text:
    DOCK SMITH v. STATE.
    No. A-5382.
    Opinion Filed May 11, 1926.
    Rehearing Denied May 27, 1926.
    (246 Pac. 883.)

      Mathers & Renegar, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Houston B. Teehee, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Carter county of manslaughter in the first degree, and sentenced to serve a term of 15 years in the state penitentiary.

The record discloses a state of facts about as follows: The defendant, a horse trader, who lived in Ardmore, had bought a team of horses from the deceased, Wiley or Wallace Sam. Sam was a restricted Choctaw Indian, and the purchase of the team was without the consent of the Department of the Interior, and some time later the Indian Agency recovered the team and redelivered it to Sam. Defendant was not repaid the purchase price. In December, 1923, Sam and defendant met in a wagon yard at Ardmore and there, according to the evidence for the state, defendant walked up behind Sam, struck him on the head with a piece of iron pipe, knocking him to the ground, and again struck him on the head and kicked him. Defendant paid a fine for assault and battery before the local authorities. A few minutes later he returned to the wagon yard, took the iron pipe and threw it behind a building, and later the police officers were told by the wife of the deceased where defendant had thrown the iron pipe, and it was found, with blood on one end of it. Sam was taken to the police station and later removed to the hospital. At the hospital he was examined, a wound found on the head, and he was bleeding from the wound and the nose. An X-ray disclosed an indention of the skull. He remained in the hospital about a week and was released; later he suffered from fits and complained of pain in the head. He died on June 7, 1924, after a brief illness. After the death of Sam an autopsy disclosed that the skull had been indented about 1 1-2 or 2 inches, and there were blood clots on the brain. The physicians who made the autopsy testified the condition of the brain was sufficient to produce death. Defendant denied that he struck deceased with an iron pipe, but claimed he struck only with his fist, and that in his own defense.

It is first contended that there is a fatal variance between the information and the proof in this, the information charges the defendant with killing Wiley Sam, while the evidence discloses that the true name of the deceased was Wallace Sam. When the wife of deceased testified, she was asked the name of her husband. She answered it was Wiley Sam. Counsel for defendant interposed, and with permission of the court asked the correct name of her deceased husband, and she stated that his true name was Wallace Sam. The court then ordered the information corrected to read Wallace Sam instead of Wiley Sam. The jury was withdrawn and the county attorney offered several witnesses, who testified that deceased was generally known by the name of Wiley Sam, and that, while probably his true name was Wallace, he was known more generally by the name of Wiley. The court thereupon struck out his order to correct the name, and the prosecution proceeded against defendant for the murder of Wiley Sam.

It is, of course, fundamental that a person may not bé charged with the commission of an offense against one person and be convicted of an offense against another, and an accused has a right to know definitely the particular charge he must defend against. This right, however, is not violated by the state of facts shown by the record. It is said that the object and purpose of describing a person by his name is to identify him, and the genéral rule is that one may be designated in legal proceedings by the name by which he is commonly known, although not his true name, even though he may be known both by the name by which he is commonly designated and by his true name. 19 R. C. L. 1333. See, also, Spaulding Imp. Co. v. Goforth, 54 Okla. 705, 154 P. 649; Bacon v. Dawson et al., 53 Okla. 689, 157 P. 1033; Roberts v. Mosier et al., 35 Okla. 691, 132 P. 678, Ann. Cas. 1914D, 423.

There was no question about the identity of the person injured. It is not a matter of different individual or a different name, but the description of deceased by a name under which he was commonly known instead of his correct name. If the name of the deceased had not been known to the prosecutor, he might have been designated as 'John Doe or any other description which would apprise defendant of the particular person he was charged with killing. There was no prejudice to defendant under this record in describing deceased as Wiley Sam. See section 2560, Comp. Stat. 1921.

Complaint is next made that the trial court committed prejudicial error in refusing to require the court reporter to take down the remarks of the county attorney. The motion for a new trial sets out that, during the argument of the county attorney, counsel for defendant objected to the argument and was directed by the court to be seated and counsel thereupon requested the court to call the reporter and have the remarks of the county attorney taken in shorthand, and the request was refused by the court and exceptions taken. This is supported by three affidavits; two by attorneys for the defendant, and one by another member of the bar. Section 3065, Comp. St. 1921, makes the duty of the court reporter to take in shorthand and transcribe, when required, all the. proceedings upon the trial of any case, as well as all statements of counsel, the witnesses, or the court, when required by any party or his attorney, and that counsel in any case shall have the right to request the taking of any such statement or proceedings; and a refusal of the court to permit, or, when requested, to require, any of the proceedings to be taken down or transcribed after being taken down, may be shown by affidavit or otherwise, and shall be deemed prejudicial error without regard to the merits. This statute has been several times considered by this court, and it is held to be the duty of the court, upon request, to have the proceedings taken in shorthand and transcribed. Lamm v. State, 4 Okla. Cr. 641, 111 P. 1002; Walker v. State, 6 Okla. Cr. 370, 118 P. 1005; Miller v. State, 9 Okla. Cr. 255, 131 P. 717, L. R. A. 1915A, 1088; Tudor v. State, 14 Okla. Cr. 67, 167 P. 341; Ewing v. State, 17 Okla. Cr. 690, 190 P. 274.

In the Tudor case, supra, the court, in affirming the judgment, said:

“After considering the whole record, we conclude that this judgment should not be reversed upon this ground. The trial courts, however, are warned against the practice complained of. The law entitles a defendant to have every utterance during the trial recorded and transcribed if he so desires, and no trial judge has the authority to deny him this privilege. The fact that the record before us is sufficiently complete to enable us to determine the merits of this matter is the only ground upon which the judgment can stand. * * * Upon a careful consideration of the entire record in this case, we feel that it would be a miscarriage of justice to reverse this judgment, and that, while the irregularities complained of may contain some merit, they were not prejudicial to the substantial rights of the accused. It is absolutely clear that no honest and intelligent jury, under the facts, would render a different verdict upon a retrial of the cause.”

In the later case of Ewing v. State, supra, which was a close case, a request was made upon the court reporter to take the further remarks of the county attorney, and was refused by the trial court; this court reversed the judgment.

In the record before us the remarks of the county attorney are preserved by affidavit. There is no showing made that after the request that the remarks be taken the county attorney made any further objectionable argument. We consider and treat the affidavits filed as true and as a part of the record and give them full consideration. The argument is not, however, prejudicial, but is a reasonable deduction of facts proven from the standpoint of the state.

Section 3065, with section 2822, the harmless error statute, which was adopted with the Revised Code of 1910, should be considered and construed together; and, where the court fails to have any of the proceedings taken and transcribed, such failure, unless it is prejudicial under the entire record, will not alone work a reversal.

We do not know why a trial court should decline to require the court reporter to take any of the proceedings that may be requested. Court reporters are paid by the state to perform this duty, and, while a matter desired to be taken may not appear material to a trial court, it is, nevertheless, the right of counsel to have it transcribed. We must assume either that the court had not read this statute or had it called to his attention. It is only because the argument objected to is before us, and we find it to be without prejudice, that this error of the court is not reversible.

Finally, it is urged that the county attorney, in his closing argument, was guilty of improper conduct which tended to arouse the passion and prejudice of the jury against the defendant. The contention is not borne out by the record. The argument complained of falls far short of the rule announced by this court that, before a reversal may be had on the misconduct of counsel in his argument, it must be grossly improper upon some material point, which might injuriously affect the defendant’s rights. Tucker v. State, 33 Okla. Cr. 302, 243 P. 998; Prather v. State, 14 Okla. Cr. 327, 170 P. 1176.

The evidence is ample to sustain the verdict, and no such prejudicial error appears as requires a reversal.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    DONALD McLAURIN v. STATE.
    No. A-5955.
    Opinion Filed May 29, 1926.
    (246 Pac. 669.)
    John L. Gilson, fpr plaintiff in error.

      George F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

In this case, the information filed in the district court of Texas county charged that in said county, on or about the 7th day of April, 1925, Donald MacLaurin, did then and there feloniously, and by force and violence overcoming her resistance, rape, ravish, and accomplish sexual intercourse with Mabel Pittman, a female person of the age of 19 years, and not the wife of said defendant.

On the trial the jury returned a verdict finding defendant guilty as charged in the. information, but were unable to agree on the punishment. Motion for new trial was duly filed and overruled, and on September 23, 1925, the court rendered judgment, and sentenced defendant to imprisonment in the penitentiary for a term of 15 years. He has appealed from such conviction to this court, and, being unable to give bond, the cause, under the rules of the court, was advanced.

To properly determine the questions presented on the errors assigned and relied on for a reversal, consideration of the evidence will be necessary.

It appears that the prosecutrix was a student at the state school at Goodwell; that she was the foster daughter of J. T. Pittman and wjife, of Ellis county, of whose family she had been a member for about 12 years; that, while attending college, she worked for her board and room at the Cox Hotel. The defendant was 31 years of age, an overseas soldier, and employed as a telegrapher for the Rock Island Railroad at Goodwell, and had boarded at the Cox Hotel.

