text:
    JACK HARDIN v. STATE.
    No. A-8774.
    March 1, 1935.
    (41 Pac. [2d] 922.)

      J. Q. A. Harrod and Laynie W. Harrod, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst.. Atty. Gen., for the State.
   EDWARDS, J.

Plaintiff in error, hereinafter called defendant, was convicted in the common pleas court of Oklahoma county of unlawful possession of intoxicating, liquor, and was sentenced to serve six months in the county jail and to pay a fine of $500.

Complaint is made that the court erred in overruling defendant’s demurrer to the information because not signed by the county attorney. The photostatic copy of the information shows the name of the county attorney, by his assistant; the name of the county attorney appearing in typewriting or print. It is not disputed that Draper Grigsby, who subscribed the information, was a duly qualified assistant. Whether in typewriting or print, the subscription of the name of the county attorney was a sufficient compliance with the statute. In McMillan v. State, 31 Okla. Cr. 261, 238 Pac. 510, syllabus 2, this court held:

* * When the county attorney’s name is affixed with authority, though in typewriting, to an information which is signed by his duly appointed assistant, it is a sufficient compliance with the requirement of the statute. Section 2511, Comp. St. 1921.”

At the time charged, the sheriff’s office was informed of the shooting of one Ed Squires purporting to have been done by defendant at his home near the town of Choctaw. After some investigation, the officers went to defendant’s home to arrest him. They made the arrest, and then made a search of his residence for the gun with which the shooting was done. In making this search they found some 20 gallons of whisky. This occurred late in the evening, and the charge for unlawful possession was filed the following day. There is no dispute that defendant had the whisky. He did not take the stand and offered no testimony.

Before the trial, defendant filed a motion to suppress evidence as having been obtained by an unlawful search without a search warrant. After a hearing, the motion was overruled.

The contention is made that the court erred in overruling defendant’s motion to suppress evidence, since the search was without search warrant.

After being informed of the shooting, the officers interviewed several persons, including the person shot, and, as a result of the information secured, arrested defendant and as an incident to the arrest made the search. Section 2780, Okla. Stat. 1931, sets out the conditions under which an officer may arrest without a warrant:

“A peace officer may, without a warrant, arrest a person: * * *
“Third. When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.
“Fourth. On a charge, made upon reasonable cause, of the commission of a felony by the party arrested.”

The officers were authorized to arrest without a warrant. Sallee v. State, 51 Okla. Cr. 414, 1 Pac. (2d) 794. Welch v. State, 30 Okla. Cr. 330, 236 Pac. 68, syllabus 3:

“Arrest by peace officer who, from his own knowledge or facts communicated to him, has reasonable ground to believe accused guilty of felony is not unlawful.”

See, also, Gaines v. State, 28 Okla. Cr. 353, 230 Pac. 946; Sallee v. State, 54 Okla. Cr. 217, 17 Pac. (2d) 520; Moore v. State, 51 Okla. Cr. 411, 1 Pac. (2d) 813. See, also, Grau v. Forge, 183 Ky. 521, 209 S. W. 369, 3 A. L. R. 642. The officers having lawfully arrested defendant, the search was not unlawful, even though the evidence obtained thereby was of another crime. State v. McDaniel, 115 Cr. 187, 231 Pac. 965, 237 Pac. 373, 374, holds :

“Under Cr. L. §§ 1753,1757, defining ‘arrest’ as taking of person into custody that he ‘may’ be held to answer for ‘a’ crime, and providing that arrest may be made by an actual restraint, or by submission to custody of officer, held arrest for offense of drunkenness in public place or driving car while in intoxicated condition, and search of defendant was not unlawful because defendant was thereafter charged with an offense of which search showed him guilty, rather than offense for which he was arrested.”

Defendant next argues error in admission of incompetent testimony; the court permitting an officer to testify to statements made to him by Squires in defendant’s presence. In Vaughan v. State, 7 Okla. Cr. 685, 127 Pac. 264, 42 L. R. A. (N. S.) 889, it was held error for the court to permit an officer to testify to declarations made by a third person in the presence of accused and that accused remained silent. Testimony that defendant was silent was the prejudicial feature. That is not in the instant case. Here the officer further testified that accused told him it was his whisky. Some nonresponsive answers were made by state’s witnesses to questions by the state, but, when objections to such were made, the court sustained them, and instructed the jury not to consider them.

We find no substantial error. The case is affirmed.

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


source: Caselaw Access Project

author: DAVENPORT, P. J.

license: Public Domain

text:
    Ex parte G. C. WOOD.
    No. A-8863.
    March 8, 1935. .
    (42 Pac. [2d] 289.)
    G. C. Wood, in pro. per.
    Mac Q. Williamson, Atty. Gen., and Owen Watts, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

This is an original petition filed by G. C. Wood, petitioner, in which he alleges he is restrained wrongfully and unlawfully of his liberty by the warden of the state penitentiary at McAlester, and has been unlawfully restrained since the 25th day of September, 1933; that the cause of his unlawful imprisonment is that the warden holds a commitment from the district court of Tulsa county, sentencing the petitioner to a term in the state penitentiary, which commitment entitles the warden to hold him in prison until about the, 24th day of September, 1940. The petitioner states he has demanded his release and discharge, and his demand has been refused. He further alleges that his imprisonment is contrary to the statutory laws of the state of Oklahoma and the Constitution.

Petitioner further states that this petitioner should have been sentenced under section 2287, C. O. iS. 1921., now section 1769, O. S. 1931, but that he was sentenced under section 2125, O. S. 1931, which statute provides:

“Every person who sells, exchanges or delivers for any consideration any forged or counterfeited promissory note, check, bill, draft, or other evidence of debt, or engagement for the payment of money absolutely, or upon any contingency, knowing the same to be forged or counterfeited, with intent to have the same uttered or passed, or who offers any such note or other instrument for sale, exchange or delivery for any consideration, with the like knowledge and intent, or who receives any such note or other instrument upon a sale, exchange or delivery for any consideration with the like knowledge and intent, is guilty of forgery in the second degree.”

