text:
    TED HARDIN v. STATE.
    No. A-9350.
    Dec. 2, 1938.
    (85 P. 2d 332.)

      H. G. E. Beauchamp, of Siloam Springs, Ark., for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

Ted Hardin, the defendant, was by information charged jointly with Marvin Ward and Tom Carrick, with robbery; was tried separately, convicted and sentenced to serve a term of five years in the state penitentiary. Motion for a new trial was filed, considered, overruled and exceptions duly saved.

The substance of the testimony on behalf of the state shows that A. G. Lamb was running a store near the town of Salina, in Mayes county, Okla., on December 6, 1935. While John Phillips was at the store with A. G. Lamb one night two parties came into the store and robbed Lamb of some money and a pistol. Neither the prosecuting witness nor John Phillips could recognize the defendant as being one of the parties that took part in the robbery. A car was seen near the scene of the robbery after the parties left the store, and before John Phillips and A. G. Lamb got themselves released where the robbers had tied them, the car was driven away.

One witness testified he was going hunting and saw the back of the car and described it as being a straight back and having a double bumper on it. The defendant was not seen by anyone in the neighborhood of where the robbery is alleged to have taken place. At the time of the reported robbery, the defendant lived near what is spoken of in the evidence as Little Kansas. All of the evidence against the defendant, Ted Hardin, is circumstantial.

Mrs. Bessie Templin, who was running a store at Little Kansas, or Twin Oaks, testified about 5 o’clock on the evening of December 6, 1935, Marvin Ward, Tom Carrick and the defendant were at her place of business, and Marvin Ward bought five gallons of gas; they were in Marvin Ward’s car and were traveling west, going in the direction of Salina. The state’s testimony shows that from the place where it is alleged Marvin Ward bought the gasoline to Salina, where Lamb and Phillips were robbed, is something like 25 or 30 miles.

About the 22nd or 23rd of December, 1935, after the robbery is alleged to have taken place on December 6, 1935, the defendant pawned to Mrs. Bessie Templin a pistol which was afterwards identified as being the pistol taken from the Lamb store the night of the robbery. The defendant was then living in a building belonging to Mrs. Templin, having moved into this building on the 4th of December, 1935, two days prior to the date of the robbery, and had something to do with running or managing the store at Little Kansas.

The testimony further shows that the defendant had moved from a place two or three miles away from the store building to the place belonging to the witness Bessie Templin, on the 4th day of December, 1935. After the pistol was found in the possession of Mrs. Templin, the party who claimed to have seen the car near the scene of the robbery at the Lamb store was driven over to Little Kansas, or where Marvin Ward lived, and inspected the Marvin Ward car, and claimed the back of the car and rear bumpers of the car that drove away from near the Lamb store, near Salina, were similar to Marvin Ward’s car. The witness describing the car did not recognize any of the parties in the car, about the car, or in the store.

It is undisputed that Marvin Ward owned a Dodge 1926 business sedan, as the party who had previously owned it testified he sold the car to Marvin Ward. The state’s witnesses admitted there were many other Dodge sedans of the type of Marvin Ward’s car.

The foregoing is the substance of the state’s testimony.

The defendant testifying in his own behalf denied he had anything to do with the robbery, or that he was in Mayes county on the 6th of December, 1935; that he had lived at Little Kansas for some time, leaving there in February, 1936, and moving to Fort Gibson. At the time he left Little Kansas he was living in Mrs. Bessie Templin’s house; that he had moved there from the Sixkiller place; Mrs. Sixkiller was a sister of Mrs. Bud Snell, and was a full-blood Cherokee Indian. The defendant denies he had anything to do with Tom Carrick and Marvin Ward, or that he drove with them away from his home on the afternoon or evening of the 6th of December, 1935; and then testified that on the evening of the 6th of December, 1935, he and his wife went back to the place they moved from and got some chickens and brought them home; that on the way home they, saw Bud Snell, who lives between the place from which they moved and the place where they were living when they went for the chickens. The defendant describes in detail the route he and his wife traveled to the place where they lived, and as they came home they came by Bud Snell’s.

Bud Snell corroborated the defendant and his wife about going to their former home on the afternoon or evening of the 6th of December, 1935, and their returning toward the place where they lived carrying chickens. Ausley Snell and Avery Foreman both testify they saw the defendant and his wife on the evening of December 6th, 1935, carrying chickens to their home where they were living.

The defendant and others testify he pawned the pistol to Mrs. Bessie Templin on the 22d or 23d of December, 1935, just a day or two before Christmas. Tom Carrick testified he knew Ted Hardin on the 22d of December, 1935; he went to defendant’s home in company with Ausley Snell early in the morning; somebody had reported an Indian had been drunk down on the road or trail a short distance from Ted Hardin, and it was reported the Indian had lost some money and that he, Ausley Snell, and Ted Hardin went down to look for the money; while down looking for the money Carrick says he showed Ted Hardin a pistol and told him he wanted to pawn it for $5. The defendant said he did not have the money, and Carrick asked him if he could get the money from Mrs. Bessie Templin, and the defendant went and pawned the pistol for $5, and came back and gave the money to him. Carrick says he and Ausley Snell stayed with the defendant until after breakfast and then started home; Carrick stated he worked in a barber shop in Kansas, Okla., and so far as he knew the defendant had never seen the pistol before the morning he asked him to let him have the $5 and take the pistol for security.

Ausley Snell corroborated Carrick as to going to the defendant’s home the morning the pistol was pawned to Mrs. Templin. There is no dispute that the pistol was owned by Lamb, the prosecuting witness,

The witness Mrs. Bessie Templin says the defendant told her he wanted to pawn the pistol for $5 but he did not want her to sell it; he would not take $20 for it, or words to that effect. Mrs. Templin lived near the defendant. Marvin Ward lived in the same neighborhood of the Templin store where the defendant lived. Carrick, according to the testimony, lived at Kansas, a few miles away.

The wife of the defendant corroborated his statement as to their returning to the place where they had been living on the evening of the 6th of December, 1935, and getting their chickens and carrying them home. Bud Snell corroborated her as to their going by his home. The defendant going into detail as to his movements from the 4th up to the 6th, and positively denying he ever saw the pistol until Tom Carrick showed it to him the morning it was pawned to Mrs. Templin. The defendant denies he drove away from Bessie Templin’s place of business the evening of December 6th, 1935, in company with Tom Carrick and Marvin Ward; and Carrick positively states the defendant was not with him.

The defendant in his assignment of errors alleges: (1) The court erred in overruling his demurrer to the evidence. (2) The court erred in overruling plaintiff’s motion for an instructed verdict. (3) The court erred in overruling the plaintiff in error’s objection to certain evidence introduced on the part of the defendant and refusing to instruct the jury to disregard such evidence. (4) The court erred in ruling out certain evidence attempted to be introduced by the plaintiff in error; and the court erred in overruling defendant’s motion for a new trial.

In this case it is clearly shown that the defendant lived in the same neighborhood or near Tom Carrick, Marvin Ward, Ausley Snell and Mrs. Bessie Templin. The record also shows that some time in the early part of 1936, Mrs. Templin and the defendant had some kind of a controversy over some feed Mrs. Templin claims she missed from the adjoining room in which the defendant and his wife were living, which the officers investigated to see if they could locate who had removed and disposed of it.

Up until this time Mrs. Templin had continued to keep the pistol that had been pawned to her by the defendant, and he had not asked her for its return nor had she said anything to anyone about having the pistol until after the controversy with the defendant and his wife, in which controversy Mrs. Templin and her friend, Frank Hurley, were parties. Frank Hurley had at one time owned and operated the store, and as shown by the record Marvin Ward at one time worked for Mrs. Templin.

The errors alleged to have been committed by the trial court are included in the motion for a new trial, and they will all be considered together. The attorney general in his brief for the state insists and argues that the defendant was accorded a fair and impartial trial; that the evidence is sufficient to sustain a conviction; the court correctly advised the jury as to the law.

Section 3062, O.S. 1931, 22 Okla. St. Ann. § 834, in part reads as follows:

“On the trial of an indictment or information, questions of law are to be decided by the court, and questions of fact are to be decided by the jury.”

The plaintiff in error in his argument insists that the evidence in this case is insufficient to sustain the verdict and judgment. In presenting his argument he analyzes the evidence of the state, which in brief as pertains to the defendant discloses that one witness claimed she saw the defendant in company with Tom Carrick and Marvin Ward at her place of business about 25 or 30 miles from where the robbery took place, about five o’clock in the afternoon, or later; that Marvin Ward bought some gasoline and the witness claims the defendant left with Car-rick and Ward, going in a westerly direction.

The only circumstances upon which the state relies to convict the defendant are the circumstances that on the 22d or 23d of December, 1935, after the robbery is alleged to have taken place on December 6th, 1935, the defendant pawned a pistol that was taken from the Lamb store to Mrs. Bessie Templin, the witness who testified to seeing the defendant leave her place with Tom Carrick and Marvin Ward the afternoon or evening of December 6th, 1935.

The defendant insists that these circumstances are not sufficient to sustain the conviction for the reason that he was not with Tom Carrick and Marvin Ward the night of the robbery, but shows by the evidence of Tom Carrick, Bud Snell, Ausley Snell and Avery Foreman that he was not with Carrick; that Bud Snell, Ausley Snell, the defendant’s wife and Avery Foreman all testify to the whereabouts of the defendant in company with his wife during the late afternoon and evening of the 6th, up to and after midnight of that date.

