamed the jury against him. Payne v. State, 10 Okla. Cr. 314, 136 Pac. 201. If this were offered as a matter of impeachment only it is inadmissible. The state, however, insists the- evidence is not impeachment, but since the witness was an employee of the telephone company in which defendant was a part owner, this statement by him to' her that he would soon be again in the company was a warning to her and is an attempt by him to intimidate and to prevent the testimony of the witness against him. Ryal v. State, 16 Okla. Cr. 266, 182 Pac. 253. Defendant had formerly held a place of authority over this witness as an employee of the telephone company. This evidence probably has a tendency to suggest to her that in case of unfavorable testimony on her part her position with the company might be jeopardized. Under this view it is admissible. This assignment is also directed at testimony that defendant at one time prior to the homicide went out and brought a traveling man into the office who had offended or insulted Mamie Fries and required him to apologize to her. This was offered by the state in rebuttal to refute the testimony of defendant that for some time prior to the homicide enmity had existed toward him by Mamie Fries due to the claimed incident between Thrasher and her at Oklahoma City. We think this item of evidence inadmissible, but we fail to see how it could have been prejudicial. Rather it would seem to indicate that defendant insisted that the employees of the telephone company should be treated with respect in the discharge of their duties and the incident placed him in a rather favorable light than otherwise.

It is also urged the testimony of Dr. Hardy and Dr. King, describing the wounds, the length of Mamie Fries’ stay at the hospital, and the extent of her injuries, is incompetent and prejudicial. It is well settled that the res gestae of an offense is not inadmissible because it may show the commission of some other offense or contain prejudicial matter. It is true the guilt or innocence of the defendant does not depend upon the period of her stay in the hospital, nor pain and suffering sustained. It is the theory of the state, however, that defendant intended to kill both Thrasher and Mamie Fries, and all his acts in shooting Thrasher and the witness are admissible as showing intent and premeditation. The entire incident and all the circumstances, including the serious nature of the wounds of Mamie Fries, are admissible as throwing light on the transaction and as tending to show intent. Miller v. State, 13 Okla. Cr. 176, 163 Pac. 131, L. R. A. 1917D, 383.

A diagram of the interior of the telephone office where the homicide occurred was admitted in evidence. This shows the location of the furniture, with the measurements and the relation of the items to each other., and shows the location of various bullet marks as testified to with dotted lines showing , the range of the bullets. These various matters were testified to by the civil engineer who drew the diagram. The different bullet marks and the lines showing the range of the bullets are numbered. Complaint is made that the numbers are inadmissible and prejudicial to defendant. At the time the plat was offered, objection was made to these numbers, and the county attorney at the time stated he did not insist on the figures and offered to strike them from consideration of the jury. After some colloquy the objection was overruled. A diagram or plat should be correct and faithfully represent tbe object portrayed. The numbering was for the benefit of the county attorney and is of no particular importance. Certainly it was not prejudicial.

The next assignment of error is that the court’s instruction No. 11, under the facts, is prejudicial. It is admitted it is correct as a matter of abstract law. This instruction is:

“You are instructed that the defendant in this case, in support of his plea of not guilty, pleads as a justification of such homicide that while he killed the deceased, he acted in self-defense, and in this connection you aré instructed that every person has a right to repel an attack or threatened attack on his person by the use of force, even to the extent of slaying his assailant, provided he does not use more force than is reasonably necessary to repel the attack or threatened attack; and if you believe from the evidence in this case., or entertain a reasonable doubt thereof, that the deceased in such manner as is calculated to excite the mind of the defendant, made an attack upon the defendant, and that such attack was in such a way that the defendant had reasonable grounds to apprehend a design upon the part of the deceased to take his life' or to do him great bodily injury, and that it reasonably appeared to the defendant at the time that there was imminent danger of such design being carried out, then the defendant is not bound to retreat, but could stand his ground and repel the attack with such force as was necessary to protect himself from death or his person from serious bodily harm, even to the extent of killing his assailant, and if the killing occurred under such circumstances the defendant is not held criminally responsible if he acted in self-defense from real and honest conviction as to the character of the danger in which he was placed, although he may have been mistaken as to the extent of the actual danger.”

Defendant asserts that part of the instruction limiting the right to justification as a defense permitted defendant to defend only against an attack made by deceased, and does not permit bim to defend from an attack made by the witness Mamie Fries at the instigation of and in connivance with deceased. Of coarse, if a person is attacked by two or more persons apparently acting together he may defend against either of them, and a person apon trial is entitled to have an instraction embodying, his theory of the case, based apon his testimony apon the hypothesis that it is trae. Defendant’s testimony and theory was that he acted in self-defense of his person. The coart instracted apon the law of self-defense, and if the instrnctions were not snfficiently fall apon this point, or if coansel were of the opinion that an additional in-straction shoald be given, it Avas their daty to redace it to writing, sabmit it to the trial jadge, and reqaest that it be given the jury. If they failed to do this, the trial jadge had a right to assame that the instraction apon the laAv of self-defense was snfficiently fall. When a re-qaest is not made the conviction will not be reversed for failare to instract more fnlly anless this coart can say, in the light of the entire record and instrnctions, that by the failare of trial coart to instract the jary apon some material question of law the defendant has been deprived of a substantial right. Fitzsimmons v. State, 14 Okla. Cr. 80, 166 Pac. 453; Branham v. State, 16 Okla. Cr. 309, 182 Pac. 525; Merriott v. State, 18 Okla. Cr. 247, 194 Pac. 263. Bequests for instructions were made by defendant’s coansel, bat none on the point here contended for.

Lastly, it is contended that there is misconduct of the county attorney in his closing argument in making inflammatory statements calculated to arouse the passion and prejudice of the jary. The entire closing argument is set oat in the record. Several objections were made in the record of the argument, and in an instance or two the county attorney upon objection being made withdrew his statement, and in some instances the court sustained the objection. Both the state and the defendant have the right of argument. This right contemplates a liberal freedom of speech. It is under the control of the court, and when the county attorney goes outside the record upon some material point, or obviously appeals to passion and prejudice, the court should interpose and require counsel for the state to conform to these settled rules and if need be strike out and withdraw any improper statement made and, if flagrant, reprimand counsel. In considering what is improper argument, it is not to be overlooked that the range of discussion,, illustration, and argumentation is wide; that counsel have a right to fully discuss from their standpoint the evidence and the inferences and deductions arising from it. It is only when argument is grossly improper and unwarranted upon some material point which may have injuriously affected a defendant’s rights that a reversal can be based on improper argument. We have examined this closing argument with care. It is a strong presentation of the state’s case. We believe it is not unfair, and that in the instances where a statement made in the argument is withdrawn by the county attorney and the objection sustained by the trial court that such withdrawal and the ruling were extremely favorable to defendant.

Upon a consideration of the entire record, defendant was fairly tried, and no substantially prejudicial error is made to appear.

The case is affirmed.

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


author: CHAPPELL, J.

text:
    S. R. CARMACK v. STATE.
    No. A-6716.
    Opinion Filed August 17, 1929.
    Rehearing Denied August 31, 1929.
    (279 Pac. 964.)
    M. D. Hartsell, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.,
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Muskogee county on a charge of an assault with a dangerous weapon, and his punishment fixed at a term of two years in the state penitentiary.

