text:
    CLARENCE E. HOLT v. STATE.
    No. A-7917.
    Opinion Filed April 25, 1931.
    Rehearing Denied June 27, 1931.
    (300 Pac. 430.)
    E. D. Reason and Jack McKenzie, for plaintiff in error.

      J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Pottawatomie county upon the charge of practicing medicine without being in legal possession of an unrevoked license or certificate from the state board of medical examiners to practice medicine and surgery, and his punishment fixed by the jury at a fine of |500.

The evidence of the state was that the defendant represented himself as superintendent of an institution known and designated as “Utilitarian Vitality Unity, A Mutual Co-operative Health Society”; that he issued numerous advertisements of this institution, one of which was received by the prosecuting witness, Mrs. Mitchell; that she entered into a contract with the defendant, and paid him $100 cash, and took the treatments given her by defendant; that defendant charged the prosecuting witness for medicine; and that defendant possessed no license to practice medicine.

The state had several samples of the treatments given the prosecuting witness by defendant analyzed, and the doctors testified that the various items they analyzed contained veronal, a medicine given to the patient, if the patient is restless, to1 produce sleep; that another item contained salt of acethyl, salicylic acid; that this product is a medicine commonly called aspirin; that another item contained radix calami aromatici, or commonly called calomus; also red pepper and zinziber (ginger) ; that all of these items are medicine listed in the United States Pharmacopoeia.

Defendant admitted that he contracted with the prosecuting witness, but claimed he did that as a representative of the sanitarium, and that the medicine was prescribed by regular doctors in the sanitarium.

The information filed against the defendant was drawn under sections 11 and 12, c. 59, Session Laws of 1923, which read as follows:

“Every person before practicing medicine and surgery or any of the branches or departments of such, within the meaning of this act, within the state of Oklahoma, must be in legal possession of the unrevoked license or certificate herein provided for, and any person so practicing in such manner within this state, who is not in such legal possession thereof, shall be guilty of a misdemeanor, and shall, upon conviction thereof, in any court having jurisdiction, be fined for the first offense in any sum not less than $100, and not more than $500, and shall, for any succeeding offense, be subject to fine in like amount, and in addition thereto, shall be imprisoned in a county jail for a period of time not less than 30 days, nor more than 180 days; and in all instances, each day’s practice shall constitute a separate and distinct offense. It is further provided that any person who shall render such professional services without first complying with the provisions of this act, shall, in addition to the other penalties herein provided, receive no compensation for such services.
“Every person shall be regarded as practicing medicine within the meaning and provisions of this act, who shall append to his name the letters ‘M. D.’, ‘Doctor’, ‘Professor’, ‘Specialist’, ‘Physician’, or any other title, letters or designation which represent that such person is a physician, or who shall for a fee or compensation treat disease, injury or deformity of persons by any drugs, surgery, manual or mechanical treatment whatsoever. * * *”

Under the information in this case, it was necessary for the state to prove that the defendant, for a fee or compensation, treated the prosecuting witness by the administration of drugs, surgery, manual or mechanical treatment, and that be was not in the legal possession of the unrevoked license or certificate provided for in section 11.

Defendant contends, first, that the court erred in excluding proof that settlement had been made between himself and the complaining witness for the repayment to her of $50 of the $100 that he had received from her. This contention was properly rejected, for the reason that it could not tend to shed any light on whether or not the defendant was practicing medicine without a license.

Defendant contends, next, that the court erred in refusing to strike the evidence of the complaining witness, because she did not testify that he was a doctor or physician. She did testify that he treated her, after consultation, by giving her certain remedies for pay.

Defendant next contends that the court erred in refusing to strike the major portion of the evidence of Dr. Bynum. Dr. Bynum testified that he was secretary of the state medical board, and that his records did not show that defendant had been issued a license, and that he had heard complaints about defendant practicing medicine without a license. Dr. Bynum admitted that he had taken an interest in the case, and had phoned other doctors and written to the county attorney about the matter.

It was immaterial who was responsible for the institution of the prosecution — whether medical doctors or others — the question being, Did the defendant' practice medicine without having procured a license? and not, Who was responsible for his prosecution?

Defendant contends that the court erred in permitting an overlong cross-examination of defendant. Where defendant offers himself as a witness in his own behalf in a criminal case, he is subject to the same rules of cross-examination as any other witness. The state bad a right to inquire particularly into the defendant’s qualifications and the manner in which he conducted his business. If such cross-examination disclosed the defendant’s ignorance and subjected him to humiliation, that was his misfortune.

The extent of cross-examination is largely within the discretion of the trial court, and, where there is nothing in the record to show that such discretion was abused, the cause will be affirmed.

Defendant complains of other errors, but they are equally without substantial merit.

No reversible error appearing upon the record, the cause is affirmed.

EDWARDS, J., concurs. DAVENPORT, P. J., absent, not participating.


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    In re W. H. WEBB.
    No. A-8040.
    Opinion Filed June 27, 1931.
    (1 Pac. [2d] 416.)

      J. A. ,Shirley and Walter J. Turnbull, for petitioner.
    J. Berry King’, Atty. Gen., (J. R. Hannah, of counsel), for respondent.
   EDWARDS, J.

This is an original proceeding in habeas corpus. Petitioner alleges that he is unlawfully, restrained by the chief of police of the city of Durant under and by virtue of a conviction in the municipal court upon a charge based on an ordinance forbidding the soliciting or drumming of patronage for persons authorized to perform marriage ceremonies; that said ordinance is void because unreasonable and in excess of the police power of the city.

The respondent has filed a return setting out, in substance, that the city of Durant, under authority of section 4547, Comp. St. 1921, enacted an ordinance in part as follows :

“Sec. 1. Any person who shall be found within the city of Durant soliciting or drumming patronage for any person authorized to perform marriage ceremonies or who shall induce or persuade any person to obtain the services of any particular person or official to perform a marriage ceremony, whether such soliciting be for compensation or otherwise, shall be deemed guilty of a misdemeanor and upon conviction shall be fined in any sum not to exceed $20 including costs.”

Section 4547, Comp. St. 1921, is:

“The mayor and council shall have the care, management and control of the city and its finances, and shall have power to enact, ordain, modify or repeal any and all ordinances not repugnant to the laws of the United .States and the Constitution and laws of this state, as they shall deem expedient and for the good government of the city, the preservation of the peace and good order, the suppression of vice and immorality, and the benefit of trade and commerce, and the health of the inhabitants thereof, and such ordinances, rules and regulations as may be necessary to carry such power into effect. They shall divide the city into not less than four wards, and establish the boundaries thereof. The council shall have no power to allow or pay any debt or obligation of any character arising from any act done, or thing bought by any provisional government, formerly existing, where the cities now are, nor of any debt, to any person made therewith under any guise whatsoever, unless authorized so to do by a majority of the legal voters of such city.”

It is held that a city of the first class may prohibit those things which may reasonably be said to affect the morals, health, and safety of its citizens. In re Gribben, 5 Okla. 379, 47 Pac. 1074; Walcher v. Church, 76 Okla. 9, 184 Pac. 106, 6 A. L. R. 1593; Ex parte Westellison, 38 Okla. Cr. 207, 259 Pac. 873; Ex parte Hall, 49 Okla. Cr. 366, 294 Pac. 823; 19 R. C. L. 854; 28 Cyc. 726. A municipality may prohibit the advertising and soliciting of trade within its limits, and the personal solicitation of customers where such soliciting constitutes a source of annoyance or confusion. 19 R. C. L. 158, note 17. The county seats of the counties bordering on the state of Texas are resorted to by a great many persons from Texas for the purpose of procuring license to marry and to be married in this state to avoid restrictions upon the issuing of marriage license in Texas. ¡Statistics have been made public at various times disclosing a great excess in the number of marriage licenses issued and marriage ceremonies performed in counties along the Texas border over other counties of like population in this state. We perceive that the drumming or soliciting of patronage for persons authorized to perform the marriage ceremony in the public places of such county seats may constitute an annoyance to the public and be inimical to good order, and tends to belittle and bring into contempt the solemnizing of marriages.

Tbe ordinance in question, however, goes far beyond tbe power of tbe municipality, in particular that it does not limit its application to tbe public places of tbe city, but applies equally when done in tbe privacy of tbe borne. It is not witbin tbe power of tbe municipality to regulate tbe conduct of its citizens in this particular except in so far as they may be done in public or constitute an annoyance or be against tbe good order and repose of tbe community.

For tbe reasons assigned, tbe writ is awarded, and tbe petitioner discharged.