The state, in order to sustain its position, cites Browning v. State, 31 Okla. Cr. 373, 239 P. 272, wherein the court in the second paragraph of the syllabus said:

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

And cites several other cases to support his contention. In the authorities cited by the Attorney General it has been the universal holding of this court that if there is sufficient testimony to warrant the court in submitting the case to the jury, even though the testimony was conflicting, this court would not disturb the verdict. Carr v. State, 21 Okla. Cr. 377, 208 P. 275; Pickett v. State, 35 Okla. Cr. 60, 248 P. 352; Humberd v. State, 56 Okla. Cr. 23, 32 P. 2d 954; Clemmer v. State, 56 Okla. Cr. 354, 40 P. 2d 37; Houston v. State, 63 Okla. Cr. 49, 72 P. 2d 526; Goodnight v. State, 62 Okla. Cr. 382, 71 P. 2d 789, and Joe Kizer v. State, 65 Okla. Cr. 247, 85 P. 2d 330.

The jury by its action in returning a verdict of guilty found the proof attempting to establish an alibi for the defendant was insufficient.

The record has been carefully read and studied, and we hold the court correctly advised the jury as to the law of circumstantial evidence and the facts; that the defendant was accorded a fair and impartial trial. The evidence is sufficient to sustain the judgment. The case is affirmed.

DOYLE and BAREFOOT, JJ., concur.


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    FRANK HANDLEY v. STATE.
    No. A-9418.
    Dec. 7, 1938.
    (85 P. 2d 436.)

      J. Q. A. Harrod and Laynie W. Herrod, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and S. T. Roberson, Co. Atty., of El Reno, for the State.
   BAREFOOT, J.

Defendant was charged in the district court of Canadian county with the unlawful possession of 257 pints of intoxicating liquor, and as a second offender; was convicted and sentenced to serve a term of one year in the penitentiary, and pay a fine of $50, and has appealed.

The first error assigned by defendant is that the search warrant used by the officers was void for the reason it did not run in the name of the state of Oklahoma, as provided by article 7, of section 19, of the Constitution of this state, Okla. St. Ann. Const, art. 7, § 19, which is as follows:

“The style of all writs and processes shall be ‘The State of Oklahoma.’ All prosecutions shall be carried on in the name and by the authority of the state of Oklahoma. All indictments, informations, and complaints shall conclude, ‘Against the peace and dignity of the state.’ ”

And section 19, Okla. Stats. 1931, Okla. Stats. Ann., title 12, section 51, which is the same as the above.

The style of the search warrant in this case was:

“In the Justice of the Peace Court in and for El Reno District in Canadian County, Oklahoma.
“The State of Oklahoma \ “County of Canadian / SS’
“In the Name of the State of Oklahoma.
“To the Sheriff, or any Peace Officer of said County, Greetings

The return was made by John Harrison, sheriff.

In support of the above proposition counsel for defendant cites the following cases: Richmond v. Robertson, 50 Okla. 635, 151 P. 203; Latimer v. Giles, 29 Okla. 234, 116 P. 795; Little v. Little, 5 Mo. 227, 32 Am. Dec. 317; Martin v. Hostetter, 59 Okla. 246, 158 P. 1174; Conditt v. McKinley, 94 Okla. 266, 221 P. 1007; Dunn v. State, 40 Okla. Cr. 76, 267 P. 279; Myers v. State, 40 Okla. Cr. 170, 267 P. 867; Murray v. State, 47 Okla. Cr. 219, 287 P. 781; McAdoo v. State, 36 Okla. Cr. 198, 253 P. 307; Sloan v. State, 45 Okla. Cr. 228, 282 P. 898; Woods v. State, 46 Okla. Cr. 288, 287 P. 769; State v. Bayliff, 59 Okla. Cr. 381, 60 P. 2d 402.

A careful reading of these cases reveals that the facts therein are different from the case at bar. In the case of Richmond v. Robertson, supra, which involved an order of sale of real estate, it did not run in the name of the state, and was not directed to the sheriff. It simply used the terms: “State of Oklahoma, County of Kingfisher — ss.”

The same is true of many of the cases above cited. In the cases of Myers v. State, and Dunn v. State, supra, the “State” is not mentioned, but the search warrant is directed : “To any sheriff, constable, marshal, or policeman in the county of Oklahoma, greeting.”

The above cases seem to be based upon the case of McAdoo v. State, supra. In this case the style of the search warrant was as follows:

“In the County Court.
“State of Oklahoma, County of Cleveland — ss.:
“Search Warrant.
“To Frank Boggs, Sheriff of Cleveland County, Oklahoma, or to Any Deputy Therein.”

A glance at it at once reveals that the style used in that case is far different from the one here involved. In the instant case the search warrant used the words:

“The State of Oklahoma \ “County of Canadian / SS‘
“In the Name of the State of Oklahoma.
“To the Sheriff, or any Peace Officer of said County, Greetings :”

It does not occur to us that because there is used the words “In the name of” before “The State of Oklahoma”, is any reason to say that the process does not run in the name of the state, and to so hold would be placing a technical construction upon the constitutional and statutory provisions above cited that would be unwarranted.

Section 3226, Okla. Stats. 1931, Okla. Stats. Ann. title 22, section 1226, provides the exact form to be used in a search warrant and is in identical terms with the one used in this case. The statute provides:

“The warrant must be in substantially the following form:
“County of-.
“In the name of the State of Oklahoma. To any sheriff, constable, marshal or policeman in the county of-.”

We have carefully examined the case of State v. Bayliff, 59 Okla. Cr. 381, 60 P. 2d 402, cited and relied upon. It does not support the contention made by defendant. In that case the style of the search warrant was as follows:

“In the name of Alfalfa County, Oklahoma.
“Search Warrant.
“To the Sheriff, Deputy Sheriff of Alfalfa County, Oklahoma.”

The state is not mentioned, and the court rightfully held that it did not run in the name of the state, but in the name of Alfalfa county. It will thus be seen that the search warrant in the instant case ran in the name of the state, and was in the exact words of the statute above quoted, and therefore the court did not err in overruling the motion to suppress the search warrant for this reason.

The next assignment of error is that the court erred in not sustaining the motion to quash the search warrant in this case, for the reason that it is based upon an affidavit which is wholly insufficient to warrant the justice of the peace in issuing the same. The affidavit was as follows:

“W. N. Farris, who being first duly sworn according to law, deposes and says, that on or about the 5th day of February, 1937, in Canadian County, State of Oklahoma, the following premises are being used as a place where spirituous, vinous, fermented, and malt liquors, and imitations thereof, and substitutes therefor, are received, manufactured, stored and kept for the purpose and intent of being sold, bartered, given away, or otherwise furnished in violation of the prohibitory laws of the State of Oklahoma, to wit:
“All the lands, buildings, outbuildings, the residence and appurtenances situated on lots one to eight inclusive, block 5 Riley’s Addition to the city of El Reno, said residence being occupied by Frank Handley.
“Affiant further states and says, that said residence is used for the purpose of storing intoxicating liquor and is a place of public resort in that divers and sundry persons gather and congregate there for the purpose of buying and drinking intoxicating liquor.
“Wherefore affiant asks that a Search Warrant issue, directed to a peace officer of said County, commanding him to search the above described premises, and to seize all liquors there found, together with the vessels in which it is contained, and all implements, furniture, and fixtures used or kept in connection with such violations of the prohibitory laws of the State of Okalhoma.
“The said premises are located as herein described, in the City or Town of-in said County and State, and used contrary to the form of the statute in such case made and provided and against the peace and dignity of the State.
“(Signed) W. N. Farris.”

The contention is that the above search warrant does not state facts sufficient to justify the issuance of the search warrant, and that on its face it shows that it was based upon information and belief. We cannot agree with this contention. It may be true that more facts might have been alleged in the affidavit, and as we have heretofore stated, it would have been best to do so, yet it does state in positive terms that the premises described are “being used as a place where spirituous, vinous, fermented and malt liquors * * * are received, manufactured, stored and kept for the purpose and intent of being sold, bartered, given away, or otherwise furnished in violation of the prohibitory laws of the state of Oklahoma”. And, after this general statement is made in the affidavit, the maker thereof specifically states: “that said residence is used for the purpose of storing intoxicating liquor and is a place of public resort in that divers and sundry persons gather and congregate there for the purpose of buying and drinking intoxicating liquor.”

This is a positive statement by the party making the affidavit, and there is nothing therein to indicate that the statements so made are on information and belief, as is true in many of the authorities cited and relied upon by defendant. We reiterate that it is better for the officer to state the exact facts in the affidavit upon which the issuance of the search warrant is based, but this court has many times held that where the affidavit is in positive terms, that it will not be set aside on motion to suppress, for the reason that it was made upon “information and belief.” McHenry v. State, 61 Okla. Cr. 450, 69 P. 2d 90; Denton v. State, 62 Okla. Cr. 8, 70 P. 2d 135; Rhodes v. State, 40 Okla. Cr. 124, 267 P. 490; Phillips v. State, 34 Okla. Cr. 52, 244 P. 451; Cahill v. State, 38 Okla. Cr. 236, 260 P. 91; Smith v. State, 30 Okla. Cr. 144, 235 P. 273.

The affidavit in the case at bar is much stronger and more positive than the affidavit in the case of Hannan v. State, 29 Okla. Cr. 203, 233 P. 249, which is cited and quoted by defendant in his brief. In that case the affidavit was a “John Doe” warrant, and did not give the name of the defendant. It only stated that intoxicating liquor was being kept on the premises “with the intent of the said John Doe to sell the same in violation of the law, and for the purpose of committing a public offense”, [page 250]. There were no such positive statements as in the instant case “that said residence is used for the purpose of storing intoxicating liquor”, and that it was “a place of public resort”, and that “divers and sundry persons gather and congregate there for the purpose of buying and drinking intoxicating liquor”. In that case the defendant took the witness stand and denied all knowledge of the liquor being on the premises. The amount being less than one quart, and in a store room in a hotel which was being conducted by defendant, and to which many other persons had access. He admitted the possession of certain wine found upon the premises which he said was being used for his own use. The defendant did not take the witness stand in this case, as he had a right not to do.