The theory of the state, as shown by the statement of the county attorney, appears on page 18 of the case-made, and is as follows:

“It is the theory of the state that the defendant, S. R. Carmack and Paul Davis' were acting jointly and together in the various transactions which happened at the Maple rooms, the Antlers rooms and the Tulsa Hotel on the night of the 19th and 20th of July, and that the various things that happened in those three places that night were a virtually continuing transaction, constituting a series of offenses committed by the defendant and Paul Davis pursuant to their joint enterprise and committed pursuant to a joint design and plan between the defendant and Paul Davis.”

The evidence of the state tends to show: That the defendant, who was a policeman in the city of Muskogee, and who had a commission as a special deputy sheriff, and one Davis, who was a deputy sheriff, were intoxicated. That, on the evening that the crime in the case at bar was alleged to have been committed, these two officers were out in the country from Muskogee and returned in a drunken condition. The car of Davis’ was found near the scene of the crime with some empty home-brew bottles and a quart of whisky in the car, and some one had vomited on the running boards on each side of the car. That the defendant and Davis agreed together to clean up the underworld and drive the dope-heads, prostitutes, and undesirable characters out of the city of Muskogee. That in carrying out this conspiracy, they had no search warrant or warrant for the arrest of any person nor any directions from their superior officers to do* any of the things they did. They went first to the Maple rooms,, where they kicked open the door of the rooms occupied by the proprietor, his wife, and his father. After taking their parties out in the porch, Davis struck John Smith and knocked him down and then knocked Smith’s father down with a six-shooter, and the defendant also struck Smith with a six-shooter several times, and, when Smith requested him not to-, he said, “I’ll break your damn neck.” Davis shot a man named Shelby and beat him with a sixshooter, and when one Hadley, a merchant police, came up, Davis hit Hadley. That these people were all sent to the police station except Hadley, but no charges were ever filed against any of them for any crimes connected with the raid. That, immediately after the happenings at the Maple rooms, this defendant and Davis went to the Antler and the Tulsa Hotels, which were connected together by a court. That the defendant and Davis came whooping and shooting up the stairs into this building, and there the defendant committed the crime alleged in the information by striking one McDaniel over the head with his six-shooter three times. That, while making this raid, Davis shot the negro porter of the Tulsa Hotel and shot a woman. That Davis came back through the court from the Tulsa Hotel into the Antlers and got the pistol of the defendant because Davis was out of cartridges, and that Davis went back and continued to shoot his pistol and terrify the guests of the Tulsa Hotel, and that every time he would shoot the defendant would holler, “Pour it on ’em Paul, kill the sons of bitches.”

Finally some one called for other officers, and they came and took the defendant into custody and took his gun away from him and undertook to take Davis to the police station, and in the fight which followed participated in by Davis and the defendant, Davis was killed by the officers and the defendant disarmed and taken to the police station. Some of the state’s witnesses testified that the defendant and Davis were intoxicated, and one witness testified that they were “crazy drunk.” Defendant denied he assaulted McDaniels. The theory of the defendant was that he and Davis, as public officers, were engaged in the righteous duty of enforcing the law. The defendant admitted they had no search warrant or warrant, but contended that the parties they were arresting were dope addicts, dope peddlers, prostitutes, and underworld characters, and that the premises they raided were premises of bad repute, where characters of the underworld congregated, and they were merely engaged in an honest effort to suppress vice and drive out crime. The jury settled the issues of fact in favor of the state.

The charging part of the information in the case at bar alleges: .

“* * * That the said S. R. Carmack, in the county and state aforesaid, on the 20th day of July, 1926,, did knowingly, willfully, unlawfully, wrongfully, intentionally and feloniously, without justification or excusable cause make an assault in and upon one S. H. McDaniel with a certain pistol, said pistol being then and there a dangerous instrument and weapon and then and there had and held in the hands of him, the said S. R. Carmack, and that the said S. R. Carmack, did, then and there with said pistol so had and held as aforesaid, strike, beat, cut and wound and injure then and there the said S. H. McDaniel with the unlawful, wrongful and felonious intent then and there on the part of him, the said S. R. Car-mack contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State.”

The defendant complains, first, that the court erred in permitting the introduction of evidence of the things done by the defendant and Davis at the Maple rooms and in the Tulsa Hotel, contending that none of the evi-denee offered by the state was admissible by the state except the evidence showing the assault, if any, committed by the defendant as shown by the information in the case at bar.

In the case of Tempy v. State, 9 Okla. Cr. 446, 132 Pac. 383, 384, paragraph 2 of the syllabus, this court said:

“Evidence is admissible that tends directly to prove the defendant guilty of the offense charged, although it may also tend to prove another offense, where the two offenses are so linked together in point of time or circumstances that one cannot be fully shown without proving the other.”

In the case of Beam v. State, 18 Okla. Cr. 529, 196 Pac. 720, 721, syllabus 5, this court said:

“Where a homicide is committed by two persons acting together, one by stabbing deceased with a knife, and the other by shooting with a pistol, evidence that the co-defendant not on trial wounded a third person by one of the pistol shots is properly admitted as part of the res gestae, although it tends directly to prove the commission of an offense other than that charged, when the two offenses are so linked together in point of time or circumstances that proof of one cannot be fully made without developing the fact of the other.”

In the body of the opinion, on page 537 of 18 Okla. Cr. (196 Pac. 723), the court said:

“While there is no direct showing of a conspiracy entered into on the part of Fisher and Beam to kill Deer, and that the homicide was the result thereof, there is evidence of concert of action on their part. According to the state’s evidence, after Fisher, in the presence of Beam, and with his knowledge, had assaulted Deer two or three times by striking him with a pistol, and when Deer and Fisher were struggling on the bed, Deer attempting to take the pistol from Fisher, Beam rushed in and stabbed Deer in the right side with a knife, after which Fisher and Beam got together, and Fisher then shot Deer with the pistol.”

In the case of Sledge v. State, 40 Okla. Cr. 421, 269 Pac. 385, this court said:

“In a criminal prosecution, evidence which is relevant to the issue is not rendered inadmissible by reason of the fact that it tends to prove the defendant guilty of a crime other than the one charged in the information. * * * Evidence of a different offense from the one charged is admissible, when both offenses are so closely linked or connected as to form a part of the res gestae. * * * Where there is testimony of a conspiracy to commit a crime, and of its subsequent commission, the State may, in support and corroboration thereof, show any act, declaration, or conduct of the alleged conspirators intermediate of the conspiracy and the crime which apparently recognizes the existence of the conspiracy or reasonably indicates preparation or motive to commit the crime.”

See, also, Vickers v. United States, 1 Okla. Cr. 452, 98 Pac. 467; Hunter v. State, 3 Okla. Cr. 533, 107 Pac. 444; Miller v. State, 9 Okla. Cr. 255, 131 Pac. 717, L. R. A. 1915A, 1088; Littrell v. State, 21 Okla. Cr. 467, 208 Pac. 1048.

