text:
    RUTH WILLARD v. STATE.
    No. A-6775.
    Opinion Filed June 22, 1929.
    (278 Pac. 402.)

      Bristow & Johnson, for plaintiff in error.
    Wm. McFadyen, Co. Atty., and C. Ross Hume, Asst. Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Caddo county on a charge of having possession of intoxicating liquor with intent to sell the same, and her punishment fixed by the jury at a finé of $100 and imprisonment in the county jail for 30 days.

The case was tried on the 2d day of August, 1927, and judgment rendered on the verdict of the jury on August 8, 1927. The appeal was filed in this court on the 7th day of October, 1927. No briefs in support of the appeal have been filed, nor was there any appearance for oral argument at the time the case was submitted.

An examination of the record discloses no jurisdictional or fundamental error.

The cause is therefore affirmed.

EDWARDS, P. J., and DAYENPORT, J., concur.


source: Caselaw Access Project

author: DAVENPORT, J.

license: Public Domain

text:
    Ex parte WALTER TAYRIEN et al.
    No. A-7435.
    Opinion Filed June 22, 1929.
    (278 Pac. 400.)

      Lee Williams, J. C. Daugherty, and Hargis & Yar-brough, for petitioners.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

Walter Tayrien and Roy Mc-Clintock filed in this court a duly verified petition in which they allege they are illegally restrained and unlawfully imprisoned by J. C. Tucker, sheriff of Washington county, state of Oklahoma; that petitioners were arrested in Washington county on the 27th day of May, 1929, on a warrant issued by one A. W. Jenkins, justice of the peace in and for the city of Bartlesville, Washington county, on a complaint filed before said justice of the peace, which complaint charged the petitioners, and each of them, with the crime of rape in the first degree, committed in the said Washington county on or about the 4th day of April, 1929; that after the arrest of the petitioners they were taken before the said A. W. Jenkins, justice of the peace, and were given a preliminary examination upon said complaint ; that upon said hearing no competent evidence was introduced to in any manner connect petitioners with the commission of the crime charged against them, nor was there any proof introduced showing any crime had been committed, but, on the contrary, the proof tends to show that no crime had in fact been committed, and hence there was no reason or probable cause to believe petitioners guilty of such crime.

Petitioners further show that they applied to the district court of Washington county for a writ of habeas corpus and that the writ was denied them, and they are now still confined by the respondent in the county jail of Washington county, state of Oklahoma. Attached to the petition is a duly certified transcript of the testimony taken upon said preliminary examination. A rule to show cause issued returnable June 20, 1929, at 10 o’clock h. m., at which time the application was submitted on the petition, return of the officer to the rule, and the transcript of the testimony taken at the preliminary trial.

Upon a careful examination of the record and the evidence, we hold there is no legal or competent evidence to show that the defendants, or either of them, committed the offense charged in the complaint. The testimony of the girl alleged to have been raped shows conclusively that no sexual intercourse was had with her by either of. the defendants. There being no legal or competent evidence to establish the corpus delicti, it is ordered that the petitioners be discharged.

EDWARDS, P. J., and CHAPPELL, J., concur.


author: EDWARDS,' P. J.

text:
    A. A. DANIELS v. STATE.
    No. A-6724.
    Opinion Filed June 22, 1929.
    (278 Pac. 400.)

      . C. F. Gowdy, McGhee & Davis, and H. H. Montgomery, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS,' P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Washington county of burglary in the second degree and his punishment fixed at seven years in the state penitentiary.

The judgment was rendered in February, 1927, and the appeal was lodged in this court in August, 1927. No briefs in support of the appeal have been filed, and no appearance for oral argument was made at the time the case was submitted. It has been many times held by this court that where an appeal from a felony is prosecuted and no briefs are filed nor oral argument made, the court will examine the record for jurisdictional and fundamental errors and to ascertain if the evidence reasonably sustains the judgment. If no such errors appear and the evidence is sufficient, the case will be affirmed.

An examination of this record discloses no reason for a reversal. We are of the opinion, however, that the punishment assessed is excessive under all the circumstances. The judgment is, therefore, modified by reducing the punishment to five years in the penitentiary, and, as modified, the case is affirmed.

DAVENPORT and CHAPPELL. JJ.. concur.


author: EDWABDS, P. J.

text:
    GERALDEAN QUINN v. STATE.
    No. A-6795.
    Opinion Filed June 25, 1929.
    (278 Pac. 409.)
    Gaylord R. Wilcox, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWABDS, P. J.

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

The information, in substance, alleges that the defendant married one William Quinn in the state of Kansas, and on or about the 5th day of July, 1926, did live and cohabit with said Quinn at Drumright, Creek county, Oklahoma; that said defendant at the time had a lawful husband living, to wit, one R. C. McClung, from whom defendant had procured a divorce on February 15, 1926; and that in so marrying and cohabiting with the said Quinn, defendant was guilty of the crime of bigamy. A decree of divorce is in evidence dated February 15, 1926, by which defendant was divorced from R. C. McClung, her then husband. The evidence further discloses that defendant married William Quinn in the state of Kansas July 5, 1926, and in the latter part of the month they were living together as husband and wife in Creek county.

No briefs in support of the appeal have been filed, but on account of the importance of the question involved we have made some independent research. The prosecution is under the provisions of section 510, Comp. Stat. 1921, as amended by chapter 119, of the Session Laws 1925. Section 510, as amended, reads as follows:

“Section 510. A party desiring to appeal from a judgment granting a divorce, must within ten days after such judgment is rendered file a written notice in the office of the clerk of the court, duly entitled in such action, stating that it is the intention of such party to appeal from such judgment. If notice be filed as aforesaid, the party filing the same may commence proceedings in error for the reversal or modification of such judgment at any time within four months from the date of the decree appealed from and not thereafter. And it shall be unlawful for any person who has a living husband or wife to marry another person in any other state within six (6) months from date of decree of divorcement granted in this state and cohabit with such second husband or wife in this state during said period. It shall be unlawful in any event for either party to such divorce suit to marry any other person within six months from the date of the decree of divorcement; and if notice be filed and proceedings in error be commenced as hereinbefore provided, then it shall be unlawful for either party to such cause to marry any other person until the expiration of thirty days from the day on which final judgment shall be rendered pursuant to such appeal. Any person marrying or otherwise violating the provisions of this section shall be deemed guilty of bigamy.”

Section 511 fixes the punishment for bigamy as defined in the above section.

Prior to this amendment, a person divorced in this* state, who thereupon went outside the state and married another person and returned into the state and cohabited with such person, was not guilty of bigamy, since the subsequent cohabitation was not the gist of the offense as then defined. Wilson v. State, 16 Okla. Cr. 471, 184 Pac. 603. The amendment of section 510- was no doubt made to meet the condition that arose in the Wilson Case. Since our law has no extraterritorial effect and this state cannot punish one who marries outside this state within the inhibited period from the granting of the divorce, the amendment has in effect broadened the definition of bigamy or defined a new offense of bigamy.' That is, it has made cohabitation within the state during the inhibited period after marriage in a foreign state bigamy. We know of no reason why the Legislature might not make this further or broader definition of the crime of bigamy. See Reeves v. State, 36 Okla. Cr. 186, 253 Pac. 510.

The record discloses that in the course of the trial defendant’s counsel took the position that chapter 119 of the Session Laws 1925, is unconstitutional in so far as it defines and enlarges the definition of bigamy for the reason that the title to said act is not sufficiently broad, and that the act in this particular is in violation of article 5, § 57, of the state Constitution. This section is as follows :

“Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title, except general appropriation bills, general revenue bills, and! bills adopting a code, digest, or revision of statutes; and no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred shall be re-enacted and published at length: Provided, That if any subject be embraced in any act contrary to the provisions of this section, such act shall be void only as to so much of the law as may not be expressed in the title thereof.”

The title to the act reads: “An act amending section 510, of the C. O. S. 1921, relating to remarrying within six months from the date of decree of divorce, repealing all laws in conflict herewith.”

It is well settled that it is not necessary for the title to an act of the Legislature to embrace an abstract of its contents. It is sufficient if the title contains a reasonable intimation of the matter under consideration. In re Powell, 6 Okla. Cr. 495, 120 Pac. 1022; Jackson v. State, 22 Okla. Cr. 338, 211 P. 1066. It has also frequently been said that a liberal construction should be applied to an act of the Legislature when its validity is questioned on constitutional grounds, and before it should be held to be invalid it should appear to be unconstitutional beyond a reasonable doubt; that to doubt its constitutionality is to uphold it. State v. Wheatley, 20 Okla. Cr. 28, 200 Pac. 1004; Jackson v. State, supra. See, also, State v. Tibbetts et al., 21 Okla. Cr. 169, 205 Pac. 776. In the case of Pottawatomie County et al. v. Alexander, 68 Okla. 126, 172 Pac. 436, it was held by the Supreme Court that an act to amend a particular section of the general law is limited in its scope to the subject-matter proposed to be amended. Such amendment ex vi termini implies merely a change in its provisions upon the same subject to which the original section relates. This opinion quotes with approval the case of Dolese v. Pierce, 124 Ill. 140, 16 N. E. 218, to the same effect and follows the general rule. See, also, Ex parte Masters, 126 Okla. 80, 258 Pac. 861. The requirements of the rule announced are fully complied with in the title under consideration, since this title clearly discloses that chapter 119 is an amendment of section 510, Comp. Stat. 1921, and further states that the act relates to remarrying within six months from the date of the decree of divorce. Section 510 was section 4551 of the Statutes of 1893, and was section 4971 of the Revised Laws of 1910. It has all this time 'carried a provision that the remarrying of a divorced husband or wife within a period of six months from the date of the decree of divorce was bigamy. The title set out is sufficiently broad, to cover the amendment enlarging the definition, of this special form of bigamy to include cohabitation after marriage in another state as was done. The act is not unconstitutional.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


author: CHAPPELL, J.

text:
    HUGH REYNOLDS v. STATE.
    No. A-6519.
    Opinion Filed June 15, 1929.
    Rehearing Denied June 29, 1929.
    (278 Pac. 358.)

