text:
    PARKER v. STATE.
    No. A-11116.
    March 15, 1950.
    (216 P. 2d 340.)

      John L. Ward, Jr., Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

Tbe defendant, Bob Parker, was charged by information in tbe court of common pleas in Tulsa county, Okla., with tbe offense of being in unlawful possession of 6 pints and 1 one-fifth gallon of tax-paid whis-ky and 1 one-fifth gallon of tax-paid gin. He was tried by a jury, convicted and his punishment fixed at 30 days in jail and a fine of $100 and judgment and sentence entered by the court accordingly.

It appears that the officers Roy Rains and M. E. Gibson procured a search warrant to search the south upstairs apartment occupied by the defendant, Parker, which premises were located at 120 North Madison in Tulsa, Okla. Pursuant to the search warrant they served the same on the defendant the 30th day of March, 1948, in a little house back of the building in which the apartment was located. The defendant promptly produced a key to the Yale lock and opened the door at the foot of the stairs, and then accompanied the officers up the steps to the apartment. There were two apartments, the south apartment as hereinbefore indicated, occupied by the defendant, and the north one being occupied by a Mr. Frazier who was away and his apartment was locked. Between the two apartments was a little foyer or a hall, at the front end of which was a bathroom not connected with either of the apartments, but subject- to their occupants’ joint use. On one side of the bathroom was a small storage room which could only be reached through the bathroom. It was in this room that the officers found the liquor in a suitcase. The intoxicants therein contained consisted of such standard brands of liquor as I. W. Harper, Hill & Hill, etc., all tax paid. While the search was being made the telephone rang and the defendant answered it. He told the person at the other end of the line “Roy is here” (meaning Officer Rains), and then hung up. He did not answer when asked who was calling. , After the liquor was found Officer Rains testified he chided the defendant about not haying more whisky, and the defendant said he was low, low on his supply. The defendant did not testify in his own behalf and deny the facts as developed by the state or deny that the whis-ky belonged to him.

The whisky so seized had been destroyed by order of the court and was not available as evidence. The defendant interposed a motion on the day of the trial for its production, which was overruled by the court before trial.

The defendant urges five grounds for reversal of the conviction herein obtained. First, he says the court erred in giving instruction No. 3. It nowhere appears in the record of the trial, herewith presented, that the defendant at any time objected to the giving of instruction No 3, or requested the giving, of any other instruction in lieu thereof, the statement contained in their brief notwithstanding to the contrary. This contention is therefore without merit under the condition of the record. In Gentry v. State, 86 Okla. Cr. 92, 189 P. 2d 626, 628, wherein the instruction was almost identical with instruction No. 3, this court said:

“This was an instruction similar to one given in the case of Hughes v. State, 85 Okla. Cr. 25, 184 P. 2d 625, cited by defendant. An examination of the record reveals that no exception was taken to the giving of this instruction in the instant case, as there was in the Hughes case. It has often been held that the failure to except to the giving of an instruction constitutes a waiver of the right to question the same.”

In syllabus 2, it was said:

“Where instructions are given by the court and no exceptions are taken thereto, and defendant offers no requested instructions, this court will examine the instructions to see if the defendant has been deprived of a fundamental right before reversing the case by reason of the instruction given.”

To the same effect is Chapman v. State, 84 Okla. Cr. 41, 178 P. 2d 638; Green v. State, 70 Okla. Cr. 228, 105 P. 2d 795; Campbell v. State, 53 Okla. Cr. 315, 11 P. 2d 536. The giving of instruction No. 3 did not constitute fundamental error. This contention under the conditions herewith presented therefore cannot be sustained.

The defendant’s second proposition is that the court erred in overruling his motion demanding that the state produce in evidence the liquor seized in the search. As hereinbefore stated, defendant’s motion was filed on the day of the trial. It appears at the time of arraignment no request was made that the same be available as evidence at the trial. Moreover, the defendant did not question the alcoholic content and intoxicating character of the liquor seized in the search, nor did he question the kind and quantity of the liquor so seized. The reason is obvious. The liquor was of standard brands, bottled in bond whisky and gin such as Hill & Hill, I. W. Harper, etc. The record shows the liquor had been destroyed by court order. In State v. Gragg, 71 Okla. Cr. 213, 110 P. 2d 321, this court held that possession of intoxicating liquor is a question of fact for the determination of the jury and it is not necessary for the state to produce the liquor as alleged in the information before conviction may be had for the unlawful possession thereof. Possession of intoxicating liquor may be established by facts other than production of the liquor itself. Under these conditions this contention is likewise without merit.

Third, the defendant contends that the trial court erred in receiving the verdict in the form in which it was returned without further instructions thereon.. This objection goes to the proposition that the jury recommended suspension of the jail sentence. The record shows that the defendant objected and excepted to the form of the verdict but made no request for further instructions thereon. In Cole v. State, 70 Okla. Cr. 109, 104 P. 2d 981, this court refused a reversal on almost identical grounds. Therein it said:

“In our opinion the verdict of the jury is not uncertain. It fixed the defendant’s punishment, and the clause in it is merely a recommendation that the fine be remitted. It is in no sense a part of the verdict. It was improper to make this recommendation in the verdict, but it does not affect the validity of the verdict, and was not prejudicial to defendant. Estes v. State, 35 Okla. Cr. 335, 250 P. 809.”

The Estes case is very similar to the case at bar as to the form of verdict. Therein in syllabus 1 it was said:

“The inclusion in a verdict of recommendation that the court suspend the jail sentence imposed during good behavior is improper, though not prejudicial to defendant.”

The defendant’s fourth proposition is that the trial court erred in permitting the county attorney in the course of his closing argument to refer to the fact that the search warrant was. only issued on probable cause and there must have been probable cause for the issuance before the same was issued. Only this isolated excerpt of the argument is before us. The error was called to the attention of the trial court after the jury had retired for deliberation. It appears that the statement of the prosecutor may have been invited by argument of defense counsel and that the excerpt was in reply to what had been said for the defendant. Under this state of the record, we cannot consider this contention, as it has been repeatedly said in Chesser v. State, 63 Okla. Cr. 84, 73 P. 2d 191, 192:

“Ordinarily,' error cannot be predicated upon mere unexplained excerpts from the remarks of counsel to the jury. Enough must appear of record to advise the appellate court of what preceded the alleged objectionable remarks and their meaning to be deduced from the context, and whether or not they were invited or provoked by remarks made by opposing counsel.”

To the same effect is Wilson v. State, 90 Okla. Cr. 180, 212 P. 2d 172; McDonald v. State, 59 Okla. Cr. 318, 58 P. 2d 345; Kennamer v. State, 59 Okla. Cr. 146, 57 P. 2d 646.

Finally, the defendant, contends that the evidence was insufficient to sustain the conviction. It is urged that because the liquor was found in the small room off the bathroom, which was used by persons other than the defendant, 'that the evidence was insufficient to show the defendant had such dominion and control over the liquor as would give him power to dispose of the same. The fact of dominion and control was established by the testimony of Mr. Rains to the effect that he chided the defendant about baying such a small quantity of liquor, to which the defendant replied he was low, low on his supply. This admission stands uncontradicted. The liquor supply to which reference was made is certain. It was the liquor then being seized. It constituted an admission of the defendant of dominion and control over that liquor. Standing undenied by the defendant or any other witness it must be taken as the truth. While it is none too strong under the conditions, the jury had a right to believe it. Even where the evidence is conflicting the weight of the same is for the jury. This court will not substitute its judgment for that of the jury, where there is evidence reasonably tending to support the conclusions arrived at by the jury. Pooler v. State, 70 Okla. Cr. 199, 104 P. 2d 733, 105 P. 2d 553. And before this court can interfere with the verdict of the jury on the ground of the insufficiency of the evidence to sustain the conviction, there must be no competent evidence in the record upon which the verdict could be based. ' Rule v. State, 84 Okla. Cr. 347, 182 P. 2d 525. But because of the closeness of the question of the sufficiency of the evidence, and the erroneous argument of the county attorney, the judgment and sentence is modified by reduction of the fine from $100 to $50. For all of the above and foregoing reasons, the judgment and sentence of the trial court is accordingly affirmed, as modified.

JONES, P. J., and POWELL, J., concur.


source: Caselaw Access Project

author: JONES, P. J.

license: Public Domain

text:
    FLYNT v. STATE.
    No. A-11080.
    March 15, 1950.
    (216 P. 2d 344.)

      Darnell & Gibson, Clinton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Elbert Flynt, was charged by information filed in the district court of Roger Mills county, with the crime of assault with a sharp and dangerous weapon, with intent to do bodily harm upon one Evert Spitler. Upon trial to a jury, a verdict was rendered finding the defendant guilty, but leaving the punishment to be assessed to the court. On a separate sheet of paper attached to the verdict the jury stated, “We recommend a suspended sentence.” The trial court accepted the recommendation of the jury and thereupon sentenced the defendant to serve two years’ imprisonment in the penitentiary, suspended his sentence during good behavior, and defendant appeals. The evidence of the state showed that Evert Spitler and his wife, in 1946, lived in the town of Hammon, and operated a cafe; that the defendant during a part of the time had worked for Spitler at the cafe. Spitler was working away from home for several weeks, and during this period of time, he received a letter from his mother-in-law advising him to return home, “if he wanted to save his home.” Spitler returned to Hammon and accused the defendant of trying to steal his wife and break up his home. When Spitler made this statement to the defendant, the defendant quit his employment at the cafe. Later Mrs. Spitler sued Spitler for a divorce which was uncontested, and she was given custody of their small child. Four days after the divorce became fina], Mrs. Spitler and the defendant were married.