The testimony of the prosecutrix was to the effect: That defendant told her that Sunday morning that the law was after her for taking a little girl under the age out the Friday evening before. That he was a secret service man, and could help her, and, if she would trust him, he would protect her and take her to Mr. Albright’s to stay for a couple of days, and everything would be all right, and she could come back to school and she consented to go with him. He was to get a car from some one, and they went to the drug store together. After waiting a while, he went out and came back, and said the fellow had backed out, and they could not get his car. Then he borrowed an old Ford car from a Mexican, and they drove to Albright’s. Defendant talked to Mr. Al-bright and handed him some money, got back in the car and drove to Mr. Albright’s brother-in-law’s and there filled the radiator, then drove back to Albright’s and asked Mr. Albright, “Where is it?” Mr. Albright answered, “Right by the telephone pole.” Then he drove on aways, stopped, got out of the car, and went to a telephone pole, picked up a bottle, and put it in the car; then drove on to a house, stopped there, and got some matches and a drink of water; then started back and stopped at a vacant house. There he took the cushion out of the car, and put it on the porch, and asked her to come and sit on it. That she sat down a few minutes; then walked around the yard. Several cars passed by, and he told her to go in the house, and said he would stay on the outside. That he came in the house, and asked her to sit down and talk this thing over, and she sat down by him. He put his arms around her. She told him not to do that. He said he just wanted to love her. Then he pushed her over, and got on top of her. That she fought him, and tried to get up, and started to scream, but he put his hand over her mouth and choked her. That she had on extra cloths, as her menstrual period was on. That, after defendant had accomplished his desire, he kissed her. Seeing a man pass the window, she said “There is a man,” and defendant said, “I will kill him or you one,” and picked up a rock and went out on the porch. That she got up, and went to the door, and saw the man across the road from the house. Then defendant asked her to go back to town with him, and she told him that she would not go back to town in that shape, so they got in the car and started away. They saw a car coming, and he stopped and took the bottle out of the car and put it by a fence post, saying that he did not want any one to find that on him or in the car, and, while he was working on the car, another car came by with Mr. Albright and another man in it. Defendant said, “What do you know?” Mr. Albright answered, “Not much of anything.” Defendant got in the car, drove passed Mr. Albright’s and stopped at another house, talked to a man, and brought her a drink. Then they went on down to the river. There he took a cushion out of the car and put it in the shade of a tree and asked her to sit down by him and talk it over. That, thinking she could gain his confidence and find a way to get away, she sat down. Then he wanted her to lay down with him, and she would not do it. Then she walked around and went back and again sat down by him. He said he heard some voices, and got up, looked around, and walked off a little ways, and she went to the car, and laid down in the seat so he could not see her. That he went and laid under the tree, and she got out, cranked the car, and drove across the pasture to a ranchhouse, and there asked the way to Spearman; then drove on as directed, and stopped at a house to put water in the car. A woman there asked her what her name was, and she told them her name was “Carrol,” and asked the way to Spearman. That she drove on to a place about 15 miles north of Spearman, and had to stop again to put water in the car. A young man came to the door. He told her he was a bachelor, and asked her what she was doing and she said, “Doing as I please,” and he said, “Don’t you want to come in and stay with me a little while,” and she talked a while, and finally said, ‘T am just running away from wnat you asked me to do just then.” Then he carried water to the car, and asked her why she didn’t go home to her mother, and she said, ‘That is where I am going.” He said, “That old car will not take you to Spearman. If you will trust me, I will take you there.” She said, “All right,” and they got in his car, and he drove to Spearman. That she stayed at the hotel, and registered as Blondy or Mabel Pittman. That she is generally known as Blondy. That the next morning she sent a telegram to Mr. Cox that she was going home, and not to worry about her, and sent a telegram to Mr. MacLaurin that she was going, to California, and he would find the car 15 miles north of Spearman. That she took the morning train for Shat-tuck. fTh'at, after eating dinner there ,at a cafe, an officer came in and said: ‘Is your name Pittman? The sheriff at Arnett has asked me to hold you until he gets here. It seems that you have run away from school,” and she said, “I had a right to.” That she telephoned her mother to meet her at Gage. The sheriff took her on to Gage, and there turned her over to her mother. That she told her mother about it, and then went on home.

W. A. Albright testified that he saw defendant and the prosecutrix at his farm three miles and a half due east of Goodwell about 1 p. m. Defendant wanted water for the car, and he sent him down to his brother-in-law’s to get water; that about 4 o’clock p. m. he saw them the second time west of his place in the road and talked to defendant; that her arms looked sunburnt, and he did not notice any marks or bruises on her hands and arms.

Mrs. J. T. Pittman testified that she lived in Ellis county; that the first time she saw her foster daughter after she went to school at Goodwell in the summer of 1924 was at Gage on the 8th day of June; that she saw bruises on her body, a swelled place under the jaw, and some scratches on her hands and arms.

A. C. Lathrop testified: That he saw defendant and a girl with him at his place about 8 miles from Guymon Sunday afternoon about 1 o’clock, and defendant asked for and he gave him some matches. That about 4 o’clock he noticed a car standing quite a while before the house on the next quarter. That he walked past the car to the house, and, as he passed the window, saw the girl in the hoyse. She said something he did not understand. As he walked back across the road, defendant came out on the porch. That the girl was lying on what he took to be a car cushion. That a half hour later they stopped at his house, and defendant got a drink and took a drink to her.

L. E. Latham testified: That he has been in the dry goods business at Guymon 20 years, had a pasture south of town, was down there with Carl Smith, Bud and Daddy Meed and Mrs. Meed, and the prosecutrix drove up in an old Ford car, and wanted to know the way to Spearman. That the ladies were in the house, and the men out in the yard. That he told her the way, and she got out and cranked the Ford herself, and he remarked, “You can crank a Ford,” and she said “I can do anything.” He was then asked, “Did you observe any marks of violence on the lady’s person?” and answered, “Nothing that I thought was violence. Her neck was red, and looked as though it was sunburnt. We have a swimming pool in the pasture, and I thought probably she had been swimming and was sunburnt.” That a few days later she was in the store, and he asked her, “Did you get home all right?” and she said, “Yes; you are the man who directed me.”

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

As a witness in his own behalf, the defendant testified: That Sunday June 7th Miss Pittman called up and told him she was in trouble; thát Marshal McIntyre had run her out of the elevator office, and had reported her to Prof. Fanning, and she wanted to leave; that 11 o’clock he went up to the hotel, and she told him she wanted to go to Spearman. They went together to the drug store, and he tried to persuade her not to go. Then he borrowed a car from a Mexican who worked on the railroad, and with her drove out to Mr. Albright’s. He directed him where to get water for the car, and he drove there. Then he drove to Lathrops. There he got same matches and a drink; that it was hot, and the Ford did not have a top, and they stopped at a vacant house, sat on the porch and talked, then went into the house. She finally decided she would go back. That after they started back, she changed her mind, and said she wanted to go home. Then they went over to Lathrops again, and there he brought her a drink. That the next stop was down by the creek. There he told her that he had to go to Dalhart in the morning, and would have to get back. That, if she had to go home he would have the car brought back from Spearman. That she went on, and he started back. That he found the Mexican badly worried about his car, and told him not to worry, that he would have it brought back. That he was arrested the next morning, went over to the depot, and received a telegram from Miss Pittman telling him where she had left the car, and that she was going to California. That he did not have sexual intercourse with Miss Pittman on that trip or any other time.

Two or three witnesses testified that they talked with defendant that evening, and that there were no stains of any kind on his clothes, the same he was wearing when he left town about noon that day.

Defendant offered to prove by O. B. McDaniels that he had a conversation with defendant about 11 o’clock wherein defendant asked him if he could take him and Miss Pittman to Spearman that afternoon, and that witness agreed to take them, but shortly after was called to Stratford.

The court excluded this evidence, apparently on the theory that it was impeaching evidence. In this we think the court was in error. The evidence offered was not of contrary statements, but of facts tending to disprove the statement of the prosecutrix that defendant had agreed to take her to and leave her at Mr. Albright’s for a few days.

Defendant offered to prove by A. C. McIntyre, city marshal of Goodwell, that he found Mabel Pittman, better known as Blondy Pittman, with a man named Weatherby in the Equity Elevator office about 9 o’clock at night, and made her go to the Cox Hotel, and that he reported her conduct to President Fanning of the Good-well College.

Defendant offered to prove by A. W. Fanning, president of the college of Goodwell, that City Marshal McIntyre informed him the next day that he had found Miss Pittman in the elevator office south of the railroad in Goodwell, and that he had ordered an investigation.

The court sustained the state’s objections, and excluded this evidence.

We think the evidence offered was competent as tending to disprove facts stated by the prosecutrix. She had testified that she was induced to go with defendant to avoid arrest for some similar misconduct. The evidence offered was. of acts tending to show that she expected to be expelled from the college for such misconduct, and was both willing and anxious to leave Good-well to avoid such investigation.

The main question presented is whether the evidence was sufficient to warrant a conviction. It is true that this court has held many times that there is no rule of law which forbids a jury to convict for the crime of rape on the uncorroborated testimony of the prosecutrix, provided they, are satisfied beyond a reasonable doubt of the truth of her testimony. It does not follow, however, that a conviction upon such testimony is to be arbitrarily sustained under all circumstances. In some states, corroborating evidence is required by the stateute.

It is true that convictions for rape must rest largely upon the testimony of the prosecutrix, and direct corroborating testimony is well nigh impossible to procure. However, where the charge is true, there will almost always be some corroborating evidence, such as injury to the person or clothing of the prosecutrix, or the fact that she made complaint as soon as practicable, and without unreasonable delay, and it is always legitimate to consider whether the subsequent conduct of the prosecutrix is the usual and natural conduct, of an outraged woman as bearing upon the credibility of her direct testimony.

