text:
    BUTCH KILLION v. STATE.
    No. A-4416.
    Opinion Filed Dec. 22, 1923.
    (221 Pac. 112.)
    Appeal from County Court, Kay County; H. S. Burke, Judge.
    Butch Killion was convicted of the unlawful transportation of intoxicating liquor, and he appeals.
    Affirmed.
    Sargent & Carr, for plaintiff in error.
    The Attorney General for the State.
   PER CURIAM.

Plaintiff in error, Butch Killion, was convicted in the county court of Kay county of the illegal transportation of intoxicating liquor, and his punishment fixed at a fine of $50 and confinement in the county jail for a period of 30 days. The appeal was lodged in this court on July 21, 1922.

The cause was finally submitted on November 8, 1923. No brief has been filed in behalf of plaintiff in error, and no appearance was made to orally argue the cause at the time of its submission. Under rule 9 of this court this appeal may therefore be considered as abandoned.

However, we have examined the record, and find there is sufficient evidence to support the verdict and that the accused in other respects was accorded a fair trial.

The judgment of the trial court is therefore affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    RED McGOVERN v. STATE.
    No. A-4395.
    Opinion Filed Dec. 22, 1923.
    (221 Pac. 1118.)
    Appeal from County Court, Oklahoma County; W. R. Taylor, Judge.
    Red McGovern was convicted of unlawfully conveying intoxicating liquor, and he appeals.
    Affirmed.
    O. P. Estes, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error, Red McGovern, was convicted in the county court of' Oklahoma county of the offense of unlawfully conveying intoxicating liquor, and punishment fixed at imprisonment in the county jail for a period of 30 days and to pay a fine of $50. Judgment was rendered on the 6th day of March, 1922. A proper extension of time having been allowed, the appeal was lodged in this court on the 3d day of July, 1922. The cause was finally submitted on the 8th day of November, 19231 No brief has been filed in behalf of plaintiff in error, and no appearance was made to orally argue the cause at the time it was submitted. Rule 9 of this court provides: “When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment.”

After an examination of the pleadings, the instructions of the court, and the judgment and sentence, the court finds that no prejudicial error occurred sufficient to authorize a reversal of this judgment, and the same is therefore of-firmed.


author: DOYLE, J.

text:
    HUGH RUSSELL v. STATE.
    No. A-4274.
    Opinion Filed Dec. 26, 1923.
    221 Pac. 113.)
    (Syllabus.)
    1. Intoxicating Liquors — Unlawful Possession — Insufficient Evidence. In a prosecution for unlawful possession of intoxicating liquor, evidence held insufficient to sustain a conviction.
    2. Evidence — Liquor Obtained by Illegal Search Inadmissible. Liquor obtained by a search of defendant’s premises under a search warrant issued without authority of law, for the sole purpose of obtaining evidence against him, in violation of Bill of Rights, § 30, guaranteeing the security of the people, in their right to be exempt in their persons, houses, papers, and effects from unreasonable search and seizure, is inadmissible against him.
    Appeal from County Court, Harmon County; E. C. Abernathy, Judge.
    Hugh Russell was convicted of the unlawful possession of intoxicating liquor, and he appeals.
    Reversed.
    C. H. Madden, for plaintiff in error.
    George F. Short, Atty.‘ Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that Hugh Russell did have in his possession two gallons and three quarts of corn whisky with intent to sell the same. Upon the trial appellant was by verdict of the jury found guilty, without assessing the punishment. Motion for new trial was duly filed. January 28, 1922, the motion was overruled, and the court sentenced appellant to confinement in the county jail for 30 days, and to pay a fine of $250 and costs. He appeals to this court for a reversal of the judgment because of the admission of incompetent evidence over his objections and insufficiency of the evidence to support the verdict.

It appears from the record that the sheriff, accompanied by two deputies, went to the home of appellant, about 10 miles north of Hollis, in Harmon county, in executing a search warrant issued upon an affidavit made by the sheriff upon information and belief that intoxicating liquors aré being made, stored, and sold by Hugh Russell upon and about the premises described. Upon searching appellant’s premises, he being absent at the time, the officers found four one-half gallon jars of corn whisky in the crib barn covered with maize, and found two quart jars of whisky under a box in the harness house. Against defendant’s objections the officers were permitted to testify to these facts, and the jars of corn whisky so seized were offered as evidence.

As a witness in his own behalf Hugh Russell testified that he was a tenant farmer on J. W. Breedlove’s farm and was in Hollis at the time the officers made the search; that the maize in the crib belonged to his landlord’s son, who lived on the adjoining farm; that he had never been in the crib, and did not know that the corn whisky was there, did not know anything about the liquor found in the harness house, and did not know that there was any liquor on “the place; that a cotton picker and his family had lived in the shack about the same distance from the barn as his house.

The Breedloves, father and son, testified that the maize in the crib belonged to Russell Breedlove.

Six or seven witnesses qualified as character witnesses, having known the defendant from 10 to 25 years, and his general reputation and character as to being a law-abiding citizen, and that it was good.

It is contended for appellant that all the evidence offered by the state was incompetent because said evidence was obtained through an illegal search warrant. Section 30, art. 2 of the state Constitution, provides:

“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.”

This provision is the same as the Fourth Amendment to the federal Constitution, with the exception of the use of the word “or” in place of the conjunctive word “and.”

In Weeks v. U. S., 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177, it was said by Mr. Justice Day:

“The effect of the Fourth Amendment is to put the courts of the United States and Federal officials, in the exercise of their power and. authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, house, papers and effects against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not, and the duty of giving to it force and effect is obligatory upon all intrusted under our federal system with the enforcement of the laws. The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures and enforced confessions, the latter often obtained after subjecting accused persons to unwarranted practices destructive of rights secured by the federal Constitution, should find no sanction in the judgments of the courts which are charged at all times with support in the Constitution, and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.”

These provisions safeguard the citizen in his person, his home, and his property against unlawful and unreasonable search or seizure.

In Foreman v. State, 8 Okla. Cr. 480, 128 Pac. 1101, we said:

"The Bill of Bights is something more than a mere compilation of glittering generalities. Some of its provisions constitute a formal and public declaration of popular rights and liberties. The guaranty in article 2, § 30 (38 Williams’), •that the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated, should. be respected by all peace officers and law-abiding citizens. Section 7013 of the Enforcement Act (Comp. Stats. 1921) provides: ‘No warrant shall be issued to search a private residence, occupied as such, unless it, or some part of it, is used as a store, shop, hotel, boarding house, or a place for storage, or unless such residence is a place of public resort.’ And the statute is in accordance with the Bill of Bights.”

In the case of Gore v. State, 24 Okla. Cr. 394, 218 Pac. 545, it is held:

"A search warrant must not be issued except upon a showing of probable cause, supported by oath or affirmation, which must set forth the facts tending to establish probable cause. An affidavit stating mere 'conclusions, or made on belief without stating the facts, is insufficient, and a search warrant based upon such a showing is void.”

And:

"A search and seizure forcibly made under color of a void search warrant is an ‘unreasonable search and seizure’ within the meaning of section 30 of our Bill of Bights.”

And under the Bill of Rights it is held that the admission of evidence procured by an illegal search warrant was reversible error. The principle involved was by Judge Bes-sey in the opinion thoroughly discussed, and the authorities reviewed, and, so far as the same are applicable here it is unnecessary to again present them.

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

The judgment of the trial court is therefore reversed.

MATSON, P. J., and BESSBY, J., concur.


text:
    OLIN ROBINSON v. STATE.
    No. A-4906.
    Opinion Filed Dec. 26, 1923.
    (221 Pac. 1118.)
    Appeal from County Court, Hughes County; Owen H. Rives, Judge.
    Olin Robinson was convicted of transporting intoxicating liquor, and he appeals.
    Appeal dismissed.
    Hall & Pickens, for plaintiff in error.
   PER CURIAM.

Plaintiff in error, Olin Robinson, was convicted in the county court of Hughes county on a charge of unlawfully transporting intoxicating liquor from a certain point in Hughes county to the corner of Main street ¿nd Bullet street in Holdenville. In accordance with the verdict of the jury he was sentenced to be confined in the county jail for 30 days and to pay a fine of $50 and costs. From the judgment an appeal was perfected by filing in this court on November 5, 1923, petition in error with case-made. Counsel of record for plaintiff in error has filed a motion to dismiss the appeal, which shows that plaintiff in error is at this time serving the sentence. The motion is sustained, and the appeal herein is dismissed. Mandate forthwith.


author: BESSEY, J.

text:
    ELMER GREEN v. STATE.
    No. A-4375.
    Opinion Filed Dec. 26, 1923.
    (221 Pac. 116.)
    Appeal from County Court, Canadian County; W. M. Wallace, Judge.
    Elmer Green was convicted of the illegal sale of whisky, and he appeals.
    Modified and affirmed.
    J. N. Roberson, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, J.