Spitler testified that on the nigbt of June 14, 1947, lie was sitting in front of a barbershop in Hammon, and saw the defendant sitting in the shop; that he was wanting to discuss with defendant the matter of the care and custody of his child, so he went into the shop and said to the defendant, “I want to talk to you about my baby,” and defendant replied, “To hell with you,” and reached for his pocketknife. Spitler hit him with his fist; that the defendant’s dad then started striking him and defendant also struck him several times with a pocketknife, causing severe wounds on the left side of his body and on his back; that he was in the hospital about eleven days on account of, these injuries.

On cross-examination, Spitler admitted that he testified at the preliminary hearing that when he went to the barbershop, he asked defendant, “Is it as good legal as it was illegal?”

The defendant testified that after he quit working for Spitler at the cafe, he had had a controversy with him once or twice; that on the night of the affray, he saw Spit-ler on the street, and that he walked into the barbershop to avoid meeting him as he did not wish to have any trouble; that Spitler came into the barbershop and said, “Wpll, Creepy is that stuff any better now than it was illegal?” That he, the defendant, did not say anything, but Spitler pulled his hand out of his pockets and defendant saw he had on a pair of knucks; that Spitler then commenced to strike him and beat upon him with the knucks; that his father tried to separate them, but Spitler continued to hit him with the knucks, and defendant pulled his pocketknife and struck at Spitler several times, solely to defend himself; that he and Spitler had had fights on three occasions after Spitler’s wife had divorced him, and at one time Spitler bad tried to run over bim while Spit-ler was driving an automobile along tbe street.

Several witnesses testified in support of tbe version of tbe affray related by tbe prosecuting witness and also by tbe defendant. It is our view that tbe evidence preponderated in favor of tbe defendant, but the state’s evidence was sufficient if credited by tbe jury to justify them in concluding that tbe defendant was guilty as charged. Pictures of tbe body of Spitler were identified and admitted in evidence. These pictures were taken about three weeks after tbe assault occurred and clearly showed many lacerations, some of them apparently deep enough to be serious.

Tbe physician who attended Spitler testified that at least one of tbe wounds bad penetrated tbe chest cavity. Tbe defendant himself suffered several lacerations in tbe fight, and his attending. physician testified that some of the wounds sustained by tbe defendant could not have been made by a man’s fist. Tbe evidence was sufficient, however, to raise an issue for tbe determination of tbe jury.

Tbe first assignment of error pertains to tbe alleged misconduct of counsel for the state and tbe admission of incompetent evidence.

In the opening statement of tbe prosecutor to the jury, be said:

“By Mr. J. Z. Barker : Prior to June 1947 tbe defendant was employed by tbe prosecuting witness Mr. Spitler in tbe business there at Hammon; that in tbe course of tbe employment certain intimacies between the prosecuting witness’s wife and tbe defendant— By Mr. Darnell: We object to that statement of counsel for tbe rea-sbn it is highly irrelevant and improper. By tbe Court: I believe that I would get down to tbe incident involved. Sustained. By Mr. Barker: Exception. The evidence will further show that matters went from bad to worse until finally Mr. Spitler’s h,ome was broken up. By Mr. Darnell: We object to the statement of counsel for the reason it is improper. At this time the defendant moves the court to discharge the jury and declare a mistrial because of the improper remarks of the special prosecuting attorney for the state. By the Court: The objection to the statement is sustained; but the motion to discharge the jury is overruled.”

The record discloses that both sides throughout the trial continually referred to trouble that had arisen between Spitler and the defendant over Spitler’s wife. The parties had had arguments and fisticuffs on two or three occasions prior to the time of the altercation in which Spitler was cut.

,The trial' court did a good job of restricting the evidence to the facts surrounding the altercation in the barbershop, and he did not allow either side to offer much evidence concerning the collateral events that preceded this altercation, although each of the parties attempted to offer a large amount of evidence touching on the question of who was to blame in the altercations that preceded the one out of which this prosecution arose.

In Starks v. State, 67 Okla. Cr. 156, 93 P. 2d 50, this Court stated:

“Where a defendant objects to the introduction of evidence which is admitted, and afterwards introduces the same evidence himself, it is not ground for reversing the judgment although the evidence objected to was incompetent. * * *
“Explanatory circumstances and declarations connected with the commission of a homicide, which have a tendency to shed light on the motives of the parties, are admissible in evidence, including antecedent declarations made by the deceased and the defendant where they form some link in the chain of circumstances, explanatory of their motives or other vital issues involved.”

It has been held that where there have been previous controversies and difficulties between the defendant and prosecuting witness, the existence of such controversies and difficulties may be shown by either party, in order to show the state of feeling existing between them; but the trial court would not be warranted in trying the merits of such controversies, nor in entering upon a detailed examination of the facts as to who was right and who was wrong in any of these former difficulties. McHugh v. Territory of Oklahoma, 17 Okla. 1. 86 P. 433.

The trial court erred in refusing to permit the wife of defendant to testify. The court refused to permit her testimony on the ground that she had remained in the courtroom during the trial and after the witnesses had been excluded from the courtroom under the rule asked for by the defendant. The fact that a witness, who is under the rule, remains in the courtroom during the trial does not thereby make her incompetent as a witness; such fact only goes to affect her credibility as a witness or subjects her to punishment for contempt of court for remaining in the courtroom after all of the witnesses had been excluded. However, the defendant offered, to prove by the witness that she was the former wife of Spitler, and that the defendant did not break up her home as contended for by Spitler. However, this same evidence had been established by the testimony of defendant, and others, and it would have been cumulative. The court should have allowed the witness to testify, but under all the facts and circumstances of the case, we do not believe it to be reversible error.

It is next contended that the court clerk in preparing the trial docket prepared the same only 11 days before the commencement of the trial of cases set on the docket, and therefore did not comply with the statute which requires the clerk of the court to prepare a trial docket at least twelve days before the final day of the term of court. 12 O. S. 1941 § 663.

The above statute governs the trial of civil cases. There is no statute fixing the time in criminal cases which shall intervene before a case shall stand for trial after arraignment and plea of not guilty. A reasonable time must be allowed. What is a reasonable time will depend upon the facts and circumstances in each particular case. Morse v. State, 63 Okla. Cr. 445, 77 P. 2d 757; Reynolds v. State, 60 Okla. Cr. 92, 61 P. 2d 269; Prescott v. State, 56 Okla. Cr. 259, 37 P. 2d 830. No contention is made that defendant did not have adequate time to prepare for trial.

The contention of defendant that the court erred in refusing to admit in evidence the deposition of Dalton Taylor offered by the defendant, cannot be sustained for the reason that the defendant did not undertake to comply with the statutory provisions relating to the taking of depositions in a criminal case. 22 O. S. 1941 §§ 761 to 766.

There was no exception save to the giving of any instructions, and the examination of them does not disclose that any are so fundamentally erroneous as to require a reversal.

We call attention to the fact that the execution of the judgment rendered against the defendant was not stayed by the filing of an appeal bond as required by statute. 22 O. S. 1941 § 1057. Although, the sentence was suspended, the same took effect immediately upon the pronouncement of judgment where the defendant did not execute an appeal bond for tbe purpose of staying the execution of the judgment. The defendant has now completely served the sentence and is no longer subject to restraint pursuant to the judgment which was pronounced against him. Ex parte Miller, 88 Okla. Cr. 441, 203 P. 2d 890; Ex parte Bell, 57 Okla. Cr. 257, 47 P. 2d 886; Ex parte King, 40 Okla. Cr. 21, 266 P. 511.

The judgment and sentence of the district court of Roger Mills county is affirmed.

BRETT and POWELL, JJ., concur.


author: POWELL, J.

text:
    HINK v. STATE.
    No. A-11130.
    March 15, 1950.
    (216 P. 2d 348.)

      John L. Ward, Jr., Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   POWELL, J.

Tom Hink was charged by information filed in the district court of Tulsa county with the crime of unlawful possession of intoxicating liquor, second offense. Defendant’s demurrer to the information was overruled, and motion to suppress was filed, heard by the court, and overruled. A jury was waived, the defendant did not testify or offer any evidence. The evidence of the arresting officer on the motion to suppress was considered as the evidence of the state, and it was stipulated by and between counsel that the allegations of the information relative to the prior conviction of defendant in the court of common pleas of Tulsa county on November 15, 1945, for the unlawful possession of intoxicating liquor, was true and correct. The court found the defendant guilty asi charged, and fixed his punishment at imprisonment in the county jail for a term of four months and a fine of $250, and costs. Appeal has been duly perfected to this court.

The undisputed evidence disclosed that a deputy sheriff armed with a search warrant searched the defendant’s' automobile and found in the back end of said car 19 fifths and 33 pints of tax-paid whisky.

For reversal, defendant argues his case under two propositions, as follows:

“Proposition No. 1: The court erred in overruling defendant’s motion to suppress the evidence secured by reason of the search warrant.
“Proposition No. 2: The court erred in overruling defendant’s demurrer to the information.”

Counsel argues that:

“The affidavit to secure the search warrant is vague, indefinite, uncertain ambiguous, contradictory, repugnant and conflicting in that it states that intoxicating liquor ‘is being sold, stored, transported, given away and otherwise furnished’ ”.