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


author: ROWE, .Special Judge. EDWARDS, P. J.

text:
    SAM INGRAM v. STATE.
    No. A-7591.
    Opinion Filed Jan. 2, 1931.
    Rehearing Denied Jan. 17, 1931.
    Dissenting Opinion, July 2 1931.
    (3 Pac. [2d] 743.)

      See, also 51 Okla. Cr. 143, 3 Pac. (2d) 736.
    Leahy, Macdonald & Files and L. H. Justus, Jr., for plaintiff in error.
    The Attorney General, for the State.
   ROWE, .Special Judge.

This is an action prosecuted by information originally commenced in Osage county, but said cause was removed to Tulsa county on a change of venue. The defendant was tried and convicted in Tulsa county, and his punishment fixed at a fine of $500 and costs. He filed a motion in arrest of judgment, which was overruled, and also a motion for new trial was duly filed and overruled, and the record properly preserved on each. The case was duly appealed, and on this appeal he seeks a reversal of the judgment.

Under the law, which seems to be so well settled in this jurisdiction, and in the view we have taken of the disposition which must necessarily follow in this case, it is deemed unnecessary to discuss the evidence further than to call attention to the fact that the defendant was employed as tax ferret in Osage county under contract entered into with the board of county commissioners of said county; that, in addition to his contract with the county for discovering omitted taxes, he also had a contract which gave him 15 per cent, commission on' gross production taxes discovered by him for Osage county. It further appears that there had been for many years a custom in Osage county that, when a tax ferret discovered property which had not been assessed, he went into the county treasurer’s office and entered the same in red ink on the tax roll; that it had also been a custom for the treasurer not to notify the taxpayer at the time the ferret put the same on the book in red ink, but if, after the entry thereof, any controversy arose, then notice was served and a hearing held.

The record shows that the original information, which has been designated the first information, was filed in Osage county. Later the cause was removed to Tulsa county on a change of venue. After the same had been transferred to Tulsa county, the county attorney of Osage county filed a first amended information in the district court of Tulsa county. At a later date, the county attorney of Osage county filed a second amended information in Osage county, it appears that the district judge in Osage county had been disqualified, and, after said disqualification, made an order granting permission to the county attorney of Osage county to file the second information and entered an order directing the clerk to transmit said information to Tulsa county. It is urged by defendant, under his first proposition, that the court erred in overruling defendant’s motion to quash the first and second amended informations and erred in refusing to sustain defendant’s demurrer to the information.

It is further urged that a judge who has disqualified has no authority or jurisdiction to enter any order affecting the rights of the defendant, and that he loses all jurisdiction in the matter. The filing of the amended in-formations presents a question of jurisdiction which directly affects the rights of the defendant, guaranteed to him under the Constitution and laws of this state. There is no question but that it is well settled that the county attorney of Osage county did not have authority to file a new information or amended information, which changed the substance of the charge in Tulsa county. The Constitution of the state of Oklahoma provides that prosecution for felonies shall be by indictment or may be by information after the accused has had a preliminary examination before an examining magistrate, or after having waived the same. The rule was announced in the case of Holcomb v. State, 16 Okla. Cr. 1, 166 Pac. 755, in a well-reasoned opinion by Justice Doyle:

“In this state all crimes are statutory, and the practice and procedure in the prosecution thereof, including the form of the accusation and the manner in which, and by whom, preferred, is for the Legislature to determine, except when restrained by the state or federal Constitution, and we have no statute authorizing the county attorney of one court to file an information in any county other than his official county.”

The amended or new informations filed changed the substance of the original charge, and there can be no question that under the law it was error to compel defendant to go to trial without having had a preliminary examination, or having duly waived the same. Then, too, it necessarily follows that, in view of the fact that the information filed in Tulsa county was without authority of law, the whole proceedings subsequent to the filing of the new or so-called amended information in Tulsa county were null and void, and that the district court was without jurisdiction to try the defendant on the new or amended informations, or to render the judgment appealed from.

In the case of Payne v. State, 30 Okla. Cr. 218, 235 Pac. 558, the court said:

“Under section 17, Bill of Rights, no person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination.”

Under the rule announced in the Holcomb Case, and in view of the Constitution of this state and statutes governing such matter, we are forced to the conclusion that the information filed in Tulsa county was without authority of law, and that the district court of Tulsa county was without jurisdiction to try the defendant on said information.

We are also of the opinion that a district judge who has been disqualified loses jurisdiction and has no right to make any order affecting the rights of the defendant.

There are a number of other assignments of error ably argued on behalf of the defendant and ably answered by the writer of the brief on behalf of the Attorney General, but, in view of the conclusion arrived at, we deem it unnecessary to discuss them.

For the reasons herein stated, the judgment of the district court of Tulsa county is reversed, and the cause remanded.

DAVENPORT, J., concurs.

EDWARDS, P. J.

(dissenting). I am not able to agree with the majority opinion. In my judgment the amendment was immaterial and could not have prejudiced defendant, and falls clearly under the harmless error statute. Section 2822, Gomp. Stat. 1921. The opinion rests on the authority of Holcomb v. State, 16 Okla. Cr. 1, 166 Pac. 755. That case is on the authority of State v. Bartlett, 170 Mo. 658, 71 S. W. 148, 59 L. R. A. 756, 761. The Supreme Court of Missouri, however, has expressly overruled the Bartlett Case in several cases. State v. Dixon (Mo. Sup.) 253 S. W. 746, 747, where it was held:

“The prosecuting attorney is required to follow and conduct criminal prosecutions taken to other counties on changes of venue. The statute reads that the ‘information may be amended * * * at any time by leave of court before trial.’ It will be seen that the language of the statute is broad enough to meet the exigencies of any case in which an amendment of the information may be required; otherwise we will interpolate into the section an exception not contemplated by the lawmakers, which is that the right of the state to amend an information is limited to the court in which the prosecution originates. The right to amend an information seems to be as broad as the right to amend pleadings in civil cases. A change of venue is awarded to a defendant as a privilege when it appears he cannot have a fair and impartial trial in the county where the crime is charged to have been committed. It would be anomalous to contend that, by taking a change of venue, the defendant could deprive the state of the right of amendment, and thus defeat a prosecution because of a defect in an information that is unqualifiedly amendable under the statute.”

In State v. Tippett, 317 Mo. 319, 296 S. W. 132, 135, the court said:

“In the circuit court of Stoddard county the prosecuting attorney filed an information and then a so-called amended information. In the circuit court of Dunklin county, after the change of venue, the court permitted, over the objection and exception of defendant, a second amended information to be filed. The error charged is the permitting of the second information to be filed in Dunklin county, after the change of venne, the crime occurring in Stoddard county. We have expressly ruled in late cases that an information may be amended, under section 3853, Revised Statutes 1919, designated the Statute of Jeofails, even after a change of venue awarded. State v. Dixon (Mo. Sup.) 253 S. W. 746; State v. Rennison, 306 Mo. 473, 267 S. W. 850.”

The same ruling is emphatically laid down in State v. Lomax, 322 Mo. 86, 14 S. W. (2d) 436.

The Holcomb Case supra, is clearly not sound, and should be overruled.


text:
    JESS BAXTER v. STATE.
    No. A-7862.
    Opinion Filed July 11, 1931.
    (1 Pac. [2d] 814.)
    David Tant and George Miller, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Logan county of selling whisky to a minor and was sentenced to serve a term of 18 months in the state penitentiary and to pay a fine of $500.

The record for the state is, in substance, that, at the time charged, one George Kelley, Jr., accompanied by two other young men, bought a half-pint of whisky from defendant. Defendant denied the sale and offered some other testimony tending to disprove it. The evidence is sharply conflicting, but its weight and the credibility of the witnesses was a question for the jury. The jury did not fix the punishment, and it was assessed by the court. While the case is not strong, we will not disturb the judgment on the weight of the evidence. Upon a consideration of the entire record, we are satisfied the sentence imposed is excessive, and that justice requires its modification. The judgment is reduced to imprisonment in the penitentiary for a term of six months and a fine of $250.

As modified, the case is affirmed.

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


author: CHAPPELL, J.

text:
    Ex parte DEE PACK.
    No. A-8172.
    Opinion Filed July 11, 1931.
    (1 Pac. [2d] 817.)
    W. A. Corley, W. W. Miller, and J. T. Parks, for petitioner.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., E. G. Carroll, Co. Atty., Pete Helton, and H. T. Williams, for respondents.
   CHAPPELL, J.

Dee Pack filed his petition in this court for a writ of habeas corpus, alleging that he was illegally restrained of his liberty by Bill Parker, sheriff of Adair county, Okla., and confined in the county jail of said county.

Petitioner alleges that fie is charged with the offense of subornation of perjury, in that he, on the 2d day of March, 1931, caused one Clyde Morris to make and subscribe a false affidavit before J. R. Morris, a notary public in Adair county.

