author: BRETT, J.

text:
    GEORGE FINLEY v. STATE.
    No. A-10619.
    June 11, 1947.
    (181 P. 2d 849.)

      Looney, Watts, Fenton & Eberle, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The defendant, George Finley, a constable in Oklahoma county, was charged, tried, convicted of the crime of bribery, and his punishment assessed at one year in the county jail and a fine of |500. The jail sentence was suspended.

There are numerous assignments of error, which we will consider under the various propositions set forth in the defendant’s brief.

In his first proposition, George Finley complains that the preliminary information was not sworn to by W. N. Mounger, assistant county attorney, the complaining witness. This objection was first raised in the district court, after the information had been filed. In this connection, the law is well settled by many decisions of this court, as well as the general rule, that an unverified complaint is good for all purposes, except as the basis for the issue of a warrant of arrest. If, however, a warrant of arrest is issued on an unverified complaint, the law is likewise settled that, the objection must be raised at the earliest opportunity by a motion to quash before arraignment and plea. When the defendant has been apprehended, on an unverified complaint, and arraigned and submits to the jurisdiction of the magistrate, and has a preliminary trial on said complaint without ever challenging the sufficiency of the complaint for lack of verification, that defect is waived. State v. Jackson, 57 Okla. Cr. 277, 48 P. 2d 861; Steiner v. State, 33 Okla. Cr. 298, 243 P. 1002; Conti v. State, 45 Okla. Cr. 105, 282 P. 182. If the defendant had filed his motion to quash the warrant of arrest, prior to his arraignment and plea of not guilty, his plea would have been well taken and should have been sustained. Conti v. State, supra. But, not having done so, he waived the objection and cannot now be heard to complain of his arrest on the unverified complaint. This objection is therefore without merit.

The defendant’s next contention, under his first proposition, is that the court erred in not sustaining his demurrer to the information. This contention is founded on the proposition that the information charges extortion and not bribery. For a consideration of this contention, the charging part of the information reads as follows, to wit:

“That is to say, the said defendant, George Finley, being then and there Constable of Bural District No. 2, Oklahoma County, State of Oklahoma, appointed, qualified and acting as such, and said defendant, Finley being then and there charged by law to perform the duties of his office with fidelity, and not to knowingly receive, directly or indirectly, any money or other valuable thing for the performance or non-performance of any act or duty pertaining to his office, did then and there corruptly receive and accept, for the use and benefit of himself, a certain sum of money, to wit: Forty and 00/100 Dollars ($40.00), good and lawful money of the United States of America, and one pint of Green Label, tax paid, James Stewart brand, straight bourbon whisky, as a gift and gratuity in consideration of the non-performance of the official services of said defendant in his capacity as said Constable, and said money so accepted as aforesaid was accepted by said defendant in consideration of the promise by said defendant of the nonperformance of the official duty of said defendant, in the manner and form as follows, to wit:
“That is to say, the said defendant aforesaid did, while acting as an officer as aforesaid, communicate with one Ruth Fugatt, who was, for some days prior to the date aforesaid, engaged in the business of dispensing spiritous liquors, contrary to the penal code of the State of Oklahoma; that said defendant did, some days prior to the date aforesaid, and at the time of said communication, know that said Ruth Fugatt was engaged in the business aforesaid, being commonly referred to as 'bootlegging’; that said communication and conversation with said Ruth Fugatt occurred some two or three days prior to the date above mentioned, and said defendant stated to said Ruth Fugatt, who was known to be a 'bootlegger’ to said defendant, in substance, that he would perform his duty under the law, insofar as her business was concerned, by securing search warrants and raiding her, unless she agreed to pay him the sum of Ten and 00/100 Dollars ($10.00) and one pint of whisky per week, in advance, and, in this connection, said defendant demanded the sum of Forty and 00/100 Dollars ($40.00), in advance together with the one pint of whisky.
“That, after said conversation between the defendant and said Ruth Fugatt, the defendant delivered an ultimatum to said Ruth Fugatt aforesaid, which, in effect and substance, provided that unless sbe agreed to pay bim the money and whisky demanded by him, he would commence performing his duty as a law enforcement officer and constable on Saturday, January 22nd, 1944; that he would give said Ruth Fugatt until that time to decide whether or not she would comply with his ultimatum.
“That, on the 22nd day of January, 1944, as aforesaid, said Ruth Fugatt did comply with said defendant’s ultimatum, by delivering to him Forty and 00/100 ($40.00) Dollars, good and lawful money of the United States of Amercia, in the following denominations: two (2) ten dollar bills, numbered J 26077735 A and J 20327817 A; three (3) five dollar bills, numbered F 93896608 A, L 25858372 A, and K 14043475 A; and five (5) one dollar bills, numbered Z 49390616 B, I 65205358 C, E 33599869 C, G 64598223 C, and I 08908773 B; that said money was delivered by the said Ruth Fugatt to the said defendant pursuant to the demand and ultimatum of the defendant, as aforesaid, near the Elmwood Dance Hall, on South Shields Boulevard, in Oklahoma County, State of Oklahoma.
“That, thereafter, the said Ruth Fugatt informed other law enforcement officers of Oklahoma County, State of Oklahoma, of the said defendant’s demand and her compliance therewith; whereupon, said defendant was taken into custody by the Sheriff’s Office of Oklahoma County, Oklahoma, at which time said defendant had on his person the aforementioned money, less one (1) one dollar bill, and the pint of whisky, which had been delivered by the said Ruth Fugatt to said defendant.
“Your informant further states that said defendant, on the evening of the 22nd of January, 1944, after 8:00 P.M., at which time the ‘pay-off’ aforesaid was made, noticed law enforcement officers of Oklahoma County, Oklahoma, in the Elmwood Dance Hall, and called said Ruth Fugatt, to warn her that the said officers were át the dance hall and cautioned her to ‘lay low’ in compliance with his previous agreement not to enforce the law against the said Ruth Fugatt and to afford her protection against the law enforcement agencies of this County and State.
“And, the said defendant, George Finley, then and there being Constable of Rural District No. 2, Oklahoma County, State of Oklahoma, duly appointed, qualified and acting as such, and being then and there charged by law to perform the duties of his office with fidelity and not to knowingly receive, directly or indirectly, any money or other valuable thing for the performance or non-performance of any act or duty pertaining to his said office, did then and there corruptly accept the gift or gratuity of money, as aforesaid, together with one pint of Green Label, tax paid, James Stewart brand, straight bourbon whisky, for the promise of non-performance of his duty and for protection to said Ruth Fugatt, as aforesaid, and did then and there and thereby, and in the manner and form aforesaid, and by means aforesaid, unlawfully, wilfully, corruptly, and feloniously commit the offense of bribery, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the State of Oklahoma.”

If the offense charged in the foregoing information is bribery, it is covered by section 382, Title 21 O. S. A., which is a general bribery statute, Wilkins v. State, 70 Okla. Cr. 1, 104 P. 2d 289. Section 382 reads as follows:

“Every executive, legislative, county, municipal, judicial or other public officer, or any person assuming to act as such officer, who corruptly accepts or requests a gift or gratuity, or a promise to make a gift, or a promise to do an act beneficial to such officer, or that judgment shall be given in any particular manner, or upon a particular side of any question, cause or proceeding, which is or may be by law brought before him in his official capacity, or as a consideration for any speech, work or service in connection therewith, or that in such capacity he shall make any particular nomination or appointment, shall forfeit his office, be forever disqualified to hold any public office, trust or appointment under the laws of this State, and be punished by imprisonment in the State Penitentiary not exceeding ten years, or by fine not exceeding five thousand dollars and imprisonment in jail not exceeding one year. R. L. 1910, § 2184.”

If the offense charged in the foregoing information is extortion, it is covered by section 1481, Title 21 O. S. A., which reads as follows:

“Extortion is the obtaining of property from another with his consent, induced by a wrongful use of force or fear, or under color of official right. R. L. 1910, § 2682.”

To properly determine whether the information falls within the definition of bribery, as defined in section 382, Title 21 O. S. A., supra, or the definition of Extortion, as defined in section 1481, Title 21 O. S. A., supra, we must turn to common law definitions for the basic distinctions essential to the proper analysis of the charge as laid in the information. Hawkins said that:

“Bribery in a strict sense is limited to judicial officers, but in a large sense it is sometimes applied to the receiving or offering of pny undue reward, by or to any person whatsoever whose ordinary profession or business relates to the administration of public justice, in order to incline him to do a thing against the known rules of honesty and integrity.”

Blackstone also said that:

“Bribery is when a judge, or other persons concerned in the administration of justice, takes any undue reward to influence his behavior in his office.”

Russell’s definition of bribery modified Hawkins’ by saying that:

“Bribery is the receiving or offering any undue reward by or to any person whatsoever, in a public office, in order to influence his behavior in office, and incline Mm to act contrary to the known rules of honesty and integrity.”

The definitions given by Wharton and Bishop are even broader, Wharton saying:

“Bribery is corruptly tendering or receiving a price for official action.”

And Bishop defined it as:

“The voluntary giving or receiving of anything of value in corrupt payment for an official act, done or to be done.”