He further argues that, “if the liquor is being sold, then it is not given away. If it is otherwise furnished, then it is not being sold or given away. If it is being stored, then it is not being transported. It cannot be all these and the affidavit states these facts conjunctively, and not disjunctively, thus creating an impossible situation.”

The affidavit complained of reads in part as follows:

“Walter Wisenhunt, being first duly sworn, upon oath deposes and says: That certain intoxicating liquor is being sold, stored, transported, given away, and otherwise furnished; and is being kept for the purpose of being sold, stored, transported, given away, and otherwise furnished in violation of the prohibitory laws of the State of Oklahoma; the kind and description of said intoxicating liquor being as follows, to-wit: wine, beer, and other intoxicating liquor, and imitations thereof and substitutes therefor, the exact quantity thereof being unknown.
“I know that Tom Hink is a bootlegger and that he is selling whisky from this car. I have been closely observing him and this vehicle for the past month. I have seen him delivering whisky in this vehicle and recently arrested him with whisky in said vehicle. That , said intoxicating liquors are being disposed of and kept by one Tom Hink in the manner aforesaid in and/or on the following described motor vehicle, situated in Tulsa county, Okla., to wit:
“A certain Chevrolet sedan automobile bearing 1946 Oklahoma License 2-51738 with a 1947 Oklahoma tab attached, which said motor vehicle is being used in secreting, storing and transporting intoxicating liquors in and on the streets and alleys of the city of Tulsa and the highways and roads of Tulsa county, Oklahoma. * * *”

The statutory provisions for affidavit for a search warrant are found in Tit. 22 O. S. A. §§ 1222, 1223 and 1224; and Tit. 37 O. S. A. § 84. The latter statute is applicable where the search is for intoxicating liquors. The affidavit in question involves the illegal possession of intoxicating liquors, a number of kinds being enumerated. Facts are set forth tending to establish probable cause, and it is so drawn that perjury could be charged thereon if any material allegation contained therein is false. From such standpoint the affidavit meets the requirements of the above statutes.

In McHenry v. State, 61 Okla. Cr. 450, 69 P. 2d 90, an affidavit for search warrant similar in form to the affidavit in the within case was held to comply with the statutory requirements. Baker v. State, 28 Okla. Cr. 408, 231 P. 320, was cited where an approved form affidavit was set out. See, also, Mason v. State, 60 Okla. Cr. 392, 64 P. 2d 1238.

The search warrant is issued for the purpose of obtaining the property specified, which, if obtained, may be used as basis for a charge against the defendant, and be used as evidence to support such charge. The county attorney will determine the nature of the charge to be filed, if any. From the affidavit in the instant case, the complaining officer positively swears that he has seen the defendant delivering whisky in the vehicle in question; that he recently arrested defendant and found whisky in the vehicle. Of course, the defendant could be guilty of possessing, storing, transporting, selling and giving away liquors at the same time, if he had the quantity.

Counsel for defendant contends that the affidavit was insufficient if issued either under section 6, 31 or 82 of Title 37, O. S. A., setting out various reasons. However, an examination of the affidavit discloses that 'it was issued as provided by section 82 of Title 37, O. S.A., and the information resulting from the search was based on Title 37 O. S. A. §§ 31 and 82. This court in Howe v. State, 84 Okla. Cr. 279, 181 P. 2d 571, opinion by Barefoot, J., held:

“The word ‘premises’ in statute authorizing issuance of search warrant on filing of affidavit showing probable cause does not limit right to search of realty, but also includes right to issue warrant to search automobile or other personal property.”

As stated, the search produced 19 fifths and 33 pints of tax-paid whisky. The county attorney charged the defendant with unlawful possession of intoxicating liquors, second offense, as provided by Section 12, Title 37, O. S. A., and Section 31,. Title 37 O. S. A. Defendant seems to argue that because the whisky was obtained by search under warrant and from an automobile, and in view of the fact that automobile is not mentioned in Section 31,. or Section 82, Title 37 O. S. A., that the search was il-légal and that his demurrer to the information should have been sustained, and that being overruled that his motion to suppress should have been sustained. The statute mentions “upon, in, or about his place of business, or any place of amusement, or recreation, or any public resort, or any club room.”

From the affidavit in question it would appear that the defendant was making his automobile his place of business. The reasons given by Judge Barefoot in support of the above rule announced in Howe v. State, supra, are applicable here, and we hold that the word “place of business” in the statute making it unlawful for any person to have in excess of one quart of spirituous, vinous, fermented or malt liquors, etc., appliesi not only to real property, but to movable personal property such as a motor vehicle, if such property is used as a place of business for violation of the liquor laws.

Defendant further argues that the affidavit upon which the search warrant was issued is insufficient because :

“The affidavit states that the motor vehicle described is being used in secreting, storing and transporting intoxicating liquor. If it was used for transporting, then no place or point is stated from which they were being transported nor no place or point to which they were being transported, and therefore the affidavit is insufficient.”

The case of Bohannon v. State, 66 Okla Cr. 190, 90 P. 2d 675, 676, is cited in support of such contention. In that case it was held:

“Where an affidavit is made for the purpose of securing a search warrant to search a car for transporting intoxicating liquors from one place to another, the affidavit must clearly state a point from where the party started transporting the whisky or a point definite to where it was transported.”

In Miller v. State, 89 Okla. Cr. 200, 206 P. 2d 245, 246, decided May 4,1949, where the defendant was charged with unlawful possession, the Bohannon case was distinguished, the court pointing out:

“A careful reading of the Bohannon case reveals that the facts in that case are in no way comparable to the facts in the instant case. That was a case where the defendant was charged with the unlawful transportation of intoxicating liquor. Here the defendant is charged with the unlawful possession. The facts are entirely different.”

Although the above case was reversed, it was because of an erroneous instruction, and not on the sufficiency of the affidavit for the search warrant. See Miller v. State, 90 Okla. Cr. 14, 209 P. 2d 890.

The defendant contends that his demurrer to the information should have been sustained. The charging part of the information reads:

“ * * * that Tom Hink on the 12th day of November, A. D. 1947, in Tulsa county, State of Okla.,. and within the jurisdiction of this Court, did unlawfully, wrongfully and wilfully have in his possession, certain intoxicating liquor, to wit: 19 one-fifths of a gallon and 33 pints of assorted tax-paid whisky; with the unlawful intent then and there, upon the part of said defendant, to barter, sell, give away and otherwise furnish same in violation of the prohibitory liquor laws of the state of Oklahoma.
“That said defendant heretofore, to-wit: on the 15th day of November, 1945, was convicted of Unlawful Possession of Intoxicating Liquor, in the Court of Common Pleas of Tulsa County, Oklahoma, and was sentenced to 30 days in the county jail and fined $50.00 and costs, jail time being suspended, being case No. 48339, contrary to the form of the Statutes in such cases made and provided, and against the peace and dignity of the State.”

Defendant says :

“If the information is drawn under Title 37 O. S. A. Sec. 31, it must not only contain the allegation ‘which is capable of being used as a beverage’ but must also state the place, within the limits of such Section, where said intpxicating liquor was kept or possessed, ‘upon, in, or about his place of business, or any place of amusement, or recreation, or any public resort, or any club room’, in order to charge an offense under that Section. In this respect the informaiton is fatally defective and wholly insufficient to charge any offense under section 31.”

An information in Botts v. State, 29 Okla. Cr. 105, 232 P. 965, worded substantially as the above information, was held sufficient. In Linde v. State, 83 Okla. Cr. 365, 177 P. 2d 527, this court had up for consideration the sufficiency of an information filed under Tit. 37 O. S. A. § 31, which information charged the defendant “with the offense of illegal possession of intoxicating liquor, in that he did, unlawfully, wilfully and wrongfully have in his possession a quantity of tax-paid whisky in excess of 94 (4/5), with intent, on the part of said defendant to unlawfully, wilfully and wrongfully barter, sell, etc., same.” The court held the information sufficient under the statute in question.

In Howe v. State, supra, this court in the body of the opinion said:

“In the instant case, the search warrant, following the description in the affidavit, described the property to be searched as follows: ‘A black Plymouth coupe automobile, bearing 1945 Oklahoma License 2-38328, which said automobile is used in storing, secreting and transporting intoxicating liquor.’ This was a sufficient description of the property to be searched. It required no outside information for the officers to properly identify the property. We are of the opinion that the Legislature under the terms of the statute above mentioned did not intend by the use of the term ‘premises’ as above mentioned, to prevent the search of an automobile.

“In the case of Wagner v. State, 72 Okla. Cr. 393, 117 P. 2d 162, 167, this court said: ‘While we have strictly construed the terms of the statute as applied to search warrants, we are of the opinion that there should not be a technical construction of the. statute which would defeat the ends of justice and permit the guilty to escape through technicalities.’ ”

It was further held in Hughes v. State, 85 Okla. Cr. 25, 184 P. 2d 625, Id., 85 Okla. Cr. 35, 184 P. 2d 630:

“In prosecution for unlawful possession of intoxicating liquors, evidence revealing that liquor found in defendant’s possession was tax-paid whisky was sufficient to establish without further proof that liquor found was intoxicating. 37 O. S. 1941, § 82.”