The evidence offered by the state was clearly admissible upon either of two grounds: First, that it was part of the res gestae; second, because the evidence tended to show a conspiracy or concerted action between defendant and Davis, to do the series of things and commit the series of crimes as appears to have been committed, from the evidence in the record. The evidence clearly shows that this crime was but a part of the crime which began by the unlawful entry into the Maple rooming house until the arrest of this defendant. The case at bar is one of that class of cases in which men, acting together, start out on an unlawful mission and commit various crimes in carrying out their plans. The defendant and Davis, acting together, started on an unlawful mission when they started to search the Maple rooms without a search warrant and without a warrant for the arrest of any person in said rooms and continued to raid and to shoot and beat those that they came in contact with, both men and women, until they had raided three rooming houses and had shot and beat some seven or eight persons. The evidence complained of by the defendant was clearly admissible under numerous rulings of this court.

The defendant next complains that the court erred in refusing to permit the defendant to show by the witness John Smith that he had been caught by Davis mating a delivery of morphine to another witness in the case. This court has frequently held that a witness cannot be impeached upon a collateral matter and about which the state had made no inquiry of the witness. See Payne v. State, 10 Okla. Cr. 314, 136 Pac. 201; Wharton on Evidence, par. 559.

The defendant next complains that the court erred in permitting the county attorney on cross-examination of character witnesses, to ask whether or not they knew the defendant had been suspended from the police force for drunkenness and whether or not this had been taken into consideration by them in determining his general reputation as a peaceable and law-abiding citizen and as a good officer.

In the case of Stouse v. State, 6 Okla. Cr. 415, 119 Pac. 271, 275, paragraph 3 of the syllabus, this court said:

“As the general reputation of any person is established by the opinions of witnesses as to the general estimation of his character, it is permissible upon cross-examination of such witness to show the sources of his information and particular facts may be called to his attention, and he may be asked if he ever heard of them. This is permissible, not for the purpose of establishing the truth of such facts, but to test the credibility of the witness, and to ascertain what weight or value is to be given to his testimony.”

See, also, Carroll v. State, 24 Okla. Cr. 26, 215 Pac. 797.

Finally the defendant complains that the court erred in overruling his motion for new trial because of an alleged separation of the jury after the cause had been submitted to them. The defendant claimed that the bailiff took the jury to a restaurant for supper, and while there the jury was permitted to separate and one juror to talk over the telephone. The state put on the stand John S. Barger., bailiff of the court in charge of the jury, who testified as follows:

“Q. I will ask you to state whether or not the jury was allowed to separate at any time while in your custody? A. They were not.
“Q. I will ask you to state whether Mr. Selby, the foreman of the jury was allowed to separate from the other jurors? A. He was not.
“Q. Did Mr. Selby hold a conversation over the telephone at the Baltimore Cafe where you were — Where you and the jury ate supper? A. He did.
“Q. Were you present when that conversation was held? A. I was.
“Q. Were the other jurors present? A. They were.
“Q. Could you tell the nature of that conversation over the phone? A. He was making an engagement to meet an oil man in Coifeyville on Tuesday night following the evening of that week.
“Q. Was that a long distance call? A. It was.
“Q. Did the conversation have any relation at all to this case? A. It wasn’t mentioned.
“Q. Was that the only time that Mr. Selby talked over the telephone? A. It was.
“Q. And he was not separated from the jury at any time after the case was submitted to them? A. No, sir.”

The defendant and his wife with other witnesses testified to a state of facts different from the bailiff and yet insufficient to justify the granting of a new trial on the ground of separation of the jury, even though the trial court should have believed the evidence of the defendant’s witnesses. This court has sustained the verdict of the jury upon the ground complained of by the defendant when the acts complained of were more serious than the case at bar.

In the case of Elkins v. State, 29 Okla. Cr. 175, 233 Pac. 491, this court said:

“In a capital case, where the necessity of accommodating the jury requires that there be a division of the jury in its sleeping quarters, where each such division is in charge of an officer, this is not such a separation as will vitiate the verdict.”

In the case of Forester v. State, 36 Okla. Cr. 111, 252 Pac. 861, this court said:

“In a capital case, where the necessity of accommodating the jury requires a division in the use of sleeping quarters, such separation is not the separation contemplated by the statute. Section 2716, O. O. S. 1921. * * * Where in a capital case, after final submission, the jury was taken to the jury room, then six or seven jurors were taken from the jury room in charge of the bailiff: to the lavatory, and the remaining jurors were locked in the jury room, during which time each juror testified that he did not see or talk with any one, held, not such a separation of the jury as to constitute prejudicial error.”

In paragraph 4, this court said

“As a general rule, the finding of the trial court upon an issue of fact, arising upon the evidence, offered on a motion for new trial, will not be disturbed, where the evidence reasonably tends to support such finding.”

The trial court having heard the evidence on the motion for new trial upon the issue of fact upon the Separation of the jury and having overruled the motion, the ruling of the trial court will not be disturbed, where the evidence reasonably tends to support such finding. The record discloses that there was no such separation of the jury as would require a reversal of the case.

The defendant complains of numerous other errors in his brief, but they are all without merit. The record in this case discloses a series of wanton acts committed by drunken public officers in the pretended discharge of their duty. The defendant and Davis were first violators of the law themselves by becoming intoxicated and by transporting whisky; they were next violators of the law by reason of the fact that they had no search warrant or warrant for the arrest of any person charged with crime and in their pretended discharge of their duty as public officers they violated the law by wantonly beating, kicking, striking with their pistols and shooting some seven or eight people in the series of raids they were pretending to make. It is no defense to say that the persons beaten and wounded were dope peddlers, dope addicts, or prostitutes or criminals. They were human beings. They were presumably American citizens entitled to be protected in all their constitutional rights and to be arrested only in an orderly manner and with proper process and to be proceeded against in courts of justice in an orderly and legal manner. There can be no respect for law nor obedience to the same so long as men of the character of defendant and Davis are elected or appointed to official position and conduct themselves as defendant and Davis conducted themselves in these so-called raids. The acts of the defendant and Davis constituted a public outrage as well as a private injury. Davis finally lost his life resisting the officers who were trying to restrain him from any further outrages. The defendant has been brought to the bar of justice, and, by a verdict of the jury, has been declared to be guilty for the crime charged in the information.

We are of the opinion that the defendant had a fair trial and should be punished for the crime committed. Two years in the penitentiary is not sufficient punishment for an outrage like the one committed in the case at bar, but the jury were merciful, and the defendant benefits thereby.

For the reasons stated, the cause is affirmed.

EDWARDS, P. J., concurs.

DAVENPORT, J., absent.


text:
    R. L. SNOW v. STATE.
    No. A-6628.
    Opinion Filed August 10, 1929.
    Rehearing Denied August 31, 1929.
    (279 Pac. 975.)
    E. Y. Rakestraw, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

R. L. Snow, plaintiff in error, was informed against, tried, convicted, and sentenced to be confined in the county jail of Kiowa county for a period of 60 days and pay a fine of $250 for unlawfully having possession of intoxicating liquor.

The judgment and sentence was pronounced on the 29th day of January, 1927. At that time the court gave the defendant 60 days to make and serve the case, 5 days to suggest amendments, and to be settled on 3 days’ notice. The case was filed in this court on May 28, 1927. No extension was granted to file the appeal in this court.

