text:
    DOCK R. CHANCE v. STATE.
    No. A-8928.
    Dec. 20, 1935.
    (52 Pac. [2d] 1087.)

      John V. Roberts, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Mat-son, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, for convenience hereinafter referred to as the defendant, was convicted of the crime of selling whisky to a minor, and his punishment fixed at a fine of $200, and imprisonment in the state penitentiary for a period of two years, and appealed by transcript.

Three errors are assigned by the defendant as grounds for reversal. The first being,

“The court erred in overruling the plaintiff in error’s motion for a new trial.
“2. The court erred in passing its judgment and sentence upon the defendant, and such a judgment and sentence is indefinite, vague and uncertain as to its duration and insufficient in law to authorize the imprisonment of this plaintiff in error.
“3. That proceedngs were had in said cause in said court in the absence of the defendant.”

The defendant admits that the motion for a new trial set forth in his first assignment of error must be passed without consideration, as it cannot be brought before this court on a transcript.

The question raised by the second assignment of error attacks the judgment rendered wherein the defendant urges that the same is indefinite and uncertain as to its duration, and defendant contends that because the judgment recites:

“That you be taken from this court room by the sheriff of Garfield county, to the Garfield county jail, there to be held in custody until it is convenient for the said sheriff to transport him to the penitentiary, and that said sentence begin on the date of your delivery to the warden of said state penitentiary.”

That the sentence of the court amounts to a sentence in jail until the sheriff finds it convenient to transport him to the penitentiary to serve two years. With the argument presented by the defendant on his second assignment of error, this court cannot agree.

The court entered a formal judgment, which was necessary, unless the sheriff was ready to start to the penitentiary with the defendant immediately upon the imposing of the sentence by the court. The transcript fails to disclose how long it was after the judgment was imposed by the trial court before he was delivered to the warden of the penitentiary, at McAlester.

The defendant in his argument does not mention any length of time he was kept in the county jail before being transported to the penitentiary, nor does he insist or urge that he was kept in jail an unusual length of time. If the defendant was retained in the county jail an unusual length of time before being transmitted to the penitentiary, he could have applied to the trial court for an order directing the sheriff tO' immediately transport him to the penitentiary, and if the court refused to grant his application, he could have applied to this court.

Under the repeated holdings of this court, the defendant is compelled to' suffer the actual punishment imposed by the trial court. The time of the commencement of said sentence is merely an award of execution and is not a material part of the sentence, as repeatedly held by this court, beginning with Ex parte Eldridge, 3 Okla. Cr. 499, 106 Pac. 980, 27 L. R. A. (N. S.) 625, 139 Am. St. Rep. 967.

We hold that the contention of the defendant as to his confinement in the county jail, and being transported to the penitentiary under the terms of the sentence is without merit.

The third and last assignment of the defendant presents a question that proceedings were had in the trial in his absence. The transcript shows the defendant appeared in court in person and by his attorney, and both parties announced ready for trial; the jury was selected; statement of the case was made by the county attorney; testimony introduced; defendant rests; both sides rest; court reads instructions to the jury; argument by counsel for the state and the defendant; jury retired to consider its verdict. The 11th day of December, 1934, shows all officials present, jury in the box; jury announced it had arrived at a verdict, and returned its verdict into court. By consent of counsel, defendant to be sentenced Thursday, December 13, 1934, at 1 p. m. Where the record shows the defendant present in person and by counsel when the trial began, and the argument of counsel and return of the verdict, and agreement of counsel as to the date sentence shall be imposed on the defendant, the presumption is he was present at all stages of the trial.

The defendant relies upon Humphrey v. State, 3 Okla. Cr. 504, 106 Pac. 978, 139 Am. St. Rep. 972, to sustain his contention, and states in his brief that this case has never been reversed or criticized. If the defendant had searched further, he would have found Humphrey v. State, supra, has been overruled by this court in Burns v. State, 8 Okla. Cr. 554, 129 Pac. 657, 664; and, second, in Henry v. State, 10 Okla. Cr. 369, 136 Pac. 982, 52 L. R. A. (N. S.) 113. In the Burns Case the court in part stated:

“Counsel for appellant contend in their brief and oral argument that the judgment should be set aside because the records of the court do not affirmatively show the presence of the defendant during, the trial. The record does show that the defendant entered a plea of not guilty; that he was present when the state’s witnesses were examined ; that he testified in- his own behalf, and was present when the sentence of the court was pronounced.”

In this case the defendant was present in person and by counsel when the trial began; his counsel argued the case; verdict was returned, and counsel agreed as to the date sentence should be imposed on the defendant.

Under the holdings of this court, the presumption is that the defendant was present at all stages of the trial. The contention of the defendant, in the opinion of the court, is not borne out by the facts disclosed in the transcript. The attorney makes some complaint in his argument that his client was not financially able to appeal and bring up the transcript.

This argument is not justified or warranted, for the reason that if the defendant had applied to the trial court to have a transcript of the testimony made at the expense of the county or state, the court would probably have ordered it made, but if the court had refused, he could have filed his transcript with this court, and made the statutory showing, and this court would have entered an order requiring a transcript of the testimony to be furnished at the expense of the county.

As shown by the transcript, the defendant was accorded a fair and impartial trial. The errors complained of by the defendant are not sufficient to warrant a reversal.

The judgment of the trial court is affirmed.

EDWARDS and DOYLE, JJ., concur.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    CARL I. DYER v. STATE.
    No. A-8926.
    Dec. 20, 1935.
    (52 Pac. [2d] 1080.)

      Edwards & Eobinson, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error was tried and convicted in the district court of Oklahoma county, the jury leaving the punishment to' the court, upon an information charging that in said county and state, on the sixth day of July, 1934, Carl I. Dyer “did then and there willfully, unlawfully, wrongfully and feloniously without justifiable or excusable cause abandon and desert his lawful and legitimate child under the age of fifteen years, to wit: Laura Belle Dyer of the age of eight years, and did wholly fail, refuse and neglect to contribute anything to her support, contrary to,” etc.

At the time appointed for judgment the defendant interposed a motion for a new trial, also a motion in arrest of judgment, which were overruled. On December 26, 1934, the court rendered judgment and sentenced the defendant to confinement in the state penitentiary at Mc-Alester for a term of three years, and the costs.

The statute (section 1830) under which the information is presented provides:

“Every person who shall without good cause abandon his wife in destitute or necessitous circumstances and neglect and refuse to maintain or provide for her, or who shall abandon his or her minor child or children under the age of fifteen years and willfully neglect or refuse to maintain or provide for such child or children, shall be deemed guilty of a felony and upon conviction thereof, shall be punished by imprisonment in the state penitentiary for any period of time not less than one year or more than ten years.”

The facts established by the undisputed evidence and by the admissions of the defendant are as follows: They were married in 1925. A child was born to them, this daughter, Laura Belle. That the prosecuting witness has supported their child from her salary as a school teacher. On July 29, 1933, she obtained a divorce from him, which was granted on the ground of gross neglect of duty in that he failed to provide for her support and for the support of their daughter, seven years old; and by the decree the sole custody of the child was awarded to her, but it was silent as to the support and maintenance of the child. The decree shows that the defendant had abandoned his minor child. It appears that he had contributed nothing for the support of the child except $15 contributed after this prosecution was instituted; however the child had received some small gifts of money from his stepfather and an aunt of the defendant. On December 30, 1933, he married another woman.

As a witness in his own behalf, the defendant testified that he lives at Caldwell, Tex. Was married to the prosecuting witness in El Reno, and lived with her and their child for two or three years with his folks at Bris-tow. His wife then secured a divorce. They were remarried at Oklahoma City a year or two later; that he was living at Caldwell when his wife secured this divorce. That when his wife was not teaching school in Oklahoma City, she and their child lived with his mother at Bristow. That he never had any money to send to his child, and did not send his wife any money. That since the 6th day of July, 1934, he has been receiving $50 a month and expenses, working for the Mid-Tex Oil Company. That his present wife has a farm and she supports herself. That while visiting in Oklahoma City he was arrested on this charge.

The principal proposition advanced on behalf of the defendant is:

“The divorce decree gave the prosecuting witness exclusive custody of the child and thereby relieved the defendant of any liability for the support of the child until a modification of the decree, and the defendant cannot legally be prosecuted for the failure to perform an act which by statute he had been exempted from performing.”

In support of this proposition, the following two sections of the Civil Code (St. 1931) are quoted:

“671. When a divorce is granted, the court shall make provision for guardianship, custody, support and education of the minor children of the marriage, and may modify or change any order in this respect, whenever circumstances render such change proper, either before or after final judgment in the action.”
“1684. The parent entitled to- the custody of a child must give him support and education suitable to his circumstances. If the support and education which the father of a legitimate child is able to give are inadequate, the mother must assist him to the extent of her ability.”