The undisputed facts in the case appear to be that verbal complaint was made by certain persons to Honorable Wm. H. Murray, Governor of the state, that Bill Parker, sheriff of Adair county, was not enforcing the prohibitory laws of that county; that the Governor gave verbal directions to Jesse Dunn, a deputy of the Bureau of Criminal Identification, to make an investigation of the conditions complained of and report back to the Governor; that thereupon Dunn went to Adair county, and, accompanied by Dee Pack the petitioner, Mose Critten-den, and Sam Kirk, called on numerous persons, among whom was Clyde Morris; that Dunn was also accompanied by J. R. Parris, a notary public in Adair county; that a certain affidavit was prepared by Parris and signed and sworn to by Morris, whereupon Morris swore that he had an arrangement with Bill Parker, sheriff, to be allowed to sell whisky in said county and to pay the sheriff 50 cents a gallon for such privilege, and in pursuance of such agreement he did make and sell whisky and did pay the sheriff at one time $15 for such privilege; that the affidavits so taken were brought by Dunn and left at the Governor’s office and that the same have disappeared and their whereabouts are unknown; that no' proceedings had been filed to' oust the sheriff nor had any sort of action been started in any court at the time the affidavits in question were taken.

After the affidavits had been made, Clyde Morris and others who had made them were arrested by the sheriff, charged with violation of the prohibitory liqnor laws, and thereafter made other affidavits repudiating the statements made in their first affidavits.

That shortly after these affidavits were taken and had been lost, the Governor commissioned W. 0. Bruton, an attorney of Sequoyah county, to conduct an investigation of the official conduct of Bill Parker and directed him if the evidence warranted, to file ouster proceedings against him to remove him from office; that when Bruton had finished his investigation he decided not to file charges, and no proceedings were ever had or filed to oust the sheriff from office. That the county attorney then filed complaint in the county court of Adair county against Dee Pack, Mose Crittenden, and Sam Kirk, charging them with subornation of perjury in the taking of the affidavit of Clyde Morris.

iSeetion 1628, C. O. S. 1921, defines “perjury” as:

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

Section 1640, C. O. S. 1921, provides:

“Any person who willfully procures another person to commit any perjury, is guilty of subornation of perjury.”

In United States v. Bedgood (D. C. So. District of Alabama), 49 F. 54, that court said:

“Perjury consists of a false oath to a material point, administered by one having legal authority, in a proceeding valid and regular in law.”

The first question to- be considered is:

Was the oath complained of administered pursuant to and required by any law of the state of Oklahoma?

Chapter 127, Session Laws 1925, creates the Bureau of Criminal Identification and provides its powers and duties. The sections pertinent to this opinion are 11, 12, and 13, which read as follows :

“.Section 11. The various members of the bureau are hereby authorized and empowered to make arrests without warrants for all violators of the law they may witness; to serve and execute warrants issued by the proper local authority; and shall have and exercise throughout the state the powers of sheriff, constable and municipal police officers, except the service of civil process.
“Section 12. The bureau with the approval of the Governor may be called upon by any other department of the state government to aid in enforcing all laws applicable or pertaining to that department or any regulation thereof.
“Section 13. The bureau shall be independent of the peace and police authorities of the counties and municipalities of the state, but shall co-operate with the officers of the counties and municipalities in the detection of crime, the apprehension of criminals ami the preservation of the law and order throughout the state; it being the purpose of this act to aid in the preservation of peace, the prevention and detection of crime and the apprehension and conviction of criminals.”

Our attention has not been called to any other statute which would require or authorize the administration of the oath in question.

It is evident from an examination of these sections of the statute that the oath in question was not administered pursuant to, nor required nor authorized by such sections.

Section 1500, Comp. St. 1921, reads as follows:

“No act or omission shall be deemed criminal or punishable except as prescribed or authorized by this code. The words ‘this code/ as used in the ‘penal code’ shall be construed to mean ‘statutes of this state.’ ”

In the case of City of Shawnee v. Landon, 3 Okla. Cr. 440, 106 Pac. 652, this court said:

“Penal statutes cannot be enlarged by implication or extended by inference. No person can be convicted of a crime unless the act committed is within both the letter and the spirit of a penal statute.” See, also, White v. State, 4 Okla. Cr. 143, 111 Pac. 1010; Myers v. State, 19 Okla. Cr. 138, 197 Pac. 884, 18 A. L. R. 1057; State v. Smith, 19 Okla. Cr. 195, 198 Pac. 879.

In Ex parte Ellis, 3 Okla. Cr. on pages 224, 225, 105 Pac. 184, 186, 25 L. R. A. (N. S.) 653, Ann. Cas. 1912A, 863, this court said:

“In general, any material statement made under oath in any proceeding, or in relation to any matter in which oath is authorized, or required by law, may be the subject of perjury, or subornation of perjury. * * *”

It is a general rule that perjury cannot be predicated on an oath which is not required by law. iSee, also, State v. McCarthy, 41 Minn. 59, 42 N. W. 599; United States v. Dupont (D. C.) 176 F. 823; State v. Wyatt, 3 N. C. 56; People v. Fox, 25 Mich. 492; Morgan v. State, 45 Okla. Cr. 268, 282 Pac. 1110.

The next question to be considered is: Will habeas corpus lie in a case of this character?

In Ex parte Show, 4 Okla. Cr. 416, 113 Pac. 1062, this court said

“The general rule is that the writ of habeas corpus may not be used, either before or after conviction, to test the sufficiency of an indictment or information; but the rule is subject to the qualification that when the accusation is not merely defective or technically insufficient, not merely demurrable or subject to' a motion to' quash, but is fundamentally defective in substance, so that it charges a crime in no manner or form and by no intendment, a party in custody to answer thereto, or after conviction thereon, will be discharged on habeas corpus.”

To the same effect is Ex parte Thornton, 29 Okla. Cr. 382, 234 Pac. 217; Ex parte Sneed, 38 Okla. Cr. 81, 259 Pac. 156; Ex parte King, 41 Okla. Cr. 241, 272 Pac. 389.

It is apparent from an examination of the complaint in the case at bar that the state will be unable to amend the same to show that the oath upon which the perjury is predicated was taken or administered by authority of law.

The complaint, showing upon its face that the oath upon which the charge of subornation of perjury is founded was not administered pursuant to nor authorized by any law of this state, charges no offense, and the petitioner is entitled to his discharge.

Writ allowed.

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


author: DAVENPORT, P. J.

text:
    J. H. TERRELL v. STATE.
    No. A-7877.
    Opinion Filed July 11, 1931.
    (1 Pac. [2d] 810.)

      Hill & Banta, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted as an habitual violator of the prohibitory laws, on an information, the charging part of which is as follows:

“Said J. H. Terrell did, then and there,' willfully, wrongfully, intentionally and feloniously and subsequent to the convictions of said J. H. Terrell in the above set forth offenses, and being more than the second offense of the said J. H. Terrell, have and keep in his possession certain intoxicating liquor, to wit: 70 pints of beer, said beer then and there containing as much as one half of one per cent, of alcohol measured by volume, and capable of being used as a beverage, with the unlawful and felonious intent to sell, barter, give away and otherwise dispose of the same, against the peace and dignity of the state” — and was sentenced to be imprisoned at McAles-ter for a term of one year.

Motion for new trial was filed, considered, overruled, and exceptions saved.

The testimony on behalf of the state tends to show that the officers went to- the home of the defendant without a search warrant or warrant for his arrest; they claim they had some kind of information that the defendant was violating the law. The witnesses claim they found a number of bottles of what they call beer or home-brew on the defendant’s premises, in and around his buildings. Witness Doyle stated he tasted some of the brew that was found in the cane patch. The witness Doyle was asked the following- questions, and gave the following answers:

“Q. Mr. Doyle, state whether or not you can tell intoxicating liquors when you taste them? A. I do-. Q. Can you tell whether or not beer has alcoholic contents; can you tell that or not?”

Objections were interposed by the defendant. The examination of the witness proceeded on other lines without the question being answered. At the close of the testimony, the defendant demurred to the evidence of the state for the reason that the evidence, with every reasonable inference that may be drawn therefrom, does not sustain, and wholly fails to sustain, the charge alleged in the information, and fails to show a violation of the prohibitory laws of the state of Oklahoma, which demurrer was overruled and defendant excepted.

•Several errors are assigned by the defendant as grounds for reversal of this case. It is only deemed necessary to consider the second assignment, which is as follows :

“The verdict of the jury is contrary to the evidence.”