Some courts say that:

“Bribery, at common law, is the giving or receiving anything of value, intended to influence one in the discharge of a legal duty.”

For these and other definitions, see Burdick, the Law of Crimes, Vol. 1, § 288.

In 8 Am. Jur. 886, § 2, bribery is defined in general terms as the:

“Offering, giving, receiving, or soliciting anything of value with intent to influence the recipient’s action as a public official whether executive, legislative, or judicial.”

In this connection, section 382, Title 21 O. S. A., supra, defines corruptly receiving or soliciting a gift, gratuity, or promise to make a gift beneficial to the officer as a consideration for an act or course of conduct in the performance of his official duty, as bribery.

Likewise, in a determination as to whether the facts alleged in the information bring the case within the provisions of section 1481, Title 21 O. S. A., defining extortion induced by wrongful use of force or fear or under color of official right, we must turn to the common law for aid in our analysis. Whatever was done in the instant case would not have been attempted except for Finley’s official position. The only difficulty presented is, “Was it Bribery or Extortion?” In either, the result sought to be attained in this case would be founded upon fear of consequences if the request of the officer was not complied with. Hawkins says that Extortion:

“* * * signifies, in a large sense, any oppression under color of right; but, in a strict sense, it signifies the taking of money by any officer by color of his office, either when none at all is due; or not so much is due, or where it is not yet due.”

Stephen says:

“If the illegal act consists in taking under color of office from any person any money or valuable thing which is not due from him at the time it is taken, the offense is called ‘extortion’.”

Bishop defines extortion as:

“The corrupt demanding or receiving, by a person in office, of a fee for services which should be rendered gratuitously ; or where compensation is permissible, of a larger fee than the law justifies, or a fee not yet due.” In this connection, see Burdick, the Law of Crime, Yol. 1, § 273, for these and other definitions.

At § 275, Yol. 1, Burdick says:

“At common law, the money or other thing of value must be taken under color of office. That is, the service rendered, or to be rendered, or pretended to have been rendered, must be apparently, or pretended to be, within official power or authority, and the money must be taken in such an apparent or claimed capacity.”

In many cases of this nature the distinction between extortion under color of official right and requesting and receiving a bribe, by public officials, is very narrow; so narrow sometimes as to barely cast a shadow. In fact, while bribery and extortion are distinct offenses, the same facts may be the basis for the charge of either extortion or bribery. They are very closely allied; so closely allied that if a pretense exists of official authority to do the act for which a bribe is given, the taking of it is extortion as well as bribery. Brill Cyc. Cr. Law, Vol., 2, § 1198 p. 1825. In cases of bribery, of a public officer, and extortion, under color of right, where such an interpretation as Brill makes can be logically drawn, it should be made. This should be done to the end that corruption and debauchery, in high place, would not be tolerated in civilized communities. It is the policy of this court to assume every reasonable position, tenable with the view of aiding just enforcement of the law and the maintenance of good government. To this end, we should avoid strained constructions which would enable corruption and debauchery to steal the tapers that light the sacred altars in the temple of justice.

Applying these definitions, and distinctions to the charges laid in the information, it is apparent that the issue as to whether the crime described is bribery or extortion turns on whether what the officer did was under color of official right. In this connection, what does the information allege? Does it charge the taking of money under color of any official right, by any stretch of the imagination? Do the things alleged in the information spring from the exercise of any official right? A casual reading of the information discloses no facts upon which a claim of right could be based for the acts which the officer did. The information does not charge the collection of a fee for services which should have been gratuitously rendered, the collection of a larger fee than permitted by law, or the collection of a fee not yet due. While the information is not free from, inapt expressions which tend to produce confusion, tending to give it the color of a charge of extortion, we must look to the intent and purpose of him who initiated the motivation. In this connection, the motivation had its inception with Finley, whose primary purpose was to obtain payment under an agreement to refrain from performing his official duties. The conditions of the agreement certainly cannot be held to partake of any of the elements as defined in section 1481, Title 21 O. S. A. supra. The money paid was certainly not paid with consent of Ruth Fugatt, which, under the statute, must necessarily be paid by consent to make a case of extortion. The money paid in this case was paid under specific direction of the county attorney’s office. Ruth Fugatt did not consent to the payment. She did not intend to consent; hence, her reason for going to the county attorney with the case. The payment was made under specific direction of the officers of the law by way of consummating the crime, the initial motivation for which had been instituted and commenced by the defendant himself. The conditions of the agreement certainly cannot be held to partake of any of the elements of color of official right as set forth in the definitions, supra. Not even the defendant would say what was alleged to have been done could have been under color of official right.

Excluding some poorly selected terms chosen by the prosecutor in preparing the charge, such as “ultimatum” and “demand”, and confining the analysis to the facts alleged, there is no basis for the contention of extortion by a public officer. It is therefore our opinion that the facts alleged in the information do not fall within the definition of extortion as defined in section 1481, Title 21 O. S. A., supra. On the contrary, the information charges that George Finley, a duly qualified officer of the law, a constable, corruptly requested a bribe in the sum of forty dollars ($40), in advance, one pint of Green Label whisky per week and ten dollars ($10) per week, which when paid, would influence him in his behavior in the performance of his official duty to the end that he would refrain from raiding Ruth Fugatt, the bootlegger. It further alleges that Ruth Fugatt then informed the county attorney of the request for a bribe. She was thereupon directed to consummate the corrupt request within its terms. She was provided with marked money, which she paid to the defendant, together with the marked pint of whisky, in consummation of the crime. It alleges the money vras accepted by the defendant and he proceeded to carry out the terms of the agreement by even going so far as to warn her of the raiding activities of officers other than himself.

In this case, stripping the information of the illy chosen phrases such as “ultimatum” and “demand” and looking at the charge from the standpoint of essential allegations, the bare facts, and the intent and purpose, we are forced to conclude that the information charges an invitation to pay and the payment of a bribe to the officer to influence him in his official behavior in the performance of his official duty to the end of a perversion of justice which the provisions of the Oklahoma Statutes define as Bribery, § 382 Title 21 O. S. A.; Wilkins v. State, 70 Okla. Cr. 1, 104 P. 2d 289. Therefore, the court did not err in overruling the defendant’s demurrer to the information.

The second proposition of the defendant is that:

“The court erred in denying defendant the right to examine jurors.”

More specifically, the defendant sought in the voir dire examination to have marked as exhibits, photographs of certain criminal and questionable characters for exhibit to the jurors. The said photographs were to be exhibited to the jurors to determine whether any of them were acquainted with any of the persons whose photographs were thus exhibited and whom it was known, or believed, would be witnesses for the state. All the photographs thus sought to be used were obviously taken from the files of some bureau of criminal identification. The defendant contends his object in so using the photographs was as a basis for peremptory challenges to those jurors who bore an acquaintance with said characters. The effect of the use of such pictures could not have been limited to those jurors eliminated from the jury by peremptory challenge. The implications left in the minds of the jurors not challenged would be impossible to evaluate. To have permitted such an examination under these conditions would have been most prejudicial to the rights of the state, which the court has sworn to protect as well as the rights of the defendant. The defendant cites no authority in support of this contention. We have made a diligent effort to find some basis for such a procedure but find no possible basis in the law for such an examination. This contention is therefore wholly without merit.

The third proposition is that the court erred in excluding evidence offered by the defense, and in refusing the right of cross-examination. In this connection, it is complained that the court would not permit cross-examination of the state’s chief witness, Ruth Fugatt, as to the liquor she bought and sold, and from whom it was purchased. We can see no relevancy to such an inquiry, to the issue of bribery herein involved. Therefore, this contention is wholly without merit.

The fourth proposition is that:

“The state’s witnesses were accomplices and that the defendant could not have been convicted on their uncorroborated testimony and that neither one could corroborate the other.”

The defendant relies on Title 21 O. S. A., § 391:

“In all cases wherein the offering, giving or receiving-bribes is made criminal by the provisions of the penal code, the party to such crime who shall first furnish information in relation thereto, as against the other parties, and in any prosecution therefor, shall testify to the same truthfully and fully, shall not thereafter be criminally liable therefor, but in such case no conviction shall be had on the uncorroborated testimony of one such witness. R. L. 1910, § 2193.”

And, on Title 22 O. S. A. § 742:

“A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof. R. L. 1910, § 5884.”

And, the following cases: Capshaw v. State, 69 Okla. Cr. 440, 104 P. 2d 282; Wilkins v. State, 70 Okla. Cr. 1, 104 P. 2d 289; Spivey v. State, 69 Okla. Cr. 397, 104 P. 2d 263; McNack v. State, 62 Okla. Cr. 285, 71 P. 2d 317.

