text:
    W. T. GAMBILL v. STATE.
    No. A-6942.
    Opinion Filed Nov. 30, 1929.
    (283 Pac. 262.)

      E. E. Ammons, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of McIntosh county on a charge of having possession of intoxicating liquor, and his punishment fixed at a fine of $50 and confinement in the county jail for a period of 30 days.

The evidence offered by the state was that John Kidd, a deputy sheriff in McIntosh county, had been notified that the defendant was drunk on the highway near the town of Hitchita in said county; that witness found the defendant drunk under a bridge and arrested him; that defendant said he had some valuable papers in a suitcase in his car standing on the highway near the bridge which he wanted to get; that witness went with the defendant to the car, and there found two one-half gallon jars of whisky. The finding of the whisky was corroborated by the witness J. W. Sampson. The state filed an information against the defendant charging him in the first count with unlawfully transporting the liquor and in the second count with the unlawful possession of the same with intent to barter, sell, or give away the same. When the state rested, the defendant moved the court to require the state to elect upon which count it would rely lor a conviction. The state elected to stand on the second count. The defendant offered no evidence.

The defendant complains that the search and seizure was unlawful for the reason that the officer had no search warrant. In the case of Martin v. State, 43 Okla. Cr. 273, 277 Pac. 950, this court said:

“A peace officer, without a warrant, may arrest a person for any violation of the prohibitory liquor law committed in his presence, and may seize any intoxicating liquor in the possession or immediate presence of the person arrested.” See, also, Berg v. State, 29 Okla. Cr. 112, 233 Pac. 497; Washington v. State, 37 Okla. Cr. 415, 259 Pac. 150; Callahan v. State, 42 Okla. Cr. 425, 276 Pac. 494.

In the case at bar, the officer having arrested the defendant for an offense committed in his presence, he had a legal right to search the person of the defendant and the immediate surroundings, and the evidence obtained by such search was properly admitted by the trial court.

The evidence being sufficient to support the verdict of the jury, the cause is affirmed.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    G. G. SLAYTON v. STATE.
    No. A-7120.
    Opinion Filed Nov. 30, 1929.
    (283 Pac. 258.)
    Mounts & Chamberlin, for plaintiff in error.

      J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Tillman county on a charge of transporting whisky, and was sentenced to pay a fine of $50 and to serve 80 days in the county jail.

The information charges that defendant transported about one pint of whisky from some point unknown to another point in Tillman county. Only one witness was called for the state. He testified that at the time charged he saw a bottle fall out of the car in which defendant and a negro were riding. The defendant testified that he was driving along the highway and overtook the negro walking and gave him a lift in his car; that he had no whisky, and did not know that the negro had any. Defendant proved good character by a number of reputable citizens. The evidence is not of that conclusive character required to sustain a conviction.

The case is reversed.


author: EDWARDS, P. J.

text:
    E. C. SNOW v. STATE.
    No. A-7117.
    Opinion Filed Nov. 30, 1929.
    (283 Pac. 259.)

      Kummons & Hughes, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kiowa county on a charge of furnishing intoxicating liquors to a minor, and was sentenced to pay a fine of $250 and to serve 30 days in the county jail.

The information as filed in the county court charged that

“* * * E. O. Snow then and there being, did then and there unlawfully, wilfully, and without authority of law furnish intoxicating liquors to Wilbur Lester, a minor, the said Wilbur Lester then and there being of the age of 18 years old.”

Both the state and 'defendant announced ready for trial, and a jury was impaneled. The state then asked leave to strike from the information “the word ‘minor’ and the statement that the said Wilbur-Lester was then and there being of the age of eighteen.” Defendant objected that the amendment would constitute a material change in the charge; that the court had no jurisdiction to hear and determine the case; that defendant was not ready for trial under the information as amended; that defendant had not been arraigned thereon and had no opportunity to plead thereto. The court ordered the amendment made, but the record discloses it was not in fact made, and the information in the record is as above quoted. No briefs have been filed. If the allegation that defendant “did * * * furnish” intoxicating liquor is sufficient to charge any offense, the information in the first instance charged a felony under section 6996—7, Comp. St. 1921. The county court in which it was filed had no jurisdiction of the offense unless the information should be treated as a complaint, and then its jurisdiction would be to conduct a preliminary examination only. Unless the information was actually amended, the county .court had no jurisdiction to put defendant on trial. If the amendment should be considered as having been made, it changed the nature of the offense. In such case defendant should have been arraigned thereon. The jury impaneled before the amendment of the information, actual or constructive, was impaneled by a court without jurisdiction. The error here is fundamental. The procedure cannot be sustained.

The case is reversed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    J. G. LOVE v. STATE.
    No. A-7260.
    Opinion Filed Nov. 30, 1929.
    (283 Pac. 259.)
    Whiteside & Snodgrass, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Jackson county on a charge of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $50 and to be confined in the county jail for a term of 30 days. The case was tried in September, 1928, and the appeal lodged in this court in July, 1928.

Where an appeal is prosecuted to this court, and no brief in support of the petition in error is submitted, and no appearance for oral argument made, this court will examine the record for jurisdictional errors and will read the evidence to ascertain if it reasonably supports the judgment, and if no fundamental error is apparent, and the evidence is sufficient, the case will be affirmed.

We have examined the record and find that the evidence fully sustains the verdict and judgment. No jurisdictional error is apparent.

The case is affirmed.


author: CHAPPELL, J.

text:
    WALTER MALONE v. STATE.
    No. A-6872.
    Opinion Filed Nov. 30. 1929.
    (283 Pac. 255.)
    Rummons & Hughes, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kiowa county on a charge of having unlawful possession of a whisky still, and his punishment fixed at a fine of $100 and confinement in the county jail for a period of 30 days.

The facts, briefly stated, disclose that three deputy sheriffs of Kiowa county, some time prior to the trial, went to the place where the defendant was then residing upon an Indian lease, armed with a search warrant for the residence and premises of the defendant; that they searched his residence and found a quart of whisky and some fruit jars that had been used for whisky and found a still away from the house. The still was four feet long and two feet across—about a 30-gallon still with the top attached to it. There had been a fire under the still, but the officers could not tell how recently the same had been used.

The defendant assigns 6 grounds of error, all of which go to the sufficiency of the evidence and to the admission of the same, or to the error of the court in overruling the motion for a directed verdict in favor of the defendant and the overruling of the motion for new trial. The defendant really presents but one question, the sufficiency of the evidence. There is no dispute about the finding of the still or the fact that it was located on the premises of the defendant nor of the finding of the liquor. The search of the premises having been made on the same day under the same warrant, the state elected to prosecute the defendant for the possession of a still rather than for the possession of liquor.

This court has so often held that, where there is any competent evidence in the record supporting the verdict of the jury, the cause will not be reversed for insufficient evidence, it is unnecessary to cite authorities.

There being sufficient evidence in the record to support the verdict of the jury, the cause is affirmed.


author: DAVENPORT, J.

text:
    JOHN WHITE v. STATE.
    No. A-6933.
    Opinion Filed Nov. 30, 1929.
    (283 Pac. 581.)
    N. S. Corn, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was sentenced to the reformatory at Granite, Okla., for three years, and has appealed by trans-script, upon the following agreed statements of facts, omitting the caption:

“Stipulation.
“It is hereby agreed and stipulated by and between S. B. Laune, county attorney in and for said county and state, and N. S. Com, attorney for the defendant, John White, in above numbered and styled cause of action, that the following statements, as hereinafter set forth shall be submitted to the court and the said cause above numbered and styled shall be tried, heard and passed upon according to said agreement and stipulation.
“Agreed Statement of Facts.
“That the defendant, John White, was charged on the 5th day of June, A. D. 1925, with the crime of forgery, by information in the district court of Woodward county, Oklahoma, and that on the 14 day of Sept. A. D. 1925, the said defendant appeared in open court and entered a plea of guilty to said charge, and was thereupon required to pay the costs, pay the prosecuting witness the sum of $15.00, the amount of the forged check and was then and there paroled without judgment and sentence being passed upon him and released on his own recognizance without further judgment and sentence being passed, without requiring the defendant to make any report to the court at any subsequent date and without setting any date for further judgment and sentence.
“On the 17th day of December, A. D. 1927, the court issued an alias bench warrant and cited the defendant to appear before the court on the 2nd day of January, A. D. 1928, for the purpose of having judgment and sentence passed upon him.
“Dated and signed, this the 9th day of January, A. D. 1928. S. B. Laune, County Attorney of Woodward County, Oklahoma. N. S. Corn, Attorney for the Defendant.”

As shown by the agreed statement of facts, the defendant, on the 14th day of September, 1925, entered his plea of -guilty to the charge of forgery, and was required by the court to pay the costs, and to pay the prosecuting witness the sum of $15, and paroled without judgment and sentence on his own recognizance, without requiring the defendant to make any report to the court at any subsequent time and without fixing any date in the future for judgment and sentence.

It further appears that on the 27th day of December, 1927, the court issued an alias bench warrant, and cited the defendant to appear on the 2d day of January, 1928, for the purpose of having judgment and sentence passed upon him. On the 2d day of January, 1928, the defendant appeared and objected to the jurisdiction of the court on the ground that the court had lost its jurisdiction, it having been more than two years since his plea of guilty was entered and he paid the prosecuting witness the $15 and the costs to the court, the court having permitted him to go without day, not fixing any time for sentence or any requirement for the defendant to appear in court.