The allegations in the information charged the defendant with having possession of intoxicating liquor, to wit: A number of bottles of beer containing as much as one-half of one per cent, alcohol measured by volume, and capable of being used as a beverage, with the unlawful and felonious intent to sell, barter, give away, and otherwise furnish the same to others. An examination of the record clearly shows that the liquor in question was home-brew. There is no evidence whatever as to the per cent, of alcohol contained in the home-brew found, or that it was capable of being used as a beverage; there is no evidence that it was possessed by the defendant for the pur-' pose of selling, bartering, giving away, or otherwise furnishing the same; nor is there any testimony that it was intoxicating. The evidence is insufficient to sustain a conviction.

There are many other errors assigned by the defendant. Several of said errors are sufficient to warrant a reversal of this case, but, in view of the fact that there is a total failure of proof of the allegation in the information, it is not deemed necessary to consider them.

The case is reversed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    CHARLES HOLLAND v. STATE.
    No. A-7868.
    Opinion Filed July 11, 1931.
    (300 Pac. 745.)
    Campbell & Ray, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Washington county of larceny of an automobile and was sentenced to serve a term of five years in the state penitentiary.

The record discloses that, at the time charged, defendant took an automobile belonging to one Ballard which was parked in front of the Elks Club in Bartles-ville and started to drive it to Pawhuska. He drove it several miles in the country, ran it into a ditch, and abandoned it. He testified that he was drunk and thought that the car belonged to one Pratt and that he had Pratt’s permission to drive it. Pratt was not a witness. The evidence is sufficient to* sustain the verdict and judgment.

The case is affirmed.

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


text:
    VIRGIL YOUNG v. STATE.
    No. A-7943.
    Opinion Filed July 11, 1931.
    (1 Pac. [2d] 791.)
    Hughes & Hughes, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kiowa county on a charge of transporting intoxicating liquor, and was sentenced to' pay a fine of $450, and to serve 130 days in the county jail.

The case was tried in April, 1930, and the appeal was lodged in this court in August, 1930. No briefs in support of the appeal have been filed, nor was there any appearance for oral argument at the time the case was submitted.

In view of the fact that the quantity of whisky alleged to have been by the defendant transported was so small, we feel that the punishment imposed is excessive, and should be modified to1 a fine of $100 and 60 days in the county jail.

As modified, the case is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    VERNON R. BEASLEY v. STATE.
    No. A-7840.
    Opinion Piled July 11, 1931.
    (1 Pac. [2d] 790.)
    Sam S. Gill, for plaintiff in error.

      J. Berry King, Atty. Gen.,.and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, Vernon R.. Beasley, was convicted on an information charging that on the 11th day of October, 1929, in Oklahoma county, he was guilty of operating a public nuisance, and according to the verdict of the jury was on the 3d day of January, 1930, sentenced to pay a fine of $500 and to be imprisoned in the county jail for three months. Prom the judgment an appeal was perfected by filing in this court on May 2, 1930, a petition in error with case-made attached.

A motion to dismiss has been filed by the Attorney General, which, omitting the caption, is as follows:

“That the said Vernon R. Beasley, plaintiff in error, is a fugitive from justice and without the jurisdiction of this court, and under the holdings of this court an appeal will be dismissed when the plaintiff in' error is a fugitive from justice or cannot be made to respond to an order or judgment which may be entered or rendered in the case.”

The motion to dismiss is supported by a satisfactory showing that the said Beasley is a fugitive from justice and not within the jurisdiction of the court, and his whereabouts is unknown. It has been repeatedly held by this court that it will not consider an appeal unless the plaintiff is where he can be made to respond to' any order or decision that may be entered in the case, and when the plaintiff in error becomes a fugitive from justice, pending the determination of his appeal, this court will upon proper motion dismiss the appeal. Williams v. State, 11 Okla. Cr. 35, 141 Pac. 453; McKellop v. State, 18 Okla. Cr. 326, 194 Pac. 457; Daley v. State, 23 Okla. Cr. 355, 214 Pac. 941; Terrell v. State, 35 Okla. Cr. 183, 249 Pac. 744.

The plaintiff in error has waived his right to' have his appeal in this cause considered. The appeal of the plaintiff in error is dismissed. Mandate ordered forthwith.

EDWARDS and CHAPPELL, JJ., concur.


text:
    ELLEN GOLETTO et al. v. STATE.
    No. A-7669.
    Opinion Filed July 11, 1931.
    (1 Pac. [2d] 795.)
    J. Hugh Nolen and ,S. A. Horton, for plaintiffs in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the district court of Okfuskee county of the crime of larceny of domestic fowls, and their punishment fixed 'by the jury at imprisonment in the state penitentiary for one year and one day.

The evidence of the state was that on the 11th day of April, 1929, L. V. Smith was the owner of thirteen light Brahma hens and one rooster; that the rooster had very peculiar markings that made it easy to identify him; that when the defendants were arrested the thirteen hens and one rooster were together and in their possssion; that these chickens were stolen in the nighttime from Smith’s premises; that the man who assisted in stealing the chickens wore a peculiar shoe, in that it had no heel and was turned up at the toe; that at three different places at the chicken roost a track was made by this peculiar shoe, and that defendant at the time of his arrest was wearing such a shoe; that tracks of a man and a woman led from the chicken house out over the fence where the chickens were loaded into some vehicle; that the defendants at the time of their arrest were in a Ford truck owned by the defendant Ellen Goletto’s husband. That at the time of their arrest, defendants told the officers they were on their way to Ft. Smith to sell the chickens; that defendants had sold a large number of chickens to various parties in that section of the country.

The evidence of the defendants was that they lived at Lodi; that they had raised these chickens, had caught them the night before, and put them in the coop on the truck and were taking them to Ft. Smith to sell them to get money to doctor the eyes of the defendant McDonald; that they had gone out of their way through Stigler, because McDonald had some business with a man at Wilburton.

Defendants argue but one question in their brief, the sufficiency of this evidence to support the verdict of the jury.

In Browning v. State, 31 Okla. Cr. 373, 239 Pac. 272, this court said:

“Where there is evidence from which the jury may reasonably and logically find the defendant gnilty of the crime charged, in the absence of unusual circumstances, this court will not set aside the jury’s verdict on account of insufficiency of the evidence.”

See, also, Wilson v. State, 32 Okla. Cr. 139, 240 Pac. 155; Shields v. State, 32 Okla. Cr. 344, 240 Pac. 661; Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360.

The evidence of the state is sufficient to support the verdict of the jury. The cause is therefore affirmed.

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


author: PER CURIAM.

text:
    TOM LENORA v. STATE.
    No. A-8056.
    Oinion Filed July 11, 1931.
    (1 Pac. [2d] 832.)
    O. H. Whitt, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Pittsburg county on a charge of having the possession of intoxicating liquor and was sentenced to pay a fine of $500 and to serve 90 days in the county jail. He filed an application for the record, supported by a sufficient affidavit showing his inability to pay for same. His application was denied. This was error requiring a reversal. Jeffries v. State, 9 Okla. Cr. 573, 132 Pac. 823; Hutchins v. State, 13 Okla. Cr. 717, 167 Pac. 338; Brogdon v. State, 38 Okla. Cr. 269, 260 Pac. 784.

The case is reversed and remanded.


author: DAVENPORT, P. J. CHAPPELL, J.

text:
    W. A. SMITH v. STATE.
    No. A-7638.
    Opinion Filed July 18, 1931.
    (1 Pac. [2d] 814.)
    Owen F. Renegar, for plaintiff in error.
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Kiowa county on a charge of selling mortgaged property, and was sentenced to serve a term of one year in the state penitentiary.

The evidence of the state is that the defendant purchased a Velie automobile from the Walker Motor Exchange Company of Oklahoma City, and gave a mortgage thereon to said company in the sum of $365. The mortgage was recorded in Kiowa county,' and thereafter in said county the defendant sold said automobile to one Greenhaw without having procured the written consent of the holder of said mortgage. The mortgagee replevined said automobile from Greenhaw, and defendant did not defend said replevin action.

Defendant admitted the purchase of the automobile and the execution by him of the mortgage, and that the mortgage had not been paid, and that he sold the automobile to' Greenhaw knowing that it was mortgaged. He testified he had verbal authority from the mortgagee to sell the same. At the close of the trial, he requested the trial court, in substance, to instruct the jury that, if they should find defendant was authorized by oral authority from the mortgagee to sell or dispose of said car, then they should find the defendant not guilty. The court refused this instruction, and gave no instruction touching the matter of oral consent, but instructed the jury in instruction No. 4 that if they should find from the evidence that defendant sold the automobile in question to Green-haw, and that at the time the same was mortgaged, and without the written consent of the mortgagee and with intent to cheat and defraud, then they should find the defendant guilty. In the case of Watson v. State, 11 Okla. Cr. 542, 149 Pac. 926, this court held that a mortgagor, prosecuted under the provisions of section 2215, Comp. Stat. 1921, may prove oral consent in mitigation of punishment. That case further holds in substance that the absence of an intent to> defraud would be a defense. The instruction requested is not correct, but it is well settled that where a defendant requests an instruction pertaining to1 a material issue, but the request is not in proper form, the court should give a correct instruction covering such issue. Thomas v. State, 13 Okla. Cr. 414, 164 Pac. 995.