The foregoing statutes and cases are not in point for the reason that the defendant had no accomplices. The statutes, relied on by the defendant, are statutes specifically applicable to cases involving accomplices. The cases relied upon by the defendant are cases where the proof was clear as to the relationship of the accomplices. Here, no snch situation exists. The principal reason that Ruth Fugatt cannot be regarded as an accomplice is because of the lack of criminal intent. From the moment she was first approached, about entering into the corrupt agreement proposed by the defendant, she said she would not pay anything for protection. Instead of entering into the agreement, she immediately reported the defendant’s request for the bribe to the county attorney. Plans were then made by the county attorney for the defendant to consummate the intended crime through Ruth Fugatt, all as alleged in the information. On no theory of the law could Ruth Fugatt, under these circumstances, be held to have intended to commit a criminal offense, and, being' without criminal intent, she could not be prosecuted under the facts herein developed. The true test of whether Ruth Fugatt was an accomplice is whether she could be charged and punished for the crime with which the defendant is charged, or whether her participation in the offense was criminally corrupt. 16 C. J. 671, note 71 and 72, 22 C. J. S., Criminal Law, § 786; Mayes v. State, 11 Okla. Cr. 61, 142 P. 1049; People v. Coffey, 161 Cal. 433, 119 P. 901, 39 L. R. A., N. S., 704, wherein the court said:

“The test of whether one is an accomplice, within the rule as to accomplice’s testimony, is whether his participation in the offense has been criminally corrupt.”

As a criminal intent is the essence of all criminal liability, one who, though he may be a participant in the actual commission of a crime, acted without any criminal intent, cannot be regarded as an accomplice. This rule of law has been followed in Hendrix v. State, 8 Okla. Cr. 530, at page 532, 129 P. 78, at page 79, 43 L. R. A., N. S., 546, wherein Judge Doyle, former member of this court, speaking for the court said:

“We think the term ‘accomplice’, as used in section 6836, must he considered as meaning one culpably implicated in the commission of the crime of which the defendant is accused; that is, an associate, one who knowingly and voluntarily co-operates or aids or assists in the commission of the crime.”

An accomplice is defined in Jones Commentaries on Evidence, vol. 5, § 2216, p. 4231, as “One who knowingly, voluntarily, and with common intent with the principal offender unites in the commission of a crime.” It is apparent that Ruth Fugatt did not do what she did in this case of her own volition, nor did she do it with a common intent with the principal offender. Finley’s intent was to request and receive a bribe. Fugatt’s intent, after being requested to pay a bribe, was that of an informer, acting under the direction of the county attorney, in order to catch him who had requested the bribe of her.

There is a wide distinction between the part played by Ruth Fugatt and the part played by the defendant.. Jones says:

“Persons who, when a crime has been suggested, and who make an early disclosure of the offense to the authorities, and, under their direction continue to act with the guilty party, but for the purpose of bringing them to justice, are not accomplices in the sense that their testimony requires corroboration.” Jones, Commentaries on Evidence, Vol. 5, § 2218, pp. 4235, 4236, note 7.

It is apparent then that Ruth Fugatt was not an accomplice in the ordinary sense. How, then, does the law define her role?

In 14 Am. Jur. Criminal Law, § 113, p. 843, the rule is stated as follows:

“Since criminal intent is essential to render one an accomplice, it follows that a feigned accomplice is not within the rule that the uncorroborated testimony of an accomplice will not support a conviction. Thus, a detective who, for the purpose- of discovering crime, ostensibly aids in its commission ór in a conspiracy to commit it, or is a ‘spotter’ or paid informer, or the purchaser of liquor, unlawfully sold for the purpose of detecting the seller, or one buying a lottery ticket for the purpose of detecting and punishing the vendor, where the sale is prohibited, or one who, not knowing of a larceny until after it has been committed, purchases the stolen goods under the direction of an officer with money furnished by the latter, with a view to detect the thief is not an accomplice whose testimony must be corroborated.”

Black’s L. D. (3rd Ed.) defines feigned accomplice as follows:

“One who pretends to consult and act with others in the planning or commission of a crime, but only for the purpose of discovering their plans and confederates and securing evidence against them.”

In Sowells v. State, 99 Tex. Cr. R. 465, 270 S. W. 558, it was held that:

A feigned accomplice must be distinguished from other accomplices by reason of lack of criminal intent.

In People v. Grijalva, 48 Cal. A. 2d 690, 121 P. 2d 32, at page 34, the California Appellate Court said:

“One ‘who feigns complicity in the commission of a crime merely for the purpose of detecting and prosecuting the perpetrators is not an accomplice.’ 8 Cal. Jur. 175; People v. Fitzgerald, 14 Cal. App. 2d 180, 199, 58 P. 2d 718.”

In State v. Verganadis, 50 Nev. 1, 248 P. 900, the Nevada Supreme Court said, in syllabus (5) and (8) :

“(5) Testimony of a feigned accomplice does not require corroboration.”
“(8) ‘Accomplice’ is one who knowingly, voluntarily, and with common intent with principal offender unites in commission of crime, but one who co-operates with view of aiding justice to detect crime is a ‘feigned accomplice’.”

See, also, People v. Ferrell, 30 Cal. 316; People v. Barric, 49 Cal. 342; State v. Brownlee, 84 Iowa, 473, 51 N. W. 25.

This court has given assent to the doctrine of “feigned accomplice’ without designating it as such, in Filler v. State, 23 Okla. Cr. 282, 214 P. 568, in the 3rd syllabus, as follows:

“Where there is evidence indicating that a witness is, or may have been, an accomplice, and other evidence indicates that he was not criminally implicated, but acted as an informer, evidence by third persons of what was said by the witness in relation to the different steps taken to take and haul away the property may be admissible to determine whether or not the witness was in fact an accomplice requiring corroboration.”

In 14 Am. Jur. 843, § 113, note 10, we find, however, in relation to feigned accomplice, that “evidence coming from such a contaminated source must be closely scrutinized by the jury; but if they are satisfied with its truth, they may base a conviction on it.” It has been held, however, that a witness is not to be discredited from the simple fact that he may fill the character of an informer or spy; The President and Trustees of The Town of St. Charles v. O’Mailey, 18 Ill. 407. The jury was sufficiently impressed in the case at bar with the truthfulness of Ruth Fugatt’s testimony as well as the testimony of the other state’s witnesses as to believe it. Their testimony, as we have hereinbefore said, was corroborated in many of the essential details of the case, such as, by the payment of the money and the receipt of the whisky. We believe that the record is conclusive that Ruth Fugatt’s role in the case at bar was that of a feigned accomplice. The part she played was not criminally corrupt. It was the role of informer of the defendant’s intended crime. She was a party to the plan through which the defendant was enabled to consummate the crime which he originated. In no sense of the word was she an accomplice whose testimony required corroboration. Being a feigned accomplice, Ruth Fugatt’s testimony standing alone, if believed, would have been sufficient upon which to base a conviction. This and other evidence offered by the state, the jury believed and this court has repeatedly held that it is the province of the jury to, weigh and determine the facts; Chapman v. State, 84 Okla. Cr. 41, 178 P. 2d 638.

The defendant’s fifth proposition is:

“That under the state’s own evidence, George Finley was entrapped and the conviction must therefore be reversed.”

The defendant cites the following cases in support of this contention: Shouquette v. State, 25 Okla. Cr. 169, 219 P. 727; Stanley v. State, 25 Okla. Cr. 195, 219 P. 734; Roberts v. Territory, 8 Okla. Cr. 326, 57 P. 840; Rider v. State, 53 Okla. Cr. 393, 12 P. 2d 552; Wooten v. State, 70 Okla. Cr. 292, 106 P. 2d 132. None of these cases is in point as applied to the facts in this case. Therein, the distinction is clearly drawn that, “It is not against public policy for * * * officers to set a trap for one suspected of planning the commission of a crime, and if he commits the crime, even though aided or encouraged by the officers * * * who laid the trap, the fact that he was so entrapped will be no defense.” Shouquette v. State, supra, one of the cases relied on by the deféndant. The case at bar falls clearly within that rule. Here, the jury believed the request for the payment of the bribe originated with the defendant which Ruth Fugatt reported to the county attorney, who then used her as a decoy, that Finley might consummate the proposed crime. This court has held that a decoy may be used to detect a criminal, by giving him an opportunity to commit the intended offense, and the decoy may be present and apparently assist in its commission and such conduct on the part of the decoy is no defense. For this rule to apply, however, the suggestion of the criminal act must originate with the defendant. If the decoy suggests or initiates or induces the commission of the crime, or artificially propagates the crime or lures an otherwise innocent person to commit the crime and the decoy performs an act essential to the crime, a conviction cannot be had on such a basis for that is entrapment. Lee v. State, 66 Okla. Cr. 399, 92 P. 2d 621, wherein Judge Hoyle, former member of this court said in syllabus parags. (4), (5), and (6) :

“(4) Where the doing of a particular act is a crime regardless of the consent of any one, if the criminal intent originates in the mind of the defendant, the fact that peace officers furnish an opportunity for or aid in the commission of the crime, in order to secure the evidence necessary to prosecute him therefor, constitutes no defense.
“(5) Entrapment is the planning of an offense by an officer, and his procurement by improper inducement of its commission by one who would not have perpetrated it, except for the trickery or fraud of the officer.
“(6) Ordinarily, it is not against public policy for peace officers or persons acting under their direction to set a trap for one suspected of planning the commission of a crime, and if he commits the crime, even though encouraged by the officers or persons acting under their direction who laid the trap, the fact that he was so entrapped will he no defense.”