For the purpose of the demurrer, the allegations in the within case setting out that the defendant did have in his possession the quantity of tax-paid whisky listed, and which was in excess of one quart, in connection with the other allegations quoted, was sufficient. Only where the information charges possession for sale or actual sale of liquors, compounds, and mixtures other than liquor that is intoxicating per se, such as whisky, is it necessary that the information allege that such liquors contain more than 3.2% of alcohol, measured by weight, and that same is capable of being used as a beverage. Davis v. State, 71 Okla. Cr. 82, 108 P. 2d 200.

Though the facts are different, this principle is involved in Maladin v. State, 72 Okla. Cr. 80, 133 P. 2d 201, and the reasoning is equally applicable here.

The judgment of the district court of Tulsa county is, accordingly, affirmed.

JONES, P. J., and BRETT, J., concur.


text:
    CARR et al. v. STATE.
    No. A-11148.
    March 22, 1950.
    (216 P. 2d 333.)

      Judd L. Black, Oklahoma City, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   POWELL, J.

The appellants, Glenn Adrian Carr and Archie McGlasson, were convicted by a jury in the district court of Canadian county, where the case had been taken on a change of yenue at instance of said persons, of the crime of burglary in the second degree, after former conviction of a felony, with punishment fixed by the jury at a term of 25 years each in the State Penitentiary.

The information charged that the offense was committed in Oklahoma county on the 17th day of December, 1947, by burglarizing the Ozark Drug Store, located at 2408 North Eobinson, in Oklahoma City. The defendants were charged with acting conjointly and together. The information further alleged nine previous convictions of felonies by McGlasson and seven by Carr. At the trial neither of the defendants testified or offered evidence. They rested their case on a demurrer to the state’s evidence.

The proof by the state showed that the burglary in question was committed about 1:30 a. m. on December 17, 1947, and that the defendants were arrested by Oklahoma City police officers while defendants were in the act of committing the burglary.

Harold Lee testified that he was a special officer, merchant police, in Oklahoma City, and on duty at the time of the burglary in question; that he was walking down an alley separating the Ozark Drug Store from the Maek-lenburg Supply Company building, and heard a pounding noise. That there were four windows in the drugstore, built about nine feet up from the ground; that a pane of glass was gone from one of the windows, and he heard somebody pounding inside. He then went to a nearby building and asked the nightwatchman there to call for help over a portable radio he had. Police officers responded in a minute or so and the entrances to the Ozark Drug Store were covered by the officers.

The evidence developed that a number of police officers responded to the call and that the owner of the drugstore, Mr. Swain, was called, and that while the officers were waiting, those at the front saw a man moving around inside the drugstore. Officers Jordan, Merz, and Williams were at the back door, with Merz on the roof. Some ten or fifteen minutes after the officers arrived the defendant G-lenn Adrian Carr came out, followed by the defendant McGlasson, with their hands up. A saw with extra blade was found in one of Carr’s pockets. The defendants were handcuffed and taken back in the drugstore, and there the officers found three punches, two screw drivers, chisels, and a sledge hammer and crowbar scattered over the floor around the safe. The upper left-hand corner of the safe had been punched and the knobs knocked away.

S. E. Swain testified that he was the owner of the premises in question and which he described as the Ozark Pharmacy, and located at 2408 North Robinson; that about 20 minutes before 2 o’clock the morning of December 17th, he was called by the officers. He went to his place of business and found the officers there and that his place of business had been broken into; that he unlocked his' front door and found 15 or 20 officers and the two defendants, who were handcuffed, in the back of the store. He found also a hole had been cut in" his ceiling and roof, and testified there was a steep drop where one coming through the hole could let themselves down. He had a safe there behind the prescription case and the nickel pieces were knocked off, including the combination and handles, and the top of the door was bent down, so that he thereafter had to purchase a new safe. He stated that he had around $300 in money and quite a lot of narcotics in the safe; that various tools, not belonging to him, were scattered over the floor around the safe. He testified that someone unknown to him had placed a ladder atop a coke box at the rear of his store, and that access to the roof could be gained by use of the ladder.

Counsel for defendants in error in petition in error sets out 20 specifications of alleged error, which are argued in the brief under three propositions, which we shall consider in order. Counsel states:

“It is obvious from the outset that the defendants were guilty of an offense, however, we say that this record reflects that the defendants were deprived of a fair and impartial trial.”

Complaint is made of questions propounded to prospective jurors by the prosecution on voir dire, particularly the following:

“If the State of Oklahoma proves to your mind beyond a reasonable doubt the guilt of these defendants, you will vote to convict them, and if you are convinced beyond a reasonable doubt after you have heard all of the evidence in the case that these defendants are guilty, as charged, would you vote to convict them?”

And further:

“Now, his honor will state, in his instructions, the law in this case as to the punishment which carries a minimum of ten years and a maximum of life, and after you have heard all of the facts in the case and the circumstances and the evidence, if you thought the facts justified it, would you inflict the maximum penalty in this case?”

This case was filed under the provisions of Tit. 21 O. S. A. § 51, commonly called “The Habitual Criminal Statute,” and we find nothing unfair in the voir dire examination complained of, in that the purpose of the allegations of a prior offense or offenses, goes to the punishment, and the county attorney had a right to find out from the prospective juror, if he would be willing to inflict added punishment to the crime charged, as provided by the statute, should the evidence justify. We do not find where the principle of law stated in Kizer v. State, 67 Okla. Cr. 16, 93 P. 2d 58, cited by defendants, was violated. The second paragraph of the syllabus reads:

“Examination of juror on voir dire is for purpose of ascertaining when a cause of challenge exists and of ascertaining whether it is wise or expedient to challenge peremptorily.”

It is next objected that:

“And thereafter the state proved 16 former convictions against the defendants before introducing any evidence whatsoever to connect the defendants with the alleged crime of burglary, as set forth in the information.”

Mr. S. E. Swain, the owner of the Ozark Drug Store, shown to have been burglarized, first testified, and though standing alone such evidence fell short of making out a prima facie case against the defendants, we cannot see where the defendants were prejudiced by the court permitting the state to thereafter prove the prior offenses alleged, before the evidence of the officers, who caught the defendants in the act of burglarizing the drugstore, was offered. This appears to be a highly technical objection, and without merit. This court held in Mathies v. State, 56 Okla. Cr. 308, 38 P. 2d 588:

“The order in which testimony shall be produced rests largely in the discretion of the trial court.”

We do not find that the court abused its discretion.

The next main proposition advanced by defendants is:

“Where the accused is on trial as a subsequent and second offender and he timely admits and acknowledges to the court an alleged prior conviction of a felony and properly acknowledges and fixes Ms status as a subsequent and second offender, and when the State bas proved a prior conviction of the accused, as alleged in the information, then there is no further issue on the question of ‘former conviction’, and the continued offer by the State of other and different convictions constitute an attack by the State on the character of the defendant, contrary to the settled law of this State.”

This question has heretofore been considered by this court and held contrary to the contention of counsel for defendants in the case of Solomon v. State, 79 Okla. Cr. 93, 151 P. 2d 944, 945. There the defendant was tried and convicted of the crime of receiving stolen property, after proof of two former felony convictions, and was sentenced to serve a. term of six years in the penitentiary. There, as here, the prosecution was based upon Tit. 21 O. S. A. § 51. In that case it was held:

“Under 21 Okla. Statutes 1941 § 51, it is proper to charge in the information one or more offenses of prior conviction, and offer proof to sustain the same.
“The above statute does not define a new and independent crime, but provides, that when one is found guilty of a specific crime, he may be more severely punished because of his previous conviction as alleged and found.”

In the body of the opinion, the court says:

“It will be noted that two former convictions of a. felony are alleged, one in the district court of Tulsa county, and one in the United States District Court for the Northern District of Oklahoma.
“It is contended by the defendant that it was improper to allege in the information more than one prior conviction, and that by reason of this being done, defendant’s character was put in issue, without him first having put it in issue.
“We have examined the authorities, and do not find that this exact question has ever been passed upon by this Court. * * *
“If the defendant had been previously convicted more than one time, we see no reason why it might not be alleged and proven. We can see how this proof would be detrimental to a defendant, but this statute was evidently enacted for the very purpose of making it harder for those who had theretofore been convicted of a felony, and served a term in the penitentiary.”

In the case of Scott v. State, 85 Okla. Cr. 213, 186 P. 2d 336, 342, the rule in the Solomon case was approved. In the body of that opinion, this court said:

“It is next contended that the trial court erred in not striking from the information all of the allegations of the informatión which charged more than one prior conviction of the defendant. The information charged the defendant with prior conviction of three felonies.
“This contention of defendant has heretofore been decided adversely to him in the case of Solomon v. State, 79 Okla. Cr. 93, 151 P. 2d 944, 945, wherein this court stated:
“ ‘Under 21 Oklahoma Statutes 1941 § 51, it is proper to charge in the information one or more offenses of prior conviction, and offer proof to. sustain the same.’”

Counsel cites the case of Davidson v. State, 82 Okla. Cr. 402, 171 P. 2d 640, 642, as supporting in principle his contention that evidence of former conviction or convictions tends to bring in evidence the character of the accused. No doubt as an incidental matter this is true. However, we are here dealing with a statute, Tit. 21 O. S. A. § 51, and the purpose of the statute is clear, — to make it harder for those who have previously been convicted of a felony or felonies and who have served in the penitentiary. The function of this court is not to legislate, but to interpret.

