text:
    ROBERT ROUNEY et al. v. STATE.
    No. A-5209.
    Opinion Filed Oct. 24, 1925.
    (240 Pac. 142.)

      Castleman & Ticer, for plaintiffs in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charged:

“That Robert Rouney and E. A. Richardson did in Carter county, and in the state of Oklahoma, on or about the 9th day of August, 1922, and before the presentment hereof, commit the crime of unlawful possession in the manner and form as follows, to wit: That on the date and in the county aforesaid, the aforesaid defendants had in their possession 94 gallons of Choc beer, with the unlawful intention to bartering, selling, giving away, and otherwise disposing of the sáme, contrary to,” etc.

On the trial the jury returned a verdict finding the defendants guilty as charged in the information and fixing their punishment each to pay a fine óf $500 and to be confined for 6 months in the county jail. From the judgment rendered on the verdict, an appeal was taken by filing in this court June 13, 1924, petition in error with case-made, but no brief has been filed, and, when the case was called for final submission, it was submitted on the record.

Of the various errors assigned, it is only necessary to notice two, which are in effect: First, the information is insufficient in that it does not state facts sufficient to constitute an offense; second, that the evidence is insufficient to support the verdict and judgment.

Obviously, the information is fatally defective. It does not allege that the so-called “Choc beer” was intoxicating liquor, nor that it contained as much as one-half of 1 per cent, of alcohol, and was capable of being used as a beverage. By repeated decisions of this court, it is held that the courts do not take judicial knowledge of the alcoholic contents of “Choc beer,” since its manufacture is not uniform, and it is not a liquor per se intoxicating. Rambo v. State, 31 Okla. Cr. 214, 238 P. 869; Skelton v. State, 31 Okla. Cr. 343, 239 P. 189; Smith v. State, 30 Okla. Cr. 111, 235 P. 553. It follows that the court erred in overruling the defendants’ demurrer thereto.

The evidence shows that the so-called “Choc beer” was found by the officers on a branch, midway between the homes of the defendants. As witnesses in their own behalf, they denied ownership or possession of the same. There was no competent evidence tending to show that the so-called “Choc beer” was intoxicating liquor.

For the reasons indicated, the judgment is reversed, and the cause remanded to the trial court, with direction to sustain the defendants’ demurrer to the information.

BESSEY, P. J., and EDWARDS, J., concur.


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    JOHN ROE v. STATE.
    No. A-5121.
    Opinion Filed Oct. 24, 1925.
    (240 Pac. 140.)
    Avery & Burns, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the county court of Ottawa county on a charge of having possession of whisky with intent to violate the liquor law, the plaintiff in error, hereinafter called defendant, has appealed.

The record discloses that on the 29th day of December, 1923, certain officers of Ottawa county with a search warrant went to the place of residence of Ella Riggs, at which place the defendant resided. On reaching the premises, no one was found, and a copy of the search warrant was left at the house, a search made, and concealed in the chicken house 22 half pints of whisky and 2 pints of whisky and various empty containers were found. Later the same day the officers returned, the defendant and Ella Riggs were there, and upon the officers informing Ella Riggs that they must arrest her the defendant interposed and stated the whisky was his. The defendant did not take the stand.

It is first contended that the search warrant was issued upon an insufficient affidavit, and is a nullity, and evidence obtained by authority of such search warrant illegal. The search warrant and affidavit upon which it is based appear in the record, and, while the affidavit is subject to criticism, it is sufficient under the rule announced in the case of State v. Smith, 30 Okla. Cr. 144, 235 P. 273.

The second contention is that, even though the affidavit and search warrant be held valid, there was no sufficient service of the search warrant. The defendant offered the evidence of one witness, who testified that she lived next floor to the premises in question, and did not see any search warrant posted on the door, and another witness, who testified that he saw the officers there at the time of the search, and did not see whether or not they left the search warrant on the door. However, the officers testified that they left a search warrant at the premises at the time they made search, and the return on the search warrant, made on the same day, recites the posting a certified copy of the warrant on the door. This positive testimony outweighs the negative testimony on this point offered by the defendant.

Upon a consideration of the entire case, it appears that the defendant was fairly tried, that the issues of law were fairly submitted, and that there is no prejudicial error in the record.

The case is affirmed.

BESSEY, P. J„ and DOYLE, J., concur.


text:
    LEE KINNEY et al. v. STATE.
    No. A-5146.
    Opinion Filed Oct. 24, 1925.
    (240 Pac. 325.)
    Morris & Tant, for plaintiffs in error.
    George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the county court of Oklahoma county on a charge of possession of intoxicating liquor with intent to sell, the plaintiffs in error, hereinafter called defendants, have appealed.

The only assignment of error argued in the brief is that the conviction was had on evidence obtained by an illegal search. The record discloses that two negro police officers went to the residence of the defendant Kinney, a negro, ostensibly to examine an automobile or automobiles parked near the rear of the house. After making such examination of the cars as they desired, they ascended into a screened porch in the rear of the residence of the defendant Kinney, and looked through the glass door, and saw the defendant pouring liquid from a 5-gallon jug into a gallon jug held by the defendant Hoskins. They thereupon entered the building, pistol in hand, seized the liquor, and arrested the defendants, and, upon search, discovered some 8 or 10 gallons of corn whisky, including that in the hands of defendants.

The police officers had no warrant for arrest nor search warrant, and did not see the defendants in the commission of any offense until they had entered the screened porch and looked through the door. The defendants objected to the introduction of this testimony, for .the reason that it was acquired by an illegal invasion and search of the residence of the defendants. They offered no testimony. The evidence, if properly admitted, clearly establishes the guilt of the defendants, but, if it is a violation of the constitutional rights of the defendant, the case must be reversed.

Section 30, art. 2, Bill of Rights, of our Constitution, in part reads:

“The.right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated. * * *”

Section 7013, Comp. St. 1921, provides that.no warrant shall be issued to search a private residence occupied as such unless it or some part of it is used as a store, shop, hotel, boarding house, or place of public resort, and section 7014, provides that an officer may arrest without a warrant for any violation of the liquor law occurring in his presence, and in such case may seize the liquor unlawfully used in violation of the law.

Under the evidence before us, the officers had seen no violation of the law until they had entered upon the porch of the residence of defendants and looked through the door. They were at the time engaged in violating the constitutional rights of the defendants, and the evidence acquired by them in so doing was illegally obtained.

The police officers did not have the right, without a valid search warrant or without having seen the defendants engaged in the commission of an offense, to enter upon any part of the residence of the defendants, and any evidence acquired by them by such invasion was illegal, and, upon timely objection, should have been excluded. The failure of the court to exclude this testimony is reversible error. Gore v. State, 24 Okla. Cr. 394, 218 P. 545; Committi v. State, 28 Okla. Cr. 385, 231 P. 316; Baker v. State, 28 Okla. Cr. 408, 231 P. 320.

The case is reversed and remanded, with instructions to the lower court to dismiss.

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


author: BESSEY, P. J.

text:
    RICHARD LEE v. STATE.
    No. A-5054.
    Opinion Filed Oct. 24, 1925.
    (240 Pac. 148.)

      Seymour Foose and R. C. Brown, for plaintiff in error.
    The Attorney General and Fred Hansen, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

Richard Lee, plaintiff in error, defendant in the trial court, was charged with rape in the first degree. He was found guilty of assault to rape, with his punishment assessed at 3 years in the penitentiary.

The abused girl was over the age of 18 years. John Eubanks, the other person implicated, was a boy 14 years of age. Defendant Lee was a mature man, large and strong physically. Late in the evening all three of these persons were at a Fourth of July celebration near the town of Canton. Some time after dark the defendant Lee and young Eubanks undertook to convey the girl in a single-seated automobile from the place of the celebration to her home, some 20 miles distant. About 11 o’clock that night they came to an isolated spot in the country near a spring, where they stopped to get water. Lee directed Eubanks to go to the spring for the water, and he remained in the car with the girl, where, in the absence of Eubanks, he made improper advances soliciting sexual intercourse, which she vigorously resisted and repulsed; after Eubanks returned with the water, Lee still persisted in his advances. Later both Lee and Eubanks went for more water, and, after returning to where the girl was, both by words and violence sought to have sexual intercourse with her.

Eubanks, who had known the girl for some time and was on friendly terms with her, finally took her alone to a spot some distance from where Lee was seated in the car, and there induced or forced her to submit. The girl claimed, that the act was done with force and against her will. The boy testified for the state, and his testimony indicated that the act may have been with the girl’s consent. After Eu-banks and the girl returned to the car, the defendant, Lee, with force, renewed his solicitations. After intermittent struggles, continuing over some period of time, Lee desisted in his attempts, and they all proceeded towards the girl’s home.

There is evidence tending to show that to some extent each of these men aided and encouraged the other in furtherance of their evil designs. To sustain the charge of rape in the first degree and all included offenses, the state relied upon evidence tending to show that defendant, Lee, had himself, by force and violence, assaulted the girl with the intent to ravish her, though the proof was clear that he did not accomplish his purpose, and also relied upon evidence tending to show that Lee was a principal, as aider and abettor of the boy, Eubanks, in committing the only act of intercourse which was in fact committed.

At the close of the state’s testimony, the defendant made a motion that the state be required to elect upon which of the transactions it would rely for a conviction; that is, “whether or not the state will rely on the alleged act of sexual intercourse of John Eubanks with Mildred Wahl, or whether or not it will rely upon any claim of an act of sexual intercourse claimed to be accomplished by the defendant, Richard Lee, with the girl in this case.” This motion was by the court overruled.

There was no proof supporting the charge of rape in the first degree. It is clear that, so far as the charge of rape in the second degree is concerned, a failure to require an election would result in no confusion in the minds of the jury, because of the evidence tending to show that defendant aided and abetted Eubanks; but, as to the included oifense of assault to rape, a different situation is presented. But so far as the included offense of assault to rape is concerned, the evidence and the court’s instructions authorized a conviction upon a finding either that Lee himself had committed an assault to rape, or that he aided and abetted Eubanks in committing a different assault. A failure to require the state to elect, in conjunction with a failure appropriately to instruct the jury upon the point involved in the demanded election under the facts shown, was prejudicial error.