Plaintiff in error, Elmer Green, here designated the- defendant, was convicted in the county court of Canadian county of having sold one-half pint of whisky, and his punishment was assessed by the court at a fine of $500 and 6 months’ imprisonment in the county jail. From the judgment he appeals.

The cause was submitted on the record on November 7, 1923. No brief has been filed in behalf of plaintiff in error, and, under rule 9 of this court, this appeal might be considered as abandoned.

However, we have examined the record- in this case and find that such record shows that this case was tried to the court without a jury; a jury having been waived. That the conviction rests solely upon the testimony of an enforcement officer, who says he purchased one-half pint of whisky from1 the defendant who was staying at a hotel in El Reno where the witness was a guest. The defendant was a disabled soldier, subsisting largely on compensation from the government, and living at this same hotel, where he rendered such services as his health would permit.

The defendant took the stand in his own behalf, and denied that he sold any whisky to this enforcement officer, or that he ever sold whisky to any one.

The court, sitting as a jury, found the defendant guilty, and assessed the maximum punishment of 6 months in jail and a line of $500, and the costs of the prosecution.

A court sitting as a jury has no more right than a jury would have to consider facts or circumstances not developed in the testimony, such as the reputation of the accused, whether or not he associated with law violators, or was an habitual criminal. In the meager testimony before us there was no such showing 'made. The evidence appearing in the record alone we do not think merits the extreme punishment imposed, indicating possibly that the court may have been influenced by the advice of officers or others to impose the extreme penalty.

The judgment of the trial court is ordered modified, fixing the punishment at 30 days in jail and a fine of $50, and as so modified is affirmed.

MATSON, P. J., and DOYLE, J., concur.


text:
    Ex parte JAMES LOCKHART.
    No. A-4976.
    Opinion Filed Dec. 26, 1923.
    (221 Pac. 119.)
    (Syllabus.)
    Habeas Corpus — One Convicted Under Unconstitutional Law Entitled to Discharge. A person who has been convicted of violating an unconstitutional law, and is imprisoned under such judgment of conviction, will be discharged on habeas corpus.
    Habeas corpus by James Lockhart for release from custody.
    Writ allowed, and petitioner discharged.
    R. C. Searcy, for petitioner.
    The Attorney General and N. W. Gore, Asst. Atty Gen., for respondent.
   DOYLE, J.

This is a petition for writ of habeas corpus for the discharge of James Lockhart, from the penitentiary at MeAlester, where it is alleged that he is unlawfully and illegally restrained of his liberty by the warden, J. H. Townsend; that the cause of said restraint is a commitment issued by the district court of Canadian county, James I. Phelps, judge, on a charge of setting up a distillery for the purpose of manufacturing corn liquor, which judgment was rendered upon a plea of guilty, entered by defendant on the 2d day of June, 1923, wherein he was sentenced to be confined in the penitentiary at MeAlester for the term of one year, and that he pay the costs; and alleging that said imprisonment is illegal because the act approved February 5, 1923. c. 1, Sess. Laws 1923, making it a felony to set up a distil-, lery for the purpose of manufacturing distilled spirits was held unconstitutional and void, as determined by the decision of this court in the case of In re D. E. Smith, 24 Okla. Cr. 415, 218 Pac. 708.

The Attorney General concedes that the writ should issue, and that the'petitioner is entitled to be discharged.

In the case of Ex parte Smith, supra, the statute on which this prosecution is based was held unconstitutional and void.

It follows that petitioner is unlawfully imprisoned and restrained of his liberty by the respondent, and that he is entitled to be discharged from the imprisonment of which he complains. He is, therefore, by the judgment of this court, discharged therefrom.

MATSON, P. J., and BESSEY, J., concur.


text:
    Ex parte JAMES BARRETT.
    No. A-4975.
    Opinion Filed Dec. 26, 1923.
    (220 Pac. 124.)
    (Syllabus.)
    Habeas Corpus — One Imprisoned Under Unconstitutional Law Entitled to Discharge. A person who has been convicted of violating an unconstitutional law, and is imprisoned under such judgment of conviction, will be discharged on habeas corpus.
    Habeas corpus by James Barrett for release from custody.
    Writ allowed, and petitioner discharged.
    R. C. Searcy, for petitioner.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for respondent.
   DOYLE, J.

This is á petition for writ of habeas corpus for the discharge of James Barrett from the penitentiary at McAlester, where it is alleged that he is unlawfully and illegally restrained of his liberty by J. H. Townsend, warden; that the cause of said restraint is a commitment issued by the district court of Canadian county, James I. Phelps, judge, on a charge of setting up a distillery for the purpose of manufacturing corn whisky. Said commitment was ussed on a judgment rendered May 5, 1923, wherein he was sentenced to be imprisoned in the penitentiary at McAlester for the term of two years and to pay a fine of $100 and the costs, alleging that said restraint is illegal and unauthorized, because the act approved February 5, 1923, (chapter 1, Session Laws 1923), making it a felony to set up a still for the purpose of manufacturing distilled spirits, was determined and held by the decision of this court in the case of In re D. E. Smith, 24 Okla. Cr. 415, 218 Pac. 708, to be unconstitutional.

The Attorney General concedes that the writ should issue, and that petitioner is entitled to be discharged.

In the case of Ex parte Smith, supra, the statute upon which this prosecution is based was held unconstitutional and void.

It follows that petitioner is unlawfully imprisoned and restrained of his liberty by the respondent, and that he is entitled to be discharged from the imprisonment of which he complains. He is therefore by the judgment of this court discharged therefrom.

MATSON, P. J., and BESSEY, J., concur.


text:
    Ex parte OLIN ROBINSON.
    No. A-4891.
    Opinion Filed Dec. 26, 1923.
    (221 Pac. 1118.)
    Petition of Olin Robinson for writ of habeas corpus.
    Cause dismissed.
    Hall & Pickens and G. Arthur Holloway, for petitioner.
    The Attorney General, for respondent,
   PER CURIAM.

This is a petition for writ of habeas corpus of Olin Robinson, to be admitted to bail pending an appeal from a judgment of the county court of Hughes county. A rule to show cause issued and before the cause was submitted counsel of record in open court moved to dismiss the same. It is therefore ordered that said cause be and is hereby dismissed.


text:
    MORT SALYER v. STATE.
    No. A-4414.
    Opinion Filed Dec. 28, 1923.
    (221 Pac. 118.)
    (Syllabus.)
    1. Evidence — Character of Defendant not Subject to Attack Unless He First Puts it in Issue. The state cannot attack the character or reputation of a defendant unless he first puts that in issue by introducing evidence of his good character.
    2. Trial — Reversible Error in Deliberate Improper Questions. Where the prosecuting attorney asks a defendant on cross-examination improper questions, and where the questions are asked without expectation of answers, and where the plain purpose is to prejudice the jury against the defendant, the judgment of conviction will be reversed, unless it appears that the questions could not have influenced the verdict.
    Appeal from County Court, Canadian County; W. M. Wallace, Judge. >
    Mort Salyer was convicted of a violation of the prohibitory liquor law, and he appeals.
    Reversed and remanded.
    J. N. Roberson and E. C. Patton, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this cause charges that Mort Salyer did unlawfully sell whisky to Bee De Monbrun. Upon his trial defendant was found guilty, the punishment assessed at six months in the county jail and a fine of $500. This appeal is from the judgment rendered upon such conviction.

Bee De Monbrun, the sole witness for the state, testified:

"I am a federal prohibition agent, stationed at Enid. I came to El Reno and stopped at the Central Hotel. Defend- . ant was running the hotel. The next day I asked defendant If I could buy a bottle of whisky. He called a fellow named Hennessey, and asked him if he could get some whisky, a half pint. Hennessey said, ‘I will not go for a half pint; get a pint.’ I says, ‘All right, I will take a pint.’ In a few minutes Hennessey came back, and defendant went into the wash room; then called me in and gave me the whisky. I gave him $3. He said, ‘I am not selling whisky.’ ”

His further examination by the county attorney is as follows:

“Q. This was the man you were after at that time? A. Yes, sir.
“Q. You knew who you were looking for? A. Yes, sir.
“Q. Knew that from reputation. (Defendant’s objection overruled.) A. Yes, sir.

The state rested, and defendant demurred to the evidence, and asked the court to instruct the jury to return a verdict of acquittal, which the court refused to do.

As a witness in his own behalf defendant testified:

“Mr. De Monbrun had a room at my hotel. I did not sell him any whisky on the 25th day of January last or any other time. I did not receive $3 from him for a bottle of whisky. I did not see Hennessey at the hotel at the time he testifies that Hennessey went after whisky.”