The above-cited case does not apply here, because it specifically holds that there can be no cumulative punishment in a capital case, where the accused would be guilty of murder or nothing, and in such a case the statute in question does not apply, and to set out other convictions, under such a circumstance, would prejudice the rights of the accused, as evidence of such conviction or convictions would tend to show the bad character of the accused. On the other hand, where it is proper to allege and prove prior convictions of a felony or felonies, the rule is different. Said the court in the body of the opinion :

“Trial court may admit evidence of former conviction in murder prosecution where plea of self-defense is interposed and evidence of state shows that included offense of manslaughter in the first degree must be submitted to the jury, provided said prior conviction is charged in the information.”

The case of Johnson v. State, 79 Okla. Cr. 71, 151 P. 2d 801, is cited by the court, and that case goes into the question here raised in some detail and may be referred to by those further interested in the subject. The defendant there was charged and convicted of murder. The killing was admitted, but the plea was that of self-defense. The court, under the record, was bound to submit to the jury, not only the charge of murder as alleged in the information, but, also, the included and lesser offense of manslaughter in the first degree.

Finally, the defendants argue that the convictions were not obtained in accordance with due process of law. Counsel says that the court erred in overruling the demurrer to the information, first, on the ground of failure to allege that the previous convictions were obtained in courts of competent jurisdiction.

By provision of Tit. 22 O. S. A. § 411, it is provided in substance that matters of which the courts take judicial notice need not be stated in the information.

In Leasure v. State, 46 Okla. Cr. 70, 283 P. 1023, 1025, a case in which the defendant was tried and convicted of a second and subsequent violation of the prohibitory liquor laws, this court held that it was not necessary to allege in the information that the former conviction was had in a court of competent jurisdiction. In the body of the opinion, we said:

“* * * The information alleges! that the defendant was convicted in the county court of Garfield county of the crime of having possession of intoxicating liquors with the unlawful and wrongful intent to barter, sell, or otherwise furnish the same to others. This court takes judicial notice that the, county court of Garfield county has jurisdiction to try persons charged with the violation of the prohibitory liquor laws of the state of Oklahoma when such offenses are committed within Garfield county. Since the record discloses that the charge against the defendant was filed in the county court of Garfield county, it was not necessary to allege that the county court was a court of competent jurisdiction. State v. Windell, 14 Okla. Cr. 77, 167 P. 640.”

The defendants cite Fowler v. State, 14 Okla. Cr. 316, 170 P. 917, 918, as sustaining their position that it is necessary to allege: “and that the person charged has been convicted in a court of competent jurisdiction.” In that case the county attorney failed to include in the information allegations of fact setting forth that the offense charged was a second or subsequent violation of the law, and failed to show that defendant had been convicted. It was alleged that defendant had pleaded guilty, but it was not stated that any judgment was ever entered. There were also other defects. However, by reason of the later case of Leasure v. State, supra, we do not find that the omission of such allegation constitutes reversible error herein.

As a second ground in support of the demurrer to the information, counsel says:

“That said information alleged that Archie McGrlas-son had been convicted of the crime of violating the Federal Narcotic Act, 26 IT. S. C, A. §§ 2550 et seq., 3220 et seq., but did not allege that said conviction was a crime punishable by imprisonment in the State Penitentiary.”

The information complained of stated in effect that the conviction in the Federal court was an offense punishable by imprisonment in the Federal Penitentiary. The pertinent portion reads:

“And the said offense of burglary in the second degree, being punishable by imprisonment in the State Penitentiary, and having been committed by the said defendant, Archie McG-lasson, as above set out, after having-been convicted of the crime of violating the Federal Narcotic Act, on the 19th day of June, 1946, in Oklahoma County, State of Oklahoma, before the Western District United States Court in and for the Western District of the State of Oklahoma, being case No. 15,201, and said former conviction of violating the Federal Narcotic Act being a crime punishable by imprisonment in the Federal Penitentiary; * * *.”

■ Based on the facts alleged in the Federal indictment, the defendant could have been convicted under the laws of this state for a violation of the Uniform Narcotic Drug Act, 63 O. S. A. §§ 401-424, and could have been sentenced to serve a term in the State Penitentiary.

In Newton v. State, 56 Okla. Cr. 391, 40 P. 2d 688, this court held:

“A prior conviction in a United States court of a crime which, if committed within this state, would be punishable by imprisonment is a sufficient basis for a prosecution of a subsequent charge, as a second offense, under section 1820, Okla. Stat. 1931 [21 U. S. 1941, § 54]., which imposes heavier penalties for persons who have prior thereto been convicted of such a crime in any other state, government, or country.”

Also, Tit. 21 O. S. A. § 54 provides:

“Every person who has been convicted in any other State, government or country of an offense which, if committed within this state, would be punishable by the laws of this state by imprisonment in the penitentiary, is punishable for any subsequent crime committed within this state, in the manner prescribed in the last three sections, and to the same extent as if such first conviction had taken place in a court of this State. R. L. 1910 § 2808.”

The prosecution identified the defendant McGlasson, as being the person convicted under the Federal charge above mentioned, and proved that he was committed to the Federal Correctional Institution at Texarkana, Texas, following conviction. We therefore hold the allegation sufficient.

It is next contended that the allegations in the information that the defendants burglarized the “Ozark Drug Store” was a fatal variance from the proof. The information alleged that the defendants did “break and enter a one-story brick building, the Ozark Drug Store, located at 2408 North Robinson, in Oklahoma City, said county and state, which said building was then and there under the control of and in the possession of the Ozark Drug Store, individually owned by S. E. Swain,” etc.

When Mr. Swain was on the witness stand he testified to responding to the call of the officers about 20 minutes before 2 o’clock in the morning of the burglary, and coming to his place of business and unlocking the front door and letting in the officers who were at the front; that he found other officers in the rear of his place, and that the defendants were there, and handcuffed. He identified the address as 2408 North Robinson, Oklahoma City, as alleged in the information, but did refer to his business as “Ozark Pharmacy.” Under the facts proven on trial, we conclude that the defendants were not misled by this discrepancy, and that the variance was not material. Counsel does not even suggest that defendants were misled. Webster defines a pharmacy as: “4. A place where medicines are compounded or dispensed; a drug store; an apothecary’s shop.”

This court has held, in O’Neil v. State, 76 Okla. Cr. 107, 134 P. 2d 1033:

“A variance between the allegations of the information and the evidence is not material unless it is such as might mislead the defendant, or expose him to the injury of being put twice in jeopardy for the same offense.”

Counsel contends that many of the exhibits admitted in evidence in proving former crimes were mere copies of the informations, judgments and sentences. He particularly identifies Exhibits 30, 31-32, 33-34, and 35-36. We have examined the record and do not find where in the trial complaint was made to the introduction of these instruments on the ground that they were not properly certified to, or were not the originals. By provision of Tit. 12 O. S. A. § 502, the originals were admissible. Witness Cliff Myers., Oklahoma county court clerk, identified Exhibit 30 as the judgment and sentence in Case No. 11,-879. There is nothing in the record to indicate that it is a copy. On the other hand, the witness did identify Exhibit 32 as being a certified copy of judgment and sentence, and we find the same to be certified by Cliff Myers, court clerk. The other exhibits referred to were not identified as being copies, certified or not certified, but “a judgment and sentence” or “final information”, as the case might be. We conclude that the exhibits were properly admitted in evidence. Further, by reason of the fact that one or more offenses might be charged, as heretofore held, proof of one additional offense would be sufficient, and the defendants do not complain of the manner of proof of every additional offense.

Defendant’s final contention is that the court erred by failure to give their requested instructions Nos. 1, 2 and 3. We have examined the requested instructions, and it is apparent that defendants were entitled to have the same given as submitted, or to have substantially the same subject matter covered by the general instructions given. A careful reading of the instructions given discloses that this was done. We have held this to be sufficient in Brooks v. State, 59 Okla. Cr. 421, 60 P. 2d 805, 806, wherein we said:

“Where the court in its general instructions correctly advised the jury as to the law applicable to the facts in the case, it is not error for the court to refuse to give special instructions requested by the defendant covered by the court’s instructions.”

For the reasons stated, the judgment and sentence of the district court of Canadian county is affirmed.

JONES, P. J., and BRETT, J., concur.


author: BRETT, J.

text:
    LANE et al. v. STATE.
    No. A-11129.
    March 22, 1950.
    (216 P. 2d 353.)

      F. H. Beily, Joe H. Reily, and J. W. Spurr, Shawnee, and J. V. Whitley, Duncan, Paul Donald and J. M. Donald, Bowie, Texas, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The defendants, Ben Lane and D. A. Thomason, were charged by information in the district court of Stephens county, Okla., with the crime of grand larceny, wherein it was alleged that they stole from W. F. Turner 18 9" rock bits of the value of $75 each, on August 7, 1917. They were tried by a jury, convicted and their punishment fixed at one year in the State Penitentiary, and judgment and sentence was pronounced accordingly.