Section 2146, O. S. 1931, for forgery in the second degree, provides for imprisonment in the penitentiary not exceeding seven years.

The inquiry in this case is limited as to whether the court in which the petitioner was convicted and sentenced had jurisdiction of the person of the defendant and the crime charged, and whether or not the court imposed a sentence under the proper section of the statute. We find the court had jurisdiction of the person of the petitioner and the subject-matter, and had power to convict and sentence the petitioner under section 2125, O. S. 1931.

After a. careful consideration of the record before us, we hold the petitioner is not entitled to the relief prayed for. The writ is denied.

EDWARDS and DOYLE, JJ., concur.


author: PER CURIAM.

text:
    Ex parte G. C. WOOD.
    No. A-8828.
    March 8, 1935.
    (42 Pac. [2d] 290.)
    Moman Pruiett, for petitioner.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

In this case petitioner relies upon the same facts for his relief as stated in No. A-8863, this day decided (56 Okla. Cr. 444, 42 Pac. [2d] 289). Following the holding of the court in case No. A-8863, the writ is denied.


text:
    Ex parte A. E. BURRELL.
    No. A-8846.
    March 8, 1935.
    (42 Pac. [2d] 145.)
    A. E. Burrell, in pro. per.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

This is an original petition filed by the petitioner, in which he alleges that he is unlawfully restrained by the warden of the state penitentiary, at McAlester, and has been so wrongfully restrained since the 5th day of December, 1933; that the cause of his unlawful and wrongful restraint is that the warden holds a commitment from the district court of Oklahoma county sentencing this petitioner to a term in the state penitentiary, which commitment the said warden contends entitles him to hold in prison this petitioner until the 20th of March, 1937.

Petitioner further alleges that he has demanded his release and discharge, but the warden has refused to release him. Petitioner further alleges that he received a sentence of seven years for the crime of jail breaking, by the district court of Oklahoma county, on or about the 5th day of June, 1920; that said judgment and sentence of seven years is contrary to the statutes of the state of Oklahoma; that the judgment and sentence of seven years for the crime of jail breaking is void; and that the trial court was without jurisdiction to pass such judgment and excessive sentence.

It is further alleged that his commitment in prison on the commitment for a term of seven years, on a charge of grand larceny, is void and illegal, as he was never charged or tried for the crime of grand larceny but for the crime of jail breaking, and days that this court issue a writ of habeas corpus and release him from custody.

The warden of the state penitentiary, in his response to the petition, states that petitioner is in the state penitentiary for and on account of his conviction in the distinct court of Oklahoma county of the crime of grand larceny of an automobile, in a cause entitled, State of Oklahoma v. A. E. Burrell, No. 4632, on the said district court docket of Oklahoma county, and he holds the petitioner by reason of the said court having by the said conviction in said case passed and imposed the penalty and sentence of seven years on the defendant, to be served in the state penitentiary at McAlester. That the petitioner was by information charged with grand larceny and entered his plea of gnilty to said charge and was by the court sentenced to> serve a, term of seven years in the state penitentiary. A copy of the information on which the petitioner was sentenced and judgment and sentence accompany the response of the warden.

It is further shown that on October 4, 1920, the petitioner was granted by the Governor a leave of absence for a period of 90 days, and was released from the penitentiary; that said leave of absence was extended from time to time until May 5, 1921, when the Governor revoked the leave and ordered petitioner returned to the penitentiary. Upon the leave of absence being revoked, petitioner evaded the effort made to take him into custody and became a fugitive from justice, and remained at large until the 5th day of September, 1933, when he was taken into custody and returned and incarcerated in the penitentiary, to serve and satisfy the remainder of the unserved portion of the said penalty and imprisonment.

In this case the record discloses that the petitioner is in custody under a sentence of conviction of the district court of Oklahoma county. The inquiry is limited to the question as to whether the court in which the petitioner was convicted and sentenced had jurisdiction of the person of the defendant and of the crime charged. In this case the court had jurisdiction of the person of the petitioner and the subject-matter, and had power to convict and sentence the petitioner. Under the record before us the petitioner is not entitled to the relief prayed for.

The writ is denied.

EDWARDS and DOYLE, JJ., concur.


text:
    LOUIS DAFT v. STATE.
    No. A-8784.
    March 8, 1935.
    (42 Pac. [2d] 146.)
    Warren & Warren, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was charged by information with the crime of murder committed while under the influence of intoxicating liquor, by willfully, wrongfully, and feloniously driving and operating a motor vehicle, by driving said motor vehicle over and upon the body of one E. M. Johnson, from which injuries the said Johnson died; and was sentenced to imprisonment in the state penitentiary at McAlester, for and during his natural life.

Mrs. Emery Johnson, testifying in behalf of the state, stated:

“E. M. Johnson was my husband; on the 28th day of June, 1933, we had been to Hugo and was returning to Grant; we were driving along the right side of the road slowly, and I saw a light and said, Hoy, ain’t those bright lights,’ and as I said bright lights another car ran into us; this was about nine or a little later in the evening. This collision occurred about a half mile south of Hugo; Emery Johnson and I were pinned under the car; the car that collided with us flipped into the side of us; my husband was killed.”

On cross-examination witness stated:

“Just before the collision the light did not appear to be directly in front of us; we were driving about 25 miles an hour; I do not remember how far this car was from the curve; it was a pretty long distance, I do not know; I did not see the light of the car a great length of time before the collision.”

C. G. Morgan, testifying for the state, stated:

“The defendant and I were riding, in my car at the time of the collision; we left Commerce, Texas, about five or five-thirty in the afternoon; we had three bottles of 3.2 and defendant drank the contents of one and one-half bottles; I believe it was 3.2, we were not drinking any liquor, the 3.2 was all we had to drink.”

Dr. Kiser testified that while he was dressing the defendant’s wounds at the hospital he smelled the odor of whisky on his breath. One other witness also testified to smelling the odor of whisky. Miss Head, a nurse at the hospital, testified the defendant was sick and vomited, that it had a strong sour odor; but could not classify it as to what kind of liquor it was.