Defendant in his brief cites certain authorities defining the word “storage”. These decisions are generally with reference to the “storing of merchandise”. The same reasoning might not apply to the storing of “intoxicating liquor”. Certainly the possession of 257 pints of liquor, concealed under the floor, and a trap door made for the securing of the same, would indicate to the ordinary person in this j urisdiction, that the owner thereof intended it to be “stored” there for the purpose of securing the same at intervals to sell. At any rate the statutes of this state say that the possession of over one quart is a “prima facie intent to barter, sell, give away or otherwise furnish the same”, in violation of the laws of this state. We think that when the Legislature used the word “storage” it did not intend the meaning to be construed as stated by defendant “that the residence or some part of it, was set aside as a place of storage where the public generally brings its goods and stores them for hire.” But rather it was the intention of the Legislature when it used this word in reference to storing intoxicating liquor, that it meant placing them by one who intended to sell in violation of law, at a place where they could be stored and easily accessible for the purpose of sale.

The contention that the phrase “place of public resort” used in our statute means such a place of public resort as a “store, shop, hotel, boarding house, or place of storage,” can not be upheld for the reason that such a construction would do away with the very terms of the statute. Oklahoma Statutes, 1931, sec. 2639, Okla. Stats. Annotated, title 37, sec. 88, in describing what is necsesary before a residence may be searched, and after using the words quoted above, says: “or unless such residence is a place of public resort.” Certainly in construing the statute it is necessary for the court to give effect to those words constituting the closing sentence. It is a well known fact that many parties, under the protection of the Constitution, the statutes, and the decisions of this court, are attempting to use the home as a place of “storage,” and as a place of “public resort,” in order to better protect them in the violation of the law. That they so forget the sanctity of the home in order that they may carry on the liquor business therein, in violation of law, was the very reason for the Legislature to put the clause “or place of storage, or unless such residence is a place of public resort,” in the statute. McHenry v. State, 61 Okla. Cr. 450, 69 P. 2d 90; Denton v. State, 62 Okla. Cr. 8, 70 P. 2d 135.

The testimony revealed that the defendant and his son, Fletcher Handley, were jointly charged with the unlawful possession of 257 pints of bonded, tax paid liquor. It was found at the home of defendant, in the city of El Reno, Canadian county. It was discovered under the floor, which was reached by means of a trap door that had been cut in the floor. Defendant’s wife, two small children, and his son, Fletcher Handley, who lived at his father’s home, were present at the time the search was made, and defendant appeared just as the search was being completed. There was some discussion between the sheriff and defendant as to who would be arrested, and the sheriff arrested and took the defendant’s son, and requested defendant to come in the next morning. The record further reveals that defendant and his son had been tried and convicted on many previous occasions for a violation of the prohibition laws. Defendant stated to one of the officers who testified “and on the way up there, why, Frank made the remark about he was going to continue to sell whisky; he couldn’t find work and so on and so forth, like that, just general conversation.” This conversation in substance was had with other officers.

The son of defendant, Fletcher Handley, testifying in this case, denied having any knowledge of the whisky, or of the trap door in the room. Under the evidence as shown by the record, we find no cause for a reversal of this case. It reveals defendant as a confirmed violator of the prohibition laws, and with an intention on his part not to reform.

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

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


text:
    ROY HODGES v. STATE.
    No. A-9401.
    Dec. 16, 1938.
    (85 P. 2d 443.)
    Bob Howe, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Lewis R. Morris, Co. Atty., of Oklahoma City, for the State.
   BAREFOOT, J.

Defendant, Roy Hodges, and C. F. Daley were charged jointly with the crime of murder. A severance was had and defendant was tried separately, convicted of manslaughter in the first degree, and sentenced to serve seven years in the penitentiary, and has appealed.

The charging part of the information was as follows: “did beat and strike the said Jasper B. McAfee on and about the head and body, then and there and thereby inflict upon the body and head of said Jasper B. McAfee by beating and striking, as aforesaid, certain mortal injuries of which mortal injuries so inflicted, as aforesaid, the said Jasper B. McAfee did instantly die, as was intended by said defendant.”

It is contended by defendant: (a) That the evidence revealed that deceased died because of a broken neck, and that therefore there was a fatal variance between the proof and the allegations contained in the information; (b) that there is absolutely no evidence that deceased died from the effect of striking, beating, bruising, or blows upon the body and head, as charged in the information as being mortal wounds.

The evidence as shown by the record was that a man by the name of Fred Ward was an oil field worker in Capitol Hill, Oklahoma City. That on the 9th day of September, 1936, one R. C. Smith, who was a friend of his, came to his home. That soon thereafter they went to the business district of Capitol Hill, where he left some shoes to be repaired. They went to a resort to get a bottle of beer, and there met C. F. Daley, whom Mr. Smith knew. About 4 o’clock they again met Mr. Daley and Roy Hodges, the defendant, whom Mr. Smith knew and was wanting to see, with reference to helping him to find work in the Capitol Hill oil field. The four parties, to wit, Ward, Hodges, Daley and Smith, got in Hodges’ car and drove out southwest of Capitol Hill. While out there they all took a drink of whisky from a bottle belonging to defendant, and which contained about one-fourth of a pint. They returned to a barbecue stand, located at 3319 South Robinson Avenue, arriving there about 6:30 p. m. They all got out of the car and seated themselves at one of the tables on the outside and drank several bottles of beer. While they were seated there an elderly man named Jasper B. McAfee, about 60 years of age, and weighing about 130 pounds, came up and seated himself at a table just north of the parties named. He was sitting on a bench leaning his head on the table when one of the parties, C. F. Daley, went to where he was and turned over the bench on which Mr. McAfee was sitting. There was no cause for this, and Mr. McAfee got up and laid down on the bench. It was but a few minutes until the defendant, Roy Hodges, went over and pushed the bench over and Mr. McAfee again fell to the ground. When he got up he came over to the table where the others were sitting and protested about being interfered with, saying: “I am an old man and I try to be all right, and I don’t like to be treated this way.” ' He never at any time made any demonstration in any way toward defendant or any of the parties, and the witness Fred Ward spoke to defendant, saying: “I told him to leave him alone, he was an old man and wasn’t bothering anybody.” About this time a young man named Jack Adair, who worked at the barbecue stand, came up, and defendant slapped Mr. McAfee with his hand and knocked him up against a post, and he staggered and fell against the ground. The witness Jack Adair asked defendant not to have any trouble, and defendant told him to go on “or he would whip hell out of me,” to which witness replied: “If I can’t handle you I will get some one that can.” And he started toward the car, defendant following him, and he got off the fender of the car and knocked defendant down. The deceased was picked up and laid on the bench, and was afterwards taken away in an ambulance. He died as a result of being struck by defendant. An examination by the undertaker and an interne revealed that his neck was broken, and this was the immediate cause of his death. All of the parties left the scene of the difficulty. The defendant was found the next morning at the home of a friend near Britton, north of Oklahoma City. His car was found in the woods some distance from the house. The witnesses R. C. Smith and Fred Ward did not learn of the death of deceased until the next morning when they saw an account in the news.papers, and they immediately reported to the officers, and were witnesses in this case. The defendant did not testify.

The above statement is necessary in order to consider the question of variance between the allegations of the information and the evidence in the case. It will be noted that defendant was convicted of manslaughter in the first degree. The court, in his instructions, properly eliminated the question of murder, and only submitted manslaughter in the first degree and second degree. The statute defining manslaughter in the first degree, Oklahoma Statutes 1981, § 2223, 21 Okla. St. Ann. § 711, provides:

“Homicide is manslaughter in the first degree in the following cases:
“1. When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor.
“2. When perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as constitute excusable or justifiable homicide.
“3. When perpetrated unnecessarily either while resisting an attempt by the person killed to commit a crime, or after such attempt shall have failed.”

It has been universally held by this court that the charging of the greater degree includes all of the lower degrees of the same crime. Jones v. Territory, 4 Okla. 45, 43 P. 1072; Rhea v. Territory, 3 Okla. Cr. 230, 105 P. 314; Byars v. State, 7 Okla. Cr. 650, 126 P. 252.

The defendant was charged with the crime of murder. It was not only proper, but the duty of the court, under the facts, to submit to the jury the question of manslaughter in the first and second degree. The evidence revealed that deceased was killed by defendant while engaged in the commission of a misdemeanor, as clearly defined by section 1 of the above quoted statute. There was no action on the part of deceased which showed any aggression on his part. He mildly protested when he was thrown from the bench by defendant, and when he did so defendant immediately hit him in the face, and knocked him against a post, and he fell to the ground, and as a result of this his neck was broken and he died. There is nothing in the evidence to show that defendant intended to kill deceased. He did not know him, and there was no cause to strike him. It seemed to be defendant’s idea of having fun, and especially when he was evidently under the influence of liquor. But the law does not sanction fun of this character for it says a person is legally responsible for the natural and necessary consequences of his own unlawful act, and under the statute of which defendant was convicted, it is not necessary that he should have intended the death of deceased. Tyner v. U. S., 2 Okla. Cr. 689, 103 P. 1057.