In Wines v. State, 7 Okla. Cr. 450, 124 P. 466, we said:

“It is the natural impulse of every honest and virtuous female to flee from threatened outrage, and, if assaulted, to make complaint at the first opportunity, and, where this is not done and no reasonable explanation is made, it is a strong, but not a conclusive, presumption against the truth of the accusation.
“By prompt disclosure the injured party is thereby shielded from unjust inferences and society guarded in a measure against the possible machinations of designing and evil-minded females.”

In this case the testimony of the prosecutrix should be considered in the light of all the attending circumstances. These are few, and perhaps not very significant. Nevertheless, we think they cast so much doubt upon the credibility of her testimony that the conviction should not be permitted to stand. The testimony of the prosecutrix is inconsistent and contradictory, and her subsequent conduct is wholly inconsistent with her direct testimony.

Our Penal Code, § 1834, subsec. 4, defines rape as an act of sexual intercourse, accomplished with a female, not the wife of the perpetrator, “where she resists, but her resistance is overcome by force and violence.” All the authorities are agreed upon the general principle that force is an indispensable element of the crime of rape. Her testimony as to force overcoming her resistance is wholly uncorroborated by a single circumstance, such as injury to her person or clothing, if we exclude the testimony of her foster mother.

At least three disinterested witnesses for the state testified that they observed her that afternoon after the alleged crime was committed, and noticed nothing unusual in her appearance or of the condition of her clothes. Her subsequent conduct in the sending of a telegram to defendant the next morning is wholly inconsistent with her direct testimony, and gives rise to a very strong suspicion that this prosecution was prompted by ulterior and unexplained motives. Her subsequent conduct cast so much doubt upon her credibility that we cannot permit the judgment and sentence in this case to stand. This conclusion renders it unnecessary to consider the other questions in the case. .

The judgment appealed from is reversed and the cause remanded, with direction to dismiss.

BESSEY, P. J., and EDWARDS, J., concur.


author: EDWARDS, J.

text:
    LORIN HALL v. STATE.
    No. A-5514.
    Opinion Filed May 29, 1926.
    (246 Pac. 642.)
    J. N. Roberson, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Canadian county on a charge of having possession of whisky with intent to sell, and sentenced to pay a fine of $50 and to serve a term of 30 days in the county jail. Several assignments of error are argued in the brief, only one of which is necessary to consider.

The evidence upon which the conviction was had was obtained by a search warrant which was issued upon an affidavit of A. W. Cook. Omitting the formal parts of said affidavit, the affidavit asks that a warrant be issued for:

“ * * * All the buildings, outbuildings, appurtenances and land situated on section 33, township 12, range 7, in Canadian county, state of Oklahoma, for the reason that affiant has been informed by a written letter that whisky is being made on said land, and that the law is being violated on said land at this time, and for the additional reason that the sheriff’s office has been informed a number of times of violations of the law on this land.”

Upon this affidavit a search warrant was issued, and the evidence obtained thereby was objected to. This affidavit violates the Constitution and statutes in failing to describe as particularly as may be the premises to be searched, simply describing section 33 which is too general under section 30, art. 2, of the Constitution, and section 7012 Comp. Stat. 1921. Kolander v. State, 33 Okla. Cr. 31, 241 P. 837.

An affidavit is further insufficient as being based wholly on information and belief. Daniels v. State, 32 Okla. Cr. 836, 241 P. 836; Best v. State, 32 Okla. Cr. 89, 240 P. 159; Simpson v. State, 30 Okla. Cr. 344, 236 P. 55.

The case is reversed and remanded.

BESSEY, P. J., and DOYLE, J., concur.


text:
    EDDIE FAULK v. STATE.
    No. A-5465.
    Opinion Filed May 29, 1926.
    (246 Pac. 643.)

      W. R. Withington, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of having possession of intoxicating liquor and sentenced to pay a fine of $200 and to serve four months in the county jail.

The contention is made that the evidence is insufficient to sustain the verdict, and that the assistant county attorney in his closing argument to the jury was guilty of misconduct in making statements of fact and comments outside the record.

The record discloses that certain officers went to the place where defendant resided near Oklahoma City, and some 200 yards from his house found concealed a keg containing about two gallons of whisky. There were tracks apparently leading from the house to the place of concealment, and there was a similarity between the defendant’s tracks and the tracks found. There were inconsistencies in the testimony of the defendant. The evidence is sufficient to sustain the verdict. In the closing argument of the assistant county attorney, he went somewhat out of the record and made improper remarks, but no motion to exclude them was made, and the argument was not requested to be taken by the reporter. We are not able to see wherein they could have influenced the verdict.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur


author: PER CURIAM.

text:
    BOB DUMAS v. STATE.
    No. A-5515.
    Opinion Filed May 29, 1926.
    (246 Pac. 644.)
    Mathers & Renegar, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted In the county court of Carter county on a charge of having possession of intoxicating liquor with intent to violate the prohibitory liquor law, and sentenced to confinement in the county jail for a period of 30 days and to pay a fine of $50.

The evidence discloses that at the time charged a deputy sheriff detected the defendant and his brother on the highway in an automobile. The brother went into the brush from the side of the road and returned with a tow sack containing three half-gallon jars. As the officer approached, defendant ordered his brother to break the jars, which he did. The officer thereupon arrested the parties, and defendant told the officer that the whisky was his, and his brother had nothing to do with it. The defendant testified that he had stopped the car to fix a tire, and that either he or his brother discovered the whisky concealed, and were intending to take it away with them. The brother was acquitted. The contention is made that the evidence is insufficient. The evidence is brief, but it is sufficient to sustain the verdict.

The case is affirmed.


text:
    JIM LEIGH v. STATE.
    No. A-5522.
    Opinion Filed May 29, 1926.
    (246 Pac. 667.)

      Cress & Tebbe, for plaintiff in error.
    Geo. F. Short, Atty Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Noble eounty on a charge of selling intoxicating liquor and sentenced to pay a fine of $200 and to serve a term of 90 days in the county jail. The conviction is based upon the evidence of the witness Glenn Eales, who testified that he purchased a bottle of whisky from defendant at his home and paid $2.50 for it, and that the purchase was made in the presence of a woman whom he took to be defendant’s wife. The defendant did not take the stand. His wife was called as a witness, and testified that she had never seen witness Eales before the time of the trial. The defendant assigns and presents at considerable length various assignments of error, most of which are purely technical and do not affect defendant’s substantial rights.

It is argued that the purchaser of liquor is an accomplice of the seller, and that there must be corroboration of his testimony. This contention is wholly untenable. An accomplice is one who may be informed against for the offense for which the defendant is being tried, one culpably implicated in the commission of the particular crime charged. Cudjoe v. State, 12 Okla. Cr. 246, 154 P. 500, L. R. A. 1916F, 1251; Hendrix v. State, 8 Okla. Cr. 530, 129 P. 78, 43 L. R. A. (N.S.) 546; Pringle v. State, 32 Okla. Cr. 187, 239 P. 032; Brownell v. State, 33 Okla. Cr. 323, 244 P. 65.

One who purchases intoxicating liquor from a bootlegger is not an accomplice of the seller. He is guilty of no offense under the statute, unless after purchasing 'the liquor he should transport it or should have possession of it with intent to violate the law. These are independent offenses from the sale. Even if it should be held that a purchaser of intoxicating liquor were an accomplice of the seller, a detective, spotter, paid informer, or purchaser who buys it at an unlawful sale for the purpose of detecting the unlawful traffic, and in a way induces the commission of a crime, is what is termed a feigned accomplice, to whom the rule as to corroboration as an accomplice does not apply. State v. Gibbs, 109 Minn. 247, 123 N. W. 810, 25 L. R. A. (N.S.) 449; State v. Hoxsie, 15 R. I. 1, 22 A. 1059, 2 Am. St. Rep. 838; Freeman v. State, 11 Tex. App. 92, 40 Am. Rep. 787; 1 R. C. L. p. 159, § 6, 15 R. C. L. p. 400, § 167.

Complaint is also made that the court erred in permitting the county attorney in the course of the trial to indorse his name as a witness on the information. During the trial the identification of the bottle of liquor offered in evidence was questioned, and, as its custody had been for a time with the county attorney, he asked and was granted leave to indorse his name as a witness. His evidence was merely formal. It is not permitted the state to withhold the names of witnesses known to the prosecution until the trial and thereby surprise a defendant, and permission to indorse names of additional witnesses in the course of the trial is within the discretion of the trial court. Unless, however, an abuse of discretion is shown, the action of the trial court will not be error. It would be an extremely technical application of the statutes for this court to hold that a witness whose testimony is material only for the purpose of identification of some exhibit or instrument should not be indorsed. There is nothing in this contention. Hawkins v. State, 6 Okla. Cr. 308, 118 P. 607; Steen v. State, 4 Okla. Cr. 309, 111 P. 1097. It is also argued that there was no sufficient identification of the bottle of liquor introduced in evidence and no sufficient proof that its contents were intoxicating liquor. Neither contention has any merit.

Error is also assigned that the trial court unduly limited the right of cross-examination of the prosecuting witness Eales. It appears from the record that the prosecuting witness was employed at an agreed compensation of $200 to detect persons suspected of violating the liquor law. In such cases it is held by this court that the right of cross-examination should be fairly liberal that the interest, bias, or prejudice of the witness may be shown. Kearns v. State, 33 Okla. Cr. 179, 242 P. 777; Clark v. State, 31 Okla. Cr. 383, 239 P. 275.

Without setting out the various questions tending to show the interest of the witness, tó which an objection was sustained, we think the right was too closely restricted. During the course of the trial and while impaneling the jury, the regular panel became exhausted, and the court thereupon instructed the bailiff to summon talesmen. Defendant objected to the bailiff acting in this capacity, and stated to the court he desired to challenge the officer for bias, and to examine him, which request was denied and objection overruled.