The objection of the defendant to the court in passing sentence upon him at the time it did was well taken. Following the rule laid down in Collins v. State, 24 Okla. Cr. 117, 217 Pac. 896, we hold that, in view of the length of time elapsing between the plea of guilty entered by the defendant, which was more than two years, and the failure of the court to enter judgment at the time appointed or at any succeeding term and as no definite time was fixed in which the defendant should appear for sentence, the prosecution was abandoned and the court was ■without jurisdiction to pronounce the judgment and sentence.

For the reason stated, the judgment of the district court is reversed, with directions to discharge the defendant.

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


text:
    JACK COLLINS et al. v. STATE.
    No. A-7151.
    Opinion Filed Nov. 30, 1929.
    (283 Pac. 579.)
    Sam S. Gill, for plaintiffs in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Oklahoma county on April 30, 1928, on a charge of maintaining a public nuisance, and each sentenced to pay a fine of $50 and to be confined in the county jail for a period of 30 days. The appeal was lodged in this court August 23, 1928.

Where an appeal is prosecuted to this court and no brief in support of the petition in error is submitted and no appearance for oral argument made, this court will examine the record for jurisdictional errors, and will read the evidence to ascertain if it reasonably supports the judgment, and, if no fundamental error is apparent and the evidence is sufficient, the case will be affirmed.

We have examined the record, and find that the evidence fully sustains the verdict and judgment. No jurisdictional error is apparent.

The case is affirmed.


text:
    Ex parte ED KITCHENS.
    No. A-7661.
    Opinion Filed Nov. 30, 1929.
    (282 Pac. 1114.)
    P. B. Grant, for petitioner.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for respondent.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus. Petitioner alleges that he is unlawfully restrained by the sheriff of Kiowa county.

It appears from the petition and the evidence, and exhibits before the court that before a justice of. the peace of Kiowa county, petitioner was adjudged guilty of a misdemeanor and was sentenced to pay a fine of $1 and costs; that petitioner has served 41 days in the county jail of Kiowa county; that illegal items of costs have been charged in said case; and that the justice of the peace who rendered the judgment is no longer in office and hi¡3 successor is unable and refuses to retax the costs. A rule to show cause was issued to which no response has been made. It is well settled that where an officer neglects to show why he is holding a petitioner, the petitioner may be discharged. Ex parte Pruitt, 31 Okla. Cr. 294, 238 Pac. 503. See, also, Ex parte Wood, 58 Okla. 278, 159 Pac. 483; Ex parte Self, 29 Okla. Cr. 345, 233 Pac. 783.

The writ is awarded, and petitioner discharged.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    D. M. SMITH v. STATE.
    No. A-6959.
    Opinion Filed Dec. 7, 1929.
    (283 Pac. 270.)
    L. F. Robertson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Woodward county on a charge of driving an automobile while under the influence of intoxicating liquor, and was sentenced to serve a term of one year in the state penitentiary.

The record discloses that, at the time charged, the defendant, while operating an automobile, had a collision with another car, and in some 20 or 30 minutes was arrested as being under the influence of intoxicating liquor at the time of the collision.

It is first argued that the evidence is not sufficient to sustain the judgment. This contention is untenable. Several witnesses testified that defendant was intoxicated; that he staggered, was unable to walk straight, and, when taken to the jail, created a disturbance. Defendant testified that immediately after the collision one of the parties in the car with him informed him that he had a pint of liquor, and that they stepped behind a building and defendant drank about two-thirds of it, and that it was the effect of this whisky that was observed by the witnesses. This presents a question of fact which the jury had decided adversely to defendant. The evidence of the state preponderates decidedly. Following the well-settled rule, the verdict of the jury on this point will not be disturbed. Parks v. State, 18 Okla. Cr. 277, 194 Pac. 281; Underwood v. State, 36 Okla. Cr. 21, 251 Pac. 508; Mayse v. State, 38 Okla. Cr. 144, 259 Pac. 277.

The only other question argued is that the county attorney was guilty of misconduct in his argument to the jury. Several objections were made by counsel for defendant during the closing argument of the county attorney. The court ruled correctly on these objections, in. some instances sustaining and in some overruling them. We find nothing inflammatory in the argument which was calculated to prejudicially affect the verdict. Spann v. State, 19 Okla. Cr. 9, 197 P. 531; Tapedo v. State, 34 Okla. Cr. 165, 245 Pac. 897.

The case is affirmed.

DAVENPORT, J., concurs.

CHAPPELL, J., absent, not participating.


text:
    Ex parte L. M. MILES.
    No. A-7524.
    Opinion Filed Dec. 7, 1929.
    (283 Pac. 268.)
    Baymond Barry and S. A. Horton ,for petitioner.
    J. Berry King, Atty. Gen., and Smith G. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The petitioner herein pleaded guilty in the district court of Harmon county to a charge of burglary and was sentenced to serve a term of two years in the state penitentiary.

On the 3rd day of September, 1929, petitioner filed his application for writ of habeas corpus upon the ground that the judgment and sentence of the court recited that petitioner entered his plea of guilty to the crime of burglary in the second degree, and that thereafter on the 25th day of February, 1929, he was sentenced for the crime of grand larceny, and that said judgment and sentence was void for the reason that the defendant was charged with the crime of burglary and sentenced by the court for another and different crime, to wit, that of grand larceny. Thereafter on the 19th day of September, 1929, the state presented its application to Hon. Frank Matthews, Judge of the District Court of Harmon County, who had pronounced the original judgment in said cause, asking said court to correct the minutes of the court and its journal of judgment in the original proceeding had in said cause, to speak the truth. Thereupon said court proceeded to hear said application, and upon said hearing made its finding of fact that the petitioner, L. M. Miles, entered his plea of guilty to the crime of burglary, and that it was the court’s intention at the time to show in the journal entry of judgment that the petitioner entered his plea of guilty to the offense of burglary and judgment was pronounced by the court against the petitioner for the crime of burglary, but by mistake the crime of grand larceny was inserted therein instead of the crime of burglary.

Thereupon the court granted the county attorney’s motion to amend the journal entry of judgment to speak the facts, by inserting therein that the defendant entered his plea of guilty to the crime of burglary and not to the crime of grand larceny. Thereupon the court made his order directing the proceedings to be corrected to speak the truth.

The defendant contends that the court was without authority to hear said application and correct such judgment, for the reason that the defendant pleaded guilty to one crime and was sentenced for another crime, and the judgment was therefore void.

This court, in the case of Ex parte Payton, 45 Okla. Cr. 1, 281 Pac. 597, 598, said:

“This court has repeatedly held that the court has the power to make any alteration or correction which is necessary to make its record speak the truth. State v. Pollock, 5 Okla. Cr. 28, 113 Pac. 207; Dunn v. State, 18 Okla. Cr. 493, 196 Pac. 739; Cornelson v. State, 37 Okla. Cr. 338, 257 Pac. 1109. In the case of Ex parte Howland, 3 Okla. Cr. 142, 104 Pac. 927, Ann. Cas. 1912A, 840, this court held that, where a defendant is tried, convicted, and sentenced to imprisonment, but by error of the court the judgment is not entire on the record of the clerk, the error may be corrected at any time by an order nunc pro tunc. In the case of Dunn v. State, 18 Okla. Cr. 493, 196 Pac. 739, in paragraph 4 of the syllabus, this court said: ‘A criminal case is pending, in the sense that a court may correct its records, until the judgment is fully satisfied’.”

It appears from the record in the case at bar that the judgment was duly entered upon a plea of guilty of the defendant, but that by a clerical error of the clerk of the court the journal entry was made to read that the defendant was guilty of the crime of grand larceny, when in truth and in fact he pleaded guilty to the crime of burglary. There can be no doubt that the court possessed the power to correct its journal to speak the truth.

For the reasons stated, the writ is denied.

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


text:
    E. S. WRIGHT v. STATE.
    No. A-6946.
    Opinion Filed Dec. 7, 1929.
    (283 Pac. 260.)
    Garrett & Jeter and Guy Horton, for plaintiff in error.

      J. Berry King, Atty. Gen., and Smith O. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was tried upon an information charging him with murder, and found guilty of manslaughter, and his punishment fixed at five years in the penitentiary. Motion for new trial was filed, considered, and overruled, and exceptions saved, and the defendant has appealed his case to this court.

E. L. Wilson, called as a witness by the state, testified in substance:

“I lived at Fletcher, Oklahoma, on the 22d and 23d of March, 1927; I was living on the E. S. Wright place north of Duke, in this county; I was acquainted with Mart Nelson, and with E. S.- Wright, this defendant; the Nelson farm parallels the Wright farm, a section line running between them; the Nelson home is a little better than a quarter of a mile from the corner of the highway.”

Witness produced a plat of the land of the two parties showing where their homes were located. Witness further testified there was no obstruction between the Nelson and Wright places:

“The Nelson house is on a general rise, a little higher than the Wright place; there are no trees between the two houses, except some trees in the Nelson yard. Mr. Wright came home on the 22d day of March, 1927, about noon, with his stepfather, Mr. Barrett; I had some conversation with him; I don’t know whether I talked to Mr. Barrett or not; Mr. Wright did not remain at home during the afternoon; he left about 1 or 1:30, and said he was going after a corn planter about six or seven miles south of Duke; Mr. Wright returned about 10 o’clock that night.”

On cross-examination he explained why he and Mr. Barrett went to meet son and Mr. Wright that night, saying:

“I was uneasy about them being out with the team; my uneasiness had nothing to do with the Nelson trouble; Mr. Wright was selling his chickens and things preparatory to moving away from the place where he was living; I left the Wright place the next morning about a half to three-quarters of an hour after sunrise; I had no occasion to go to the barn to know anything about his team; all the stock that was on the place was Mr. Wright’s.”