Defendant relies upon the case of Elliott v. State, 4 Okla. Cr. 224, 111 P. 820, 140 Am. St. Rep. 683, for a reversal of this case. While we think there is a clear distinction between this case and the case at bar, this court in the case of Tiger v. State, 54 Okla. Cr. 202, 16 P. 2d 889, had occasion to refer to the Elliott Case, and while the same was not overruled, the doctrine as announced therein was not followed, and it is our opinion that the reasoning in the Tiger Case is more sound, and is in accord with the modern and better reasoned cases. The court, in that case, said:

“The only contention made is that the testimony does not sustain the charge; that, while there is testimony that defendant struck Kelly with his fists and knocked him down against the stove and that some time in the fight kicked him, there is no proof of the allegation of an assault with a heavy, dangerous, blunt instrument. Defendant relies for a reversal on the case of Elliott v. State, 4 Okla. Cr. 224, 111 P. 820, 140 Am. St. Rep. 683. It is not contested that Kelly met his death in a fight with defendant; that death was caused either by defendant striking deceased with his fist, causing him to fall and sustain the wounds from which he died, or by kicking him and causing the wounds, or by striking him with some weapon not disclosed. As to the cause of death, the physician who performed the autopsy testified deceased had been struck with some blunt instrument; that in his opinion the injuries on the face could not have been caused by a rubber-heeled shoe.
“The only question then is, Is there a fatal variance between the charge and the evidence? The courts of several of the states have gone to an extreme length in holding a variance fatal. Some of these opinions have reversed cases on a variance on some point or some purely technical matter which by the later and better reasoned cases and the more modern rule would be brushed aside as immaterial. This court has followed the later sensible rule as stated in Woods v. State, 22 Okla. Cr. 365, 211 P. 519, and again asserted in Brashears et al. v. State, 38 Okla. Cr. 175, 259 P. 665. These later cases define a variance as an essential difference between the accusation and the proof and that a material variance arises only when there is such a difference between the proof and the charge that an acquittal of the defendant would be no bar to a further prosecution for the same offense. The charge that deceased met his death by wounds inflicted by a blunt instrument is sustained by the proof. It is evident that the county attorney did not at the time of filing the charge or at any subsequent time know what instrument was used. The proof very strongly indicates that deceased was knocked down and kicked in the head by defendant, which kicks caused the fractures of the skull testified to. If defendant has been acquitted under this charge, he certainly could not have been again prosecuted for causing the death of deceased in some other manner.”

As stated in that case it is certain that the defendant was in no way misled by the charge in the information in this case. There is no question but that the striking of deceased by the defendant was the direct cause of his death, even though it does not reveal whether the broken neck was the result of the striking, or the fall against the post or falling to the ground. There is no question but that a conviction or acquittal of defendant would be a bar to a further prosecution for this offense. Gaunce v. State, 22 Okla. Cr. 361, 211 P. 517; Lady v. State, 18 Okla. Cr. 59, 192 P. 699; Higdon v. State, 58 Okla. Cr. 224, 52 P. 2d 103; Woods v. State, 22 Okla. Cr. 365, 211 P. 519; Kercheval v. U. S., 5 Cr., 36 F. 2d 766; Tiger v. State, 54 Okla. Cr. 202, 16 P. 2d 889.

It is unfortunate that death resulted when there was no design upon the part of the defendant to effect death, but the statute provides that it is manslaughter in the first degree “when perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor.”

Finding no error in the trial of this case, we are of the opinion that the judgment of the district court of Oklahoma county should be affirmed and it is so'ordered.

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


author: DOYLE, P. J.

text:
    GEORGE (BOBBY) DUNCAN v. STATE.
    No. A-9417.
    Dec. 16, 1938.
    (85 P. 2d 439.)

      No appearance for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, P. J.

The information in this case in substance charged that in Alfalfa county, on the 26th day of September, 1936, George (Bobby) Duncan did unlawfully, willfully and feloniously, while under the influence of intoxicating liquor, drive an automobile on the public highway from a point unknown in Alfalfa county, on U. S. Highway No. 64, to a point about one mile and a half south of the city of Cherokee. Upon his trial the jury returned their verdict finding him guilty as charged in the information, and assessed his punishment at confinement in the state penitentiary for six months.

Motion for a new trial was duly filed and overruled.

From the judgment rendered in pursuance of the verdict he appeals.

No brief has been filed and no appearance made in behalf of the plaintiff in error in this court.

The undisputed evidence for the state shows that in the evening on the date alleged, the defendant drove his car down the main street of the city of Cherokee and on south on Highway 64, in such a manner that the night marshal attempted to stop him, but he drove on and was followed by the sheriff and a deputy sheriff. They arrested the defendant in his car parked by the side of the road. They testified that the defendant was drunk when they arrested him. The sheriff placed him in jail and called Dr. Dunnington, who testified that he examined him and found him in a drunken and intoxicated condition.

When the state rested the defendant interposed a demurrer to the evidence, which was overruled.

There was no testimony offered on the part of the defense.

In cases of this kind, where no briefs are filed or oral argument made, we do not consider it the duty of this court to go into a careful examination of the evidence to determine whether or not the trial court erred in the admission or rejection of evidence. In this case we have carefully examined the record and find it free from substantial error.

As to the sufficiency of the evidence to sustain the verdict,- we think there can be no reasonable doubt. The instructions given by the court to which no objection was made or exception taken, correctly and fully presented the law of the case.

It appearing that the defendant had a fair and impartial trial, and was properly convicted, the judgment of the district court of Alfalfa county herein is affirmed.

DAVENPORT, P. J., and BAREFOOT, J., concur.


author: DAVENPORT, P. J.

text:
    ALFRED PRESNELL v. STATE.
    No. A-9371.
    Dec. 16, 1938.
    (85 P. 2d 441.)

      Chas. E. Webster, of Drumright, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The defendant was by information charged jointly with Richard Mansker and Bill Foster with the crime of burglary in the second degree; was tried, convicted and sentenced to a term in the state penitentiary of two years. The view we take of this record it is only necessary to consider the question as to whether or not the court erred in overruling the demurrer of the defendant to the information.

The information on which the defendant was tried, omitting the caption, signature and other endorsements thereon, is as follows:

“L. J. York, county attorney of Payne county, state of Oklahoma, under and by virtue of the authority vested in him as county attorney, gives this Honorable Court to know and be informed in the name and by the authority of the State of Oklahoma, at the January A. D. 1936 term of said court that at and in the county of Payne and state of Oklahoma, on the 27th day of May, 1936, Richard Mansker, Alfred Presnell, and Bill Foster, then and there being, did then and there willfully, wrongfully, burglari-ously and feloniously and while acting together and conjointly break and enter into a certain building to wit: a tool house belonging to the Carter Oil Company, in which structure there was no human being at the time of said breaking, and there being personal property stored therein to wit: tools of the value of $50 in good and lawful money of the United States of America, the same being the personal property of the Carter Oil Company, and the said defendants did then and there with the felonious intent then and there on the part of the said defendant, break into and enter the said building as aforesaid by breaking the door of said building and entering the said building with the felonious intent to take, steal and carry away the said property as aforesaid, and to deprive the owners thereof of the value thereof and to convert the same to their own use and benefit contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state of Oklahoma.”

A demurrer was filed to the information, which, after omitting the caption and formal part, is as follows:

“That said information as filed does not state sufficient facts to constitute an offense against the laws of the state of Oklahoma, and are insufficient to advise the defendants as to the special offense attempted to be charged in the information, and that said information does not conform to the Criminal Code of the state of Oklahoma.”

Section 2883, O. S. 1931, 22 Okla. St. Ann. ch. 5, § 401, states:

“The indictment or information must contain:
“1. The title of action, specifying the name of the court to which the indictment or information is presented, and the names of the parties.
“2. A statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.”

Section 2884, O. S. 1931, 22 Okla. St. Ann. ch. 5, § 402, is as follows:

“The indictment or information must be direct and certain as it regards:
“1. The party charged. 2. The offense charged. 3. The particular circumstances of the offense charged, when they are necessary to constitute a complete offense.”

The defendant in his brief argues that the information filed in his case wholly fails to give any definite or certain description as to the building or structure of building burglarized by the defendant, but merely states a tool house belonging to the Carter Oil Company, in Payne county, state of Oklahoma.

A careful reading of the information shows that it states the building burglarized was a tool house belonging to the Carter Oil Company, and that the building was in Payne county, Okla. The information does not attempt to define and locate the building other than in Payne county, Okla., without stating that a more definite and certain description was to the county attorney unknown. It will be seen that the information does not attempt to define the location of the building by describing the township, section or range in said Payne county, on which said building was located at the time of the alleged burglary, and does not allege that a more definite description of the building and its location was unknown to the county attorney, or the prosecuting witness at the time the information was filed.

Payne county is a municipal subdivision of the state of Oklahoma, and covers quite an area of country. There is no allegation in the information that the Carter Oil Company did not own more than one warehouse in Payne county. From the description in the information a stranger going into Payne county for the purpose of locating a warehouse belonging to the Carter Oil Company would experience considerable difficulty, and would have to make inquiry or spend a great deal of time going from place to place until he found some one to tell him where the Carter Oil Company had a warehouse, and if he was seeking to find the warehouse the defendant in this case is alleged to have burglarized, he would have to find some one who had sufficient knowledge to tell him whether or not the Carter Oil Company owned more than one warehouse in Payne county, Okla.

The second paragraph in section 2883, O. S. 1931, 22 Okla. St. Ann. § 401, subd. 2, supra, requires the allegations in the indictment or information to state the acts constituting the offense in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended.

Section 2884, O. S. 1931, supra, in the third paragraph of that section, 22 Okla. St. Ann. § 402, subd. 3, requires the state to plead the particular circumstances of the offense charged when they are necessary to constitute a complete offense.

When an information is filed against a defendant charging him with burglary, it is the duty of the pleader to plead all the facts necessary to constitute the crime of burglary defined by our statute, and the pleader must allege a description of the place or premises burglarized, its location, occupancy and ownership or possession in some one legally authorized to have possession of the properties.

In Sullivan v. State, 7 Okla. Cr. 307, 123 P. 569, in the second paragraph of the syllabus, this court said:

“An allegation, in an indictment for burglary, that the accused, in the nighttime of a certain day, unlawfully, willfully, feloniously, and burglariously did break and enter a railroad car, situated in the city of Shawnee, in the possession of and under the control of a certain railway company, a corporation, the name of the owner thereof being to the grand jurors unknown, is fatally deficient for want of certainty, in the absence of an allegation that a more particular description of the car cannot be given.”