Citing the case of People v. Hartman, 23 Cal. App. 72, 137 Pac. 611, 614, quoting wherein the court said:

“As we understand this decision, it is authority for holding that where, in a divorce proceeding, the custody of a minor child is given the mother and no provision in the decree is made for the support of such child by the father, the parent entitled to the custody of the child must support it. By supplementary proceedings, in a proper case, the court may, under sections 138 and 139 of the Civil Code, require the parent who has not the custody of the child to contribute to its support, but, until some such proceeding is had, his failure to so contribute to the child’s support cannot be made the ground of a criminal proceeding under section 270 of the Penal Code. In the case cited the court said: ‘The legal effect, then, of both the Nevada decree and the guardianship decree was to give the mother the custody and control of the children without charging upon the husband their support. Under section 196 of the Civil Code this situation prima facie relieves the husband of the duty of support and casts it on the wife.’ The principle would seem to apply as well to a domestic decree as to a foreign decree; the determining-fact being, as here, that it devolved no duty on the father and did devolve it on the mother.”

Also citing Dimond v. State, 110 Neb. 519, 194 N. W. 725; State v. Coolidge, 72 Wash. 42, 129 Pac. 1088. Also-the cases of Bondies v. Bondies, 40 Okla. 164, 136 Pac. 1089; West v. West, 114 Okla. 279, 246 Pac. 599, 602.

Quoting from the opinion in the West Case as follows :

“We are inclined to the view that the law of nature and the law of the land, generally, require the father to support his children; this is a definite and fixed obligation, which both the children and society itself are entitled to have enforced against him, and to hold that a decree of divorce granted for the fault and misconduct of the husband, giving custody of children to the mother, and silent as to support and maintenance, discharges the father’s obligation of support of his offspring, is to allow him to profit by his perversity or take advantage of his own Avronsr; but such is the decision of our court in respect to the recovery of money expended prior to the modification of the decree of the original action or the institution of an independent action. Bondies v. Bondies, supra.

We are urged to give a construction to section 1830, supra, in harmony with these decisions.

Many of the states have statutes making it a criminal offense for a father to1 fail to support his child, or for a husband to fail to support his wife.

It is said by some courts and text-writers that the primary object is to redress a public grievance by relieving the public from the burden of caring for a helpless child, or an indigent wife; while others take the view that these statutes, though criminal rather than civil, in kind, are in the final analysis really designed as a remedy for the benefit of the wife or the child, in addition to the remedies afforded by civil proceedings. State v. Langford, 90 Cr. 251, 176 Pac. 197, 201; People v. Malsch, 119 Mich. 112, 77 N. W. 638, 75 Am. St. Rep. 381; State v. Waller, 90 Kan. 829, 136 Pac. 215, 49 L. R. A. (N. S.) 588; 13 R. C. L. 1191.

In State v. Gillmore, 88 Kan. 835, 129 Pac. 1123, 1126, 47 L. R. A. (N. S.) 217, 226, it is said:

“The object of the statute was to compel the husband, if he were able to do so, to support his wife and children.”

The obligation of parents to support their offspring rests upon an entirely different foundation from that upon which the law bases the duty of the husband to support his wife. That obligation is at once legal and natural. It springs as necessarily from the law as from the primal instincts of human nature. Its consistent enforcement is equally essential to the well-being of the state, the morals of the community, and the development of the individual. Prolonged childhood is a condition of civilization as well as a product of conscience. The child, helpless in extreme infancy and required in the maturer years of its minority to obey the reciprocal duty of serving its parents, is not to be deprived of its natural and legal right of protection and support by its father, because of any family quarrel or of any agreement between husband and wife. It is not a party to divorce proceedings. It is not barred as to its rights by any decree therein. McAllen v. McAllen, 97 Minn. 76, 77, 106 N. W. 100.

In the well-considered case of Spencer v. Spencer, 97 Minn. 56, 105 N. W. 483, 484, 2 L. R. A. (N. S.) 851, 114 Am. St. Rep. 695, 7 Ann. Cas. 901; 20 R. C. L. 622, commenting on the minority rule that a divorce decree awarding the custody of the minor children to the wife absolves the husband from all further duty to support and educate them, Chief Justice Start said:

“The reason urged in support of this rule is that the awarding of the custody of the children to the mother deprives the father of their services, and that support and service are in such a case reciprocal, and that the mother, to whom the custody of children is awarded, must, unless the decree provides otherwise, support them. This is not a good reason; for, if the divorce is granted for the father’s misconduct, it is his wrongful act that deprives him of their services, and not the court, which intervenes for the protection of the children. Another reason urged is that thé court, where it has awarded the custody of the children to the mother without expressly providing for their support, is presumed to have made all of the provisions for their support that it was necessary; hence the decree is conclusve as to the obligations of the husband, unless modified in proceedings had in the original action. It would seem, if the court omits to make in its decree any provision for the support of the children, that the presumption would be that the court deemed it best to leave the matter of the support of the children to rest upon the father’s legal liability to support them until its further order in the premises. Again, in cases where the husband deserts his family in one state and becomes a resident of another state, leaving no property in the state where he left his wife and children, and where she commences an action against him for a divorce for his wrong, the court would have jurisdiction of the wife, of the marriage status, and of the custody of the children, but not of the husband or his property. It would be impracticable to make and impossible'to enforce any decree as to* the support of the children in such a case. Thurston v. Thurston, 58 Minn. 279, 59 N. W. 1017. If in such a case the decree awards the custody of the children to the mother, but is silent as tO' their support, can it be presumed, in favor of the recreant husband, that the court determined that no¡ order as to maintenance ivas necessary, and that it was intended to free the husband from his natural and legal obligation to support his children? We cannot concur in the doctrine of the cases which so hold.
“Upon principle, and the weight of judicial authority, we hold that the legal obligation of a father for the support of his minor children is not impaired by a decree of divorce at the suit of his wife for his misconduct, which gives the custody of the children to her, but is silent as to their support.”

The facts in the Spencer Case are similar to the facts in this case. The court granting the divorce had jurisdiction over the wife, marriage status, and custody of the child, but not of the property of the defendant. He was a resident of the state of Texas, and it would be impossible to enforce any decree against him for the support of the child.

In the case of State v. Langford, supra, it is said:

“One line of authorities proceeds upon the theory that the duty of the father to support the child and the obligation of tlie latter to serve the former present reciprocal rights and duties, and that therefore to award the custody of the child to the mother is to deprive the father of the child’s services, and hence the loss of the right to the services of the child operates as a release from the duty to support; but a majority of the well-considered precedents denounce and condemn this cold and illogical doctrine, which not only ignores the rights and welfare of the child, but also enables an unfaithful husband and unnatural father to compel his wife to divorce him, on account of grievous wrongs done by him, with the assurance given to him in advance that when she does divorce him she will not have lost the maternal instinct, but will cling to the child, and thus enable him further to Avrong her by cowardly casting his burden upon her; for the great weight of judicial authority is to the effect that a father is not released from his obligation to support his child by reason of the fact that the mother has secured a divorce and been awarded the custody of the child by a decree which makes no provision for the child’s maintenance.”

This rule is supported by the following cases: State v. Seghers, 124 La. 115, 49 So. 998; Industrial Commission v. Drake, 103 Ohio St. 628, 134 N. E. 465; Buckminster v. Buckminster, 38 Vt. 248, 88 Am. Dec. 652; Alvey v. Hartwig, 106 Md. 254, 67 A. 132, 11 L. R. A. (N. S.) 678, 14 Ann. Cas. 250; Evans v. Evans, 125 Tenn. 112, 140 S. W. 745, Ann. Cas. 1913C, 294; Graham v. Graham, 38 Colo. 453, 88 Pac. 852, 8 L. R. A. (N. S.) 1270, 12 Ann. Cas. 137; Connett v. Connett, 81 Neb. 777, 116 N. W. 658; Dolloff v. Dolloff, 67 N. H. 512, 38 A. 19, 20; Gulley v. Gulley, 111 Tex. 233, 231 S. W. 97, 15 A. L. R. 564, and cases in Annotation, page 569.

The reasons upon Avhich this rule rests are well stated in the case of Dolloff v. Dolloff, supra, in which the court said:

“While the divorce destroyed the relation of husband and wife, and made them as strangers to each other, it did not destroy the relation between the husband and his child. As to her, his duty and liability remained the same, except in so far as he was incapacitated or discharged by the decree, which simply took from him her custody. This did not release him from any pre-existing natural, legal, or statutory duty to support her.”