Where there is evidence tending to prove two distinct offenses, and the evidence might support a verdict of guilty of assault to rape, predicated upon either or both of the transactions shown, the state should be required to elect as to which of the transactions it will rely upon for a conviction. There are two impelling reasons for this conclusion: One is that a defendant has a constitutional right to be put on trial for one offense only; and the other is that he has a right to a verdict in which all the jurors concur upon a single offense. In this case the two offenses occurred at the same place and at almost the same time, and both were submitted to the jury for their consideration. Some of the jurors may have believed that the defendant in his own person committed an assault; while other jurors may have believed and found that he committed a different assault, as aider and abettor of Eubanks, without a unanimous concurrence as to either. Pope v. State, 24 Okla. Cr. 213, 217 P. 498; Smith v. State, 20 Okla. Cr. 124, 201 P. 663; Gracy v. State, 13 Okla. Cr. 643, 166 P. 442; Smith v. State, 3 Okla. Cr. 629, 108 P. 418; Dupree v. State, 10 Okla. Cr. 65, 134 P. 86; Branham v. State, 16 Okla. Cr. 308, 182 P. 525; People v. Hatch, 13 Cal. App. 521, 109 P. 1097; State v. Workman, 66 Wash. 292, 119 P. 751; People v. Simon, 21 Cal. App. 88, 131 P. 102.

In this case, too, the evidence was not conclusive that Eubanks was in fact guilty' of rape or assault to rape. If that be true, Lee could not be convicted of an assault of rape as an aider and abettor. In any event, the assault committed by Lee was a different offense from the one committed by Eubanks, though each may have been implicated in the other. The danger of supporting a charge of a single offense by evidence tending to show two assaults made by the defendant, under circumstances like these, is apparent.

Where the information charges a single offense in one count, as in this case, and the proof develops that the accused may have been guilty of another like offense, the state should be required to elect as to which transaction it will rely upon for a conviction. The rule announced in some other states (notes to State v. Bell, 92 Am. Dec. 664 et seq.), that such an election may be allowed or refused in the discretion of the court, under the provisions of our statutes, will not apply in a case like this. Section 2558, C. O. S. 1921.

The judgment of the trial court is reversed, and the cause remanded.

DOYLE and EDWARDS, JJ., concur.


author: DOYLE, J.

text:
    FRED SMITH v. STATE.
    No. A-5021.
    Opinion Filed Oct. 27, 1925.
    (240 Pac. 143.)

      I. H. Lookabaugh, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that in Blaine county, on the 4th day of May, 1923, Fred Smith and Earl McRay did “unlawfully, willfully, and feloniously steal, take, and carry away in the nighttime, from the mes-suage and premises of F. E. Bissell and Rose Bissell, husband and wife, described as follows, to wit: The northwest quarter of the northwest quarter of section 24 in township 15 north of range 13 west of Indian meridian, on which premises the dwelling house of the said F. E. Bissell and Rose Bissell was then and there situated, 50 domestic fowls, to wit, 50 chickens, then and there owned by and in the possession of the said F. E. Bissell and Rose Bissell, and without the consent and against the will of said owners, and with the unlawful, willful, wrongful, and felonious intent of the said Fred Smith and Earl McRay to deprive the owners thereof and to convert the same to the use and benefit of them the said Fred Smith and Earl McRay, contrary to,” etc.

On the separate trial of the defendant, Fred Smith, the jury returned a verdict finding him guilty as charged in the information and assessing his punishment at imprisonment in the penitentiary for a term of three years and six months.

Upon arraignment the defendant interposed a demurrer to the information on the grounds that the facts stated do not constitute a public offense, and that the act charged as the offense is not stated with such a degree of certainty as to enable the court to pronounce judgment upon a conviction according to the right of the case.

The overruling of defendant’s demurrer is assigned as error, and it is urged that the information is insufficient, for the reason that the description of the property alleged to have been stolen is too indefinite and uncertain, and that it does not contain the allegation that a more complete and definite description is to the county attorney unknown.

The information was drawn under section 2119', C. S. 1921, which provides:

“Every person who shall take, steal and carry away any domestic fowl or fowls in the nighttime, from the mes-suage of another, or from the premises upon which the dwelling house of another is situated, and any person purchasing or receiving such domestic fowl or fowls, knowing them to have been stolen, shall be guilty of grand larceny, regardless of the value thereof, and upon conviction shall be punished by imprisonment in the penitentiary not exceeding five years, or by fine not exceeding two hundred dollars, or by confinement in the county jail not exceeding two months, or by both such fine and imprisonment.”

It is well settled that, where the statute states the element^ of the crime, it is usually sufficient either in an indictment or information to charge such offense in the language of the statute. The true test of the sufficiency of an information is, not whether it might possibly have been made more certain, but whether it contains every element of the offense intended to be charged. The information follows closely the language of the statute, and we have no doubt whatever of its sufficiency.

Over the objection and exception of the defendant the court permitted Ellis Brand and Ebba Brand to testify concerning the loss' and recovery of their chickens.

The evidence shows that on the night of May 4, 1923, 42 hens and 2 roosters were stolen from the Bissell place, 12 miles southwest of Watonga, in Blaine county; that the owner found tracks showing that a wagon coming from the north passed his place and turned east 150 yards south of his house into a road very seldom used, and stopped, where apparently the chickens were loaded into the wagon — the owner traced these tracks 3 or 4 miles north; that he notified the sheriff, and they found his chickens the next day in the possession of a poultry house at Canton, which was about 17 miles from the home of the defendant; that he also recognized several of Mr. Brand’s chickens at the poultry house that were stolen on the same night.

The evidence shows that the defendants sold the Bis-sell and Brand chickens to the Canton poultry house the next day .after they were stolen.

Ellis Brand and his wife, Ebba Brand, each testified that they lived on the adjoining farm to F. B. Bissell; that on the night Mr. Bissell’s chickens were stolen 20 of their chickens were stolen, which they found a few days later at the Canton poultry house.

In Howard v. State, 9 Okla. Cr. 337, 131 P. 1100, it is held that:

“The contemporaneous possession of recently stolen goods may be admitted in evidence for the purpose of throwing light upon a particular larceny for which a defendant was then upon trial.”

The rule is well settled that, when defendant’s possession of property recently stolen is attempted to be accounted for, it is competent to show the defendant’s contemporaneous possession of other stolen property. Davis v. State, 7 Okla. Cr. 322, 123 P. 560. It follows that the testimony objected to was properly admitted.

Fred Smith, as a witness in his own behalf, testified that he lived 5 miles east and 1 mile south of Eagle City, and that he did not leave his home on the night of the 4th day of May, 1923'; that the next morning Jack Hicks, a horse trader, appeared at his place, and sold him 40 or 50 chickens; that he paid Hicks for them, and loaded them into his wagon and drove to Canton, and there sold them to the poultry house. Two or three members of the defendant’s family testified in corroboration of his testimony.

It is also insisted that the court erred in giving the fifth and seventh instructions. It appears no instructions were requested by the defendant to be given, and no authority is cited in support of the objections made to said instructions 5 and 7.

We think the objections argued in the brief are without merit. The charge of the court was exceedingly fair, and it is the settled rule in this jurisdiction that it is sufficient if the instructions, taken as a whole, substantially present the law of the case.

Several assignments are based upon the alleged insufficiency of the evidence to support the verdict. Looking at the case upon the merits,- it is impossible to find any ground for the interference of this court.

It is the province of the jury to determine questions of iact depending upon conflicting evidence and to declare by their verdict what the truth is. It is no more the province of this court than of the trial court to determine controverted questions of fact arising upon conflicting evidence. Neither can lawfully usurp the appropriate functions of the jury, and neither can substitute its own judgment for that of the jury, where the facts are reasonably capable of diverse and opposing inferences. It is only where the evidence obviously does not warrant the inference of guilt that the court will interfere. We think the verdict of a jury based on circumstantial evidence comes to us as any other verdict; and, unless we can say that the inference of guilt drawn from the evidence was wholly unwarranted, we cannot interfere.

Having considered all the alleged errors presented in argument by counsel, we discover no ground for disturbing the judgment. It is therefore affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    KING HOLLINGSWORTH v. STATE.
    No. A-5174.
    Opinion Filed Oct. 27, 1925.
    (240 Pac. 145.)
    Walter E. Marks, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The plaintiff in error was tried and convicted on an information charging that in Tulsa county, September 21, 1923, he did have in his possession 5 gallons of corn whisky, with the unlawful intent to sell the same, and in accordance with the verdict of the jury was sentenced to pay a fine of $100 and to be confined in the county jail for 30 days.

The evidence shows that the officers saw the defendant carrying a 5-gallon keg which contained 4 gallons of corn whisky and place the keg on the running board of a car ■Shat was standing in the road. The officers ran up, and the defendant ran away and was arrested on the following day.'

As a witness in his own behalf, the defendant testified that he lived 9 miles northeast of Tulsa, engaged in farming; that a white man and a colored fellow came there and asked him if he had the stuff. He told them he could get it, and he told them to come down the road. There they stopped, and the white man said they wanted it for the soldiers; that he would take care of him; that there would not be any trouble behind this; that another colored man owed him some money, and that he turned his whisky over to him for the debt; that the white man stayed in the car, and the colored boy went with him and told him that the white man would give $8 a gallon for it, and he brought the keg to the car, and two men ran up that he thought were high-j ackers, and he left the keg and ran to the brush; that this was the first deal he ever tried to pull off, and he hoped it would be the last one.

There is no controversy in regard to the facts of this case, the record is free from error, and the judgment is accordingly affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    W. J. MURRAY v. STATE.