      S. A. Horton, for plaintiff in error.
    J. K. Wright, Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on the charge of having possession of liquor with intent to barter, sell, or give away the same, and was sentenced to pay a fine of $75 and be imprisoned in the county jail for a period of 30 days. Motion for new tidal was filed, overruled, and exceptions saved, andi the case appealed to this court.

The evidence of the state was, substantially: That the defendant, with one Pauline Cadd, was in one of the hog sheds at the State Fair Grounds in Oklahoma City, and that the defendant was in possession of a quart of whisky. That Pauline Davis, 13 years old, Helen Fay, 15 years old, Charles Clark, and Paul Heck drove into the same hog shed while the defendant and Pauline Cadd were there, and that the defendant, Hugh Beynolds, was in the possession of a quart of whisky. That Hugh Beynolds gave the quart of whisky to Charles Clark, and they forced Pauline Davis and Helen Fay to drink some of the whisky and they became intoxicated. Later the parties all left the hog shed and drove to a pop stand, where they spiked the pop with the balance of the whisky and drank the same. Charles Clark and Paul Heck and the defendant then drove with these two little girls about the city until 6:30 o’clock the next morning, when they took the little girls home. The defendant testifying on his own behalf claimed he found the bottle of whisky sitting in an old truck in the hog barn, and that he took it and set it down in the barn on a rail, but denied that he gave the liquor to any of the parties. The defendant also admitted that he helped mix the drinks by pouring the whisky into the pop bottles, but denied that the girls drank any part of it. This is in substance the evidence offered by the state and the defense. Two of the state’s witnesses testified that the defendant had the bottle of whisky and gave it to them to drink. The defendant claimed that he had found the whisky, admitted that he set it down where Charley Clark could and did pick it up, and the defendant is corroborated in his story by the other witnesses offered by the defendant.

The first assignment of error is that the evidence was wholly insufficient to sustain the judgment of the trial court. If the jury believed the evidence of Pauline Davis, the 13 years old girl, and Paul Heck, there, was ample evidence to support the charge that the defendant was in possession of the liquor and did give it to the others to drink. The defendant was a man 23 years of age, a carpenter by occupation, out in the nighttime helping, as the evidence indicated, to lead astray these two young girls. The evidence being sufficient to support the verdict of the jury, the trial court did not err in overruling the defendant’s demurrer to the evidence.

The defendant next complains that the court erred in refusing to give instructions Nos. 1 and 2 requested by the defendant. The instructions requested by the defendant did not clearly state the law as applied to the issues developed by tbe case. Tbe instructions given by tbe court on its own motion clearly state tbe law and were as favorable to tbe defendant as tbe evidence in tbe case warranted. This court bas repeatedly beld that tbe instructions must be considered as a whole, and, when considered altogether if they fairly and correctly state tbe law applicable to tbe case, they will be sufficient.

Tbe evidence being sufficient to support tbe verdict, tbe errors of law complained of not being sufficient to justify a reversal of tbe case, tbe cause is affirmed.

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


text:
    DEWEY COOPER v. STATE.
    No. A-6626.
    Opinion Filed June 29, 1929.
    (279 Pac. 358.)

      John F. Pendleton, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Tbe plaintiff in error, hereinafter railed defendant, was convicted in the district court of Nowata county of larceny of a motor vehicle, and his punishment fixed at five years in the state penitentiary. The cause is now on appeal in this court.

For his first ground of error, the defendant alleges that the verdict of the jury is contrary to the evidence and wholly unsupported by the same. The evidence of the state tended to prove that the defendant was in the town of Nowata on the day in which the larceny of the car was alleged to have occurred, and was seen near the place where the car was parked. The state further showed that the car was run into a ditch by the side of the road some distance from Nowata, and the defendant went to a nearby house to procure help to pull the car out of the ditch. The witness Teel positively identified the defendant as the man who came to get the help and who was in possession of the car. The witness Yannoy testified that he was visiting his father’s home, and took a horse and went down to pull the car out of the ditch. While not as positive in his identification of the defendant as was the witness Teel, he nevertheless said that in his judgment the defendant was the man in possession of the wrecked car at the time he pulled it out of the ditch. The state also introduced other witnesses tending to connect the defendant with the crime charged. The defendant offered evidence tending to show that some other person might have stolen the car. We are of the opinion that the evidence was not only sufficient, but was overwhelming, as to the guilt of the defendant.

In the case of Calvert v. State, 10 Okla. Cr. 185, 135 Pac. 737, this court said:

“Under the law in Oklahoma controverted questions of fact, involving the guilt or innocence of a person on trial in a court of competent jurisdiction, before a jury, are to be settled exclusively by such jury. When an accused is on trial and there is a direct conflict in the testimony between witnesses for the state and. witnesses for such accused on the material issues, this court, in the absence of error of law, will not on appeal reverse a conviction.”

The defendant next complains of errors of law occurring at the trial by which the defendant was deprived of a fair trial. The basis of this complaint is that, on the day of the trial of this cause, there was published in the Nowata Daily Star, by J. T. Norton, the man who owned the car that was stolen, an article in which mention was made of the trial of this cause. While the jury was being impaneled, the defendant called the article to the attention of the trial judge in the absence of the jury, and challenged the panel upon the ground that certain jurors, having read the article, were thereby biased and prejudiced against the defendant, and, if such jurors were permitted to serve on the jury, the defendant would thereby be denied the impartial trial required by law.

Prospective jurors A. F. Snodgrass, George Woodward, and T. L. Dowell, testified that they had read the article, but that they had not formed or expressed an opinion as to the guilt or innocence of the defendant. The article is set out in full in the case-made, and we are unable to see anything in it that would bias or prejudice a juror against the defendant. The jurors challenged testified positively that the article had hot influenced them either for or against the defendant, and that they had not formed or expressed any opinion of the guilt or innocence of the defendant. After the defendant had exhausted his peremptory challenges, there was still left on the panel T. L. Dowell, one of the jurors who had read the article.

In the case of Jones v. State, 8 Okla. Cr. 576, 129 Pac. 446, this court said:

“Before a juror is disqualified on account of an opinion, it must appear that the opinion is fixed and is such as will combat the evidence and resist its force. A mere impression as to the guilt or innocence of a defendant, where it appears to the court that a juror can and will disregard such impression and be governed entirely in arriving at a verdict by the testimony of the witnesses and the instructions of the court, will not disqualify such juror.
“Where there is nothing, in the record to show that an incompetent, disqualified, or otherwise objectionable juror was forced upon the defendant, this court will not consider an assignment of error based upon the ruling of the trial court on a challenge for cause.”

We are unable to see any merit in the contention of the defendant, either that the article was prejudicial, or that the juror Dowell was biased or prejudiced or affected in any manner by reading the article.

The defendant further complains of the admission of incompetent and immaterial evidence on cross-examination of the witness Teel. Defendant’s counsel inquired into why Teel was being held in jail, and to the further fact that the witness expected to be released from jail as soon as his testimony was completed. On redirect examination, the county attorney went further in the matter of the witness’ presence in the county jail, as to whether he had been requested by any one to leave the county until after the trial of the case. The witness, in answer to the county attorney’s questions, said that he was only being held in jail to be used as a witness in this case because it appeared that the witness had been induced by other parties to leave the jurisdiction of the court. The witness also testified that he had been threatened to induce him to leave the jurisdiction of the court. The witness testified that John Harkins and the defendant came to talk to him about the case, and that the defendant did not do any of the talking, but that the principal conversation occurred in the absence of the defendant, who sat on the porch while Harkins and the witness went around the corner of the house. The witness testified after this conversation he went to Kansas and was later brought back to Nowata and placed in jail to testify in this case. The defendant having opened the question of why the witness was in the county jail and what promises had been made to him of release, the county attorney had the right, on redirect examination, to get all the facts in the matter before the jury.

The evidence being sufficient to support the verdict, and no fundamental errors of law appearing upon the record, the cause is affirmed.

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


text:
    SID BONE v. STATE.
    No. A-6632.
    Opinion Filed June 29, 1929.
    (279 Pac. 363.)

      J. W. Dixon and Brown & Williams, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Love county of assault with a dangerous weapon and his punishment fixed by the jury at confinement in the state penitentiary for three years. Motion for new trial was filed, overruled, exceptions saved, and the case is now on appeal in this court.

The defendant alleges as his first ground of error that the court erred in permitting the introduction of evidence by the state tending to show that the blow inflicted by the defendant with a dangerous weapon resulted in the death of Jim Armstrong, the party assaulted by the defendant. After the state had introduced this evidence on motion of the defendant, the court excluded the evidence and instructed the jury not to consider the same.

The first question under this assignment is: “Was the admission of this evidence error?” 5 Corpus Juris, § 322, p. 786, states the rule as follows:

“Evidence may be introduced to show the nature, character and extent of the injuries sustained, as indicative of the intent for which they were inflicted.”