The foregoing is in substance the testimony offered as to any drinking the defendant did from the time he left Commerce, Tex., about 5 or 5:30 in the afternoon, until the collision occurred near Hugo about 9 o’clock in the evening, Commerce, Tex., being 70 miles or more from Hugo.

The defendant, testifying in his own behalf, admitted he was in the car with O. G. Morgan when the collision occurred; when they left Commerce, Tex., they had three bottles of beer; that he drank one and the half of another bottle; they did not drink any whisky; he did not see or smell any whisky about the car; at the time of the collision he was in possession of all his faculties, normal, and remembered everything up to the time of the collision; from the time of the collision, for several days thereafter, he did not remember anything; that he received injuries and was taken to the hospital and treated; defendant states positively he was not intoxicated or under the influence of any intoxicating liquor. This is the substance of the testimony of defendant.

Several errors have been assigned by the defendant as grounds for reversal. The only assignments of error it is deemed necessary to consider are the ninth, tenth, and eleventh errors. They will be discussed together.

The information in this case charged the defendant with driving an automobile upon the highway while under the influence of intoxicating liquor, and that by reason of the intoxication the car that the state charges the defendant was driving collided with the car in which the deceased, his wife, and other parties were riding, and that the deceased, E. M. Johnson, lost his life by reason of the collision. The state did not offer any evidence to show that the defendant was guilty of reckless driving-,, nor is there any allegation in the information that the collision was1 the proximate cause of the death of the deceased, E. M. Johnson. The information charged the driving of the car by the' defendant while under the influence of intoxicating liquor.

We have carefully examined the record, and read the testimony introduced by the state. The witness C. G. Morgan, the only party who had an opportunity to know what the defendant had done from the time he left Commerce, Tex., which was more than 70 miles from the scene of the collision, testified positively that he did not drink any whisky, that they had only three bottles of beer when they left Commerce, and the defendant drank the contents of one and one-half of the three bottles; they left Commerce about 5 or 5:30 in the afternoon and the accident occurred from three and a half to- four hours later; the state did not attempt to show by Mr. Morgan that the defendant was under the influence of intoxicating liquor. The only witnesses by which the state attempted to establish a state of intoxication of the defendant were the doctor and one other witness, who- claimed they smelled the odor of whisky on his breath. The defendant was unconscious when taken to the hospital; had several cuts and bruises, and states he does not know what took place for some time thereafter.

The defendant states positively that he was in possession of all of his faculties at the time of the collision; that he did not drink any whisky on the trip, and had only drunk that quantity of beer testified to by the witness Morgan. No offer is made by the state to show reckless driving.

After a careful consideration of all the testimony introduced by the state, and the evidence of the defendant, we feel compelled to hold that the evidence of the state, as to the defendant being under the influence of intoxicating liquor at the time of the collision, is wholly insufficient, and does not have sufficient weight to warrant this court in holding the testimony sufficient to sustain the conviction and judgment.

This court has repeatedly held that where there was any competent testimony to sustain the conviction it would not disturb the verdict of the jury; on the other hand, it has often held where there is no competent testimony to sustain the conviction, the court will reverse on the ground of insufficient evidence. Owens v. State, 11 Okla. Cr. 113, 143 Pac. 204; White v. State, 13 Okla. Cr. 76, 162 Pac. 232; Jefferson v. State, 31 Okla. Cr. 44, 236 Pac. 914.

The eleventh assignment relates to the failure of the court to instruct upon manslaughter. The defendant’s plea of not guilty put in issue all of the questions of law, and his theory and testimony was such that it was error for the court to fail to instruct the jury upon manslaughter.

There are several other errors possessing merit argued by the defendant, but the view we take of this case it is not necessary to consider them.

For the reasons herein stated, the case is reversed.

DOYLE, J., concurs. EDWAEDS, J., not partid-' pating.


text:
    BARNEY DIXON v. STATE.
    No. A-8762.
    March 15, 1935.
    (42 Pac. [2d] 286.)
    Mathers & Mathers and Bryan Phillips, for plaintiff in error.

      J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of the crime of burglary with explosives, and sentenced to serve a. term of 25 years in the state penitentiary.

The testimony in this case is circumstantial. On behalf of the state it shows that in a school building in district A, of Caddo county, Okla., there was a safe belonging to the district in which various sums of money were placed for safe-keeping; that on Thanksgiving night in 1933 the school building was broken into and the safe blown open by nitroglycerine or some other explosive, and all the money in the safe taken. The state further shows that a young man living in the adjoining apartment to the defendant and his family heard a conversation between the defendant and his daughter Juanita and another man whom he did not recognize, in which conversation the daughter explained to- the defendant the location of the safe, the doors that entered the building, and the office. The same night, about 3 or 4 o’clock in the morning, the proof shows another young man was sleeping in the adjoining apartment to the apartment of the defendant who heard a noise and looked through a hole in a beaver board that made the partition between the two apartments and saw the defendant and another man counting paper bills and silver money; that he made some noise and immediately the lights were turned out.

The lady from whom the defendant was renting testified on behalf of the state that two or three days before the safe was blown the defendant had advised her he could not pay his rent but would have the money in a few days.

The superintendent of the building, who had placed the money in the safe the evening before the safe was blown that night, testified the doors were locked, that the safe was closed and the combination on, and also gave the amount of mony that was in the safe; among the bills was a $5 bill with a corner torn off; a punch bar was found in the building near the safe which had been taken from a nearby garage where the defendant had at one time worked.

When the defendant was arrested, among the bills found on his person was a $5 bill with a corner torn off, which Avas identified as being like the torn bill placed in the safe with the other money. The defendant, Avhen searched, had several one dollar bills and some fives on his person. When his home was searched, in his wife’s purse, found on the bed under a pillow with a doll sitting on the pillow, was found about $24.75 in silver.