The primal duty of the father to support his offspring was not directly involved in the case of Bondies v. Bondies, supra. That holding was based on section 1693, which reads:

“A parent is not bound to compensate the other parent or a relative for the voluntary support of his child without an agreement for compensation, nor to compensate a stranger for the support of a child who has abandoned the parent without just cause.”

In the case of Hunter v. State, 10 Okla. Cr. 119, 134 Pac. 1134, 1138, L. R. A. 1915A, 564, Ann. Cas. 1916A, 612, this court said:

“We cannot agree with counsel for appellant that the fact that the mother and the grandparents of the child were providing it with food and clothing constitutes any justification of the conduct of the appellant. Men cannot shift their burdens upon tiie shoulders of others in this way. The father, who has brought life into this world, must make a manly effort to support it, and if he does not do so he is guilty under the law.”

This duty to support the offspring is a continuing obligation. Allred v. State, 28 Okla. Cr. 13, 228 Pac. 788; Dean v. State, 55 Okla. Cr. 356, 30 Pac. (2d) 195.

Although the language of the statute (§ 1830) is “willfully neglect or refuse to' maintain or provide for such child,” still it is not necessary for the state to prove that the father has wholly failed and neglected to fulfill his duty to support bis child. The statute is violated, not only where there is a complete failure to support, but also where there is a partial failure. This neglect or refusal must be willful or negligent, and not a mere failure on account of inability. Dempsey v. State, 108 Ark. 76, 157 S. W. 734.

The parent performs his duty when he provides for the support of his child or contributes to the support of such child in accordance with his ability, whatever is necessary for support and maintenance according to their situation and condition in life.

Although both parents are under the duty, legal as well as moral, to support, maintain, and educate their children during minority, the duty rests primarily in this state upon the father.

The statute, § 1685, provides:

“The father of a legitimate unmarried minor child is entitled to its custody, services and earnings; but he cannot transfer such custody or services to any other person, except the mother, without her written consent, unless she has deserted him, or is living separate from him by agreement. If the father be dead, or be unable, or refuse to take the custody, or has abandoned his family, the mother is entitled thereto.”

According to the great weight of authority and according to what we believe is the plain intent of our statutes, the fact that the mother alone or together with other persons furnished all the support needed for the child does not constitute good or sufficient cause for any failure or neglect by the father. Hunter v. State, supra; State v. Waller, 90 Kan. 829, 136 Pac. 215, 49 L. R. A. (N. S.) 588; 20 R. C. L. 623.

Tbe facts admitted by the defendant himself show abandonment, failure and neglect to support said child, and this constitutes prima facie evidence of willfulness upon his part wthin the meaning of the law. And also show that his. neglect was without good cause. The words “good cause,” as used in the statute, mean a substantial or legal cause, as distinguished from an assumed or imaginary pretense. State v. Anderson, 209 Iowa, 510, 228 N. W. 353, 67 A. L. R. 1366.

The defendant admitted that he furnished his wife and their child no money for their support, and it sufficiently appears that the prosecuting witness had nothing to support their child save as she earned through her own labor.

Generally speaking, a wife is entitled to support at the hands of the husband, and both law and common humanity charge him with the duty of maintaining his own infant child.

It was to prevent and punish such outrages against humanity and the marriage obligation that the statute was enacted, and its force and effect should not be nullified by any nicety of construction.

It is our conclusion that under the law and the evidence the verdict was fully warranted, and that no sufficient reason exists for a reversal of the conviction.

Finally, it is urged on behalf of the defendant that the punishment imposed by the court below is excessive.

Upon a careful review of the entire record, we are persuaded that the punishment is excessive and that the judgment should be modified. The sentence imposed by the court below will therefore be modified and the term of imprisonment fixed at two years.

We remark liere that the act under which the defendant was convicted (section 1831), among other things, further provides: That upon conviction of any person, under the provisions of this act, the Governor may, before or after sentence, parole said person upon the recommendation of the trial judge, upon said person entering into an undertaking in the form provided by the judge of said court, with two or more good and sufficient sureties, conditioned that the said convicted person shall within ten days from the first day of each month, pay to the clerk of the court where he was convicted such amount as has been fixed by the court for the support of said child.

For the reasons stated, the judgment and sentence as modified must be, and it is, affirmed.

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


text:
    M. M. HOUCHIN v. STATE.
    No. A-8938.
    Dec. 27, 1935.
    (52 Pac. [2d] 1085.)

      J. H. Warren and R. H. Warren, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith. C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charged that in Choctaw county, August 9, 1934, the defendant, M. M. Houchin, did have in his possession three pints of whisky with the unlawful intent to' sell and dispose of the same.

It appears from the record that the defendant waived a jury trial, the state consenting, and it was agreed that the case be tried and determined by the court without the intervention of a jury. Thereupon the court proceeded to try the case. After hearing the evidence, the court found the defendant guilty as charged in the information, and fixed his punishment at confinement in the county jail for thirty days and a fine of $50.

Motion for a new trial was duly filed, presented, and overruled. On March 23’, 1935, the judgment appealed from was duly entered.

The assignments of error relied upon for a reversal of the judgment are that the judgment of the court is contrary to the law and to the evidence.

Our State Constitution (art. 7, § 20) provides:

“In all issues of fact joined in any court, all parties may waive the right to have the same determined by jury; in which case the finding of the judge, upon the facts, shall have the force and effect of a verdict by jury.”

In the case of Cowden v. State, 5 Okla. Cr. 71, 113 Pac. 202, it is held, that this constitutional provision applies to criminal as well as civil cases, and is self-executing, and where the defendant waives a trial by jury, the state consenting, all questions of fact are for the court, and the court is authorized to try the question of guilt of the accused on a plea of not guilty. In re Wilkins, 7 Okla. Cr. 422, 115 Pac. 1118.

The state relied for this conviction upon the testimony of B. B. Burrough and Cap Duncan, deputy sheriffs, admitted over the defendant’s objection that it was obtained by an unlawful search. Their testimony was to the effect that they searched the defendant’s place and found three pints of whisky.

When the case was called for trial, the defendant filed a motion to suppress evidence on the ground that the same was obtained by means of an unreasonable search and seizure and without the service of any search warrant. The defendant, in support of the motion, testified that when the officers came to his place, Mr. Duncan handed him a paper and said, “I want to search your place”; witness produced the paper. It was an unsigned copy of an affidavit for a search warrant, showing that the same was made on information and belief, without stating facts showing probable cause.

Cap Duncan testified that he handed the defendant a paper and thought it was a copy of the search warrant; that was the only paper he served.

The motion to suppress was overruled.

When the state rested, the defendant also rested his case, and moved for an acquittal on the ground that all the evidence was obtained unlawfully, and that the evidence was insufficient to warrant a conviction. Motion overruled.

The record shows beyond a doubt that no search warrant was served, as required by law, and the search of the defendant’s place was without authority of law, unless the defendant waived his constitutional rights.

The witness Burrough testified that the defendant showed him where the whisky was, three pints, and said that it was his, and did not make any request for a search warrant.

In Langham v. State, 35 Okla. Cr. 57, 248 Pac. 349, it is said:

“When a search is shown to have been made under a void search warrant, the burden is then on the state to' show a waiver by a defendant of his constitutional right. This, we think, is not made to appear under the record. The failure to resist or the consent to a search made to an officer armed with a search warrant is not a waiver of the constitutional right against an illegal search.”

In Shockley v. State, 35 Okla. Cr. 437, 251 Pac. 514, this court held:

“A statement by defendant, to an officer having a search warrant, to go- ahead, held insufficient to constitute a ‘waiver’ of his constitutional rights.”

It has been repeatedly decided by this court that evidence in liquor prosecutions, obtained by an unlawful search and seizure, contrary to section 30 of the Bill of Rights, is inadmissible against the defendant, as being in violation of section 21 of the Bill of Rights, giving one accused of crime immunity from becoming a witness against himself. Committi v. State, 28 Okla. Cr. 380, 231 Pac. 316, and cases, collated.

The judgment of the lower court is reversed, and cause remanded, with direction to discharge the defendant.

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


author: EDWARDS, J.

text:
    Ex parte HENRY WOODWARD.
    No. A-9048.
    Jan. 3, 1936.
    (53 Pac. [2d] 288.)
    Henry Woodward, pro se.
    Mac Q. Williamson, Atty. Gen., and Smith G. Mat-son, Asst. Atty. Gen., for the State.
   EDWARDS, J.