The state contends that this evidence was admissible on the question of whether or not the piece of iron used to inflict the injury on the head of the said Jim Armstrong was in fact a dangerous weapon. The said piece of iron was not per se a dangerous weapon; therefore it only became a dangerous weapon because of the manner and result of its use.

In the case of Wilcox v. State, 13 Okla. Cr. 599, 167 Pac. 74, this court said: '

“The use of a dangerous weapon is what distinguishes the crime of an assault with a dangerous weapon with intent to do bodily harm from a simple assault. A dangerous weapon is one likely to produce death or great bodily injury by the use made of it, or perhaps it is more accurately described as a weapon which in the manner it is used or attempted to be used endangers life or inflicts great bodily harm.”

In the case at bar the fact of the death of Jim Armstrong was a circumstance from which the jury could conclude that the iron bar used as a weapon was in this instance not only a dangerous weapon but a deadly weapon as well, both from the manner of its use and the effect that the blow actually had upon the said Jim Armstrong. If the blow from the dangerous weapon in the hands of the defendant had broken the arm of Jim Armstrong, the state could undoubtedly have shown that as being the extent of his injury for the purpose of establishing the dangerous nature of the weapon used, it would certainly follow that if the blow had broken his neck the state could have shown that as establishing the fact that the weapon used was a dangerous one. The court therefore did not commit error in permitting the state to prove the extent of the injury inflicted by the defendant with the dangerous weapon, even though the proof showed the final death of Armstrong, The error of the court was the withdrawing of this evidence from the jury, and, being an error in favor of the defendant, he is in no position to complain.

•Section 2704, Comp. Stat. 1921, provides:

“If it appear by the testimony that the facts proved constitute an offense of a higher nature than that charged in the indictment or information, the court may direct the jury to be discharged, and all proceedings on the indictment or information to be suspended, and may order the defendant to be committed or continued on, or admitted to bail, to answer any new indictment or information which may be filed against him for the higher offense.”

Under this section of the statute, and under the proof in this case, it was the duty of the county attorney to dismiss the information in the case at bar and file an information against the defendant for murder. If the county attorney failed to do this, it was the duty of the trial judge on the trial of the case, under the facts revealed in this record, to direct the county attorney to proceed' according to the provisions of section 2704. We cannot understand why, considering the state of the record, the county attorney proceeded to trial, nor can we understand why the eminent trial judge failed to direct the county attorney to proceed as required by section 2704. The evidence in this case was ample to sustain the charge of manslaughter in the first degree, and the cause should have been prosecuted under the higher grade of offense. The defendant should count himself very fortunate to escape with a penalty of three years, considering the nature of the crime committed.

The defendant next complains of certain alleged remarks of the special prosecuting officer. The case-made contains no recital or bill of exceptions showing that the special prosecuting officer made any of the remarks complained of. The only thing in the record about any such alleged remarks is a statement of counsel for the defendant. This is not a recital nor a bill of exceptions, nor does it rise to the dignity of an affidavit. Before this court is authorized to pass upon this alleged ground of error, there must be some showing in the record that the remarks were made by the special prosecuting counsel. This showing must be made either by the recital in the record to that effect or by a separate bill of exceptions.

In the case of Miller v. State, 9 Okla. Cr. 255, 131 Pac. 717, L. R. A. 1915A, 1088, this court said:

“Improper remarks made by a prosecuting attorney in his argument to the jury must be incorporated in the case-made and certified to by the trial judge before they can be considered upon appeal. Such remarks cannot.be presented by affidavit or in any other manner, unless it appears from the record that counsel for the defendant requested the trial judge to have, such remarks taken down by the stenographer in order that they might be incorporated in the record and that the court refused to have this done.”

The defendant’s second ground of error presents no question for consideration by this court, and the objections of the defendant were properly overruled.

The defendant assigns numerous other grounds of error, but does not argue them in Ms brief. They are all without merit.

The evidence being sufficient to support the verdict of the jury, and no fundamental error of law appearing upon the record, the cause is affirmed.

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


author: EDWARDS, P. J.

text:
    GENE TAYLOR v. STATE.
    No. A-6465.
    Opinion Filed July 2, 1929.
    (279 Pac. 361.)
    Criswell & Billingsley and Hill & Banta, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Seminole county on a charge of having the unlawful possession of intoxicating liquor and was sentenced to serve a term of 120 days in the county jail and to pay a fine of $500.

Several assignments of error are argued, but we think it is necessary to consider only one. It is argued that the court erred in overruling defendant’s motion to suppress evidence obtained by the search warrant. The record discloses the following: Before any evidence was offered, defendant moved to suppress evidence obtained by the search for the reason that no affidavit was filed before the justice of the peace for the issuance of such warrant. This was overruled. Defendant then made an offer of proof by the justice of the peace who issued the search warrant, stating that, if permitted, the, justice would testify that the search warrant was signed by him in blank, and that the same was filled out in his absence, and that he did not know and had no information on whom said warrant was to be served, and further offered to prove that the affidavit produced was written subsequent to the execution of the search warrant. These offers of proof were objected to by the county attorney and the objections sustained. The county attorney objected to these offers of proof as follows:

“Objected to for the reason that the proceedings of the court below are presumed to be regular and for the further reason the search warrant and the affidavit upon which it is based cannot be attacked at this time but must be, if attacked at all, by a motion prior to the time of this action.”

Section 30 of the Bill of Rights of the State Constitution forbids all unreasonable searches and seizures. Section 7012, Comp. St. 1921, provides:

“No search warrant shall issue but upon probable cause, supported byj oath or affirmation describing as particularly as may be the place to be searched, and the person or thing to be seized.”

See, also, sections 2878, 2879, 2880, Comp. St. 1921.

If this constitutional and statutory guaranty is to have any effect, evidence obtained by such violation must be excluded. Cornelius on Search and Seizure, § 7; Weeks v. U. S., 232 U. S. 383, 34 S. Ct. 341, 58 L. Ed. 654, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Thompson v. State, 190 Ind. 363, 130 N. E. 412.

A search warrant issued without an affidavit showing probable cause is a nullity, and evidence procured by a search under such warrant should on timely objection be excluded. Wingfield v. State. 33 Okla. Cr. 342, 244 Pac. 53. Where evidence obtained by a search warrant is objected to by an accused for the reason that the search warrant was issued without an affidavit, evidence of such fact is not proper to go to the jury; but the accused is entitled to show this if he can as going to the admissibility of the evidence, and it is the duty of the court to exclude the jury and to hear the evidence for such purpose, and when it appears that the search warrant was issued without an affidavit the objection should be sustained and the evidence excluded. The ruling of the court was clearly erroneous.

The case is reversed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    LOUIS A. SANFORD et al. v. STATE.
    No. A-6442.
    Opinion Filed July 3, 1929.
    (279 Pac. 360.)

      Prentiss E. Rowe, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiffs in error, hereinafter called the defendants, were convicted upon a charge of possession of intoxicating liquors with the unlawful intent to sell, transfer, give away, furnish, and otherwise provide the same to others, in violation of the prohibitory liquor laws of the state of Oklahoma, and each sentenced by the court to pay a fine of $150 and be imprisoned in the county jail for 30 days. Motion for a new trial was filed, considered, and overruled, and the defendants have appealed to this court.

The testimony in substance, is as follows: D. L. Lancaster testified he was undersheriff of Pawnee county, Oklahoma, on May 26, 1926; that he and Allen Jones, the sheriff, received a call about 8 or 9:30' o’clock and drove over to Skedee; he had been acquainted with the defendant Sanford all his life, and with Mr. Miller for about a year; that he and the sheriff together arrested the defendants at a section line south and west of Skedee; “when we got in 75 or 100 yards of the car we noticed' Mr. Sanford and Mr. Miller out to the side of the car, and we jumped out and put them under arrest; after that we looked around and found a jug on the inside of the field near where the two defendants were; the defendants did not admit having this whisky there; Dutch Hepple and the Eaton boy were there in the car; I do not know how old Dutch Hepple is, he is about 17 or 18 years old; Puff Eaton probably 18.”

The witness then identified the jug they found in the field by the post near where the defendants were when placed under arrest; the defendants were not in actual possession of this whisky. Allen Jones testified, in substance, the same as witness Lancaster. On cross-examination, witness Jones testified it was a dark night; that he never saw either of the defendants with the jug. The defendants denied the possession or ownership of the whisky found by the officers.

The defendants and each of them have assigned seven errors alleged to have been committed by the trial court. The first assignment of error is, the court erred in overruling the motion of plaintiffs in error for a new trial; second, the court erred in not sustaining the demurrer of the plaintiffs in error to the information; and, third, the court erred in not sustaining the demurrer of the plaintiffs in error to the evidence of the defendant in error.

The information in this case sufficiently states the crime of possession of intoxicating liquor with intent to sell, barter, give away, and otherwise furnish to others, and the demurrer to the information was properly overruled.

The testimony in this case tends to show the sheriff received a call of some kind and drove out to Skedee, and at something like a quarter of a mile from Skedee they saw these two defendants in the road near a car, and, without making any investigation, or attempt to ascertain what was going on, if anything, they placed the defendants under arrest, and then searched a field, and near a fence post on the inside of the fence near where the defendants were they found a jug of whisky; the officers did not see the jug of whisky until after they arrested the defendants; they had no warrant for their arrest, or to search their persons or the car which they were near. All the testimony on the part of the state shows that the defendants were not seen by the officers in possession of the jug of whisky at the time they were placed under arrest, nor had the jug of whisky been seen by the officers before they placed the defendants under arrest.