We have already indicated that the record herein supports the conclusion that the suggestion of a bribe originated with Finley. This fact was testified to, not only by Ruth Fugatt, but also by Jack Corbin, and Maxine Hazlitt. In light of the foregoing principles of law and the record, the defendant’s contention of entrapment is without merit.

The defendant’s sixth proposition is:

“The court committed fatal error in refusing the defendant’s instructions on both the question of the corroboration of accomplices and the question of entrapment and in refusing to give any instructions whatsoever on these questions.”

This contention is based upon the court’s refusal to give six requested instructions. Instruction No. 1 is based upon the theory of entrapment and instructions Nos. 2, 3, 4, 5, and 6 are based upon the theory of accomplice. It is not necessary to set forth the requested instructions for determination of this issue. It is sufficient to say that these issues are resolved in light of what we have said heretofore concerning entrapment and accomplice. The case did not present one of entrapment, since the motivation for the commission of the crime originated with the defendant. Nor did it present one where the witness Ruth Fugatt was an accomplice in the sense that her testimony required corroboration. The evidence as presented by this record does not make a case upon which the theory of either entrapment or accomplice could be predicated. This being true, the court properly refused the requested instructions. Dyer v. State, 58 Okla. Cr. 345, 53 P. 2d 700, wherein this court said:

“The instructions in all cases should be applicable to the facts and to all proper deductions and interpretations of them and not to questions not presented or covered by the evidence.”

Mead v. State, 65 Okla. Cr. 86, 83 P. 2d 404; Oglesby v. State, 56 Okla. Cr. 286, 38 P. 2d 32, wherein this court said:

“A defendant is not entitled to an instruction on an issue not raised by the evidence.”

In State v. Dubois, 98 Utah, 234, 98 P. 2d 354:

“A party is entitled to have the jury instructed on the law governing the issues according to his theory, providing such theory is tenable as a matter of law, or finds possible support in evidence.”

He is not entitled to complain because the court failed to give his requested instructions, “if such statement of law is outside the issues to be determined by the jury,” or not within the evidence, “even though the requested instruction did state a rule academically sound;” Since the evidence did not support either the theory of entrapment or accomplice, the court correctly refused the requested instructions and this proposition is likewise without merit.

The defendant’s seventh and last contention is:

“That the prosecuting attorney was guilty of improper and prejudicial argument.”

This proposition is based upon the following excerpt from the record:

“Mr. Miskovsky: * *' * ‘And it was either the grand jury or to file a complaint before the county commissioners in order to remove this man from office, who under the evidence unequivocally took bribes from bootleggers * * *. Mr. Eberle: Just a moment. Mr. Miskovsky: From this bottlegger. Mr. Eberle: We object to the statement of counsel. He knows it is false and untrue. Mr. Miskovsky: No, I don’t. Mr. Eberle: He has made that statement before the county commissioners and was challenged, and it is false and untrue, and I am going to ask for a mistrial at this time. The Court: The request for mistrial will be denied. Mr. Eberle: To which we except and we will ask that the jury be instructed as to the statement of the county attorney as not being evidence in this case. The Court: The jury will consider the evidence as they heard it from the witness stand and are to arrive at a verdict on their deduction of what the evidence is to them.’ ”

It is contended that “by this statement the county attorney attempted to pervert the record and evidence and to mislead the jury into thinking that the defendant received other bribes from other bootleggers * *

While it is true that the statement of the county attorney to the effect that defendant unequivocally took bribes from bootleggers was not warranted by the record, we do not believe it constitutes grounds for reversible error. We' are of the opinion that the statement standing alone, when construed in view of the county attorney’s immediate correction and the court’s instructions to the jury, could not be calculated to deprive the defendant of any substantial rights or such as would arouse passion and prejudice of the jury and sway them in arriving at a just verdict. Gregg v. State, 69 Okla. Cr. 103, 101 P. 2d 289; Brown v. State, 52 Okla. Cr. 307, 4 P. 2d 129; Carmichael v. State, 44 Okla. Cr. 160, 279 P. 515. This contention affords no basis for a reversal of the case.

We find no material error has been committed and the judgment in this case is accordingly affirmed.

BAREFOOT, P. J., and JONES, J., concur.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    STATE ex rel. WESTER v. CALDWELL.
    No. A-10810.
    June 11, 1947.
    (181 P. 2d 843.)

      Charles A. Milor, County Atty., of Marietta, Mae Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for petitioner.
    Sigler & Jackson, of Ardmore, for respondent.
   JONES, J.

This is an original proceeding instituted by the state on relation of Orren Wester, sheriff of Love county, to prohibit the respondent, John C. Caldwell, judge of the district court of Love county, from proceeding with certain hearings set in connection with the filing of petitions for writs of habeas corpus by E. O. Smith, H. I. Campbell and Louis Beck, in the district court of Love county.

The verified petition alleges that in February, 1946, one Alex Rawls was charged in the district court of Love county with the crime of attempted rape in the first degree. That at the trial of said charge, E. O. Smith, H. I. Campbell and Louis Beck testified as witnesses for Rawls in support of his alibi; that said trial resulted in a hung jury. That the said E. O. Smith, H. I. Campbell and Louis Beck later confessed that their testimony given on behalf of the defendant was false. Thereupon, charges of perjury were filed against the said E. O. Smith, H. I. Campbell and Louis Beck. That on March 30, 1946, said defendants appeared before the Honorable J. I. Goins, judge of the district court of Love county, entered their pleas of guilty to said charges and were thereupon sentenced to serve terms of four years each in the State Penitentiary. On April 2, 1946, the defendants Smith, Campbell and Beck were delivered to the warden of the State Penitentiary pursuant to the sentences pronounced against them.

That charges of perjury and subornation of perjury were filed against Alex Rawls and later were set for trial in the district court of Love county on December 4, 1946.

The petition further alleged that on November 30, 1946, at the request of the county attorney, the District Judge Goins issued an order directing the sheriff of Love county to proceed to the penitentiary and bring the said Smith, Campbell and Beck to Love county to be used as witnesses in the prosecution of said charges against the said Alex Rawls. Pursuant to such order of the district court, the warden of the penitentiary delivered Smith, Campbell and Beck to the sheriff of Love county and they were by the said sheriff brought to Love county and held in his custody in the county jail for the sole purpose of appearing as witnesses in the trial of the case against the said Rawls.

The petition further alleged that on December 3, 1946, the respondent John C. Caldwell was presiding over the trial of a murder case in the district court at Marietta in Love county. That while the respondent was presiding over said murder trial, petitions for writs of habeas corpus, sworn to by Smith, Campbell and Beck, were presented to the respondent by their counsel and the respondent immediately and without any notice to petitioner who held said prisoners for the limited purpose and pursuant to the order of the court aforesaid and also without any notice to the county attorney, signed orders admitting each of said prisoners to bail in the sum of fl,000 and directing release of said prisoners by the petitioner upon approval of such bail by the court clerk, and further setting said petition for hearing on December 17, 1946. That bonds were presented to and approved by the court clerk and orders issued for the release of said prisoners from custody.

It is further alleged that the petitions for writs of habeas corpus were wholly and entirely and knowingly false and untrue, but were presented pursuant to a scheme and plan to prevent the use of said prisoners as witnesses by the state in the prosecution of said Alex Rawls. That the said Smith, Campbell, and Beck were in the custody of the petitioner Orren Wester as the temporary agent of the warden of the State Penitentiary who had the exclusive custody of said prisoners until their release from the State Penitentiary in a lawful manner.

It is further alleged that the district court of Love county has no jurisdiction to pass upon custody of prisoners in the hands of the warden of the State Penitentiary at McAlester, but unless he is prohibited by this court from proceeding with the hearing on said petitions that the prisoners, Smith, Campbell, and Beck, will be by said respondent released from custody which would constitute an unauthorized application of judicial force and an exercise of judicial power not granted by law.

A response was filed to said petition in which the respondent alleges that he is the duly elected, qualified and acting district judge in and for the Twentieth Judicial District in the State of Oklahoma, and that said judicial district comprises the counties of Carter, Love, Marshall, Johnston, and Murray. That on the 3rd day of December, 1946, he was holding court in regular session in Love county. That on said date, E. O. Smith, H. I. Campbell and Louis Beck, duly filed in the district court of Love county their petitions for writs of habeas corpus and alleged that they were illegally restrained in the county jail of Love county and in charge of Orren Wester, sheriff of Love county, who is the petitioner herein. That your respondent considered said petitions and was of the opinion it was his duty to issue an alternative writ of habeas corpus, and acting upon said petitions, he issued said alternative writ and made it returnable on December 17, 1946.

The respondent further alleged that no motion has ever been filed before the respondent calling in question his action in said matter and that he conceived it to be his duty when a petition for a writ of habeas corpus is presented to him alleging that the petitioner is illegally restrained of his liberty and setting up facts entitling the petitioner to release from custody, to set said petition for hearing and to enter such judgment and perform such act as seems proper and lawful to him at such hearing.