By the provisions of section 3518, Comp. Stat. 1921, a trial court, when a panel of jurors shall appear to be insufficient, may direct the sheriff or other suitable person to summon talesmen or additional jurors by open venire to complete the jury, and section 2665 provides a challenge to the panel of jurors so drawn on account of the bias of the officer who summoned them. See Wilson v. State, 17 Okla. Cr. 47, 183 P. 613; Lyde v. State, 21 Okla. Cr. 426, 209 P. 226; Liddell v. State, 18 Okla. Cr. 87, 193 P. 52, 16 A. L. R. 405.

It is essential to the fair and impartial administration of justice that talesmen or additional jurors called by an open venire be summoned by an officer who is not disqualified by reason of interest, bias, or prejudice, and when the sheriff or other person is directed to summon talesmen or jurors by open venire, upon proper objection a defendant should be permitted to show the interest, bias, or prejudice of the summoning officer. The reason for this is obvious. Jurors so called may qualify and yet by reason of predilection or affiliation be in fact biased and prejudiced. The ruling of the court was error. The defendant had exhausted his peremptory challenges when talesmen were called. One of the jurors so summoned by the bailiff became a member of the jury which tried defendant. Upon examination on voir dire he was asked concerning his membership in the Ku Klux Klan, and denied on oath that he was a member or had recently been. A supplemental motion for a new trial was filed setting out that this juror was a member of the Klan, and as such prejudiced against defendant, and offering to prove such fact. In support of this allegation upon a hearing of this motion, one G. Frank Sanders was subpoenaed to bring the roster of the Klan. The witness appeared and filed a special appearance setting out that the subpoena served on him was not entitled in any cause, and denying the right of the defendant to investigate the records of the Klan, for the reason that same would be a breach of trust on his part as an agent. The officer serving the subpoena on this witness had apparently omitted the style of the case in the copy served. Defendant then requested a short delay that a proper subpoena might be served on the witness. This request was denied, and, although the witness was sworn and on the witness stand, the court said:

“The witness, under the circumstances, is at liberty to do as he pleases. He is not here by any legal process of court, and he is here for a special purpose and therefore is excused from being compelled to testify. * * * We will finish up this case now; offer your evidence if any you have.”

The defendant had the right to be tried by an impartial jury drawn from the jury box of the county or by persons selected as talesmen on open venire by the sheriff or some suitable person who was not disqualified by reason of interest, bias, or prejudice. If a juror not selected by an unbiased person testified falsely on his voir dire, in order to qualify, defendant had a right to show this on his motion for a new trial. The secrecy of membership of the juror in some order is not paramount to the right of the defendant to have a fair trial. If the witness Sanders was to be excused from testifying on a mere technical objection to the form of the subpoena served upon him, certainly the defendant should have been given time to see that a proper subpoena was served. The defendant was deprived of a fair trial.

The case is reversed and remanded.

BESSEY, P. J., and DOYLE, J., concur.


text:
    BERT CANTLEY v. STATE.
    No. A-5478.
    Opinion Filed May 8, 1926.
    Rehearing Denied May 29, 1926.
    (246 Pac. 883.)

      W. R. Chesnut, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant was convicted in the county court of Ottawa county on a charge of unlawfully transporting whisky, and sentenced to serve 30 days in the county jail and to pay a fine of $200.

The only assignment of error argued is that the evidence is insufficient to sustain the verdict. The evidence shows that on the 29th of June, 1924, the defendant and one Pearl Reeves were driving on the highway just out of the town of Picher. A deputy sheriff came up with them near the town, and the defendant, with a hammer, broke a half-gallon jug in front of the car he was driving, and the contents ran out. The deputy sheriff testified that it was whisky.

Pearl Reeves, testifying for her codefendant, stated that she and defendant were taking a ride; the jug was in the front of the car, but she did not know what it contained and whether or not defendant broke it. Defendant did not take the stand.

The evidence is brief, but there is sufficient to sustain the verdict. A defendant has the constitutional right to refrain from testifying, and no comment, of course, may be made on this fact in the trial in the lower court, but the members of this court know that a defendant is in a position to explain or refute testimony pointing to his guilt. It is rare, indeed, that he would have any reason for failing to testify in his own behalf, except that such testimony would disclose his guilt.

The case is affirmed.


text:
    A. J. HENSLEY v. STATE.
    No. A-5466.
    Opinion Filed May 15, 1926.
    Rehearing Denied May 29, 1926.
    (246 Pac. 886.)
    Mathers & Coakley, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Houston B. Teehee, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Jefferson county on a charge of grand larceny and sentenced to serve a term of five years in the state penitentiary.

The information alleges:

The defendant did take, steal, and carry away certain property, describing it, “all of said property being of the reasonable market value of $68, and being the property of - Pollard of Carter county, Okla., * * * and the said property after being stolen as aforesaid was brought into Jefferson county, Okla., and disposed of, contrary to the form of the statute in such cases made and provided, etc.”

No demurrer was filed to the information or objection to the introduction of evidence made.

The evidence discloses that C. O. Pollard was in the automobile accessory business in the town of Wirt, Carter county, near the line between that county and Jefferson county. On the night of June 17, 1923, his place of business was burglarized and some automobile tires and other property taken. About 10 days later this property was found in the possession of one Frank Enoch, at Hastings, Jefferson county. Enoch had served a term in the penitentiary for stealing. He testified for the state that he purchased the stolen property from defendant at a price below its value. Defendant did not testify, but offered evidence tending to prove an alibi. He was arrested in Jefferson county, taken to Carter county, lodged in jail and charges preferred against him there for the larceny. He later made an appearance bond and réturned to Jefferson county. He was there arrested, charged with the same crime. On June 11th the case came to trial in Jefferson county, and the defendant filed the following motion:

“Comes now the defendant and moves the court to dismiss this case for the reason this defendant is being prosecuted in the district court of Carter county, Okla., for the same offense. This alleged crime, if committed at all, was committed in Carter county, Okla., and the defendant was first arrested in Carter county, and the first prosecution thereupon was instituted in Carter county, and said case is still pending in Carter county, against him, and the district court of Carter county, Okla., acquired jurisdiction first and has never surrendered its jurisdiction. And this is the same charge and the same offense for which this defendant is now being prosecuted in Carter county, Okla. Whereupon this defendant prays the court to dismiss and abate this case.”

This was overruled and trial followed. The defendant contends that the trial court erred in overruling this motion.

It is, of course, fundamental, that a person may not be put twice in jeopardy for the same offense. Section 21, art 2, state Constitution. Some offenses, however, are in a sense transitory and the jurisdiction to put an accused on trial is in different counties.

Sections 2433 and 2436, Comp. St. 1921, are as follows:

“Sec. 2433. When property taken in one county, by burglary, robbery, larceny, or embezzlement, has been brought into another, the jurisdiction of the offense is in either county. But if, before the beginning of the trial of the defendant in the latter, he be indicted or information be filed against him, in the former county, the sheriff of the latter must, upon demand, deliver him to the sheriff of the former county, upon being served with a certified copy of the indictment or information, and upon a receipt indorsed thereon by the sheriff of the former county, of the delivery of the body of the defendant, and is, on filing the copy of the indictment and the receipt, exonerated from all liability in respect to the custody of the defendant. * * *
“Sec. 2436. When an offense is in the jurisdiction *f two or more counties, a conviction or acquittal thereof in one county is a bar to a prosecution thereof in another.”

Here the property was stolen in Carter county and brought in to Jefferson county. The jurisdiction to prosecute was in either county, and if, before trial began in Jefferson county, he had been indicted or information filed against him in Carter county, it was the duty of the sheriff of Jefferson county, upon demand, to deliver defendant to the sheriff of Carter county. Such is the language of the statute. It will be observed that the motion or plea in abatement is not verified. It does not pretend to set out the facts necessary to confer a prior right of trial upon Carter county; that is, it does not state that the defendant has been indicted or information filed against him in Carter county, nor what the pending charge is, other than to describe it as the same offense. It does not state that any demand had been made by Carter county. No proof of the statements made in the motion or plea is tendered. It is not a sufficient plea of jeopardy. Reed v. Ter., 1 Okla. Cr. 481, 98 P. 583, 129 Am. St. Rep. 861; Loyd v. State, 6 Okla. Cr. 76, 116 P. 959; Taylor v. State, 131 Ala. 36, 31 So. 371.

In the case of Coleman v. State, 83 Miss. 290, 35 So. 937, 64 L. R. A. 807, I Ann. Cas. 406, it was held in effect, under somewhat analogous circumstances, that, where a prosecution was instituted in one county and it was later dismissed on motion of counsel for the state, and thereafter an indictment returned in another county, the proceedings in the first county were a bar to further prosecution. But the statute in that state gave jurisdiction to the county where prosecution should be first begun, which is different from the statute here.

In the case of Loyd v. State, supra, the elements of former jeopardy are defined as follows:

“A defendant cannot twice be put in jeopardy of life and liberty for the same offense, but before jeopardy attaches each of the following conditions must exist: First, the defendant must be put upon trial before a court of competent jurisdiction; second, the indictment or information against the defendant must be sufficient to sustain a conviction; third, the jury must have been impaneled and sworn to try the case; fourth, after having been impaneled and sworn the jury must have been unnecessarily discharged by the court; fifth, such discharge of the jury must have been without the consent of the defendant. When these things concur, then the discharge of the jury constitutes jeopardy and operates as an acquittal of the defendant, and he cannot again be placed upon trial for the same offense.”