For the reasons assigned, the case is reversed and remanded.

EDWARDS, J., concurs. CHAPPELL, J., dissents.

CHAPPELL, J.

(dissenting). I cannot agree with the majority opinion in this case, for two reasons:

First. Because the evidence of the defendant was insufficient to show that he had the verbal consent of the mortgagee to sell the property.

On direct examination, the defendant testified:

“Q. Did you have permission to sell this particular car with this mortgage on it? A. He told me I could sell it; yes, sir.”

On cross-examination he testified:

“Q. Did you ever have any consent from Walker Motor Exchange Company, the mortgagee in that mortgage there, to sell this car? A. Just as I have said, sir; I have said that I told them that I was going to sell the car. I would not buy it for any other purpose, and they told me I ought to take it and get something to get money out of.
“Q. Did you ever have any written consent from them? A. No, sir.”

It will thus be seen that the defendant never at any time testified that he had permission, written or otherwise, from the mortgagee to sell the property in question.

The evidence being insufficient to raise the question of verbal consent, it was not error for the trial court to refuse to instruct the jury upon such question.

Second. I cannot agree with the majority opinion because the trial court’s action in refusing, to instruct the jury upon the question of verbal consent to sell the property was right.

Section 2215, C. O. S. 1921, provides:

“Any mortgagor of personal property, or his legal representative, who, while such mortgage remains in force and unsatisfied, conceals, sells, or in any manner disposes of such property, or any part thereof, or removes such property, or any part thereof, beyond the limits of the county, or materially injures or willfully destroys such property, or any part thereof, without the written consent of the holder of such mortgage, shall be deemed guilty of a felony, and shall, upon conviction, be punished by imprisonment in the penitentiary for a period not exceeding three years or in the county jail not exceeding one year, or by a fine of not to exceed f500: Provided, that the writing containing the consent of the holder of the mortgage, as before specified, shall be the only competent evidence of such consent, unless it appear that such writing has been lost or destroyed.”

It was not an offense at common law to sell mortgaged property. The offense being statutory, we are confronted with the question of the power of the Legislature to make the acts complained of criminal.

In the case of State v. Harris et al., 47 Okla. Cr. 344, 288 Pac. 385, 387, this court said:

“Embezzlement was not a crime at common law, but is a crime defined by statute, and the Legislature may declare what acts constitute the crime of embezzlement and fix the punishment therefor. * * *
“It was sufficient to charge the offense of embezzlement in the language of the statute or substantially in such language. Since section 9781, supra, does not require any intent, but makes the officer intrusted with the funds coming into Ms hands for safe-keeping, transfer, or disbursement, * * * or any one win advises, aids, or participates in the conversion, using by way of investment, or loaning of such funds, guilty of embezzlement, it is sufficient to charge such acts in the language of the statute and to prove that such funds were converted or used by way of investment or loaned, and that the conversion, investing, or loaning, was participated in by the defendants.”

Section 2215, supra, makes it a felony to conceal, sell, or in any manner dispose of mortgaged property, or any part thereof, or to remove such property, or any part thereof, beyond the limits of the county, or materially injure or willfully destroy such property, or any part thereof, without the written consent of the holder of such mortgage.

It was within the power of the Legislature to make any of the acts forbidden by section 2215, supra, criminal.

Section 36, article 5, of the Constitution, provides :

“The authority of the Legislature shall extend to all rightful subjects of legislation, and any specific grant of authority in this Constitution, upon any subject whatsoever, shall not work a restriction, limitation, or exclusion of such authority upon the same or any other subject or subjects whatsoever.”

None of the limitations set forth in sections 46, 47, 48, 49, 50, 51, 52, or 53 of the Constitution in any wise curtail or limit the power of the Legislature to enact section 2215, supra, and similar statutes upon other subjects.

In Stewart v. State, 4 Okla. Cr. 564, 109 Pac. 243, 32 L. R. A. (N. S.) 505, this court said:

“It is the exclusive province of the Legislature to declare what shall constitute a crime, but it is the duty of the courts to determine whether a particular act done or omitted is within the intendment of a general statute.
“The Legislature in creating an offense may define it by a particular description of the act or acts constituting it, or it may define it as any act which produces, or is reasonably calculated to produce, a certain defined or described result.”

In State v. Bailey, 115 Or. 428, 236 Pac. 1053, that court said:

“Legislature may declare what acts shall constitute a crime subject to constitutional prohibition.”

In People v. Malley, 49 Cal. App. 597, 194 Pac. 48, that court said:

“The Legislature has power to1 repress whatever it deems hurtful to the general good, the only limitations being those prescribed in the Constitution.”

In State v. Park, 42, Nev. 386, 178 Pac. 389, that court said:

“Acting within constitutional bounds, the Legislature is clothed with unlimited and absolute power to define statutory offenses and prescribe punishment for their violation, and may penalize acts which before were innocent.
“The Legislature may, in the exercise of the police power when public interests demand it, define and declare public offenses the effect of which restricts or regulates the use and enjoyment of private property.”

.Such section further provides that the writing containing the consent of the owner of the mortgage shall be the only competent evidence of such consent, unless it appear, that such writing has been lost or destroyed. It is within the power of the Legislature to fix the manner of proof as well as the manner of consent.

It being within the power of the Legislature to make the acts complained of criminal, and to- provide the manner of proof, this court has no right to read into section 2215, supra, conditions neither contained in nor implied by the language of such section.

In the exercise of its police power the Legislature saw fit to make the acts complained of criminal, evidently for the purpose of protecting honest mortgagors and restricting dishonest ones, and for the further purpose of encouraging business and making investments secured by chattel mortgages stable and valuable, and also for the encouragement of business and the benefit of all the people of the state.

In Watson v. State, 11 Okla. Cr. 542, 149 Pac. 926, this court said:

“Section 2755, Rev. Laws 1910, was enacted for the purpose of protecting mortgagees from fraud, annoyance, and expense, and was intended only to give such mortgagees fair protection, without imposing unnecessary, harmful, and burdensome restrictions upon mortgagors.”

How this court in the face of the plain and unambiguous language of section 2755, Rev. Laws 1910, section 2215, supra, could arrive at any such conclusion is beyond my comprehension. The policy of the state is to be determined by the Legislature. This court is not charged with the duty of legislating, but with the interpretation of the law within the limits of the Constitution and the provisions of the particular law in question.

Watson v. State, supra, is unsound, is contrary to the Constitution and statutes of the state and the great weight of authority in other states, and ought not to be followed by this court.

In that case, the court said the defendant had a right in mitigation of punishment to show the debt had been paid, or that he had verbal consent of the mortgagee to remove the property.

In the case at bar, this goes a step farther and says that verbal consent is an absolute defense to the crime charged, and that it is error for the trial court to refuse to give such instruction.

The effect of these two decisions is to unsettle business, render chattel mortgages undesirable investments, and nullify and destroy the section.

For the reasons stated, I dissent from the majority opinion in the case.


text:
    NARVEL STEPHENS v. STATE.
    No. A-7825.
    Opinion Filed July 18, 1931.
    (1 Pac. [2d] 809.)
    W. L. Chase and W. A. Woodruff, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

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

The evidence of the state was that Alex Bolen was traveling by covered wagon with his family, consisting of himself and wife, two sons, and three daughters; that at a point in Adair county where Highway No. 17 crosses the Kansas City Southern Railroad, the defendant Nar-vel Stephens and one Austin Duncan were on the railroad track, some 75 yards from the wagon; that Duncan laid down on the railroad track and put his hands up to his face; that the defendant kneeled and, pointing a 22-cali-ber rifle at the covered wagon, fired a shot which struck Opal Bolen, who was riding in the wagon, in the back of the head and caused her death in a short time thereafter; that when defendant and Duncan were arrested they denied having been at the place where the shooting occurred.

At the trial the defendant, testifying in his own behalf, admitted that he shot at a rabbit and some birds at that place, but denied that he saw the wagon or knew that the parties were there, and claimed that if he caused the death of Opal Bolen it was an accident.

Defendant contends first that the court erred in overruling his motion for a continuance.