Section 2808, C. O. S. 1921, provides in part as follows :

“In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered: Provided, however, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days.”

This court has uniformly held that, in order to give this court jurisdiction, the appeal must be filed with the clerk of this court within the time in which an appeal may be taken, as prescribed by section 2808, O. O. S. 1921.

The cause is therefore dismissed, and the cause remanded to the county court of Kiowa county, with directions to enforce the judgment and sentence.

EDWARDS, P. J., concurs.

DAVENPORT, J.,, not participating.


author: EDWARDS, P. J.

text:
    S. T. McGOWAN v. STATE.
    No. A-6798.
    Opinion Filed August 24, 1929.
    Rehearing Denied August 31, 1929.
    (279 Pac. 980.)

      N. S. Corn, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Dewey county of driving an automobile while under the influence of intoxicating liquor, and was sentenced to serve a term of one year in the state penitentiary.

It is shown by the state’s evidence that at the time charged defendant was intoxicated and drove an automobile along the streets of the town of Selling. Defendant denied that he was intoxicated at the time, but testified that, immediately after having driven the car he purchased a bottle of whisky, drank the entire contents, and was thereby made intoxicated, but that this occurred immediately after having driven the car. He pleaded guilty to being intoxicated.

Complaint is first made that the court erred in overruling defendant’s application for a continuance. The application was based on the absence of Buck Reber. It is stated that, if present, he would testify he was working for defendant; that he saw him drive the car, and that he was not under the influence of intoxicating liquor. The application further states that the witness is in the state of Kansas temporarily, his exact whereabouts being unknown. The case was called to trial on the 3d of May. This witness left Seiling on the 26th of April, preceding. Even if it be conceded that the application is in all things sufficient, the testimony of this witness is not of sufficient impoi’tance to have changed the result of the trial; the overruling of the application does not require a reversal. Rose v. State, 8 Okla. Cr. 294, 127 Pac. 873; Gentry v. State, 11 Okla. Cr. 355, 146 Pac. 719.

The contention is further made that the county attorney was guilty of misconduct in asking about other instances of intoxication by defendant and in commenting thereon. Objections to questions upon this point were sustained, except that of one witness, who testified that he had seen defendant driving at other times both when intoxicated and when sober. This was evidently offered with a view of qualifying the witness, and as to his knowledge of the condition of defendant at the time charged, and as explaining his conduct at the time. The county attorney pushed this line of questioning too far.

Some brief argument is made that one of the jurors was disqualified by reason of having formed an opinion. The record, however, does not disclose that this juror sat upon the panel, or that defendant exhausted all his peremptory challenges.

Prom an examination of the entire record, it is clear that the evidence is sufficient to sustain the verdict and judgment, and no error requiring a reversal is shown. Under all the circumstances, however, the judgment is excessive, and is modified by reducing, the punishment from one year in the penitentiary to six months .in the penitentiary, and, as modified, the case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


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

text:
    CLAUDE DECKER v. STATE.
    No. A-4831.
    Opinion Filed June 6, 1925.
    Rehearing Denied September 7, 1929.
    (279 Pac. 915.)
    MacDonald & MacDonald, for plaintiff in error.
    George F. Short, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error will be referred to as defendant, as in the court below. Defendant, with two brothers, was informed against in the district court of Bryan county for an assault with intent to kill one Tom Caswell. They were jointly tried, the brothers were acquitted, and the defendant was convicted of “assault with intent to do bodily harm,” and his punishment fixed at a term of 2 years in the penitentiary.

Only two assignments of error are argued in the brief: First, that the verdict is contrary to the evidence and is excessive; second, that there is error in the instructions of the court.

Upon the first assignment, the record discloses that defendant is a young man, crippled by the loss of one leg. Prosecuting witness, Caswell, is an old man about 65 years of age. There was some ill feeling between them. A few days before the occasion in question, Caswell had ordered defendant from his premises, and had led him to the gate and ordered him to stay away. There was evidence that between the time defendant was ordered to stay away from the premises of the prosecuting witness and the time of the difficulty the brothers of defendant had stated that there was going to be trouble between them, and had said that Claude, referring to the defendant, was not going to take a “son of a bitch off of Dad,” referring to the prosecuting witness, and that there was going to be one of the “damndest fights that you ever saw.” At the time of the difficulty the prosecuting witness, Caswell, was driving a team along the road. Immediately behind him was his son with a team, and immediately behind him were the two Deckers, brothers of the defendant, with a team. These parties were working on the state highway. The defendant did not work there, and the evidence of the state is that he came out of the weeds by the side of the road, met Caswell driving a wagon, seized the horses’ bridle bits or bridle, cursed and threatened the prosecuting witness, that the team reared and overturned the wagon, threw out the prosecuting witness, and the defendant then struck the prosecuting witness over the head with a rock and with knucks, and made some serious cuts and wounds.

As to the brothers, the evidence is both pro and con whether they offered any encouragement to defendant or aided in having him desist. The son of the prosecuting witness, Caswell, also participated during some part of the fray. The evidence of the defendant sharply conflicts with the evidence of the state. The defendant in his testimony admitted the previous difference at the home of the prosecuting witness. He testified that, when he met the prosecuting witness at the wagon at the scene of the difficulty, the witness began the trouble by throwing rocks at him, and then jumped out of his wagon to assault him, and that he acted in his self-defense. His brothers, codefendants, and two other persons with them, corroborated him in the main.

This court holds that, before it will reverse a conviction on the ground that the verdict is not sustained by the evidence it must appear that there is no testimony from which the jury could rationally conclude the defendant was guilty, or it must be so clearly against the weight of the evidence that the court must conclude that the jury were influenced by improper motives in arriving at its verdict, or that there is no evidence upon some material issue. The conflict in the evidence, or a verdict against the mere weight of the evidence, will not overturn the verdict of a jury on the ground, of insufficiency of the evidence. Under our system of jurisprudence the jury are the exclusive judges of the credibility of the witnesses, the weight and value of their testimony, and the facts proven. They see the witnesses, observe their manner of testifying, their candor and frankness or their lack thereof, and are in better position to determine the facts than this court could possibly be. The punishment assessed at 2 years in the penitentiary is not necessarily excessive. Under the statute on which the defendant was convicted, punishment might be assessed as much as 5 years in the penitentiary, and, where an assault is made with knucks or with a rock upon the head of another, inflicting serious wounds, a punishment of 2 years is not clearly excessive. Difficulties such as this result in homicides, and the law wisely fixes a severe punishment.

Upon the second assignment — i. e., the error of the court in its instructions — counsel for the defendant say that:

“It is very hard to- point out the vice of these instructions, as they are so worded that they contain all the legal requirements in such a case. * * *”

While this assignment is indefinite and does not conform to the rules of the court, yet we have examined the instructions with care and do not perceive any prejudicial error.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.

On Petition for Rehearing.

EDWARDS,, P. J.

On petition for rehearing it is earnestly urged that the punishment is excessive. The Attorney General has agreed that the judgment is excessive and recommends that it be reduced. The judgment is therefore modified to confinement in the state penitentiary for a term of six months.

The petition for rehearing is overruled.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    E. E. ROBINSON v. STATE.
    No. A-6658.
    Opinion Filed August 10, 1929.
    (280 Pac. 1112.)