In the case of Reed v. Ter., supra, referring to a second indictment in the same county, it was said:

“The pendency of an indictment or information against a defendant, when there has been no jeopardy upon it, cannot be pleaded, either in abatement or bar to a second indictment or information for the same offense.”

Under the express language of our statute, we hold that the district court of Jefferson county had jurisdiction of the offense and might properly proceed with the trial although a prosecution was pending in Carter county, if no demand as provided by statute was made. It follows, of course, that the trial in Jefferson county constitutes a complete bar to a trial for the same offense in Carter county.

It is next argued that the evidence is insufficient to sustain the verdict. The defendant did not testify in his own behalf and the testimony of the witness Enoch that he bought the property was not denied, except by inference from the evidence of the wife of defendant. There is sufficient evidence to sustain the verdict and its weight and credibility was exclusively within the province of the jury. No reason for disturbing the judgment is apparent.

The case is affirmed.

BESSEY, P. J., and DOYLE, concur.


author: BESSEY, P. J.

text:
    ELZY GANDY v. STATE.
    No. A-5518.
    Opinion Filed May 15, 1926.
    Rehearing Denied May 29, 1926.
    (246 Pac. 887.)
    Wilkinson & Saye and C. C. Wilkinson, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The evidence shows that Robert Johni'gan was a negro about 50 years of age, crippled in one leg; that for a period of 9 days he had been employed by A1 Burch as a porter in the Burch Hotel at Marlow. Elzy Gandy, the defendant, and several confederates, all living in and about Marlow, congregated in town one evening, and there arranged to enter en masse with sticks, bludgeons, and possibly firearms to “run the nigger out of town and beat him up.” After mobilizing their forces they proceeded to the hotel, at about 8 o’clock in the evening, and there found the negro Johnigan shining shoes. Several of the party began to slap "and beat the negro; about this time Burch, the hotel proprietor, came to his porter's rescue, striking the defendant with his fist and knocking him away from Johnigan. One of the party, Marvin Kincannon, thereupon shot Burch, killing him instantly. The negro ran into the telephone booth and Kincannon then stepped over the dead body of Burch to the telephone booth and shot Johnigan in the hip just as he was closing the booth door. He then pulled the negro out of the booth, beat him with his gun, and shot him a second time, from the effects of which he died the next day.

The testimony shows that the defendant was one of the chief instigators of the mob; that he took an active part in its organization; and there is some evidence tending to show that it was he who furnished Kincannon with the gun that caused the death of these two men.

The defendant denied that he helped organize the mob, or that he acted in concert with any of its members. He claimed that he was an innocent bystander there and went to this hotel with no evil or unlawful motive.

A conspiracy, like any other issue, may be proved by circumstantial evidence; often, in fact conspiracies can be proved in no other way. That there was concerted action between this defendant and others to commit a crime is confirmed by bits of testimony given by 11 ■different witnesses. That the defendant and his confederates may have had no intention of committing a homicide, or any expectation that their unlawful acts would terminate as they did, may be conceded; but that is not the test. These self-constituted guardians of the affairs of others sought by force and intimidation, with bludgeons and firearms, to prevent a hotel keeper from employing negro help. In carrying out this purpose a member of this mob killed an inoffensive, well behaved negro and the proprietor of the hotel, a white man. Every member of the unlawful assembly was a potential murderer, and no member of it can plead justification, on the ground that some other member acted indiscreetly or used force in excess of their original purpose. Holmes v. State, 6 Okla. Cr. 541, 119 P. 430, 120 P. 300; 5 R. C. L. 1063 et seq.

The defendant complains that the court refused to submit an instruction on withdrawal from a conspiracy before final consummation. We find no evidence in the record supporting a withdrawal.

The defendant complains that certain remarks of the private prosecutor in his argument to the jury were prejudicial. On cross-examination the defendant was asked this question:

“Q. I will ask you if, right in front of Seivers Drug Store, you didn’t give him (Kincannon) the pistol that he killed them with? A. No, sir.
“Q. Do you remember that Kincannon testified you did?
“Mr. Wilkinson: We object; that is improper.
“The Court: Sustain the objection.
“Mr. Wilkinson: We move to instruct the jury not to consider that.
“The Court: You will not consider that question, gentlemen.”

The portion of the argument complained of follows:

“What do they do? They go to the hotel there. What did Johnny Morgan say? He said: ‘Watch Kinny. I have seen him get out of tight places before.’ You heard the witness that they wouldn’t let tell what he told Mr. Simpson. I was present when he said it and God forgive me for not getting more about that witness — ■
“Mr. Wilkinson: The defendant objects to the last remark of counsel. That is not in evidence in this case.
“The Court: The jury remembers the evidence.
“Mr. Bond: I do not expect I would be such a fool as to put a man on the witness stand if I did not know what he was going to say. What did he say finally? He says, ‘Elza says,’ he said, ‘Take this.’ What was he taking? You heard the testimony come out last night that Kincannon swore in the first trial, in his trial, that Gandy gave him the gun.
“Mr. Wilkinson: We object to that. There was no such testimony. Counsel knows there was no such testimony.
“Mr Bond: They asked the question themselves.
“The Court: Don’t use that.
“Mr. Bond: They asked the question, or Mr. Sullivan did.
“Mr. Wilkinson: I ask the court to instruct the jury not to consider that remark of counsel.
“The Court: I instructed the jury not to consider that question and it is not in the record of evidence. You must stay in the record.
“Mr. Bond: There is enough in this record to stick a man without getting out of it. I was honestly thinking he answered the question.
“Mr. Saye: Now, if the court please, we object to the gentleman repeating a remark that has been stricken from the jury.
“The Court: No more remarks about that.
“Mr. Bond: I was merely apologizing to the jury.
“The Court: Itjs not necessary. I have sustained the objection.”

When the court directed the special prosecutor to desist his final remark stating, “I was honestly thinking that he answered the question,” sufficiently apprised the jury that the evidence had been misquoted. All this considered together rendered the irregularity harmless. Smith v. State, 6 Okla. Cr. 380, 118 P. 1003; Cope v. State, 15 Okla. Cr. 437, 177 P. 920; Kincaid v. State, 10 Okla. Cr. 357, 136 P. 779; Morgan v. State, 9 Okla. Cr. 22, 130 P. 522.

The court was zealous in according the defendant a fair trial.

The statement of the defendant addressed to some one of the assembly who hesitated, “Come on; there is no backing out,” indicated that the defendant was willing to assume responsibility for all emergencies that might arise.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    Ex parte WALTER BELL.
    No. A-6243.
    Opinion Filed May 29, 1926.
    (246 Pac. 893.)

      R. C. Roland, for petitioner.
    Geo- F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

This is a proceeding for writ of habeas corpus, in which petitioner alleges that on February 12, 1925, he was charged in the county court of Carter county, in causes numbered 114, 115 and 116, with violations of the prohibitory liquor law; that said cause No. 114 was tried, and he was convicted, and his punishment fixed at confinement in the county jail for a term of six months and a fine of $100 and costs; that thereupon he entered pleas of guilty in causes numbered 115 and 116, and was given the same sentence in each ease as that imposed in No. 114, and the judgment and sentence in each of the latter cases, by express terms, was made to run concurrently with case No. 114. The petitioner further alleges that he has served the six-month jail sentence assessed in case No. 114, and, in addition, has served 188 days, which is more than sufficient time to liquidate the fine and highest costs of any of said three causes. It is further made to appear to the court by oral testimony that the pleas of guilty in cases Nos. 115 and 116 were entered under an agreement between the state and the defendant that the sentences should run concurrently with No. 114. The facts are not contested by the state.

Since it is undisputed that the defendant has discharged by imprisonment the sentence, including fine and highest costs, imposed upon him, the questions for our determination are: First, had the court power to provide that the sentences imposed should run concurrently? Second, if the sentences run concurrently, does the discharge by imprisonment of the fine and costs in cause No. 114 also discharge the fine and costs in the other cases?

Before the enactment of governing statutes in cases when two or more sentences were imposed at the same time, there was a wide difference among the courts as to whether one term of imprisonment commenced on the termination of the imprisonment on another sentence, or whether each term commenced from the judgment and sentence of conviction and ran concurrently. The following early cases held that they might run cumulatively or consecutively: State v. Smith, 5 Day (Conn.) 175, 5 Am. Dec. 132; Mills v. Commonwealth, 13 Pa. 631; Kite v. Commonwealth, 11 Metc. (Mass.) 581; People v. Forbes, 22 Cal. 135. The contrary was held in the cases of: Miller, Warden, etc., v. Allen, 11 ind. 389; James v. Ward, 2 Metc. (Ky.) 271; Prince v. State, 44 Tex. 480, 1 Am. Cr. Rep. 545.

Most of the states now have statutes requiring or permitting the imposing of cumulative or consecutive sentences under which it is generally provided that the sentences are cumulative, unless otherwise clearly expressed, as in the following cases: Ex parte Brady, 70 Ark. 376, 68 S. W. 34; Ex parte Black, 162 N. C. 457, 78 S. E. 273; Peed, Sheriff, v. Brewster, 168 Ind. 51, 79 N. E. 1039; Fortson v. Elbert County, 117 Ga. 149, 43 S. E. 492; Breton, Petitioner, 93 Me. 39, 44 A. 125, 74 Am. St. Rep. 335; Ex parte Gafford, 25 Nev. 101, 57 P. 484, 83 Am. St. Rep. 568; Kirkman v. McClaughry (C. C.) 152 F. 255; Ex parte Weisman (Kan.) 143 P. 487; Harris, etc., v. Lang, 27 App. D. C. 84, 7 L. R. A. (N. S.) 124, note, 7 Ann. Cas. 141.