It is not contended by the state that the defendants were bartering, giving away, or selling to any one. There is no testimony in the record to show any intent on the part of either of the defendants, if the whisky belonged to them, to sell, barter, give away, or otherwise furnish it to others. The fact that the defendants were out on the road and that Dutch Hepple and Pud Eaton had driven out there with them, amounts to> a suspicion that, if either of the defendants had any whisky, they might sell or give some of it to these parties named, but it is only a suspicion. If the defendants or either of them had been found in actual possession of the whisky, then the quantity of whisky alleged is prima facie evidence that they intended to sell, give away, or furnish the same to others.

The question in this case to be determined is, Is the testimony sufficient to overcome the presumption of innocence and to show that the defendants intended to violate the prohibitory law. It is not contended by the state that the officers caught the defendants in the act of violating the law. The state’s testimony shows they were on the public highway and the officers placed them under arrest and looked around, and on the inside of the field, by a post hear where the defendants were, found this jug of whisky. The defendants were not committing a crime in the presence of the officers at the time they were placed under arrest.

We do not think the testimony in this case is sufficient to overcome the presumption of innocence of the defendants in the absence of any testimony tending to show that the defendants were in possession of the whisky alleged to have been found, with intent to sell, barter, give away, or furnish to others in violation of the prohibitory laws of the state.

In Caffee v. State, 1 Okla. Cr. 485, 148 Pac. 680, the court said:

'“With what intent a person keeps intoxicating liquors is always a question of fact for the jury, to be determined upon a consideration of all the evidence. In the determination of that question they are required by the statute to consider the keeping of a certain amount of intoxicating liquors as prima facie evidence of an unlawful intent. But that evidence may be rebutted by other evidence in the case, whether shown by evidence on the part of the defense, or by the state in connection with the evidence proving the possession. With such evidence, the jury must also take into consideration the presumption of the innocence of the accused until the contrary is proved beyond a reasonable doubt.”

It is also urged by the defendant that in the taking of the testimony the county attorney made a statement that was prejudicial to the rights of the defendant when the witness Allen Jones was on the stand being cross-examined by the defendant, when the following question was propounded, and gave the following answer:

“Q. And if you said that he thought you wouldn’t make any charge against him? A. There was never any promise like that made. I said if he wanted to make a statement it would be all right and we would go and see the county attorney.
“Mr. Johnson: The reason I said that was because today he said he would back up on that. (The defendant objected to the remark and asked that it be' stricken.) ”

The court overruled the objection, and defendants failed to except. If the defendants expected to take advantage of the remarks of the county attorney, and to have them stricken, they should have excepted to the ruling of the court in refusing defendants’ request to have the remarks of the county attorney stricken at the time and let the record so show. Failing to except to the ruling of the court, the defendants waived their right to have the question considered by this court.

The defendants in this case may be guilty, but there is not sufficient evidence to authorize their conviction under the law. The state failed to show the unlawful possession and intent to sell, and for that reason the court should have sustained the motion of the defendants to direct a verdict of acquittal.

The judgment appealed from is therefore reversed.

EDWARDS, P. J., and CHAPPELL, J., concur.


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    WALTER O’QUINN v. STATE.
    No. A-6432.
    Opinion Filed July 3, 1929.
    (279 Pac. 368.)
    Hamilton, Gross & Howard, for plaintiff in error.

      • Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Jefferson county, for robbery of the First National Bank of Addington with firearms, and was sentenced to imprisonment in the state penitentiary for a term of 35 years. Motion for new trial was filed, considered, and overruled, and the case appealed to this court.

This is a companion case to the case of Cornett v. State, 42 Okla. Cr. 93, 274 Pac. 676. The state introduced in this case the testimony in substance as was introduced in Cornett, supra, and the record discloses, in substance, the same objections to the introduction of the testimony, and practically the same errors as alleged in the Cornett Case are alleged in this case. It would serve no good purpose to set out in detail in this opinion the testimony of the two accomplices, Happy Bohanan and Ernest Hensley, who admitted on the witness stand they robbed the Bank of Addington and attempted to implicate this defendant in the robbery as an accomplice.

After a careful reading of all of the testimony in this case, we hold that, independent of the testimony of the witnesses Hensley and Bohanan, there is not sufficient evidence of a convincing character to show that the defendant had anything to do with the robbery, or that he aided or abetted in it, and there is no testimony corroborating Happy Bohanan and Ernest Hensley.

For reasons for reversing this case see Cornett, supra. The case is reversed and remanded.

EDWARDS, P. J., and CHAPPELL, J., concur.


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    ROY PARKER et al. v. STATE.
    No. A-6463.
    Opinion Filed July 3, 1929.
    (279 Pac. 362.)
    Criswell & Billingsley, for plaintiffs in error.
    Homer H. Bishop, Co. Atty., for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Seminole county on a charge of unlawful possession of whisky mash fit for distillation into com whisky and each sentenced to pay a fine of $50, and each to be imprisoned in tbe county jail for 30 days. Tbe motion for new trial being overruled, tbe case is now in this court on appeal.

It is only necessary to consider one question, and that is, Is tbe evidence sufficient to support tbe verdict of tbe jury? Tbe state called, as witnesses, W. C. Montgomery and W. G. Nelms. These witnesses testified, in substance, that they found four barrels of masb in a small ravine about two miles from tbe borne of tbe defendant Hoy Parker; that tbig masb wag ripe and ready to run. Tbe witnesses waited near tbe masb until dark, when they saw two men approaching. When tbe men were within about 15 feet of one of tbe officers, be threw a flash-light in their faces and commanded them to bait. Immediately tbe men began to run and escaped from tbe officers. Thé officers found two caps supposed to have been dropped by tbe fleeing men. Tbe next morning tbe officers went to tbe home of the defendant Parker and claimed to have followed tracks from tbe home of Parker back to tbe masb, but there was no showing that these tracks were tbe tracks of either one of tbe defendants, although tbe officers did testify that tbe defendants were the men who ran when they ordered them to halt. The officer Nelms testified as follows:

“Q. You don’t know whether these 2 negro boys you saw there that night bad anything to do with that masb? A. No, sir.”

That, in substance, is all the evidence offered by tbe state. This masb being found in a small branch in an out of the way place, and, there being no evidence to show that these negro boys bad any connection whatever with tbe masb, we are unable to see bow there is any evidence to connect tbe defendants with tbe possession of tbe same. The fact that tbe defendants were crossing tbe field and happened to come near the place where the mash was concealed was a suspicious circumstance. When the officers suddenly rose from behind the bank in the dark and threw a flash-light in the face of the defendant Chandler and commanded him to halt, the defendant used his legs and not his head and got out of there as fast as he could. The other defendant dived over the bank and disappeared in the darkness. Any one who knows a negro will readily understand that the defendants did the natural thing a negro would do under the circumstances — ran.

So long as county attorneys insist on prosecuting cases with no sufficient evidence as in this case, and so long as trial courts overrule demurrers to the evidence and motions for new trial on the ground of insufficient evidence, just so long will it be necessary for appellate courts to protect the liberty of defendants. These men are evidently two black farmer boys without friends or prestige, but their legal rights are as sacred before the law as the most powerful citizen in the state.

The cause is reversed, because there is no competent evidence tending to connect the defendants with the crime charged. The trial court is directed to dismiss the case.

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


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    STATE v. WILBUR HUNT.
    No. A-6932.
    Opinion Filed July 3, 1929.
    (279 Pac. 519.)

      A. N. Boatman and E. W. Smith, for the State.
    Joe Eaton, for defendant in error.
   DAVENPORT, J.

This in an appeal by the state upon a reserved question of law as provided in section 2807,, Compiled Statutes 1921, which provides that the state may appeal (1) upon a judgment for the defendant quashing or setting aside the information; (2) upon an order of the court arresting the judgment; and (3) upon the question reserved by the state’s appeal being of statutory origin, an appeal cannot be taken in any case excepting as. above stated.

The question of law reserved by the state herein arose in this wise: The defendant in error, Wilbur Hunt, was charged with the crime of burglary, a jury was impaneled and sworn. At the close of the testimony, the defendant filed the following demurrer:

“Comes now the defendant and demurs to the evidence offered on the part of the state, and asks that the court instruct the jury to return a verdict in favor of the defendant against the state of Oklahoma, for the reason that the evidence is wholly insufficient to prove the offense alleged in the information, or any other offense under the laws of the state.
“Second. For the further reason that there is no evidence on the part of the state corroborating in the slightest degree the testimony of the witness and accomplice Charley De Roule.
“Third. That there is a fátal variance between the allegations in the information and the proof on the part of the state.”

The demurrer was argued and sustained by the court, and the jury directed to return a verdict of acquittal. The state reserved an exception to the action of the court in sustaining the demurrer, and defendant then requested the court to direct the jury to return a verdict of not guilty against the defendant. The court directed the jury to return a verdict of not guilty, which was done, which verdict was signed and returned into open court, and the state has appealed to this court on a reserved question of law.