      Prentiss E. • Rowe, for plaintiff in error.
    W. Lee Johnson, Co. Atty., and C. E. Mitchell, Asst. Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Pawnee county on a charge of unlawful transportation of intoxicating liquor, and his punishment fixed at a fine of $50 and to be confined in the county jail for 30 days.

The defendant first complains that the information is insufficient to charge an offense. The charging part is as follows:

“One E. E. Robinson a person then and there being, did then and there willfully, knowingly, unlawfully carry, convey and transport intoxicating liquor,, to wit: one pint of whisky, from some point in Pawnee County, to affiant unknown, to another point in Pawnee County, to wit, to a point in front of Ansell Gough’s restaurant in the town of Ralston, etc.”

The defendant contends that the information is fatally defective, in that it fails to charge that the offense was committed, if at all, anterior to the date alleged in the information; and that the information fails to allege that the whisky transported was capable of being used as a beverage. This court takes judicial notice of the fact that whisky is a beverage and is intoxicating.

In the case of Warren v. State, 24 Okla. Cr. 6, 215 Pac. 635, this court said:

“The true test of the sufficiency of an indictment or information is not whether it might possibly have been made more certain, but whether it alleges every element of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet.”

The defendant next contends that the evidence is insufficient to support the verdict of the jury. The evidence offered by the state was sufficient, if believed by the jury. The defendant admitted the possession of the bottle, but attempted to explain his possession by saying it was medicine for the wife of the man who worked in his place of business. The jury saw the witnesses, observed their demeanor while on the witness stand and their manner of testifying, and were in a proper position to weigh the evidence and judge the credibility of the witnesses. They evidently believed the witnesses for the state and disbelieved the defendant and his witnesses. It is the province of the jury to weigh the evidence and to judge the credibility of the witnesses. This court will not reverse a case for insufficiency of the evidence, where there is any competent testimony to support the verdict.

Finally, the defendant complains of the misconduct of the county attorney. County attorneys in their zeal to enforce the law sometimes overstep the bounds of legal propriety in the conduct of their cases. In this case the county attorney offered some incompetent testimony which was promptly rejected by the trial court. He also made some remarks in the presence of the jury which were promptly challenged by the defendant, the challenge sustained by the court, and the jury admonished not to pay any attention to such remarks. This court will not reverse a case because of improper conduct of the county attorney, unless this court can see from the record that the remarks and conduct of the county attorney probably prejudiced the jury and caused a miscarriage of justice.

Under the law the jury could have fined the defendant $500 and given him six months in the county jail. Since they fixed his punishment at the minimum of 30 days in the county jail and a fine of $50, we are unable to see how the defendant could have been prejudiced by the incompetent testimony offered or by the alleged misconduct of the county attorney.

For the reasons stated, the cause is affirmed.

EDWARDS, P. J., concurs.

DAVENPORT, J., absent.


text:
    M. A. BAILEY v. STATE.
    No. A-6706.
    Opinion Filed August 17, 1929.
    Rehearing Denied September 28, 1929.
    (280 Pac. 633.)
    Sigler & Jackson, for plaintiff in error.
    Edwin Dabney, Atty. Gen.., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

M. A. Bailey, plaintiff in error, hereinafter called defendant, was convicted in the district court of Carter county, for the crime of manslaughter in the first degree, and sentenced to serve a term of four years’ imprisonment in the state penitentiary.

The defendant killed his brother-in-law, William Hunt, on the 2d day of May, 1926, on a public road southwest of the city of Wilson, on the highway between the city of Wilson and the town of Orr. It appears from the evidence of the state that Hunt was traveling north, and in the car with him were his wife and Bailey’s wife, who was Hunt’s sister, and two of Bailey’s children. In the car with Bailey, who was traveling south, was one Buggs Thompson, who was the brother of Hunt’s wife. It appears from the testimony that Bailey and his wife, and perhaps Hunt and his wife, had been having some domestic trouble, and that Bailey had formed quite an attachment for Hunt’s wife, and on the day of the tragedy had left his wife and children at home, and had taken Hunt’s wife to her father’s home, knowing that Hunt had left his home on the night before.

It appears from the evidence that there was considerable ill feeling between Bailey and Hunt on the day of the tragedy, when Hunt found his wife in Bailey’s company at her father’s place, and also found Bailey’s wife on the road, walking from her home to her father’s home. This family difficulty was no doubt the moving cause of the shooting. According to the testimony of Buggs Thompson, who was riding with Bailey at the time of the shooting, when the cars met on the public highway, Bailey said for Hunt to get out of the car, and he (Bailey) would whip him; that Hunt, starting to get out of the car, stepped out on the fender, and Bailey shot him twice, once in the face and once in the stomach; that, following the shooting, Hunt crawled under his automobile and across the road under the fence onto one Chastain’s place; and that then Bailey turned his car around and drove away.

According to the defendant’s .testimony, as soon as these cars met on the highway., Hunt motioned for him to stop, which he did; that Hunt then muttered something, and started to jump out of the car toward him, and did jump out on the ground, and said he was going to kill the defendant, and reached toward his hip pocket; and that he (Bailey) then did shoot Hunt twice. The trial court instructed the jury on the law relative to murder, manslaughter in the first degree, and justifiable homicide in self-defense. The jury, under the evidence and instructions of the court, found the defendant guilty of manslaughter in the first degree.

The defendant first complains that the court erred in admitting in evidence parts of certain dying declarations made by the deceased. The court sustained an objection to that part of the evidence of the witness Wicker, the Baptist minister, who talked with the deceased shortly after he was shot. The defendant claims that the court erred in admitting certain portions of the dying declarations, for the reason that the same contained statements disconnected from the cause and circumstances immediately attending the homicide, which said statements only tended to disclose the motive or provocation for the killing, and to show a state of hostility between the defendant and the deceased.

The defendant in his brief cites the case of Goss v. State, 24 Okla. Cr. 383, 218 Pac. 339, 342.

In that case this court said:

“We conclude, therefore, that, notwithstanding the improper admission of this part of the dying declaration, the jury were not misled, but were in possession of all the facts indicating that the defendant in reality had nothing to do with the domestic troubles of the deceased. Under such circumstances the error was manifestly not prejudicial. Section 2822, Oomp. Stat. 1921.”

In Horton on Homicide (3d Ed.) p. 991, the author lays down the following rule:

“Nor is a conviction reversible because of the erroneous admission of a dying declaration which was irrelevant in whole or in part, where the other evidence in the case fully warranted tbe conviction.” State v. Murphy, 9 Nev. 394; Peoples v. Com., 87 Ky. 487, 9 S. W. 509, 810.

In the case of White v. State, 34 Okla. Cr. 424, 246 Pac. 1114, this court said:

“A judgment of conviction will not be reversed on the ground of improper admission or exclusion of evidence, unless after an examination of the entire record it appears that there has probably been a miscarriage of justice or a substantial violation of some constitutional or statutory right of the defendant.”

The evidence in this case on the part of the state is amply sufficient to sustain a verdict of guilty of murder. The jury evidently did not believe the defendant’s evidence that the homicide was actually committed in self-defense, and must have disregarded the statements objected to in the dying declaration in arriving at the verdict of guilty of manslaughter in the first degree.