The law of this state is found in sections 2303 and 2774, as follows:

“2303. When any person is convicted of two or more crimes, before sentence has been pronounced upon him for either, the imprisonment to which he is sentenced upon the second or other subsequent conviction must commence at the termination of the first term of imprisonment to which he shall be adjudged, or at the termination of the second or other subsequent term of imprisonment, as the case may be.”
“2774. If the defendant (shall) have been convicted of two or more offenses, before judgment on either, the judgment may be that the imprisonment upon any one may commence at the expiration of the imprisonment upon any other of the offenses.’”

These sections are pari materia, and are to be construed together so as to give effect to each section. Section 2303 is mandatory in form, and was evidently enacted so that the. sentence where two or more convictions were had, before sentence was pronounced, should run consecutively and not concurrently. This section is mandatory in form, and clearly carries such meaning. Section 2774 has much the same meaning as section 2303, except the provision that the sentence pronounced on the subsequent conviction may commence at the expiration of imprisonment of any other offense instead of must commence at the termination of the prior sentence. To construe the two sections together, and give each meaning, it is evident that, where a sentence upon a second or subsequent conviction does not state when it shall commence, under section 2303 it must commence at the termination of the prior term of imprisonment, or, if the court passing sentence where there has been a conviction of two or more offenses shall specify cumulative or consecutive terms in the judgment, as provided in section 2774, then the second or subsequent terms shall also commence at the expiration of-the prior term. But, in the provision of the latter section that the judgment of imprisonment may commence at the expiration of the prior term of imprisonment, there is the implied power conferred on the court passing such sentence that he may either have it commence at the termination of the prior sentence or may have it run concurrently with the prior sentence by so stating in the judgment. Ex parte Ray, 18 Okla. Cr. 167, 193 P. 635; Ex parte Smith, 33 Okla. Cr. 175, 242 P. 284.

Here, it being specifically and definitely stated in the judgment that the sentences run concurrently, the term of imprisonment in cases Nos. 115 and 116 were served at the same time as the sentence in case No. 114. They all took effect alike, and have all been discharged by imprisonment.

In the matter of the fine and costs, section 6332, Comp. St. 1921, provides that the fine and costs are made a part of the penalty, and, if not paid, shall be enforced by imprisonment. Ex parte Walker, 31 Okla. Cr. 36, 236 P.. 919. This statute was enacted in 1913, and was evidently for the purpose of meeting the condition discussed in the case of Ex parte Bowes, 8 Okla. Cr. 201, 127 P. 20, which was under a statute which did not make the fine and costs a part of the penalty. The fine and costs being a part of the penalty, the discharge of such penalty by imprisonment in case No. 114 operates as a discharge in cases Nos. 115 and 116. We are, therefore, clearly of the opinion that the petitioner has satisfled the judgment in each case and is entitled to his discharge.

The writ is awarded.

BESSEY, P. J., and DOYLE, J., concur.


text:
    JOHN WILLIAMS v. STATE.
    No. A-5609.
    Opinion Filed May 29, 1926.
    (246 Pac. 895.)
    E. I. O’Reilly, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst-Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, John Williams, was convicted on an information charging that he did have in his possession three quarts and one pint of whisky, with the unlawful intention of selling the same, and in accordance with the verdict of the jury was sentenced to pay a fine of $50 and be confined in the county jail for 30 days- From the judgment he appeals, and assigns as error the overruling of his motion to exclude from the consideration of the jury certain evidence obtained by an unlawful search of his home and of his person, and that the evidence is clearly insufficient to sustain the conviction.

To understand the errors assigned, it is necessary to refer to the evidence. The state introduced three witnesses.

Erve A. Kelley, sheriff, testified that with two deputies he visited defendant’s place under authority of a search warrant, and found a jar of whisky in a stove in the house, and found a bottle of whisky in the barn and a new one-gallon keg and a funnel. Over defendant’s specific objection he testified that he searched defendant’s person and found a bottle of whisky in his pocket.

The testimony of J. T. Ayers, deputy sheriff, was substantially the same as that given by the sheriff.

J. M. Rushing, deputy sheriff, testified that he made the affidavit upon which the search warrant was issued, and assisted the sheriff in executing the same, and identified the same, and the search warrant and return thereon, and the same were marked “Exhibits A and R” and introduced in evidence.

The affidavit, omitting formal parts, reads:

“J. M. Rushing, being first duly sworn, deposes and says: That one John Williams has in his possession and stored away on his premises, intoxicating liquor and a still for the manufacture of intoxicating liquors, mash for the purpose of making intoxicating liquors, and the same are being manufactured, sold, bartered, given away, and otherwise furnished, or being kept and possessed and used in violation of the prohibitory liquor laws of the state of Oklahoma. That the place where said liquor still, mash, and parts of still are being kept and possessed is described as follows: The residence and lands occupied by said defendant as his place of abode, one mile west, one mile north, one mile west, and one-fourth mile north of the city of Eufaula, Okla. That the aforesaid premises is a place where the public reáort. That persons frequent said premises at all hours of the day and night. That the aforesaid premises bears the reputation of being a place where intoxicating liquors may be purchased in violation of the statutes of the state of Oklahoma. That the aforesaid defendant bears the reputation of being a person from whom intoxicating liquors may be purchased in violation of the laws of the state of Oklahoma. That the aforesaid premises further bears the reputation of being a place where intoxicating liquors are distilled and manufactured in violation of the statutes of the state of Oklahoma. Wherefore affiant prays and asks that a search warrant be issued according to law.”

The recitals of the search warrant are substantially the same as the affidavit.

The court sustained the state’s objections to the cross-examination of the witness Rushing with reference to the sworn charges which by him had been made therein against defendant. Thereupon defendant moved to exclude all of the evidence, including the affidavit and search warrant, which motion was overruled.

In our opinion the court erred in admitting in evidence the affidavit and search warrant issued thereon, ■and the motion to have them stricken out should have been sustained. The allegations of the affidavit tended to establish facts very material as against defendant, and attacked his character.

In Nelson v. State, 53 Neb. 790, 74 N. W. 279, the Supreme Court of Nebraska held that:

“As the recitations of the warrant and return were with reference to the essence of the crime for the commission of which the accused was being tried, the admission of the warrant and return as independent evidence was prejudicially erroneous.”

It is also urged that the admission of the bottle of whisky secured by searching defendant’s person was prejudicial error, and in violation of the constitutional protection against self-incrimination.

In Keith v. State, 30 Okla Cr. 168, 235 P. 631, we held:

“No search of the person or seizure of any article found thereon can be made on mere suspicion that the person is violating the prohibitory liquor laws in having intoxicating liquor in his possession, or without a search warrant, unless and until the alleged offender is in custody under a warrant of arrest, or shall be lawfully arrested without a warrant as authorized by law.”

And further held that:

“Where a bottle, later found to contain intoxicating liquor, was taken from the person of defendant forcibly and against his will, and without a search warrant for his person, or a warrant for his arrest, this constituted an unlawful and therefore an unreasonable search and seizure under section 30, árt. 2, of the state Constitution.”

We conclude, therefore, that, in admitting in evidence the bottle of whisky found on defendant’s person, the court erred. This conclusion renders it unnecessary to consider the other questions in the case.

The judgment is reversed.

BESSEY, P. J., and EDWARDS, J., concur.


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    CHARLES N. ROSS v. STATE.
    No. A-5479.
    Opinion Filed June 1, 1926.
    (246 Pac. 645.)
    Lunsford, Bulgin & Windham, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

Charles N. Ross, plaintiff in error, in this opinion referred to as the defendant, was charged with the murder of Ballard Hale, accomplished by means of a dangerous instrument, a pocket knife. At the trial he was found guilty of manslaughter in the first degree, with his punishment assessed at 5 years in the state penitentiary.

The defendant and the deceased, Ballard Hale, engaged in a fist fight on the streets of Spiro. Hale was unarmed, and the defendant in the course of the affray stabbed him with ■ a pocket knife, inflicting a mortal wound. The defendant sought to justify upon the ground of self-defense, and that theory of the case was properly presented and covered by the court’s instructions to the jury.

The chief, in fact practically the only, ground relied upon for reversal is that the defendant was forced to trial before he had an opportunity to prepare his defense. The trial occurred 17 days after the crime was committed and 12 days after he had entered his plea of not guilty.

The defendant subpoenaed and used 22 witnesses in his defense. He was defended in an able manner, and there was no showing, either on the hearing of the motion for a continuance or on the motion for a new trial, that, had additional time been granted, he would have been able to procure any other evidence which would likely have changed the result.