Mrs. Jessie Nelson testified for the state, in substance:

“I am the widow of Mart Nelson; I live about fifteen miles southwest of Mangum, near the farm owned by Mr. Wright; vour place was located on the northeast corner of the section; Mr. Wright’s land is across the section liné east of ours; our house was about a quarter of a mile south from the northeast corner of the land, a little west of the road running north and south; you can see our house from the Wright home, and from the Wright home you can see our place; it is in plain view only when the weeds are grown up; it is kindly rolling from our house south; my husband was forty-five years of age; we have four girls and three boys. The Jasper Nelson farm is a mile east from our place; my husband 'had been working, this farm, going back and forth in a wagon; when I learned of my husband’s death I went to where his body was, a quarter of a mile north and a mile and nearly a quarter west of our house, on the west road north of our home; my husband.was dead before I got to where he was.”

On cross-examination witness stated she had a suit pending against Mr. Wright, suing him for damages for killing her husband.

“When I got to where my husband was Joe Nelson was there; I could not say who else was there.”

The evidence on behalf of the state further shows that the deceased was shot in the left side of the head; that his team ran the distance of about a mile before it stopped. An automobile, in which the defendant was riding, followed the team the entire distance, and then circled around the wagon; the testimony tending to show that the defendant shot the deceased again. The testimony further shows that two witnesses who were traveling along this particular highway running east and west were stopped by the defendant, who was carrying a shotgun and which he pointed at them, and told them not to go any further west along the road, as he had shot a man down that way; that the body of the deceased was found about twelve feet from his wagon; the horses he was driving were hitched to a fence on the south side of the road, and one of the two horses that was following the wagon was still tied to the rear part of the wagon. This is in substance the testimony introduced on behalf of the state.

The defendant admits the killing; his defense is a combined defense of insanity and self-defense. Insanity superseded by brooding over the fact that the deceased had broken up his home, and self-defense on the assumption that, at the time the defendant shot the deceased, the deceased was making a move as if to assault the defendant with some kind of weapon which the defendant did not see. The defendant contends that he started out that morning to get a wagon sheet that he had left at a neighbor’s place; that the neighbor lived about two and a half miles northwest of his house, and that in reaching the neighbor’s place it was necessary to go on the road by the deceased’s house; that he had had some trouble with the deceased, and had been informed that the deceased had threatened his life, and that on this morning the defendant took his shotgun and revolver with him for his necessary self-protection.

It is further contended by the defendant that, as he approached the wagon of. the deceased, the driver of the car in which he was riding honked his horn for the deceased, who was driving a wagon, to give them the right of way to pass. When they started to pass the wagon, the deceased looked around and saw the defendant in the automobile, and made a move as if to draw a gun; and thereupon the defendant jumped out of the automobile and shot the deceased. This shot caused the team to run away. He afterwards got in the automobile, but does not remember anything from that time on until the time of his arrest some three or four hours later.

On cross-examination the defendant testified that after the first shot was fired he does not remember what he did or what took place until his arrest several hours after the shooting. Other testimony was introduced by the defendant tending to show that he had brooded considerably over the fact that the deceased, Mart Nelson, had broken up his home and caused a separation between the defendant and his wife. The defendant also introduced some testimony to the effect that the deceased was carrying a gun, and, when asked why, said there was a certain man who was mad at him over a woman and had threatened to take his life.

There are many pages in the record that are immaterial to the issues in this case. We think reference has been made to all the testimony necessary or material to properly decide this case. It is admitted the defendant fired the shot that took the life of the deceased, Mart Nelson.

The defendant has assigned six errors alleged to have been committed by the trial court: First, the overruling of his motion for a new trial; second, error of the court in giving instruction No. 24; third, error of the court in giving instruction No. 31; fourth, error of the court in admitting incompetent evidence on the part of the state; fifth, error of the court in refusing and ruling out competent and legal evidence of the defendant; and sixth, because the verdict and judgment is contrary to the law and the evidence. All of the errors assigned by the defendant in this case may properly be considered under the first assignment, as they all relate to the action of the court in overruling his motion for a new trigl, which includes the instructions of the jury as to the law. The defendant contends that the court erred in giving instructions Nos. 24 and 31. The entire brief of counsel for the defendant is directed to the alleged error of the trial court in giving its instructions, which he contends are misleading and contradict each other to such an extent as to prejudice this defendant’s right of self-defense.

It is urged by the defendant that the court erred in giving instruction No. 24, stating the circumstances under which the defendant would be guilty of manslaughter, and the court included within said instruction the exception, insanity, by reason of which the defendant could not have been guilty of said crime; that it was also incumbent upon the court to insert as a part of said paragraph the other exception of self-defense, which constituted one of the defenses interposed by the defendant in this case.

A careful study of instruction No. 24 discloses that the court was attempting to impress upon the jury that, although they may believe the killing to have occurred under such circumstances as to make the case one of murder or manslaughter, yet if the jury believed the defendant was insane they could not convict him. The main question in this case is the question of whether or not the defendant at the time he fired the fatal shot that took the life of the deceased was in danger of receiving great bodily harm or losing his life at the hands of the deceased. This question, we hold, was submitted to the jury in the instructions of the court. While they may not be as explicit as they should have been in one paragraph of the instructions, yet, taking the instructions in their entirety, the court correctly declared the law upon the question of defense, on insanity as well as upon the question of necessary self-defense. Under the evidence in this case there is not a sufficient showing on the question of the defendant’s insanity, to the extent that he was unable to distinguish between right and wrong at the time of the commission of the offense, and we hold that under the evidence in this ease that the court was unusually fair, to the defendant in the giving of the instructions on the question that, if the jury found the defendant was insane at the time he fired the fatal shot, they should acquit him. There is no showing whatever on the question of the defendant’s insanity; that he was unable to distinguish between right and wrong at the time he fired the fatal shot. McNeill v. State, 18 Okla. Cr. 1, 192 Pac. 256; Roe v. State, 17 Okla. Cr. 589, 191 P. 1048.

Upon the question of self-defense, the evidence is not contradicted that the defendant left his home with both a shotgun and revolver, and that, when he overtook the deceased on the highway, he voluntarily entered into this difficulty. A careful reading of his own testimony discloses that it was a difficulty that he was anticipating, and he had reason to believe would result in the use of deadly weapons.

The two defenses of the defendant, that is, insanity and self-defense, were fully covered by the court in his instructions. This court has repeatedly held that instructions to the jury should be considered together, and, if they embrace the law of the case, though one of them, when considered separately, does not clearly state the law, the conviction will not be reversed, unless it should appear from the whole record that it was prejudicial to the rights of the defendant. Smith v. State, 14 Okla. Cr. 1, 166 Pac. 753; Brister v. State, 35 Okla. Cr. 319, 250 Pac. 442.

It has also been held by this court in several cases that, where the verdict clearly sustained the evidence, a new trial would not be granted for slight inaccuracies in instructions, if the general instructions, taken in their entirety, correctly stated the law. Colbert v. State, 4 Okla. Cr. 500, 113 Pac. 558; Johns v. State, 8 Okla. Cr. 585, 129 Pac. 451; McCarthy v. State, 21 Okla. Cr. 365, 207 Pac. 1069.

From a careful reading, and study of the entire record in this case, we hold that the defendant was accorded a fair and impartial trial; that the evidence was sufficient to justify the court in submitting the case to the jury, and that the instructions of the court, considered together, correctly stated the law; that there were no fundamental or prejudicial errors committed.

The judgment is affirmed.

EDWABDS, P. J., concurs.

CHAPPELL, J., absent, not participating.


text:
    E. B. HEINZMAN v. STATE.
    No. A-6948.
    Opinion Filed Dec. 7, 1929.
    (283 Pac. 264.)

      William H. Lewis, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county on a charge of having the illegal possession of narcotics, and his punishment fixed at a fine of $500.

The record discloses that at the time charged John Davis, a police officer of Oklahoma City, approached defendant where he was sitting in a barber shop and said to him, “Get up, Heinzman, I want you,” and as defendant arose the officer reached into his shirt pocket and took out a jar of opium. The record further discloses that just a few minutes before this Davis had been informed that defendant had a package of opium which he was attempting to sell, and defendant was pointed out to him by the person to whom he had attempted to make the sale. The contention is made that this evidence was not competent, as it Avas procured by an unreasonable search of the person of defendant.

It is further contended that the officer did not in fact make an arrest before searching defendant, and that even if he attempted to arrest defendant, he did not inform the defendant of his authority, and that his act, therefore, was illegal.

Section 2471, Comp. St. 1921, sets oiit the right of a peace officer to arrest without a warrant, as follows:

“A peace officer may, without a warrant, arrest a person:
“First. For a public offense, committed or attempted' in his presence.
“Second. When the person arrested has committed a felony, although not in his presence.
“Third. When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.”

Section 2474, Comp. St. 1921, provides:

“When arresting a person without a warrant, the officer must inform him of his authority and the cause of the arrest, except when he is in actual commission of a public offense, or is pursued immediately after an escape.”

There is a wide distinction between the right to arrest without a warrant in felony and in misdemeanor cases. The laAv recognizes a greater urgency in felony cases. Thus an. officer does not have a right to arrest without a warrant for a misdemeanor not committed in his presence, but contemplates that he shall procure a warrant before making the arrest. Where a felony has been committed, however, though not in the presence of the officer, he may arrest without a warrant, or where a felony has been committed and the officer has reasonable cause for believing the person arrested to have committed it, or upon a charge based upon reasonable cause of the commission of a felony. Gaines v. State, 28 Okla. Cr. 353, 230 Pac. 946.