Complaint is made that defendant was prevented from having a fair and impartial trial by reason of the misconduct of the county attorney in asking improper questions on his cross-examination of defendant as a witness in his own behalf. The record is as follows:

Cross-Examination.
‘‘Q. You did not sell him any whisky? A. No, sir.
‘‘Q. Not in the business? A. No, sir.
“Q. Was not at that time? A. No, sir.
“Q. Have you seen this man since that day — well, since you were out of jail? Since this occurred have you had conversation with him concerning the whisky deal you had with him? A. I saw him going to Oklahoma City.
“Q. Did you talk to him about pleading guilty? Did you tell him if he interceded with the court to be light on you you would plead guilty to the offense? A. No, sir.
“Q. Do you know Jack Kivett, the mayor of this city? A. Yes, sir.
“Q. Did you tell him in the presence of your dad-in-law, Mr. Green, that it was just a question of a little time? A. No, sir; I did not tell either one of them. No, sir. They came and asked me to plead guilty, and I told them I was not guilty.
“Q. How long did you run a hotel down there? A. About 17 months, I think.
“Q. Until what time? A. Well, I don’t remember just when it was; 3 or 4 weeks ago.
“Q. You were enjoined from running that hotel; service was had on you to appear in Judge Phelps’ court to show cause why the hotel should not be closed up because of selling whisky and permitting it to be sold, didn’t you? Did you ever appear in defense of this property where whisky was sold to keep injunction from closing that hotel. Did you ever appear hear? A. No, sir.
“Q. You were served with summons by the sheriff? You were notified your hotel was to be closed up, and it was closed up and enjoined? You were party to that suit, running it at the time? A. I haven’t been running it since a month ago.”

The record shows that the defendant’s objections to the questions asked were overruled, and exceptions reserved.

In our opinion the questions asked were improper and prejudicial to the substantial rights of the defendant. It is the province of the jury in a criminal case to try the issue joined by a plea of not guilty, and, if the evidence of the state, uncontradicted, will support a conviction, this court will not ordinarily interfere with the verdict against the defendant. Here the only evidence against defendant was the uncorroborated testimony of the complaining witness. As a witness on his own behalf defendant denied making the sale, and it was a substantial right of the defendant to have the evidence confined to the issue. It was his testimony against that of the complaining witness, and the only effect the improper questions could have was to prejudice the jury against him. Where the prosecuting attorney asks a defendant on cross-examination questions which he knows, or ought to know, to be improper, and where the questions are asked without the expectation of answers, and where the plain purpose is to prejudice the jury against the defendant, the judgment of conviction will be reversed, unless it appears that the questions could not have influenced the verdict. Pickrell v. State, 5 Okla. Cr. 391, 116 Pac. 957.

Error is also assigned on the admission of incompetent evidence as to defendant’s general reputation. The state cannot attack the character of a defendant unless he puts his character in issue by introducing evidence of good character. Cantrell v. State, 12 Okla. Cr. 534, 159 Pac. 1092; Kirk v. State, 11 Okla. Cr. 203, 145 Pac. 307. The court therefore erred in admitting testimony as to defendant’s reputation. A person accused of crime is entitled to a fair and impartial trial conducted according to the established principles of law, the most important of which is that the verdict of the jury shall be founded only upon competent evidence. If a defendant cannot be fairly convicted, he should not be convicted at all, and to hold otherwise would be to provide ways and means for the conviction of the innocent.

For the reasons indicated, the judgment is reversed, and a new trial awarded.

MATSON, P. J., and BESSEY, J., concur.


author: MATSON, P. J.

text:
    J. J. DOOLEY et al. v. STATE.
    No. A-4245.
    Opinion Filed Dec. 28, 1923.
    (221 Pac. 112.)
    (Syllabus.)
    Appeal and Error — Prejudicial Error — Admission of Evidence Obtained by Unauthorized Search and Seizure. Where the conviction is based solely on evidence obtained by an unreasonable and unauthorized search and seizure, admitted over timely objection and exception of plaintiffs in error, the error thus occasioned is prejudicial, following Gore v. State, 24 Okla. Cr. 394, 218 Pac. 545.
    Appeal from County Court, Hughes County; Owen H. Rives, Judge.
    J. J. Dooley and H. Meyers were convicted of manufacturing intoxicating liquor, and each appeal.
    Reversed and remanded.
    Anglin & Stevenson, for plaintiffs in error.
    George F. Short, Atty. Gen., and John Barry, Asst. Atty. Gen., for the State.
   MATSON, P. J.

This is an appeal from a judgment of conviction rendered in the county court of Hughes county on the 16th day of January, 1922, wherein plaintiffs in error were jointly tried and convicted of the crime of manufacturing intoxicating liquor, and each sentenced to pay a fine of $50 and to serve 30 days in the county jail.

In the brief filed by counsel for plaintiffs in error, it is stated that but one proposition is relied upon to reverse the judgment, to wit, that the conviction of these defendants was had solely upon testimony of officers of the sheriff’s force, who obtained all their knowledge of the alleged facts to which they testified by reason of an unwarranted, wrongful, and illegal search of the premises of the plaintiff in error Dooley. The facts testified to by the state’s witnesses were substantially as follows:

The sheriff of Hughes county, with two of his deputies and another man, went to the home of J. J. Dooley, in Hughes county, Okla., on the 9th day of September, 1921. Their purpose was to discover violations of the prohibitory liquor laws, if any, on such premises. They approached the house from the rear, concealing themselves behind a smokehouse, which was located a short distance in the rear of Dooley’s dwelling house. Plaintiffs in error Dooley and Myers were standing in the yard between the two buildings. The officers had no search warrant. Some of the officers passed quickly by Dooley and Myers and went into the house.' They asked for no permission to do so, nor was any permission given them. They testified that a still was in operation on the kitchen stove and that whisky was running from the still. They arrested both Dooley and Myers, took them to Holden-ville and there filed this charge against them for manufacturing intoxicating liquor.

At the commencement of the trial counsel for plaintiffs in error filed a motion for an order directing the sheriff of Hughes county to return to them the property seized on such purported search, which motion was overruled, to which action of the court the plaintiffs in error excepted. Plaintiffs in error also offered timely objections to the introduction of testimony by each of the state’s witnesses as to what they saw and found in or about the residence of J. J. Dooley, for the reason that such alleged information was obtained through an unlawful search, which objections were overruled and exceptions taken. Thereafter plaintiffs in error moved to strike the testimony of all the state’s witnesses as to such information, which motion was overruled, and exceptions taken. Thereafter plaintiffs in error moved for a directed verdict, which motion was overruled, and exceptions taken.

There is no evidence in this record, except such as was obtained by the officers at the time of the search of Dooley’s premises. It is admitted that the place searched was the private dwelling house of Dooley. The search was made without permission by the plaintiff in error Dooley or by any one else on the premises. There was no waiver by Dooley of his constitutional right against unlawful search and seizure. Under the recent holding of this court in Gore v. State, 24 Okla. Cr. 394, 218 Pac. 545, where timely objection is made to the introduction of evidence obtained by an unreasonable and unauthorized search and seizure, the admission of such evidence is prejudicial error. For a full discussion of the questions involved, see the opinion in Gore v. State, supra, and authorities there cited.

As these judgments are based solely upon such illegal and incompetent evidence, they are hereby reversed, and the cause remanded to the county court of Hughes county for further proceedings not inconsistent with this opinion.

BESSEY and DOYLE, JJ., concur.


text:
    JACK GEIGER v. STATE.
    No. A-4202.
    Opinion Filed Dec. 29, 1923.
    (221 Pac. 122.)
    (Syllabus.)
    1. Homicide — Conspirator not Responsible for Acts of Coconspir-ator in Consummating Different Murder. If two persons conspire to commit murder and one of them conspires with another to commit a different murder, the one who is involved in the first conspiracy without aiding in the other will not be responsible for the acts of the others in consummating the second.
    2. Evidence — Active Conspirator an “Accomplice” within Corroboration Rule. An active conspirator in the commssion of a felony is an “accomplice” with the coconspirator who actually perpetrated the deed, and the testimony of such an accomplice must be corroborated by other evidence as to the commission of the offense and the persons involved.
    Appeal from District Court, Kiowa County; Thos. A. Edwards, Judge.
    Jack Geiger was convicted of murder, and he appeals.
    Reversed and remanded.
    Thos. W. Conner and Rummons & Hughes, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

Jack Geiger, plaintiff in error, herein referred to as the defendant, was on the 24th day of April, 1921, in the district court of Kiowa county, convicted of the murder of William G. Hester on March 10, 1921. Defendant was sentenced to imprisonment for life in the state penitentiary at McAlester. From the judgment of the court below he appeals to this court.

It appears that Ernest White killed Hester while the latter was plowing in a field near his home, and this conviction rests upon evidence tending to show that this murder was committed pursuant to a conspiracy with Geiger, the defendant, and that the latter was the real instigator of the crime.

Frequently we are called upon to decide homicide cases growing out of what is commonly called “the eternal triangle.” In this case there were two triangles, each intersecting the other, involving the moral depravity and conflicting agreements of three conspirators, making it exceedingly difficult to make a lucid statement of fact. Preliminary to stating the facts in narrative form, the following outline may be set out in order that the state’s theory of the case and the narrative following may be better understood:

First. Hester, the deceased, had interfered with the domestic affairs of Rufe Boyett.