The motion for a continuance was as follows:

“The defendant, C. N. Ross, being duly sworn, upon oath states: That he is the defendant in the above-entitled action and stands charged by information with the crime of murder, which is alleged to have been committed on the 13th day of September, 1924. That the defendant has used due diligence to prepare his case for trial and has had subpoenas issued for his witnesses, among which witnesses is Jim Cusick, a resident of Le Flore county, OHa., who lives about 7 miles west of Spiro in this county. That a subpoena was served on the said Jim Cusick on the 29th day of September, 1924. That defendant’s preliminary trial was had on September 18, 1924, and that the attorneys for the defendant have been engaged in this court, which has been in session since the 15th day of December (sic), 1924, and have been unable to see and talk to all of the witnesses for the defendant. That the defendant does not know the exact facts to which the said Jim Cusick would testify if present, but that the said 'Jim Cusick was an eyewitness to the difficulty, and is informed that he is a witness favorable to the defendant, but that the defendant did not know nor 'learn that he saw the difficulty until yesterday, the 29th day of September, 1924. That the said Jim Cusick is not absent by the procurement or the defendant, and is not absent with the consent and by the connivance of the defendant, but that the defendant is informed that the wife of the said witness Jim Cusick is dangerously ill. That, if this case were continued until the next term of this court, or until a later day in this term, the defendant would be able to procure the attendance of the said Jim Cusick. Wherefore defendant prays that this cause be continued for the term, or until a later day in the term.”

It will be seen that this application for a continuance is based solely upon the absence of Jim Cusick, a resident of Le Flore county, who had been subpoenaed as a witness in behalf of the defendant, but, who, it was claimed, did not appear because of the illness of his wife. The application was not supported by the affidavit of any physician, showing that Mrs. Cusick was indeed ill, or by the affidavit of any other person who assumed to know of such illness.

There was no error in denying the application upon the grounds set forth, because there was no statement of what facts this witness would testify to if present. No request was made for an attachment to bring the witness into court. Applications for a continuance are construed most strongly against the pleader. Musgraves v. State, 3 Okla. Cr. 421, 106 P. 544. A continuance should be granted only that justice may be done, and not merely for purposes of delay. Pugh v. State, 6 Okla. Cr. 578, 120 P. 296.

It is contended next that a new trial should be granted, because the defendant was deprived of his right to be furnished with a list of the witnesses to be used by the state, in chief, with their post office addresses. Upon this point the record is silent. The presumption is therefore that the defendant was either served with such list of witnesses, or went to trial without objecting to not having been served with the list, and so waived this right. In either event he cannot now be heard to complain. Error must affirmatively appear1 from the record. Every presumption favors the regularity of the proceedings had upon the trial, and the accused must affirmatively show prejudicial error. Killough v. State, 6 Oka. Cr. 311, 118 P. 620; Wallace v. State, 29 Okla. Cr. 197, 233 P. 241.

The court aptly instructed the jury upon the different degrees of manslaughter, upon the right of self-defense, upon the showing of the good character of the accused, upon the showing made that the deceased was a quarrelsome, dangerous man; and we must assume that all of these issues were duly considered by the jury.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


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    TROY COLE v. STATE.
    No. A-5244.
    Opinion Filed June 1, 1926.
    (246 Pac. 653.)

      A. M. Stewart and Wm. M. Williams, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Houston B. Teehee, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

Troy Cole, plaintiff in error, herein referred to as the defendant, was charged with statutory rape in the second degree for having sexual intercourse with Jewel Holloss, a female over the age of 16 years and. under the age of 18 years, of previous chaste character. By verdict of a jury he was found guilty as charged, with his punishment fixed at confinement in the penitentiary for a term of three years.

It is first urged that the evidence is insufficient to support the verdict. Troy Cole, a young man just 18 years of age, and the prosecutrix, Jewel Holloss, both resided in Greer county; for some time they kept company, and on a number of occasions attended prayer meeting and church together, went buggy riding, and attended social gatherings in the neighborhood. On one occasion they attended a box supper or social at the home of Lon Vosely, about one-half, mile over in Jackson county. This party ended at ■ about midnight, and the prosecutrix testified that the act of intercourse for which this conviction was obtained occurred on the way home, and that other acts of intercourse at other times occurred during a period of several weeks. As a result of some one of these acts the prosecutrix became preg- ' nant, and in due course a child was born, its paternity, being charged to the defendant. The prosecutrix testified that she had never had intercourse .with any other man.

It would serve no good purpose to analyze this testimony in detail. Expert testimony was given by two physicians, and a number of other witnesses testified. We have carefully examined all of the testimony, and we find and hold that the facts shown were sufficient to support the verdict.

It was next claimed that the venue of the offense was not shown to be in Greer county. A preponderance of the evidence indicates that the act was committed in Greer county. It has been held by this court that the venue of an offense need not be proved beyond a reasonable doubt. Fuller v. Territory, 2 Okla. Cr. 86, 99 P. 1098; Steele v. State, 28 Okla. Cr. 335, 230 P. 760; Groh v. State, 30 Okla. Cr. 396, 236 P. 435. In the light of these authorities the court very properly refused the proffered instruction of the defendant on the question of venue.

The defendant requested several other instructions. One to the effect that if the jury entertained a reasonable doubt that the accused was 18 years of age or over, they should acquit him; another, that if they had a reasonable doubt of the previous chaste character of the prosecutrix they should acquit the defendant; another, that if the proof showed that the act was committed on the 25th day of November (the state having elected to stand upon the time of the act as being the 18th day of November) they should acquit the defendant. All of these the court refused to give.

The court, in his general instructions to the jury, defined the offense charged, pointing out all of its constituent elements, and admonished the jury that the burden was upon the state to establish to their satisfaction beyond a reasonable doubt each and every material ingredient of the offense charged against the defendant. We hold that the instructions given, as a whole, fairly defined each essential ingredient of the offense and were fair to the defendant. Inasmuch as the features embodied in the requested instructions were fairly covered by the instructions given, the defendant’s request for the specific instructions referred to amounted to nothing more than a request for emphasis upon particular phases of the case, all of which were sufficiently covered by the instructions given. The trial court therefore committed no error in refusing the proffered instructions. Nowabbi v. State, 31 Okla. Cr. 158, 237 P. 868; Lacy v. State, 30 Okla. Cr. 273, 236 P. 53; Jessie v. State, 28 Okla. Cr. 309, 230 P. 519.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


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    CLAY FISHER v. STATE.
    No. A-5618.
    Opinion Filed June 1, 1926.
    (246 Pac. 1117.)
    Rummons & Hughes, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

The plaintiff in error, Clay Fisher, was charged with the illegal transportation of intoxicating liquor. At a trial to a jury he was found guilty, and his punishment fixed at 30 days in jail and a fine of $200. No briefs have been filed supporting this appeal. An examination of the record discloses that the information was in all respects sufficient, that there was competent evidence to support the charge, that the instructions given were germane to the proof, and that the accused otherwise had a fair trial. The judgment of the trial court is affirmed.


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    JOHN BASSETT v. STATE.
    No. A-5587.
    Opinion Filed June 2, 1926.
    (246 Pac. 654.)
    Turner, Turner, Harley & Parris, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

On information charging that on November 22, 1923, John Bassett did unlawfully and feloniously transport and convey one quart of whisky from a point in McIntosh county, unknown, to a certain point in the city of Eufaula, the same being a second violation of the prohibitory liquor laws, and, charging the former conviction of unlawful possession in the county court of said county on September 28, 1921, he was convicted and in accordance with the verdict of the jury was sentenced to serve a term of one year and one day in the penitentiary and to pay a fine of $100. To reverse the judgment he appeals.

A number of errors are assigned and argued, but one of which it is deemed necessary to notice, and that is that the court erred in admitting incompetent testimony obtained by a search of his person and without process in violation of his constitutional rights.

The undisputed facts are that Jim Rushing, chief of police of Eufaula, in company with Ed Allen, deputy sheriff, stopped the defendant on the street and searched his person and took from defendant’s pocket a bottle of whisky. Rushing testified:

“I walked up against him and saw the neck of a bottle. I said, ‘What have you got?” and took it out of his pocket. I was acting without a warrant of any kind.”

To the same effect is the testimony of Ed Allen.

The evidence for the state was admitted over the defendant’s objections, interposed when each witness was called to testify, on the grounds that the bottle had been obtained by means of an unlawful search of defendant’s person and was an unreasonable search and seizure, made in violation of the constitutional rights of defendant.

The state rested, and defendant made a motion to strike all the evidence, whether by way of exhibit or by testimony, obtained by reason of the search, and to withdraw the same from the consideration of the jury on the ground that the search was made in violation of his constitutional rights.

It is fundamental that a citizen may not be arrested and have his person searched by force and without process. in order to secure testimony against him. The right of individuals to be exempt from such searches is guaranteed by sections 21 and 30 of the Bill of Rights.

In Keith v. State, 30 Okla. Cr. 168, 235 P. 631, we held:

“In a prosecution for unlawfully transporting intoxicating liquor, defendant cannot be convicted upon evidence obtained by an unlawful search of his person, without a warrant for his arrest, and neither the liquor so seized, nor the evidence of the possession thereof so acquired, is admissible against him.”

Upon the authority of that case we hold that the evidence challenged in this case was taken by the officers by unlawful search and seizure, and contrary to section 30 of the Bill of Rights, and was improperly received in evidence against defendant in violation of his rights under section 21 of the Bill of Rights.

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

BESSEY, P. J., and EDWARDS, J., concur.


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    R. G. GILMER v. STATE.
    No. A-5600.
    Opinion Filed June 2, 1926.
    (246 Pac. 1118.)
    Bicking & Wilson, for plaintiff in error.
   PER CURIAM.

Plaintiff in error, R. G. Gilmer, was convicted on a charge of vagrancy, and in accordance with the verdict of the jury was sentenced to pay a fine of $100 and to be confined in the county jail for 30 days. From the judgment he appeals, but no brief has been filed, and the cause was submitted on the record. An examination of the record discloses that the evidence is sufficient to sustain the verdict and judgment. Finding no prejudicial error, the judgment is affirmed.