The defendant denied he had anything to do with the blowing of the safe and the taking of the money, and attempted to account for the money on his person, stating, he acquired the money picking cotton and other labor. The wife testifying she had sold a sewing machine for $15 or more. Evidence was introduced on behalf of the defendant tending to prove an alibi, by showing he had not left his home from early in the evening until the next morning.

The foregoing is in substance the testimony introduced both by the state and defendant material to the issue joined by the plea of not guilty by the defendant.

Among other assignments the defendant states: “The court erred in overruling the plaintiff in error’s motion for a new trial, duly excepted to at the time.” This is the only error that is necessary to be considered for the reason that the motion for a new trial raises all the questions embraced in the other assignments of error. It is earnestly insisted by the defendant that the testimony is insufficient to sustain the verdict and judgment.

This court has carefully read the record, and, while the testimony is circumstantial, it was submitted under proper instructions by the court to the jury. If the jury believed the evidence of the state, the verdict of the jury is sustained by the evidence. It is clearly shown by the verdict that the jury did not rely upon or believe the evidence of the defendant as to his'alibi or as to where he secured the money found on his person, and at his home when the search was made. The only questions are, Did the defendant in this case have a fair and impartial trial? Did the court correctly instruct the jury as to the law applicable to the facts? and, Did the court commit an error in the admission or rejection of evidence?

It is earnestly urged by the defendant that the court erred in permitting the county attorney, in his closing argument to the jury, to make in substance the following, statement with reference to the daughter of the defendant not testifying: “They say she was supoenaed as a witness for the state. Under the law I could not cross-examine her. If I put her on the stand and she told the things she said, I could not impeach my own witness— I could not cross-examine her.” It is apparent from the statement of the county attorney that some one of the attorneys in their argument must have referred to the fact that Juanita Dixon had been subpoenaed by the state and not called as a witness by the county attorney.

In Cherry v. State, 33 Okla. Cr. 37, 241 Pac. 833, this court held that where the defendant’s attorney mentioned the failure of the defendant to take the stand, it was not error for the county attorney to comment upon that fact.

In Soper v. State, 22 Okla. Cr. 27, 208 Pac. 1044, this court held, when the defendant’s attorney attempts to explain why the defendant did not take the stand, the county attorney may answer him. The statement of the county attorney apparently was in reply to the argument of the attorneys for the defendant, and is not reversible error.

It is next urged by the defendant that the county attorney committed error in his argument to the jury when he made the statement, “If the truth be known there has been other crimes committed by the defendant, perhaps.” This statement was objected to and the court sustained the objection and admonished the jury not to consider the same.

This court has repeatedly had this question before it and has universally held that when objections are made and sustained by the court, and the jury admonished not to consider the same, the objectionable remarks do not constitute reversible error. Gardner v. State, 5 Okla. Cr. 531, 115 Pac. 607; Gunnells v. State, 7 Okla. Cr. 98, 122 Pac. 264.

The next question argued by the defendant is that one of the jurors by the name of Maxwell was not a competent juror, and that by reason of his presence on the jury the defendant did not have a fair and impartial trial. An examination of the record shows this question was not raised until the motion for a new trial was filed. No objection was made to' the juror at the time he was called and examined on his voir dire. The defendant was well acquainted with the juror Maxwell, and when the juror was called to be examined, the record fails to show that the juror was questioned as to his bias or prejudice against the defendant.

In Horton v. State, 10 Okla. Cr. 294, 136 Pac. 177, this court stated:

“Where a defendant accepts a juror without availing himself of the right to examine such juror on voir dire, or without availing himself of the right to challenge him for cause, he will not, after conviction, be allowed to make the objection that the juror has formed and expressed an opinion adverse to him, as a ground for a new trial.”

In view of the condition of the record presented, this court cannot say that the defendant’s complaint is well founded. In order for the defendant to predicate error on account of the declaration of the juror Maxwell, averred in defendant’s statement in support of his motion for a new trial, it is necessary for the record to show affirmatively that the said juror had been examined on voir dire and had stated under oath he was not biased or prejudiced and had not expressed an opinion as to the guilt of the defendant. This record contains no recital of such examination. A defendant must exercise all the rights he has under the statute to find out whether or not the juror is qualified before he can take advantage after verdict that such juror was incompetent or disqualified. The defendant has not shown sufficient grounds to entitle him to a new trial on account of the prejudice of the juror Maxwell.

There are many other errors assigned by the defendant not possessing sufficient merit to justify the court in continuing this decision at great length. Suffice it to say, we have carefully considered and studied the testimony in this case, the instructions of the court, and the arguments complained of, and hold that the evidence is sufficient to sustain the verdict and judgment; that the court correctly instructed the jury as to the law applicable to the facts; that the defendant was accorded a fair and impartial trial. There are no errors in the record possessing sufficient merit to warrant a reversal.

The judgment is affirmed.

DOYLE, J., concurs. EDWARDS, J., not participating.


text:
    BEN AXTON v. STATE.
    No. A-8796.
    March 15, 1935.
    (42 Pac. [2d] 285.)
    Amey & Barker, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for tbe State.
   DAVENPORT, P. J.

Tbe plaintiff in error, for convenience hereinafter referred to as tbe defendant, was convicted of having in bis possession and under his control one complete copper still and condenser, and sentenced to pay a fine of $50i and serve 30 days in jail.

Tbe evidence of tbe state shows that on property controlled by tbe defendant, about a half mile from his home in a cavern or creek bed, a still fully equipped was found. Some tracks in or near the place where the still was found led out toward the defendant’s home; a wagon track found somewhere in the timber the state claims was the same size tread of the wagon used by the defendant.

The defendant denied any connection with the still, ownership of, possession, or control. Many of his neighbors testified in his behalf, and described the country around and near where the still was found, and gave testimony as to the defendant’s good reputation in the community.

.Several errors have been assigned by the defendant and argued in his brief as grounds for reversal. The only error it is deemed necessary to consider is the question of the sufficiency of the evidence to sustain the verdict and judgment. This court has many times held that where there was any competent testimony to sustain the conviction it would.not disturb the verdict. On the other hand, it has often held where there was no competent testimony to sustain a conviction the court would reverse on the ground of insufficient evidence. White v. State, 13 Okla. Cr. 76, 162 Pac. 232; Jefferson v. State, 31 Okla. Cr. 44, 236 Pac. 914.