Second. Geiger, the defendant, maintained adulterous relations with the wife of Ernest White.

Third. White killed Hester, against whom he had no grievance, pursuant to an agreement that Boyett should kill Geiger, here charged as an accomplice in the killing of Hester), who had broken up White’s home.

Fourth. Geiger, the defendant, had an agreement with Boyett that the latter should kill White, in order that Geiger might have White’s wife, somewhat as in the biblical story of David and Uriah.

Boyett, the chief witness for the state, participated in both conspiracies (if there were two), without any intention of doing any overt act towards carrying either into actual execution. In other words, Boyett intended to double-cross his coconspirators in both of these interlocking conspiracies. In several particulars there was no concert of action or meeting of the minds as between Geiger and White, who actually committed the murder.

Condensing the story and omitting sordid details, in which the record abounds, there are two theories presented by the evidence: First, a conspiracy between White and Boyett for White to kill Hester and in return for his so doing Boyett was to kill Geiger. Boyett testifies to this conspiracy. The other conspiracy referred to in Boyett’s testimony, and somewhat intermingled with the first, is that Geiger suggested to Boyett that Hester be killed and. that he (Geiger) would make arrangements to have Hester killed provided Boyett would kill White. It appears in the record that Geiger knew that Hester had, before the suggestion was made, broken up the home of Boyett, and he had reasons therefore to believe that Boyett would be agreeable to a conspiracy one of the purposes of which was to get rid of Hester. Also there is ample evidence in the record to substantiate Boyett’s story that Geiger desired at the same time to get rid of White, and there is some testimony by Boyett, but not corroborated, to the effect that Geiger also desired to get rid of Hester.

If the latter theory, that is, conspiracy No. 2, upon which this conviction must stand or fall, be true, in order to connect Geiger with the killing of Hester, as a coconspirator, it was necessary for the state to connect him by some overt act or by some declaration in furtherance of the conspiracy to kill White. In our opinion the mere showing of animosity between Geiger and White was not a sufficient corroboration in this case. Hester was killed by White and White had the same motive for the killing of Geiger that Boyett had for the killing of Hester. Geiger had broken up the home of White and White’s domestic troubles were known to Boyett and Boyett’s domestic troubles were known to White.

There is evidence by the witness Ed Nail, a negro, that Geiger on one occasion made an unsuccessful attempt to kill White, and there is also evidence, uncontradicted, that Mrs. White and Geiger sustained adulterous relations with each other. But is this sufficient evidence to corroborate the testimony of Boyett as to this intricate conspiracy? We believe not. The effort that Geiger made to kill White occurred long before it is contended there existed any conspiracy between Boyett and Geiger to kill White and Hester, and Geiger’s effort in that respect was entirely unknown to Boyett and not a part of any plan between them. The adulterous relations between Mrs. White and Geiger would furnish a motive on the part of either Geiger or White to want to get rid of the other. Such evidence is just as consistent with the theory that the killing of Hester was the result of a conspiracy between White and Boyett to do away with Geiger and Hester, if not more so, than that it was the result of the alleged conspiracy between Boyett and Geiger, through White, to kill Hester and then Boyett kill White.

According to Boyett’s testimony, the first arrangement he had with Geiger was that Geiger wanted him (Boyett) to make White mad and try to get White to meet him (Boyett) in the road some place, or on Teepee Mountain or Teepee Creek so that Geiger could get a chance to "bump off” White. This was on the 14th of February, 1921. Boyett then says that the next time he saw Geiger was on the 17th of February, which was the day Boyett moved away from Hester’s place to Harris’ place and after he had so moved. In that conversation he says that Geiger asked him if he had seen White, and that he told Geiger that he had seen White that morning; Geiger asked if White had anything to say about him (Geiger), and Boyett told him he did not, only he wanted Boyett to get Geiger off where he could get him. Then Geiger wanted to know when White was coming back, and Boyett told him he did not know, and Geiger said:

"The next time you go over there, make it a point to see him and get him off over here on the mountain or on the creek.*’ ’

Further, Geiger said for Boyett to sit steady in' the boat and he would get his folks back and it would not be long. Boyett says that Geiger further said that he would get Hester out of Boyett’s way and out of Boyett’s family and he would bump Hester off or get it done.

Boyett further testified that Geiger said that Hester had beaten him out of $1,500 when he (Geiger) was in the penitentiary, and that Hester then owed him between $500 and $600 that Geiger had loaned him, and that he could not get it, and that he (Geiger) wanted Hester out of there so that he could get a mortgage on his wheat crop and get his money; that Geiger suggested that he was either going to kill Hester or get him killed, and that he could get White to do it if he could not get a chance to do it himself.

Boyett said further that on the 4th of March, 1921, Boy-ett went with Geiger to Anadarko in Geiger’s Ford car, and that the purpose of this trip was that Geiger wanted to assign a lease to him so that he (Geiger) would not lose his wheat crop. This was an Indian lease. That on that trip the killing of Hester was discussed, and Geiger again told Boyett to sit steady in the boat; that he would get “shed” of Hester; that he could get rid of him for a bad debt that he had out in the sum of $300, and that he would never collect it anyway; that White owed him $300, and that he would never collect it in money anyway; that he told Boyett to keep that under his hat or there would be another liable to get “bumped off.” Boyett testifies that on the morning of February 17th, in pursuance of the arrangement proposed by Mr. Geiger, the following occurred between Mr. White and himself:

“I met White right in front of Mr. McGhee’s house, something like a couple or three hundred yards from the house. He asked me if I was moving, and I told him I was. I told him they had got so intimate I didn’t feel like I could stay there without trouble, and I didn’t want to have it so I moved. ‘Well,’ he says, ‘a man that will do that ought to be killed; there’s one over here, Jack Geiger, has tore up my home just like Hester has yours.’ Then he says: ‘You get one and I’ll get the other. You get Geiger and I’ll get Hester. I told him I didn’t want to get into any trouble and didn’t want any one else to get into trouble over my troubles. I started to drive on — drove something like the length of this house. He hollered and stopped me. He says: ‘Are you going to do it? Tell me yes or no.’ I just says, ‘Yes,’ and started my team. He says, ‘Well, now, stick to it.’ ”

The witness Aubray Howell testified that after .the killing he had a conversation with Geiger in which Geiger told him that Rufe Boyett was to shoot him and Ernest White was to shoot Hester, and that Geiger also told the witness about Ernest trying to get him (Geiger) off down to Saddle Back Mountain, and that Geiger said that Ernest said there was some negroes down there that had some whisky and Ernest was going to take Geiger with him to run the negroes off, and he would get the whisky and get the pay the ne-groes owed him. On cross-examination this witness stated that the conversation occurred shortly after Hester’s death and that nobody else was present except the witness and Geiger; that he and Geiger had been good friends. Further, when asked if Geiger did not express his opinion that the killing was a frame-up between White and Boyett, the witness replied, “I don’t know whether he meant it that way, but he told me that was the way it was to go.” On further cross-examination as to what he had testified at the preliminary trial, he was asked if he did not make the following answer in reply to a question as to what Geiger had said to him after the killing:

“That’s all he said. He just told me about the frame-up, that Rufe Boyett — that Ernest was to kill Mr. Hester and Mr. Boyett was to kill him. ’ ’

He said he did not recollect just what he had said at that time.

A homicide committed pursuant to either of the conspiracies alleged to have existed involves Boyett as an “accomplice,” and Ms testimony must therefore be corroborated. After a most painstaking consideration of the entire record, we conclude that there is not sufficient corroboration of Boyett’s story to sustain the state’s theory that Geiger was an accomplice of White in the murder of Hester. In our opinion there is nothing more than a far-fetched suspicion that such was the case.

The judgment of the trial court is therefore reversed, and the cause remanded for further proceedings not inconsistent with this opimon.

MATSON, P. J., and DOYLE, J., concur.


text:
    ERICK CALDWELL v. STATE.
    No. A-4378.
    Opinion Filed Dec. 29, 1923.
    (221 Pac. 117.)
    Appeal from County Court, Washita County; J. L. Jackson, Judge.
    Erick Caldwell was convicted of the crime of unlawfully ■ selling intoxicating liquor, and he appeals.
    Appeal dismissed.
    Renegar & Billups, for plaintiff in error.
    George P. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an attempted appeal from a judgment of conviction rendered in the county court of WasMta county on the 9th day of February, 1922, wherein plaintiff in error, Erick Caldwell, was convicted of the offense of selling intoxicating liquor and punishment fixed at a fine of $75 and imprisonment in the county jail for a period of 60 days.