After an arrest the search of the person is, of course, legal. No particular form of words is necessary to constitute an arrest; the officer testified that he knew defendant, that defendant knew him, and had known him for a good while. Defendant also testified that at the time he knew Davis was an officer. This being so, it was apparent that defendant knew he was being arrested. In the case of Roberson v. U. S., 4 Okla. Cr. 336, 111 Pac. 984, 985, it was said:

“* * * Section 1350 of the Indian Territory Statutes provided that The person making the arrest shall inform the person about to be arrested of the intention to arrest him, and the offense for which he is arrested,’ and it is insisted that the attempted arrest was illegal because this provision of the statute was not complied with. There are many authorities to the effect that a compliance with such provision is not required where, as we are now assuming, the person about to be arrested knew the officer, knew that he was an officer, that he intended to arrest him, and where the person about to be arrested was then committing an offense in the officer’s presence. Tiner v. State, 44 Tex. 128; Plasters v. State, 1 Tex. App. 673; Rex v. Howarth, 1 Moody C. C. 207; King v. State, 89 Ala. 43, 8 So. 120, 18 Am. St. Rep. 89; People v. Durfee, 62 Mich. 487, 29 N. W. 109; People v. Nash, 1 Idaho, 206; Rex v. Whithorne, 3 Car. & P. 394; Rex v. Payne, 1 Moody C. C. 378; Rex v. Davis, 7 Car. & P. 785; Shovlin v. Com., 106 Pa. 369; Com. v. Weathers, 7 Kulp (Pa.) 1; State v. McAfee, 107 N. C. 812, 12 S. E. 435, 10 L. R. A. 607; Wolf v. State, 19 Ohio St. 248. And we think the rule sound. * * * ”

It is next contended that the court erred in his instructions to the jury and erred in refusing certain instructions requested by defendant. That is predicated on defendant’s contention that there must have been proof of an intent on the part of defendant to violate the Narcotic Law, defendant having testified that he found the package of narcotics and did not know its contents. The law forbids the possession of narcotics. Section 8887, Comp. St. 1921. We do not hold that there may not be circumstances under which the possession of narcotics would not be a crime, but there is nothing in this case to bring it within the exception, if, indeed, there be an exception.

The case is affirmed.

DAVENPORT, J., concurs.

CHAPPELL, J., absent, not participating.


text:
    WILSON CHERRY v. STATE.
    No. A-6940.
    Opinion Filed Dec. 7, 1929.
    (283 Pac. 258.)

      J. A. Rinehart, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Canadian county on a charge of manufacturing whisky, and was sentenced to pay a fine of $100 and to serve 60 days in the county jail.

■ The record discloses that at the time charged certain officers of Canadian county found a still in operation and arrested one Leo Lagali as he fled from the scene. Two other persons were seen at the time, but made their escape. The defendant was later arrested, and, Lagali and one Garrett are jointly charged. Lagali pleaded guilty and testified for the state in substance and to the effect that he, defendant, and one Garrett were operating a still at the time the officers approached. There is other evidence corroborating his testimony and tending to connect defendant with the commission of the offense. Defendant did not take the stand and offered no evidence. Several contentions are made in defendant’s brief, but none of them call for special discussion except possibly the contention that the county attorney referred to the fact that defendant did not testify. It is extremely doubtful if the statements of the county attorney may be construed as suggesting that defendant did not testify. In the examination of jurors on voir dire defendant’s counsel asked the jurors if defendant saw fit not to take the witness stand at the close of the state’s case, if they would consider that in any way in arriving at a verdict. Where a defendant in any manner before the jury goes into the fact that a defendant has not or will not testify, he is not in position to urge misconduct if the county attorney then refers to such failure, unless it appears that such comment may have affected the verdict. Upon an examination of the whole record, the guilt of defendant is conclusively shown, the punishment assessed not excessive, and no reason for a reversal is made to appear.

The case is affirmed.

DAVENPORT, J., concurs.

CHAPPELL, J., absent, not participating.


text:
    LOYD McCOY v. STATE.
    No. A-6954.
    Opinion Filed Dec. 7, 1929.
    (283 Pac. 257.)
    L. A. Foster, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted upon an information charging that he unlawfully- and willfully manufactured, fermented, and possessed a compound mixture consisting of wheat, bran, sugar, and water, fit for distillation and for the manufacture of distilled spirits, commonly called whisky, and was sentenced to pay a fine of $200 and be imprisoned in the county jail for 60 days, from which judgment the defendant has appealed to this court.

The state relies for conviction in this case upon circumstantial evidence. John Scaggs, a deputy sheriff, testified in substance that he went to defendant’s home and searched the premises; that he went across the section line to the barn and searched around it, and went down through a wooded pasture adjoining defendant’s barn a distance of about a half to three quarters of a mile, and found some barrels of mash, and in different places around a pond of water found pieces of what he said was a still.

Other witnesses with him testified in substance to the same facts as does Mr. Scaggs, all agreeing that the substancé they found in the barrels they claim to be mash was from a half to three quarters of a mile from the defendant’s home in a pasture, designated by the witnesses as woods, sand hills, and brush. The only testimony tending to connect the defendant with the mash is the testimony of two of the witnesses who saw an imprint of a wide tired wagon near this pond where they claim the mash was found; they say they could not tell very much about the track of the wagon, because stock had run over it and practically blotted out the track.

The defendant in his own behalf testified in substance as to where he lived, stating the deputy sheriff and other parties came to his house and told him what they came for, and he told them to go ahead and search; they found nothing around his premises and bam. The defendant further testified that the place where they found the mash was from a half to three quarters of a mile from his barn and home; that the land upon which they claim to have found this mash was not under his control, hut that it was in the tract of land where he had use of a portion of the pasture; that there was a fence for about a quarter of a mile between the two places, and the remainder of the line was open; and that the stock running in one pasture could run in the other, there was nothing to prevent them going hack and forth over all this tract of land.

The witness further testified that roads led into this tract of land; the land was covered with'timber, sand hills, and brush, and was near the river, and different parties went back and forth in there fishing and hunting. Defendant denied positively any knowledge of the mash being there or that he had anything to do with placing it there, and that he had no control whatever over the lands upon which the officers claim it was found.

Other witnesses testified for the defendant as to his previous good character, and that there were roads leading back and forth through this tract of land where they claim this mash was found, and that other parties went back and forth in there. There is no testimony whatever connecting the defendant with the possession, either active or constructive, of the mash and pieces of still alleged to have been found by the officers.

The defendant’s first assignment of error is the court erred in overruling the motion of plaintiff in error for a new trial. Second, the court erred in overruling the plaintiff in error’s demurrer to the state’s evidence; and, ninth, that the verdict of the jury is contrary to the evidence. These three assignments of error will be considered together, as they relate to the question as to whether or not the evidence of the state is sufficient to sustain the verdict of the jury. It is urged by the defendant, with considerable force, that the evidence in insufficient to sustain a conviction. Under our procedure criminal, section 2754, subd. 6, C. O. S. 1921, a new trial should be granted when the verdict is contrary to the law or evidence.

Under this provision, the responsibility to determine whether or not there has been adduced before the jury a sufficient amount of legal and competent evidence to render it safe to allow a verdict to stand is imposed on the trial court in the first instance, and on appeal upon this court. The performance of this duty at this time on the part of the court is to exercise legal discretion and judgment as to the sufficiency of the evidence to overcome the legal presumption of innocence to which every one is entitled who is put upon trial for an offense. Benson v. State, 10 Okla. Cr. 16, 133 Pac. 271; White v. State, 13 Okla. Cr. 76, 162 Pac. 232; Matheny v. State, 37 Okla. Cr. 369, 259 Pac. 175.

After a careful consideration of the evidence on behalf of the state, and the positive denial of the defendant, and the testimony as to his previous good character, we are of the opinion that the evidence of the state is insufficient to overcome the presumption of innocence and to sustain a conviction.

The judgment is reversed.

EDWARDS, P. J., concurs.

CHAPPELL, J., absent, not participating.


text:
    EVERETT PATTERSON v. STATE.
    No. A-7073.
    Opinion Filed Dec. 7, 1929.
    (283 Pac. 582.)
    Green & Green and Clark & Jack Nichols, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of grand larceny and sentenced to imprisonment in the state penitentiary for a period of three years, from which sentence the defendant has appealed to this court. Petition in error and case-made was filed in this court on June 19, 1928. Under the rules of this court, where an appeal is . not supported by brief it is assumed the appeal has been abandoned or is without merit. The court will examine the record and see whether or not any fundamental or prejudicial errors were committed by the trial court.

The testimony on behalf of the state tends to show that the defendant went to the farm of M. C. Mitchell and loaded a quantity of cotton in a truck and hauled it to the city of Okmulgee and sold it to a man who was running the gin for some eighty-odd dollars. There was cotton in the wagon in the cotton patch of M. C. Mitchell when they quit work in the evening; the next morning when they went to the wagon a portion of the cotton was gone; the defendant appeared at the gin in Okmulgee before 8 o’clock in the morning and sold cotton, and when arrested in the city of Okmulgee had spent a portion of the money received by him for the cotton sold. The testimony of the state tended to show that the tracks of the car or truck near the wagon from which the cotton was taken correspond to the track of the truck the defendant drove into Okmulgee with cotton loaded in it.