This is an original proceeding in habeas corpus. .

Petitioner alleges he is unlawfully restrained by the warden of the penitentiary at McAlester. That the cause of said restraint is that in June, 1921, under his true name of Henry Woodward, he was convicted in the district court of Creek county of robbery and was sentenced to a term of 7 years in the penitentiary at Granite, and was duly incarcerated. That in July, 1923, he escaped from said penitentiary and thereafter, in May, 1924, he was convicted in the district court of Ottawa county of robbery with firearms, as an habitual criminal, under the name of Howard Duncan, and was sentenced to a term of 25 years in the penitentiary at McAlester. That January 10, 1931, he was granted a parole by W. J. Holloway, then Governor. That petitioner then was transferred from the said penitentiary at McAlester to the penitentiary at Granite, to serve the remainder of the sentence imposed by the district court of Creek county, which sentence had been interrupted by the escape of petitioner. That on June 8, 1931, Wm. H. Murray, then Governor, made an order revoking the parole issued to petitioner by Governor Holloway; that petitioner then was transferred from the penitentiary at Granite to the penitentiary at McAlester, to1 complete the sentence imposed by the district court of Ottawa county. That the order of Governor Murray revoking the parole of petitioner was without any excuse, cause, or provocation, and without his having- violated any of the terms of said parole. That said order of revocation was made without any hearing, and is invalid.

Attached to- the petition is a copy of the judgment and sentence of the district court, Ottawa county, under which petitioner is imprisoned; the parole issued by W. J. Holloway, Governor; and the order of revocation of Wm. H. Murray, Governor. ¡Said parole among other things provides :

“Third. It is expressly understood by the said Howard Duncan that the Governor may revoke this parole for violation of any one or more of the conditions hereof or for other causes by him deemed sufficient.
“Fourth. That in the event this parole shall be revoked at any time and the said Howard Duncan shall be out of the state of Oklahoma, at the time of the revocation of same, lie waives all the rights and privileges allowed him under the Constitution and Laws of the United States or the laws of any foreign state, and expressly agrees to return to the state of Oklahoma without the aid of requisition.”

The order of revocation recites in part:

• “* * * Whereas, the said Howard Duncan, Number 14440, accepted the terms and conditions of Governor Holloway’s parole which expressly provided that: ‘The Governor may revoke this parole for violation of any one or more of the conditions hereof or for other causes by him deemed sufficient’ ”; and “Whereas, sufficient cause appearing to the Governor to revoke said parole. Now, therefore, I, Wm. H. Murray, Governor of the state of Oklahoma, by virtue of the power and authority vested in me by law, do hereby revoke, cancel and annul the parole heretofore granted to the said Howard Duncan, Number 14440, and do order and direct all sheriffs and other peace officers in the state of Oklahoma, to apprehend him wherever he may be found, and take him into safe custody and convey him to the Oklahoma state penitentiary at McAlester, Okla., where he will serve out that portion of his sentence unfinished when he was paroled, according tO' the original judgment and sentence of the court.”

The contention here made is not new. This court in Ex parte Horine, 11 Okla. Cr. 517, 148 Pac. 825, L. R. A. 1915F, 548, in syllabus 1 and 3, held:

“1. The Governor of the state has the power to annex to a pardon or parole any condition precedent or subsequent, provided it be not illegal, immoral, or impossible to be performed.”
“3. A convict was granted and accepted a parole which expressly provided that the Governor might revoke the same and remand the party to prison for a violation of the conditions, or ‘for any other reason by him deemed sufficient.’ Held, that the Governor may order the convict to- be so remanded without notice to him, and without giving him an opportunity to be heard.”

Again, in Ex parte Collins, 32 Okla. Cr. 6, 239 Pac. 693, this court reviewed the authorities and reaffirmed the rule announced in the Horine Case, supra. These cases state the correct rule, and this court will not depart from the holding there announced. It follows the writ should be, and the same is, denied.

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


text:
    Ex parte OSCAR LOVINGOOD.
    No. A-9040.
    Jan. 3, 1936.
    (53 Pac. [2d] 290.)
    Oscar Lovingood, pro- se.
    Mac Q. Williamson, Atty. Gen., and Smith 0. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

This is an original proceeding in ha-beas corpus.

Petitioner alleges that on July 3, 1935, he was convicted in the district court of Coal county of manslaughter in the first degree and was sentenced to serve a term of forty-five years in the state penitentiary and Avas duly committed to the penitentiary at McAlester. That on October 2,1985, while serving said sentence and on request from the United States Attorney for the Eastern District of Oklahoma, he was delivered by an executive order of the Governor of this state, duly attested by the secretary of state, to the United States marshal and was by him conveyed to the United States District Court at Durant, where he was tried, convicted, and sentenced to serve a term of ten years in the United States penitentiary at LeavenAVorth, Kan., on a charge of violating a federal statute. That he Avas then returned to the state penitentiary at McAlester by the United States authorities, where he is now confined under said conviction in Coal county; that said confinement is illegal for the reason that the executive order of the Governor, under which petitioner was delivered to the United States marshal, is a pardon. The facts stated are not controverted. Attached to the petition are certified copies of the judgment of the district court of Coal county, the informal request of the United States Attorney for the delivery of petitioner for the purpose of attending trial in the United States Court at Durant, the executive order of the Governor attested by the secretary of state, a copy of the judgment and sentence in the United States court.

The executive order referred to, in part recites:

“It appearing that the * * * Assistant United States Attorney * * * has requested * * * that Oscar Lovingood * * * who is now confined in the state penitentiary at Mc-Alester, Oklahoma, be released under guard to testify in a cause now pending for trial against this prisoner in the United States District Court for the Eastern District of Oklahoma * * * and it further appearing that the said Oscar Lovingood is a material and necessary witness in said cause and that his presence and testimony are required for the proper trial of said cause.
“It is therefore ordered that you, as warden of the Oklahoma state penitentiary * * * deliver the said Oscar Lovingood * * * to the custody and care of the United States Marshal * * * said prisoner to be kept under guard at all times and properly returned to the penitentiary when his presence is no longer required in the United States District Court. * * *”

The judgment and sentence in the United States District Court in part provides:

“It is thereupon now considered, ordered and adjudged that the defendant Oscar Lovingood, is sentenced to 10 years in the U. S. penitentiary at Leavenworth, Kansas, to begin when the imprisonment defendant is now serving in the Oklahoma state penitentiary expires or when he shall be released from said penitentiary at Mc-Alester from said sentence for any reason whatsoever.
“It is ordered by the court that the marshal deliver or cause to be delivered the body of defendant back to the Oklahoma state penitentiary where he is now serving sentence.”

Petitioner relies on Ex parte Guy, 41 Okla. Cr. 1, 269 Pac. 782, wherein this court held that under the state of facts there recited the delivery of a convict in the state penitentiary, undergoing sentence, was a pardon and that petitioner in that case was entitled to be discharged by habeas corpus. In that case the state of facts, the executive order, and the conditions were so different from the instant case that it is no- authority for the release of petitioner in this proceeding, but to the contrary is authority for the denial of his contentions. It was there said in substance that the federal government may deliver an accused person held hy it, to the state, or the state may deliver a convict serving sentence in a state prison to the federal authorities for the purpose of having* him testify or for the purpose of prosecution in the federal courts and that upon the conclusion of his testimony or the completion of his trial, he may be returned to the state to complete his sentence. In that case the petitioner was delivered to the federal authorities to be prosecuted and in case of conviction to suffer the punishment imposed after which he was to be returned to the state authorities, but in case of his acquittal no return was provided for. In the instant case both the executive order and the judgment and sentence of the federal court provide that the state does not lose its custody of the prisoner. See authorities cited in Ex parte Guy, supra. The time of service of petitioner in the state penitentiary was not interrupted by the executive order and his trial in the federal court. He was at all times in the direct or constructive custody of the state and his confinement in the penitentiary under the judgment of the district court of Coal county is legal.

The writ is denied.

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


author: DAVENPORT, P. J.

text:
    WALTER L. BEAVERS v. STATE.
    No. A-8936.
    Jan. 3, 1936.
    (53 Pac. [2d] 293.)

      David Tant, Davis & Lucas, and G. C. McDonald, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, who will hereinafter be' referred to' as he appeared in the trial court, was convicted of the crime of manslaughter in the first degree, as charged in the information, and sentenced to be imprisoned in the state penitentiary for a term of four years.

From the judgment and sentence the defendant by petition in error and case-made filed his appeal in this court on June 14, 1935. The case was regularly assigned for oral argument on September 17, 1935, was submitted on the record, and thirty days given plaintiff in error to file brief. On October 15, 1935, the defendant was granted an additional fifteen days to file his brief. No1 brief has been filed, notwithstanding the time for filing brief has long since expired.