The petition in error and ease-made were filed in this court on the 14th day of June, 1922, 125 days after the rendition of the judgment. The Attorney General has filed a motion to dismiss the appeal for the reason that the same was not taken within the time allowed by statute for taking appeals in misdemeanor cases. In misdemeanor cases the longest time allowed in which an appeal may be taken is within 120 days after the judgment is rendered, provided proper extension of time beyond 60 days is made by the trial court. Section 2808, Compiled Statutes 1921.

The appeal not having been lodged in this court until 125 days after the date of the rendition of judgment, the motion of the Attorney General to dismiss the appeal is well taken. Appeal dismissed.


author: MATSON, P. J-

text:
    MILTON WHITTEN v. STATE.
    No. A-4255.
    Opinion Filed Dec. 29, 1923.
    (221 Pac. 115.)
    (Syllabus.)
    Appeal and Error — -Larceny—Evidence Sustaining Conviction — Function of Appellate Court in Considering Sufficiency of Evidence. Evidence considered, and held sufficient on appeal to sustain the verdict and judgment. In considering the sufficiency of the evidence, the function of this court is limited to ascertaining whether there is a basis in the evidence on which the jury could reasonably conclude that accused is guilty as charged.
    Appeal from District Court, McCurtain. County; J. M. Barrett, Judge.
    Milton Whitten was convicted of the crime of larceny of live stock, and he appeals.
    Affirmed.
    H. P. Hosey and J. N. Fortner, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J-

Plaintiff in error, hereinafter referred to as defendant, was convicted in the district court of Mc-Curtain county of the crime of larceny of live stock. The prosecution was by indictment returned September 24, 1920. The charge was the larceny of one steer the property of C. H. Pierce, and it was alleged to have been committed on or about December 29, 1919.

Trial was had September 21, 1921, resulting in a verdict of guilty with punishment fixed at two years’ imprisonment in the state penitentiary.

The sole contention is: "The court erred in overruling the motion of plaintiff in error for a new trail.” Under this assignment of error it is contended that the verdict is not sustained by sufficient evidence.

Counsel for plaintiff in error cite numerous decisions of this court to the effect that an indictment charging larceny of live stock must contain the following allegations: (1) The felonious taking and asportation of property in question without the knowledge and consent of the owner. (2) The ownership of said property. (3) The felonious intent to deprive the owner of the same and the felonious intent to convert to the taker’s own use. It is contended that the state failed to prove either of the foregoing requisites beyond a reasonable doubt.

The evidence on the part of the state was substantially as follows: C. H. Pierce, owner of the steer alleged to have been stolen, lost track of 22 head of cattle that were running on a range in McCurtain county, Okla., in the fall of 1919. These cattle were branded "H. P. J.,” disconnected. Shortly before Christmas of that year, upon making inquiry of one Mr. Bivins, Pierce was informed by Bivins that 6 head of his cattle were then at Bivins’ place about two miles south of the city of Idabel.

Among the cattle of Pierce’s at that time on the Bivins premises was a roan, muley, three year old steer, branded as above described. This steer was the animal alleged to have been stolen a few days later.

According to the testimony of a son of Bivins the defendant, accompanied by a negro, was seen driving this particular animal on a road that ran close to Bivins’ place shortly after Christmas of the year 1919. A few days later this animal was seen by the younger Bivins, together with some other animals, in a stock feeding pen in the city of Ida-bel. The defendant was at another time seen at this stock pen feeding animals, and it is also disclosed by the record and admitted by the defendant that he was engaged in the business of buying and shipping cattle in carload lots to Fort Worth, Tex., and that he shipped a carload to Fort Worth in the early part of January, 1920, about a week or 10 days later than the date he was seen to have driven the steer in question away from the premises of Bivins. Defendant denied having taken the animal and offered proof tending to show that he had driven another animal answering this description but a different brand, shortly after Christmas, 1919, along the public highway that ran by the Bivins premises, and that a negro boy was with him at that time. This boy was produced as a witness for the defendant and testified substantially as did the defendant. The person from whom the defendant testified he bought the animal, however, was not produced. The animal belonging to Pierce was never found.

If the testimony of the younger Bivins is to be believed, the defendant took the animal belonging to Pierce from a place of Bivins in McCurtain county shortly after Christmas in the year 1919. There is no question of defendant having taken the Pierce steer by mistake. Bivins testified positively that the animal defendant was seen to drive along the public highway was the animal belonging to Pierce that had been grazing on Bivins’ premises for some time. The defendant testified it was an entirely different animal.

Whether or not the taking was with felonious intent to deprive the owner thereof and with feloneous intent to convert it to the taker’s own use were questions for the jury to determine.

While there is a conflict in the evidence, the court is of opinion, after a careful consideration of all the evidence, that the same is sufficient to support the verdict and judgment.

The judgment is therefore affirmed.

BESSEY and DOYLE, JJ., concur.


text:
    Ex parte CHARLES ISABELL.
    No. A-4951.
    Opinion Filed Jan. 5, 1924.
    (221 Pac. 517.)
    (Syllabus.)
    Burglary — Statute Fixing Punishment for Attempt. The measure of punishment which may be legally imposed upon one convicted of attempting to commit the crime of burglary in the second degree is provided by subdivision 1 of section 2297, Compiled Statutes 1921. For reasons for so holding, see body of opinion.
    Doyle, J., dissenting.
    Application by Charles Isabell for writ of habeas corpus.
    Writ denied.
    C. P. Gowdy, for petitioner.
    George P. Short, Atty. Gen., and John Barry, Asst. Atty. Gen., for respondent.
   MATSON, P. J.

"That heretofore, on the 21st day of November, 1923, in the district court of Nowata county, OMa., case No. 991, State of Oklahoma v. Charles Isabell, was tried and convicted on an information charging him with attempted burglary-in the second degree. Certified copy of said information and the verdict of the jury hereto attached, marked Exhibit A and B, and made a part of this petition, and thereafter on the 4th day of December, 1921, judgment was rendered on said verdict, and your petitioner sentenced to serve one year in the penitentiary; copy of said judgment hereto attached, marked Exhibit C and made a part of this petition.
“Your petitioner further states that he is illegally restrained of his liberty, in that the punishment for the crime as having been attempted could be from 2 to 7 years in the penitentiary as provided in section 2064, Compiled Statutes 1921, and the attempt as charged is punishable by imprisonment in the county jail for no more than one year, as provided in second subsection of section 2297, Compiled Statutes 1921.
“Your petitioner further states that he is being held in the county jail at Nowata county, Olda., on said void judgment to be transported to the state penitentiary; that he has no money or property with which to pay the costs of an appeal, and cannot make a bond in any sum.
“Your petitioner further states that he has heretofore, on the 4th day of December, 1923, applied by habeas corpus petition for relief to the district court of Nowata county before the Honorable C. H. Baskin, judge, and his said petition was denied.
“Your petitioner further waives his appearance, and requests this honorable court to consider this application the same as if he was present in person.”

Accompanying said petition, as Exhibits A and B and C are certified copies of an information charging the petitioner with the crime of attempted burglary in the second degree, the verdict, and of the judgment rendered on said charge, ordering the petitioner to be confined in the state penitentiary at McAlester for the term of one year.

This application involves a construction of the first two subdivisions of section 2297, Compiled Statutes 1921, which provide punishment for attempted crimes where no provision otherwise is made by law for the punishment of such attempts. Said subdivisions read as follows:

1. “If the offense so attempted be punishable by imprisonment in the penitentiary for four years or more, or by imprisonment in a county jail, the person guilty of such attempt is punishable by imprisonment in the penitentiary, or in a county jail, as the case may be, for a term not exceeding one-half the longest term of imprisonment prescribed upon a conviction for the offense so attempted.”
2. “If the offense so attempted be punishable by imprisonment in the penitentiary for any time less than four years, the person guilty of such attempt is punishable by imprisonment in a county jail for not more than one year.”

The cause has been briefed by both counsel for petitioner and the Attorney General. Counsel for petitioner contends that the district court of Nowata county was without legal authority under the foregoing statute to impose a penitentiary sentence upon a conviction for the crime of attempted burglary in the second degree. In other words, the contention of counsel for petitioner is that, upon a conviction of attempted burglary in the second degree, the punishment to be imposed is that provided by the second subdivision of section 2297, supra.

Burglary in the second degree is punishable by statute at imprisonment in the penitentiary not exceeding 7 years and not less than 2 years. Section 2064, Compiled Statutes 1921.

The punishment provided under the second subdivision of section 2297, supra, is for a misdemeanor of which the county court would have exclusive jurisdiction. Sections 16 and 18, art. 7, Constitution. It follows, therefore, that if the punishment for the offense of attempted burglary in the second degree falls under the second subdivision of section 2297, supra, the district court of Nowata county was without jurisdiction to impose a punishment under the first subdivision, and its imposing imprisonment at one year in the penitentiary against the petitioner is void, and the petitioner entitled to his discharge.