      No. A-5158.
    Opinion Filed Oct 27, 1925.
    (240 Pac. 146.)
    R. C. Roland, Tom Norman, and James H. Mathers, for plaintiff in error.
    George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen. for the State.
   DOYLE, J.

Plaintiff in error, W. J. Murray, was convicted on an information charging that in Carter county, June 30, 1923, he did unlawfully transport one-half gallon of whisky from near Adcock’s drug store, on the corner of Main and Caddo streets, to McCarty Hotel, on Mill street and First avenue, in the city of Ardmore, and in accordance with the verdict of the jury he was sentenced to pay a fine of $100 and be confined in the county jail for 60 days. From the judgment he appeals, and assigns as error the insufficiency of the evidence to support the verdict, and that the court erred in instructing the jury.

Carl Holden, deputy sheriff, testified that on the date alleged he saw the defendant stop in front of Adcock’s drug store, and from there drive to the rear of Adcock’s drug store, and some one came out of the back door of the drug store, and placed a parcel in the defendant’s automobile, and the defendant drove to Broadway, then north to Washington, then to Second avenue, and then back to Washington, and lie saw the defendant throw a half gallon fruit jar containing whisky down on the sidewalk by the side of his car.

O. A. Purcell testified to substantially the same facts as did witness Holden, and further testified that he examined the broken jar, and it smelt like whisky.

Jennings, an Ardmore policeman, testified that he was. standing on the. sidewalk when the defendant threw the, package down, and witness Holden called to him to arrest the defendant, which he did; that the contents of the broken package smelt like corn whisky. , ,

This is all the evidence in the case. The defendant did not testify.

We are of opinion that the evidence of the defendant’s guilt was ample to sustain the verdict, and we find that the instructions fairly stated the law applicable to the case.

Finding no reversible error in the record, the judgment appealed from is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    SPIDE CURTION v. STATE
    No. A-5271.
    Opinion Filed Oct. 27, 1925.
    (240 Pac. 142 )

      E. G. Avery and Frank R. Burns, for plaintiff in error.
    The Attorney General, for the state.
   DOYLE, J.

Plaintiff in error, Spide Curtion, was convicted on an information charging that in Ottawa county, on or about the 10th of May, 1924, he did transport about one gallon of whisky from a point unknown in Ottawa county to the apartment house of J. S. Amplett, in Quapaw, Ottawa county, and, in accordance with the verdict of the jury, he was sentenced to pay a fine of $50 and be confined in the county jail for 30 days. • From the judgment he appeals, and assigns as error the insufficiency of the evidence to support the verdict, and that the court erred in the instructions given.

The state relied for this conviction upon the testimony of two witnesses.

Laura Allen Reynolds testified: That she saw the defendant and four men drive up in front of her place in an automobile and the defendant and one of the men got out of the car, each carrying a gallon jug. That they went around to the rear of the building, and a few minutes later she heard some one go into defendant’s room.

Lou Morris, deputy sheriff, testified: That he saw the defendant, on the date alleged, in the hallway of the Amplett rooming house, and the defendant broke a bottle of whisky on the floor, saying, “I didn’t want you to get that on me.” Then he arrested the defendant. That a man named Pat Howser was with defendant.

This was all the evidence in the case. Defendant did not testify. When the jury find the verdict of guilty, which is approved by the trial court in overruling a motion for a new trial, and there is evidence in the record which sustains the verdict, it will not be set aside, in the absence of prejudicial error. We think the evidence of the defendant’s guilt was ample to justify the verdict, and we find that the instructions fairly state the law applicable to the case.

The criminal laws of the state must be enforced, and, if it is not already understood, it is high time it should be, that where a case is clearly made out against the defendant, and the jury have so found, this court will not reverse for a mere technical error, which it can see could not have affected the result.

The judgment of the lower court is accordingly affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    BAILEY OVERSTREET v. STATE.
    No. A-5156.
    Opinion Filed Oct. 27, 1925.
    (240 Pac. 145.)
    R. C. Roland, for plaintiff in error.
    George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Bailey Overstreet, was convicted on an information charging that in Carter county, October 18, 1922, he did unlawfully transport two gallons of corn whisky along the streets of Ardmore, and in accordance with the verdict of the jury he was sentenced to pay a fine of $50, and to be confined in the county jail for 30 days. From the judgment he appeals.

The errors assigned and relied upon for a reversal of the judgment are that the court erred in overruling defendant’s motion for a continuance; that the court erred in admitting incompetent and prejudicial evidence over the defendant’s objection; and that the verdict of the jury is not sustained by the evidence.

Charlie Hathcock testified that he was a plainclothes man for the city of Ardmore; that he saw the defendant stop his car on Main street; that when defendant left the car he went to the automobile and found a hand bag in the car. When the defendant came back he arrested him, and drove to the police station, and there found two gallons of whisky in the hand bag. The officer testified that he did not have a search warrant. Thereupon the defendant moved the court to strike from the record all the testimony with reference to what was found in the automobile, for the reason that it was unlawfully seized, which motion was overruled.

The search detailed in the record was an unauthorized trespass and an invasion of the constitutional rights of this defendant. It follows that all the evidence with reference to licuor, secured thereby, should have been excluded on the defendant’s objection.

The judgment of the trial court is reversed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    GEORGE WALTON v. STATE.
    No. A-5176.
    Opinion Filed Oct. 27, 1925.
    (240 Pac. 141.)
    Vance & Bliss, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The plaintiff in error, George Walton, was convicted on an information charging that in Cherokee county, November 12, 1923, he did convey one quart of whisky from a point unknown to the top of River hill in said county, and, in' accordance with the verdict of the jury, he was sentenced to pay a fine of $150 and be confined in jail for 60 days.

The testimony of Bryce Blevins and Jim Sanders, deputy sheriffs, and D. W. Perkins, chief of police of Tahle-quah, shows that they stopped on top of River hill near a vacant automobile, and the defendant, commonly known as “Happy Jack” came up the hill with a couple of bottles in his hand, and, seeing the officers he broke the bottles.

As a witness in his own behalf, the defendant testified that he left Tahlequah about 10 o’clock, and with Jim Strat-ton and another man they drove northeast of town to the top of River hill, and stopped; that he went to the Walking Stick’spring and there bought two bottles of what was supposed to be whisky, paying $2 therefor; that he had gone about 15 steps and saw the officers, and he broke the bottles to get rid of them.

It is insisted that the punishment imposed is excessive. In the brief it is said:

“The evidence in this case shows that it is his first offense. He has never been charged or convicted of an offense of this kind or of any'other, and, in view of the fact of his general good reputation, we believe sincerely that your honorable court would be fully justified in modifying the judgment to the minimum punishment. This I am sure would be quite sufficient to impress upon him a lesson and would vindicate the law; that defendant, who is known as ‘Happy Jack,’ is liked by the entire citizenship of Cherokee county, where he has lived all his life.”

It is both the spirit and intention of our laws that penalties should be imposed in criminal cases for the protection of society and the reformation of the criminal, and sentences should be imposed in keeping with the spirit of the law. In view of all the facts and circumstances in this case, we are inclined to think that the penalty imposed is too severe.

The judgment and sentence herein will therefore be modified by reducing the sentence to a fine of $50 and confinement in jail for 30 days, and, as thus modified, the judgment is affirmed.

BESSEY, P. J., and EDWARDS, J„ concur.


text:
    LUM MULLUS v. STATE.
    No. A-4949.
    Opinion Filed Aug. 11, 1925.
    Rehearing Denied Oct. 30, 1925.
    (240 Pac. 135.)

      Hulsey, Null & Hulsey, for plaintiff in error.
    George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error will be referred to as defendant, as in the court below.

From a conviction upon a charge of having possession of intoxicating liquor with intent to sell, the defendant has appealed.

Numerous assignments of error are embodied in the petition in error but all are directed to the contention that the search warrant is invalid. It is first argued that the search warrant is invalid, for the reason that the affidavit upon which it is based states a mere legal conclusion, and no sufficient facts are contained in it sufficient to warrant the issuance of a search warrant, citing Gore v. State, 24 Okla. Cr. 394, 218 P. 545, and other cases in which the holding in that case is followed. This case comes more nearly within the rule of insufficiency announced in the case of Hannan v. State, 29 Okla. Cr. 203, 233 P. 249. But even under the rule in that case, as distinguished in the case of State v. Smith, 30 Okla. Cr. 144, 235 P. 273, the affidavit, while subject to criticism, is sufficient to sustain the search warrant.

It is further contended by the defendant that, as no return was made on the search warrant as required by section 2886, Comp. St. 1921, that the search warrant was thereby rendered void. The statute was enacted for the purpose of placing a limit upon the time a search warrant might be executed after its issuance, since the condition of the place to be searched would be subject to change, and to prevent search on stale warrants. While the statute requires a return, yet if when the warrant is executed it is 'not void by reason of lapse of time, the failure to make return would not have a retroactive effect and make void a search that was valid at the time it was made. The mere negligence of the officer in making his return would not invalidate what was legally done under the search warrant, legal at the time of its execution. Viadock v. State, 30 Okla. Cr. 374, 236 P. 56.

There is no error apparent on the record which requires a reversal of this case, and it is affirmed.

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


text:
    MATT COLLINS et al. v. STATE.
    No. A-4965.
    Opinion Filed Aug. 11, 1925.
    Rehearing Denied Oct. 30, 1925.
    (240 Pac. 135.)

      Kelly Brown and P. A. Gavin, for plaintiffs in error.
    Geo. F. Short, Atty. Gen., and Leon S. Hirsh, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error will be referred to as defendants, as in the court below.

The record discloses that defendants were convicted of maintaining a nuisance and each sentenced to pay a fine and to imprisonment in the county jail. The defendants were duly arraigned, pleaded not guilty, and were tried to a jury.