The record has been carefully examined, and the court finds from the record that the court properly instructed the jury as to the law applicable to the facts in the case; that the testimony is sufficient to sustain the verdict and judgment; that no fundamental or prejudicial errors appear in the record.

The judgment and sentence of the trial court is therefore affirmed.

EDWARDS and DOYLE, JJ., concur.


author: PER CURIAM.

text:
    Ex parte TYREE PARKS.
    No. A-9049.
    Jan. 4, 1936.
    (53 Pac. [2d] 290.)
    ■Moss & Young and Saul A. Yager, for petitioner.
    Holly Anderson, Co. Atty., Tom Wallace, Asst. Co. Atty., and Owen J. Watts, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Petitioner, Tyree Parks, filed his duly verified petition in this court on December 30, 1935, alleging that he was imprisoned in the county jail of Tulsa county, Okla., by the sheriff of said county; that he is held in default of bail on a charge of murder. That on or about December 4, 1935, preliminary information was filed in the court of common pleas in Tulsa county; that thereafter, on or about the 12th day of December, 1935, a preliminary hearing was held before Honorable Bert E. Johnson, a judge of the court of common pleas of Tulsa county, and your petitioner was bound over to the district court of Tulsa county, in said case, without bond, and said cause was docketed in said district court of Tulsa county.

Petitioner alleges his restraint is illegal and unauthorized; that he is not guilty of the charge; and that the proof of his guilt is not evident, nor is the presumption thereof great.

Petitioner further alleges that on the 24th day of December, 1935, he filed in the district court of Tulsa county, and presented to a district judge, his petition for a writ of habeas corpus to be admitted to bail in said case, and that in pursuance thereof the said judge of said court issued a writ of habeas corpus, directed to the sheriff of Tulsa county, and on December 28, 1935, a hearing was held before the Honorable Bradford J. Williams, judge of the district court of Tulsa county, and the application of the said petitioner was by the said district court denied. Petitioner appeared in person, and by his attorneys, Moss & Young, and Saul A. Yager. The state appeared by Owen J. Watts, Assistant Attorney General, Holly Anderson, county attorney of Tulsa county, and Tom Wallace, assistant county attorney. A transcript of the testimony taken in the preliminary trial was presented and oral testimony taken.

After a careful consideration and study of the evidence contained in the transcript, and the oral testimony taken in open court, the court is of the opinion that the petitioner is not entitled to' the relief prayed for.

The application of the petitioner for a writ of habeas corpus to be admitted to bail is denied.


text:
    DICK JONES v. STATE.
    No. A-9007.
    Jan. 10, 1936.
    (53 Pac. [2d] 589.)

      Morrill & Snodgrass, plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and E. Mac Townsend, Co. Atty., for the State.
   DAVENPORT, P. J.

This is an. attempted appeal from the county court of Tillman county, wherein on the 1st day of June, 1935, a judgment of conviction was rendered in accordance with the verdict of the jury finding the defendant, Dick Jones, guilty of the offense of unlawfully pointing a pistol at another, and fixing his punishment at four months in the county jail and a fine of $500 and cost.

The Attorney General has moved to dismiss the appeal on the ground that the same was not filed in this court within 120 days from the date the judgment was rendered.

An examination of the record discloses that the petition in error, with case-made attached, was not filed in this court until the 9th day of October, 1935, more than 120 days after the rendition of said judgment. This being an attempted appeal from a misdemeanor, the greatest length of time in which an appeal may be lodged in this court is 120 days from the rendition of the judgment.

An appeal may be taken by the defendant as a matter of right from a judgment of conviction, but the manner of talcing and perfecting said appeal is a proper .matter of legislative control. Stacy v. State, 37 Okla. Cr. 45, 256 Pac. 63, and cases therein cited.

The statute prescribing the manner in which an appeal may be taken is mandatory, and a failure to file an appeal in the appellate court in the time allowed by laAv is fatal to the appeal.

There is no provision of law which vests this court with the right to hear and determine appeals on their merits when they have not been taken within the time prescribed by statute. Stacy v. State, supra.

The failure to file the petition in error and case-made in this court within the 120 days after the rendition of the judgment, this being a misdemeanor conviction, the motion of the Attorney General to dismiss the appeal must be sustained.

It is therefore ordered and adjudged that the purported appeal be dismissed, and the cause remanded to the trial court, with directions to carry into effect its judgment.

EDWARDS and DOYLE, JJ., concur.


text:
    JOE DYER et al. v. STATE.
    No. A-8907.
    Jan. 10, 1936.
    (53 Pac. [2d] 700.)

      Victor C. Phillips and J. A. Shirley, for plaintiffs in error.
    Mac Q. Williamson, Atty. O-en., for the State.
   DOYLE, J.

The information in this case, filed in the district court of Bryan county May 23, 1933, charged that the defendants Joe Dyer and Norman Dyer did in said county on or about the 26th day of November, 1932, commit the crime of assault with intent to Mil; that is to say, the defendants did then and there unlawfully, willfully, and feloniously and without justifiable or excusable cause, make an assault in and upon one S. K. Thornton with a certain gun and car spring, the same being dangerous and deadly iveapons, and did then and there with said gun and car spring strike, beat, wound, cut, and injure the said ,S. K. Thornton, with the unlawful, wrongful, and felonious intent then and there on the part of them, the said Joe Dyer and Norman Dyer, to do great bodily harm and injury and to kill said S. K. Thornton.

On their trial, the jury returned a verdict finding “the above named defendants guilty as charged and assess their punishment at two1 and one half years in the state penitentiary.”

Motion for a new trial was duly filed and overruled. From the judgment entered November 7, 1934, in conformity with the verdict, they appeal.

The errors assigned and relied upon for a reversal of the judgment are: That the court erred in its instructions to the jury; that the defendants did not receive that fair and impartial trial to which they are entitled under the law; that the verdict of the jury is contrary to law and to the evidence.

It appears from the evidence that the prosecuting witness, Thornton, and his father had been living with Ab Dyer, father of the defendants, on Ab Dyer’s farm; that a day or two before the difficulty Ab Dyer moved about half a mile from this place, but still had his household goods and his farm tools at his home place, and also his potatoes in the cellar.

It also appears that the prosecuting witness and Ab Dyer are cousins, and that there had been a family controversy.

The prosecuting witness testified that he had made a crop that year together with Ab Dyer; that he was in the yard chopping up some rabbits he had killed that day to feed his chickens; that his shotgun was leaning against a tree, and the defendants came there in a wagon and. Ab Dyer and Bert McDaniel were walking; that Joe Dyer jumped out of the wagon, picked up the shotgun, held it on him, and said, “You poisoned my father’s mule”; he told Joe to be careful, that the guu was loaded; that Norman hit him on the head twice with a car spring and knocked him down and he heard Joe tell him not to hit him any more, and that Ab Dyer, their father, kicked him, then told Norman not to hit him again; that he asked Joe to take him into the house and shave his head before it got sore, and Joe said the Arkansas boy, Bert McDaniel, “who is also some kin to us,” would do it; that the mule they worked the crop with died a day or two before.

Dr. Gr. M. Rushing testified that S. K. Thornton came to his office for treatment; that he had quite a gash on his head, another one on his face, with one or two teeth out; that he was not in a dangerous condition; that there was no fracture and no concussion; that the car spring introduced in evidence is a dangerous instrument.

The testimony of the defendants as witnesses in their own behalf was to the effect that they stopped at their father’s home to get some potatoes out of the cellar; the prosecuting witness said, “I have been hearing you boys accuse me of poisoning that mule and I am- going to stop that,” and then started for the shotgun; that Joe Dyer grabbed the gun and unloaded it; then Thornton started towards Norman Dyer and struck at him with an axe; Norman dodged and picked up a car spring from the ground and struck Thornton twice with it.

Ab Dyer, father of the defendants, testified that he walked up, and Thornton raised up his axe and started after Norman; then Norman picked up this car tool and hit him with it; that Joe unloaded and was holding Thornton’s double-barrel shotgun; that he did not strike or kick Thornton.

A number of witnesses testified that they knew the general reputation of the defendants in that community for more than fifteen years as to' being peaceable and law-abiding citizens or otherwise and their reputation was always good.

Upon a careful examination of the record and the evidence in this case, our conclusion is that the judgment in this case cannot be permitted to stand. It also appears that the verdict is too1 indefinite and uncertain to support a conviction of the highest degree of the offense charged.