In this case we are considering there is no description of the warehouse alleged to have been burglarized, nor is there any statement in the information that a more particular description of the warehouse cannot be given. No effort is made by the pleader to define definitely the location of the warehouse or to show that he could not give a more definite description than the statement in the information that.the warehouse was owned by the Carter Oil Company, and it was located in Payne county, Okla.

The case is reversed with directions to the trial court to sustain the demurrer, and hold the accused for further proceedings in accordance with the law.

DOYLE and BAREFOOT, JJ., concur.


author: DOYLE, J.

text:
    Ex parte ED WHEELER et al.
    No. A-9591.
    Dec. 16, 1938.
    (85 P. 2d 434.)

      John F. Pendleton, of Nowata, for petitioners.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the respondent.
   DOYLE, J.

The petitioners, Ed Wheeler and Bob Wheeler, it appears, were arrested in Rogers county by Hugh Owen, then sheriff of Nowata county, on August 13, 1938, that the said sheriff of Nowata county held no warrant or writ of any kind for the arrest or apprehension of the petitioners; that they were jointly charged with the crime of larceny of domestic animals, to wit, two white faced calves, the personal property of Mrs. Lark Adamson, alleged to have been committed in Nowata county, on or about the 13th day of August, 1938. That on November 15th, they were accorded a preliminary examination before W. H. Thomason, as examining magistrate, and were held to the district court.

That on November 26th, the county attorney of No-wata county filed in the district court of said county an information based on the said preliminary hearing and the order of the said W. H. Thomason, as examining magistrate; that petitioners filed their motion to set aside said information in said district court, for the reason that the same was not founded upon any competent evidence whatever, and that the order of the examining magistrate was without authority of law, which motion was by the court, James T. Shipman, district judge, overruled.

Attached to the petition is a copy of the original complaint and a complete transcript of the evidence taken in the examining trial, also a copy of the information filed in said district court, a copy of the motion to set aside the same, and a copy of the order overruling the same.

It is further averred that for the reasons stated, petitioners are unlawfully restrained of their liberty, and having exhausted their remedies to protect their rights, are petitioning this court for writ of habeas corpus to release them from unlawful restraint by Lena Owen, sheriff of Nowata county.

Thus it appears that petitioners are being held by virtue of an information proffered by the county attorney, in a court of competent jurisdiction, to wit, the district court of Nowata county.

To this petition the Attorney General filed a demurrer, on the ground and for the reason that the facts stated are not sufficient to authorize this court to grant the relief prayed for.

Under section 693 (4), St. 1931, 12 Okla. St. Ann. § 1342(4), the writ of habeas corpus cannot be resorted to for the purpose of determining the sufficiency of the evidence adduced upon a preliminary examination to show probable cause, after the information has been duly filed, based upon a preliminary examination had in the case.

The question here sought to be raised is not a jurisdictional one, and hence is not available on habeas corpus, for it is settled law that on habeas corpus the court can only inquire into jurisdictional defects in the proceedings.

The office of the writ of habeas corpus is not to determine the guilt or innocence of the prisoner, and the only issue which it presents is whether or not the prisoner is restrained of his liberty by due process of law, and a defendant, held by virtue of an information preferred by a proper prosecuting officer in a court of competent jurisdiction, cannot be discharged on habeas corpus on the ground that the evidence adduced upon his preliminary examination was insufficient to show that a public offense had been committed, or probable cause to believe the defendant guilty thereof. Ex parte Burroughs, 10 Okla. Cr. 87, 133 P. 1142; Ex parte Johnson, 29 Okla. Cr. 374, 233 P. 1092; Ex parte Black, 37 Okla. Cr. 83, 256 P. 941; Ex parte Lansdon, 38 Okla. Cr. 59, 258 P. 1065; Ex parte Kruse et al.. 62 Okla. Cr. 283, 71 P. 2d 318.

In Ex parte Burroughs, supra, we said:

“The due and proper administration of public justice requires that whenever an information is filed in a court of competent jurisdiction, it is its right and duty to proceed to its final determination without interference from any other tribunal, and the writ of habeas corpus cannot be resorted to on the plea that the evidence adduced upon his preliminary examination was insufficient to show that a felony had been committed, or probable cause for believing the defendant guilty thereof. The defendant has a right to raise this question in the court where the information is pending, by a plea in abatement, or by motion to quash, or motion to set aside the information.”

Under the provisions of section 693, supra, 12 Okla. St. Ann. § 1342 ¡(4), and the decisions of this court construing the same, the demurrer to the petition herein is, we think, well taken, and should be sustained.

For the reasons stated, the writ of habeas corpus will be denied. It is so ordered.

DAVENPORT, P. J., and BAREFOOT, J., concur.


text:
    ARTHUR E. SCROGGS v. STATE.
    No. A-9522.
    Dec. 22, 1938.
    (85 P. 2d 764.)

      Guy Horton, Brown Moore, and John W. Whipple, all of Stillwater, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Leon J. York, Co. Atty., of Stillwater, for the State.
   DAVENPORT, P. J.

The plaintiff in error, Arthur E. Scroggs, was by information jointly charged with M. E. Spencer and Leo Connor, with the crime of maintaining a place in the city of Stillwater, Payne county, Okla., where malt, spirituous, vinous and fermented liquors, and imitations and substitutes therefor, and other intoxicating liquors capable of being used as a beverage, were received and kept for the purpose of bartering, selling, giving away and otherwise furnishing the same to others unlawfully. A severance was granted, the defendant was tried, convicted and sentenced to be imprisoned in the county jail for 90 days and to pay a fine of $350. Motion for new trial was filed, overruled, and exceptions saved and defendant appeals.

The record is voluminous, many pages of which contain immaterial testimony. The facts briefly stated are the defendant, on the 10th day of February, 1938, and several years prior thereto was the proprietor of the Grand Hotel, in the city of Stillwater, Okla. The officers secured two search warrants, one to search the lobby and desk and other things in the hotel on the first floor, and one to search the room of one of the clerks of the hotel, known as room 229; search was made by the officers in the hotel lobby and desk and different places and no intoxicating liquors of any kind or character were found, as shown by the return on the search warrant.

The other search warrant was executed by the officers going to the second floor of the hotel where they contacted the porter and he showed them room 229, but he had no key. One of the officers went down and got the key to room 229, which the record shows was the living room of M. E. Spencer; in the room of M. E. Spencer the officers found 33 pints of bonded whisky. They went to the living room of the defendant and found no intoxicating liquor of any kind. No whisky was found in any other part of the hotel.

The state in order to maintain the charge against the defendant called the officers who made the search to testify to the quantity of whisky found, and where it was found. There is no dispute that the quantity of whisky was found in the room at the hotel occupied by M. E. Spencer, the clerk at the hotel. The defendant’s room was near Spencer’s room. The partition door between the room of the defendant and Spencer’s room was bolted. There is no evidence showing it was ever used by parties back and forth regularly. There is no testimony in the record showing that the defendant had any knowledge that the whisky found by the officers was in Mr. Spencer’s room. All the testimony tends to show the defendant had always instructed his employees they must not keep any whisky about the hotel, and if he found they were doing so they would be immediately discharged.

The testimony of the state fails to disclose the defendant had anything to do with the whisky, and did not know it was there, or that during the years he had been manager and proprietor he had sold any whisky, and that he had no knowledge that the whisky was being sold from the hotel. Some of the officers testify they had talked with the defendant about the hotel and told him it was rumored that whisky was being sold at the hotel, and they all admit the defendant told them that if they could get any proof or information showing whisky was being sold there, he would prosecute the parties himself and discharge them from his employ.

The only circumstance which .in any way whatever tends to connect the defendant with the whisky is that he was the manager and proprietor of the hotel in which the whisky was found in room 229. Leo Connor, the porter, testified to the whisky being in this room, but he says the defendant knew nothing about it. Mr. Spencer testified to the whisky being in his room and states the defendant had no knowledge of it being there.

Several witnesses were called by the state and asked if they had heard whisky could be bought at the Grand Hotel and stated they had heard rumors that whisky could be bought at the hotel, but they all admit they had no knowledge of the fact that it could be bought there, and had never seen or heard of the defendant handling whisky in any way. One of the officers testified in substance that at one time he saw a fellow in front of the hotel intoxicated, but he did not know where the fellow got his whisky, and there were other places where he could have secured the same.

The defendant testified in his own behalf and states clearly the facts pertaining to the whisky found, and absolutely denies any knowledge the whisky was in the room, and states he had not been in the room for several months where the whisky was found. Many witnesses testify to the defendant’s good character as being a law-abiding citizen.

The foregoing is the substance of all the testimony it is deemed necessary to set out in this opinion in order to reach a proper conclusion as to the guilt or innocence of the defendant.

The defendant has assigned 15 errors alleged to have been committed by the trial court, which he deems sufficient to warrant this court in reversing his case. After a careful study and consideration of the facts in the record, the only errors it is deemed necessary to consider are the following:

“(1) That the court erred in overruling the motion in arrest of judgment, and for a new trial of the plaintiff in error.
“(6) The court erred in overruling plaintiff in error’s demurrer to the evidence of the defendant in error.
“(7) The verdict rendered in said cause is contrary to the law.
“ (8) The verdict rendered in said cause is contrary to the evidence.”

At the close of the testimony the defendant demurred to the evidence on the ground that the same was insufficient to sustain a conviction; which demurrer was overruled and the defendant reserved an exception. The evidence as offered tending to connect the defendant with the offense charged was entirely circumstantial. The court fully instructed the jury as to the weight it was to give to circumstantial evidence. From an analysis of the evidence it will be seen that the whisky was actually found in room 229, a room occupied by M. E. Spencer, a clerk in the hotel; that M. E. Spencer had occupied this room for some time. It is further shown that the defendant in this case did not exercise any supervision or control over this room excepting such as might be incidental as manager and operator of the hotel. It was quite possible for whisky to be taken into this room or removed therefrom without the proprietor of the hotel being aware of the condition existing.

The defendant denied positively any knowledge of the presence of the whisky or any interest therein.