The showing of defendant was that Austin Duncan, his codefendant, was sick and unable to be present and testify in his behalf, but there was no showing that any subpoena had been issued or any diligence had been used to secure the attendance of Duncan or to procure his evidence by deposition.

Defendant further showed that he had a subpoena issued for George Ward, who had been present on the 22d day of October and attended the trial, but was not present on the 23d day of October, when the case was called for trial, and no application was made for an attachment for the absent witness.

The showing on its face was insufficient to entitle the defendant to a continuance.

A motion for continuance which does not show due diligence upon the part of the person interposing it to have absent witnesses present should be overruled. Bethel v. State, 8 Okla. Cr. 61, 126 Pac. 698; Buxton v. State, 11 Okla. Cr. 85, 143 Pac. 58; Gaines v. State, 18 Okla. Cr. 525, 196 Pac. 719; Queen v. State, 23 Okla. Cr. 146, 212 Pac. 1021.

Defendant next complains of the refusal of the court to give certain requested instructions, and of error of the trial court in giving certain instructions on its own motion.

An examination of the instructions given by the court on its own motion discloses that they are the usual instructions given in cases of this bind and correctly state the law as applicable to the facts in the case, and are as favorable to the defendant as the evidence in the case warrants.

Defendant complains of other errors, but they are without sufficient merit to require a separate discussion in this opinion.

For the reasons stated, the cause is affirmed.

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


text:
    LINCOLN SWEENEY v. STATE.
    No. A-7938.
    Opinion Filed July 18, 1931.
    (1 Pac. [2d] 789.)
    O. H. Whitt, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Pittsburg county on a charge of having the unlawful possession of intoxicating liquor, and was sentenced' to pay a fine of flOO and to serve 60 days in the county jail.

The record discloses that at the time charged certain officers went to the residence of defendant, made a search, and found a quantity of choctaw beer. The state introduced testimony that this was intoxicating. The defendant did not testify and offered no evidence. The evidence for the state is not strong. However, if the record were free from error, it would be sufficient to sustain the judgment. During the course of the trial, the judge, in ruling on the admissibility of certain evidence, stated in substance that this questioned evidence was admissible only in the event defendant “went on the stand and for the purpose of impeaching his testimony.” Section 2698, Comp. Stat. 1921, forbids mentioning the failure of defendant to become a witness in his own behalf. While the mention here was before the taking of testimony was closed, it was within the inhibition of the statute. The error of the trial court in this particular, considered in connection with the entire record, requires a reversal. Dorsett v. State, 16 Okla. Cr. 65, 180 Pac. 557; Shelton v. State, 49 Okla. Cr. 430, 295 Pac. 240.

The case is reversed and remanded.

DAVENPOET, P. J., and. CHAPPELL, J., concur.


author: PEE CTJEIAM.

text:
    LINCOLN SWEENEY v. STATE.
    No. A-7715.
    Opinion Filed July 18, 1931.
    (1 Pac. [2d] 789.)
    O. H. Whitt, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PEE CTJEIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Pittsburg county on a charge of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $100 and to serve 60 days in the county jail.

The record discloses that, at the time charged, certain officers with a search warrant went to the residence of defendant, made a search, and found 103 bottles of choctaw beer and a small quantity of wine. Defendant did not testify and offered no evidence.

Some contention is made that the search warrant was improperly issued as not based on a sufficient affidavit. This contention cannot be sustained. The affidavit, while not a model, makes a sufficient showing of probable cause to authorize the issuance of a search warrant. The testimony sufficiently sustains the judgment.

The case is affirmed.


text:
    MAY BELLE CANNON v. STATE.
    No. A-7935.
    Opinion Filed July 18, 1931.
    (1 Pac. [2d] 791.)
    Sigler & Jackson, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Carter county of the crime of burglary in the second degree, and her punishment fixed by the jury at imprisonment in the state penitentiary for a period of two years.

The evidence of the state was that at the time of the commission of the offense the defendant, a colored woman, was employed as a, domestic in a home in the city of Ardmore; that she was married and at that time her husband was employed and lived in Pauls Valley; that on the evening of October 31, 1927, between- the hours of 6 and 8 o’clock, the residence of V. S. Tucker was broken into by some person cutting- a screen and prying open a rear window, and the personal property of Mrs. Tucker, consisting of one fur coat, an electric iron, patent leather hat box, a mesh bag, several dresses, and other articles, of the value of $532, were taken from the house.

That some time after this burglary, a cousin of Mrs. Tucker’s who- lived in Pauls Valley, and who had visited Mrs. Tncker and was acquainted with her wearing apparel, saw a Negro woman on the streets of Pauls Valley with one of Mrs. Tucker’s dresses on. That she followed this Negro woman to the servant’s quarters on the premises of Mrs. Hill in Pauls Valley, and as soon as she had located the residence of this Negro woman, she notified Mrs. Tucker at Ardmore, and that the giving of this information led to the discovery of most of the stolen property; that when the officers went to the servant’s quarters to search them, the defendant had fled and came to Oklahoma City, where she was arrested more than a year later. That after her arrest, she made admissions of her guilt to the arresting officers and to others.

The defendant did not take the witness stand, but offered proof of her good character and of a finger print officer, who testified that the finger prints he found at the place of the burglary were not those of the defendant. But on cross-examination he admitted that if the person who committed the burglary wore gloves no finger prints would be left, and also that be found footprints under tbe window made by different shoes.

This conviction rests upon sufficient proof of the corpus delicti, proof of the possession of part of the stolen property by this defendant, and her several admissions of guilt. The evidence is sufficient to support the verdict of the jury, and the cause must be affirmed, unless the errors of law complained of require a reversal.

It is first contended that the trial court erred in admitting evidence obtained by the officers in an unlawful and illegal search of the residence of the defendant, and that this error was not cured by the subsequent action of the court in instructing the jury not to consider the evidence obtained by such search.

The fur coat and some dresses stolen by defendant were found without the aid of any search warrant, the dresses being worn by defendant on a public street and about the home of Mrs. Hill, and the fur coat being placed by defendant in the officer’s car after the search of defendant’s premises. This evidence was admissible and, with the other evidence obtained without the aid of a search warrant, was sufficient to- support the verdict of the jury.

It was admitted by the state that the officers had no search warrant to search defendant’s premises. Her counsel objected to- the introduction of the articles obtained by the search on the ground that the same were obtained in violation of her constitutional rights. The trial court at first overruled this motion, but later sustained the objection to the admissibility of the articles obtained by the search and instructed the jury not to consider them in arriving at their verdict.

While the evidence obtained by the search warrant was inadmissible, the same was only cumulative. The guilt of the defendant having been established beyond a reasonable doubt by the competent evidence introduced by the state, the cause will not be reversed for the admission of incompetent evidence.

Defendant next complains that the trial judge erred in remarks made in the presence of the jury concerning this evidence.

During the trial of the case and while Cecil Crosby, a witness for the state, was on the witness stand testifying to the search and the finding of the stolen articles, the court said: “It don’t make much difference about this anyway. Mrs. Hill saw the dresses and the coat.”

Mrs. Hill had testified to seeing the fur coat and other articles stolen being worn by the defendant prior to the search, and had testified to the finding of some of these articles in the servants’ quarters at the time of the search.

Apparently the court was justifying his instruction to the jury not to consider the evidence of the officers of the articles obtained by the search, since the evidence of Mrs. Hill was to the same effect.

While the remark of the trial judge was improper, it was not such an error as will require a reversal of the case. It is apparent that the remarks of the judge, made as they were in connection with the question of the unlawful search of the premises, could not have influenced the verdict of the jury.

It is not every error in the trial of a case that requires a reversal, but error plus injury. When an error has been committed upon the trial of a case, it is the duty of the court, upon an inspection of the entire record, to determine whether or not defendant suffered any material injury from such error. Unless such injury appears, the error will not be ground for reversal. Hooper v. State, 7 Okla. Cr. 43, 121 Pac. 1087; Dumas v. State, 19 Okla. Cr. 413, 201 Pac. 820; Ray v. State, 35 Okla. Cr. 322, 250 Pac. 438; Crowell v. State, 42 Okla. Cr. 392, 276 Pac. 518.

The evidence being sufficient to support the verdict of the jury and' the errors of law complained of being without merit, the cause is affirmed.

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


text:
    WILLIAM PORTER et al. v. STATE.
    No. A-7940.
    Opinion Filed July 18, 1931.
    (1 Pac. [2d] 790.)
    Com & Corn, for plaintiffs in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiffs in error, hereinafter referred to as the defendants, were convicted of being drunk in a public place and each sentenced to pay a fine of $25 and costs and to be imprisoned in the county jail for a period of 30 days. From which judgment the defendants have appealed.