Counsel for petitioner has cited no authority construing any statute of similar import, but relies upon several decisions of this court which announce the settled rule of construction "that statutes prescribing punishment are to be strictly construed in favor of the defendant, and where such statute is capable of two constructions, the construction which operates in favor of the defendant is to be adopted,” citing the following cases: Ex parte McClure, 6 Okla. Cr. 244, 118 Pac. 591; State v. Clifford, 3 Okla. Cr. 419, 106 Pac. 557; McCord v. State, 2 Okla. Cr. 216, 101 Pac. 280; City of Shawnee v. Landon, 3 Okla. Cr. 440, 106 Pac. 652.

In support of the contrary view, the Attorney General has cited this court to the cases of State v. King, 9 N. D. 149, 82 N. W. 423, and Ex parte Hope, 59 Cal. 423.

The measure of punishment for an attempt to commit the crime of burglary in the second degree is fixed by one of the two subdivisions of section 2297, supra. The applicant for the writ was sentenced under the first subdivision, but contends that the penalty for the attempt of which he was convicted is controlled by the second subdivision, providing only a jail sentence. He contends that while burglary in the second degree may be punished "for four years or more” in the penitentiary, a prerequisite to punishment under the first subdivision, yet that it is also punishable “for any time less than four years,” which brings the punishment for the attempted offense under the second subdivision, and limits his confinement to imprisonment in the county jail.

The gist of petitioner’s contention is that, although the punishment may fall within either of the first two subdivisions, the court should construe the statute most favorably to the defendant, and hold with petitioner’s contention that his punishment is limited by the provisions of the second subdivision of section 2297, supra.

If the statute were open' to the construction contended for by petitioner, the punishment for the attempted offense of burglary in the second degree would of necessity fall under the second subdivision.

Construing a statute identical with section 2297, supra, the Supreme Court of North Dakota, in State v. King, supra, had the following"to say:

“Obviously, it was intended to classify punishments for attempts with reference to the seriousness of the crime attempted. Accordingly, we find that, where the crimes attempted are punishable by confinement in the penitentiary for four years or more, or by confinement in the county jail, by a uniform provision, attempts to commit such crimes are punishable by imprisonment not to exceed one-half of the completed crime. On the other hand, attempts to commit crimes which are punishable by less than four years in the penitentiary were viewed with more lenity, and are not to be followed by confinement in the penitentiary at all, but are to be punished by jail sentences only. It is true, a discretion as to the extent of punishment to be imposed is lodged in the district court. It may sentence one convicted of sodomy to confinement in the county jail, or impose a penitentiary sentence which may be less than four years, but these are discretionary matters, and do not alter the fact that as a crime it is by statute punishable — i. e. may be punished — by imprisonment in the penitentiary for a period not exceeding ten years. The inquiry as to how a crime is punishable relates to the period or extent of punishment which can legally be imposed, and not, as we view it, to any lesser or discretionary period, which may be determined by the court in imposing sentence. The crime of sodomy is punishable — that is, it may be punished — by imprisonment in the penitentiary for not less than one nor more than ten years. It is, then, clearly, in this view, punishable, by imprisonment for four years or more, even up to ten years, and is not a crime punishable by less than four years. The attempt, therefore, of which the petitioner was convicted was punishable under the first subdivision of section 7694, supra. It follows, then, that the petitioner was legally sentenced.”

Construing a similar statute,- the Supreme Court of California, in Ex parte Hope, supra, had the following to say:

"Every person who attempts to commit any crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable, where no provision is made by law for the punishment of such attempts, as follows: 1. If the offense so attempted is punishable by imprisonment in the state prison for five years, or more, or by imprisonment in a county jail, the person guilty of such attempt is punishable by imprisonment in the state prison, or in a county jail, as the case may be, for a term not exceeding one-half the longest term of imprisonment prescribed upon a conviction of the offense so attempted. 2. If the offense so attempted is punishable by imprisonment in the state prison for any term less than five years, the person guilty of such attempt is punishable by imprisonment in the county jail for not more than one year.”
"In making this enactment the Legislature was obviously classifying the punishment to be imposed on those convicted of attempts to commit certain crimes. The first class (provided for in subdivision 1) embraces those cases where the offense attempted is punishable in the state prison for five years, or more, or by imprisonment in a county jail, and the second class (provided for in subdivision 2) embraces those cases where the offense attempted is punishable by imprisonment in the state prison for any term less than five years. In effect, as we construe the statute, the Legislature has said that (in the absence of another express provision) every person who is convicted of an attempt to commit an offense, which offense when completed is punishable by imprisonment in the state prison for a term less than five years, but Avhich cannot exceed or extend to that period, is punishable by imprisonment in the' county jail for not more than one year; and that every person who is convicted of an attempt to commit an offense, which offense when completed is punishable by imprisonment in the state prison for five years, or more, is punishable by imprisonment in the state prison for a term not exceeding one-half the longest term of imprisonment prescribed upon a conviction of the offense so attempted.”

Our statute was taken from Dakota, and while the decision in State v. King, supra, is not necessarily binding on this court, it is in the' absence of any contrary opinion strongly persuasive, fortified as it is by the decision of the Supreme Court of California in Ex parte Hope.

We do not concur in the view expressed by counsel for petitioner that the crime of attempted burglary in the second degree is punishable under either the first or second subdivisions of section 2297, supra. In our opinion such attempted offense is punishable only under the provisions of the first subdivision of that section. When the two subdivisions are construed together, as they must be, we think it clear that the Legislature was classifying the punishment to be imposed on those convicted of attempts to commit certain crimes not otherwise punishable by statute. The first class includes the felonies which are and may be punished by imprisonment in the penitentiary “for four years or more,” irrespective of whether such crimes may be punished by a less imprisonment in the penitentiary. The second class includes only those attempts where the punishment for the completed crime is for “any term less than four years”; “less than four year” plainly meaning punishment for any term that may not in the maximum extend to that period.

For reasons stated, the writ is denied.

BESSEY, J., concurs.

DOYLE, J., dissents.


text:
    CARRIE ALEXANDER v. STATE.
    No. A-4277.
    Opinion Filed Jan. 5, 1924.
    (221 Pac. 516.)
    Appeal from District Court, Garfield County; J. C. Robberts, Judge.
    Carrie Alexander was convicted of illegal possession of narcotics, and she appeals.
    Reversed and remanded.
    L. C. McLean and Warren K. Snyder, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

Carrie Alexander was convicted in the district court of Garfield county, on September 20, 1921, of having illegally had in her possession on February 9, 1921, a quantity of narcotic drugs, cocaine, and her punishment was assessed at a fine of $500- and five years’ imprisonment in the state penitentiary. From the judgment on the verdict she appeals.

We have carefully read and reread all of the testimony contained in the record in this case. This defendant may have been in possession of narcotic drugs, as charged; it may be that she and others maintained or assisted in maintaining a place where narcotic drugs were kept and distributed, and such fact may have been known to or suspected by the officers; but there is no evidence in the record to support such conclusion, beyond the fact that- certain drugs Avere found and seized by the officers in a room reserved by the owner for his own use in a private rooming house in which the defendant had a room. To sustain a conviction against one of several such inmates there must be evidence beyond the mere finding of the drug in the room of the owner of the house. According to the evidence here these narcotics may have belonged to the owner of the premises, or they may have been the property of some other inmate of the house.

This being true, it will not be necessary to notice the numerous assignments of error.

The cause is reversed and remanded.

MATSON, P. J.,- and DOYLE, J., concur.


text:
    WILL EVANS v. STATE.
    No. A-4680.
    Opinion Filed Jan. 10, 1924.
    (221 Pac. 794.)
    (Syllabus.)
    1. Trial — Rule as to Separation of Jurors Stated. While the law allows the separation of the jury, in the discretion and under proper admonition of the court,, at any time before the submission of the cause, yet if it appears that the jury, in commingling- with the public during the trial, would be exposed to improper influences or be affected by the passions or prejudices existing outside the courtroom, it is the duty of the court to keep the jury together under charge of a sworn officer or officers during the trial.

      2. Same — Permitting Jury to Separate in Capital Case Abuse of Discretion. Where, in a capital case, defendant requested the court to have the jury kept together under charge 'of a sworn officer, during the trial, but the request was refused, and the court permitted the jury to separate against the objection of defendant, held, an abuse of judicial discretion, and it was error to permit a separation over defendant’s objection.
    3. Same — “Submission of Cause to Jury." In a criminal trial, the “submission of the fcause to the jury,” occurs after hearing the charge, and at the close of the argument.
    4. New Trial — Prejudice from Permitting Jurors to Separate Presumed. Where, in a capital case, after hearing the charge and argument of counsel, the court permitted the jury to separate against the objection of defendant under circumstances which gave an opportunity for the exercise of improper influences over the jurors, prejudice to defendant will be presumed, and, on motion for new trial, the burden is on the state to overcome such presumption of prejudice.
    Appeal from District Court, Wagoner County; E. A. Summers, Judge.
    Will Evans was convicted of manslaughter in the first degree, and he appeals.
    Reversed and remanded.
    W. T. Drake, for plaintiff in error.
    George F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen., for the State.
   DOYLE, J.