Since the defendant was acquitted by a verdict of the jury, this case as to him is at an end. He was in jeopardy by being put on trial and having the issues submitted to and determined by the jury. When the case was filed in this court, a motion of the defendant in error was filed,' in which motion it was. stated that the appeal was taken from the verdict and judgment of acquittal rendered in the trial court upon all the evidence introduced in the case, and for the further reason acquittal by a jury in the trial court is a complete bar to any further prosecution against the defendant in error, and therefore all questions involved in this appeal are moot, and no purpose can be served by this court reviewing the judgment involved'in this appeal.

Response was filed by the state, in. which it is urged that this court should pass upon the question as to whether or not there is a fatal variance between the allegations contained in the information and the evidence as introduced at the trial on behalf of the state. It is urged by the plaintiff in error that the question reserved by it should be settled by this court, for the reason that two other defendants are yet to be tried on the same charge^ and the plaintiff, in error cites the cases of State v. Skelton et ux., 36 Okla. Cr. 377, 254 Pac. 754, and Smith v. State, 30 Okla. Cr. 144, 235 Pac. 273. An examination of these cases shows that the question reserved there was the question of the admission of testimony or demurrer to the information.

In this ease the court sustained the demurrer of the defendant, and held that the testimony of the state was insufficient to sustain a conviction, and directed the jury to return a verdict of acquittal. The jury returned a verdict of acquittal, which verdict was received and filed by the court and made a part of the record in this case The judgment is final, and defendant cannot again be prosecuted for the offense charged in this information. The question as to the procedure to be followed in the trial of the two defendants jointly informed against with this defendant is not properly before this court for an opinion.

The question that was decided by the trial court was that the testimony was insufficient to sustain a conviction. No good purpose can be served by this court considering the sufficiency of the evidence and reviewing the evidence of the trial court in sustaining the demurrer. The motion to dismiss the appeal is sustained, and appeal is dismissed.

EDWARDS, P. J., and CHAPPELL, J., concur.


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    JOHN R. TURNER v. STATE.
    No. A-6647.
    Opinion Filed July 3, 1929.
    (279 Pac. 525.)

      John L. Ward and L. O. Todd, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county on a charge of manslaughter in the first degree, and sentenced to be imprisoned in the state penitentiary for eight years. Motion for new trial was filed, overruled, and exceptions saved, and. the case is now on appeal in this court.

The defendant complains, first, that the trial court erred in receiving the verdict. The case was tried by Hon. A. C. Brewster, a district judge, who was not a resident district judge, but who was assigned by order of the Chief Justice of the Supreme Court to hold a term of court in Tulsa county beginning on the 15th day of November, 1926, and lasting for thirteen days. The jurisdiction to hold court in Tulsa county under said order expired at midnight on the 27th day of November, 1926. The trial of this case commenced on November 26, 1926, and was concluded by the return of the verdict at midnight on November 27, 1926. On the 27th day of November, 1926, the Chief Justice of the Supreme Court issued another order assigning the said) Honorable A. C. Brewster to hold court at Tulsa for a period of three days beginning November 28, 1926. There is a dispute between the state and the defendant as to whether or not the verdict of the jury was actually received in open court before midnight on the 27th day of November, 1926. The case-made at page 523, has this recital:

“Thereupon, pursuant to the order of court, the jury retires until twelve o’clock midnight, November 27, 1926, at which time court is reconvened with the defendant present in court and the jury present in open court, and thereupon the following proceedings are had, to wit:
“The Court: Gentlemen of the jury, have you agreed upon a verdict in the case?
“The Foreman: We have.”

In our view of the case, it is immaterial whether this verdict was actually received before or soon after 12 o’clock midnight of November 27th. In the case of Layne v. State, 23 Okla. Cr. 36, 212 Pac. 328, this court said:

“A special or substitute judge authorized to hold court outside of his district, by virtue of an order made by the Chief Justice of the Supreme Court ending on a Saturday night, supplemented by another order beginning on Monday following, under circumstances recited in the opinion, was probably a de jure judge during the intervening .Sunday. * * *
“This court may look beyond the express terms of the Constitution (sec. 9, art. 7), and orders made pursuant thereto, to ascertain the "true intent and object of the lawmakers and of the judge acting thereunder relating to the powers of a special judge, and where such intent and object is manifestly to' carry out the lawmakers’ intent an inadvertent omission of Sunday from the period in which the special judge is authorized to hold court, will not deprive such special judge of supervising power over court officers during this particular Sunday.”

The defendant next complains of the misconduct of the county attorney in calling in the presence of the jury, one Lydia Turner, the wife of the defendant, as a witness for the state. It appears from the record that the only thing the assistant county attorney did, in the presence of the jury, that it is contended constituted such misconduct as to deny this defendant a fair and impartial trial, was to ask the bailiff to call as the next witness for the state, one Lydia Turner. It further appears that the jury was excused, and that the witness Lydia Turner wasi placed upon the witness stand, and that as soon as it was made to appear that she was still the wife of the defendant, the court refused the state permission to use her against the defendant. Did the mere calling of her name, as a witness for the state, by the county attorney, in the presence of the jury constitute such official misconduct on his part as to require this court to reverse this judgment? There was no persistent effort here to get incompetent testimony before the jury, nor to have an incompetent witness testify. It is objectionable practice for the state in a criminal case to call a wife to testify against her husband, and thereby compel him to object to such witness testifying. Misconduct of this kind will be considered and construed by this court in reference to the evidence, and, if it appeal’s that the alleged misconduct probably determined the verdict, a new trial should be granted. In this case it is apparent that the defendant was at least guilty of. manslaughter under his own testimony in the case. The evidence of the defendant’s guilt of the crime of manslaughter is such that this judgment should not be reversed except for error of the most fundamental and prejudicial nature. A careful examination of the whole record discloses that an honest jury could have returned no other verdict except guilty. We are therefore of the opinion that the calling of the name of the wife of the defendant as a witness for the state, while improper, is not sufficient misconduct to require a reversal of this case.

The defendant next complains of the bias and prejudice of the trial judge in the conduct of the trial. This assignment can be disposed of with the remarks used by this court in disposing of a similar contention in the case of Davis v. State, 35 Okla. Cr. 86, 249 Pac. 165, wherein the court said:

“It is contended that certain remarks of the court and of the county attorney were prejudicial. Some of the remarks complained of were invited, if not encouraged, by the defendant’s counsel. To some others there were no exceptions taken. Considering all that transpired at the trial, we think the court and prosecuting attorney exercised a remarkable degree of restraint and caution, and in this regard committed no prejudicial error.”

Defendant next complains of the error of the court in rejecting certain testimony tendered by the defendant. Defendant has incorporated in his brief numerous excerpts from the record disclosing adverse rulings of the trial court- on testimony tendered by the defendant. Defendant advances no argument and cites no authority to show in just what respect this proffered evidence was competent. The burden is upon the appellant, not only to establish error, but also that the error, if any, was prejudicial to him. Killough v. State, 6 Okla. Cr. 311, 118 Pac. 620.

•Rule 7 of this court requires the full substance of the evidence rejected stating specifically the objection and also a brief of the argument exhibiting a clear statement of the point of law or fact to be discussed, with a reference to the pages of the record and the authorities relied upon in support of each point. Counsel gave no reasons why the rulings were erroneous, and cites no authorities in support thereof. For the reasons stated, the assignment of error presents no question for consideration by this court.

The defendant next complains that the court erred in refusing to let the defendant testify that, at the time he shot the deceased, the defendant was “in a manner insane.” Under this assignment,, the only argument advanced that the trial court’s ruling was erroneous is that the issue of insanity may be introduced under a plea of not guilty, and that no special plea of insanity is necessary under our criminal procedure. Suppose that is true, which we are not now deciding, and suppose that the trial court gave no good reasons for excluding this proffered testimony, that would be no reason for reversing this judgment if in truth the ruling of the trial court was correct. Proof that the defendant was “in a manner insane” is meaningless. In order to meet the requirements of our statute (Comp. St. 1921, § 1511, subd. 4), the proof of insanity must be such as to show the accused lacked mental capacity “to distinguish between right and wrong as applied to the particular act, and to understand the nature and consequences of such act.”

In the case of Adair v. State, 6 Okla. Cr. 284, 118 Pac. 416, 44 L. R. A. (N. S.) 119, this court said:

“Sanity being the normal and usual condition of mankind, the law presumes that every person is sane; hence the state in a criminal prosecution may rely upon such presumption without proof relative thereto'. But when the defendant in a homicide case produces sufficient evidence to raise a reasonable doubt of his sanity, the law then imposes on the state the burden of establishing the sanity of the defendant, the same as any other material fact necessary to warrant a conviction; and if, upon consideration of all the evidence in the case, the jury have a reasonable doubt that the defendant at the time of the commission of the act charged was mentally competent to distinguish between right and wrong, or to understand the nature of the act he was committing, he must be acquitted.”

Where the defendant in a homicide case fails to produce sufficient evidence to raise a reasonable doubt of his sanity, he cannot be heard to complain of any alleged errors ‘in the instructions of the trial court on the question of insanity. There was no competent evidence offered by the defendant that tended to raise the issue of insanity. If this proffered evidence tended to prove anything, it was lack of deliberation and premeditation, and, in view of the fact that defendant was not convicted of murder, its exclusion becomes harmless under any contingency.

Defendant next complains of the error of the trial court in refusing to give defendant’s requested instruction on the question of insanity. There being no competent evidence of insanity in this case, there was therefore no necessity to instruct on that issue.