The transcript in this case is short and shows that the defendants entered their plea of guilty to the charge against them. The defendants contend that it was their understanding when they entered their plea of guilty they would be fined but no jail sentence would be imposed. As shown by the transcript in this case, the defendants are guilty, but the punishment imposed seems to be excessive. The sentence of each is modified to a fine of $25 and costs, and, as modified, the judgment is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    GUY OLNEY et al v. STATE.
    No. A-7814.
    Opinion Filed July 18, 1931.
    (1 Pac. [2d] 799.)
    W. H. Brown, for plaintiffs in error.

      J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendant, were tried together and found guilty of the crime of robbery in the first degree, and their punishment fixed by the jury at imprisonment in the state penitentiary for a period of 10 years for each of them.

The charging part of the information is:

“That the said Guy Olney and W. A. Nussom, in the county of Muskogee, state of Oklahoma, on the 12th day of June, 1929, then and there knowingly, willfully, unlawfully, wrongfully and feloniously, made an assault in and upon one Lee Thaxton, then and there and thereby putting the said Lee Thaxton in fear of an immediate injury to his life and person, and did then and there by the use of force, and putting in fear unlawfully, willfully, wrongfully and feloniously take, steal and carry away from the possession and person of the said Lee Thaxton certain personal property, to wit: $60, with the unlawful, wrongful and felonious intent then and there on the part of the said Guy Olney and W. A. Nussom to rob and deprive the said Lee Thaxton of said property and to convert the same to the use and benefit of them,” etc.

.Section 1784, C. O. S. 1921, defines robbery as:

“Robbery is a wrongful taking of personal property in the possession of another from his person or immediate presence and against his will, accomplished by means of force or fear.”

Section 1790, C. O. S. 1921, provides

“Robbery, when accomplished by the use of force, or of putting the person robbed in fear of some immediate injury to his person, is robbery in the first degree. When accomplished in any other manner, it is robbery in the second degree.”

Section 1791, O. O. S. 1921, provides:

“Any person guilty of robbery in the first degree is punishable by imprisonment in the penitentiary not less than 10 years.”

Section 1792, C. O. S. 1921, provides:

“Any person guilty of robbery in the second degree is punishable by imprisonment in the penitentiary not exceeding 10 years.”

Defendants contend that the evidence of the state discloses that, if guilty of any crime, it was that of conjoint robbery, and that the court committed reversible error in refusing to instruct the jury upon such offense.

.Section 1793, C. O. S. 1921, provides:

“Whenever two or more persons conjointly commit a robbery or where the whole number of persons conjointly committing a robbery and persons present and aiding such robbery amount to two or more, each and either of such persons is punishable by imprisonment in the penitentiary for not less than five years nor more than 50 years.”'

In Richards v. State, 22 Okla. Cr. 199, 210 Pac. 295, this court said:

“Penal Code (section 2373, Rev. Laws 1910), prescribing the punishment for robbery conjointly committed, is a statute of classification, and not of definition.”

In the body of the'opinion, referring to sections 1784 and 1793, the court says:

“It is apparent, without comment, that the last section above quoted is a statute of classification, and not of definition. It follows that conjoint robbery is not a distinctive offense, but is one of the methods of committing robbery, and it has been repeatedly decided by this court that the original complaint need not state the offense charged in technical language; nor in such specific terms as is required in an information, and is sufficient where the jurisdictional facts appear and the' crime is stated in ordinary language.”

See, also, Randall v. State, 33 Okla. Cr. 262, 243 Pac. 983; Wells v. State, 34 Okla. Cr. 179, 245 Pac. 1007.

In Winfield v. State, 18 Okla. Cr. 257, 191 Pac. 609, this court said:

“Where there is a prosecution and conviction of robbery in the first degree, it is immaterial that the evidence would authorize a conviction of a codefendant of the commission of conjoint robbery, as robbery in either the first or second degree is necessarily included in the commission of a conjoint robbery, and, where the evidence on the part of the state clearly establishes all the essential elements of robbery in the first degree against the defendant on trial, he may be prosecuted and convicted of that included offense; such conviction being a bar to any subsequent prosecution for robbery conjointly committed in the same transaction.”

Under the facts in the case at bar, the state might have elected to prosecute for conjoint robbery, but did not do so. The information charges robbery in the first degree, and the evidence of the state supports such charge, and the verdict of the jury finds the defendants guilty of robbery in the first degree.

In the State v. Bunch, 23 Okla. Cr. 388, 214 Pac. 1093, this court said:

“As between specified statutes prescribing different penalties for any offense, the state may elect to try the offender under either statute.”

In Tipton v. State, 23 Okla. Cr. 86, 212 Pac. 612, 31 A. L. R. 1074, this court said:

“Where one is charged with robbery in the first degree, the court committed no error in failing to instruct the jury, defining robbery in the second degree, when there was no evidence offered tending to show a lower degree of the offense.”

It was not error, therefore, for the trial court to refuse to instruct the jury upon the law of conjoint robbery, as requested by defendants.

The other errors relied on by defendants being equally without merit, the cause is affirmed.

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


text:
    Ex parte RAY TERRILL.
    No. A-8134.
    Opinion Filed July 18, 1931.
    (1 Pac. [2d] 796.)
    C. F. Gowdy, for petitioner.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for respondent.
   DAVENPORT, P. J.

This is a petition for writ of habeas corpus. Petitioner alleges that he is illegally restrained of his liberty by the warden of the state penitentiary at McAlester, by virtue of an unlawful judgment and sentence of the district court of Pawnee county, Olda., sentencing petitioner to serve 20 years in the state penitentiary at McAlester; that the sentence is illegal and unauthorized for the reason that from the judgment and sentence of 20 years an appeal was perfected to the Criminal Court of Appeals; that a motion was filed by the Attorney General to dismiss the appeal on the ground that the petitioner at the time was a fugitive from justice; that the said appeal was on the 7th day of October, 1926, dismissed by the court. Petitioner further alleges that he is deprived of his liberty without due process of law, and that his imprisonment is under a judgment of a court which had no jurisdiction to render the judgment; that he has heretofore applied to the district court of Pittsburg county for a writ of habeas corpus, which has been denied.

Where a prisoner in custody under a sentence of conviction seeks to be discharged by habeas corpus, the inquiry is limited to the question whether the court in which the prisoner was convicted had jurisdiction of the person of the defendant, and of the crime charged, and, if the trial court had jurisdiction and power to convict and sentence, the writ of habeas corpus cannot issue to correct mere errors. Ex parte Stover, 14 Okla. Cr. 120, 167 Pac. 1000.

Under the record before us, the petitioner is not entitled to the relief prayed for. The writ is denied.

EDWARDS and CHAPPELL, JJ., concur.


author: DAVENPOBT, P. J.

text:
    BERT CONARRO v. STATE.
    No. A-7944.
    Opinion Filed July 18, 1931.
    (1 Pac. [2d] 837.)

      L. G. Lewis, for plaintiff in error.
    J. Berry King, Atty. Gen., and Ed Crossland, Asst. Atty. Gen., for the State.
   DAVENPOBT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was charged by information in the district court with operating and driving a motor vehicle on the highway while under the influence of intoxicating liquor. On a plea of guilty the court sentenced the defendant to serve six months in the penitentiary and to pay the cost of the action.

On the 7th day of February, 1930, an application to withdraw the plea of guilty was filed, which motion was, on the 8th day of February, 1930, overruled and defendant duly excepted. Notice of appeal was given and the defendant has appealed to this court. The defendant in his application to withdraw his plea states in support of his application that this was his first offense and that he was told, and had reason to believe and did believe, that if he entered his plea of guilty he would receive a sentence of a fine not exceeding $300 and cost of the prosecution, and relying upon that statement so made to him he entered his plea of guilty.

The defendant verified his application, but upon an examination of the record there is nothing to show that any promise was made to him by any person connected with the court or having authority to make such a promise. There is no showing made by the defendant that he has a good defense on the charge filed against him. Defendant insists that the court erred in imposing a sentence of six months in the penitentiary and costs. The information on which the defendant entered his plea of guilty charges that the defendant did willfully, knowingly, and feloni-ously, while under the influence of intoxicating* liquor, operate and drive a motor vehicle on the public highway. No testimony was taken, and the only fact the court had to guide it was the charge in the information, which was duly and regularly filed.