Defendant also contends that the trial court erred in permitting proof that the defendant and his wife were living apart at the time of the commission of this homicide. We find no direct proof in the record of any such fact. The wife testified that the defendant left her the night before, and had not returned to her home at the time this homicide was committed. All this evidence as to family relationships was proper, as hearing on the defend: ant’s frame of mind and his feeling toward the deceased, in view of the defense of self-defense interposed by him. The answers of defendant’s wife to these questions was more favorable to the defendant than the answers he made himself to similar questions.

It is next contended that the court erred in giving certain instructions that tended to place the burden on the defendant of establishing, his innocence. The first instruction complained of is No. 9. This instruction relates to tbe circumstances under which the jury could find the defendant guilty of murder, and inasmuch as the jury only found the defendant guilty of manslaughter, he will not be heard to complain of any instruction relative to murder. This court has repeatedly held that an assignment of error based upon an instruction of the court bearing on the question of the guilt or innocence of a person on trial of murder is of no avail, when the jury return a verdict finding such person guilty of manslaughter and not of murder. Duncan v. State, 11 Okla. Cr. 217, 144 Pac. 629; Tinney v. State, 19 Okla. Cr. 126, 201 Pac. 819; Logan v. State, 42 Okla. Cr. 294, 275 Pac. 657.

Complaint is also made of instruction No. 10, which relates to the circumstances under which the defendant could be convicted of manslaughter. This instruction must be considered in connection with the instructions given by the court on the question of self-defense. The instructions as a whole cover the law of the case, and are as favorable to the defendant as the facts warrant. O’Neal v. State, 18 Okla. Cr. 310, 194 Pac. 261; Murnand v. State, 18 Okla. Cr. 426, 195 Pac. 787; Moore v. State, 25 Okla. Cr. 118, 218 Pac. 1102; Ned v. State, 29 Okla. Cr. 389, 233 Pac. 1096.

The errors complained of being without sufficient merit to justify a reversal of the case, and the evidence being sufficient to support the verdict of the jury, the cause is affirmed.

EDWARDS, P. J., concurs.

DAVENPORT, J., absent.


text:
    DAN SINCLAIR v. STATE.
    No. A-6791.
    Opinion Filed August 17, 1929.
    (280 Pac. 317.)
    Harry C. Hicks, for plaintiff in error.
    C. H. Madden, Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Harmon county on a charge of selling intoxicating liquor, and his punishment fixed at a fine of $50 and to be confined in the county jail for a period of 80 days.

The defendant claims that the court erred, in its action, after refusing to sustain the defendant’s demurrer to the information, by permitting the state’s attorney to amend the information by inserting the price at which the liquor was sold.

In the case of Gravitt v. State, 44 Okla. Cr. 45, 279 Pac. 968, this court said:

“Where an indictment charged the sale of intoxicating liquor to a certain individual, it is not necessary to allege in the indictment the price at which the liquor was sold. The defendant next contends that the indictment is defective because it did not charge the price at which the liquor was sold. The gist of the offense is the sale of intoxicating liquor, and it is never necessary in an indictment to allege the price for which the liquor was sold. It is sufficient if the evidence offered by the state under a charge of sale shows that a consideration was paid. Fletcher v. State, 2 Okla. Cr. 300, 101 Pac. 599, 23 L. R. A. (N. S.) 581.”

It not being necessary to allege the price at which the liquor was sold, it is immaterial that the court permitted the state to amend the information.

The defendant next contends that the court erred in refusing to grant him a continuance after permitting the state to amend the information. Since the amendment was unnecessary, and was not of the substance of the charge, the refusal of the court to grant the continuance was not error. This court has many times held that the granting or refusing of a continuance in a criminal case is largely a matter within the discretion of the trial court. This court will not reverse a judgment on account of the overruling of a motion for continuance, unless an abuse of discretion is shown.

The defendant next contends that the evidence introduced was iriadmissible, for the reason that it was obtained by an unlawful search and seizure. The sheriff testified that he saw the defendant sell four bottles of beer to certain parties, and that when the transaction was completed he arrested the defendant and made the search. Where a person is legally arrested for an offense, whatever is found upon his person or in his control, which is unlawful for him to have, and which may be used to prove the offense, may be seized and held for evidence in the prosecution. Yeager v. State, 43 Okla. Cr. 318, 278 Pac. 665.

The evidence being sufficient to support the verdict of the jury, and the errors of law complained of not being fundamental, .the cause is affirmed.

EDWARDS, P. J., concurs.

DAVENPORT, J„, absent.


text:
    GLENN TIMMONS et al. v. STATE.
    No. A-6611.
    Opinion Filed August 24, 1929.
    (280 Pac. 314.)

      Ash, Jones & Wesner, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the district court of Beckham county on a charge of rape in the first degree, and their punishment fixed at 15 years’ imprisonment for each of them.

The information in this case charges “* * * that Glenn Timmons and Thelmar Thompson, acting jointly and together, late of the county aforesaid, on or about the 10th day of October, 1926,, in the county of Beckham and state of Oklahoma, did then and there unlawfully, wrongfully, forcibly, violently and feloniously make an assault in and upon one Gertrude Green, a female, not the wife of them or either of them, the said Glenn Tim-mons and the said Thelmar Thompson, thereupon and then and there and thereby overcome her resistance, and did then and there unlawfully, wrongfully, forcibly, violently and feloniously, without her consent and against her will, by means of said force sufficient to overcome her resistance, rape, ravish and carnally know her, the said Gertrude Green, contrary to the form of statutes in such cases made and provided and against the peace and dignity of the state.”

At the conclusion of the evidence on the part of the state in chief, and after its announcement of rest, the defendants asked tlie court to require the county attorney to elect upon which of the two acts of intercourse proven by the state it would ask a verdict of guilty, to which motion the county attorney objected, on the ground that the proof showed one continuous offense; thereupon said motion was overruled by the court and exception saved by the defendants.

At the close of the case, and upon announcement of rest by both parties, the defendants renewed their motion requiring the state to elect upon which act of intercourse it would ask a conviction, which motion was overruled by the court, and exception reserved by defendants.

The prosecutrix testified to two separate and distinct acts of intercourse, one with the defendant Glenn Tim-mons, and one with the defendant Thelmar Thompson, and that each of such acts of intercourse took place in the absence of the other defendant, and was accomplished without her consent, by force and violence overcoming her resistance.

In the case of Smith v. State, 20 Okla. Cr. 124, 201 Pac. 663, 664, this court said:

“Rape is not a continuous offense. On the evidence in this case every act of sexual intercourse testified to by the prosecutrix constituted a distinct crime, and the trial court should either require the prosecution to elect upon which of such acts it would rely for a conviction, or else the court would have treated the act of which the state first introduced evidence to tend in any degree to prove the offense as an election and should have given a specific instruction limiting the jury to a consideration of this particular act as a basis for a conviction. 22 R. C. L. p. 1227, § 63. * * * It has been repeatedly held in this state that a person may be tried for, and convicted of, only one offense at a time, and while proof of other acts of intercourse, in a prosecution for statutory rape occurring both prior to and subsequent to the one relied upon for a conviction, may be proved for the purpose of showing the intimate relations existing between the parties, etc., the conviction must be based solely upon one of such acts and not all of them. Gracy v. State, 13 Okla. Cr. 643, 166 Pac. 442.”