The defendant is charged with the possession of a still. There is no evidence in the record to show that the defendant owned, controlled, was in possession of, or had anything to do with the still found by the officers. Each of the witnesses stated they did not see the defendant at or near the still, or exercising any ownership or possession over the same, and that it was found about a half mile from the defendant’s home in a canyon; or the bed of a creek on lands that the defendant controlled.

The evidence is circumstantial. It raises a strong suspicion of defendant’s guilt, but falls far short of ex-eluding every other reasonable hypothesis than the guilt of the defendant. Sharer v. State, 44 Okla. Cr. 252, 280 Pac. 629.

It is the duty of this court, where there is an entire failure of evidence, to set aside the verdict and judgment of conviction.

In Blackwell v. State, 48 Okla. Cr. 156, 290 Pac. 352, this court said:

“The evidence must be such that the jury may reasonably and logically find the guilt of the defendant, and, where it raises no more than a suspicion of guilt, it is insufficient.” La Grone v. State, 32 Okla. Cr. 45, 239 Pac. 938; Tipton v. State, 38 Okla. Cr. 74, 258 Pac. 1053; Lunsford v. State, 38 Okla Cr. 233, 260 Pac. 514, 515.

In Key v. State, 22 Okla. Cr. 284, 210 Pac. 1044, this court said:

“Where, in a criminal case, circumstantial evidence is entirely relied upon for conviction, the facts and circumstances must not only be consistent with and point to the guilt of the defendant, but must be inconsistent with his innocence. It is the duty of the trial court in a criminal case, where it deems the evidence insufficient to warrant a conviction, to advise the jury to acquit.”

The evidence is insufficient to sustain the verdict and judgment. The case is reversed and remanded.

DOYLE, J., concurs. EDWARDS, J., not participating.


text:
    ROBERT CARGO v. STATE.
    No. A-8845.
    March 22, 1935.
    (42 Pac. [2d] 551.)

      Ralph Keahey, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The offense is alleged to> have been committed the night of March 7, 1934. The deceased, A. L. Luke, resided at Asbury and Main street, in Bethany, Oklahoma county, Okla. On the night of March 7, 1934, C. H. Padgett, who was working for the deceased, went to his home to deliver to- him some money he had collected for trees he had sold. The defendant, who had been living in the neighborhood of Bethany, was there. The night of March 7, 1934, defendant left the locality of Bethany, and was supposed to have gone to Texas to assist in hauling fruit to the markets in Oklahoma City and other places in Oklahoma. The deceased was not seen about his place the next day, and, when his home was entered into, his remains were found. He had been killed by the use of a hatchet, his head being crushed, gashed, and badly (mutilated. The automobile of the deceased was gone, his billfold was found in the house containing no money, his hat in a crushed condition was also found in the room, and the watch and gun of deceased were also missing.

An investigation was made by the officers, and it was learned that defendant was a native of Alabama, was born and reared near the city of Birmingham. The officers got in communication with officers at Birmingham, and defendant was located and arrested. When arrested, he had the car of deceased bearing the same license tag the car of deceased had when taken. After his arrest, he confessed to the officers that he killed the deceased. The county attorney, Mr. Lewis R. Morris, Sheriff Stanley Rogers, and a deputy, Mr. Eads, went to Birmingham and returned the defendant to Oklahoma City. While in Birmingham defendant made a confession telling how he killed the deceased, and stating he took the property of the deceased with him, including the car; that on the road to Alabama — in Memphis — he pawned the watch and gun. As they came through Memphis, they tried to locate the pawnshop, but were unable to do so.

In his confession, among other things, the defendant states:

“Mr. Luke was sitting in a chair when I got there. I got into an argument with him about automobiles; he said I did not know what I was talking about, and I got about half way mad. He had his back to me and I got the hatchet and hit him somewhere in the head. I don’t know how many times I hit him. After I hit him with the hatchet I took 12 or 13 dollars from him, his white gold watch, and his car keys, got his car and drove it to Oklahoma City.”

Further on in his conversation he says:

“I got to Birmingham some time before daylight Saturday morning and I went to Ruth Higginbottom’s home. I did not tell them anything about how I got the car. The officers arrested me Monday morning, March 23, 1934, and took me to a garage in Trafford, Ala., and we got into the car which they had stored there and I rode to jail in the car. This was the same Chevrolet coupe, 1931 model, that I had stolen from Mr. Luke in Bethany the night of March 7, 1934.”

In the trial of the case the officers who went after the defendant testified to his making the statement voluntarily and without any compulsion. The defendant testified he was 20 years of age, and that he was born and reared in Jefferson county, Ala., 15 miles from Birmingham; he had been in Oklahoma about six months prior to the date of the killing; had been living with his brother Fred near Bethany, Okla., where his brother was running a store; he had worked some for the Morgan Dairy, and different other parties; had known Mr. Luke four or five months; had talked with him quite often and had been to his home four or five times.

“I got to his house the night of the killing after dark, about 7 o’clock; went in the front part of the house which was used as an office. I was there with Mr. Luke when Mr. Padgett came. Mr. Padgett stayed just a few minutes. He paid Mr. Luke some money. Mr. Luke had some whisky and asked me if I wanted a drink, and I told him yes, I believed I did. The liquor was in a quart fruit jar. He brought the liquor to the front room and I took a drink, and Mr. Luke took a drink out of the fruit jar. We got into an argument over automobiles and how much they had improved, and he called me a liar, and said, ‘You are just a God damned liar,’ and I said I wasn’t, and there was a little bookcase standing next to the wall and a hatchet on it, and he attempted to hit me with it. After he struck me here on the hand, there was a 410 shotgun setting just inside the door. I took the hatchet away from Mr. Luke and we had quite a scuffle and turned the desk chair over. When I got the hatchet he started for the shotgun, and said, ‘God damn you, I will fix you.’ When he started for the shotgun I hit him with the hatchet in the back of the head somewhere and knocked him down. I don’t know how many licks I hit him. After I realized what I had done I taken his money and his keys and watch and left. I did not know what else to do. I took the gun with me and threw it into a river somewhere on the road. I spent the night in Oklahoma City and the next morning went on to Alabama.”