Finally, it is contended that the trial court erred in overruling the defendant’s challenge to the integrity of the panel of the trial jury. The regular panel of petit jurors became exhausted before the trial jury was completed, whereupon the court ordered the sheriff and court clerk to draw from the jury box the names of twelve men to complete the panel. This was done, and the court took a recess to await the arrival of additional jurors drawn and summoned under such order. The record discloses that the trial court tested the qualifications of these jurors so drawn as aforesaid as they arrived in court without waiting for the others to arrive. Counsel for the defendant contends that this proceeding was irregular, and he attacks the integrity of the trial jury therefor.

At page 47 of the case-made is the following:

“The Court: Let the record show that there are now twelve good and lawful men in the jury box called as jurors in this case, and the defendant is now informed by the court of his right to challenge the jurors, and that he must do so before the jury is sworn, if he desires to do so.
“Mr. Hickman: The record shows we have exercised our peremptory challenges.
“The Court: I am not talking about something outside. I am talking about challenging this jury that exists in the box. That is what I understand this statute means.
“Mr. Ward: Well, your Honor, we must accept the jury.
“Mr. Hickman: We do accept the jury.”

The court having given the defendant the opportunity to challenge the panel before the jury was sworn, and the defendant having accepted the jury, he thereby waived any irregularities in the drawing and impaneling of the same.

The alleged errors relied on by the defendant are not sufficient to justify a reversal of this judgment. The evidence being sufficient to support the verdict of the jury, the cause is affirmed.

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


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    J. H. TERRELL et ux. v. STATE.
    No. A-6470.
    Opinion Filed July 3, 1929.
    (279 Pac. 365.)
    Hill & Banta, for plaintiffs in error.
    Homer H. Bishop, Co. Atty., for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Seminole county on a charge of unlawful possession of intoxicating liquor. The defendant J. H. Terrell was sentenced to pay a fine of $300 and be confined in the county jail for 90 days. Mrs. J. H. Terrell was sentenced to pay a fine of $200 and be confined in the county jail for a period of 30 days. Motion for new trial was filed, overruled, and exceptions saved, and the case is now on appeal in this court.

It is only necessary to consider two questions in determining this case: First, was the evidence of the state sufficient to prove that the apricot choc seized was in fact intoxicating? In the case of Richardson v. State, 21 Okla. Cr. 393, 208 Pac. 1052, this court said:

“The court will not take judicial notice of the intoxicating character of a beverage which is not made by any standard formula, is not generally offered for sale in this) jurisdiction, and has not become so well known as to have a general reputation as to its intoxicating character.
“To sustain a conviction for maintaining a public nuisance, in that defendant kept a place where choctaw beer was manufactured, the state must, if the beverage is not what is generally known as one of the spirituous, vinous, or malt liquors, introduce evidence either of its intoxicating effect or that it contained more than one-half of 1 per cent, of alcohol measured by volume.”

This court does not take judicial notice of the intoxicating character of apricot choc. There being no evidence to show that it is made by standard formula nor that it is generally offered for sale in this jurisdiction, the state should have forwarded samples of this beverage to the proper state officers to be analyzed and legal proof made of the alcoholic content of the beverage seized. The analysis is made by the state without expense to the county, and there is no reason why the same should not be done in that class of beverages which are not generally known as spirituous, vinous, or malt liquors and which are not made by any standard formula nor generally offered for sale in this jurisdiction.

Tbe next ground of error complained of by tbe defendant is that tbe court erred in overruling tbe offer of tbe defendant to show that tbe search warrant was signed in blank by tbe justice of tbe peace, and that tbe body of tbe search warrant was later filled out by some other person at this time unknown to tbe defendant; and was not tbe act of the justice of the peace and not a valid search warrant. Tbe county attorney objected to this proof and tbe objection was sustained by the court.

Section 7009, Comp. St. 1921:

“If it shall be made to appear to any judge of any court of record or any justice of tbe peace that there is probable cause to believe that liquor, tbe sale of which is prohibited by this act, is being, manufactured, sold, bartered, given away, or otherwise furnished, or is being kept for tbe purpose of being sold, bartered, given away, or otherwise furnished in violation of this act such judge or magistrate shall, with or without any endorsement of such complaint by the county attorney, issue a warrant, directed to any peace officer, in this county, whom the complaint may designate, commanding him to search the premises described and designated in such complaint and warrant and to seize all such liquor there found, together with the vessels in which it is contained, and all implements, furniture and fixtures used or kept for such illegal manufacture, selling, bartering, giving away or otherwise furnishing of such liquor, and safely keep the same, and to make return of said warrant within three days, showing all acts and things done thereunder, with a particular statement of all property and things seized, of the person or persons in whose possession the same were found, if any, and if no person be found in the possession of said property and things, his return shall so state. A copy of said warrant shall be served upon the person or persons found in possession of any such liquor, furniture or fixtures so seized, and if no person be found in the possession thereof, a copy of said warrant shall be posted on the door of the building or room wherein the same are found.”

The issuing of a search warrant is a judicial act of the magistrate. It is the duty of the magistrate to prepare the order and sign the same. The practice of issuing search warrants in blank, leaving the sheriff or other officer to fill in the description of the premises to be searched and the other information required to be written in the warrant, is highly improper. Any search or seizure made under such void warrant is a nullity, and on timely objection and showing the evidence should be suppressed by the court.

This court has no way of knowing whether the search warrant was in fact issued in blank as charged by the defendant, because the trial court refused to allow the defendant to introduce any evidence in support of his objection. When the objection was made by the defendant and the offer of proof that the search warrant was issued in blank was made, it was the duty of the trial court to exclude the jury and hear the evidence offered by the defendant and the state, and if it was made to appear that the warrant was actually issued in blank, the objection of the defendant should have been sustained and the evidence suppressed.

For the reasons stated, the cause is reversed, and remanded with directions to the trial court to hear any competent evidence to be offered by the defendant tending to show that the search warrant was actually issued in blank, and if it appears to the court that the search warrant was issued in blank, then the court is directed to dismiss said cause.

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


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    FLOYD MILLER v. STATE.
    No. A-6688.
    Opinion Filed July 3, 1929.
    (279 Pac. 521.)
    Sam S. Gill, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was jointly charged with J. H. Shelton of manufacturing intoxicating liquor, was tried separately and convicted, and his punishment fixed at a fine of $100 and imprisonment in the county jail for a period of 60 days. Motion for new trial was filed, considered, and overruled, and the case appealed to this court.

The record discloses that the codefendant in this case, J. H. Shelton, on November 13, 1926, entered his plea of guilty, and was sentenced to 30 days in jail and to pay a fine of $50 and costs.

The record discloses that on the 16tlx day of February, 1927, the state called the case against this defendant; all parties announced ready for trial; a jury was called, and the parties examined the jurors for cause, and either exhausted or waived their peremptory challenges; six good and lawful jurors were selected. The county attorney then announced to the court that, before the jury was sworn to try the cause, he wanted to ask leave of the court to indorse the name of J. H. Shelton on the information as a witness for the state. The defendant objected to the indorsing of J. H. Shelton’s name on the information as a witness on the ground “that he had no knowledge that the state had any intention of using J. H. Shelton as a witness on behalf of the state, and therefore objected to the indorsement of J. H. Shelton’s name on the information as a witness.”

The court overruled the objection of the defendant to the state indorsing the name of J. H. Shelton on the information and ordered Shelton’s name indorsed on the information. The defendant excepted. The defendant then asked the court for time in which to prepare his testimony to meet the evidence of Shelton, in view of the action taken by the state in asking that the name of Shelton be indorsed on the information as a witness to be used against him, which request was overruled, and defendant duly excepted. The defendant then asked the court for time in which to make a showing for continuance or postponement, and stated in the record his grounds for asking time. This was objected to by the state, and the court overruled the request of the defendant for time to prepare a motion for continuance or postponement, and the defendant duly excepted.

The state called A. A. Crossley and W. B. Brown, who testified to going to the house where Shelton was and finding a still and some whisky. The state then called J. H. Shelton, who is shown by the record to have previously pleaded guilty and was serving a sentence, and who testified that he and the defendant had been making whisky, and had run out something more than a gallon when the arrest was made; that the defendant had rented or borrowed the still from G. B. Rogers; and that the defendant had a one-half interest in the mash. The state then closed its testimony. The defendant then moved the court for time to procure the attendance of G. B. Rogers, and. stated in his motion that he could show that G. B. Rogers did not own a still, and had not loaned or rented the same to Miller or Shelton, and that he never told Shelton that the still belonged to him, but that the still belonged to Shelton and not to Rogers. G. B. Rogers’ street address was given as the 600 block on Bast Forty-Second street, Oklahoma City, Oklahoma. The request was denied, and defendant duly excepted.

The defendant in his fifth assignment of error alleges that the trial court erred in permitting the state to indorse the name of Shelton on the information, after the jury had been examined and was ready to be sworn to try the case; and, further, that the court erred in refusing to grant the defendant a continuance or postponement for a sufficient time for him to meet the testimony of the said J. H. Shelton. The record discloses that J. H. Shelton had entered his plea of guilty to this charge several weeks before the case was called for trial, and had received his sentence and the case, so far as Shelton was concerned, was closed; that the case against this defendant was called for trial, a jury had been examined and; passed for cause and accepted as jurors, and no action had been taken by the county attorney to secure the permission of the court to indorse the name of J. H. Shelton on the information, and no notice given to the defendant that the state desired tó use J. H. Shelton as a witness until after the jury had been selected.