In the above case, the prosecutrix testified to different acts of intercourse, and the judge instructed the jury that, if they believed from all. the evidence beyond a reasonable doubt that the defendant accomplished sexual intercourse with the prosecutrix at any time within 3 years from the filing of the information, and the prose-cutrix was not at that time the wife of the defendant and was under the age of 14 years, then the verdict should be that the defendant is guilty of rape in the first degree; in the opinion of the court it is said by Judge Matson that it is apparent by this instruction that the jurors were permitted to base a conviction upon any of the numerous acts of sexual intercourse testified to> by prose-cutrix, and that, manifestly, one of the jurors may have believed the defendant guilty, basing his belief upon proof of an act of sexual intercourse testified to by the prosecu-trix, entirely different from that which another of said jurors based his belief, so therefore, while the 12 jurors may have unanimously arrived at the conclusion that the defendant was guilty of the crime charged, there is no way of determining by this record that each of said jurors based his conviction of guilt upon the same act of sexual intercourse, citing, Montour v. State, 11 Okla. Cr. 376, 145 Pac. 811; and that examination of the record discloses that the defendant was not tried with reference to any particular act of sexual intercourse alleged to have been committed with the prosecutrix, or any other particular act of sexual intercourse occurring within 3 years preceding the filing of the information; find that the trial conrt in not requiring the state to elect upon one such particular act, and in submitting the question of guilt on all of such acts, clearly committed reversible error, as this conviction could not be pleaded in bar of a subsequent prosecution based on any definite act of sexual intercourse alleged to have occurred between the defendant and the prosecutrix.

In Montour v. State, supra, it appears that the prose-cutrix testified to three separate and distinct acts of intercourse, either one of which would support the charge in the information, and this court held that in such case it was the duty of the trial court, upon motion of the defendant, to have required the state to elect upon which particular act the state would rely for a conviction, and in the charge of the court the jury should have been restricted to the consideration of the act the state elects and relies on for a conviction, and that the purpose of the acts other than the one relied on should have been properly explained in the instructions; that under the ruling of the trial court refusing to require the state to elect, and under the charge of the court, a verdict of guilty could have been rendered, although no two jurors were convinced beyond a reasonable doubt, or at all, of the truth of the charge as to any one of the separate offenses; that in this class of cases, as well as any other, the state must rely on a specific offense, and the conviction, if one is had, must depend upon the evidence of that offense alone. Other incidents are important only as tending to prove the one specific offense, for the alleged commission of which the defendant is on trial.

In the case of Petty v. State, 11 Okla. Cr. 646, 150 Pac. 91, 92, this court said:

“Our Code of Criminal Procedure provides that: ‘The indictment or information must charge but one offense.’ Section 5741, Revised Laws. Where the law permits but one transaction or offense to be set out in the accusation, whether in one count or in more than one count the prosecuting officer will be compelled to choose the transaction on which he will ask for a verdict. 1 Bishop, New Crim. Proc. par. 459.”

In the case at bar the trial court, in paragraph 6 of the instructions, told the jury:

“You are instructed that all persons concerned in the commission of a crime, whether they directly commit the act constituting the offense, or only aid and abet in its commission, though not present, are principals, and to aid and abet may consist of words spoken or acts done for the purpose of assisting in the commission of a crime or of encouraging another in its commission.”

Upon the evidence, and under this instruction and the others given, the jury returned a general verdict of guilty of rape in the first degree against both of the defendants. The state offered evidence of the separate acts of the defendants, either one of which, if true, constituted a distinct act of rape, committed in the absence and without the aid or assistance of the other defendant. By the overruling of the motion requiring the state to elect and the giving of instruction No. 6, the jury were authorized to convict the defendants, or either of them, each for a separate rape committed upon the prosecutrix, or for aiding and assisting each other in the commission of the separate offenses, and this court is unable to determine from the record and from the verdict of the jury which one of the four separate and distinct crimes the defendants were convicted of. Under the Constitution and statutes, the defendant may only be required to defend against one offense at a time. It was reversible error for the trial court to refuse to require the state to elect upon wkiéh of the offenses it would rely for a verdict, and to instruct the jury in effect that they might find the defendants guilty on any one of the offenses. See, also, Williams v. State, 40 Okla. Cr. 303, 268 Pac. 329; Moorehead v. State, 38 Okla. Cr. 328, 261 Pac. 231.

The state could have filed a separate information against each of the defendants, and this probably would have been the better practice; but, since the state elected to charge them jointly,, it was bound to rely upon one of the several acts to secure a conviction. The evidence of the other acts could only be received as part of the res gestae.

The defendant complains of numerous other errors, but they will probably not arise in another trial of the case, and are not passed on at this time. For the reasons stated, the cause is reversed and remanded, with instructions to proceed with the trial of the ease in accordance with this opinion.

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


text:
    MYRON ATWOOD v. STATE.
    No. A-6499.
    Opinion Filed August 24, 1929.
    (280 Pac. 319.)

      M. D. Hartsell, for plaintiff in error.
    S. H. Lattimore, Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted of having possession of mash fit for distillation and his punishment fixed at a fine of $50 and imprisonment in the county jail for a period of 30 days.

The facts in the case, as revealed by the evidence of the state, are that one W. D. Shamblin, deputy sheriff, visited the premises of the defendant for the purpose of serving a summons on the sister of the defendant; that while on the premises he smelled a strong odor of whisky mash, and later in the day made affidavit and procured a search warrant to search the premises of the defendant; that by mistake the affidavit and search warrant fixed the place of residence of the defendant at three miles north and three-quarters mile west of Warner, when in truth and fact the defendant’s residence was three miles north and three-fourths mile east of Warner. It was conceded by the county attorney that the description of the premises to be searched was insufficient to authorize the search, and the case was tried upon the theory that the conduct and actions of the defendant constituted a waiver, and that the search was legal because of the consent of the defendant. The witnesses for the state, who were the officers having the search warrant to serve, testified that when they reached the premises of the defendant, the witness Shamblin, who was the deputy sheriff making the affidavit to procure the search warrant, told the defendant that he had a search warrant, and the following conversation occurred:

“Q. Did you have any conversation with Myron at that time? A. I told him we had a search warrant for his place. I wanted to look his place over.
“Q. What did he say? A. He said, ‘All right.7
“Q. Did you serve that search warrant? A. I asked him did he want a copy and he said, ‘You don’t need a search warrant to search my place’.”

J. D. Patton, one of the deputies who was with the sheriff when the search was made, testified as follows:

“Q. What did you do upon arriving at the house? A. We got out of the car and went to the front porch. Mr. Shamblin told Mr. Atwood he had a search warrant and wanted to search his place. Mr. Atwood said he didn’t require any search warrant, didn’t need it. Mr. Shamblin said he wanted to go around and search the cellar or smoke house — we went around and got a little scent but couldn’t find nothing.”

These witnesses, testifying further, testified that outside of the yard fence they found three barrels buried, two had mash in them and one of them had been emptied within 24 hours; that the barrels were buried in the ground and covered over with planks and sacks, and that this mash was whisky mash; that they had been raiding and destroying mash for years and knew the taste and smell of mash, and that this was whisky mash.