Considering the testimony of the defendant and his positive denial that he knew of the whisky being in Spencer’s room, and that he had no interest in the whisky, and the fact that the testimony of the different parties as to the reputation of the defendant, and that he had at all times during the time he was proprietor and manager of the hotel co-operated with the officers and advised them that if they had information that whisky was being handled in the hotel, he would prosecute the parties and discharge them from his service. This being true, we hold that the evidence-in this record does not meet the standards of proof that have been heretofore prescribed by this court in previous decisions and is insufficient to sustain the conviction. Harrell v. State, 33 Okla. Cr. 364, 244 P. 457; Williams v. State, 38 Okla. Cr. 370, 261 P. 977; Dorsey v. State, 44 Okla. Cr. 7, 279 P. 917; Craigo et al. v. State, 64 Okla. Cr. 362, 81 P. 2d 336.

In Owens v. State, 11 Okla. Cr. 113, 143 P. 204, in the first paragraph of the syllabus this court said:

“As a general rule, verdicts which have received the approval of the trial judge will not be disturbed when supported by evidence sufficient to make out the offense. However, when the evidence is all carefully considered and it appears that it is wholly wanting in respect to some essential element of the offense charged, the judgment will be reversed as insufficient to sustain the conviction.

In Cude v. State, 42 Okla. Cr. 357, 276 P. 240, in the third paragraph of the syllabus the court said:

“Upon the overruling of a motion for a new trial by the trial court upon the ground that there is no evidence to support the verdict, when the overruling of such motion was properly excepted to and preserved in the record, and is made a basis of an assignment of error, it is the duty of the appellate court to review the evidence; and, if the record discloses there is no evidence to support the verdict, a new trial should be granted.”

Where the state relies for a conviction upon circumstantial evidence, the facts proven must be such as to exclude every reasonable hypothesis other than the guilt of the defendant of the offense charged in order to sustain a conviction.

Where an attempt is made by the state to convict a person and hold him criminally responsible for his employee, it must be shown that such act was reasonably within the scope of the agent’s employment or was an act done within the course of the principal’s business. Simpson v. State, 14 Okla. Cr. 484, 173 P. 529.

In connection with the evidence showing whisky was found in M. E. Spencer’s room 229, of the hotel operated and managed by the defendant, it was the duty of the jury to take into consideration the presumption of innocence of the accused which follows him throughout the trial until the contrary is proved beyond a reasonable doubt. In our opinion the evidence in this case does not meet this requirement, and for this reason we think it would have been the proper exercise of the power vested in the trial court to have advised and directed the jury to return a verdict of not guilty, on the ground that the evidence was insufficient to connect the defendant with the offense charged.

There are other errors assigned that possess merit but the view we take of this record it is not deemed necessary to consider them. For the reasons stated herein the judgment is reversed and cause remanded with directions to dismiss.

DOYLE and BAREFOOT, JJ., concur.


text:
    GENE HASKETTE v. STATE.
    No. A-9397.
    Dec. 22, 1938.
    (85 P. 2d 761.)

      Charles G. Ozmun, of Lawton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Victor Eckler, Co. Atty., of Waurika, for the State.
   BAREFOOT, J.

The defendant was charged by information in Jefferson county, Okla., with the larceny of an automobile on the 9th day of September, 1935; was tried, convicted and sentenced to serve a term of five years in the penitentiary, and has appealed.

It is urged for reversal of this case:

(a) Statements made by the county attorney in his closing argument to the jury.

(b) That the evidence was insufficient to convict defendant, and the court erred in failing to sustain the demurrer to the evidence.

These two errors may be considered together.

The evidence on the part of the state revealed that Mrs. Tommy Kier, who resided in Waurika, Jefferson county, Okla., drove her father, P. W. Denny’s, car to a certain store building in the city of Waurika, where her husband worked. She stepped into the store after parking near the front. She remained in the store some five minutes waiting for her husband, and when she returned to where she had parked the car it was gone.

During the time Mrs. Kier was in the store two young men came in; one wearing a jacket, the other in his shirt sleeves. One asked for a drink of water, and the other purchased some tobacco and later came back and asked for some matches. This party was positively identified by Ted Alford, who was employed in the store, as being the defendant in this case, Gene Haskette. These parties left the store immediately and prior to the time Mrs. Kier left and found her car missing. The car was recovered about two weeks thereafter in the town of Montague, Montague county, Tex., and considerable damáge had been done thereto.

L. E. Colston, a farmer, living five miles west of Hastings, and at a point between Hastings and Temple, about 17 miles west of Waurika, this being the same direction the officers tracked the car that was taken from Waurika, had left his car parked on the highway and saw two young men stop where his car was parked. He was about 250 or 300 feet from them and when he holloed they jumped in their car and speeded away. Upon investigation he found that they had taken the license tags from his car. He was unable to identify defendant as one of the parties because of the distance, but his description of them compared favorably with a general description of the defendant.

On the night of September 10, 1935, the night after the car was stolen from Waurika, defendant, Gene Haskette, and a boy named Raymond Doldy, were found by officers of Wichita Falls, Tex., driving this stolen car upon the streets of Wichita Falls. Defendant was arrested, charged with speeding and was later released and permitted to return to his home. The other boy, Raymond Doldy, was not held and was permitted to go with the car. The car, some two weeks later, was found in Montague county, Tex. When returned to Waurika it had on it the tags taken from the car of Mr. Colston, between Hastings and Temple, on the evening of September 9, 1935. This car was identified at the trial by officers from Wichita Falls, Texas, as being the same car the defendant was driving at the time he was arrested on the streets of Wichita Falls on the night of September 10, 1935, and charged with speeding. The evidence disclosed that Raymond Doldy and defendant both resided in Wichita Falls, and lived in close proximity to each other.

After defendant was arrested and brought to Waurika by the undersheriff of Jefferson county, this officer testified that defendant told him: “A. He said on that day he was working out over at Archer, Tex., south of Wichita Falls on a little oil well for a man named Herman Frazier, I believe he said his name was.” There was no denial of this statement.

The defendant’s defense was what is known in law as an alibi.' Six witnesses, all but one of them being relatives of defendant, testified that defendant was at his home in Wichita Falls, Tex., on September 9, and 10, 1935; that he was sick on the 9th and in bed practically all of the day and did not get up until some time Tuesday, September 10th. The defendant put up a good alibi, and if the jury had believed him they would have acquitted him. He did not take the witness stand in his own behalf as he had a right not to do under the law.

From the above statement it will readily be seen that there was a direct conflict in the evidence of the state and the defendant. The court instructed the jury that the state depended upon circumstantial evidence for a conviction, and defined circumstantial evidence to the jury. An instruction was given by the court outlining the defense of an alibi, and the jury were instructed that they were the sole judges of the credibility of the witness and from all of the evidence they were to decide where the truth lay.

It has been the uniform holding of this court, that where the evidence is conflicting, and that offered by the state is sufficient to uphold the verdict of the jury, that the same will not be set aside on appeal. The reason for this rule is that the jury hears and sees the witnesses upon the stand, has the opportunity to observe their demeanor, and are therefore in a much better position to decide questions of fact than the appellate court. And while this court has the power to set aside the verdict of the jury, the facts in this case do not appeal to us as one where that right should be exercised.

It is further contended that this case should be reversed by reason of the following proceedings during the final argument of the county attorney:

“By the Court: The County Attorney turns around and faces the jury and calls him a thug. To which the defendant objects and objection sustained and jury admonished not to consider it. Mr. Eckler: Yes, we would identify him, he knows that is the dirty scamp right there. Mr. Ozmun: We object to that as improper argument and highly prejudicial to the rights of this defendant. The Court: Sustained. You can make just as effective an argument without saying that about the defendant, don’t turn around. Mr. Eckler: Exceptions. Mr. Eckler: (Addressing the jury) I am sorry, gentlemen, if I have said anything not supported by the evidence and borne out by the record in this case, and I ask you men to disregard it if I have. Mr. Eckler: Take a look at this fellow, take a fellow like that, who would steal a car and if you tried to stop a fellow like that he would kill you. Mr. Ozmun: We object to that as trying to prejudice the jury against the defendant. The Court: Overruled. Mr. Ozmun: Exceptions.”

The main case relied upon by defendant in his brief is the case of Mooney v. State, 76 Tex. Cr. R. 539, 176 S.W. 52. We have carefully read this case and fail to see that it sustains the contention of defendant. The court, in that case, quoting from the case of Pierson v. State, 18 Tex. App. 524, says [page 57]:

“We can perceive no impropriety in them. It was the duty of the district attorney, if he thought the evidence established the guilt of the defendant, to demand his conviction. He demanded a conviction in the name of the state, in the name of law, justice, and right, in the name of society, in the name of the widow and children of the deceased. We see nothing wrong in this. If the defendant committed the murder, he had acted against the peace and dignity of the state; he had outraged law, justice, right, and society; he had clothed the wife in widow’s weeds, and had made fatherless the children of the deceased; and each and all of these consequences of his crime demanded his conviction and punishment. It has become quite common to except to the remarks of counsel for the state in their addresses to the jury. We find such exceptions in the majority of contested cases that come before us. If we had sustained all these exceptions, the effect would have been to have virtually closed the mouths of prosecuting attorneys. While argument should be restricted legitimately, it should not be so unreasonably limited as to render it ineffectual. The state has rights in this respect as well as defendants. And, in view of the frequency of exceptions of this character, we will take occasion here to say that, before we will reverse a conviction because of remarks of prosecuting counsel, it must clearly appear to us: (1) That the remarks were improper; and (2) that they were of a material character, and such as, under the circumstances, were calculated to injuriously affect the defendant’s rights.”