The question to be determined in this case is, Was it an abuse of discretion for the trial court, after he entered an order permitting the county attorney to indorse the name of J. H. Shelton on the information, to refuse to grant the defendant sufficient time to prepare a motion for continuance or postponement in order that he might have sufficient time to prepare his defense to meet the testimony of the witness J. H. Shelton.

Section 2696, Comp. St. 1921, is as follows:

“When two or more persons are included in the same indictment or information, the court may, at any time before the defendants have gone into their defense, on the application of the county attorney, direct any defendant to be discharged from the indictment or information, that he may be compelled to be a witness for the state.”

In the following cases, Cudjoe v. State, 12 Okla. Cr. 246, 154 Pac. 500, L. R. A. 1916F, 1251; Cloud v. State, 41 Okla. Cr. 395, 273 Pac. 1012, and Varner v. State, 42 Okla. Cr. 42, 274 Pac. 43, the court held that a codefendant might be called to testify against his codefendant in the trial of a case under section 2696, supra. In neither of the cases was the question presented as in this case. No application was made by the defendant for time to prepare his motion for continuance or a postponement for sufficient time to give him an opportunity to rebut the testimony of his codefendant whom the state called to testify as a witness against him. In this case, as shown by the record, the defendant announced ready for trial, knowing the codefendant’s (J. H. Shelton’s) case had been disposed of by a plea of guilty and sentence, the jury was selected and ready to be sworn when the state asked permission to indorse the name of J. H. Shelton on the information in order that it might use him as a witness. It is true the defendant in this case was charged with the knowledge that J. H. Shelton was a codefendant, and under the statute might be called as a witness to testify against him, but, in view of the fact that nothing had been said about J. H. Shelton being called as a witness until after the jury was selected and ready to be sworn, it is important to consider the question as to whether or not the proceedings taken in this case were such as to give the defendant that fair and impartial trial to which he is entitled under the laws of this state, and it is further important to consider the question as to his codefendant’s (J. H. Shelton’s) case being disposed of some time before this defendant was called for trial.

In this case, when the motion was made by the county attorney to indorse the name of J. H. Shelton on the information and to use him as a witness, the defendant asked for time to prepare a motion for continuance or for a postponement for sufficient time to prepare his defense and to secure testimony to meet the testimony of J. H. Shelton. This motion and request of the defendant was overruled by the court. The defendant duly excepted, and the defendant now urges that, in view of the condition of the record in this case, it was an abuse of discretion of the court to deny him a continuance or postponement for sufficient time to enable him to prepare to meet the testimony of J. H. Shelton.

The record in this case shows that the defendant protected his interest at every step in the progress of the trial, and followed the procedure laid down by this court when the motion was made by the state after the jury had been selected to try his case by making his request for time to prepare a motion for continuance or postponement for a sufficient time to be ready to meet this code-fendant Shelton’s evidence.

The question as presented by the record in this case, so far as we are able to find, has only been passed on directly by this court in one case. In the case of Hoskins v. State, 32 Okla. Cr. 151, 240 Pac. 659, the identical question presented by the record in this case was before this court, and this court laid down the following rule:

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

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

The case is reversed and remanded.

EDWARDS', P. J., and CHAPPELL, J., concur.


text:
    ISAIAH CARTER v. STATE.
    No. A-6575.
    Opinion Filed July 6, 1929.
    (279 Pac. 368.)

      W. B. Toney, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted on a charge of selling intoxicating liquor to Calvin Wheat, and sentenced to pay a fine of $50 and be imprisoned in the county jail for 30 days, and has appealed to this court.

The state called Calvin Wheat, who testified that on the 21st day of November, 1926, at the defendant’s home he bought a pint of whisky, and paid him $2.50. The record shows that Truman Osborn went to the defendant’s home with the prosecuting witness. On cross-examination the prosecuting witness was asked if he had not told Eb King that the whisky belonged to him, but that he was going to try to unload it all on the defendant. The witness admitted he had talked with King, but denied he had made any statement about which the defendant inquired. King was not called as a witness to contradict the prosecuting witness.

The defense of the defendant was an alibi. No request was made for an instruction on the law of an alibi, nor does the defendant complain of the failure of the court to instruct upon the question of an alibi.

Several errors are assigned by the defendant as grounds sufficient to reverse this case. The defendant urges that the court erred in refusing to permit him to cross-examine the witness Calvin Wheat as to whether or not he had stolen a pistol belonging to Eastup.

In this case the testimony, of the prosecuting witness is positive that he bought the whisky from the defendant and paid him for it. Truman Osborn, who accompanied him' to the home of the defendant, testified in answer to the direct question, “Did you get some whisky? A. Yes, sir. Q. How much did you get? A. A pint.” On cross-examination Osborn says he did not see the prosecuting witness pay the defendant for the whisky. The defendant denies selling the whisky to the prosecuting witness Wheat; says he was not at home on the Sunday that Wheat claims to have bought the whisky. The wife of the defendant and other witnesses testified he was not at home on that date.

The jury are the sole and exclusive judges of the evidence and the credibility of the witnesses and their demeanor on the witness stand. The testimony in this case is in direct conflict. This court has repeatedly held that, where there was any competent evidence to sustain the verdict, though conflicting, it would not disturb the verdict.

The defendant objected to the instructions of the court, but, upon a careful reading of the same, we hold they properly declared the law as applied to the facts in this case. Under the evidence in this case, we hold that the defendant’s rights were not prejudiced by the court refusing to permit the defendant to ask the prosecuting witness if he had not stolen a pistol. The testimony is sufficient to sustain a conviction. The case is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


author: EDWARD'S, P. J.

text:
    Ex parte ART OVERBY.
    No. A-7410.
    Opinion Filed July 6, 1929.
    (279 Pac. 523.)
    Hall & Thompson, for petitioner.
    M. W. McKenzie, Mun. Con., A. L. Hull, Ass’t. Mun. Con., and Bliss Kelly, Ass’t. Mun. Con., for respondent.
   EDWARD'S, P. J.

This is an original proceeding in habeas corpus. Petitioner alleges that he is unlawfully restrained of his liberty in the city jail of Oklahoma City by the chief of police; that petitioner was arrested charged with a violation of a city ordinance in the operating, and being in the control, of the operation of a slot machine in a public place. Petitioner alleges that said ordinance is unconstitutional, and its enactment not within the valid exercise of the police power. The chief of police has filed his response, admitting the restraint of petitioner upon a complaint charging a violation of a city ordinance; a copy of the ordinance and the complaint is attached to said response. That part of the section of the ordinance in, question here involved is as follows:

“It shall be unlawful and an offense for any person, firm or corporation to operate or be in control of the operation of any mechanical device, contrivance or instrumentality, ordinarily known as a ‘slot machine’ or wherein or whereby upon a deposit therein of a coin, slug or token, there is received in exchange, depending upon chance, any money, or any card, paper, check, token, slug, or other evidence of winning, or which card, check, token, slug, or other evidence of winning is. or may be exchanged or redeemed for anything of value or may be deposited in such device and exchanged, thereby for merchandise, money, or cards, papers, checks, tokens, slugs, or other additional evidence of winning, or which slot machine shall vend any merchandise in varying quantities, such quantities in any way depending upon chance. * * *”

The penalty for violation is fixed by a general ordinance of the city.

The complaint under which defendant is held alleges that defendant did “* * ’ * then and there unlawfully and contrary to the ordinances of the city commit the offense of operating a public nuisance, that is to say, the said Art Overby did have under his control the operation of a mechanical device, ordinarily known as a ‘slot machine’ to wit: A Mills O. K. Mint Vending Machine, wherein upon a deposit therein of a coin, there is received in exchange, depending upon chance, checks or other evidence of winnings which may be exchanged for anything of value or which may be deposited in such device and exchange thereby for merchandise to wit: Mints. * * *”

There is no particular controversy about the facts which are stipulated or shown by the oral evidence. It was shown that petitioner at his place of business was operating a machine described as follows: A metal box containing a quantity of mints or candy confections in 5-cent packages, with a slot at the top. In the upper part of the box are three revolving cylinders with colored pictures and printed matter on the outer part. When a 5-cent coin is deposited in the slot, a lever at the side pulled and a knob below turned, in each instance one and only one package of mints or confection is dropped into a tray at the lower part of the machine. By the same operation the cylinders revolve, and, when they come to rest a fixed pointer is directed to one of the pictures and printed matter thereon. This printed matter consists of silly or frivolous statements referred to as fortune telling. When the machine is thus operated, in addition to the mints or confections dropped into the tray, at intervals metal slugs from two to twenty in number also drop into the tray. These slugs have printed on one side: “Loaned for ¡amusement only,” and on the other side: “No cash or trade value whatever.” Near the top of the machine are two signs one reading: “Tokens received from this vender are of no value. Tokens may be used to replay this vender for the customer’s sole amusement.” The other reading: “A package of confectionery vends with each five cents. Confectionery not vended with amusement tokens.” The contract between petitioner and the owner and lessor of the machine is in evidence, and provides that the tokens used in the machine shall not be redeemed in any manner by cash or merchandise by the lessee. Nor shall he permit any one else to redeem them for either cash or trade. It is stipulated that the petitioner has operated the machine in conformity to his contract, and that the metal tokens have not been redeemed in any manner.