The respondent further alleged that the county attorney of Love county was present in the courtroom and agreed that the 17th day of December, 1946, should be set for the hearing and agreed that the prisoners could be released upon a bond of f1,000 pending the hearing.

The respondent further alleges that the respondent was not attempting to exceed his jurisdiction or make illegal use of judicial power. That he had jurisdiction of the petition for writ of habeas corpus and jurisdiction of the parties applying for said writs and that the Criminal Court of Appeals is without authority to issue a writ of prohibition preventing him from proceeding with a hearing on said petitions. An alternative writ of prohibition was issued by this court prohibiting the respondent from proceeding further with said hearing pending the further order of this court.

A hearing was held before this court and evidence was presented by both the petitioner and the respondent. At the conclusion of the hearing, the temporary order prohibiting the respondent from proceeding further in said causes was continued in force and effect pending the 'final decision of this court. At that time, by agreement of all parties concerned and without prejudice to the rights of the said Smith, Campbell and Beck in cases Nos. 1084, 1085, and 1086 in the district court of Love county, the said Smith, Campbell, and Beck surrendered to the sheriff and were by him transported back to the State Penitentiary where they are now confined, pending the decision of this court.

In the case of State ex rel. Attorney General v. Higgins, 76 Okla. Cr. 321, 137 P. 2d 273, 280, it is stated:

“Writs of prohibition are not mentioned in the statutes of this state.
“The authorities all agree that prohibition is a common-law writ.
“It is the established rule that:
“ ‘The power is limited as it was at common-law, to cases where the act sought to be prohibited is of a judicial nature, in the absence of constitutional or valid statutory-provision to the contrary.’
“It is a remedy provided by the common-law against the encroachment of jurisdiction by inferior courts, and for the purpose of keeping such courts within the bounds prescribed for them by law. The functions whose exercise may be restrained by it are judicial functions. Unlike a writ of injunction, which acts upon the parties to the suit, a writ of prohibition operates upon the court.
“The universal rule is that:
“ ‘The writ lies only as between courts which sustain to each other the relation of superior and inferior, and cannot issue from a court to prohibit another court which is in no manner subordinate or inferior to it.’ 23 A. & E. Ency. of Law, pp. 217, 218, and cases cited.
“In Estes v. Crawford, District Judge, 62 Okla. Cr. 156, 60 P. 2d 798, 799, we said:
“ ‘Writ of “prohibition” may not issue to prevent inferior court from erroneously exercising jurisdiction, but only to prohibit proceedings as to which inferior tribunal is wholly without jurisdiction, or threatens to act in excess of jurisdiction.’
“Like all other prerogative writs, prohibition is to be used with great caution and forbearance, for the furtherance of justice and to secure order and regularity in judicial proceedings, and should be issued only in cases of extreme necessity. A court will not issue a prohibition in a case where it is not justified, for the sole purpose of establishing a principle to govern other cases. Nor will it ordinarily be issued in a'doubtful case. 22 R. C. L. pp. 4 and 5.
“The writ of prohibition is that process by which an appellate court prevents an inferior court from usurping and exercising .unauthorized jurisdiction. State ex rel. Attorney General v. Stanfield, Judge, 11 Okla. Cr. 147, 143 P. 519. Estes v. Crawford, supra.
“Prohibition will lie only to prevent an encroachment, excess, usurpation or improper assumption of jurisdiction on the part of an inferior court or tribunal, or to prevent some great outrage upon the settled principles of law and procedure. Ex parte Jones, 160 S. C. 63, 158 S. E. 134, 77 A. L. R. 235. And see Annotation 77 A. L. R. 245.”

The Oklahoma Constitution provides:

“The district courts, or any judge thereof, shall have power to issue writs of habeas corpus.” Art 7, § 10, Okla. Const.

By statute it is provided:

“Writs of habeas corpus may be granted by any court of record in term time, or by a judge of any court, either in term or vacation; and upon application the writ shall be granted without delay.” 12 O. S. 1941 § 1333.
“The court or judge shall thereupon proceed in a summary way to hear and determine the cause, and if no legal cause be shown for the restraint or for the continuance thereof, shall discharge the party.” 12 O. S. 1941 § 1341.

It has been held that the district court has no jurisdiction to hear a petition for writ of habeas corpus unless the petitioner is confined in the county where the application is filed. In re Gable, 73 Okla. Cr. 155, 118 P. 2d 1035; Ex parte Gonshor, 113 Okla. 101, 239 P. 249.

In Ex parte Gonshor, supra, it is stated:

“The Supreme Court, the Criminal Court of Appeals, district and county courts and justices and judges thereof, have concurrent original jurisdiction in habeas corpus.”

In Ex parte Owens, 37 Okla. Cr. 118, 258 P. 758, 784, we said:

“In proceedings by habeas corpus neither this court nor the Supreme Court exercises appellate jurisdiction when it issues this writ, and in issuing the writ and determining the questions arising under it neither possess more power than is possessed by a district court or any judge authorized by law to issue the writ and authorized to remand or discharge the prisoner according to the circumstances of the case.
“The state by virtue of its own sovereignty, never delegated nor relinquished, has the right to inquire for itself through its court of record into the cause of restraint of its citizens. The Constitution confers the power upon the Supreme Court and each of the Justices, and upon ‘the district courts or any judge thereof,’ to issue writs of habeas corpus.” And see Ex parte Sullivan, 10 Okla. Cr. 465, 138 P. 815, Ann. Cas. 1916A, 719.

Since, as above noted, the writ of prohibition lies only as between courts which sustain to each other the relation of superior and inferior, it would not lie between courts of concurrent jurisdiction.

The respondent, district judge, appeared before this court at the hearing and testified concerning his action in connection with the' issuance of the alternative writ of habeas corpus. The Assistant Attorney General appearing on behalf of the petitioner, conceded at the hearing that there was no evidence to show that the respondent judge was a party to any scheme or plan to . prevent the use of the prisoners, Smith, Campbell and Beck, as witnesses against Rawls.

We are of the opinion that when a petition for writ of habeas corpus is filed by any person alleging that he is unlawfully restrained of his liberty, which is addressed to the district court of the county where the petitioner alleges he is being restrained, that it is sufficient to confer jurisdiction on the district court to have a hearing to determine the cause of the restraint. In the instant case, when the prisoners, Smith, Campbell, and Beck, filed their petition for writ of habeas corpus, alleging that they were illegally restrained of their liberty, it was sufficient to authorize the district court to issue an alternative writ of habeas corpus directed to the sheriff for the purpose of inquiry into the cause of the restraint. This being so, the district court did not exceed its jurisdiction in setting said petition for hearing and accordingly prohibition will not lie to control his action. It is also our opinion that when the sheriff made his return to the writ showing that he was holding the prisoners as witnesses pursuant to an order of Judge Goins, judge of the district court of Love county, the petition should have been dismissed. It was an abuse of discretion for the respondent to admit the prisoners who were inmates of the penitentiary to bail pending the hearing.

A part of the order of Judge Goins pertaining to Smith, Campbell, and Beck, reads as follows:

“It is therefore ordered by the Court that the Sheriff of Love County proceed to McAlester and bring said witnesses to Marietta for said trial, on the 1st day of December, 1946.”
“It is further ordered that the Warden release said witnesses to the Sheriff of Love County for such purpose, and that said Sheriff is to return said prisoners to the Warden of the Penitentiary when they have testified.”

The respondent would be limited in his inquiry on habeas corpus to determining the cause of the restraint of the prisoners by the sheriff, and when the sheriff showed that he was holding the prisoners under the above order of the district court as material witnesses, with a further directive to return the prisoners to the warden when they had testified, the writ of habeas corpus would be denied.

If the prisoners desire to present the question that the judgments and sentences of the district court of Love county, under which they are committed to the State Penitentiary, are void because of the denial of certain constitutional rights to the defendants in connection with their arraignment and pleas of guilty, that inquiry may be presented to the Criminal Court of Appeals. We are not expressing an opinion as to whether the district court of the county, where prisoners are confined in the penitentiary, may in a habeas corpus action pass upon the validity of a judgment pronounced by another district court in this state. A serious legal question arises as to whether the district court of a county where a prisoner is confined, in a habeas corpus proceeding, would have jurisdiction to vacate the judgment of the district court of another county of this state. Such question is not now before this court and we express no opinion on the same, but such .disputed question will be decided if and when it is presented to us in a proper manner.

Since the sheriff of Love county is not holding the prisoners pursuant to the judgment and sentence of the district court of Love county, the validity of the judgment and sentence would not be a proper subject of inquiry in the habeas corpus proceeding pending in Cases Nos. 1084, 1085 and 1086 in the district court of Love county.

For the reasons hereinabove stated, the petition for writ of prohibition is denied.

BAREFOOT, P. J., and BRETT, J., concur.


text:
    Ex parte HUBERT POTTER.
    No. A-10804.
    June 18, 1947.
    (182 P. 2d 527.)
    Steele & Boatman, of Okmulgee, for plaintiff in. error.
    Mac Q. Williamson, Atty. Gen., and L. A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, J.

This is an original action in habeas corpus instituted by the petitioner, Hubert Potter, for the purpose of being admitted to bail upon a charge of murder now pending against him in the district court of Okmulgee county.