The defendant denied he took the cotton of M. C. Mitchell, and states he let a man who had been making whisky have the truck to get a load of whisky, and that when the man came back he had the cotton in the truck and had a large quantity of whisky loaded in the truck on top of the cotton with a wagon sheet over it. The defendant states he was to drive this truck with the cotton and whisky in it to a point on the main road near Okmulgee, where he would meet a party who by his actions or words would indicate he was the party the whisky was intended for, and defendant says he met such a party and delivered the whisky to him; that it was also understood he was to drive the truck to Okmulgee and sell the cotton in the truck, and whatever it lacked of selling for flOO this party who got him to deliver the whisky would make it up when he returned. This is, in substance, the testimony.

The defendant has assigned five errors alleged to have been committed by the trial court. We have examined the record and find that the information charged an offense of grand larceny; that the evidence is sufficient to sustain the judgment; that the instructions of the court substantially covered the law as applied to the facts in the case. The defendant was accorded a fair and impartial trial. The judgment does not contain any fundamental or prejudicial errors.

The judgment is affirmed.

EDWARDS, P. J., concurring.

CHAPPELL, J., absent, not participating.


text:
    LEE MOORE v. STATE.
    No. A-7045.
    Opinion Filed Dec. 14, 1929.
    (283 Pac. 583.)
    John F. Vaughan, for plaintiff in error.

      J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of the crime of gambling by playing, a game called poker, and was sentenced to pay a fine of $50 and costs. From the sentence and judgment the defendant has appealed to this court.

The state called as a witness V. J. Hendricks, who testified he knew Lee Moore; that on the 1st day of October, 1927, at Stillwater, in Payne county, Okla., he saw the defendant at Lee Doolin’s poker game over the Club; it is a kind of a cafe and bar; that the defendant bought $51 worth of chips and was playing poker at the time the officers came into the room; that defendant had played two or more hands when the officers broke in. On cross-examination he stated he was working for Mr. Bays, doing detective work., Witness admitted he had played a little poker in his life; that he was sent to Stillwater by the superintendent of the agency, Mr. Bays; that he was directed to get into that game Doolin and Harper were running.

E. J. Keltner testified in substance the same facts as did the witness Hendricks, as to what took place in the poker room the night the officers raided the room and found money, poker chips, and tables. It is not denied by the defendant that he was in the room when these two witnesses came in, and that the poker game was either in progress or started after the witnesses Hendricks and Keltner came into the room. The defendant denies he was playing poker when the officers came into the room; he further denies he had bought $51 worth of chips as related .by the witnesses. Some of the witnesses for the defendant admit there had been a conversation between the defendant and one of the parties in the room, that the game was not big enough for the defendant to get in, and it had been agreed they would make the game big enough for the defendant to come into the game and play with them. It is also denied that defendant had bought any chips or paid any money, and they deny that the other parties who had agreed to make the game big enough for the defendant to get in had put any money in the game; that if the officers had not come in when they did the defendant would have been playing. This is in substance the testimony.

The court advised the jury in his instructions that the defendant was presumed to be innocent of the offense charged against him and of every ingredient thereof until such presumption is overcome by competent evidence to your satisfaction beyond a reasonable doubt, and you are instructed that the burden is upon the state to prove to your satisfaction beyond a reasonable doubt every material allegation of this information charging the offense against the defendant.

The defendant has assigned several errors alleged to have been committed by the trial court; the first being the court erred in overruling his motion for a new trial; second, error of the court in refusing to give defendants requested instruction No. 1. The court in his general instruction substantially covered the facts contained in the special instruction No. 1 requested by the defendant, and the court did not err in refusing to give the same.

In this case the testimony on behalf of the state as to the defendant gambling is positive. The witnesses Hendricks and Keltner, though special witnesses sent out to detect people committing crime, swear positively that the defendant was gambling when the officers came into the room and had been prior to their coming into the room. The testimony of the defendant and other witnesses denying this statement and swearing, he had not been gambling and had not bought any chips.

The question as to whether or not the defendant was guilty of gambling, under the testimony before the jury, was a question solely for the jury, and the court correctly advised the jury as to what it must find before it would be warranted in convicting the defendant. This court has repeatedly held that where there is any competent testimony to go to the jury, though conflicting, it would not reverse a judgment on the ground of the insufficiency of the testimony. We have carefully examined the record in this case, and from the testimony contained therein, and the instructions of the court, we hold that the court did not err in overruling the defendant’s motion for a new trial; that the instructions of the court substantially declared the law applied to the evidence; that the defendant was accorded a fair and impartial trial.

Therefore the judgment of the lower court is affirmed.

EDWARDS, P. J., concurring.

CHAPPELL, J., absent, not participating.


text:
    Z. G. PATTERSON v. STATE.
    No. A-7049.
    Opinion Filed Dec. 14, 1929.
    (283 Pac. 270.)

      Walter Mathews, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was by information charged with the unlawful manufacturing of whisky, and was tried and convicted of an attempt to manufacture whisky; was sentenced to pay a fine of $100 and costs and be confined in the county jail for a period of 30 days. From which judgment and sentence the defendant has appealed to this court.

The transcript of the record was filed in this court on June 4,1928. No brief has been filed in support of the defendant’s appeal. Where no briefs are filed, the court will examine the record proper, and if there have been no fundamental or prejudicial errors committed by the trial court the judgment will be affirmed.

After a careful examination of the record, the court finds that the information is sufficient to charge an offense, that the instructions fairly stated the law, and that the defendant was accorded a fair trial. The judgment of the lower court is affirmed.

EDWARDS, P. J., concurs.

CHAPPELL, J., absent, not participating.


text:
    HENRY WINKLER v. STATE.
    No. A-7039.
    Opinion Filed Dec. 14, 1929.
    (283 Pac. 591.)
    Renegar & Wright, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, Avas convicted in the district court of Washita county on a charge of assault and battery with a dangerous weapon, and his punishment fixed at confinement in the county jail for a term of three months.

At the time charged, defendant, while driving an automobile on the public highway, drove the same against the body of May Taliaferro and injured her by breaking her leg. A school truck, transporting pupils of the Canute Consolidated School,- was going south and stopped on the highway to let pupils off, among them, May Taliaferro, the injured child, 11 years of age. Defendant was driving north, meeting the school truck. The school children got out on the right side, and the injured girl walked around, the rear of the truck to cross the highway to go to her home; as she stepped from the rear of the truck, the car driven by defendant struck her, and the injury resulted. The testimony for the state is that the car was traveling at a speed of from 20 to 30 miles per hour. Defendant estimates his speed at 15 to 20 miles. Defendant knew the truck was transporting school children, and that the place where the injury occurred was a regular stop to discharge pupils. The prosecution is under section 1764, Comp. Stat. 1921, which among other things defines an¡ offense by one who with intent to do bodily harm and without justifiable or excusable cause commits an assault upon the person of another with a dangerous weapon. It is the theory of the state that defendant was committing a misdemeanor under the provisions of section 2, c. 16, Session Laws 1923, defining a misdemeanor for any person to operate or drive a vehicle upon the highways at a rate of speed greater than is reasonable under the existing circumstances, having due regard to the traffic, the use of the highway, and the safety of pedestrians; that in so operating a vehicle he was guilty of culpable negligence.

An automobile, when propelled against a person, is a dangerous weapon. If a person operating an automobile upon the highway does so in a reckless manner, endangering the safety of pedestrians or others, and while so operating the vehicle in such manner he drives it against some person, causing death, he is guilty of a crime. Nail v. State, 33 Okla. Cr. 100, 242 Pac. 270. Mayse v. State, 38 Okla. Cr. 144, 259 Pac. 277. Brock v. State, 39 Okla. Cr. 162, 263 Pac. 1115. Logan v. State, 42 Okla. Cr. 1, 274 Pac. 39. If, while so operating an automobile in violation of law, a person should injure a pedestrian or other person without causing death, and such unlawful act is the proximate cause of the injury, he is likewise guilty of a crime. If defendant is guilty of culpable negligence in passing the school truck, as it was discharging its passengers, at a dangerous speed, or without coming to a stop or having his car under control, and thus avoid injury to the school pupils, he is guilty of a crime. In such case the commission of a misdemeanor in operating an automobile in the manner forbidden by section 2, c. 16, Session Laws 1923, takes the place of and supplies the unlawful intent. 1 Bishop’s Crim. Law (8th Ed.) § 313 et seq. It then becomes a question of fact whether or not defendant at the time was guilty of culpable negligence in operating an automobile upon the highway in violation of the law. There is ample evidence in the record to carry the case to the jury upon this question, and by their verdict the jury found the question of fact against defendant.

The judgment is affirmed.

DAVENPORT, J., concurs.

CHAPPELL, J., absent, not participating.


text:
    EARNEST P. GRAVES v. STATE.
    No. A-7044.
    Opinion Filed Dec. 14, 1929.
    (283 Pac. 795.)

      Bass & Hardy, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of having possession of a still and sentenced to pay a fine of $100 and be imprisoned in the county jail for 60 days, from which judgment and sentence the defendant has appealed to this court.

On the 17th day of April, 1928, the defendant appeared in open court and filed his motion to suppress the evidence, on the ground that the same was obtained without a search warrant, the officers searching the premises and inclosure of the defendant, in violation of the Constitution of the state of Oklahoma, and of law relating thereto, and for the further reason that the said officers had no authority to search the inclosure of his yard, occupied by the defendant, without a legal search warrant, and they had no legal authority to go into the house or curtilage of the defendant without a search warrant. Testimony was taken upon the motion to suppress the evidence, which in substance is as follows:

Hale Dunn, being called as a witness, testified: He was a deputy sheriff; he went to the home of the defendant about 5 o’clock in the morning, went into the house, and woke the defendant up.