The proof offered in support of the information by the state was to the effect that W. F. Turner, an oil well drilling contractor, was drilling oil wells for the Carter Oil Company on the Revere ranch in Stephens county, Okla., on the date herein in question. It appears that he had been losing drill bits by theft, and he had decided to catch the person or persons stealing them. One of these drilling rigs was in the process of being torn down on August 7, 1947. On the afternoon preceding the alleged larceny herein involved Mr. Turner observed the defendants about the rig and took their tag number. Just before dark Mr. Turner testified the defendants drove in where the drilling rig was being torn down and he observed them put the 18 rock bits in the back end of their black Mercury car. He thereupon went to the scene of the theft and inquired what they were doing. One of the defendants said “your men said we could have these bits”. He informed them that they were mistaken. He told them to stay there and unload the bits, and that if Pete told them they could have the bits it would be all right. After they had unloaded the bits they started down the hill. While they were unloading the bits, Turner returned to his house and obtained his pistol. Approaching them as they started to leave he made them back up at the point of his pistol to the rig, and awaited the arrival of the sheriff. He said these bits were what he called green bits, that they were still good for use in soft formations, and that they had a value of $60 each. On cross-examination, he said during the war that the Hughes Tool Company had let them re-tip some of those bits because steel was hard to get but that this work was done by his. own organization. He said the bits were his until he turned them back to the Hughes Tool Company. He identified the defendants Lane and Thomason as being the men he apprehended on the evening in question.

Mrs. W. F. Turner and Mrs. Fitts testified they got in the automobile, accompanied Mr. Turner to the rig and were present when they ran into the defendants headed away from the well, and Mr. Turner forced them to back up to the slush pit. They identified the defendants as being the same two men. They said, in about 45 minutes Mr. Ledbetter, the tool pusher for Mr. Turner, arrived with the sheriff and another officer. The sheriff searched the defendants and placed them under arrest. Mrs. Turner stated that she saw the bits sitting there by the defendants’ car. Mrs. Fitts said, when Mr. Turner came into the house, they saw there was something, wrong, and Mr. Turner got his gun and they accompanied him to the well. She gave other testimony hereinafter considered which is assigned as grounds for reversal by way of erroneous remarks by the court in relation thereto.

Pete Ledbetter testified for the state that he was the tool pusher for W. F. Turner; on the occasion of August 7, 1947, they were tearing down one rig and the rig builders had quit work about 5 o’clock, and had gone away to eat with the expectation of returning. When he returned to the location Mr. Turner’s car was sitting east of the pipe rack. He said he observed a Mercury coupe in front of Mr. Turner’s car. Mr. Turner told him to go call the sheriff and he left immediately and did so. Some time thereafter the sheriff arrived and placed the men under arrest. He testified further that Mr. Turner had been losing some bits and that they had been on the lookout for the thieves. He said at no time did he ever tell any one that they could come and get any bits. He says that when the Hughes bits ceased to be usable they put them in a pile and the Hughes man would come and pick them up. Ledbetter identified the bits involved in the instant case as green bits which could be re-run. He placed the value of them at somewhere between $50 and $60 a piece.

Jess Gandy said that he saw the defendants on the day in question after he had returned from eating. Mr. Turner had the defendant’s car parked by the drill pipe. Mrs. Turner and Mrs'. Fitts were with him. He said he saw the. bits stacked on the well floor. There were 18 of them. They were all Hughes 9" bits, that they were good for further use and what drillers called “green” bits.

Bob Cates, sheriff, testified for the state that he arrested Lane and Thomason who were driving a black Mercury coupe, with a Texas license B-2020; that defendant Lane claimed ownership of the Mercury car.

The evidence on behalf of the defendants was in substance as follows: Ben Lane testified that he lived in Gainsville, Texas, that he came to Duncan, Okla., on August 7, 1947, looking for work. In a pool hall in Duncan he met a man by the name of Newman who said he was looking after a rig which he was fixing to move and that he had some bits out there that he wanted sharpened, and told him to go out there and pick them up. Lane testified Newman said he would have his driller meet him whenever he came back, that that was> what he was to start doing. On this trip he said he was accompanied by defendant Thomason who lived in Bowie, Texas. He asked Thomason to ride up to Duncan with him. He said they made two trips out to the Revere lease. On the first trip the men were too busy working around the rig and they could not get in to get the bits. He said this man (probably referring to Newman) told them that as they cleared out “you can bring in a few of those bits. * * * I will meet you here and introduce you to your driller and he would tell you where to go”. Later at about 5 or 5:30 they drove back up to the pipe rack. All of them who were working on the rig were gone, no one was there. There were some bits around the well, and Lane said to Thomason he “wondered if there was any particular ones he wanted”. Thomason said “I don’t know”. Then said, “looks like they would have a watchman out here”. About that time a man drove up in his Ford car and wanted to know “what our business was”. Lane said lie informed him that he was sent there to get a few bits to have re-sharpened to start another hole. The man denied this was true and told them that they were just on a bad catch and told them to “stay right here” until he got back. He was gone 15 or 20 minutes, and they started driving up to this man’s house, and they ran into Mr. Turner and he wanted to know where they had started. Lane said “let’s go back, to the fellow” (meaning the fellow that had told them to pick up the bits). Lane said there were two ladies with Mr. Turner. Turner forced them to back down to the point from which they came from the bit pile. Some time after dark the sheriff came and put them under arrest.

On cross-examination of the defendant Lane it developed that he had recently been running a welding shop in Wichita Falls, Texas. He said he had never been able to locate Newman since he saw him in the pool hall, and that he made no attempt to locate him. He admitted that on the first trip to the well location all of the men there were working and that he did not inquire of any of them about the bits because he said that they were rig builders and truck drivers and would not know anything about it. The second time he came down to pick up the bits nobody was there. He denied, however, that they loaded the bits into his car. Between the time he was arrested and the last time he had worked it had been about a week. He was asked if he had ever dealt in used bits before and he admitted that he had but denied he was dealing in them at the time of his arrest. The record discloses at the time of his arrest his automobile was searched and the officers discovered an account book in his car. Lane’s attention was directed to this book and he admitted that it disclosed his dealings in used bits, “that is some of it”. He recounted a number of dates and amounts therein which involved transactions in relation to bits. The sums referred to ranged from as much as $350 down to as little as $70. He said, however, that the sums represented services rendered on bits and for welding services. The last transaction bore the date of July 28, 1947, 9 days before he was arrested. He testified the reason he quit the re-tipping business was because labor was so high and materials so scarce and the price so small that he was losing money and when he saw he could not make it he decided to go into some other business.. With this predicate being laid his attention was called to a statement he made to the assistant county attorney on August 9, 1947, in which he said in relation to the book in question:

“Q. You had a book in which you had a record of sales. A. Yes, sir. Q. Sales from what? A. From various things. Q. There was some oil field equipment? A. Yes, sir. There was some of that in it all right”.

Thus it appears that there was a conflict between his sworn testimony and the statement that he had made to the county attorney. He testified since his arrest he had done some welding and on the date of the trial on March 29, 1948, he was not in business at all. He said he had not had a chance to examine the bits in question.

D. A. Thomason, the other defendant, testified that he lived in Bowie, Texas, that he was employed as a rotary driller and had been so. engaged since 1931. On August 7, 1947, he had occasion to come to Stephens county, Okla., with Ben Lane. He said that Ben Lane was coming over here to see a fellow and he just came over to drink a bottle or two of beer. When they got to Duncan he saw Lane talking to a man downtown. At about 5:30 they drove out to the well in question. There was no ' one there, but a big pile of bits was there. They were at the back of the car where the bits were, Mr. Turner drove up, told them to remain there and then drove away. He said they decided to go up to the house and try to make a deal with him. They almost got to the house and then he made them stop. He denied that they had any intent to steal the bits, that he didn’t know a thing in the world about them. He said he knew nothing unlawful about re-tipping bits, that his company often used re-tipped bits. The only reason he was involved was because he came along just on the trip with Ben.

On cross-examination of Thomason, it developed, that he was in the pool hall and having one of his bottles of beer, and that was when Lane talked to a man he did not know and whom he had not seen since. ' He admitted that they were there at the well location prior to the time they were apprehended by Mr. Turner. At that time they just went up and looked around and went on. Lane told him they went to this rig to pick up some bits. He did not tell him what they were picking them up for, nor what he was going to do with them, that he helped pick them up and piled them up at the back of the car. They had packed them from the well floor to the back end of the car but did not put them in the car. He said they were all Hughes bits. He said at the time of this transaction he did not know that Lane had been in the bit business, that he had never been in his bit shop, and that he did not know whether he had been in the bit business since his arrest. He said he had known Ben Lane since about 1945. He had never made any attempt to locate the fellow that Lane said told him to get the bits.

The defendants Offered in their behalf Jack Cohen, a dealer in junk and oil field supplies, who testified that a Hughes 9" rock bit would weigh 60 to 65 pounds, and that he would pay for such used bits about a cent a pound for scrap. He did not testify that he had seen the bits in question or knew anything whatsoever of their value.

On rebuttal for the state, C. C. Wynn testified that he was district special sales representative of the Hughes Tool Company, that nobody other than the Hughes Tool Company reserved the right to re-tip such bits but they knew other persons were so doing; that he was familiar with the bits herein involved. They were what was called “green” bits, and still had a value of $40 or $50 each in his opinion.