An application to withdraw a plea of guilty has been held by this court in many cases to be addressed to1 the sound discretion of the trial court. A conviction and sentence based upon a plea of guilty will not be disturbed unless there appears a clear abuse of such discretion. Kemp v. State, 35 Okla. Cr. 128, 248 Pac. 1116; McAtee v. State, 39 Okla. Cr. 10, 262 Pac. 703; Daugherty v. State, 51 Okla. Cr. 104, 299 Pac. 925, and Ney v. State, 51 Okla. Cr. 187, 300 Pac. 417, and cases therein cited.

The application of the defendant does not state sufficient grounds to warrant a reversal of this case. There is nothing in the record to show that the trial court abused its discretion.

The judment is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    H. H. PRUITT v. STATE.
    No. A-7946.
    Opinion Filed July 18, 1931.
    (1 Pac. [2d] 838.)
    Waldrep & Winterringer, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted in the county court of Pottawatomie county, charged with the possession of a still and still worm, without having obtained the proper certificate of registration, and was sentenced to pay a fine of $100, and serve a term of 30 days in the county jail, from which judgment and sentence, the defendant has appealed.

The appeal in this case was filed on the 8th day of August, 1930. No brief has been filed on behalf of the defendant, and no appearance made for oral argument. Where no brief is filed and no appearance made for the defendant, this court will consider the appeal is without merit or has been abandoned.

An examination of the record shows there are no fundamental or prejudicial errors. The judgment of the lower court is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    PAT WILSON v. STATE.
    No. A-8090.
    Opinion Filed July 18, 1931.
    (1 Pac. [2d] 839.)
    P. R. Blosser and Alvin Moore, for plaintiff in error.
    Tbe Attorney General, for tbe State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in tbe county court of Roger Mills county of tbe crime of unlawful possession of intoxicating liquor, and bis punishment fixed by tbe jury at a fine of $240 and imprisonment in tbe county jail for 50 days.

Tbe evidence of tbe state was that tbe defendant was seen to conceal some glass jars in some weeds beside tbe fence on tbe inside of tbe premises of a Mr. Kell; that this fact was reported to tbe sheriff, and that tbe sheriff and tbe county judge and tbe wife of tbe county judge secluded themselves in a place where they could watch for tbe return of the defendant to where this stuff was concealed; that defendant came up to where tbe officers were concealed, driving a different car, and went through tbe gate into tbe premises of Kell and up to tbe place where these jars were concealed; that tbe officers followed behind defendant’s car; that defendant stopped and got out of bis car and went over to where tbe jars were concealed and picked them up, concealing them under bis coat, and started back towards bis car; that when be saw tbe officers be ran to tbe car and set tbe jars inside of tbe car; that thereupon tbe sheriff arrested defendant, and defendant said: “You know me, Frank, I am not a bad fellow; I know when I am caught.” That after the officer arrested defendant, be searched tbe car and found two half-gallon jars full of whisky.

Defendant on bis motion to suppress tbe evidence testified that- tbe car was not his, that he was outside of tbe car when the sheriff arrested him, and that if there was anything in the car be did not know it.

Defendant filed timely motion to suppress tbe evidence for tbe reason that tbe same was obtained upon an unlawful search and seizure, because made without a search warrant and without any warrant of arrest, and alleges tbe overruling of said motion as a ground of error in bis appeal.

The officers possessed sufficient information to authorize them to arrest tbe defendant without a warrant, and, having arrested him, the seizure of the liquor under the facts disclosed in the case was legal and the same was admissible in evidence.

Section 7014, C. O. S. 1921, not only gives the officers the right, but makes it their duty, to arrest without a warrant where the offense is being committed in their presence. Rambo v. State, 38 Okla. Cr. 192, 259 Pac. 602; Carter v. State, 43 Okla. Cr. 44, 279 Pac. 690; Rhodes v. State, 46 Okla. Cr. 219, 287 Pac. 812.

Defendant testifying on his motion to suppress the evidence said that the car was not his; that he had borrowed it to make the trip to' Kell’s place; that he had stopped the car and was out of it at the time of his arrest; and that be did not know tbe liquor was in tbe car. Assuming this statement of facts to be true, tbe defendant could not object to tbe search of tbe car after bis arrest.

For tbe reasons stated, tbe cause is affirmed.

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


text:
    HERSHEL VINCENT v. STATE.
    No. A-7829.
    Opinion Filed July 18, 1931.
    (1 Pac. [2d] 808.)
    Clifford W. Ferguson, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for tbe State.
   DAVENPORT, P. J.

Tbe plaintiff in error, hereinafter referred to as tbe defendant, was convicted of tbe crime of rape, and was sentenced to be imprisoned in tbe state penitentiary for three years. Motion for new trial was filed, considered, overruled, and exceptions saved.

Irene Ehrhardt testified on behalf of tbe state that she was born June 20, 1912; lived on a farm tbe greater part of her life; attended country schools; bad worked some in a restaurant in tbe town of Hooker, Okla., near where her father lived — “I met the defendant, Hershel Vincent, at Lawrence Kreiger’s place in June, 1926; I was fourteen years old at the time I began keeping company with him; I know what you mean by sexual intercourse; the first time he solicited me to have intercourse with me was in September after I met him in June; when he suggested to me we have intercourse I told him that I did not want to, that it was not nice; we had intercourse the first time about the middle of September, 1926; we were up near the Del Monica Hotel, in Hooker, Texas county, Okla.; we walked hack to the Del Monica Hotel; it was dark; we went a short distance from the street and I permitted him to have sexual intercourse with me because I loved him and he promised to marry me, if anything should go wrong he would protect me; I was 14 at that time; it was not long after that until we had sexual intercourse again; from September, 1926, for some time thereafter I saw the defendant every week, usually Saturday nights; it was March 15, 1928, and not February 15, 1928, that defendant had sexual intercourse with me; I fix the time by the fact that my father went to Shattuck; I met the defendant and we took an automobile ride; there was another boy friend of his in the car; the other boy got out and we drove out in the country a mile east and turned north on a side road; he stopped the car and we had intercourse.”

The testimony further shows that the defendant kept calling on the prosecutrix and had intercourse with her for some time until the fall of the year 1928, when he was advised that the prosecuting witness was pregnant, and thereafter he ceased to go with the prosecuting witness.

An effort was made to show that the prosecuting witness had been associating with other men, but no immoral conduct was shown by the witnesses. The proof shows conclusively that the prosecutrix was under the age of sixteen at the time this defendant began cohabiting with her, and the proof is undisputed that the defendant had sexual intercourse with the prosecuting witness, promising to marry her. If the prosecuting witness should become pregnant, he would protect her. The proof further shows on behalf of the state that the defendant was' with the prosecuting witness often from the time he first met her up until the fall of 1928 or early part of 1929.

The defendant called several witnesses to show that the prosecutrix had been in the society of other men, but no immoral act or conduct was shown. The defendant did not take the stand.

The defendant has assigned several errors alleged to have been committed by the trial court. The fifth assignment of error is that the court erred in overruling defendant’s motion for a new trial. The motion for a new trial embraces all the other assignments. The defendant insists that because of the fact that the information charges the crime of rape as of February 15, 1928, and the court required the state to elect which act of intercourse it would rely upon for conviction, and the state elected to rely upon the act of March 15, 1928, that the proof is not sufficient to sustain a conviction, because the date in the information is alleged to have been February 15, 1928.

Section 2559, C. O. S. 1921, is as follows:

“The precise time at which the offense was committed need not be stated in the indictment ór information; but it may be alleged to have been committed at any time before the finding thereof, except where the time is a material ingredient in the offense.”

It is not necessary that the offense alleged should have occurred at the time specified in the information. It is sufficient that the proof show that it occurred at any time within three years next prior to the filing of the information. The information in this case was filed June 8, 1929. The contention of the defendant as to the proof being insufficient to sustain the allegations is without merit. Cecil v. Territory of Oklahoma, 16 Okla. 197, 82 Pac. 654, 8 Ann. Gas. 457.

It is next contended by the defendant that the court erred in refusing to permit the defendant to prove that men, other than the defendant, had had intercourse with the prosecuting witness. The record fails to show that the defendant attempted to prove that other men had had intercourse with the prosecutrix, but the defendant was allowed to prove that the prosecuting witness had been with other men than the defendant on a few occasions, but not one word of testimony shows there had been any illicit relations between the prosecutrix and other men. The defendant in this case is prosecuted for having sexual intercourse with a female under the age of sixteen years, and not his Avife, therefore her chastity or lack of chastity was immaterial.

There are other errors assigned by the defendant, but upon a careful examination of the record and argument of counsel, we conclude they are without sufficient merit to warrant a reversal of this case. The defendant was accorded a fair and impartial trial. The court properly instructed the jury as to the law. No fundamental or prejudicial errors appear in the record.

The judgment of the lower court is affirmed.

EDWARDS and CHAPPELL, JJ., concur.