The defendant called a number of parties to show his actions were that of a mere child and not that of a boy of twenty years of age. The defendant stated deceased was drinking and had whisky in the house, and had him drink whisky before he killed the deceased. The witness Padgett’s testimony shows that he smelled no whisky on the breath of deceased when he delivered the money and no evidence of whisky was found at his home when it was searched after the body of the deceased was found.

The confession of the defendant at Birmingham makes no mention of there having been any whisky at the home of the deceased the night of the killing. The foregoing is in substance the testimony introduced at the trial.

The defendant has assigned several errors alleged to have been committed by the trial court sufficient to warrant this court in reversing the case. The first assignment is the only one that is necessary to' be considered by this court, and that is:

“Said court erred in overruling the motion of the plaintiff in error for a new trial.”

The motion for a new trial covers all the other assignments, and in the consideration of this case by the court all of the errors in the motion for a new trial will be carefully considered. The defendant discusses the action of the court in overruling his motion for a new trial, and at length argues the question as to an agreement alleged to have been made by the county attorney and the chief counsel for the defendant. In his argument he insists that the agreement between counsel was that the prosecution would not ask for the death penalty, and that by reason of the agreement the defendant waived his right for a continuance at the beginning of the trial. The defendant argues that, by reason of the failure to carry out the agreement alleged to- have been made, the defendant was denied a fair and impartial trial because of the irregularities of the alleged agreement, citing, in support of his contention Wright v. State, 7 Okla. Cr. 280, 123 Pac. 434, and several other cases. The cases cited by the defendant are not applicable to- the facts argued by the defendant, for the reason the record in the case clearly shows that, prior to the commencement of the trial, the defendant made no statement in open court that an agreement had been entered into' with the county attorney as to the manner in which the defendant was to be tried. If counsel for the defendant was misled or believed he had any such agreement with the county attorney, this should have been called to' the attention of the court. Counsel did not do this, and the record further discloses that in the examination of the jurors, each juror was asked if he had any conscientious scruples against the infliction of the death penalty, and each juror that, answered he had any conscientious scruples against inflicting the death penalty was excused from service. It is clearly shown from the beginning of the trial until its conclusion that the state intended to ask the death penalty.

On the hearing of the motion for a new trial, when the evidence was introduced by both sides as to whether the county attorney had agreed with defendant’s chief counsel he would not ask for the death penalty, the county attorney introduced correspondence, in which, among other things, it was stated to' Mr. ,St. John, the chief counsel for the defendant:

“After giving this case considerable thought we have come to the conclusion that the case should have been tried, and therefore we have set it for trial on the 28th day of May. Under the circumstances I do not feel like making a recommendation in this case, as I feel that whatever the judgment and sentence should be imposed should be left to the court or to the jury after being advised of the facts.”

Further on the county attorney states:

“On Friday before the case was called for trial Mr. St. John came to my office and talked to me and I advised him my office would not agree to the entering of a plea of guilty in the case and making a recommendation to' the court of a life sentence. That I thought it was a case that ought to be tried and left to a jury, and if he wanted to just go down and enter his plea of guilty before the court I would be glad to state the facts but would make no recommendation to the court after the court had heard the facts.”

The record clearly shows that the contention of the defendant as to' an agreement between the county attorney and the chief counsel for the defendant is not borne out by the record; therefore the contention of the defendant as to the agreement as to what sentence should be imposed on the defendant is without merit.

It is next urged by the defendant that the court erred in refusing to permit him to introduce testimony to show the regular habits of the deceased, which would have materially affected the outcome of the trial, defendant arguing that deceased was an habitual drunkard, and that, on every occasion he had been to the home of deceased, deceased had furnished him with whisky. This contention of the defendant is without merit, for the reason that, if it was a fact deceased was in the habit of drinking intoxicating liquor, it would not be a legitimate defense to taking deceased’s life because the deceased happened to be a man who would take a drink occasionally. The state did not offer to conceal the fact that deceased occasionally took a drink. Considering the testimony of the defendant and the confession made in Alabama, we hold that the defendant was not prejudiced by the court refusing to permit testimony as to the deceased being an habitual drunkard.

The defendant further urged that the court erred in the admission of the testimony on the part of the state in rebuttal with regard to the hat of deceased which was not properly connected with the action of the defendant by the direct testimony of the state, and that the evidence introduced in rebuttal was evidence that should have been introduced in chief. This court has held that, where the court permitted evidence in chief to be introduced in rebuttal, it was not such an error as would require a reversal. Johnson v. State, 21 Okla. Cr. 17, 204 Pac. 311; Claycomb v. State, 22 Okla. Cr. 315, 211 Pac. 429.

The fact that evidence may have been introduced in chief by the state does not prevent its introduction as evidence in rebuttal. The introduction of such evidence is a matter of discretion of the trial court and will not be ground for a reversal unless an abuse of discretion is shown. Seigler v. State, 11 Okla. Cr. 131, 145 Pac. 308, 309; Cochran et al. v. U. S., 14 Okla. 108, 76 Pac. 672.

In admitting the testimony complained of by the defendant, the court did not abuse its discretion.

The defendant further argues that the court erred in failing to grant a new trial or in failing to allow the defendant to show that at least one juror was prejudiced to the detriment of the defendant and that he did not answer truthfully on his voir dire, which was not known to the defendant until after the trial. The record discloses that in selecting the jurors in this case the defendant waived his ninth peremptory challenge, thus showing he was satisfied with the twelve jurors selected, clearly showing that the defendant was not compelled to take an incompetent or prejudiced juror, and the presumption is, in the absence of a contrary showing, that the jury was composed of impartial and qualified jurors, and the defendant cannot be heard to complain if he does not get a competent jury. Coatney v. State, 52 Okla. Cr. 70, 2 Pac. (2d) 604.