The foregoing constitutes the basis for the defendant’s contentions. First, it is alleged that the court erred in failing to instruct the jury upon the offense of petit larceny predicated upon the testimony solely and only of Jack Cohen to the effect that the 9" rock bits would weigh 60 or 65 pounds each, and they were worth as junk about a cent a pound. Defendants estimate that the total weight of the bits involved would be about 1,170 pounds, or that as junk the amount involved would be about $11.70. Hence, they contend the trial court should have instructed the jury on their theory of petit larceny, even though they had not requested it so to do. The witness Cohen at no time saw.the bits herein involved or purported to testify relative to the value of the bits allegedly stolen by the defendants. It therefore appears that there wasi no competent evidence upon which to predicate an instruction relative to petit larceny. Witnesses on behalf of the state who had seen the bits testified they were of the value of from $40 to $60, and hence their combined value calculated upon the last figure of $40 would give them a value of not less than $720. There being no competent evidence upon which to predicate an instruction as to petit larceny there was therefore no reason to support the giving of the same by the trial court. The defendant did not request such an instruction. It was not error for the trial court to omit to instruct on every possible question presented by the defendants’ theory of the case when he has failed to request such instructions. Carpenter v. State, 56 Okla. Cr. 76, 33 P. 2d 637.

Next, the defendants contend that the court erred in giving instruction No. 6, reading as follows, to wit:

“In this case there being two defendants, Ben Lane and D. A. Thomason, both on trial, you are instructed that you may find both of the defendants guilty or you may find both of the defendants not guilty or you may find either one of the defendants guilty and the other defendant not guilty as you shall deem proper under the law and evidence.”

To the giving of the said instruction the defendants made no objection and reserved no exception. They now contend that the same is confusing. We have read the instruction. We do not find it confusing but find it to be plain and proper. In any event the defendants did not interpose an objection and save an exception to the instruction when given, which this court has repeatedly held must be done before it will consider the same on appeal, unless the instruction given is fundamentally erroneous. Green v. State, 70 Okla. Cr. 228, 105 P. 2d 795. In Storer v. State, 84 Okla. Cr. 176, 180 P. 2d 202, 209, this court went further and said the giving of an instruction will not be considered in the absence of exception thereto, unless it is so fundamentally erroneous as to mislead jury and thus deprive defendant of his constitutional right to a fair and impartial trial. And further said:

“If counsel for the defendant had not been satisfied with this instruction and had thought that additional instruction on the question should have been given, it was his duty to call the matter to the attention of the court by requested instruction. Merriott v. State, 18 Okla. Cr. 247, 194 P. 263; Dickson v. State, 26 Okla. Cr. 403, 224 P. 723.” Jarman v. State, 57 Okla. Cr. 226, 47 P. 2d 220.

See, also, Heatley v. Territory, 15 Okla. 72, 78 P. 79; Drury v. Territory, 9 Okla. 398, 60 P. 101; Glenny v. Territory, 15 Okla. 231, 79 P. 754. Such is the situation under this contention and the same is therefore without merit.

Further, the defendants contend that the court erred in admitting in evidence Exhibit A, the record kept by defendant Lane and found at the time of his arrest in Lane’s automobile. The defendants contend that that was an attempt to prejudice Lane and make it appear that the book showed Lane had been dealing in stolen property. An examination of the record itself in no way reflected upon defendant Lane. To the contrary, it was in keeping with the theory of his defense that he was engaged at the time of his arrest in the legitimate business of picking up bits for the purpose of having them re-tipped. Whatever prejudice accrued to Lane was not by virtue of the introduction of the record of accounts into the evidence, but accrued through his. confused and contradictory explanation of said items on cross-examination in relation thereto. It appears from the record he first admitted when confronted with the record .that some transactions disclosed he had been dealing in used bits. Then he contradicted himself by saying that the very items he pointed out as being in relation to used bits were for services rendered on the bits for re-tipping the same. Then he was confronted by the statement that he made to the assistant county attorney on August 9, 1947, wherein he admitted that the book contained a record of sales of some oil field equipment that “there was some of that in it all right” and “that was picked up as company operations, personal stuff”. Then further on he contended that all of the items were for services rendered in re-tipping operations. The defendants’ contention is based on the theory that the state offered said record book in an attempt to show the commission of other crimes. Certainly, it was not admissible for that purpose, and it was not so offered. It must be remembered that the witness took the stand in his own behalf and was being cross-examined by the state. The cross-examination was an attack upon his credibility. In this connection it has been repeatedly held by this court, as was said in Graham v. State, 28 Okla. Cr. 266, 230 P. 763, 767:

“The rule obtains in this jurisdiction that a defendant taking the Avitness stand and testifying in his own behalf, may be cross-examined the same as any other witness. He, like any other witness, may be asked questions pertaining to the matter at issue or that would go to his credibility as a witness. His cross-examination is not confined to a mere categorical review of the matters stated in the direct examination. He may be asked questions irrelevant and collateral to the issue for the purpose of testing his memory, affecting his credibility and the weight of his testimony. In Castleberry v. State, 10 Okla. Cr. 504, 139 P. 132, it is said: ‘The doctrine that a witness may be cross-examined as to matters going to credibility may well be regarded as an exception to the rule that cross-examination is to be con-’ fined to matters touched on in the examination in chief, and the limits within which either party may cross-examine upon matters not strictly relevant, but AVhich affect the credibility of the witness, is largely within the discretion of the trial court, but the privilege of degrading a witness by proof of disreputable conduct, not connected with the facts on trial, is one so liable to abuse that it should be closely guarded and allowed only upon the exercise of sound judicial discretion, and then only to affect the credibility of the witness.’ ”

To the same effect is Murphy v. State, 72 Okla. Cr. 1, 112 P. 2d 438. The cross-examination of the defendants in relation to the record account book taken from his car, and his explanation in relation thereto, was admissible in connection with the statement made to the county attorney, for the purpose of impeaching him on matters affecting his credibility. Davis v. State, 59 Okla. Cr. 26, 57 P. 2d 634. The witness’ explanation thereof being confused, contradictory and filled with discrepancies the record book was an essential part of the cross-examination and was properly admitted in evidence. Without the defendant’s confused and contradictory explanation of the record the same would have been in keeping with his theory of the defense herein imposed and highly beneficial to him. It is further contended, however, that the record account book was not admissible against the defendant Thomason, and that if admissible against Lane should have been limited by the trial court to him alone. This is undoubtedly the law in this regard. In Gonzalus v. State, 7 Okla. Cr. 444, 123 P. 705, it was said:

“Where two or more defendants are being jointly tried for the commission of an offense, and' any evidence is introduced which tends to prove the guilt of one of the defendants, and which is admissible for that purpose, but would not be admissible against the others, if they were separately tried, it is the duty of the trial court to admonish the jury that they should limit their consideration of such evidence as tending to prove the guilt of the defendant against whom it was admitted, but that they should not consider it as testimony against the other defendants.” Rogers v. State, 9 Okla. Cr. 277, 131 P. 941.

However, since this evidence was introduced for the purpose of impeaching Lane’s credibility only, it could not have affected Thomason.

“Only those persons can be heard to complain of an error in the ruling of a trial court who have been injured thereby.” Gonzalus v. State, supra.

Moreover, this contention comes too late since, no objection was raised at the time of trial on this ground, nor was there a request that the court limit the purpose of the admission of this evidence to defendant Lane.

Further the defendants contend that the court erred in commenting upon the evidence to the prejudice of the defendants in relation to the evidence of Mrs. Fitts. She stated that she was visiting in the Turner home on August 7, 1947. The county attorney asked if that was the date the 18 bits were taken from the Eevere lease and placed in the automobile and she answered “Yes”. Then counsel for the defendant objected as calling for a conclusion of the witness and asked that the same be stricken from the record, to which the court replied “the question is improper unless she says they were stolen and put in the car”. It is the defendants’ contention that the court in so stating was assuming in the presence of the jury that the bits had been stolen and that the statement of the trial court was a direct statement that the defendants had stolen the bits and put them in the car which nullified all of their defense. We do not so interpret the court’s remarks. But, in any event, the record discloses that no objection was interposed and no exception saved to the remarks of the court. The question is raised on appeal for the first time. In Bonner v. State, 23 Okla. Cr. 44, 212 P. 440, this court said:

“Only prejudicial errors raised by exceptions reserved, require a new trial, and it is only when we are satisfied that the verdict was contrary to law, or to the evidence, or that injustice has been done, that this court is permitted to reverse a conviction, whether or not an exception has been taken in the trial court.”

Under the conditions herewith presented the objection comes too late to be available to the defendants.

Finally the defendants question the sufficiency of the evidence to sustain the conviction. While the evidence is highly conflicting, this court has repeatedly held that where there is any evidence reasonably tending to support the findings of the jury, this court will not disturb the same on appeal. As was said in Queen v. State, 35 Okla. Cr. 412, 250 P. 935:

“The credibility of the witnesses and the weight and value to be given their testimony is within the exclusive province of the jury to determine, and the jury may believe the evidence of a single witness upon a question of fact and disbelieve several others testifying to the contrary.”

Such is the situation confronting this court herein. The jury believed Mr. Turner on the charge of larceny. It was their sole province to determine the facts. For all the foregoing reasons, the judgment and sentence herein is affirmed.

JONES, P. J., and POWELL, J., concur.


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    ADKINS v. STATE.
    No. A-11095.
    March 22, 1950.
    (216 P. 2d 360.)

      Homer Cowan, Norman, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant was convicted in the county court of Cleveland county of the crime of driving a motor vehicle on the public highway while under the influence of intoxicating liquor and was sentenced on March 25, 1948, to pay a fine of $250 and costs.

The Attorney General has filed a motion to dismiss the appeal for the reason it was not filed within 60 days after the judgment was rendered pursuant to the statutory proyisions. 22 O. S. 1941 § 1054.