Appellant, Will Evans, was convicted of manslaughter in the first degree, on an information which charged that in Wagoner county, on or about the 30th day of June, 1922, he did kill and murder one Selma Selby. The jury failed to agree upon the punishment. By the judgment of the court he was sentenced to a term of 20 years in the penitentiary. To reverse the judgment he has appealed to this court.

It appears that appellant and deceased were both employed on a farm nea,r Haskell; deceased was overseer of this farm and appellant employed as a farm hand. They had been old acquaintances in Texas, where they formerly resided. They were both married men. Appellent was 30 years of age at the time of the homicide; his family consisted of his wife and three small children. Deceased was 34 years of age; Ms family consisted of his wife and two small children. Both, with their families, had moved to Wagoner county the latter part of December, 1921. They lived in houses approximately 100 yards apart on the farm whére they were employed.

The circumstances of the killing which took place in the evening of the date alleged, in the house of deceased, as shown on the part of the state, were that appellant approached Selby, who was milking a cow in the barnyard. After some conversation they went into Selby’s house. Selby sat down at the library table and commenced to figure up the time and what was due appellant for his work, and said that in discharging appellant he was doing what Mr. Stone, the owner of the farm, told him to do. Appellant insisted that he had been hired for a year, and Selby said, “I hired you by the month.” In the argument that followed appellant accused Selby of having insulted his wife. During the controversy appellant shot and killed Selby.

The defense relied upon is that the killing Avas justifiable as being in self-defense.

One of the grounds of the motion for new trial and assigned as error is that the court erred in permitting the jury to separate at each adjournment taken while the trial was in progress, and in permitting the jury to separate after both the state and defendant had rested their case, and after the instructions of the court had been given to the jury, and after counsel for both the state and the defendant had fully completed their arguments to the jury, 'and that by reason thereof the substantial rights of the defendant have been prejudiced.

It appears that the trial commenced on September 25th, and both the state and the defendant rested their case about 5 o’clock p. m. of September 26th, at which time an adjournment was taken until 7 o’clock that evening. Before this adjournment was taken, the defendant objected to the jury being permitted to separate, and asked the court to place the jurors in the charge of a sworn bailiff, and to require them not to separate until a verdict was reached. The court refused the request and overruled the objection, to which the defendant excepted.

At 7 o’clock p. m. court reconvened. The court instructed the jury, and the arguments of both the state and the defendant followed. After the closing argument on the part of the state, the defendant again' asked the court to place the jurors in charge of a sworn bailiff, and to require them to be kept together until a verdict was rendered.

The record is as follows:

“By the Court: Gentlemen, it is now 11:30 p. m., and I don’t think I will submit this case to the jury until in the morning.
“By Mr. Drake: If the court please, the defendant now requests the court to submit the case to the jury immediately, and asks that the jury be put in charge of a sworn bailiff and not permitted to separate until after they have returned their verdict into court. Defendant, at this time, further objects to the jury being permitted to separate for the reasons heretofore urged, and the further reason that now after the evidence is all in and after the court has instructed the jury and after argument of both counsel for the state and defendant has been made, to permit the jury to separate is likely to prejudice the rights of this defendant. The defendant further objects to the jury being permitted to separate at this time, for the reason that the large crowd of people now attending this trial and that have attended this trial since its beginning are extremely hostile and prejudiced against the defendant; that if the jury is permitted to separate at this time they are likely to be influenced by the hostile feeling against this defendant, and the rights of the defendant are likely to be prejudiced by permitting this to be done.
“By the Court: Objection overruled.
“By Mr. Drake: Defendant excepts.”

On the morning of September 27th, the case was finally submitted to the jury by the court, and on the same day they returned into court their verdict.

The motion for new trial, duly verified, is in part as follows:

“That the jurors were influenced in their verdict against the defendant by what they heard outside of the trial of this case. That the jury would not have convicted the defendant had they been kept free and clear of the hostile sentiments of the crowds on the streets and in the courtroom. That the jury at each and every adjournment during the trial was compelled to listen to remarks from the bystanders hostile to this defendant.
“That in support of the last three grounds of this motion, and to further show that his substantial rights have been prejudiced, this defendant says that there were five brothers and one sister of deceased, Selma Selby, together with their families constantly in attendance at the trial. That relatives of deceased had induced a large number of friends to attend the trial, and that they and their friends constituted almost the entire crowd that attended this trial. That they were able to and did mold and shape a strong sentiment against this defendant, both in the courtroom and on the street. That the sentiment and prevailing opinions of persons attending the trial were hostile and bitter towards this defendant. That the jury were permitted to and did mix and mingle with this crowd, both on the street and in the courtroom at each adjournment of the trial. That, on account of the conditions as above set out, this defendant was denied a fair and impartial trial.”

The affidavit of T. A. Foster is, in substance, as follows: That he attended the entire trial; that there were from 100 to 150 people in attendance; that practically all of these people were very bitter against the defendant; that the comments by the crowd in the courtroom were generally bitter against the defendant; that the jurors mixed and mingled with the crowd of people hostile to the defendant at each adjournment during the trial.

Miss C. C. Boyd, in her affidavit, states that she is a resident of Wagoner and reported the proceedings of the trial for the Muskogee Times Democrat, and Muskogee Daily Phoenix, and was present in court during the trial; that nearly all the people in attendance were extremely hostile to the defendant; that the common conversation in the courtroom was to the effect that Will Evans was guilty and ought to be convicted'; that during the intermissions of the trial the jury were permitted to and did mix and mingle promiscuously with the crowd in the courtroom and on the streets.

The proof offered in support of the motion for new trial was not traversed by the state.

Under the provisions of our Criminal Code the jurors sworn to try the 'cause may, at any time before the submission of the cause to the jury, in the discretion of the court, be permitted to separate or be . kept in charge of proper officers. Section 2716, Comp. Stats. 1921.

At each adjournment of the court, whether permitted to separate or kept in charge of officers, the jury must be properly admonished by the court until a final submission of the cause. Section 2717, Comp. Stats. 1921.

Our Criminal Code further provides:

“After hearing the charge, the jury may either decide in court, or may retire for deliberation. If they do not agree without retiring, one or more officers must be sworn to keep them together in some private and convenient place, and not to permit any person to speak to or communicate with them, nor do so themselves, unless it be by order of the court, or to ask them whether they have agreed upon a verdict, and to' return them into court when they have so agreed, or when ordered by the court.”' Section 2723, Comp. Stats. 1921.

It is the well-settled doctrine in this state that in capital cases the jurors should not be permitted to separate after they have been sworn, where one of the parties object thereto. While the law allows a separation of the jury with the permission and under proper admonition of the court at any time before the submission of the cause, yet we believe that, in the exercise of sound judicial discretion, the trial court in a capital case should not refuse a request from either party to place the jury in charge of sworn officers during the progress of the trial. Armstrong v. State, 2 Okla. Cr. 567, 103 Pac. 658, 24 L. R. A. (N. S.) 776.

In Bilton v. Territory, 1 Okla. Cr. 566, 99 Pac. 163, Judge Baker said:

“In any criminal case it is error to permit the jury to separate after the case has been submitted to them, and before they have reached a verdict. The object intended to be gained by preventing the separation of the jury is to1 safeguard in every possible way the purity of the stream of justice; to prevent it from in any manner being polluted by influences other than those which are produced by the legal evidence and the law governing the case. Such a course is both a protection to the interests of the state in bringing to justice one who may have committed a crime and; safeguards the rights of t[ie accused on trial for his life. It will be conceded by all interested in the administration of justice that one accused of crime is to be convicted or acquitted only upon the evidence given in his presence; that the minds of those who are to decide questions involving life and liberty are free from prejudgment; that in the course of the trial no impression ought to operate on the minds, except that which is derived from the testimony presented to them in open court and the law as given them in charge by the court; that the minds of the jurors shall be free from prejudice and bias, either for or against the prosecution or the accused before the trial begins, and shall continue impartial until they have delivered themselves of their verdict. This can be guarded only by preventing the separation of the jury, and the prudence and care of the trial court and the officers thereof. Such a course of procedure will free the minds of the public as well as the parties directly interested in the trial of the case from the slightest suspicion that the stream of justice is not in all respects pure and free from contamination. Absolute impartiality and fairness in the trial of criminal ease should be desired by all concerned. Preventing the separation of the jury offers the best means to prevent undue and unlawful influences. To keep the jury from separating may at times be difficult of accomplishment, but the trial court should make proper provision therefor, and the rule against the separation of jurors in capital cases should in no manner be relaxed.”

In Armstrong v. State, supra, we said:

“It is our opinion that this section imperatively requires that, upon the final submission of the cause to the jury, they cannot be permitted to separate, and if, after such submission, the jury separates, such separation vitiates the verdict, notwithstanding no affirmative proof of prejudice is offered. When this provision of the law is violated', the legal presumption is tint it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right.”