The statute under which this information was prosecuted reads:

“Every person who intentionally and wrongfully shoots, shoots at, or attempts to shoot at another, with any kind of firearm, airgun or other means whatever, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death or in resisting the execution of any legal process is punishable by imprisonment in the penitentiary not exceeding ten years.” Section 1873, St. 1931.

The information alleges all the essential ingredients of the offense as defined by the second clause of this section.

The information is also sufficiently direct and certain to charge a violation of the included offense defined by section 1870 and section 1874 of the Penal Code. •

These offenses are all of the same character. An assault and battery with intent to kill necessarily includes an assault with intent to kill, also an assault with intent to do bodily harm; and an assault and battery by means of a deadly weapon necessarily includes an assault with any dangerous weapon, and every battery includes an assault. Clemons v. State, 8 Okla. Cr. 452, 128 Pac. 739; Love v. State, 12 Okla. Cr. 1, 150 Pac. 913.

The record discloses that exceptions were taken to certain instructions given by the court.

The court instructed the jury that the defendants were charged with the offense defined by section 1873', of assault and battery of another by means of any deadly weapon, or by such other means or force as is likely to produce death, and that the same is punishable by imprisonment in the penitentiary not to exceed ten years.

The court also instructed on the lesser included offense defined by section 1870, of assault upon the person of another with any sharp or dangerous weapon or other means whatever with intent to injure, although without intent to hill such person or to commit any felony.

The court did not submit the issue on section 1874 of assault with intent to kill.

The court further instructed the jury as follows:

“No. 8. You are instructed that if the defendants went to the home of the prosecuting witness for the purpose of raising a row with him and giving him a whipping, then they cannot plead self-defense in this case, and if under such circumstances they struck the defendant with an iron spring from a Ford car on the head and you believe that such spring is a dangerous and deadly weapon and from the mode and manner of its use it was likely to produce death, or pointed a loaded, cocked shot gun at S. K. Thornton in a threatening manner, then they would be guilty as charged. (Excepted to by defendants. Exceptions allowed. Porter Newman, Judge.)”

This instruction is not a correct statement of the law, in that in its concluding clause, “or pointed a loaded, cocked shot gun at S. K. Thornton in a threatening manner, then they would be guilty as charged,” it submits an issue under the first clause of section 1873, providing:

“Every person who intentionally and wrongfully shoots, shoots at, or attempts to shoot at another, with any kind of firearm, airgun or other means whatever, with intent to kill any person.”

The information in this case does not properly charge the offense under this clause, and the evidence shows no facts or circumstances tending to prove an attempt to shoot with intent to kill, and the court should have instructed the jury: That, if you find and believe from the evidence, beyond a reasonable donbt that the defendants went to the home of the prosecuting witness for the purpose of raising a row with him and giving him a whipping, and did commit an assault and battery with intent to hill as charged in the information, then they cannot plead justification in self-defense.

The court further instructed the jury as follows:

“No. 9. You are further instructed that the prosecuting witness in this case had a perfect right to use such force as was necessary to eject and drive the defendants from his premises. (Excepted to'by defendants. Exceptions allowed. Porter Newman, Judge.)”

This instruction is not only subject to the criticism that it invades the province of the jury, but it is not a correct statement of the law applicable to the evidence in this case. The testimony on the part of the defense shows that the defendants were not trespassers; that they were where they had a right to be, on the premises of their father, who was with them at the time; that the prosecuting witness, during the altercation about the mule, attempted to get his shotgun and was prevented by the defendant Eoy Dyer; that he then assaulted the defendant Norman Dyer with an axe. Upon the whole case, the evidence is in direct conflict as to who was the aggressor. In this conflict of evidence it was the province of the jury to determine which of the versions given by the witnesses was the true one. A person may resist a trespass on real property in his possession, and may eject the trespasser therefrom by the use of any reasonable force short of taking or endangering human life; but, if he is unable to prevent a trespass, where no felony is attempted, by any means short of taking or endangering human life, he must suffer the trespass, as the law does not justify the use of a deadly or dangerous weapon or endangering the life of another to repel a mere trespass where there is no actual or apparent attempt on the part of the trespasser to commit a felony thereon. Garrison v. State, 19 Okla. Cr. 3, 197 Pac. 517; Jackson v. State, 49 Okla. Cr. 337, 293 Pac. 567; Schmitt v. State, 57 Okla. Cr. 224, 47 Pac. (2d) 199.

It follows that the court had no right, in charging the jury, to assume that the defendants were trespassers, and that the prosecuting witness was without fault in bringing on the difficulty.

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

The case having been tried upon a wrong theory and the issues under the information and the evidence not having been correctly submitted to the jury, all to the prejudice of the substantial rights of the defendants, we are of the opinion that the defendants were not accorded that fair and impartial trial to which they are entitled under the law.

Inasmuch as the cause must be remanded for another trial, it is fitting to observe that the information, to which no objection was made, confuses the first and second clause of section 1873. It also includes the language of section 1874, and at the outset the offense is denominated as in section 1870.

It is evident that the county attorney in drawing the information confused these sections. Upon the undisputed facts, this prosecution should have been under section 1870.

For the reasons stated, the judgment of the district court of Bryan county is reversed, and the cause remanded to be proceeded with in accordance with the views herein expressed.

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


text:
    KENNETH HILDERBRAND v. STATE.
    No. A-8994.
    Jan. 10, 1936.
    (53 Pac. [2d] 588.)
    Hugh J. Adams, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

Appellant, Kenneth Hilderbrand, and. Emil Stevens were jointly charged with the crime of burglary in the second degree. Upon his separate trial appellant was convicted, and, in accordance with the verdict of the jury, was sentenced to imprisonment in the state penitentiary for a term of two years. He prosecutes this appeal from that judgment.

The information charges in substance that in Logan county on the 13th of December, 1931, the defendants did then and there willfully, unlawfully, burglariously, and feloniously break and enter into’ by prying off tbe seal of a certain box car No>. P. F. E. 38802, on train No. 81, of tbe Atchison, Topeka & Santa Fe Railway Company, a corporation , as said train was running between Lovell, Okla., and Guthrie, Okla., in which railroad car personal property was had and kept, with the willful, unlawful, burglarious, and felonious intent then and there on the part of them, the said defendants, to commit the crime of larceny therein of personal property, to wit, one box of grapes, which the said defendants unlawfully, burglar-ioüsly, and feloniously did take, steal, and carry away without the knowledge and consent and against the will of the owner, the Atchison, Topeka & Santa Fe Railway Company.

The information is sufficient to charge the offense defined in subdivision 2 of section 1931, St. 1931. See Keasler v. State, 38 Okla. Cr. 255, 259 Pac. 1059.

It is also contended that the evidence is insufficient to sustain the verdict and judgment, in that it fails to show a felonious intent to' steal therein.

The evidence on the part of the state shows that on the date alleged, when Santa Fe train No. 81 arrived at Guthrie from Lovell, a side door on car No. P. F. E. 38802 on said train was open. This car was loaded with crates of grapes, and a crate of grapes had been taken from said car. The said defendants Hilderbrand and Stevens were arrested. Thereafter, while in jail, they signed a confession in the presence of two of the state’s witnesses in which they stated that they “rode on train No. 81, a local from Lovell to Guthrie on December 13, 1934, and did break the seal and enter said car loaded with grapes and that they ate and destroyed the contents of one box.”

The state’s witnesses testified that the confession was voluntarily made after the said defendants had been warned that the same might be used in court against them. This confession is corroborated by all the facts and circumstances in evidence.

It also appears that the car seal of this car was found at Crescent, between Lovell and Guthrie.

On the part of the defense, seven or eight witnesses testified that they lived at Lovell and in that community and knew the general reputation of the defendant Hilder-brand as to being a law-abiding citizen or otherwise and that such reputation was good.

As a witness in his own behalf, the appellant testified that he had lived near the town of Lovell for several years; that he and his codefendant had been drinking that day and boarded an oil car on freight train No. 81 with the idea of riding; to Guthrie to see a show; that, when they reached Crescent, they were cold and looked for a box car for shelter; finding no car open, they broke into the car in question; that they had only one idea in mind when they entered the car and that was to get in out of the cold; that, when inside the car, their curiosity got the better of them, and they opened one of the boxes; finding grapes therein, they ate some of them.

On cross-examination he admitted that he had previously been convicted of robbery on a plea of guilty and was sentenced to a reform school in Kansas.

The testimony of Emil Stevens, codefendant, was in substance to the same effect as that of appellant.

The corpus delicti was sufficiently shown by evidence independent of the confessions.

The instructions given by the court, to which no exception was taken, fully covered the law of the case.