The motion alleges that judgment was pronounced on March 25, 1948; that the case-made was served upon the county attorney on April 6, 1948; that said case-made was settled and signed by the county judge on May 18, 1948, on which date the case-made was attested and filed with the court clerk of said court and withdrawn at that time for the purpose of filing the same in the Criminal Court of Appeals. That the petition in error with case-made attached was filed in the Criminal Court of Appeals on July 15, 1948, which was inore than 60 days from the date the judgment and sentence was . rendered, and that no order was ever made by the trial court extending the time in which said appeal could be filed in this court.

Said motion to dismiss appeal was set for bearing and notice given to counsel. At tbe time of said bearing no appearance was made to contest said motion and no response to said motion bas been filed.

We have examined tbe record and tbe facts alleged in the motion to dismiss are sustained by tbe record. In Butler v. State, 83 Okla. Cr. 105, 173 P. 2d 453, tbe law pertaining to this case is stated as follows:

“Where defendant bad 60 days to perfect bis appeal, and tbe case-made was signed and settled prior to that time, it is required that tbe same be filed in this court within tbe 60 day period, where no further extension of time bas been granted.
“Where tbe case-made has not been filed within tbe time prescribed by law, this court does not acquire jurisdiction, and the appeal will be dismissed on motion”.

For the reasons above stated, the motion to dismiss the appeal is sustained and tbe appeal is dismissed.

BRETT and POWELL, JJ., concur.


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    TAYLOR v. STATE.
    No. A-11073.
    March 22, 1950.
    (216 P. 2d 362.)

      B. O. Swimmer, Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Lloyd Albert Taylor, was charged in the court of common pleas of Oklahoma county, with the unlawful possession of intoxicating liquor, was tried, convicted, and sentenced to serve 30 days in the county jail, pay a fine of $50 and costs, and has appealed.

Douglas Brown, a policeman of Oklahoma City, was the only witness who testified in the case. He testified that on September 13, 1947, while walking hisi beat, near the 900 block on Northeast Fourth street, in Oklahoma City, he 'saw the defendant stop his automobile in the alley. It was early in the morning, about 8 o’clock; that as he walked by the automobile, he saw the defendant set two cases of whisky on the ground, and saw him take one of them into the house; that he talked to defendant about the whisky and the defendant said it was his, whereupon he arrested defendant and took him and the whis-ky to the police station.

On cross-examination, the following question was asked by counsel for defendant, “Did you have a legal and lawful search warrant at the time you made the arrest?” Objection was made to the question, and the objection was sustained. Counsel for defendant then offered to show by the witness that he had no lawful search warrant on which to predicate the search and seizure, to which offer an objection was sustained and an exception allowed to the defendant.

The contention of defendant that the evidence is insufficient to sustain the conviction is without merit.

It is further contended that the court erred in sustaining an objection to the offer to prove that the search was made without a warrant. The record discloses that at the time the case was called for trial, counsel for defendant filed a motion to suppress the evidence on the ground that the search and seizure was in violation of the constitutional rights of the accused.

The record shows that after three witnesses had testified in connection with the motion to suppress the evidence, counsel for defendant withdrew his motion. The testimony of the three witnesses is not shown in the record, but since counsel withdrew his motion, they evidently had convinced him that the search was legal.

In the direct testimony of the officer, he testified at length without objection concerning his observation of the accused and the arrest of accused, and the seizure of the whisky. Since no objection was interposed to the testimony of the officer concerning the seizure of the whisky, it may not be later urged that the search was invalid.

The question of the validity of the search is a question of law for the determination of the court, and not a question of fact for the jury. By numerous decisions of this court, it has become well settled that objection to evidence obtained by illegal search and seizure must be interposed at the first opportunity presented. Such objection should be made either at the beginning of the trial by a motion to suppress or reject such evidence or in the course of the examination as soon as it becomes apparent that the state will rely upon it. Otherwise, defendant waives his right to be heard on this question. Gragg v. State, 72 Okla. Cr. 189, 114 P. 2d 491; Rosser v. State, 55 Okla. Cr. 185, 189, 26 P. 2d 769; Brooks v. State, 32 Okla. Cr. 75, 240 P. 138; Fields v. State, 31 Okla. Cr. 121, 236 P. 633.

The case is affirmed.

BEETT and POWELL, JJ., concur.


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    CARTER v. STATE.
    No. A-11175.
    March 29, 1950.
    (216 P. 2d 594.)
    Elmore A. Page, Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   POWELL, J.

Plaintiff in error, Ovid Franklin Carter, has appealed to this court from a judgment and sentence of the district court of Oklahoma county, made and entered on the 21st day of May, 1948, wherein he was found guilty of the crime of burglary in the second degree, after former conviction of a felony, and sentenced to a term of 10 years in the State Penitentiary at McAlester.

The Attorney General has filed a motion to dismiss the appeal based on the fact that said appeal was not taken within six months from the date on which the judgment ivas rendered.

Tit. 22 O. S. A. § 1054, provides:

“ * * * In felony cases the appeal must be taken within six months after the judgment is rendered, and a transcript in both felony and misdemeanor cases must be filed as hereinafter directed.”

The petition in error, attached to which was the case-made, was not filed in this court until six months and three days from and after the day on which said judgment and sentence was made and entered, and, therefore, the appeal was not lodged in this court within six months after the judgment of conviction was rendered. See Smith v. State, 20 Okla. Cr. 123, 201 P. 661, Johnson v. State, 70 Okla. Cr. 322, 106 P. 2d 126; Wyatt v. State, 81 Okla. Cr. 248, 162 P. 2d 884.

Counsel for plaintiff in error has filed a response to the Attorney General’s motion, and sets out that he placed said petition in error and case-made in the United States postoffice, Tulsa, Okla., in sufficient time prior to expiration of the six months for it to have reached this court, but was unable to show what date he actually mailed said petition in error and case-made. It is undisputed that said petition and record did not reach the office of tbe Clerk of this court until three days after the expiration of the six month period.

This question was before this court in Cannady v. State, 6 Okla. Cr. 634, 117 P. 653, and it was held that a delay caused by miscarriage of matter sent by mail is at the peril of counsel, since the law makes no provision for such delay.

Therefore, it is ordered that the purported appeal be and the same is hereby dismissed.

JONES, P. J., and BRETT, J., concur.


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    BYRD v. STATE.
    No. A-11089.
    March 29, 1950.
    (216 P. 2d 596.)

      Wimbish & Wimbish, Ada, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Annie Byrd, was charged in the county court of Pontotoc county, with the unlawful possession of intoxicating liquor, was tried, convicted, and sentenced to serve 30 days in the county jail, and pay a fine of $50 and costs, and has appealed.

The proof of the state showed that four officers of Pontotoc county, including the Chief of Police of the city of Ada, armed with a search warrant, went to the premises occupied by the defendant, and after a search found 18 pint bottles of whisky in a wardrobe closet with a false bottom. No evidence was offered on behalf of defendant.

It is first contended that the search was in violation of the constitutional rights of the accused. Before the commencement of the trial, a motion to suppress the evidence because of the alleged illegality of the search was filed by counsel for defendant. The record does not disclose that any evidence was introduced in support of the motion, but merely shows that it was overruled with an exception allowed to the defendant.

In the brief of defendant it is stated:

“There was no proof that the affidavit to obtain the search warrant was sufficient under the law; there was no proof as to what officer, if any, the warrant was directed; no proof that any copy of said search warrant was ever served on defendant, and therefore the search was unlawful.”

The burden is upon one alleging the invalidity of a search to introduce evidence to show that the search was invalid. Staley v. State, 73 Okla. Cr. 355, 121 P. 2d 324.

The officers testified that they had a search warrant. However, the search warrant was never introduced in evidence. Neither was the affidavit for the search warrant introduced in evidence. If these instruments were legally insufficient, counsel for defendant should have introduced them as evidence in support of his motion as the burden was upon defendant to sustain the allegations of the motion to suppress evidence. There is an entire absence of evidence in the record which would justify us in concluding that the search was unlawful.

It is also contended that the court erred in allowing the county attorney to ask the following questions:

“Q. Based on your information of that being a place of public resort, do you know what the reputation of that place is with reference to being a place where the liquor is sold and kept? A. Yes, sir. Q. What is it? A. A place for selling whisky. Q. And that was prior to the 11th day of February of this year? A. Yes, sir.”

It is established law that in a prosecution for illegal possession of intoxicating liquor with intent to sell, the state after making a proper showing that the home of the accused was a place of public resort, may then introduce evidence of the general reputation of the home of accused as a place where intoxicating liquors are sold. This evidence is admissible as an aid in determining the intent with which the liquors are possessed. Rainey v. State, 71 Okla. Cr. 1, 107 P. 2d 371; Thomas v. State, 70 Okla. Cr. 404, 106 P. 2d 836; Lotta v. State, 30 Okla. Cr. 105, 235 P. 245.

The county attorney laid the proper predicate and this evidence was properly admitted.

In addition to that, it is well to observe that the jury only assessed the minimum punishment. The officers found 18 pints of whisky concealed in a false bottom of a clothes closet. There was no defense offered at the trial. Under the circumstances, the defendant has no cause for complaint about the admission of this evidence. The judgment and sentence of the county court of Pontotoc county is affirmed.

BRETT and POWELL, JJ., concur.