A slot machine is not per se a gambling device. 12 R. C. L. 729; 27 C. J. 968; Nelson v. State, 37 Okla. Cr. 90, 256 Pac. 939. It is only when a slot machine comes within a definition of a gambling device, as where it delivers some commodity in a varying quantity, or where the player may receive, depending on chance, something of value or a token of some kind redeemable for something of value, or where there is some other element which appeals to the gambling instinct, that it is a gambling device. 27 C. J. 989; 2 Bouvier, Law Dict. (Rawle) Gambling, p. 1330; 4 Words and Phrases, First Series, p. 3029; State v. Johnson, 15 Okla. Cr. 460, 177 Pac. 926; Nelson v. State, supra. Where the commodity vended by a machine is unvarying, where no check or token of any value or redeemable or playable for anything of value in addition to the commodity vended is received, it is not a gambling device.

This case is before us, however, on the question only that the ordinance is unconstitutional, and, unless it is made to appear that it is unconstitutional, this court may not in habeas corpus proceedings determine the question of guilt or innocence. Habeas corpus cannot take the place of a writ of error or of an appeal, although this! rule is applied with less strictness to proceedings in police courts than to other courts. Where a person is properly charged with an offense in a police court under a valid, ordinance, he cannot by a proceeding in habeas corpus try the question of his guilt or innocence. Upon a proceeding in habeas corpus, he may question only the constitutionality of the ordinance and the jurisdiction of the court. The ordinance here under consideration properly defines a gambling device; that is, if the word “or” following the words “slot machine” as first used in the ordinance be held to have no meaning. The ordinance would then read:

“It shall be unlawful and an offense for any person * * * to operate * * * any mechanical device, contrivance or instrumentality, ordinarily known as a slot machine (or) wherein or whereby,” etc.

When so read, the legislative intent being to prohibit the operation of a slot machine wherein and whereby, upon the deposit of a coin therein, depending upon chance, merchandise may be received in a varying quantity or some token of some value or redeemable in something of value may be received in addition to the commodity dispensed, such a machine would be a gambling device and; its operation an offense. An ordinance to prevent the operation of such a gambling device is a proper exercise of the police power. The ordinance complained of is not unconstitutional, and the police court has jurisdiction. It follows that the writ must be denied.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    STATE v. J. B. SIMMONS.
    No. A-6816.
    Opinion Filed July 6, 1929.
    (279 Pac. 524.)
    Bryan Kirkpatrick, Co. Atty., for the State.
    Moss & Young, for defendant in error.
   EDWARDS, P. J.

This is an attempted appeal by the state from the district court of Tulsa county from a judgment of the district court sustaining a plea of former jeopardy, wherein the state prosecuted the defendant in error here on a charge of receiving deposits in an insolvent bank.

The state has attempted to appeal under the provisions of section 2809, Comp. St. 1921, which is as follows:

“An appeal is taken by the service of a notice upon the clerk of the court where the judgment was entered, stating that the appellant appeals from the judgment. If taken by the defendant, a similar notice must be served upon the prosecuting attorney. If taken by the state, a similar notice must be served upon the defendant, if he can be found in the county; if not there, by posting up a notice three weeks in the office of the clerk of the district court.”

The record here discloses that the notice required by the foregoing section was not served upon the defendant nor posted in the office of the clerk of the district court, but was served upon the attorney of record for the defendant. When the state attempts to appeal in a criminal case under this statute, it must strictly pursue the procedure provided by the statute; that is, it must serve written notice upon the defendant personally, or, if he cannot be found in the county, by posting notice. In the case of State v. Childers, 17 Okla. Cr. 627, 191 Pac. 1043, 1044, it was said:

“Counsel for the state attempted to take this appeal by service of a notice of appeal upon the court clerk of Love county, and also by service of a similar notice upon counsel for the defendant. No notice was served upon the defendant himself, nor is there any proof that the defendant could not be found within the county, and that in his absence a notice was posted for three weeks in the office of the court clerk, as required by sec. 5992, supra. Further, no attempt was made to perfect this appeal by the service of a summons in error, as provided in Procedure Civil, sections 5238 and 5239, supra, nor is there any waiver of the issuance and service of such summons in error hy counsel representing defendant. Where the appeal is taken by the service of notices, as provided in section 5992, the statute must be strictly complied with by the service of a written notice, where the appeal is taken by the state, both upon the clerk of the court where the judgment was entered and a similar notice upon the defendant, if he can be,found within the county, and if the defendant cannot be found within the county, then it is incumbent upon the prosecuting attorney to- post a written notice of appeal for three weeks in the office of the court clerk. In this case, the state attempted to take the appeal solely by serving the notices as required by section 5992, supra, and failed to either serve a notice on the defendant or to show that he could not be found in the county, and thereafter failed to post a notice in the manner above set out. Before this court can acquire jurisdiction of an appeal, either the notices required by section 5992, supra, must be served in the manner and upon the persons therein designated, or else a summons in error must be issued and served, or its issuance and service waived, as provided in the Code of Civil Procedure-. Neither of these methods were complied with by counsel representing the state. It is apparent, therefore, that this court has never acquired jurisdiction of this appeal, and that the same must be dismissed. For reasons stated, the pretended appeal is dismissed.”

See, also, State v. Hudson, 21 Okla. Cr. 475, 204 Pac. 133; State v. Boyd, 22 Okla. Cr. 451, 211 Pac. 1119.

On account of the failure of plaintiff in error to comply with the statute, this court does not acquire jurisdiction of the appeal, and the same is hereby dismissed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    ALLEN A. JOHNSON et ux. v. STATE.
    No. A-6502.
    Opinion Filed July 3, 1929.
    Rehearing Denied July 13, 1929.
    (279 Pac. 366.)
    Wieck & Armstrong, for plaintiffs in error.
    Roy R. Carver, Co. Atty., and Chas. B. Duffy, Asst. Co. Atty., for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Kay county on a charge of having possession of intoxir eating liquor, to wit, whisky, with intent to barter, sell, give away or otherwise furnish the same. Each of the defendants’ punishment was fixed by the jury at a fine of $100 and to. be confined in the county jail for a period of 60 days. Judgment was duly rendered by the trial court upon this verdict and the defendants have appealed.

The first error of law complained of by the defendants is that the court erred in overruling their motion to suppress the evidence taken under the search warrant. The charging part of the affidavit reads as follows:

“R. E. Rader being first duly sworn on oath, deposes and says: That as to the following described premises, to wit: Lot 34 in Block 2 Irby Addition in the city of Tonkawa, Kay county, Oklahoma. Said premises being in the possession of Allen A. Johnson. That the above described premises are used exclusively as a resort for people to go at all hours of the day for the purpose of buying whisky and other intoxicating liquors; that a continuous stream of men are going to this place and coming from this place; and that no other business is being carried on at this place but the sale of liquor. A small assortment of cigars and cigarettes are carried in stock. And that it is a matter of common knowledge in Tonkawa that his business is selling whisky. Your affiant says further that: In March, 1924 and August, 1925, whisky was purchased from Allen A. Johnson and that they have continued in this business without intermission, same being a matter of record in the county court of this county. Your affiant says that: The general reputation of the place and premises in the community and neighborhood, is that it is a place where intoxicating liquor is being kept, concealed and sold.”

In the case of Ray v. State, 43 Okla. Cr. 1, 276 Pac. 785, 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.”
“Where the affidavit and search warrant are sufficient on their face, the evidence obtained by the search is admissible, and the court will not permit the accused, after the warrant has been executed, to show that the statements in the affidavit are not true, or to raise any question as to the accuracy or source of the affiant’s information or the means by which it was obtained.”

The court is not offering this affidavit as a model, but is of the opinion that the facts alleged are sufficient to authorize the magistrate to issue the search warrant.

The defendants next complain that the order issued by the magistrate did not contain the name of the party making the affidavit. Section 2881, Comp. St. 1921, provides that the order “must be in substantially the following form.” In the body of the form in parentheses are these words, “Naming every person whose affidavit has ■been taken.” Provisions of this kind have always been held by this court to be directory and not mandatory. The failure to insert the name or names of the persons making the affidavit would be a. mere irregularity, and not a fundamental requirement, and the failure to insert the name in the warrant did not make the warrant void.

The defendants next complain that the officers having the search warrant pushed the door of the building open and entered without first demanding admittance and searched the premises before the warrant was served. The officers testified that they stood outside of the building, and looking through a window saw the defendant Mrs. Johnson serving liquor to different parties, and could hear the rattle of money when change was made. After the officers pushed the door open, Mrs. Johnson emptied two pitchers in the sink. One of the officers rushed over to the sink and put his hand over the drain to prevent the liquor from running out, another officer pursued persons in the room toward the front of the building to arrest them, and another officer served the search warrant. It appears from the evidence of the state that the search warrant was probably not served until after the things recited above had taken place. Another officer, helped the one who had his hand over the drain in the sink, and they scooped up two and one-half pints of whisky which the defendant Mrs. Johnson had dumped into the sink out of the pitchers.

While the service of the search warrant and the manner of service were irregular, it is not such an irregularity as would require a reversal of this case. The old saying that time and tide wait on no man is equally true of the bootlegger. To require the officers to observe the nice formalities of the law in the service of the search warrants would in many cases result in the destruction of the evidence and the defeat of the case. Public officers ought to observe the law themselves, and ought to be careful of the execution of process in their hands to comply with the requirements of the law,, but we are of the opinion that the circumstances in this case 'as revealed by the evidence warranted the irregular procedure adopted by the officers.

The evidence being sufficient to support the verdict, and the errors of law complained of not being fundamental, the cause is affirmed.

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