The trial, it appears, was in all respects fair, the punishment assessed by the jury is severe, but it is the minimum punishment prescribed by law for the offense charged, and we are unable, after a careful review of the entire record, to find anything sufficient to warrant us in interfering with the verdict, as we have no authority to mitigate minimum punishment. That is a matter that may be urged in an application for executive clemency.

Finding no error in the record, the judgment of the lower court is affirmed.

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


text:
    CLARA PRICE v. STATE.
    No. A-8945.
    Jan. 10, 1936.
    (53 Pac. [2d] 591.)
    Glen O. Morris and George Miller, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and Smih 0. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, for convenience hereinafter referred to as the defendant, was jointly charged and tried with Carl Mooneyham, was convicted and sentenced to pay a fine of $300 and to be imprisoned in the county jail of Oklahoma county for a period of 90 days.

The information in this case charges:

“That in Oklahoma County, and State of Oklahoma, Carl Mooneyham and Clara Price did on the 15th day of December, 1934, commit the crime of illegal possession of intoxicating liquor, in the manner and form, as follows: That they did then and there unlawfully, willfully and wrongfully have the possession of a certain quantity of intoxicating liquor, to wit: one gallon of whiskey.”

Motion for a new trial was filed, presented, and overruled, and the defendant duly excepted. Before the case was called for trial, a motion to suppress the evidence claimed to have been secured by the state was made, on the following ground, among others:

“That such search warrant is ineffective, void, and does not state facts sufficient for a search of the home and residence of this defendant.”

The defendant, Clara Price, testifying in support of her motion to suppress the evidence, offered in evidence what is designated as “Plaintiff’s Exhibit A” which is entitled, “State of Oklahoma, County of Oklahoma, SS. Search Warrant.” No property is described in the warrant, nor has it any date, but E. K. Wall’s (justice of the peace) name appears at the proper place on the copy. The defendant testified positively that the paper introduced by her was the only paper served on her when they searched her home.

The state called W. E. Agee, Avho testified he was a deputy sheriff in Oklahoma county, identified a copy of what purported to he a search warrant, and stated that the copy he identified, and which has been marked “Plaintiff’s Exhibit One,” is a copy of the search warrant he served on the defendant, which was introduced in evidence, over the objection of the defendant.

On cross-examination it was brought out that the Avriting in the copy that the deputy presented was filled in the warrant in the sheriff’s office and then taken to the justice of the peace for his signature. Witness stated that the justice of the peace signed them by slipping his own carbon under the warrants. The deputy further testified as follows:

“Q. Have you a pad of these? A. Large number. Q. And the signature of E. K. Wall, justice of the peace, as written on the original shows to be his signature on these carbons, does it not? A. Yes, sir, it does.”

.So far as this court knows, no original search Avarrant was in existence. It was not produced in court, and the officer, in attempting to justify his conduct, offered in evidence what he says is a copy of the search warrant that he served on the defendant.

There are many other questions raised in this case, but the question of the service of a legal search warrant is the only question the court deems it necessary to consider. It has often come before this court where officers would possess pads of blank warrants and carry them around with them, having the justice of the peace’s signature attached to them, and fill them in when they deemed it necessary.

The testimony of the officer in this case is not clear as to how many of the blanks in the pad he admits he had, which had been signed by the justice of the peace. There is no reason given by the state why its officers do not exercise the proper care and diligence in serving their papers after they have been duly and regularly issued by the proper authorities. The copy of the search warrant that the officer presents, claiming to be a copy of the one he served on the defendant, is a John Doe warrant, and does not mention the defendant in this case.

The motion of the defendant to suppress the evidence was overruled, and exceptions properly saved. It is perfectly clear to this court that no legal search warrant was served as required by laAV, and that the search of the defendant’s place by the officers was without authority of law unless the defendant waived her constitutional rights. It has been repeatedly decided by this court that the evidence in liquor prosecutions obtained by illegal search and seizure contrary to section 30 of the Bill of Bights is inadmissible against the defendant as being in violation of section 21 of the Bill of Bights, giving one accused of crime immunity from becoming a Avitness against himself. Committi v. State, 28 Okla. Cr. 380, 383, 231 Pac. 316; Houchin v. State, 58 Okla. Cr. 329, 52 Pac. (2d) 1085.

The view we take of this record, it is not necessary to consider the other assignments.

The judgment of the lower court is reversed, and the case remanded, with directions to discharge the defendant.

EDWABDS and DOYLE, JJ., concur.


text:
    ROE GARTEN v. STATE.
    No. A-8748.
    Jan. 25, 1935.
    Rehearing Denied Jan. 13, 1936.
    (54 Pac. [2d] 1068.)
    Blanton, Curtis & Blanton, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Garvin county of larceny of a domestic animal, and was sentenced to serve five years in the state penitentiary.

The record was filed in this court May 7, 1934; no brief in support of the appeal has been filed.

An examination discloses no fundamental error. The evidence is sufficient to support the verdict of the jury.

The case is affirmed.

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


text:
    WILLIAM WEAVER v. STATE.
    No. A-8871.
    Jan. 17, 1936.
    (53 Pac. [2d] 696.)

      M. O. Counts and D. A. Stovall, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith 0. Matson, Asst. Atty. Gen. (Ralph K. Jenner, of counsel), for the State.
   DOYLE, J.

The information in this case filed in the district court of Choctaw county, March 7, 1934, omitting merely formal parts, charges:

“That William Weaver did in Choctaw county, state of Oklahoma, on or about the 19th day of May, 1933, and anterior to the presentment hereof, commit the crime of Arson 2nd Degree in the manner and form as follows, to wit: That the said defendant William Weaver and Mrs. William Weaver and one Earl Cook then and there being and acting together with the one purpose and design, did willfully, wrongfully, unlawfully, maliciously, and felon-iously in the nighttime set fire to and burn with fire a certain building to wit: a two story brick building located on lot number 5 and block number 101 in the original town-site of the city of Hugo, Choctaw county, the property of one O. Gill, said building being then and there used and occupied by the Griffin Amusement Company with the name Erie Theatre as a public theatre with the unlawful, wrongful and felonious intent on the part of the said defendants to so burn and destroy said building with fire, contrary,” etc.

On his trial the jury rendered their verdict finding him guilty of arson in the second degree and fixing the punishment at imprisonment in the penitentiary for one year.

Motion for neAv trial was duly filed, presented, and overruled.

From the judgment entered in accordance with the verdict, November 24, 1934, he prosecutes this appeal.

As reasons for a reversal, various errors are assigned, among them being that the court erred in giving and refusing certain instructions; and that the court erred in refusing to direct a verdict of acquittal on the ground that the evidence was insufficient to warrant conviction, because the Avitnesses Earl Cook and Emmett Cook were accomplices.

The only question that we deem necessary to discuss is the sufficiency of the evidence to sustain the conviction.

In this case there was no controversy about the fact of the burning or attempted burning of the building described in the information. About 5 o’clock in the morning on the date alleged a fire started in the northeast corner of the building under a stairway, another in the southeast corner of the building in a pasteboard box, and that the fires were quickly extinguished.

Earl Cook testified that he lived at Idabel, had known the defendant abont two years, bnt had no business dealings with him, except that he talked to him about a job in his theatre, that the defendant came to his home in Ida-bel one night and called him out, then he got in the defendant’s car and rode down to- Little Eiver and back, that the defendant asked him if he wanted a job, and if he would be interested in getting this Erie show out of the way by burning it or any other way; that he told the defendant that he might if there was a job in it, and the defendant said, “Come up and see me,” that this was about a week before the fire; that on the following day he went to Hugo and saw the defendant in his office at the Hugo Theatre. Then and there the defendant told him he would give him a job and $100 to burn the Erie Theatre; that he told him that he would, and the defendant gave him $25. He then went back to Idabel; that several nights later he went back to Hugo and entered the theatre through the booth window and set the building on fire in two places; that a week later he was arrested, charged with this crime; that he saw the defendant only one time after the fire.

On cross-examination he stated that never, before Weaver came to him to talk about burning the theatre, did he have a personal conversation with Weaver ; that while in jail he talked to the county attorney and the assistant and always denied his guilt; that he also- talked to the fire marshal and denied his guilt; that different officers talked to him about the attempted burning of the the-atre, and in every instance he told them he did not have anything to do with it, and never at any time asserted that Mr. Weaver had anything to do with it until he was placed on trial before a jury on February 13, 1934, and after the state had offered its evidence, and after a conversation with the county attorney and others he withdrew his plea of not guilty and entered a plea of guilty; that the officers told him, “That they would he easy on him.” Asked “If at the time you changed your story you were told by any person in authority, and officers of the county if you would come clean and tell this story you would be given consideration by reason of that?” he answered: “Yes, sir.” That he had been at liberty since that time, and had never been sentenced on his plea of guilty.