The next and only argument necessary to be considered by this court is the assignment that the judgment rendered against this defendant was not sustained by the law and the evidence. An examination of 'the record shows by the confession and the testimony of the defendant that defendant killed the deceased with a hatchet; the state’s testimony shows the head of the deceased had been hacked, cut, and bruised in several places. The confession of the defendant shows he took the life of the deceased, he took the money of the deceased, watch, gun, and car and left the scene of the slaying without informing any one he had had trouble with the deceased and had probably killed him.

The testimony further shows that the defendant, the day before he killed the deceased, was telling different parties he had arranged to join a truck company and go to Texas and assist in hauling fruit and vegetables to the Oklahoma market and other places, which would account for his absence a sufficient length of time for him to get away before the death of deceased would be discovered, thus indicating and showing he had in mind to- rob the deceased and to kill him, if necessary. In his confession at Birmingham, Ala., the deceased makes no mention that he and the deceased were drinking and fails to say anything about the deceased trying to get a gun.

The record on behalf of the state and defendant clearly shows that defendant premeditatively planned the killing. An effort was made on behalf of the defendant to show his mental condition as being that of a child; one good lady testifying the reason she believed it was the defendant enjoyed playing with her ten year old son. The defendant was twenty years of age. All persons having red blood in their veins and cherishing and revering the memory of mother love children and delight in amusing and entertaining them. This act is one of the best evidences of sanity.

We have carefully considered the record in this case, and cannot conceive how a jury could have done other than it did when it returned its verdict of guilty and imposed the death penalty. The record discloses this to be a coldblooded murder committed for the purpose of robbery. Society will tolerate no such conduct as the defendant was guilty of in this case. We have carefully examined the record, including the instructions in this 'case, with the care its importance deserves, and feel that the defendant was accorded a fair trial. The judgment is affirmed.

The original time for the execution having passed, owing to the pendency of this appeal, it is considered, ordered, and adjudged by this court that the judgment and sentence of the district court of Oklahoma county be carried out by the warden of the state penitentiary at Mc-Alester by electrocution of the defendant on Friday, May 24', 1935.

DOYLE, J., concurs. EDWARDS, J., not participating.


text:
    HARRY GALLIGAN v. STATE.
    No. A-8773.
    March 22, 1935.
    (42 Pac. [2d] 550.)
    W. F. Duncan, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (J. H. Lawson, of counsel), for the State.
   PER CURIAM.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of unlawfully transporting intoxicating liquor, and his punishment assessed at thirty days in jail and a fine of $50.

Warren Harrington, a witness for the state, testified in substance that on June 28, 1933, he had a deputy sheriff’s commission; in company with Charley Sherrill, Slim Elliott, and Lewis Ledbetter, south of Hitchcock, as they came over a rise, they saw two cars standing in the road; the defendant was in a model T Ford coupe, and another man in a Chevrolet; they saw something passed from the Ford coupe to the Chevrolet; they drove past the cars before they stopped; they stopped the Meehan car first, and “defendant came on by and I told him to stop; he kept on driving; I stayed with Meehan; Elliott and Led-better followed the car; when I drove up to where defendant’s car had been stopped there was some conversation but I did not pay any attention to it.”

C. B. Elliott testified in substance the same as Harrington up until the time they came up to where the Mee-han and defendant’s car was in the road; the defendant’s car had passed where we had stopped and drove on up the road.

“Before we overtook him near a culvert or bridge over a small creek — there was probably sixty yards between his car and ours — the defendant’s ear door opened; we did not stop at the place where the defendant’s car door opened, we kept on after the defendant; we later found by the side of the road a half gallon of whisky; it was not hid in any grass; I saw the fruit jar lying on the ground.”

On cross-examination witness stated he had a commission as constable at the time he was following the defendant up the highway; they shot the tires of defendant’s car down.

“We had no search warrant for the car nor to search his person.” The foregoing is the substance of the testimony and the only evidence offered by the state.

At the conclusion of the' state’s testimony, the defendant demurred to the testimony for the reason that the same was insufficient to prove the crime charged in the information against the defendant, or any other crime, which demurrer was overruled and duly excepted.

The evidence in this case clearly shows that the officers, while driving up the highway, came near where the defendant was in his car talking to some one. The officers drove by the cars and stopped, and then without any knowledge that the defendant in any way whatever was violating the law started pursuing his car and finally shot down the casings on defendant’s car. Some of the evidence shows that the door of defendant’s car opened, and later on the side of the road the officers claimed to have found a jar of whisky. No one knew to whom it belonged, and no one saw it thrown from defendant’s car.

The shooting down of the casings of the defendant’s car was without justification in any way. Officers of the law should know and understand they have no authority to use firearms in making arrests for misdemeanors, unless the offenders resist the arresting officer. Isbell et al. v. State, 7 Okla. Cr. 736, 123 Pac. 1130.

The testimony and conduct of the prosecuting witnesses failed to show the commission of the offense charged with that certainty and satisfaction that justifies this court in affirming the judgment, and it is therefore reversed.


text:
    F. J. MEEK v. STATE.
    Nos. A-8484, A-8485.
    March 22, 1935.
    (42 Pac. [2d] 550.)

      See, also, 165 Okla. 80, 25 Pac. (2d) 54; 169 Okla. 89, 36 Pac. (2d) 267; 54 Okla. Cr. 412, 415, 22 Pac. (2d) 933, 938.
    Chas. West, for petitioner.
    Mac Q. Williamson, Atty. Gen., for the State.
   PER CURIAM.

The petitioner, F. J. Meek, has presented an application for leave to- file a petition for cer-tiorari, in which petition he states: “Petitioner prays leave to file a petition for certiorari of the proceedings and sentences in two certain cases pending in the district court of Oklahoma, for Osage county, being respectively Nos. 2321 and 2322 in said court.”

Petitioner further alleges as a ground for his application that there was a failure of said lower court to have jurisdiction of the proceeding because there was no- valid information or indictment therein, and he was held and prosecuted in violation of the due process clause of the Constitution of the United States, in the Fourteenth Amendment thereto.