“I was accompanied by Victor Buthod and Oree Cissell; we did not have any flash light; neither myself, Buthod, nor Cissell had a search warrant; we found a still in the smokehouse; we were out that time of night for the reason that we had received information he had a still running; I went with the intention of searching his place and I did search it; the smokehouse where we found the still was about ten steps from the dwelling; I could smell something when some distance away from the dwelling that smelled like mash.”

It is conceded by all the testimony of the state that all the authority they had to go upon the curtilage of the defendant was that the officer claimed he had received information that the defendant had a still running; that when they came to defendant’s place there were no lights on, and that the defendant was in his home, and Hale Dunn, one of the officers, went in and woke him up.

There is no testimony tending to show the right of any officer to enter the home or curtilage of the defendant, and so far as the record discloses the testimony tends to show that when they were upon the curtilage of the defendant they were trespassers, having no search warrant to search the premises, and no warrant for the arrest of the defendant, and the only reason they had for going upon the premises and searching the same was that they had received information that the defendant had a still. The defendant contends the court erred in overruling his motion to suppress the testimony of the state on the ground that it was unlawfully secured.

There is no> conflict in the testimony, and the only effort shown in the record to justify the actions of the officer was an odor they claimed they smelled when near the defendant’s place. They did not see any one around the place, and no one going back and forth in and around the smokehouse, where they claim they located the still. We do not believe the testimony in this case, of the odor the officer claims he smelled, was sufficient to authorize the officers to go into the private residence of the defendant and wake him up, or go into defendant’s yard or upon the curtilage of defendant’s home and begin an investigation.

In Russell v. State, 37 Okla. Cr. 71, 256 Pac. 758, this court in the syllabus said:

“The search of a barn within the curtilage of a dwelling house, by an officer without a search warrant, is an unreasonable search, and evidence SO' obtained, when timely objection is made, should be excluded.”

In Turknett v. State, 36 Okla. Cr. 401, 254 Pac. 985, the second paragraph of the syllabus says:

“Curtilage, in law, means a small piece of land, not necessarily enclosed, around a dwelling house, and generally includes the buildings used for domestic purposes in the conduct of family affairs. The term has no application to any building not used as a dwelling.”

In Wilson et al. v. State, 38 Okla. Cr. 409, 262 Pac. 501, the first paragraph of the syllabus is as follows:

“In a prosecution for unlawful possession of intoxicating liquor, where all the evidence on the part of the state was incompetent because of being obtained by the unlawful acts of officers of the court, the jury should have been advised to return a verdict of acquittal.”

In Hays v. State, 38 Okla. Cr. 331, 261 Pac. 232, the first paragraph of the syllabus reads as follows:

“A reasonable and lawful search and seizure is provided for in the Constitution by means of a search warrant, supported by oath or affirmation, and all others are unreasonable and unlawful.”

Section 7013, C. O. S. 1921, provides:

“No warrant shall be issued to search a private residence, occupied as such, unless it, or some part of it, is used as a store, shop, - hotel, boarding house, or plaice for storage, or unless such residence is a place of public resort.”

In this case the officer admits he had received information that there might be a still at the home of the defendant, and he left the city of Ardmore with that information, and went to the place for the purpose of searching it; he had no search warrant, nor did either of the other officers that went wtih him; they went into the home and upon the curtilage of the defendant, and witness Hale Dunn says he went in and woke the defendant up, and the other parties stopped at the smokehouse. We think the officers were trespassing upon the house and curtilage of the defendant, and that any evidence secured by reason of said trespass is inadmissible against the defendant.

Section 30, art. 2, Bill of Rights, provides:

“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.”

Section 7012, C. O. S. 1921, provides:

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

See McDaniel v. State, 41 Okla. Cr. 203, 270 Pac. 1115.

The state undertakes to justify the action of the officers on the ground that they claim that, when near the home and curtilage of the defendant, they smelled something that smelled like mash and they then went and woke the defendant up, and in his smokehouse discovered the still. Under the provisions of our statute the law wisely provided how the home and curtilage of an individual may be entered upon by the officers for the purpose of making a search, and has particularly described what is necessary to be done by the officers before searching the home and curtilage of a citizen. This law must be strictly complied with, in order that our laws may be properly enforced and the rights of our citizens upheld. Those charged with the enforcement, of the law must comply with the law before seeking to secure the testimony against those whom he believes to be violating the law. It serves no good purpose for an officer of the law to fail or neglect to comply with the law in making an effort to secure evidence against one whom he believes is violating the law, and unless the officer, whose duty it is to administer the law, obey and respect the law, we cannot hope for faithful obedience of the same by our citizens.

The evidence offered by the state was incompetent, and, timely objection having been made by motion to suppress the same before the trial began, it should have been excluded. The motion to suppress the evidence was well taken, and it was error for the court to overrule the same.

There are other errors assigned, but we do not deem it necessary to discuss them. For the reasons stated, the case is reversed and remanded.

EDWARDS, P. J., concurs.

CHAPPELL, P., absent, not participating.


text:
    RALPH BAINUM v. STATE.
    No. A-6886.
    Opinion Filed Nov. 23, 1929.
    Rehearing Denied Dec. 14, 1929.
    (282 Pac. 903.)
    J. Hugh Nolen and W. H. Woods, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Okfuskee county on a charge of murder and was sentenced to life imprisonment.

The theory of the state is that defendant, with Wesley Harrison, Alton Purdy, and Asa Pendleton, acting together in the nighttime, burglarized a warehouse of the Okemah Wholesale Grocery Company at Okemah, and, while committing the burglary, some one of the party shot and killed C. E. Ryan, a night watchman.

The record discloses that the most damaging evidence was that of George Burch and members of his family. Burch was 76 years old, and at the time was operating an illicit still just over the line in Okmulgee county. Prior to the trial he had been arrested and was in the custody of the officers, a part of the time in jail. He gave no information until his apprehension for violation of the liquor laws. His evidence and that of Bill Burch, his son, is, in substance, that on Thursday afternoon, February 24, these four persons came to the Burch home in a new Buick sedan and with permission drove into the shed near the house which was some 200 yards from the road and somewhat concealed. They remained at the Burch home until Saturday night, but were away at various times. Defendant was at the Burch home on Friday night assisting in making whisky. The other members of the party were away until midnight when they returned with a large model 51 White truck which they put in the barn. The next day all four of the party took the truck to the woods, took off the bed, burned part of it, made the platform lower, and placed a winch on it. They also brought a cotton truck used on railroad platforms, a claw bar, and crowbars, and cut the legs from the cotton truck. During this time they also brought some nitro glycerine there which was divided into two portions and a part of it buried near the Burch residence. This was stolen from a magazine north of Okmulgee. The Buick car had been stolen at Seminole and was later recovered at Kansas City in the possession of Wesley Harrison, one of the party. They left Burch’s on the afternoon of February 26, in the Buick sedan, and defendant suggested that they were going to get some “smokes.” About 9 o’clock that night the wholesale grocery store was burglarized and Ryan killed, as stated. About the time of the burglary the foreman and engineer of a freight engine saw two men near the wholesale house. W. C. Blake and wife, who lived about 50 yards from it, heard a gun fire, went to the back door, and heard a man groan and heard the noise of an automobile as if it were “stuck.” Shortly a closed car came around the building and Mrs. Blake testified in her judgment it was a Buick; that the 'back of the car seemed to be loaded with something. They saw a man at the front; saw three other men running from the direction of the wholesale house, where the homicide occurred. Also, on that night, a Ford coupe was stolen from the streets of Okemah. It was later recovered at the city of Okmulgee. About 11 o’clock in the night, Wesley Harrison, one of the party, returned to the Burch home in the Buick car and had with him 14 cases of cigarettes. He called Burch out and threw out and counted the cases and at the time told Burch he had killed a man; had left the other fellows, but would go back for them. He took a high-powered rifle, went in the direction of Okemah, and in about half an hour returned, and Pendleton, Purdy, and defendant came in a Ford coupe. Some of the party changed clothing there and left; one of them said they had some of the cigarettes concealed at Okmulgee to be disposed of at some other point. All were heavily armed and Harrison said: “If you hear my pop, you want to get busy.” All then left Burch’s in the sedan and the coupe, Harrison driving the sedan. That same night some of the party came to the home of J. Ray Harrison in Okmulgee and left five cases of cigarettes of the same brand as those stolen. These were later retaken by the wholesale grocery concern whose warehouse had been burglarized. Also that night some parties of whom Purdy was one came to a place known as “Oakhurst,” between Sapulpa and Tulsa, and left seven cases of cigarettes; some one of the party said they had just ridden in from Texas and did not want to leave the stuff in the car, and Purdy and Harrison brought them in the house. Later they were taken away in the absence of the proprietor. The defendant did not take the stand. This is a brief summary of the evidence, omitting numerous details. We are clearly of the opinion that it sustains the judgment.

The second assignment, the refusing requested instructions numbers 1, 2, 3, and 4 presents no error. All the requests were fairly covered by the charge of the court, and the instructions as a whole fully cover the law of the case. The third assignment is predicated on the asking of questions by the county attorney tending to show that a witness for defendant had associated with persons connected with other bank robberies and in the asking another witness if he had not served a term in the penitentiary with defendant or had been connected with some of the persons jointly charged in this case in other transactions and various other offenses. Some of these questions appear to have been asked without any purpose of following them up. This practice is condemned, and, where flagrant, may constitute a ground for reversal. In the instance here complained of., however, no objections were made to the questions at the time, nor request made that the court order the county attorney to desist from the line of questioning or that he admonish the jury. It is the duty of counsel to make objections to any evidence or line of questioning deemed incompetent in order that the court may have opportunity to see that the right to a fair trial is not abused. Johnson v. State, 1 Okla. Cr. 321, 97 Pac. 1059, 18 Ann. Cas. 300; Baker v. State, 9 Okla. Cr. 47, 130 Pac. 524.