The verified petition alleges that the petitioner is restrained of his liberty in the county jail of Okmulgee county, by Jim Kirby, sheriff of said county. That he now stands charged by information filed in the district court of Okmulgee county with the crime of murder, but the proof of his guilt of said crime is not evident nor the presumption thereof great. Attached to the petition was a certified copy of the transcript of the proceedings and testimony had in the preliminary examination in the justice of the peace court of H. D. Reed, on November 14, 1946.

It is unnecessary to comment upon the weight of the evidence at the hearing before this court. It developed that the petitioner made an application for bail before the district court of Okmulgee county, and after a hearing on said application, the district court made an order admitting the petitioner to bail in the sum of $10,000. It further appeared that petitioner was unable to make said bail and is still confined in the county jail of Okmulgee county.

It is our opinion, after consideration of the evidence presented in behalf of petitioner, that he has made a sufficient showing to be entitled to bail. Ex parte Centell, 38 Okla. Cr. 127, 259 P. 276; Ex parte Christenberry, 82 Okla. Cr. 378, 170 P. 2d 871.

At the time of said hearing, an order was made admitting the petitioner to bail in the sum of $7,500. In conformity to said order, it is the judgment of this court that the petitioner be admitted to bail in the sum of $7,500, said bond to be conditioned as provided by law, to be approved by the court clerk of Okmulgee county; and that when said bond is given and approved by court clerk of said county, that the petitioner be discharged from custody.

BAREFOOT, P. J., and BRETT, J., concur.


author: JONES, J. BAREFOOT, P. J.

text:
    J. M. RULE v. STATE.
    No. A-10634.
    June 18, 1947.
    (182 P. 2d 525.)
    Hughes & Hughes, of Hobart, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, J.

This is an appeal from a judgment and sentence of conviction rendered in the county court of Kiowa county, pursuant to a verdict of a jury finding the defendant, J. M. Rule, guilty of the offense of driving an automobile on the public highway while under the influence of intoxicating liquor.

The only issue presented in the brief of the defendant is that the evidence is insufficient to sustain the judgment of conviction.

The evidence showed that about 8 or 8:30 p. m., December 12, 1944, the defendant was driving his automobile on Main street in the city of Hobart. He attempted to park his car and hit the right rear fender of a parked automobile damaging the fender of the parked automobile and also damaging the left front fender of the defendant’s automobile. Immediately after the collision, the defendant, without getting out of his car to determine the extent of the damage, backed his automobile out into the street and drove to the next block where he parked his car and walked into a cafe. Some of the witnesses who saw the collision testified that the defendant staggered as he walked across the street. He was arrested in the cafe within a few minutes after the collision and the arresting officers, together with four other parties who saw him in the jail after his arrest, testified that defendant was drunk. The defendant put on some reputable witnesses who testified that he was not drunk. One of these witnesses was the late Jess Gr. Reed, former Commissioner of Insurance, who was well known by this court and whose integrity and truthfulness was unquestioned. If we had been on the trial jury and had heard the evidence presented on behalf of petitioner, the testimony of Jess Reed would have carried great weight with us. But, the question now presented to us is the sufficiency of the evidence to support the verdict of the jury.

Thé rule adhered to by this court is well stated in the case of Sheehan v. State, 83 Okla. Cr. 41, 172 P. 2d 809, 810, as follows:

“Before Criminal Court of Appeals will interfere with verdict of jury on ground that evidence was insufficient to sustain conviction, there must be no competent evidence in the record upon which the verdict could be based.”

Under the evidence, the jury would have been justified in returning a verdict either for the state or defendant. Since there is competent evidence in the record to support their finding of guilt, under the established law of this state as shown in the above-cited authority, the judgment and sentence of the county court of Kiowa county is affirmed.

BAREFOOT, P. J., dissents. BRETT, J., concurs.

BAREFOOT, P. J.

I am forced to dissent from the majority opinion rendered in this case.

I recognize the rule of law that where there is a conflict in the evidence, and the jury has passed upon the same, the verdict will not be set aside, when the evidence of the state is sufficient to sustain the same. Strictly applying this rule, it may be said that there is evidence to sustain the judgment in this case. But an examination of the record as a whole so demonstrates to my mind the injustice of this verdict, that I do not think it should be sustained. Several officers testified that in their opinion the defendant was drunk at the time of his arrest, some 15 minutes after the accident, and when he was taken to jail. Other parties who saw the accident testified he staggered as he left his car to go across the street to the restaurant.

The facts out of which this charge arose are that defendant, who was a highly respected citizen of Hobart and who at one time had been superintendent of the Hobart public schools, attempted to park his automobile in the public square of the city of Hobart, about 8 or 8:30 on the evening of December 12, 1945. He was driving about 15 miles an hour. Another automobile was parked at the curbing, and defendant, in attempting to park, being blinded by lights of other automobiles, struck the right fender of the parked car with the left end of his bumper and fender. No one was in or near the car that was struck, no one was injured, and the damage to the car was slight. Defendant, after striking the other car, backed his car out, drove a short distance from the scene of the collision, and parked his car. He entered a nearby restaurant, the El-Roy Cafe, for the purpose of ordering his dinner which he did, and while so engaged, he was arrested by two city policemen who .had been called by the sheriff’s office to make an investigation. While the testimony of several officers and others was positive as to defendant being drunk a. short while after the collision, numerous witnesses who were disinterested and outstanding citizens testified that they were with defendant just prior to the occurrence, and just after it happened, and all testified that defendant was not drunk or under the influence of liquor. The defendant was with one citizen who testified that they had drunk two glasses of beer just prior to the collision, and another testified he had just left the defendant as he was getting in his car and that he was not drunk. Several persons who were in the restaurant at the time defendant was arrested by the policeman testified that defendant was not drunk or intoxicated and that he was not doing anything to cause a belief that he was intoxicated.

. Mrs. Peters, the proprietor of the cafe, testified:

“Q. Did he indicate anything that would show that he was drunk or under the influence of intoxicating liquor that night? A. No. Q. And was perfectly gentlemanly while he was in your cafe? A. Perfectly, yes, sir.”

Honorable Jess Reed, now deceased, who was State Insurance Commissioner and whose home was in Hobart, and John M. Poole, an outstanding citizen of this state, and who were friends of the defendant, both testified that they went to the jail, about 9:30 to see the defendant, and that in their opinion he was not drunk or under the influence of intoxicating liquor. The defendant later in the night was released to them, and they accompanied him home.

The defendant, testifying in his own behalf, stated that he was not drunk or under the influence of liquor. That he had come to town and parked his car and entered a tavern. A friend of his, Doc Quinn, who testified for the defendant, was there and asked him to have a glass of beer. They then took a second glass, for which defendant paid. They left the tavern and met D. B. Tramel, who also testified for defendant, and after a short conversation, defendant entered his automobile and drove to the place where the accident occurred. As defendant attempted to park his car, he was blinded by a city light and the lights of another automobile, drove too close to the parked car, and struck the fender as above stated. No one was present or in the parked car, and defendant backed up, then drove to the nearest parking place and parked his car and went into the restaurant to secure his dinner. Defendant wrote down the number of the tag on the car he had struck, so that he could find the owner after he had finished his dinner, and arrange to pay any damage he had done the car. He presented this memo-randa at the trial. He also testified that he had soon thereafter paid all of the damage to the owner of the car which had been struck by him.

As above stated, I realize that there is a conflict in the evidence in this case, and that under the rule of law announced in the majority opinion herein rendered, the judgment of the lower court may be sustained, but, under tbe record, I am of the opinion that tbe finding of defendant guilty under tbe testimony was an injustice, and I therefore dissent.


text:
    Ex parte PETE DARR.
    No. A-10869.
    June 18, 1947.
    (182 P. 2d 523.)
    John J. Carney, of Oklahoma City, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   BRETT, J.

Tbe petitioner, with tbe aid of counsel, filed herein on April 3, 1947, bis petition for writ of habeas corpus, alleging be is unlawfully confined in tbe State Penitentiary, at McAlester, Okla. He complains of two separate judgments rendered against him in tbe district court of Lincoln county, numbered 2197 and 2199, wherein in each case he was sentenced to serve 40 years in the penitentiary for robbery with firearms of banks at Prague and Chandler, Okla.

The petition for writ of habeas corpus alleges first that the petitioner did not have the means to employ counsel, and second, that he did not have the aid of counsel, and third, that he did not have the aid of counsel of his own choosing. The record, as revealed by certified copies of the criminal appearance dockets in both cases, does not support the contention of the petitioner. These dockets disclose that after being charged by information, and on December 1, 1930, the petitioner was present in person and represented in the district court by Jimmie Mathis and waived the reading of the information and entered a plea of not guilty. That on December 27, 1930, the cases were set for trial January 13, 1931.