The only assignments of error urged by the defendants which are necessary to consider are as follows:

“First, error in overruling the defendants’ demurrer to the information; second, error in overruling the defendants’ motion to strike from the setting of the criminal docket ; third, error in refusing requested instructions and error in instructions; fourth, insufficiency of the evidence.”

The first assignment of error relates to defendants’ demurrer to the information as being defective for the reason that the same charges defendants with maintaining a “whisky nuisance,” which it is alleged is not covered by the statute defining a “public nuisance,” and does not constitute a public offense. Following the former holdings of this court, the information is sufficient to charge a public offense. An information is sufficient when it clearly and distinctly states the facts in ordinary and concise language, which construed under the ordinary rules of construction of the English language would enable a person of common understanding to know what is meant, and sufficiently certain to enable a defendant to prepare his defense and to plead a judgment of acquittal or conviction in bar to a subsequent prosecution. Section 2563, Comp. St. 1921; Arnold v. State, — Okla. Cr. —, 132 P. 1123; Maples v. State, 30 Okla. Cr. 151, 235 P. 264.

When the essential facts constituting a crime are alleged, the mere misnomer of the offense in the information is not prejudicial. Speer v. State, 130 Ark. 457, 198 S. W. 113; State v. Robey, 74 Wash. 562, 134 P. 174; State v. Moser, 94 Wash. 465, 162 P. 582; Luther v. State, 18 Okla. Cr. 664, 197 P. 533.

Error is also assigned in that case against defendants was on August 28th, the day plea was entered, set for trial on August 30th, and they were not given sufficient time to procure attendance of witnesses and make ready for trial. The record does not disclose that any effort was made to procure the witnesses, nor does it disclose the names of their whereabouts at the time the case went to trial. Trial was not had until August 31st, three days after arraignment, which would have been ample time to have procured the desired witnesses, had due dilligence been used. If witnesses could not be procured, a proper showing for continuance should have been made, setting out the facts as in other cases. Jacobs v. State, 29 Okla. Cr. 140, 232 P. 861.

It is further argued that the evidence is insufficient to sustain the conviction. It is well settled that a verdict will not be disturbed for insufficiency of the evidence when there is evidence from which the jury may reasonably or logically draw the conclusion of the defendant’s guilt.

Error is also assigned in the court’s refusal to give defendants’ requested instructions. Nos. 1 and 2. An examination of the court’s instructions discloses that the same fairly cover the law of the case, and that there was no prejudicial error in the refusal of defendants’ requested instruction.

Various other matters are presented in the briefs, all of which have had our careful attention. Upon the whole case we find no error that requires a reversal.

The case is affirmed.

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


text:
    JIM WILSON v. STATE.
    No. A-4911.
    Opinion Filed July 18, 1925.
    Rehearing Denied Oct. 30, 1925.
    (240 Pac. 155.)

      James S. Davenport and Jennings, Hall & Battenfield, 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.

The evidence, in large part uncontradicted, discloses a rather unusual state of facts about as follows: On the afternoon of August 6, 1922, several persons who lived at or near Catale, going from Muskogee to their home, passed through Catoosa. Among them was J. T. Gaither and his father, J. F. Gaither. They arrived at Catoosa about 2 or 2:30 in the afternoon, and stopped at a cafe for a meal. They were strangers, and knew no one there. Soon after they entered the cafe and ordered their meal, and while sitting at the counter, the defendant, Jim Wilson, came in, and inquired of the person in charge for the cook or “hash-er.” He came out of the cafe; went to his residence about a block away; was gone about five minutes; and returned to the cafe. His son, Harvey Wilson, returned to the cafe with him, or following close behind. On going into the cafe the second time he inquired who had called him a “son of a bitch,” or who had said he was a “son of a bitch,” and no one answered. He repeated the inquiry. J. T. Gaither answered that he must have his “wires crossed”; that no one had called him that name. He turned upon Gaither, and a scuffle ensued, and J. F. Gaither, the father, arose from his seat, and immediately Harvey Wilson, son of the defendant, opened fire with an automatic pistol, and shot and immediately killed J. F. Gaither, and shot and wounded J. T. Gaither, who died in a few minutes. The Gaithers and Wilsons had never seen each other before, and were wholly unacquainted. It is the theory of the state that, when the defendant first came into the cafe, he heard some statement which he took to be applied to him, and left the cafe with the statement, in substance,' that he would be back soon, went to his place of residence, took a pistol which he was wearing inside his shirt, put it in a belt where it would be easily accessible, and returned with his son to ascertain and punish the person whom he thought had applied to him the epithet, “son of a bitch”; that he entered the cafe the second time ahead of his son with his pistol in his hand, made the inquiry above set out, and, as no one responded, he repeated it, and, when he was informed by young Gaither that no one had applied to him any such epithet, that he turned on Gaither with his pistol; and, as young Gaither attempted to protect himself from his assault, that his son, Harvey Wilson, who had come back with him for the purpose of aiding him, opened fire with the automatic pistol and killed the Gaithers.

The theory of the defendant is that he went to the cafe to see one Matthews, and, finding him ou+ le?. t e --e and went to his residence, took a dose of medicine, and returned to the cafe with the expectation that Matthews would then be there; that as he walked in the second time he heard some one use an epithet which he thought ref erre i io himself, and he then made inquiry and repeated it; that when young Gaither answered he did not exactly understand and inquired what was meant; that Gaither grabbed him, and at that time he pulled his gun and struck to knock him loose; that a scuffle and struggle ensued, and the elder Gaither then came toward him when the shots were fired by Harvey Wilson without his knowledge of any purpose to do so. The defendant himself did not fire any of the shots that caused the death of the two Gaithers. These' shots, about seven in number, were fired by the son of the defendant, Harvey Wilson, who was tried separately.

Numerous errors are assigned in the petition in error, and several are discussed in the briefs. But the contentions advanced may be considered under two heads: First, that the court erred in admitting as rebuttal of the state evidence which was admissible only in chief; second, that the evidence is insufficient to prove that the defendant and Harvey Wilson entered into any conspiracy, or that the defendant in any manner aided or abetted Harvey" Wilson in the homicide.

The first contention is based upon the fact that the frial court permitted the state to introduce in rebuttal the evidence of Archie Dickson, which was to the effect that immediately before the homicide he saw Jim Wilson about 50 feet from his home, and going toward it, immediately after Harvey Wilson had gotten out of Dickson’s car in front of his home; this being between the time the defendant was first in the cafe and the time of the homicide. The defendant contends that this was a part of the state’s case in chief, as it was necessary for the state to prove a conspiracy in order to connect the defendant with the homicide, and that the introduction of this evidence in rebuttal was prejudicial. The state contends that, since the defendant had testified that he did not see his son, Harvey, between the time he was first in the cafe and the homicide, it was proper rebuttal to impeach such testimony. Section 2687, Comp. St. 1921, provides the order of proceedings in the trial of a criminal case, in substance, that the state shall open the case ánd offer evidence in support of the charge. The defendant shall then offer evidence in his defense, and the parties may then respectively offer rebutting testimony, unless the court for good reason, in furtherance of justice, or to correct an evident oversight, permits them to offer evidence upon their original case. The evidence complained of was probably admissible either as a part of the case in chief or in rebuttal. If not properly rebuttal, the trial court would have been warranted in permitting the state to reopen its case in chief for the purpose of introducing the evidence in question. It is within the discretion of the trial court in furtherance of justice to permit evidence in rebuttal which would have been competent evidence in chief. Tingley v. State, 16 Okla. Cr. 639, 184 P. 599; State v. Williams, 49 W. Va. 220, 38 S. E. 495.

The primary purpose of rules governing the order of the introduction of evidence is to promote the efficient administration of justice and to preserve the rights of an accused, and, since the matter rests in the sound discretion of the trial court, it would be an extreme case where it clearly appeared that prejudice had resulted, that an appellate court would hold that the order of presenting competent and material testimony was a violation of any substantial right. There is no merit in this contention.

The second and principal point argued by the defendant is that the evidence is insufficient. In passing on this question, it will be necessary to notice the evidence somewhat in detail. Since the firing of the shots that caused the death of the deceased was not done by the defendant, it was incumbent on the state to prove either by direct or circumstantial evidence that the defendant conspired with his son, Harvey Wilson, to take the life of the deceased, or that they conspired to commit a misdemeanor in the course of which the homicide occurred.

The evidence of the defendant supports his theory. He testified he went into the cafe to see Matthews, and was informed by those present that Matthews had gone for water; that he left, saying he would be back soon; that his trip home had no significance whatever; that no difficulty occurred on his first visit to the cafe; that his second visit to the cafe was to see Matthews, and it was then that he heard some one use an epithet that he thought referred to him, and caused him to inquire who had said it, and, when young Gaither answered him, he inquired what he meant, and Gaither seized him, and he then drew his gun; that the elder Gaither then rose and started toward him when the shooting took place; he did not know his son was in the room until he opened fire; that he carried a gun a good deal of the time because threats had been made against him.

The state, in support of its theory, offers the testimony of E. E. Matthews, proprietor of the cafe, who, for the purpose of showing that the second trip of the defendant to the cafe was not to see Matthews, testified that as he left the cafe to go for water he met the defendant. It offered evidence of George Kelly that, when the defendant came to the cafe the second time, his revolver was in his belt. The defendant had testified on cross-examination that, on the first occasion when he went to the cafe, he had his pistol, but it was inside his shirt. It offered the testimony of Archie Dickson that he let Harvey Wilson out of his car at defendant’s residence, and saw the defendant about 50 feet away, going toward his residence, between the time the defendant was first in the cafe and the time, of the homicide. It offered further the evidence of George Kelly, who was a stranger and unacquainted at Catoosa, that he saw the defendant leaving the cafe on his first visit, and saw him returning to the cafe in a few minutes with some one whom he did not know. It offered the evidence of W. B. Hardiston that he was on a seat in the cafe when Jim Wilson, the defendant, came in and asked who called him a name; that young Gaither said he must be mistaken — that none of them had done so; that the defendant, with his gun his hand, advanced on Gaither, and attempted to hit him, and that young Gaither grabbed his arm and shoved him back; that the elder Gaither jumped up, and Harvey Wilson then opened fire, and old man Gaither sank down. There was evidence that immediately after the shots were fired the defendant said, “Harvey, I didn’t mean for you to do that.” Harvey said, “I done it anyhow.” There is no direct proof that the defendant and his son, Harvey Wilson, agreed with each other to go to the cafe and assault the person presumed to have insulted the defendant, but a conspiracy may be proven by the acts and conduct of the conspirators; that is to say, by circumstantial evidence. Ex parte Hayes, 6 Okla. Cr. 321, 118 P. 609; Washmood. v. U. S., 10 Okla. Cr. 254, 136 P. 184; State v. Ryan, 47 Or. 338, 82 P. 703, 1 L. R. A. (N. S.) 862; People v. Kizer et al., 22 Cal. App. 10, 133 P. 516, 521, 134 P. 346.