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    DOB SPARKS v. STATE.
    No. A-5599.
    Opinion Filed June 2, 1926.
    (245 Pac. 1061.)
    Anglin & Stevenson, for plaintiff in error.
    George F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Dob Sparks, was convicted of statutory rape, alleged to have been committed in Hughes county on or about August 27, 1923, by having sexual intercourse with one Orna Stringfellow, a female person over the age of 16 years and under the age of 18, and of previous chaste and virtuous character, and not his wife; and in accordance with the verdict of the jury he was sentenced to imprisonment in the state penitentiary for a term of two years.

It is assigned as error that the verdict is not sustained by sufficient evidence; that the court misdirected the jury as to the law of the case, and failed to instruct fully upon certain quesions of law.

It appears that the eighteenth birthday of prosecutrix was October 20, 1923; that at the time of the trial in December, 1924, she had a baby born April 27, 1924.

She testified that defendant was the father of her child; that she never had sexual intercourse with any other person than defendant; that she was not his wife; that they lived less than half a mile apart for two or three years, and he had promised to marry her.

As a witness in his own behalf, defendant testified that his age was 20 years; that he had kept company with her and once took her home from singing and another time from church; that he never did have sexual intercourse with her; that on August 25, 1923, he was put in jail here, having returned from Lindsay, Okla., where he had been since June 24th that year. On cross-examination he admitted that he wrote a letter to the prosecutrix while she was at Dustin and asked her to send him money to pay for a marriage license and that if she would send it he would come and get her, and that she sent him a dollar; that he did not remember whether it was before or after the baby was born; that on October 29,1924, he married another woman.

It is argued that the testimony of the prosecutrix is inconsistent, contradictory, and uncorroborated. A careful examination of the record discloses that her testimony was direct and positive as to all the essential elements of the offense charged, and the admissions of defendant as a witness in his* own behalf strongly tended to corroborate her testimony. We are of the opinion that the evidence is amply sufficient to support the verdict and the action of the trial court in refusing to grant a new trial.

No objection was made or exception taken to the instructions given by the court, and they fully cover every essential element of the offense charged, including that of previous chaste character of the prosecutrix. If defendant was not satisfied with the instructions given by the court, he should have submitted such requests for instructions as he desired. Where no requests for instructions are made, it is not reversible error to fail to instruct upon any particular issue.

Upon the record before us, we are satisfied that defendant has had a fair and impartial trial. Finding the evidence sufficient and no prejudicial error of law occurring at the trial, the judgment appealed from is affirmed.

BESSIE, P. J., and EDWARDS, J., concur.


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    G. S. (CY) FRAZIER v. STATE.
    No. A-5593.
    Opinion Filed June 5, 1926.
    (246 Pac. 652.)

      F. W. Church, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

On information charging that in Ottawa county, February 5, 1925, G. S. “Cy'’ Frazier, did have in his possession two half pints of whisky with the unlawful intent to violate provisions of the prohibitory liquor law, he was tried and convicted, and his punishment fixed at a fine of $500 and confinement in the county jail for 6 months. To reverse the judgment rendered on the verdict, he brings the case here on appeal, and assigns as error that the evidence is not sufficient to sustain the verdict and judgment; that the verdict of the jury is based on bias and prejudice in fixing the maximum punishment for the first offense; that the court erred in giving certain instructions, and erred in refusing to give requested instructions.

The state introduced two witnesses, each testifying that under authority of a search warrant, they visited the premises occupied by defendant and found and seized two one-half pints of whisky.

The defendant moved for a directed verdict of acquittal, which was overruled.

Complaint is made of the charge of the court, in that the same improperly submitted the law of the case. The charge of the court contains sixteen instructions. The instruction on intent concludes with the following disquisition :

“The court advises you that under the law the state does not have to prove the ownership of the liquor. The liquor might be owned by one party and still be in the possession of another who might have the unlawful intention of violating the law. The intent with which an act is done is but a mental state of the accused, and it is ofttimes impossible and generally so to prove by direct evidence the intent of a person because it is impossible to look into his mind and see what is operating there, but it is competent and proper to prove the intent by facts and circumstances going to show what to you as reasonable men would appear to be the intent. The circumstances which have been referred to by the court in giving you this instruction are such circumstances as will be hereinafter described as being circumstantial evidence. Exception allowed.”

The following instruction was requested by defendant:

“The court instructs the jury that the amount of whisky being less than one quart, it is incumbent upon the state to prove the intent to sell, barter, give away, transport, or otherwise violate the prohibitory liquor law beyond a reasonable doubt; that is to say, the mere finding of the liquor in the residence would not of itself be sufficient to warrant a verdict of guilty. (Refused. W. M. Thomas, County Judge.)”

Under our criminal procedure, the jury are bound to take the law from the court, and questions of fact are to be decided by the jury. The charge of the court must not invade the province of the jury, and should not extend beyond a plain statement of the law applicable to the case. Dissertation upon the nature of evidence should always be omitted.

Considering the evidence in this case, and the absénce of evidence tending to show unlawful intent, the instruction objected to is in effect a comment upon the weight,of the evidence. The law requires the court, not only to abstain from positive expression as to the weight of the evidence, but to avoid even the appearance of an intimation as to the facts, and to so guard the language of its charge to the jury, which is the law of the case, that no inference, however remote or obscure, may be drawn by the jury as to the weight of the evidence. It follows that the exception to the instruction was well taken. It is our opinion also that the court erred in refusing to give the requested instruction.

From all the evidence in the case, carefully considered, we fail to find any competent testimony tending to show an intent to violate provisions of the prohibitory liquor act; the specific intent, being the gist of the offense, must be proved as charged. It follows that the court erred in denying the motion for a directed verdict of acquittal.

The judgment appealed from is therefore reversed.

BESSEY, P. J., and EDWARDS, J., concur.


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    I. A. BRIGGS v. STATE.
    No. A-5413.
    Opinion Filed June 5, 1926.
    (246 Pac. 655.)
    John P. Hickman, L. G. Lewis, and Baxter Taylor, for plaintiff in error.
    The Attorney General and Fred Hansen, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

I. A. Briggs, plaintiff in error, defendant in the trial court, was tried and convicted of the charge of having possession of more than 32 grains of a certain narcotic drug, being 86 grains of morphine sulphate. He was sentenced to pay a fine of $500 and the costs of the prosecution.

The penal provisions of our narcotic drug statute (¡section 8887, Comp. Stat. 1921), under which this prosecution was brought, are exceedingly complex, with several exceptions and provisos, making it difficult under some circumstances to ascertain whether the spirit and letter of the law have been violated. This would appear to be one of such cases.

The defendant had been for many years a reputable practicing physician of the old school, a graduate of an accredited school of medicine. For a time he was superintendent of an institution for the relief of indigent and insane persons, with wide experience in the administering and use of narcotic drugs. Incident to his private practice he purchased and kept on hand a stock of medicine for use in treating his own patients, rarely writing prescriptions to be filled by commercial apothecaries. The morphine found in his possession, upon which this charge was based, was procured upon two separate requisitions made on special narcotic blanks, in the form prescribed by law and the regulations touching the sale and distribution of narcotic drugs. The amount named in one of these requisitions was in excess of the amount named in the statute. This the defendant explained by showing that he had made two requisitions, the first of which had not been filled, and the second being made to cover both. The evidence is voluminous, replete with details, much of which need not be here repeated.

This conviction rests largely upon the testimony of J. W. Stafford, himself an habitual user of narcotics, working under the direction of United States Narcotic Inspectors, as provided by the Harrison Act, for the purpose of entrapping and decoying narcotic peddlers. Stafford went to the office of the defendant in Stillwater, at about 9 o’clock a. m., and represented to the defendant that he was representing the Oklahoma Farmer-Stockman and that he and his wife were on their way to the eastern part of the state. He told the doctor that his wife had been operated on eight times in seven years and that her condition was then such that another operation would have to be performed; that she was suffering great pain and wanted morphine to relieve her. The doctor told the witness to bring her up to his office so that he could examine her and observe her condition. The witness said she was so crippled that she could not come to the office. After further inquiry the doctor gave Stafford two quarter grain tablets of morphine. At about 2 o’clock Stafford returned for more morphine. The defendant took from his medicine case two more tablets and gave them to the witness, who gave the defendant a dollar bill in payment therefor. Two deputy sheriffs then entered and after searching the defendant’s person and his medical supplies found about 80 grains of morphine. They also recovered the marked dollar bill left there by Stafford, as well as copies of the requisition papers required to procure the morphine.

There is no evidence indicating that this doctor was an habitual offender, or had ever before been accused of violating the narcotic act. The law condemns only the illegitimate use and distribution of narcotic drugs. The law recognizes the right of physicians to use narcotic drugs within established professional bounds in treating narcotic addicts, in cases of surgical operations, and to relieve pain. We think that the evidence in this case, considered as a whole, indicates that the defendant intended to keep within these bounds as a physician and retail vendor of drugs.

We do not hold that an illegal intent is an essential ingredient of the offense, but do hold that an innocent intent may be considered along with all the other attendant circumstances, including the fact that the possession of an excessive amount of the drug may have come about inadvertently, through mistake, and that there does not appear in this case to have been any real violation of the purpose and object of our narcotic drug act.

This court has no inclination to condone the vending or transporting of dope into channels where it will corrupt young people and others too weak to resist its soothing influences. The prohibition against the possession of an excessive amount is intended to discourage and prevent such distribution. Believing, however, that the transaction here shown did not bring it within the purpose of the act, the conviction is reversed, and the cause remanded.

DOYLE and EDWARDS, JJ., concur.