That, on January 13, 1931, it appeared an application for continuance was filed, .stating that defendant was without counsel. Thereupon, the court appointed M. A. Cox, a reputable and able lawyer of Chandler, Okla., to represent the defendant. The record discloses that M. A. Cox ably represented the petitioner throughout the trial, attacking the sufficiency of the information, the sufficiency of the state’s evidence, requesting a directed verdict, and after verdict of the jury seasonably filed a motion for new trial and presented same, which was overruled, and giving notice of intention to appeal and procuring 60-10-5 days time in which to make and serve, sign and settle case-made as a proper predicate for appeal. The record discloses that from this proceeding, no appeal was perfected by the petitioner.

In cause No. 2197, the record is the same until both the state and the defense rested in the trial, whereupon, the defendant, by aid of counsel, asked leave to withdraw his plea of not guilty and enter a plea of guilty, all of ivhich was granted and done.

In both cases, January 16, 1931, was set for sentence day and in both cases the defendant was sentenced to forty (40) years in the penitentiary. The court under the law, § 801, Title 21 O. S. A., might have imposed the death sentence in either case.

It is therefore apparent from the record itself that the defendant was ably represented by counsel and his rights preserved in every stage of the proceedings.

In cause No. 2199, he complains that he filed his motion for continuance because of insufficient time to prepare and procure witnesses. In this, he was represented by counsel M. A. Cox preliminary to the trial. The court found the defendant had not exercised due diligence in this regard.

It is apparent from the record that the petitioner was ably represented by counsel at every stage of the proceedings and that his contentions are without merit as a basis for relief by habeas corpus. The court had jurisdiction of the person of the petitioner and jurisdiction of the crime charged. The judgments and sentences not being in excess of the statutory limits of the court’s power to pronounce, the same are not void. This court has repeatedly held that on habeas corpus it Avill not look beyond the judgment and sentence of any court of competent jurisdiction as to mere irregularities of procedure or errors of law on questions over Avhich the court has jurisdiction. The writ of habeas corpus cannot be used to perform the office of a writ of error on appeal, but will be limited to cases in which the judgment and sentence of the court attacked is clearly void. In re habeas corpus Henry E. Walker, 84 Okla. Cr. 190, 180 P. 2d 670; Ex parte Tollison, 73 Okla. Cr. 38, 117 P. 2d 549; Ex parte West, 62 Okla. Cr. 260, 71 P. 2d 129; Ex parte Keel, 62 Okla. Cr. 277, 71 P. 2d 313; Ex parte Dunn, 33 Okla. Cr. 190, 242 P. 574; Ex parte Grant, 32 Okla. Cr. 217, 240 P. 759; Ex parte Hollingshead, 24 Okla. Cr. 131, 216 P. 486.

The petitioner’s record was preserved. If any of his rights were denied in the proceedings, or if the evidence was insufficient in his opinion to support the convictions, he should have raised these objections in this court in the proper manner by appeal.

For the reasons hereinbefore stated, the writ of ha-beas corpus is denied.

BAREFOOT, P. J., and JONES, J., concur.


author: BAREFOOT, P. J.

text:
    Ex parte DAN JOSEPH HOLLOWELL.
    No. A-10848.
    June 18, 1947.
    (182 P. 2d 771.)

      Bill Steger, of Durant, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for respondent.
   BAREFOOT, P. J.

This is an original action in ha-beas corpus, commenced in this court by Dan Joseph Hol-lowell and Mrs. D. J. Hollowell, seeking the release of their daughter, Belinda Hollowell, from the State Industrial School for Girls, located at Tecumseh, Okla., where she is held by reason of a commitment issued out of the juvenile court of Bryan county, on February 27, 1947.

■ In the petition, as grounds for relief, it is stated:

“That the proceedings, hearings and commitment of the County Court of Bryan County, Oklahoma, in the aforementioned case, are irregular, void and not in conformity with the Statutes of the State of Oklahoma in such cases made and provided, in the following particulars, to-wit:
“(a) The parents of Belinda Hollowell and Belinda Hollowell, were not advised by the court that they were entitled to the counsel of an attorney at law before any hearings or action would be had by the court.
“(b) The parents of Belinda Hollowell and Belinda Hollowell were not advised by the court that they were entitled to have a trial by jury before any hearings or action would be had by the court.
“(c) That the parents of Belindá Hollowell were denied their constitutional rights in the proceeding that resulted in the confinement of their daughter, and that they did not knowingly waive any of their constitutional rights. That the parents of Belinda Hollowell are uneducated and not vested in legal matter and that they did not know their rights until they saw a lawyer, subsequent to the issuance of the commitment that placed their daughter in the State industrial School at Tecumseh, Oklahoma.
“(d) The parents.of Belinda Hollowell and Belinda Hollowell were not served with a summons or given any notice that a petition was filed in said County Court on February 26, 1947, charging that the said Belinda Hol-lowell was a juvenile delinquent; the parents of Belinda Hollowell and Belinda Hollowell were not advised a hearing would be had on said petition; and the parents of Belinda Hollowell and Belinda Hollowell were not given an opportunity to be present and defend themselves against the charges contained in the aforesaid petition.
“4. That the.proceedings, records, entries and commitment in the aforesaid case No. 748, of the County Court of Bryan County, Oklahoma, are incomplete, irregular, void and not in conformity with the laws of this State. Certified copies of the proceedings in said case No. 748 are attached hereto, made a part hereof, and marked 'Exhibits A, B, C, D, and E.’
“5. That all of the proceedings had in the aforementioned cause in the County Court of Bryan County, Oklahoma, do not constitute a sufficient basis for the issuance of the commitment that placed the said Belinda Hollowell in the State Industrial School at Tecumseh, Oklahoma.”

The response filed by the Attorney General on behalf of the Superintendent of the State Industrial School for Girls, states that the petitioner is being held by reason of the commitment above mentioned.

Attached to the petition is a certified copy of the petition filed in the juvenile court of Bryan county on October 9, 1946, by Wanda M. Turner, visiting teacher of the Durant Public Schools, who was the delinquency officer of the county public schools. In the petition it is alleged:

“That she (Belinda Hollowell) is 15 years of age. That she has heretofore been charged with Juvenile Delinquency and by this Court paroled and now wanders about town; that she will leave home for school and plays hookey; that she is addicted to smoking cigarettes in hiding; that she grows behind in her studies at school; that she is found in company with Billie Ray Mitchell who is a delinquent child 17 years of age, and now charged in this court.”

Attached to the petition is a copy of the summons issued to “Mrs. D. G. Hollowell, N. Washington Ave., 1 house north of Gene Mosley place,” the mother of the delinquent, notifying her of the hearing on the above petition, which would be held on October 14, 1946, at 10 o’clock a. m. On the back of the summons is a return of the officer, showing personal service of the summons on Mrs. Hollowell on October 9, 1946, and the summons shows to have been returned on October 11, 1946. The number of this case was 737.

There was also attached to the .petition a copy of the petition signed and sworn to by J. IT. BeTvin, and filed in the juvenile court of Bryan county on February 26, 1947. This petition has reference to the delinquency of Belinda Hollowell, and in the body thereof of it is alleged:

“That she has left the home of her father and mother at Blue, Oklahoma, and taken up her residence with Mingo Underwood in Durant where she has lived for the past two months; that she is out with men all hours of the day and night and makes excursions with them to Lake Texhoma and returns to the Underwood residence as late as 2 a. m. on Sunday mornings in company with young men of divers and various reputations. Mrs. Mingo Underwood is a Mexican and wife of Mingo Underwood who is now overseas in the U. S. Army and has been for many months and the two women live together where the Underwood woman entertains masculine guests exclusively. That she has been at home at the Underwood residence 15 to 20 nights in the month and frequents the Bus Depot at Durant at all hours of the day and night and that this conduct has gone on for the last seven (7) months; that she frequents movies and gets home; that she has a report from one of her boy friends that she has given him a venereal disease the report alleged to come from a local clinic; that the child’s mother has consented to her remaining in this Underwood home here in Durant. That this is the fourth time she has been before this court since 1944 on a charge of Juvenile Delinquency and heretofore returned to her parents with the promise of amendment of discipline.”

This petition bears the number 748.

Also attached to the petition filed herein is a certified copy of the order of W. H. Ritchey, judge of the juvenile court, directing Clay Anderson, as probation officer, to take charge of the care and custody of Belinda Hollowell. This order was issued on February 26,1947.

There is also attached to the petition a certified copy of an order entered in the juvenile court of Bryan county on February 27, 1947, by W. H. Ritchey, judge of said court, committing the petitioner, Belinda Hollowell, to the State Industrial School at Tecumseh, Oklahoma. This order recites that a petition and complaint was filed in the juvenile court by Mrs. Wanda M. Turner on October 9, 1946, charging Belinda Hollowell, 15 years of age, with being a delinquent child; and that at the hearing on said petition said child, her mother, Mrs. Hollowell and W. O. Taylor, probation officer, were present in court. The order further recites:

“The court further finds, that the statement and allegations contained in the petition are true; that said child was before this court in 1944 on a charge of delinquency and this court parolled; and this child was again before the court in 1945 on the same charge and again in 1946 and each time was paroled; and now on the present charge and it is made to appear from her past and witnesses appearing in open court voluntarily that her reformation at home is beyond the power and forces available and that she ought to be committed.* * *
“And whereas, on the —day of January, 1947, said child did break said parole by knowingly and unlawfully leaving her home and going to live with a Mexican family in Durant and absenting herself from school and attending moving picture shows and remaining out to midnight of nights and on Saturday nights to two (2) a. m. Sunday morning; that the Mexican woman’s home is a place of resort for divers and various types of youths 20 and more years of age; and the said child having been brought before the court, on this 27 day of February, 1947, and it having been proven to the satisfaction of the court that said child did break her parole as above set forth;
“Now therefore, it is by the Court ordered that said Belinda Hollowell be committed and delivered to the charge of the Superintendent of the State Industrial School at Tecumseh,. Oklahoma, to be safely kept under the direction of the Board of Control of State Charitable Institutions until discharged by due course of law.
“ (Signed) W. H. Ritchey
“Judge of the Juvenile Court.”