It seems to us a reasonable and fair deduction from this evidence that the defendant on his first visit to the cafe fancied he was insulted. He returned to his home, moved the position of his pistol, and with his son returned and made inquiry with a view of at least chastising the person he thought had insulted him, and, in attempting to carry out his plan, the killing resulted. The responsibility of a conspirator is not confined to the accomplishment of the particular purpose of the conspiracy, but extends to collateral acts and offenses incident to and growing out of the purpose intended. Holmes v. State, 6 Okla. Cr. 542, 119 P. 430, 120 P. 300; Burns v. State, 8 Okla. Cr. 554, 129 P. 657.

From a careful consideration of the record and the able briefs of counsel we are of the opinion that the defendant had a fair trial; that issues were fairly submitted to the jury; and that the evidence amply supports the verdict. . The case is affirmed.

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


text:
    FONCE FISHER et al. v. STATE.
    No. A-5114.
    Opinion Filed Oct. 30, 1925.
    (240 Pac. 655.)
    J. W. Tyree and J. F. Thomas, for plaintiffs in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the county court of Comanche county on a charge of transporting whisky, the plaintiffs in error, hereinafter called defendants, have appealed.

The only assignment of error argued is that the evidence is insufficient to sustain the verdict. This contention is based on the matter of the identification of the defendants as the persons transporting the whisky in question. We have examined the evidence in the record carefully, which shows a state of facts about as follows: On or about the 2nd day of August, 1923', three boys were traveling’ along the highway just out of Chattanooga, two of them in a wagon and one on horse back. Two men, accompanied by a woman and child, in a Chevrolet automobile, traveling along the same highway, drove up behind them, at one time coming within a few yards of them; the distance being estimated as close as across the courtroom. Of the persons in the car, one of them got out of the car and placed some whisky behind a post. The car then drove away, and the boys went back, and got the whisky, and took it to their home. The sheriff was called, and went to Chattanooga, and arrested the defendants. The identification of the defendants as the persons who placed the whisky at the spot where it was found depends upon the evidence of William Ward, a boy 14 years of age. An examination and analysis of his testimony renders it, we think, sufficient to sustain the verdict. He testifies in part as follows:

“* * * Q. Did you see Fred Fisher on that day? A. Yes, sir.
“Q. Who was with him? A. Fonce and his wife.
“Q. How were they traveling? A. In a Chevrolet. * * *
“Q. Now, tell the jury just what you saw them do in reference to stopping there? A. Well, we were driving along, and they came out from town, and they drove behind us real slow. We watched them, and we just kept going on, then they stopped — I was pretty sure they backed and cut in the grade and came to a stop. A Ford touring car came along, and they stopped the touring car and was talking. I am pretty sure they was talking.
“Q. Did you see either one of these defendants get out of the car? A. Yes, sir.
“Q. Which one was it? A. Fred Fisher, the tall one. He got the whisky, and he went around behind the car. I saw him get the stuff out and set it behind the post.
“Q. Where did he get the whisky from? A. The car.
“Q. What car? A. The car he was in.
“Q. Where did he take it to? A. Out by the post; the fence post. * * *”

Then, after testifying about the recovery of the whisky deposited and calling the sheriff, he further testified:

* * * “Q. Did you go down town yourself then? A. Yes, sir.
Q. Did you see that car down there any where? A. Yes, sir.
“Q. Where did you see it ? A. On Main street.
“Q. Who was in the car when you saw it down there? A. When I saw it they was searching it.
“Q. Did you see Fred or Fonce Fisher down there? A. I saw them both.
*‘0. Were they around the car? A. Yes; both of them, and the wife and baby. * * *
“Q. How did you know? A. I noticed the sign that was in front there. The shape it was in.
“Q. You knew that before you went back to town? A. Yes, sir. * * *”

He then testifies about going to town with the deputy sheriff and about seeing the parties there as follows:

“* * * Q. How soon did you go down there? A. I went home and stayed about one minute, and then I went up town, and when I got up town they was searching the car.
“Q. Who was in the car at that time? A. There was nobody but Fonce, Fred, a lady, and the baby when they was searching it, the same ones that was in it when they clrove up behind us. * * *
“Q. Now, did you see the same car when they was searching it? Was that the same car they was in when they put the whisky there ? A. Yes, sir.
“Q. It was a Chevrolet automobile? A. Yes, sir.
“Q. Now, I believe you testified, William, that when you saw them down in Chattanooga that there was Fonce and Fred and a woman and a baby in the car. I want you to state whether or not they were the same people that were in this car out there where you found the whisky? A. Yes, sir.
“Q. You cannot be mistaken about that? A. I could be mistaken about that. I could be, maybe, but I am pretty sure it was them.
“Q. These people that you saw down there; two of them that you saw down there at Chattanooga, I want you to state whether or not are these two defendants here. A. Yes, sir. * * *”

In addition to this testimony there was evidence of statements made by the defendant Fred Fisher to a deputy sheriff and to the jailer which tended to prove his connection with the whisky. This presents a question of fact, and, where ,the reasonable and logical inferences arising from the evidence are such that the jury may find the guilt of the defendant, its weight and credibility is for .the jury, and, in the absence of unusual circumstances, will not be disturbed by this court.

The case is affirmed.

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


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    A. B. COWAN v. STATE.
    No. A-5049.
    Opinion Filed Oct. 30, 1925.
    (240 Pac. 660.)

      Fred L. Hoyt and John Butler, for plaintiff in error.
    George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the county court of Dewey county on a charge of manufacturing whisky, the plaintiff in error, hereinafter called defendant, has appealed.

The only assignment of error argued in support of the appeal is that the evidence is insufficient to sustain' the verdict. Briefly stated, the evidence is about as follows: Certain officers went to the residence of the defendant, and found parts of a still at different places on his farm, and in a barrel near the hog pen a quantity of mash. No place was found where a still had been set up, and no whisky was found, although some empty jars and kegs were found which smelled like they had had whisky in them.- It also appeared in the evidence that the' defendant had been apprehended by federal authorities for having possession of the same still, and had pleaded guilty in the federal court, and had been fined $50. The defendant testified in his own behalf that the still was not his, and that he had not manufactured any whisky; that he had been charged in the federal court with having possession of the still in question; and that he was in the federal jail for 3 months and 20 days. He further testified that the mash in question was prepared and used by him for hog feed.

Bearing in mind that the charge against the defendant is for the manufacture of whisky, and not for having possession of a still, we think the evidence is insufficient to establish the charge. The circumstances raise a very grave suspicion against the defendant, and we are led to surmise that he had either manufactured or was preparing to manufacture whisky. No evidence was offered that in his plea in the federal court he admitted that he had manufactured any whisky. His explanation that the mash found in his possession was hog feed is not satisfactory, since this explanation leads us to the conclusion that mash as feed for hogs is altogether too common in Oklahoma. But upon a careful consideration of all the evidence we find it falls short of establishing the guilt of the defendant to that degree of certainty required in a criminal case. Key v. State, 22 Okla. Cr. 284, 210 P. 1044; Smith et al. v. State, 21 Okla. Cr. 224, 205 P. 1105.

The case is reversed and remanded, with instructions to dismiss.

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


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    RICH HOSKINS v. STATE.
    No. A-5145.
    Opinion Filed Oct. 30, 1925.
    (240 Pac. 659.)

      ■ Morris & Tant, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the county court of Oklahoma county upon a charge of having possession of whisky with intent to sell, the plaintiff in error, hereinafter called defendant, has appealed.

It appears that the defendant, Rich Hoskins, and Jesse Stension were jointly charged with the crime of having possession of whisky with the intent to sell. After the jury was impaneled, and, before presenting the evidence for the state, the county attorney requested permission to indorse the name of Stension as a witness, an objection by the defendant was sustained. Before resting the case in chief the state called Jesse Stension as a witness and thereupon defendant objected to his testimony, for the reason that his name was not indorsed on the information. In the .absence of the jury, the codefendant, Stension, said that he desired to enter a plea of guilty to the charge and state the facts. The counsel for defendant informed the court that they were surprised at the proceedings and would ask for a continuance. The county attorney then, without further offer of the testimony, informed the court that the state would rest. The jury was recalled, and counsel for the codefendant, Stension, called him to the stand, and the objection was renewed by the defendant. After some colloquy, the state indorsed the name of Stension and used him as a witness over the objection of the defendant, wlio requested time to make a showing of surprise and for a postponement or continuance in order to meet the evidence of Stension, which was denied by the court. It is discretionary with the trial court to permit the names of additional witnesses to be indorsed after the jury is impaneled, or during the trial. Stockton v. State, 5 Okla. Cr. 310, 114 P. 626; Colbert v. State, 4 Okla. Cr. 500, 113 P. 558; Ghormley v. State, 11 Okla. Cr. 532, 148 P. 1057; Bradshaw v. State, 16 Okla. Cr. 624, 185 P. 1102; Shieve v. State, 30 Okla. Cr. 91, 235 P. 254.