The question presented by this record is: Did the defendant waive his constitutional immunity by consenting to' this search? This court has held in a large number of cases that where the officers go upon the premises of the defendant and announce that they have a search warrant, the defendant by language similar to that used in the ease at bar does not voluntarily consent to the search of his premises. The presence of the officer, with the announcement that he has the search warrant and that he wants to or intends to search the premises, amounts ot official coercion, and the apparent consent of the defendant amounts only to an announcement that he does not intend to resist the officers. Whitford v. State, 35 Okla. 187, 249 Pac. 430; Hays v. State, 38 Okla. Cr. 331, 261 Pac. 233; Herron v. State, 39 Okla. Cr. 346, 265 Pac. 147; Bayne et al. v. State, 42 Okla. Cr. 81, 274 Pac. 694; Shockley v. State, 35 Okla. Cr. 437, 251 Pac. 514.

It being conceded by the state that the search warrant was void, the search was made in violation of the defendant’s constitutional rights, and the evidence obtained thereby was inadmissible.

For the reasons stated, the cause is reversed.

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


author: DAYENPOET, J.

text:
    HUBERT HAMNER v. STATE.
    No. A-6471.
    Opinion Filed August 24, 1929.
    (280 Pac. 475.)

      Hill & Banta, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAYENPOET, J.

The plaintiff in error, hereinafter called the defendant, was convicted on a charge of possession of corn whisky with the unlawful and willful intent on the part of the said Hubert Hamner to barter, sell, give away, and otherwise dispose by the same in violation of the prohibitory laws of the state, and was sentenced to pay a fine of $500 and be imprisoned in the county jail for 180 days. The record was properly preserved, and defendant has appealed to this court.

The facts in the case are brief. The officers were out on the public highway a short distance from the town of Wewoka, about 7 O’clock in the morning, looking for some prisoners they claim had escaped jail. On the edge of the highway the defendant’s car was stopped, and, as the officers drove by, the defendant was getting into his car; the officers stopped their car, and. the deputy sheriff says he got out, and, as he got out, the defendant got into his car and .started it. The deputy sheriff claims that, as the defendant drove by him, he told the defendant to stop, that defendant failed to stop, and he fired two or three shots at the casing of the car. The defendant continued to drive, and the officers got in the car and pursued the defendant for some distance until he reached Wewoka, and pursued the defendant through the city until they caught up with defendant when defendant’s car collided with another car.. They claim, as they came up to where the defendant’s car was, defendant broke some jars and was breaking one when the officers stopped their car; that the contents of the jars was corn whisky.

The officers said they did not have a warrant for the arrest of the defendant, nor did they have a search warrant to search defendant’s car; that, when they started to pursue the defendant, they did not see the defendant violating any law, nor did they see any evidence of any whisky in defendant’s car. It was agreed- between the parties that the testimony of the other witnesses, who were with Roland Robinson, the deputy sheriff, at the time of the arrest of the defendant, would be the same as deputy Robinson’s testimony.

When the case was called for trial, the defendant moved to suppress the testimony on the ground that it was procured unlawfully and without authority on the part of the officers, as they had no warrant for his arrest or to search his automobile, and that the act of the officers from the time, they started to follow the defendant in his car was unlawful, and that any testimony procured by reason of their unlawful acts was inadmissible against him. The defendant also, at the close of the testimony, moved the court to instruct the jury to return a verdict of not guilty against him. The motion to suppress the evidence, and the motion to instruct the jury to return a verdict of not guilty was overruled, and defendant duly excepted.

Several errors have been assigned by the defendant as grounds for reversal of this case. It is urged by the defendant: -

“1. That the court erred in overruling his motion for a new trial.
“2. That the court erred in overruling his motion to suppress the evidence on the ground that it was unlawfully secured.
“3. The court erred in admitting incompetent, irrelevant and immaterial evidence over the objection of the defendant.
“4. The verdict of the jury is contrary to the evidence.
“5. The verdict of the jury is contrary to the law.”
“8. The court erred in overruling the plaintiff in error’s motion to strike all the evidence of the state’s witnesses as incompetent, irrelevant and immaterial and inadmissible.
“9. The court erred in refusing to instruct the jury to render a verdict of not guilty.”

The defendant in this case is not prosecuted for conveying intoxicating liquor, but is prosecuted for having possession with intent to sell the same contrary to the laws of the state of Oklahoma. No testimony was introduced by the state upon the question of intent to sell, barter, give away, or otherwise furnish to others any intoxicating liquor by the defendant. The only evidence which would even indicate the intent of the defendant is the evidence of the deputy sheriff, who claims that the defendant had a sufficient amount of whisky in jars to make a prima facie case of intent to sell. If the testimony of the state was properly admitted, there is no evidence on behalf of the state showing what quantity of whisky the defendant did have. There were several jars broken, and Avitnesses testified in substance that the contents smelled like whisky.

The main question to be determined in this case is, Did the state introduce any competent testimony to sustain a conviction? In this case we find a man on the public highway who had a right to be there, no charge having been brought against him by the officers who are out in the discharge of their duty; they were not looking for the defendant, and did not know the defendant; when the officers’ car drove up, according to the testimony of the deputy sheriff, the deputy sheriff for some reason got out of the car and claims he made a step or two toward the defendant’s car, and that the defendant was getting into his car; that the defendant started his car and the deputy claims he asked defendant to stop, but he does not claim he told the defendant he was an officer, and he gives no reason as to why he asked the defendant to stop; the defendant drove on, and, according to the state’s testimony, the deputy sheriff began shooting at the defendant’s car; officers then pursued the defendant, and, as stated by the officers, without seeing the defendant commit any offense, or without seeing the whisky in the car,, or without any knowledge the defendant was committing an offense, followed him until he got to the city of Wewoka, where he collided with another car.

It is urged by the defendant that the testimony procured by the officers was unlawfully and illegally procured, and that his motion to suppress should have been sustained, and that the court committed error in not sustaining his motion to suppress the evidence, and that the court should have sustained his motion to direct the jury to return a verdict of not guilty. The defendant had a right to be on the highway, and had a right to drive his car in any direction he desired, and he was not required to stop his car at the command of any individual along the roadside. When the officer tried to stop the defendant’s car and began firing at it and started in pursuit, they began an effort to search, and continued it up until the time they claim they overtook the defendant where they claim he was breaking some jars.

In Taylor et al. v. State, 36 Okla. Cr. 431, 255 Pac. 157, this court said:

“At the time charged in the information certain officers intercepted the defendants in an automobile on the public highway and attempted to stop them. When they did not promptly stop, they fired into the car in which they were driving, and then arrested the defendants and searched the car and found in it a jug of whisky. They had no warrant for the arrest of the defendants nor any search warrant, and the apprehension and search was based on suspicion only. This was in violation of the Constitution and statutory rights of the defendants and was seasonably objected to. The conviction cannot be sustained.”

•In this case the officers acted without authority of law, and the objection of the defendant to the admission of the testimony should have been sustained. Welch v. State, 41 Okla. Cr. 207, 271 Pac. 172.

For the reasons stated, the judgment is reversed and remanded.

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