Emmett Cook testified that after his brother Earl was placed in jail he came from Idabel to see him; that his brother told him about the charge against him and asked him to see Mr. Weaver and tell him he wanted some money to make a bond; that he went to see the defendant on three different occasions. On the first the defendant gave him a $10 bill and said: “Tell Earl to keep quiet and not to say anything,” that on the next occasion he gave him $5 and some change to' buy Earl cigarettes with, and said: “Tell Earl to keep quiet about it.” That on the third occasion the defendant gave him $40 to help make a bond for Earl; that he went alone each time and no one was present at his conversations with the defendant.

On cross-examination he testified that he was twenty-seven years of age and is now serving a sentence in the Federal Penitentiary at El Eeno; that he used this money he got from Weaver to pay bondsmen for his brother, who had been in jail twenty-seven days when the bond was made; that he never did tell the defendant that he was to pay his brother $100 for the fire; and that he had no talk with him about the fire.

Mrs. Claude Downs testified that the defendant stayed at her place a part of the time and next door with her mother-in-law.

Against objection she further testified that some person unknown to her came to her house and inquired for Earl Cook, then went to the next door and found Earl and they left in a car.

It is stipulated and agreed in the record that O. Gill was the record owner of said property; that there was a mortgage on said property which had matured February 2, 1933, for the principal sum of $15,000 in favor of the Midland Saving & Loan Association of Denver, Colo.

At the close of the state’s case, the defendant interposed a demurrer to the evidence on the ground that the same is insufficient to warrant a conviction, which was overruled.

On the part of the defendant several witnesses were called and asked if they knew the general reputation of the witness, Emmett Cook, for truth and veracity in the community in which he lived, answered that they did; asked is it good or bad, they replied, “It is bad.”

As a witness in his own behalf, William Weaver testified that he was bom near Ada, age 40 years, married man with a family, has been engaged in the picture show business 22 years, had owned and operated 18 or 20 the-atres, operated a theatre in Hugo from August 6, 1932, until June 19, 1933; that he had a casual acquaintance with the witness Earl Cook, who had at one time asked him for a job; that he .never had any conversation whatever with Earl Cook about burning or destroying the Erie Theatre; that he did not go to' IdabeJ as testified by Earl Cook to arrange with him to burn this theatre; that he never had any confidential relations of any kind whatever with him; that he had nothing to do in any way with the attempted burning of the Erie Theatre.

He further testified that he did not know Emmett Cook and never had a conversation of any kind with him; that neither Earl Cook nor Emmett Cook ever asked him or talked to him about making a bond for Earl; that about a month after the alleged fire he sold his show to the Griffin Amusement Company and moved to Arkansas City, Kan.; that the first he knew of any charges against him was when he saw it in the newspaper in March, 1934; that he had never been convicted of any crime, or arrested, or charged with any offense in his life prior to this charge.

During the trial the defense called several witnesses, and, after qualifying them as character witnesses, they each testified that the general reputation of the defendant in the communities in which he had lived as to being a law-abiding citizen was good.

At the close of the evidence the defendant moved for a directed verdict of acquittal on the ground that the evidence is insufficient to convict him of the offense charged, which motion was denied.

The contention of the defendant is that the witnesses, Earl and Emmett Cook, were accomplices; that their testimony was uncorroborated; and that therefore the court erred in refusing to direct a verdict of acquittal.

After a careful review of the record, we are of the opinion that the motion for a directed verdict should have been sustained.

“The rule of law forbidding a conviction upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense is, under the statute (section 3'071, ,St. 1931), positive and peremptory.
“ ‘The corroborative evidence must of itself, and without the aid of the testimony of the accomplice, tend in some degree to- connect the defendant with the commission of the offense; and independent evidence merely consistent with the main story is not sufficient corroboration if it requires any part of the accomplice’s testimony to make it tend to connect the defendant with the crime.’
“ ‘There must be some evidence, which of itself, and without aid from the accomplice’s testimony, tends to connect the defendant with the offense committed.’ ” Rogers v. State, 57 Okla. Cr. 294, 48 Pac. (2d) 344, 346.

When the question of an accomplice arises in the trial of a case, the general and accepted rule is for the court to instruct the jury on the law of accomplice testimony, and leave the question as to whether or not the witness is an accomplice for the determination of the jury as a question of fact. But where the facts are not in dispute, or where the acts and conduct of the witness are admitted, it becomes a question of law for the court to say whether or not those acts and facts make the witness an accomplice. Where he is admitted to' be such, or where the undisputed facts show him to be an accomplice, the court may so charge without invading the rule that the court should not comment on the credibility of any witnesses. Cudjoe v. State, 12 Okla. Cr. 246, 154 Pac. 500, L. R. A. 1916F, 1251.

Therefore, whenever upon appeal it is contended that the conviction was had upon the uncorroborated testimony of an accomplice, it is equivalent to the declaration that the verdict is contrary to the law and the evidence, and this is always a legal question. Yeargain v. State, 57 Okla. Cr. 136, 45 Pac. (2d) 1113.

Independent of the testimony of the accomplice, Earl Cook, there is no substantial evidence tending to connect the defendant with the commission of the crime charged.

Having reached this conclusion, we deem it unnecessary to discuss the other errors presented in the brief.

The judgment of the lower court is therefore reversed and the cause remanded with directions to dismiss.

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


author: EDWARDS, P. J.

text:
    ROY GUYTON v. STATE.
    No. A-8921.
    Jan. 17, 1936.
    (54 Pac. [2d] 224.)
    Harry L. Neuffer and Melville F. Boddie, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted of murder in the district court of Oklahoma county, and his punishment fixed at death.

At the time charged, one E. L. Bailey, who worked at a junk yard in Oklahoma City, was struck on the head, with a blunt instrument, which rendered him unconscious and from the effects of which he died about twenty-four hours later. Bailey at the time had a sleeping place in the junk yard, on top of a metal shed which was about eight feet high; apparently the blow was inflicted while Bailey was reclining or just as he raised up; when found just after daylight he was still bleeding and unconscious. He never regained consciousness. The motive was robbery, and some of the personal effects of deceased were taken, consisting of a belt, a small purse, a knife, a comb and a pistol. The day following, defendant attempted to pawn the pistol at a pawn-shop in Oklahoma City. It happened the pawnbroker had sold this pistol to' Bailey about six weeks before and had made a record of the numbers. When it was presented he' recognized it and made some excuse and managed to call the police, who came promptly and arrested defendant. When arrested, defendant was wearing the belt which had belonged to* deceased and had in his possession the small purse, knife, and comb which had been taken from deceased at the time of the homicide. Defendant did not testify.

While several contentions are made in the petition in error, they fall under two heads: First, that defendant did not have a fair jury; second, that the evidence is insufficient to sustain the judgment.

Defendant contends in support of his first proposition that three of the members of the trial jury were not selected from the regular panel, but were summoned by special venire. The procuring of additional jurors in the manner complained of is in conformity with our statute, section 800, Okla. St. 1931.

Under this assignment defendant further argues that the juror Loftis at the time was under a charge in Oklahoma county of having committed a felony, and while it is not contended he was disqualified to serve as a juror, it is argued such fact had a tendency to cause him to desire to ingratiate himself with the county attorney and therefore render him unfair. This is a mere surmise, not warranted by anything in the record. It is also' argued that the juror, Underwood, had been a candidate for sheriff at a previous election and was a person who hung around the courthouse, and defendant believes both the jurors Loftis and Underwood had heard the case discussed and had formed an opinion. The voir dire of the jurors was not in the record, and none of the points under this assignment are supported by the record, other than the bare, unverified statement in the motion for new trial. The statute and practice give a wide latitude to counsel in the examination of jurors on voir dire and in capital cases allows nine peremptory challenges to enable the accused to select a fair jury. If he neglects to exercise these safeguards, a claim for a new trial on this ground will not avail, unless there is a showing of prejudicial error or miscarriage of justice.

The evidence hereinabove summarized is sufficient; we are satisfied an honest jury could have arrived at no other conclusion than that of the guilt of defendant. The case is affirmed.

The original time for the execution having passed, owing to the pendency of this appeal, it is considered, ordered, and adjudged by this court that the judgment and sentence of the district court of Oklahoma county be carried out by electrocution of the defendant on the 20th day of March, 1936.

DAVENPORT, and DOYLE, JJ., concur.