The last contention made is that the county attorney was guilty of misconduct in his argument to the jury. This court has followed a liberal rule in the matter of argument, but we think the argument here transcends even the liberal rule we have heretofore announced; when the county attorney referred to the witnesses for defendant several times as “slick-haired, cane-sucking dudes.” A proper appreciation of the duties and dignity of his office should have suggested that the argument be pitched on a higher plane. The court should have sustained the objection to such argument and have reprimanded counsel for indulging in it. Where the county attorney appeals to the prejudice of the jury, the record will be scrutinized and the strength of the testimony against defendant considered, and, if it appears probable that such argument may have influenced the verdict, the case will be reversed. Mulkey v. State, 5 Okla. Cr. 75, 113 Pac. 532; Watson v. State, 7 Okla. Cr. 590, 124 Pac. 1101; Morgan v. State, 9 Okla. Cr. 22, 130 Pac. 522; Allen v. State, 13 Okla. Cr. 395, 164 Pac. 1002, L. R. A. 1917F, 210; Williams et al. v. State, 35 Okla. Cr. 117, 249 Pac. 433.

Under the record before us, however, the guilt of defendant is so clearly shown that the jury could not have done otherwise than find the defendant guilty, and the part of the argument complained of could not have been prejudicial.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    CLEO VANDERGRIFF v. STATE.
    No. A-6939.
    Opinion Filed Nov. 23, 1929.
    Rehearing Denied Dec. 14, 1929.
    (282 Pac. 897.)
    Q. P. McGhee, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter . for convenience referred to as the defendant, was by information charged with the crime of robbery of W. W. Huckett, on the 11th day of September, 1926, with a firearm; was tried and sentenced to imprisonment in the state penitentiary for the period of natural life. Motion for new trial was filed, considered, and overruled, and the defendant has appealed to this court.

The state, to maintain the allegations in the information, called as a witness W. W. Huckett, whose testimony in substance is as follows:

“I was in business at 209 Main street, Commerce, Okla., on the 11th day of September, 1926. About 10 o’clock in the evening I was standing on. the north side of the storeroom, in the passageway between the first and second counters, facing towards the back of the store talking to my boy. I heard the screen door open, and as I turned this party was standing on the floor about ten feet from the doorway. He had no mask on. The defendant raised his hand up like that, with his gun in hisi hand, from the side of his leg, and said, ‘Don’t move your feet,’ and said, ‘Come on back, kid, get out here.’ Get out in the middle of the floor, I want you to come back here, or words to that effect, and went to the cash register, and punched the register two or three times but could not get it open, and demanded that I come and open it for him, keeping the gun on me all the time. I opened the register, and he got something like $30 or $40 in silver; I cannot say just what. During the time he was committing this robbery, Frank Thompson came into the store to get some empty milk bottles, and he lined him up, and I turned to look at Thompson, and the defendant hit me with his gun or something and broke my hat. The blow kindly turned me upside down, and I came right back up, and he had just slammed the door and left. The defendant was in the store I judge about three minutes.”

W. W. Huckett is corroborated by Walter Huckett and Wain Lair and other witnesses as to the identity of the defendant as being the party who robbed the prosecuting witness, and as to the facts and circumstances surrounding the defendant’s action.

At the close of the state’s evidence, the defendant demurred to the evidence, which demurrer was by the court overruled. An examination of the testimony contained in the record on behalf of the state clearly shows the court did not err in overruling the defendant’s demurrer.

The defense of the defendant was an alibi, several witnesses testifying positively to the fact that the defendant was at another place on the night the robbery is alleged to have taken place. All of the testimony was before the jury under proper instructions from the court. This court has repeatedly held that the jury are the exclusive judges of the weight of the evidence, and if there is a clear conflict in the evidence, or it is such that different inferences may properly be drawn from it, its determination will not be interfered with, unless its verdict is clearly against the weight of the evidence or appears to have been influenced by passion or prejudice. Mayse v. State, 38 Okla. Cr. 144, 259 Pac. 277; Campbell v. State, 23 Okla. Cr. 250, 214 Pac. 738.

In Johnson v. State, 22 Okla. Cr. 332, 211 Pac. 425, in the second paragraph of the syllabus the court said:

“Where there is substantial evidence to show the guilt of the defendant, this court will not weigh the sufficiency of the evidence to sustain a conviction, but will consider the whole evidence to ascertain whether a conviction is founded on substantial evidence.”

In Pope v. State, 34 Okla. Cr. 417, 246 Pac. 657, in the second paragraph of the syllabus, this court said:

“Where state’s evidence indicates guilt almost beyond doubt, and defendant’s evidence tends to establish alibi, Supreme Court will not disturb verdict * * * for want of sufficient evidence.”

The defendant in his brief does not argue any errors of law alleged to have been committed by the trial court. The defendant contends that in this case the punishment inflicted by the court, or the verdict of the jury, of imprisonment during his natural life, is excessive and should be modified. The record discloses a wanton disregard of the law by the defendant, and a willful, bold robbery. The defendant at the time of the robbery had arrived at sufficient years of maturity to know the consequences of his own acts. Imprisonment for the period of his natural life is a severe punishment, and we believe that a modification of the sentence from imprisonment in the state penitentiary during his natural life, to imprisonment in the state penitentiary for 50 years, is a sufficient punishment for the offense shown to have been committed by the defendant.

The judgment and sentence herein will therefore be modified to imprisonment in the state penitentiary for 50 years, and as so modified is affirmed.

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


text:
    JOE ZOLL v. STATE.
    No. A-6836.
    Opinion Filed Nov. 23. 1929.
    Rehearing Denied Dec. 14, 1929.
    (282 Pac. 901.)
    Harry Blake and John Adams, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, for convenience referred to as the defendant, was convicted in the county court of Logan county upon a charge of possession of six pints of red corn liquor, with the willful, unlawful, and Wrongful intent to violate the prohibitory laws, and was sentenced to pay a fine of $150 and to be imprisoned in the county jail for 60 days, from which judgment the defendant has appealed to this court.

The testimony on behalf of the state tends to show that T. W. Boggess, together with other parties, went to the home of the defendant with a search warrant and searched his place, and as shown by the testimony of the state found six pints of red corn whisky.

Mrs. Zoll, the wife of the defendant, called as a witness on behalf of the defendant, testified:

“I had the whisky; I was using it for my health; I made toddies out of it, and it required about two tablespoonfuls of whisky to each toddy; I have nervous spells, and I have taken everything, but it seems like this hot toddy does me more good than anything; I have used it all my life.”

Five errors alleged to have been committed by the trial court are assigned by the defendant. The first, second, and third are as follows:

“1. Said court erred in overruling the motion of plaintiff in error for a new trial.
“2. Said court erred in giving the following instruction, which was No. 4, to the jury: You are further instructed, that the keeping in excess of one quart of any spirituous, vinous, fermented or malt liquors, or any imitation thereof, or substitute therefor, medicated or not, which contains; as much as one-half of one per cent, alcohol and which is capable of being used as a beverage or in any manner permitting any other person to have, or keep any such liquor in or about his plhce of business, or his residence, or his place of amusement, or recreation, or any public resort, or any club room, shall be prima facie evidence of an intention to convey, sell or otherwise dispose of such liquor.
“Provided further, that this section shall not he construed in any way, to legalize the keeping of any liquor for unlawful purposes irrespective of the amount.
“3. The court erred in giving the following instruction, which was No. '6, to the jury:
“If you are convinced by the evidence beyond a reasonable doubt, that the defendant Joe Zoll, did, on or about the 8th day of January, 1927, have in his possession and under his control six pints of red liquor, testing more than one-half of one per cent, alcohol, and with the wilful, unlawful and wrongful intent to violate the prohibitory liquor laws of the state of Oklahoma, then your verdict should be for conviction. If, on the other hand, the state failed to satisfy your minds beyond a reasonable doubt, that the defendant did have possession of said intoxicating liquor, as charged in the information, then you should give him the benefit of the doubt and acquit him.”

The wife of the defendant- testified that the whisky found by the officers she had for her health, and was using it to make hot toddies. Whether her story was true ivas a question of fact for the jury. By the verdict the jury apparently decided the issue of fact against defendant.

It is contended by the defendant in his appeal that the verdict of the jury was probably due to erroneous instructions given by the court, particularly instructions Nos. 4 and 6, supra. The court in his instruction No. 4 told the jury that the keeping of more than one quart of any spirituous, vinous, fermented, or malt liquors, or any imitation thereof, whether medicated or not, which contained as much as one-half of 1 per cent, alcohol, and which is capable of being used as a beverage, shall be prima facie evidence of an intention to convey, sell, or otherwise dispose of such liquor.

Instructions Nos..4 and 6, complained of by tbe defendant, are not models, and considered alone would not clearly state the law, but, when considered in connection with the other instructions given by the court, are sufficient to properly instruct the jury as to the law when applied to the facts in this case. There are other errors assigned which are without merit.

The evidence is sufficient to show possession and to sustain the judgment. Finding no prejudicial errors in the record, the case is affirmed.