Attached to the order of commitment is a copy of the statement of an examining physician, and the case history of Belinda Hollowell and her parents.

In addition to the certified copies above mentioned, at the hearing before this court, the oral testimony of Mrs. Hollowell, the mother of Belinda Hollowell, was taken; and by agreement the affidavit of Judge Ritchey was presented.

It is contended by petitioner that the judgment entered by the juvenile court on February 27, 1947, committing the said Belinda Hollowell to the State Industrial School for Girls, at Tecumseh, was void by reason of noncompliance with the terms of the statute (Tit. 10, O. S. 1941 § 102). This is the section of the statute giving the child informed against, or any person interested in such child, the right to demand a trial by jury; the main contention being that Belinda Hollowell was entitled to counsel, and that she was deprived of her constitutional rights by not being permitted a jury trial before her commitment.

The records of the juvenile court of Bryan county are not as full and complete as they should have been; but from all the records in this case, it appears that Belinda Hollowell was proceeded against as a delinquent child by petition filed in the juvenile court of Bryan county on October 9, 1946, by the proper authorities. She had on previous occasions been brought before the court, but no proceedings had been filed and she had been returned to the custody of her parents, with the understanding that if her actions were not controlled she would again be brought before the juvenile court for punishment. At the time the petition was filed on October 9, 1946, her mother was summoned as provided by law, and the judge of the juvenile court, in his statement filed in this court, says:

“This court definitely knows that she (the mother) was in court; that she was warned that the child must be in school except that she had a physician’s certificate of her inability on account of illness.”

The record does not disclose that a jury was demanded, or that a jury trial was had. The above statute (Tit. 10 O. S. 1941 § 102) provides that a trial by jury may be demanded. An examination of the authorities dealing with juvenile courts reveals that these statutes are liberally construed. We think that the record in this case justifies our finding that a trial by jury was not demanded and was waived in this instance. The order entered on October 14,1946, was that the child be returned to the custody of her father and mother. Soon after this order was made the parents moved to the town of Blue, in Bryan county, but Belinda did not remain there, and did not attend school. She in many ways-broke the parole granted her by the juvenile court, and the record reveals that she led a life in the city of Durant which the court found would ultimately lead to her downfall. On February 27, 1947, she was brought before the juvenile court again by the filing of a second petition, as above set forth. It is true than another number was given this petition, but in truth and in fact it was only a continuation of the original charges; and from an examination of the statutes as a whole, governing juvenile delinquency, we are of the opinion that it was not absolutely necessary that her parents be notified before the order was made on February 27, 1947, but that the court had the right to make the order. Tit. 10 O. S. 1941 §§ 109, 110, 111 and 112, when read as a whole, clearly indicate that the court, when once it acquires jurisdiction of a delinquent child, has full and complete jurisdiction, and that it is not necessary that notice be served upon the parents, or that a jury trial be had before entering an order, where there has been a violation of the parole order formerly made in the manner provided by law, where the parents had been duly notified and had personally appeared in court at that time, and no demand was made for a jury trial.

Mrs. Hollowell, in her testimony before this court, in reply to her own counsel, stated:

“Q. You have heard from her since she has been down at this school? A. Yes, sir, she wrote me she was well and said she had everything a poor child needed, and she liked it better every day.”

We do not find that this child has been deprived of her constitutional rights, and are of the opinion that she is receiving assistance which will in all probability lead to her reform, and in the end make of her a useful citizen.

For the reasons above stated, the writ of habeas corpus is denied.

JONES and BRETT, JJ., concur.


text:
    GEORGE HARRELL HAYES v. STATE.
    No. A-10731.
    June 25, 1947.
    (182 P. 2d 775.)

      Robert O. Swimmer, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Warren H. Edwards, County Atty. of Oklahoma County, .of Oklahoma City, for defendant in error.
   BAREFOOT, P. J.

Defendant, George Harrell Hayes, was charged in the district court of Oklahoma county with the crime of burglary in the first degree, was tried, convicted and sentenced by the court to serve a term of 20 years in the State Penitentiary, and has appealed.

The only questions presented in the brief of defendant are (a) that the evidence is insufficient to sustain the conviction; and, (b) that the sentence rendered is excessive and by reason thereof is violative of the Constitution and statute. These may be presented together.

This defendant was residing in Oklahoma City, and had been employed by the prosecuting witness, Miss Fern Hoover, and her sister, Miss Maurene Hoover, who were teachers in the public schools of Oklahoma City, to take care of their yard and do some work in the house. He had worked for them and other people in the neighborhood for some time.

The information charged:

“* * * the said defendant * * * did then and there wilfully, unlawfully, burglariously and feloniously, break and enter in the night-time a ■ certain two story frame dwelling house located at' 1011 Northwest 14th Street, in Oklahoma City, said county and state, which said building was then and there under the possession and control of Fern Hoover,. and in which said building there was then and there kept certain personal property, by entering through the basement window of said dwelling house while Fern Hoover was then and there sleeping in and occupying the said dwelling house, the said defendant did then and there, and at said time and place, enter .therein with the unlawful, wrongful and felonious intent to commit a felony, without the knowledge and consent of the owner thereof.”

The evidence revealed that the two young ladies resided at the address given with their mother. Shortly after midnight, the morning of September 18, 1945, Miss Fern Hoover, who was sleeping in the room with her sister, was awakened by a noise and thought her mother, who was sleeping across the hall, was up.' As she arose, she disturbed her sister, who asked what she was doing, and she answered that she thought their mother was up. There was a night light burning in the mother’s room, and the doors from both rooms into the hall were open. The doors were directly opposite. As Miss Fern Hoover went around her bed, she saw the figure of a man crouched by the side of her mother’s bed. He immediately started crawling on hands and knees toward the door, and raised up to a crouching position as he ran down the hall and down the stairs. She turned on the hall light, and recognized the defendant, whom she' well knew. She immediately went to the telephone and called the police, and her sister came out of the room, and followed the party down stairs and out the front door, and, while she was unable to identify the defendant as well as her sister, she was able to describe his clothing. The front door had been unlocked, evidently by the defendant before he went to the second floor. Patrolmen M. J. Mills and L. H. Bailey responded to the call and when they arrived Officer Mills entered the home, and Officer Bailey cruised the neighborhood in his automobile- and in a few minutes arrested defendant about a block and a half from the Hoover home. Officer Mills and the young ladies discovered a window in the basement open, with the screen propped up, through which the intruder had entered the building. The defendant when arrested was dressed just as the young ladies had described the intruder, and had white paint from the window on his jacket and trousers. The defendant was not taken before the young ladies that night for identification, but was placed in jail, and charges were preferred. The identification of the defendant by Miss Fern Hoover at the preliminary and at the trial was positive. There were numerous other circumstances which it is unnecessary to mention that established beyond a doubt that defendant was the party who entered the residence. The jury was amply justified in returning a verdict of guilty. They left the punishment to the court.

The maximum punishment provided by the statute for the crime here charged is 20 years, and this was the punishment assessed by the court.

It is contended by defendant that the punishment assessed is excessive under the facts and circumstances of this case. At first blush it might seem that this is true. Defendant did not take the witness stand, and therefore his previous record was not presented. It is only when relief is asked by a defendant, claiming the punishment is excessive, that the Criminal Court of Appeals will examine the records in the office of the Pardon and Parole Board, to ascertain a defendant’s previous record. But we are of the opinion that when relief is asked, the court has the right to examine this record to ascertain the true facts before granting or refusing such relief.

An examination of the records in the office of the Pardon and Parole Board reveals that this defendant has received six sentences. He was sentenced for grand larceny in Oklahoma county and given one year in the penitentiary in March, 1931, and was discharged in December, 1931. He was sentenced from Oklahoma county for a term of two years for burglary in the second degree in June, 1932, and was discharged in September, 1933. He was sentenced for burglary in the first degree in Oklahoma county for a term of ten years in 1933, and was discharged in November, 1938. He was sentenced for burglary in the second degree in Atoka county for a term of two years, and was discharged in March, 1940. He was sentenced in the present case in Oklahoma county, and given a sentence of 20 years, in December, 1945.

With this record confronting us, we are of the opinion that justice does not demand a modification of the judgment and sentence in this case. It seems that defendant is determined to continuously violate the law.

The judgment of the district court of Oklahoma county is therefore affirmed.

JONES and BRETT, JJ., concur.