Where, however, the names of material witnesses are indorsed during the trial, the defendant, upon seasonable application, should be given time to make a showing for a postponement in order that he may meet the evidence of the witnesses so indorsed. Upon the record before us, we believe it was an abuse of discretion to permit the indorsement of the name of a codefendant without giving defendant time to make an application for a postponement or a continuance.

It is further urged that the failure of the,court to . instruct the jury that Jesse Stension is an accomplice was prejudicial; such instruction having been requested and "denied. It is well settled that, when the question of an accomplice’s testimony arises on the trial of a case, the general accepted rule is for the court to instruct the jury on the law of accomplice testimony and leave the question ■as to whether or not the witness is an accomplice for the determination of the jury as a question of fact. But where the facts are not in dispute, or where the acts and conduct of the witness are admitted, it becomes a question of law for the court to say whether or not those acts and-fact make the witness an accomplice. We think the court sufficiently covered this objection by other parts of his instructions.

The refusal of the trial court to allow the defendant time to make a showing upon the indorsement of the' name of his codefendant, Jesse Stension, as a witness, was prejudicial error.

The case is reversed and remanded.

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


text:
    ORBE BRYANT v. STATE.
    No. A-5144.
    Opinion Filed Oct. 30, 1925.)
    (240 Pac. 658.)
    Anglin & Stevenson, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the district court of Hughes county on a charge of robbery, the plaintiff in error, hereinafter called defendant, has appealed.

This case was tried in November, 1923', and the appeal filed in this court in April, 1924. No brief has been filed by the defendant in support of the assignments of error and no appearance for oral argument made. It is the settled policy of this court where there has been a conviction for a felony and the appeal is not briefed nor oral argument made, the court will not search the record for errors on which to predicate a reversal, but will examine the record for jurisdictional errors, and will read the evidence to ascertain if it supports the verdict, and, if no jurisdictional ■defect appears and the evidence supports the verdict, the judgment will be affirmed.

We have examined the record, and find that the information properly charges the offense for which the defendant was convicted. The trial was orderly, the instructions properly charged the law, and no exceptions are noted. We have read the evidence which discloses a state of facts about as follows: That the prosecuting witness on the day the robbery was charged, had sold some hogs, and, between sundown and dark, was on the road home when he was stopped by some person, blacked up as a negro, whom he identified as the defendant, who pointed a gun at him, required him to halt, get out of the wagon, and who then took the money out of his pocket. As soon as the complaining witness could notify officers they went to the place where the defendant was staying, found him upstairs in bed apparently asleep. The officer testified that he had smut across his cheeks, under his eyes, a stripe on his face and a stripe behind his ear, and his throat was black; that he had blacking on his face was corroborated in part by the jailer where the defendant was taken. The defendant denies any connection or knowledge of any robbery and offered evidence tending to prove an alibi.. The evidence presents a question of fact, and its weight and credibility was for the j'ury; it was for them to say whom they would believe or disbelieve. There is no reason apparent why this court should disturb the verdict.

The case is affirmed.

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


text:
    L. MORRIS v. STATE.
    No. A-5143.
    Opinion Filed Oct. 30, 1925.
    (240 Pac. 658.)

      Eaton & Gilder, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the county court of Okmulgee county on a charge of manufacturing intoxicating liquor, the plaintiff in error, hereinafter called defendant, has appealed.

No briefs have been filed either for the plaintiff in error or the state, and, where a defendant has been convicted of a misdemeanor and has prosecuted an appeal to this court, and no briefs are filed in support of the petition in error, this court will examine the record for fundamental errors, and, if none appear, the case will be affirmed. Nelms v. State, 31 Okla. Cr. 185, 237 P. 870.

An examination of the record discloses that the defendant and one W. J. Warden were jointly charged with the manufacturing of whisky. The evidence is that the sheriff and a deputy sheriff went to a house where the defendant and Warden resided, and about 75 yards from the house, in a cellar with a shed over it, they found two stills, one of them in operation making whisky, and the other not in operation. Some whisky was found at the house and near it two barrels of mash. The defendant and Warden were taken to Okmulgee, and on the way there each talked of pleading guilty, but, on being informed by the sheriff that the punishment would be a penitentiary sentence under the then felony law, they did not do so.

At the time of the trial Warden was a fugitive, and the defendant Morris was tried alone. He testified that he had resided there with Warden some three weeks; had no connection with the making of the whisky; and did not know of its’ being manufactured there.

Upon an examination of the entire record it appears that the defendant was properly charged, was fairly tried, the evidence ample, the issues of law fairly submitted, and no prejudicial error is apparent.

The case is affirmed.

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


text:
    JOHN E. SNYDER v. STATE.
    No. A-4676.
    Opinion Filed Oct. 30, 1925.
    (240 Pac. 331.)
    Stevens & Cline, for plaintiff in error.
    The Attorney General arid Chas. Hill Johns, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

Plaintiff in error, defendant in the trial court, was convicted of embezzlement, with his punishment fixed at confinement in the state penitentiary for a term of one year.

The information charged, in substance, that the defendant willfully, unlawfully, and feloniously appropriated to his own use and benefit certain money, the property of the Farmers’ and Merchants’ Bank of Sterling, Okla., while acting as assistant cashier of that bank; that, the money was taken in violation of his trust as agent and assistant cashier of the bank, without the knowledge or consent of the owner, with the intent to deprive the owner thereof and appropriate it to his own use.

A demurrer .was filed attacking the information on the grounds that it was not indorsed and verified as required by law, that it did not state facts sufficient to constitute a public offense, and that no preliminary hearing was afforded the defendant. This demurrer was properly overruled. The information was in fact signed and indorsed, the allegations stated a public offense, and, in the absence of a specific showing to the contrary, there is a presumption that a preliminary hearing was had. In the brief on appeal it is not urged that the information was. not properly signed and indorsed, or that no preliminary hearing was had.

The defendant urges that this demurrer should have been sustained, for the reason that the defendant was prosecuted under the provisions of the Criminal Code (section 2122, C. O. S. 1921), the general statute on embezzlement, whereas he should have been prosecuted under the special law relating to banks and banking (section 4142, C. O. S. 1921).

This objection, if available to the defendant, was not properly raised by the demurrer. No claim was made in the trial court that the prosecution was not brought under the proper statute. Moreover the penalty prescribed for embezzlement under section 4142, supra, is greater than that prescribed by section 2122, so that the error, even though it had not been waived, inured to the benefit of the defendant.

The allegations of the information are sufficient to support a conviction under section 2122, supra; it is not necessary to decide whether they would have been sufficient to sustain a conviction under section 4142.

The defendant next complains that the court erred in permitting one of the officers to give secondary evidence as to the contents of a written statement signed by the defendant at the time he was arrested. This objection must also be rejected. The record shows that some evidence was offered that the statement so signed was lost and could not be found. It appears, moreover, that the officers who arrested the defendant in Kansas City, and the sheriff who brought him from Kansas City to Comanche county, testified to oral statements made by the defendant in their presence concerning the same facts and circumstances alleged to have been incorporated in the written statement, which was in the nature of a confession that he (the defendant) had from time to time, while assistant cashier of the bank, abstracted from the funds of the bank various sums of money, amounting in the aggregate to $1,900. In his own behalf the defendant at the trial gave a plausible explanation of this alleged confession.

Even if the foundation laid for the introduction of secondary evidence was insufficient, the direct oral evidence given by these officers as to the same facts was admissible, so that the admission of this secondary evidence as to the contents of the written statement was immaterial. This objection cannot be consistently urged in this court for another reason, which is that two other officers testified to the contents of the written statement without objection on the part of the defendant.

It is next urged that the evidence is insufficient to support the verdict. The evidence is voluminous, but it would serve no good purpose to attempt to analyze it here. The evidence in toto has been examined, and there is ample, if believed by the jury, to support the verdict. The weight of the evidence and the credibility of the witnesses is for the jury.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


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    SID GILES v. STATE.
    No. A-5161.
    Opinion Filed Oct. 3, 1925.
    Rehearing Denied Oct. 30, 1925.
    (240 Pac. 131.)
    R. C. Roland, for .plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

Plaintiff in error, Sid Giles, was convicted on an information charging that, in Carter county, Feb-uary 8, 1923, he did have in his possession three pints of whisky with the willful and unlawful intent then and there to give, sell, barter, and otherwise furnish the same to others, and, in accordance with the verdict of the jury, he was sentenced to pay a fine of $50 and to be confined for 30 days in the county jail. On January 9, 1924, judgment was rendered in accordance with the verdict, and from the judgment he appealed by filing in this court May 8, 1924, petition in error with case-made.

No brief has been filed. When the case was called for final submission, no appearance was made in behalf of plaintiff in error, and the cause was submitted on the record-.

Upon a careful examination of the record, we have failed to discover anything whereof the plaintiff in error has just right to complain.

The judgment appealed from is therefore affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


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    FOUNT TRIMMER v. STATE.
    No. A-4786.
    Opinion Filed July 18, 1925.
    Rehearing Denied, Oct. 30, 1925.
    (240 Pac. 129.)
    J. W. Barry, for plaintiff in error.

      George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The evidence, eliminating many of 'the unimportant details, shows that the Colony Mercantile Company of Colony, Okla., was burglarized on the night Of January 21, 1922, Saturday night; that the defendant and another, both strangers in town, were in Colony late that evening, and that the defendant and his companion were in the store and there made inquiry as to the heating and lighting of the store, and as to whether there were any persons living in the rooms above the store; they also made some small purchases of goods located in different parts of the store. On the 25th of January, four days later, the defendant expressed two packages of merchandise, consigned from Anadarko to Lindsay, addressed to Grace Mc-Cann ; the contents of these packages were later identified as merchandise taken from the store that night, the packages having been taken from the office of the express company at Lindsay by officers.