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


text:
    CURT POLLETT v. STATE.
    No. A-6819.
    Opinion Filed Nov. 2, 1929.
    Rehearing Denied Dec. 14, 1929.
    (282 Pac. 895.)
    Darnell & LaRue, for plaintiff in error.

      Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted on a charge of assault with intent to commit rape, and was sentenced to imprisonment in the penitentiary for a term of five years. Motion for new trial was filed, considered, and overruled, exceptions duly saved, and the case appealed to this court. Petition in error and case-made were filed in this court on November 12, 1927. Under the rules of this court, where an appeal is not supported by brief, it is assumed the appeal has been abandoned or is without merit. The court will examine the record and see whether or not any fundamental or prejudicial errors were committed by the trial court.

The testimony on behalf of the state tends to show!' that the defendant, conjointly with Elmer Ridenhour, Jake Furnish, Floyd Gibson, and Minnie Williamson, induced the prosecuting witness, Rita Marica!, to leave her home and drive with them in a car; that, after they had driven out on the highway a certain distance, they turned off on a byroad; and that the prosecuting witness -was assaulted and fought and screamed and hollowed until passersby on the highway heard her screaming and went to her rescue, when the parties assaulting her fled from the scene of the trouble.

An examination of the record discloses a state of facts brutal in their nature. We feel that the defendant in this case is very fortunate that he got off with the light sentence imposed on him by the court.

We have carefully read the record and find that the information charges an offense; that the evidence is sufficient to sustain the judgment. The court properly instructed the jury as to the law, and that the defendant was accorded a fair and impartial trial.

Finding no prejudicial or fundamental errors in the record, the judgment is affirmed.

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


text:
    TOBE BAILEY v. STATE.
    No. A-6733.
    Opinion Filed Oct. 21, 1929.
    Rehearing Denied Dec. 16, 1929.
    (282 Pac 894.)
    J. W. Bolen, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen.,, for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted of grand larceny in the district court of Pontotoc county, and his punishment fixed at confinement in the state penitentiary for a term of two years.

Briefly stated, the record discloses a state of facts about as follows: Just prior to the larceny, the prosecuting witness Collins had butchered several hogs, and had stored a part of the meat in a garage, some 30 or 40 yards from his dwelling house. This meat was stolen in the nighttime, and the evidence is that a car had been parked some distance from the garage, and it appeared from the tracks that two men had made several trips from the car to the garage. Some of the tracks about the garage had peculiarities which tallied with shoes worn by defendant at the time he was arrested. A search warrant was issued, the premises of defendant were searched, and nine middlings and four shoulders of meat were found, all of which had been recently butchered. From the size and the manner in which it was butchered and some distinguishing marks the prosecuting witness identified this as his property. A witness testified that on the night of the larceny he saw a Ford touring car leave the Collins place covered with a white cloth; the inference being that this covered the stolen meat being transported in the car. Another witness testified he lived with defendant; that on the day before ’the night of the larceny defendant and a codefendant left the home in a Ford car, and returned that night with fourteen large pieces of meat; that he helped unload it; and that there were nine middlings and four shoulders; that defendant had no hogs during the time he had been there.

The principal contention is that the court erred in overruling defendant’s application for a postponement, evidently under section 2654, Comp. St. 1921. The information was filed in January, 1926. The case was not tried until February, 1927. It was assigned for trial for some three weeks, and the witnesses for the state had been subpoenaed beginning on February 3, and for some days thereafter. On the day of trial, counsel for defendant asked that it be postponed for a day, stating that a witness who lived in Pontotoc county was absent, who, if present, would testify that three of the hogs in controversy were sold by him to the codefendant Roper, and would further testify that this defendant had never claimed the meat, but was only hired to haul it; that he would show by other witnesses that the other meat in the possession of defendant came from hogs of his own, and that three witnesses would testify that they had assisted defendant in killing his hogs; that counsel for defendant had been employed on the preceding day, and that the subpoenas were issued on the morning of the trial. This application was stated in open court, and was not verified.

An application for a postponement or adjournment for a short time is generally looked on with more favor than an application for a continuance for the term. A postponement, however, is a continuance for the time being, and an application for a postponement is within the discretion of the trial court. Unless there is an abuse of discretion, the denial of such application will not constitute ground for a reversal. The application here was informal, and showed no reason for a postponement. A person charged with a felony is not permitted to wait until the day preceding the trial of his case to employ counsel and until the day of trial to have his witnesses subpoenaed and then ask for a postponement because his witnesses are not present. If he expects the assistance of counsel, he must employ him in time and subpoena his witnesses and to prepare for his trial. Musgraves v. State, 3 Okla. Cr. 421, 106 Pac. 544; Davis v. State, 10 Okla. Cr. 169, 135 Pac. 438; Sanders v. State 38 Okla. Cr. 386, 262 Pac. 216; Hogan v. State, 42 Okla. Cr. 188, 275 Pac. 355.

The record conclusively shows the guilt of defendant as charged, and is free of any prejudicial error.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    L. L. STURGIS v. STATE.
    No. A-7157.
    Opinion Filed Oct. 26, 1929.
    Rehearing Denied Dec. 16, 1929.
    (281 Pac. 1118.)
    Norman H. Wright, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of having the unlawful possession of whisky, and was sentenced in the county jail for a term of 45 days.

The judgment was rendered in April, 1928, and the appeal was lodged in this court in August, 1928. No briefs in support of the appeal have been filed. The evidence discloses that at the time charged certain officers searched the premises of defendant and found a still and some 39 gallons of whisky. Defendant did not take the stand and offered no evidence. No reversible error appears in the record.

The ease is affirmed.


text:
    HENRY THOMPSON v. STATE.
    No. A-7229.
    Opinion Filed Oct. 26, 1929.
    Rehearing Denied Dec. 16, 1929.
    (281 Pac. 1118.)
    Joe Adwon, for plaintiff in error.
    J. Berry King, Atty. Gen.., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Canadian county on a charge of having the unlawful possession of whisky, and was sentenced to pay a fine of flOO and to serve 30 days in the county jail.

The judgment was rendered in September, 1928, and¡ the appeal was lodged in this court in November, 1928'. No briefs in support of the appeal have been filed. The evidence amply sustains the judgment. No material error is made to appear.

The case is affirmed.


text:
    ARESHA THURMOND v. STATE.
    No. A-6587.
    Opinion Filed Sept. 14, 1929.
    Rehearing Denied Dec. 16, 1929.
    (283 Pac. 271.)

      O. A. Brewer and J. H. Warren, for plaintiff in error.
    Edwin Dabney. Atty. Gen.,, and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Choctaw county of murder, and her punishment fixed at imprisonment for life in the state penitentiary.

Defendant gave notice of appeal, and filed an affidavit as a poor person to procure a transcript of the testimony without cost.

Under the provisions of section 6, Bill of Rights of the State Constitution, where an accused person desires to appeal and on account of poverty is unable to pay for the transcript of the record, it is the duty of the trial court to order same made, and furnished without expense to accused. Farmer v. State, 5 Okla. Cr. 152, 114 Pac. 753; Jeffries v. State, 9 Okla. Cr. 573, 132 Pac. 823.

Where such application and showing is made and the trial court refused to order the record without expense to accused, accused may in due time file a petition in error in this court, and, upon showing such state of facts, this court, under the provisions of section 786, Comp. Stat. 1921, will order a transcript of the record and evidence. Young v. State, 33 Okla. Cr. 255, 243 Pac. 763; Ex parte Wigger, 39 Okla. Cr. 108, 263 Pac. 1112.

In this case application for free record was denied by the trial court, and defendant thereupon filed her petition in error with various exhibits attached in this court, and made an application to this court for an order that she be furnished a transcript of the testimony without cost to her, supporting the same by affidavit. On May 14, 1927, this court ordered that a transcript of the evidence be furnished defendant at the expense of Choctaw county. An extension of time to make the transcript was later ordered by this court.

It appears from the motion to dismiss that in compliance with said order a transcript was prepared and delivered to O. A. Brewer, attorney of record for defendant. The same has never been filed in this court.

There are two methods of appeal in criminal eases by case-made as provided in sections 2813 and 2814, Comp. Stat. 1921, which are as follows:

2813: “In all criminal cases appealable to the criminal court of appeals, the appellant may prepare, and it shall be the duty of the court to provide for the preparation and settling of a case-made in all respects as in civil cases, and the case-made so settled, served and filed in the trial court may be sent to the appellate court in lieu of all other records or bills of exception, or the proceeding in the appellate court may be as provided in the next section.
2814: “Instead of the appeal hereinbefore provided for ány party desiring to appeal to the criminal court of appeals in any criminal case may proceed by case-made and petition in error in all respects and with all the rights, as provided in ‘Procedure, Civil,’ and the summons in error shall be served upon the Attorney General, unless the same is waived as in other cases. Instead of the case-made plaintiff in error may attach to his petition in error a transcript of the proceedings of record in the trial court.”

As provided by these provisions of the law, if a person convicted in a criminal case desires to appeal and have the case reviewed upon the evidence, he should appeal by the first method provided; that is, by case-made. If no question is sought to be raised requiring a review of the evidence 'but raising only questions presented by the record proper, the second method included in section 2814, supra, may be pursued. Neither method has been pursued in this case. The petition in error does not have attached to it the case-made provided by said sections nor a transcript of the proceedings of record in the trial court.

The attempted appeal raises no question reviewable by this court by either method of appeal, and the attempted appeal is dismissed.

DAVENPORT and CHAPPELL, JJ., concur.