The court then quotes from, and cites many Texas cases, and says:

“Mr. Branch in his Criminal Law, § 62, p. 32, states another rule:
“ ‘Unless the remarks of counsel are obviously of a nature to impair the rights of defendant, or prejudice his case before the jury, such remarks though improper, will not be considered for reversal, unless a charge was asked and refused and exception reserved. Kennedy v. State, 19 Tex. App. [618] 634; Young v. State, 19 Tex. App. [536] 543; Jones v. State, 33 Tex. Cr. R. [7] 8, 23 S.W. 793; Lancaster v. State, 36 Tex. Cr. R. 16, 35 S.W. 165; Dies v. State, 56 Tex. Cr. R. [32] 36, 117 S.W. 979; Mason v. State, 15 Tex. App. [534] 549; Felder v. State, 59 Tex. Cr. R. 144, 127 S.W. 1055; Rahm v. State, 30 Tex. App. [310] 313, 17 S.W. 416, 28 Am. St. Rep. 911; Hatchell v. State, 47 Tex. Cr. R. [380] 385, 84 S.W. 234; Garello v. State, 31 Tex. Cr. R. [56] 61, 20 S.W. 179; Vann v. State, 48 Tex. Cr. R. [11] 15, 85 S.W. 1064; Wright v. State, 37 Tex. Cr. R. 146, 38 S.W. 1004; Franklin v. State, 38 Tex. Cr. R. [346] 347, 43 S.W. 85.’
“It is true this court has reversed some cases where even such charge was given. But they are exceptions, not a rule. Appellant cites some of them. Each case in this respect must rest on its own facts.”

The two Oklahoma cases relied upon by defendant, Perdue v. State, 40 Okla. Cr. 9, 266 P. 514, and Haynes v. State, 45 Okla. Cr. 172, 284 P. 74, do not support the contention of defendant. The Perdue Case does not involve the question under consideration, but is decided on an entirely different proposition. The Haynes Case was a liquor case, where defendant was given five years in the penitentiary, and a fine of $500. This sentence was reduced to a term of one year, and a fine of $500. The facts in that case are not at all similar to the facts in the instant case.

The remarks of the county attorney in his argument should contain a full discussion of the issues involved in the case, and the legitimate argument on the part of the defendant. His argument will be considered and construed in reference to the evidence, and in order to constitute reversible error the impropriety indulged in must have been such as may have influenced the verdict. Williams v. State, 4 Okla. Cr. 523, 114 P. 1114; Morgan v. State, 9 Okla. Cr. 22, 130 P. 522; Sweet v. State, 51 Okla. Cr. 202, 300 P. 418; Brown v. State, 52 Okla. Cr. 307, 4 P. 2d 129; Gee v. State, 53 Okla. Cr. 383, 12 P. 2d 547; Baxter v. State, 43 Okla. Cr. 33, 277 P. 287; Harmon v. Territory, 15 Okla. 147, 148, 79 P. 765.

The court sustained the objection of counsel for defendant to the argument of the county attorney. The jury was admonished to not consider it. The court, in sustaining the objection, said:

“You can make just as effective an argument without saying that about the defendant.” Smith v. State, 6 Okla. Cr. 380, 118 P. 1003; Gunnells v. State, 7 Okla. Cr. 98, 122 P. 264; Gardner v. State, 5 Okla. Cr. 531, 115 P. 607.

The county attorney, according to the record, asked the jury to disregard anything he said that was not supported by the evidence. The defendant was given the minimum punishment provided by the statute. St. 1931, § 1891, 21 Okla. St. Ann. § 1720. There is nothing to indicate that the jury was influenced by passion or prejudice.

It is the judgment of the court that the sentence in this case should be affirmed, and it is so ordered.

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


text:
    FREEMAN DAVIS v. STATE.
    No. A-9503.
    Dec. 29, 1938.
    (86 P. 2d 65.)

      C. D. Wilkinson and Tom Finney, both of Idabel, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

In this case Freeman Davis, the defendant, was by information charged in the county court of McCurtain county with the crime of the unlawful possession of whisky, with the willful and unlawful intent on the part of him, the said Freeman Davis, to violate the prohibitory liquor law.

The case was called for trial on the 27th day of September, 1937, the same being a regular day of the July term of the county court of McCurtain county. The defendant filed his motion for a continuance, on the ground that his wife, Mrs. Carrie Davis, who had been regularly subpoenaed as a witness, was unable to attend on account of sickness. The motion for continuance was sworn to by the defendant, Freeman Davis; attached to the motion was a sworn certificate of Dr. R. H. Sherrill, who states in the certificate;

“This is to say I was called to see Mrs. Carrie Davis, of Broken Bow, today. She had a temperature of 102; severe cough and bronchitis. She will not be able to attend your court tomorrow.”

This statement was addressed to Judge Walter Scott, Idabel, Okla., and properly sworn to before Major M. Dean, notary public. The motion for continuance was by the court overruled, and the defendant reserved an exception.

The defendant then asked permission to withdraw his plea of not guilty, for the purpose of filing a demurrer to the information in this case.

“By the Court: Any objection to that, Mr. County Attorney? Mr. Phillips: Not to withdraw his plea. The Court: He wants to file a demurrer. I believe I will overrule the motion. Defendant: Exceptions. Exceptions allowed. By Mr. Wilkinson: And ask that he be permitted to file a demurrer. By the Court: Which request is by the court refused and exceptions allowed. By Mr. Wilkinson: At this time we again enter our plea of not guilty.”

When the plea of not guilty of the defendant was withdrawn the defendant offered to file a demurrer to the information, which the court refused, and defendant reserved an exception.

The defendant then filed a motion to suppress the testimony on the ground that the same was illegally obtained by return of an illegal and void search warrant. Attached to the motion to suppress the evidence was a copy of the affidavit for the search warrant, and the search warrant. The first paragraph of the affidavit for the search warrant, omitting the caption, is as follows:

“I, Howard Phillips, county attorney do solemnly swear that I have reasonable grounds to believe and do believe that Freeman Davis has in his possession large quantities of whisky, intoxicating liquor, mixtures and compounds, the exact name and description of which is to this affiant unknown, but that said whisky, intoxicating liquors, mixtures and compounds are capable of being used as a beverage, and that the possession of said whisky, liquors, mixtures and compounds is in violation of the prohibitory liquor laws of the state of Oklahoma, and is possessed and kept by the said Freeman Davis, at, in and upon the premises occupied by the said to wit:
“In his house, outhouses, residence and other immediate premises, located and described as S.W.^ and E.% of N.W.% of sec. 17, twp. 6, range 25 E.”

In the next paragraph in the search warrant Howard Phillips, county attorney, makes this statement:

“Affiant further states under oath that the above described place and premises is a place of public resort; that people are seen going to and from said premises and said place at all hours of the day and night in an intoxicated and semi-intoxicated condition; that people gather at said place and premises and while there become intoxicated, and that said place and premises is a place where large quantities of whisky, and other intoxicating liquors, the exact description of which is to this affiant unknown, are possessed, kept and stored for the purpose of sale and violation of the prohibitory liquor laws of the state of Oklahoma; that the said Freeman Davis has a general reputation throughout the community in which he lives for being a bootlegger of whisky and intoxicants; that the place and premises above described is generally known to be a place where whisky and other intoxicating liquors can be purchased by the general public; and”

The defendant in this case is charged with the unlawful possession of intoxicating liquors with intent to violate the prohibitory liquor laws of the state of Oklahoma. In the last paragraph of his affidavit he says the place to be searched is a place of public resort, that people are seen coming to the premises at all hours of the day and night in an intoxicated and semi-intoxicated condition, and that the place is a place where large quantities of intoxicating liquors, the exact description of which is to this affiant unknown, are possessed, kept and stored for the purpose of sale, barter, giving away or otherwise furnishing the same to others. A reading of the affidavit for the purpose of procuring a search warrant shows clearly upon its face that the affidavit is made on information and belief and not upon any knowledge of the county attorney making the affidavit, as in the second paragraph of the affidavit for the search warrant he undertakes to describe and state what the facts are as to the place being a place of public resort.

The defendant is not charged with maintaining a nuisance but is charged with the unlawful possession of eight pints of intoxicating liquors.

Art. 2, sec. 30, of the Bill of Rights, Okla. St. Ann. Const, art. 2, § 30, is as follows:

“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.”

Section 3224, O.S. 1931, 22 Okla. St. Ann. § 1224, is as follows:

“The magistrate must, before issuing the warrant, take, on oath, the complaint of the prosecuting witness in writing, which must set forth the facts tending to establish the grounds of the application, or probable cause for believing that they exist.”

Section 2635, O.S. 1931, 37 Okla. St. Ann. § 84, defines what is necessary for the issuing of a search warrant, and how the same should be served. The affiant should swear to facts showing probable cause for his belief. That does not mean that the affiant must know positively that a person is a thief, or has liquor in his possession. To make an affidavit based upon knowledge of guilt would in many instances be impossible, but the affidavit should be based upon such facts as the belief is founded. The records of this court have demonstrated over and over again that most sheriffs and peace officers (also some county attorneys) do not comprehend the true purpose and requisite features of an affidavit for a search warrant. To obviate this conception we make the following explanation.

In Baker v. State, 28 Okla. Cr. 408, 231 P. 320, the court there stated:

“In every instance the affidavit should state some fact or facts showing probable cause, as a basis or foundation for an affiant’s belief.”