The evidence shows that entrance was made into the store by cutting the screen covering a window, removing the putty, and taking out the glass. Tracks were found leading from this window to where two automobiles had been parked. The defendant was identified as one of the persons who was in the store, made some purchases, and inquired about the heating, lighting and rooms. Other witnesses testified that the two men had supper in a restaurant near the store. Two Ford cars were seen parked along the highway some distance from town, in the direction of Anadarko, between 8 and 9 o’clock the night of the burglary, and car tracks leading from the store were traced some distance along this highway.

The defendant did not take the witness stand, and introduced no evidence in his behalf. The evidence on the part of the state was, for the most part, circumstantial.

The evidence adduced convinced the jury that the defendant was implicated in the burglary. A reading of the record leads us to the same conclusion. The circumstances shown were such as to eliminate every other reasonable hypothesis. Moreover, the circumstances indicative of guilt were remarkably consistent with each other, so that a failure to instruct the jury upon that feature of circumstantial evidence, if error it was, was harmless.

While a defendant has a right to stand upon his presumption of innocence and refrain from taking the witness stand to make explanations of the facts and circumstances indicative of his guilt, as shown by the state, yet if he elects to make no explanation he does so at his peril. Despite the fact that the law accords him that privilege, it is a provision of law that cannot change human nature. In many instances it is next to impossible for courts and juries to disregard the fact that the defendant failed to take the stand and make explanation of things that were manifestly within his knowledge, and in this case it may be that the jury, or one or more members of it, took into consideration the fact of his failure to testify. But even if that happened, it will not operate to set aside a conviction on circumstantial evidence where the circumstances proven indicate guilt to a moral certainty, as in this case, so as to exclude every other reasonable theory.

The identification of the defendant was more positive than is usual in such cases; the defendant’s presence in the store the night of the burglary, and the questions asked, indicate a preliminary survey in preparation for the burglary, which facts, in connection with the defendant’s disposal of the property stolen, indicate that he was at least implicated in the burglary, and was not merely a receiver of stolen goods.

The judgment of the trial court is affirmed.

DOYLE, J., concurs.

EDWARDS, J., disqualifies himself.


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    R. R. SIMS v. STATE.
    No. A-5030.
    Opinion Filed July 11, 1925.
    Rehearing Denied Oct. 30, 1925.
    (240 Pac. 130.)
    William Robinson, P. Mounts, and W. H. Hussey, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty Gen., for the State.
   DOYLE, J.

Plaintiff in error, R. R. Sims, was convicted of embezzlement, and in accordance with the verdict of the jury was sentenced to pay a fine of $25,000, and to be imprisoned in the penitentiary for a term of 4 years. From the judgment an appeal was taken by filing in this court February 15, 1924, a petition in error with case-made, but there has been no appearance made on behalf of plaintiff in error in this court, and no brief in support of the .assignments of error has been filed. When the case was called for final submission, it was submitted on the record.

The information charges, in substance, that in Tillman county, on the 25th day of April, 1923, R. R. Sims was the duly qualified and acting clerk of school district No. 158 in Tillman county, and had been such clerk from the 11th day of May, 1917, and by virtue of his said office and public trust as clerk of said school district received certain public money, warrants, and other propérty, the sum of $288,-186.80, the property of said school district, and did unlawfully, wilfully, intentionally, wrongfully, fraudulently, and feloniously, and without authority of law as such officer and clerk, embezzle, convert, and appropriate to his own use and benefit, and to a use and benefit not in the due- and lawful execution of his trust as such officer, a part of said public money and property of said school district, to wit, the sum of $27,847.14, good and lawful money of the United States, with the wilful, unlawful, fraudulent, and felonious intent to deprive said school district of its money and property in said amount; that the said R. R. Sims has since resigned as clerk of said school district, and has failed and refused to render an accounting to the board of education of said school district, though requested to render such accounting by said board, and has failed and refused to deliver the aforementioned sum of money so embezzled, converted, and appropriated as aforesaid to his duly qualified and acting successor.

The information is sufficient, and the demurrer thereto was properly overruled.

Several assignments of error are directed to the admission and rejection of testimony. We have carefully examined them, and, finding no error in the rulings of the court in this regard, a discussion of them would serve no useful purpose.

In Fulkerson v. State, 16 Okla. Cr. 250, 189 P. 1092, we held that:

“Before this court can reverse a conviction upon the ground that the trial court erred in the admission or rejection of evidence, or in its instructions to the jury, we must further find from an inspection of the entire record that appellant was injured thereby; and to determine this issue the court must consider the question of whether appellant is guilty or innocent of the offense charged.”

The evidence abundantly supports the allegations of the information, and is practically undisputed. The defendant did not testify.

While the plaintiff in error is not represented in this court, we have with much care examined the voluminous record, and find it free from substantial error. There is no good reason for writing opinions which can be of no value in the trial of other cases, and a discussion of the errors assigned in this case would not be of value as a precedent or as a guide in future cases.

The unblushing boldness and prevalence of this class of crime demands a just, yet rigid, application of the law and its penalties. Bean v. State, 27 Okla. Cr. 228, 226 P. 115.

Upon the record before us we are of opinion that the plaintiff' in error had a fair and impartial trial, with every right accorded him that the law justifies or requires. The judgment of the district court of Tillman county is therefore affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


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    CLYDE PRINGLE v. STATE.
    No. A-5001.
    Opinion Filed Oct. 9, 1925.
    Rehearing Denied Oct. 30, 1925.
    (239 Pac. 948.)

      Walter Mathews, for plaintiff in error.
    George F. Short, Atty Gen., and John Barry, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted on a charge of receiving stolen property, knowing the same to have been stolen-, and appeals.

The only question presented by the appeal is the insufficiency of the evidence to sustain the verdict. The record discloses that, on the 15th day of February, 1923, a railroad car was broken into at Oilton and certain Ford parts and accessories stolen therefrom, among which were some Ford wheels equipped with casings and tubes. Shortly after the theft, four of the wheels were found in the possession of the defendant under the bed at his residence. When questioned about the wheels, the defendant stated that he had bought them from a “Tanky,” meaning a worker at an oil tank 'farm, but did not know his name, but would endeavor to find him, and that he would notify the officers. Later the defendant and one Frank Thionnet were arrested and confined at the same time in the jail. Thereafter, Thionnet pleaded guilty of the larceny of the wheels in question and, being a minor, was sent to the training school for boys at Pauls Valley and later paroled. He testified for the state upon the trial, and his testimony was, in substance, that he and one Charley Johnson burglarized the car in question and stole the wheels; that prior to that occasion, he had at one time asked the defendant if he could handle some “stuff,” and the defendant had answered “Yes”; that after stealing the property from the car on the same night it was moved out a distance and concealed, and that he went to the residence of the defendant, while Johnson stayed with the property, and from the residence Thionnet and defendant went to the place where the wheels were concealed, and he there sold defendant four of the wheels for which defendant paid him the sum of $20, and they then took the four wheels to defendant’s home. Statements conflicting in some particulars were made by the defendant to different of the officers. Upon the trial, the defendant testified that he had a transaction with Thionnet in' front of a pool hall; that defendant had started to a Ford garage to buy some Ford parts, and was accosted by Thionnet, who told him he could save him some money; that he thereupon ordered four wheels from him, paid $20 down, and the sale was entered on an order book; that when the stuff was delivered to him he paid $28 more. He explained his former statement that he bought it from a “Tanky” by saying that his father had told him that the fellow worked on a tank farm. He also offered evidence that, on the night of the 15th of February, the date the burglary was committed, he was sitting up with some neighbor who had a sick child.

Counsel for defendant argue that there is no evidence to show that, at the time accused purchased the wheels, he knew they were stolen. It is true that the evidence on this point is circumstantial. But it may be said generally that matters of knowledge, intent, and mental attitude are not generally capable of proof by direct and positive evidence, but must be proven by facts and circumstances.

It is further argued that there is no sufficient corroboration of Thionnet, and that Thionnet is an accomplice of the defendant, and the rule of law with reference to corroboration of an accomplice has not been met. The court instructed the law of accomplice, and informed the jury that the defendant could not be convicted upon the evidence of Thionnet standing alone, but that there must be corroboration connecting the defendant with the commission of the offense. The rule of law applying to an accomplice was correctly stated, and no complaint is made as to the correctness of the instruction, but in this particular the court was more liberal than the law requires. While there is some division in the authorities, the rule seems well settled that a thief is not an accomplice of one who receives the goods knowing them to have been stolen, for the larceny and the receiving of the goods are separate and distinct offenses. 12 Cyc. 447 (II).

In the case of State v. Kuhlman, 152 Mo. 100, 53 S. W. 416, 75 Am. St. Rep. 438, the Supreme Court of Missouri held:

“The thief of goods is not an accomplice of the one who receives them, within the meaning of the law which requires a special instruction to be given covering the credibility of an accomplice as a witness.”

In the case of Springer v. State, 102 Ga. 447, 30 S. E. 971, it was held:

“The actual thief, relatively to the receiver of stolen goods, is an independent criminal; and, although he may commit, the larceny by which he possesses himself of stolen goods, he does not and cannot participate with the receiver of such goods in the special offense committed by the latter in receiving such goods, knowing them to be stolen; and upon the uncorroborated testimony of the former the latter may be convicted.”

This court, in the case of Mayes v. State, 11 Okla. Cr. 61, 142 P. 1049, approved the rule announced in the case of Springer v. State, supra, and the general rule as announced in 12 Cyc 447 (II), and there announced the rule that a thief, who steals property, is not an accomplice of one who receives property knowing it to have been stolen, and that the thief is a competent witness in behalf of the state, and that the rule of law requiring corroboration of an accomplice did not apply, and a conviction might properly be had without such corroboration. We see no reason for departing from the rule thus announced and adhere to it fully. But aside from this rule, there were, we think, sufficient facts and circumstances in evidence to clearly prove the guilt of the defendant.

Finding no prejudicial error, the case is affirmed.