In Chance v. State, 5 Okla. Cr. 194, 113 Pac. 996, it was held that:

“It is reversible error for the trial court to permit a jury to separate after the submission of a felony case to them for determination, under our statutes, especially when the defendant objects to such separation and the state fails to show that he was not prejudiced thereby.”

The Attorney General says:

“The defendant’s objection to the separation of the jury and request that it be kept together was overruled, and the request was refused, on the theory that the ease had not yet.been submitted to the jury: In view of this the question is pertinent: After the charge had been given by the court to the jury, and after all arguments had been made, was the case then ‘submitted to the jury?’ ”

We think as a matter of law that the “submission of the cause to the jury” occurs at the close of the argument. Under the old statute the argument preceded the charge. Under the present statute the charge precedes the argument. Under the provisions of the .section above quoted, the jury must at once do one of the two things specified, viz.: Either decide in court, or retire for deliberation; and, if they cannot decide in court, one or more officers must be sworn to keep them together, and not to permit any person to speak to or communicate with them, nor do so themselves, unless it be by order of the court.

In State v. Parrant, 16 Minn. 178 (Gil. 157), it is said:

“To say that, after hearing the charge, the jury may go at large for such time as the court may direct, and then return into court and either agree or retire, or that, if they cannot agree without retiring, they may in like manner go at large, and then return into court, and an officer being sworn to take charge of them, retire in his charge, would, in our opinion, be making a new section, not construing this one.”

In principle, we can see little difference between a separation of the jury after hearing the charge and the argument of counsel, and a separation after the actual retirement of the jury for deliberation.

The plain purpose and intent of the law is to surround a trial by such safeguards as will exclude all external and improper influence from the jury, and thus protect the right of the defendant to a fair and impartial trial. While it is within the discretion of the court to permit the jury to separate at any time before the case is fully submitted to them, yet if it appears that the jury or that jurors in commingling with the public during the trial would be exposed to improper influences or be affected by the passions or prejudices existing outside the courtroom, it is the duty of the court to keep the jury together under charge of a sworn officer or officers during the trial. Courts cannot be too strict in guarding trials by juries from improper influences, and in compelling a vigilant observance of all the provisions of the Criminal Code tending to preserve the purity of such trials. Believing that such danger existed in this case, the defendant requested that the jury be kept together under the charge of a sworn officer.

It is charged, and the proof offered in support of the motion for a new trial shows, that five brothers and a sister of the deceased and other relatives and friends mingled with the jury at every recess and adjournment of the trial, and this proof was undisputed by the state.

It will not do for courts to sanction such loose practice in proceedings which jeopardize the life and liberty of the citizen. Every person charged with crime is entitled, as a matter of right, to require in the first instance, a compliance with the ordinary forms of law to secure him a fair and impartial trial; and, if the provisions of law intended for his security are disregarded, he may require satisfactory evidence from the state that he has not been injured by reason of such noncompliance.

On the record before us we are convinced that the defendant should have a new trial. We think the refusal of the trial court of the defendant’s request to. have the jury placed in charge of a sworn officer was a manifest abuse of judicial discretion, and the failure and refusal of the court at the close of the argument to submit the cause and to have the jury kept together in charge of a sw.orn bailiff constitutes prejudicial error.

For the reasons stated, the judgment is reversed, and the cause remanded .for a new trial.

The warden of the penitentiary is directed to deliver the defendant, Will Evans, in the custody of the sheriff of Wagoner county, who will hold him in custody subject to further proceedings according to law.

MATSON, P. J., and. BESSEY, J., concur.


text:
    CAT BARNOSKIE v. STATE.
    No. A-4485.
    Opinion Filed Jan. 10, 1924.
    (221 Pac. 516.)
    (Syllabus.)
    Appeal and Error — Appeal Dismissed Where Pardon Granted. When the pardoning power extends clemency, and the same is accepted pending the determination oí an appeal, the appeal will be dismissed.
    Appeal from District Court, Sequoyah County; J. H. Jarman, Judge.

      Cat Barnoskie was convicted of manslaughter in the first degree, and he appeals.
    Appeal dismissed and cause remanded.
    Frye & Frye, for plaintiff in error.
    The Attorney General; for the State.
   DOYLE, J.

Plaintiff in error, Cat Barnoskie, was tried for murder upon an information charging that in Sequoyah county on or about December 26, 1921, he did kill and murder one Roland Kenned, by shooting him with a shotgun. The jury returned a verdict finding him guilty of manslaughter in the first degree, and assessed his punishment at imprisonment in the penitentiary for a term of four years. From the judgment rendered in pursuance of the verdict, an appeal was perfected by filing in this court October 30, 1922, a petition in error, with case-made.

His counsel of record have filed a motion to dismiss his appeal, for the reason that on the 6th day of January, 1923, the said Cat Barnoskie was granted a full, complete, and unconditional pardon for the offense of which he was convicted. A duly certified copy of said pardon is attached1 to the motion to dismiss, which pardon was signed by Hon. J. B. A. Robertson, then Governor, and is duly and properly attested and1 authenticated by Hon. Joe S. Morris, then secretary of state, under the great seal of the state.

By numerous decisions of this court it is held that, when an appeal from a judgment of conviction is pending in this court, and the plaintiff in error applies for a pardon, and the same has been granted, and the fact that a pardon has been granted1 is brought to the attention of this court, the appeal will be dismissed. Ernst v. State, 17 Okla. Cr. 282, 187 Pac. 930; Brown v. State, 16 Okla. 505, 184 Pac. 912; Ballew v. State, 15 Okla. Cr. 645, 179 Pac. 945. It follows that the motion to dismiss the appeal is well founded.

It is therefore considered, adjudged, and ordered that this appeal be and the same is hereby dismissed, and the cause remanded' to the trial court.

MATSON, P. J., and BESSEY, J., concur.


text:
    LOWDEN CARLE v. STATE.
    No. A-3977.
    Opinion Filed Jan. 12, 1924.
    (221 Pac. 797.)
    (Syllabus.)
    Appeal and Error — Where no Appearance nor Brief, Conviction Affirmed Unless Prejudicial Error Appears. In an appeal from, conviction for murder, where no brief is filed, nor oral argument made, and where Attorney General moves to affirm the judgment for failure to diligently prosecute the appeal, the record proper, together with the transcript of the evidence, will be examined, and, if no prejudicial error appears, and the evidence is found sufficient to sustain the verdict and judgment, the judgment will be affirmed.
    Appeal from District Court, Canadian County; James I. Phelps, Judge.
    Lowden Carle was convicted of murder, and he appeals.
    Affirmed.
    Pruiett, Sniggs, Patterson & Morris, E. G. McAdams, and W. A. Briggs, for plaintiff in error.
    The Attorney General, for the State.
   MATSON, P. J.

Plaintiff in error, Lowden Carle, was by information filed in the district court of Oklahoma county on August 2, 1919, charged with the murder of one Newell Lessenger, alleged to have been committed in said county on the 15th day of July, 1919. On application of the defendant a change of venue was granted to Canadian county, and this trial was had in said county in the month of October, 1920, resulting in a verdict of guilty of murder as charged, with punishment assessed at imprisonment in the state penitentiary for life. The verdict was returned October 30, 1920. Motion for a new trial was filed and overruled, and on the 4th day of November, 1920, judgment was pronounced in accordance with the verdict. From such judgment an appeal was taken to this court by filing herein on the 4th day of May, 1921, a petition in error with case-made attached.

No brief has been filed in behalf of plaintiff in error, nor was any appearance made to orally argue this cause at the time same was finally submitted. The Attorney General has filed a motion to affirm the judgment on the record filed. No response has been made to said motion, although the time allowed by the rule of this court for making such response has expired. For such reasons it is apparent to the court that this appeal has practically been abandoned.

Rule 9 of this court provides:

“When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court, and the exceptions taken thereto, and the judgment and sentence, and, if no prejudicial error appears, will affirm the judgment.”

Ordinarily this appeal would be affirmed under the foregoing rule, but, in view of the fact that this is a conviction for murder, with imprisonment for life imposed as the punishment, the court has not only examined the record proper, but also has examined to a considerable extent the transcript of the evidence, which contains approximately 1,000 pages, for the purpose of determining whether or not the evidence is sufficient to support a conviction for murder. The investigation thus made discloses ample evidence to support the verdict and judgment, and from the record before us, the proceedings leading up to the charge, the charge itself, the minutes of the trial and the plea, the instructions, the verdict, and the judgment are all regular and sufficient in law to support this conviction, and it is not made to appear therefrom that any error prejudicial to the substantial rights of this plaintiff in error occurred to authorize a reversal of the judgment.

For reasons stated, the judgment is affirmed, and the cause remanded to the district court of Canadian county.

BESSEY and DOYLE, JJ., concur.