In Baker v. State, supra, the court incorporated a form of affidavit, which has been approved by this court, and is as follows:

“State of Oklahoma, Nowata County—ss.: I, O. J. Kemerer, do solmnly swear that six windows, one door, 25 bushels of wheat and 15 bales of hay have been stolen from and carried away from the premises of A. B. Reynolds; that affiant has reason to believe, and does believe, that the described stolen property is secreted in the possession of Harry Baker at his residence (describing the location of the residence); and for cause for said belief affiant says that there were tracks leading from where the property was stolen towards, or to, the premises of Harry Baker; (or that one-saw property of this character being conveyed to the premises of Harry Baker; or that Harry Baker has recently come into possession of property of this description ; or that Harry Baker made statements to others indicating that he had design to take this property; or any other facts as a basis for such belief).
“Wherefore, affiant asks that a search warrant issue for the discovery and seizure of this property, and for the arrest of Harry Baker to be brought before the court to be dealt with according to law.
“0. J. Kemerer.”
(Sworn to before some officer)

With such an affidavit, if the facts or any of the facts stated therein are false, the aggrieved person could redress the wrong done him by having the affiant prosecuted for perjury; but not so where the affiant states a mere naked belief. One may believe, and swear that he believes, that a person is a thief, a bootlegger, a narcotic peddler, or a maker of counterfeit money, without having any tangible reason for such belief; unless facts are stated, the existence of sufficient reason for his belief would not be susceptible of proof. If a complaining witness is unable to state facts to support his belief, he should refrain from making- the affidavit. If the rule were otherwise, it would permit the homes and privacy of innocent people to be invaded without affording a remedy, because the maker of an affidavit which states only a belief, amounting to no more than a suspicion, cannot be prosecuted for perjury. In the very nature of things it is impossible to disprove what a man says he believes.

In this case the county attorney makes the affidavit and says he has reason to believe and does believe that certain things exist, but he sets forth no facts in any part of the affidavit to disclose that he has positive knowledge of any violation by the defendant, and it is apparent from the language used in this affidavit that the affiant did not personally know that the home of the defendant was a place of public resort; that he did not know people went there in the daytime and nighttime and came away intoxicated; and, that he did not personally know that the home of the defendant was a place where large quantities of whisky and other intoxicating liquors were possessed and kept by the defendant for the purpose of sale, in violation of the prohibitory liquor laws of the state. The statement in the affidavit that Freeman Davis has the general reputation throughout the community in which he lives as being a bootlegger of whisky and intoxicating liquors is not a sufficient charge or statement of fact of affiant upon which to base a search warrant to search the home of the defendant for possession of intoxicating liquors, and the defendant is not charged with maintaining a nuisance. We do not believe the county attorney will insist that when he made the affidavit to secure the search warrant that all the statements in the affidavit made by him under oath were within his knowledge at the time he made the affidavit.

The sheriff, the county attorneys and many others make affidavits for the purpose of securing a search warrant that have many statements there that are not within their knowledge. They do not seem to realize that it is as much the duty of the officer to confine himself to the law and state facts when he applies for a search warrant as it is for the violator of the law to refrain from such violation.

The affidavit in this case does not measure up to what the court states in Baker v. State, supra, should be set forth in an affidavit to secure a search warrant. If the affiant in this case had made a positive statement charging the defendant with the violation of the prohibitory liquor laws, which proved to be false, then the defendant would have some recourse against the party making the affidavit. Where the affidavit states a mere naked belief that he believes the person is a thief, bootlegger or counterfeiter, or that he has intoxicating liquors in his possession for the purpose of bartering, selling, giving away or otherwise furnishing, without giving any reason for such belief, his belief would not be susceptible of proof. If the complaining witness is unable to state some facts supporting his belief he should refrain from making the affidavit. The lawmakers of our state wisely enacted provisions of the law necessary to search the home when a person is thought to be violating the law, and this procedure should be strictly followed. If a party is permitted to make an affidavit on information and belief without any knowledge of a violation, it would permit the home and privacy of innocent people to be searched without a remedy, because the making of an affidavit that states only information and belief amounts to no more than a mere suspicion, and a party making the affidavit cannot be prosecuted for perjury. It is impossible to disprove what a witness states he believes.

We regret to say that many officers and individuals when they desire to prosecute a party for possession of intoxicating liquors will make an affidavit for a search warrant to search the home of a defendant to see if he has possession of intoxicating liquors, on information and belief, without having any positive evidence of facts upon which to predicate the affidavit they file for the purpose of securing the search warrant, and will recite the defendant is guilty of many other violations of the prohibitory laws without giving any positive facts upon which to predicate the affidavit. These charges when made without any knowledge of the affiant making them are not sufficient to warrant a court of competent jurisdiction to issue a search warrant. Many good men in their ambition to get to prosecute some one they believe to be handling whisky will so far forget themselves as to make an affidavit on information and belief, and then make statements in it entirely without any knowledge on their part, and expect the courts of this state to sustain them in their misstatements. Howell v. State, 33 Okla. Cr. 292, 243 P. 997; Wiese v. State, 32 Okla. Cr. 203, 240 P. 1075; McClary v. State, 34 Okla. Cr. 403, 246 P. 891; Kohler v. U. S., 9 Cir., 9 F. 2d 23.

In the case of Reutlinger v. State, 29 Okla. Cr. 290, 234 P. 224, this court said:

“The finding of probable cause, as well as the issuing of the search warrant is a judicial function to be exercised by the magistrate alone, upon the sufficiency of the facts stated in the affidavit, which should have the force and effect of evidence, as distinguished from the mere conclusions of the affiant.”

The court erred in overruling the motion of the defendant to suppress the evidence, for the reason that the affidavit failed to state facts sufficient to authorize the court in issuing the search warrant.

Several other errors have been assigned by the defendant, the first being: “The court erred in overruling plaintiff in error’s motion for a continuance.”

The record discloses when the case was called for trial the defendant filed a motion for continuance on account of the absence of his wife, Carrie Davis, setting forth the fact she was sick and unable to attend court, and what she would testify to if present. His motion for continuance was sworn to, and a sworn certificate of Dr. R. H. Sheriff was attached, in which it was shown that Carrie Davis was unable to attend court. The defendant also alleged in his motion that her testimony was material to his defense. The motion also showed that Carrie Davis had been regularly subpoenaed, which was not disputed by the state, and that she was unable to attend at the time the motion was filed. It is true the defendant did not attach to his motion for continuance the subpoena showing it had been served on Carrie Davis, and did not state just when she would be able to attend, but in view of the fact that the defendant’s wife lived near the county seat, and it was shown by two witnesses she was sick and unable to attend court, which was not disputed by the state, we hold that while the motion for continuance is within the sound discretion of the court, yet upon the showing made here the court should have granted a continuance for at least a sufficient time to show whether or not Carrie Davis was ill, or the state should have filed some contradictory statement showing the statement in the motion for continuance was untrue.

There was a motion filed asking the trial judge to disqualifiy, which was overruled by the trial judge, and he proceeded with the trial of the case. The record shows the judge proceeded to hear the motion to suppress the evidence on the ground that it was secured by an unlawful search and seizure, and in that hearing the judge overruled the motion to suppress the evidence. This court has often held that the issuing of a search warrant, and the passing upon the motion to suppress is a judicial function, but we do not think it sufficient to disqualify the court in presiding at the trial.

The defendant complains that in his closing argument the county attorney indirectly referred to the defendant who did not testify in the case, as follows:

“By Mr. Wilkinson: At this time comes the defendant and objects to the remarks of the county attorney in his closing argument in this case, which remarks and language are as follows, to wit: Gentlemen of the jury, if you were caught with eight pints of whisky what would you say about it. By Mr. Phillips: We object to that. By Mr. Wilkinson: No. I don’t care what you do, I want that in the record. By Mr. Phillips: That record is not right. Excuse the jury.”

The jury was excused, and Mr. Wilkinson made the following statement:

“Gentlemen of the jury, if you were caught with eight pints of whisky, what would you do. By Mr. Phillips: Yes, that is it. By Mr. Wilkinson: That the language used by the county attorney is a reflection and a comment by the county attorney upon the fact that the defendant did not take the witness stand and testify in this case. By Mr. Phillips: Mr. Wilkinson, the defendant’s attorney, asks the jury in substance if they were caught— By the Court: That is not in evidence. I think I shall call the jury and instruct the jury to disregard that closing statement wherein he asks what they would do. By the Court: Gentlemen of the jury, for legal reasons, those under the law, the court is going to instruct you further that in the consideration of this case you are not to take into account the statement made by the county attorney wherein he asks you the following words: ‘Gentlemen of the jury, what would you do?’ ”

It is apparent form the action of the court that he felt the county attorney had indirectly referred to the defendant not having taken the witness stand.

This question has been before this court on many occasions, commencing with Brown v. State, 3 Okla. Cr. 442, 106 P. 808, wherein this court held:

“Where the defendant upon his trial fails to testify in his own behalf, and the prosecuting attorney comments on his failure to the jury, such comments constitute ‘reversible error.’ ”

In Nowlin v. State, 7 Okla. Cr. 27, 115 P. 625, 121 P. 791, it is held:

“It matters not what we may think of the policy of this statute. It is mandatory, and therefore we have no discretion in the matter, but it is our plain duty to enforce it. It must not be violated, directly or indirectly, either in its letter or its spirit.” Weinberger v. State, 8 Okla. Cr. 441, 128 P. 160.

There can be no question but that the county attorney in his closing argument to the jury referred in substance to the defendant failing to testify. It was an improper argument, and while the court, on its own motion, called the jury in and directed it to disregard this statement, or a part of the statement shown to have been made by the county attorney. This statement of the county attorney alone would not be sufficient for the court in reversing the case, but it is sufficient for the court to say that the county attorney should refrain from making any remarks outside of the record that would in any way whatever tend to refer to the defendant, where he had not testified. From the time this case was called for trial up to the closing argument of the county attorney, it is clearly shown that the trial court and the county attorney had in mind the defendant must be convicted.

For the error of the court in denying and overruling the motion of the defendant to suppress the evidence; and overruling and denying the defendant his motion for a continuance on the facts disclosed by the record; and the statement admitted by the county attorney that he made in his closing argument, we hold there is no competent evidence to sustain the conviction, and that the defendant was denied that fair and impartial trial guaranteed to him by the Constitution of the state of Oklahoma, and its laws.

For the reasons herein stated the judgment of the trial court is reversed.

DOYLE, J., concurs. BAREFOOT, J., not participating.