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


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    RED DAVIS v. STATE.
    No. A-5157.
    Opinion Filed June 22, 1925.
    Rehearing Denied Oct. 30, 1925.
    (240 Pac. 132.)

      R. C. Roland, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

Plaintiff in error, Red Davis, was convicted on an information charging that he did have in his possession intoxicating liquors, to wit, 21 bottles of Choctaw beer, with the unlawful intent to sell the same, and in accordance with the verdict of the jury he was sentenced to pay a fine of $50 and to be confined in jail for 30 days. From the judgment he appeals.

The only errors assigned are that the evidence is insufficient to sustain the verdict of the jury, and that the court erred in not granting a new trial.

The evidence for the state shows that officers arrested the defendant for being drunk; that he had 21 bottles of Choctaw beer on ice in a box in the back end of his car. Two or three witnesses for the state testified that the defendant said that he was drunk from drinking the beer. They further testified that the Choctaw beer seized was intoxicating liquor.

As a witness in his own behalf, the defendant testified that he was commonly called Red Davis, but that his name is Seaman Davis; that he conducted the Red Davis Cafe; that he got a case of Choc and got to drinking it on the road hack; that he did not intend to sell any of it.

Obviously the question was one for the determination of the jury. Finding no material error in the record, the judgment of the lower court is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


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    CARL FLANAGAN v. STATE.
    No. A-5092.
    Opinion Filed July 28, 1925.
    Rehearing Denied Oct. 30, 1925.
    (240 Pac. 132.)
    Paul C. Thorn, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the state.
   DOYLE, J.

The plaintiff in error was tried and convicted, and, in accordance with the verdict of the jury, was sentenced to pay a fine of $350 and be confined for 60 days in the county jail on an information charging that in McCurtain county, August 17, 1923', 'Carl Flanagan did sell one quart of whisky to Willie Morris, Monroe Hilton, and Roscoe Hines.

A reversal of the judgment' is asked on tne ground •that the court erred in admitting certain testimony, and that the verdict is not sustained by sufficient evidence.

The state introduced five witnesses. An examination of the record shows no exception taken to the rulings of the court on the admission of evidence. The defendant did not testify, and no evidence whatever was introduced on the part of the defense. There can be no doubt as to the sufficiency of the evidence to sustain the conviction.

Finding no prejudicial error, the judgment appealed from is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


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    WILLIAM REED v. STATE.
    No. A-4870.
    Opinion Filed June 27, 1925.
    Rehearing Denied Oct. 30, 1925.
    (240 Pac. 132.)
    James A. Embry, for plaintiff in error.
    George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   EDWARDS, J.

This is a companion case to Roberts v. State, 31 Okla. Cr. 103, 237 Pac. 148, just decided. The evidence of the state is substantially the same and the questions .presented on this appeal the same, and, while no briefs have been filed in this case, it has been agreed that the briefs in No. A-4835, supra, should, so far as applicable, be considered in'this case.

Upon the authority of, and for the reasons assigned in No. A-4835, supra, the case is affirmed.

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


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    C. E. MOSS v. STATE.
    No. A-5136.
    Opinion Filed Oct. 30, 1925.
    (240 Pac. 328.)
    W. F. Speakman, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   EDWARDS, J.

From a conviction for receiving stolen property in the superior court of Creek county, the plaintiff in error, hereinafter called defendant, has appealed.

This cause was tried in October, 1923, and the appeal was filed in this court in April, 1924. No briefs have been filed in behalf of defendant nor for the state.

Where a defendant is convicted for a felony, and appeals to this court, and no briefs are filed in support of the assignments of error, and no appearance for oral argument made, this court will not search the record for defects on which to predicate a reversal, but will examine the record for jurisdictional errors, and will read the evidence to ascertain if it supports the verdict and judgment. If no jurisdictional errors appear, and the evidence supports the verdict, the judgment will be affirmed. We have carefully examined the record, and find that the information properly charges the offense of receiving stolen property; the trial was unusually free from exceptions. The instructions properly submit the issues, and the evidence amply sustains the verdict.

An examination of the evidence discloses that in April, 1923, a Hudson automobile was stolen from its owner at Lawton, Okla., by one Thomas, who later pleaded guilty for the theft, and a few days later the defendant was in possession of the car and traded it to one Cook near Drum-right. He procured Cook to go a few miles out in the country, where the car was shown him and a trade made. That night he assisted Cook in repainting it. Some days later the defendant procured one Taylor to secure possession of the car from Cook by agreeing to return to Cook the car which he had traded for it. The defendant and Taylor then took the car into the country, took off the carbureter, altered the numbers, and burned it. There was evidence of incriminating statements made by the defendant, which fully confirm the theory of the state.

The appeal is without merit. The case is affirmed.

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


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    COLUMBUS TRIMBLE v. STATE.
    No. A-5073.
    Opinion Filed Oct. 30, 1925.
    (240 Pac. 329.)

      Robert S. Howe and Choice D. Holden, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the district court of Choctaw county upon a charge of selling intoxicating liquor to minors, the plaintiff in error, hereinafter called defendant, has appealed.

The defendant was charged with selling whisky to four minors, ranging in age from 16 to 18 years. It appears from the record that R. G. Berry, Winfred Hembry, and T. F. Williamson, three of the minors to whom it was alleged the defendant sold whisky, were residents of the state of Texas. They came to Hugo to visit David Harrison, the ether person to whom it is alleged the sale was made. They testified at the preliminary hearing, returned to their home in Texas, and were not present at the final trial. Harrison also had left the state. Upon a showing of their being outside the state, the trial court permitted the evidence of David Harrison and Winfred Hembry, taken at the preliminary, to be read in evidence, over the objection of the defendant. Counsel for defendant then offered the testimony of T. F. Williamson, one of the minors in question, taken at the preliminary, which was admitted.

The assignments of error requiring notice are as follows: First, error of the court in admitting a transcript of the evidence of absent witnesses; second, error of the court in making prejudicial statements in the hearing of the jury; third, error of the court in refusing requested instructions; fourth, that the law under which the defendant was convicted is unconstitutional. These assignments will be considered in the order presented.

Upon the first assignment, the defendant complains that there was no showing of diligence to procure the presence of David Harrison, a transcript of whose evidence was used by the state. The record on this point discloses that it was agreed between counsel for the state and defendant that the witness David Harrison had left the state of Oklahoma and was in the state of California. But it was contended by the defendant that the witness had been given consent by the county attorney to leave the state. The record, however, shows that, before leaving the state, the witness Harrison informed counsel for defendant of his intention, and was referred to the county attorney. He thereupon inquired of the county attorney, who informed him that he was under bond, and that he must be in attendance on the court. There was no error in .the admission of the transcript of the evidence of these witnesses.

The second assignment is based on the remarks of the court in ruling upon an objection in evidence. The wife of the defendant testified that the defendant was a carpenter and engaged in doing carpenter work. She was then asked, referring to the defendant and another person:

“Q. Did they do- any work for the city of Hugo?
“By Mr. Gross: We object to that. That is immaterial.
“By the Court: I do not see that that has anything to do with it, Mr. Warren. A man could sell whisky and then do carpenter work too.”

The remark was highly improper. It is generally said .that unfairness on the part of a trial court, whether intentional or not, is sufficient to overturn a verdict, unless it clearly appears from the record that the jury could rationally have arrived at no other verdict. Rogers v. State, 8 Okla. Cr. 226, 127 P. 365; Dupree v. State, 10 Okla. Cr. 65, 134 P. 86; Chambers v. State, 28 Okla. Cr. 156, 229 P. 646.

It is an excellent rule for trial judges, in the trial of criminal cases, to rule upon objections presented without comment, or, if the trial judge deems it proper to explain his ruling, the explanation should be so worded that the jury should not be informed of the opinion of the judge as to the guilt or innocence of the defendant or the credibility of any witness who may testify. Simmons v. State, 31 Okla. Cr. 316, 238 P. 871; Viadock v. State, 30 Okla. Cr. 374, 236 P. 56. However, in the light of all the evidence in this case we believe that this single remark by the court does not present such error as would warrant a reversal of this case.

The third assignment is based on the refusal of the court to instruct the jury in effect that it was necessary that the jury find beyond a reasonable doubt that the sale of whisky charged was made to all the minors named in the information, and that, if the sale were made to only two or three of them, they should return verdict of not guilty. No argument is made nor authorities cited in support of such assignment, and we know of none that sustains the contention of defendant. Where no authorities are cited in support of an assignment, it will be deemed waived.

The concluding assignment, which is argued at length by the defendant, attacks sections 6996-7, Comp. St. 1921, as unconstitutional. This section being section 3, c. 26, of the Sessions Laws 1913. It is urged that, since the Constitution has fixed the minimum punishment for a violation of the liquor law at a fine of not less than $50 and by imprisonment of not less than 30 days, and since such provisions are .self-executing, the same constitutes a violation of the prohibitory law a misdemeanor, and the Legislature is without power to increase the maximum punishment for a violation, so that it will be greater than the law may impose for a misdemeanor, and that, since sections 6996-7, supra, have fixed the punishment for a sale to a minor at a maximum fine of $2,000 and maximum imprisonment at 5 years in the penitentiary, it is therefore unconstitutional, citing Ex parte Smith, 24 Okla. Cr. 415, 218 P. 708.

The contention here made has been decided adversely to defendant in the case of Santino v. State, 29 Okla. Cr. 149, 232 P. 859, where it is held:

“The provisions of the prohibitory liquor laws in the state Constitution, fixing a minimum punishment at not less than 30 days’ imprisonment and not less than a fine of $50, does not deprive the Legislature of power to make a violation of said law a felony, so long as the act of the .Legislature conforms to the minimum punishment fixed "by the Constitution and is not otherwise objectionable.”

We are satisfied that the holding in the Santino Case, supra, is correct, and do not deem it necessary to assign further reasons.

Finding no reversible error, the case is affirmed.

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