The petitioner further alleges in substance that the statute under which he was tried and sentence imposed is unconstitutional, and that his conviction and. sentence is without authority of law.

The petitioner appealed to- this court from the judgment and sentence of the trial court, in two- cases, Nos. A-8484 and A-8485, on the docket of this court. In a hearing before this court in the cases in which the petitioner was plaintiff in error, the question of the constitutionality of the law was decided by this court. Petition for rehearing was filed and overruled; in due course the mandate of this court issued to the district court of Osage county, where the cases were tried. There is no new question raised in the application for certiorari. The questions presented were briefed and argued in the original appeals. The constitutionality of the act and the sufficiency of the information was passed on by this court in the cases appealed.

From the application presented by the petitioner for a writ of certiorari, the petitioner is seeking to have this court review its own opinion on the questions and law presented by the plaintiff in error, notwithstanding the cases were decided. Petition for rehearing was filed and overruled.

We hold that petitioner’s application does not present facts sufficient for this court to grant the application and order the petition for writ of certiorari filed. The application for leave to file is denied.


text:
    M. T. BATES v. STATE.
    No. A-8811.
    March 29, 1935.
    (42 Pac. [2d] 904.)
    Harry C. Hicks, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was by information charged jointly with Pete Cunningham, tried separately, convicted of selling intoxicating liquor to a minor, and sentenced to pay a fine of $50 and to servé 30 days in jail.

The evidence of the state in substance is that a football game was in progress at Hollis, Harmon county, Okla.; Jay Day, Jr., Cash Moore, and Dale Hunter were together at the football game and decided to get some whisky; together they raised $1 and turned it over to some one; later, while on the line where the football game was in progress, some one came and nudged Cash Moore and they walked out in the dark and a party handed to Cash a bottle containing whisky. No' one else was present at the time; the other boys were about 100 yards away from where this whisky was delivered.

The defendant, testifying in his own behalf, states positively that he was at the ball game the evening mentioned, but he did not remember having seen Cash Moore or the Hunter boy; he saw Pete Cunningham, but Cunningham; did not give him any money for whisky; that he did not have any whisky with him, and did not deliver whisky to either of the boys.

The witness Cash Moore states he did not know who delivered him the pint of whisky, and did not remember seeing the defendant the evening of the alleged offense.

The officer testified he saw the minors named give some money to a man by the name of Cunningham; that he saw Cunningham talk to the defendant, but did not see Cunningham give the defendant any money; later on he saw Bates nudge Cash Moore and take him out of the crowd, by some cars; that defendant had something in his hand and Moore took it. If this testimony is true it tends to show that the defendant was guilty of transporting whisky, or having whisky in his possession, but it does not establish the fact of a sale with that definite certainty that is required nnder the law to sustain a conviction.

The defendant insists that the court erred in refusing to direct the jury to return a verdict for him. It will be noted from the record that the defendant was charged with selling intoxicating liquor to Jay Day, Jr., Cash Moore, and Dale Hunter, minors. There is no testimony in the record showing that the defendant sold any whisky to the minors named, nor is there any testimony in the record tending to show that he sold any whisky to either of the minors.

Upon a, careful consideration of the evidence, we are constrained to hold that it is not sufficient to sustain a verdict of guilty of selling intoxicating liquor to Cash Moore. When we recall the presumption that the law always indulges as to the innocence of the accused of crime, and the necessity to establish the guilt of the defendant beyond a reasonable doubt, we think it would be a subversion of this rule to allow the conviction to stand. The defendant, as a witness, met the charge with a positive denial of selling, whisky to either of the minors mentioned in the information. Benson v. State, 10 Okla. Cr. 16, 133 Pac. 271; Matheny v. State, 37 Okla. Cr. 369, 259 Pac. 175; Tipton v. State, 38 Okla. Cr. 74, 258 Pac. 1053.

On a consideration of the evidence we are of the opinion as a matter of law it was not sufficient to- warrant a submission of the case to the jury as to the sale of intoxicating liquor. It follows that the judgment should be reversed,' and the same is hereby reversed.

DOYLE, J., concurs. EDWARDS, J., not participating.


text:
    FRANK GING v. STATE.
    No. A-8816.
    March 29, 1935.
    (42 Pac. [2d] 902.)
    E. W. Snoddy, for plaintiff in error.
    J. Berry King, Att-y. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, for convenience hereinafter referred to as the defendant, was convicted of having possession of a still, and sentenced to pay a fine of $50 and serve 30 days in jail.

The state called Neis Nelson, who testified, in substance, that he was a deputy sheriff on the 3d day of April, 1934. The witness identified state exhibit A, which was a search warrant issued to search the premises of the defendant; the defendant objected to the identification of the search warrant by the witness, which objection was overruled and exceptions saved. The county attorney then offered in evidence state exhibit A, the same being the search warrant, and the defendant objected to the same on the grounds that it was incompetent, irrelevant, and immaterial. The objection was overruled and defendant duly excepted. The allegations in the search warrant are as follows: “That intoxicating liquors are being manufactured, sold, bartered, given away and otherwise furnished and being manufactured and kept for the purpose of sell- • ing, bartering, giving away and otherwise furnishing in violation of the laws of the State of Oklahoma, by certain persons, to-wit: one Frank Ging, in a certain building, to-wit: the buildings, houses, barns, caves, silos and appurtenances thereunto belonging located on the E% of the NE% and the NW14 of the NE% and the E% of the SE% all in sec. 25-23-14, W. I. M., Woods county, Okla.; that said premises are a place of public resort; that the said Frank Ging has the general reputation in the community where he resides of being a moonshiner; that the said premises have the' general reputation in the community where located of being a place where intoxicating liquors are made and manufactured; that said Frank Ging on or about the 27th day of March, 1934, purchased a condenser for a still; that affiant was near the premises on April 2, 1934, and while there could smell the odor of whisky mash.”

There were other witnesses wlm testified for the state, but the view we take of this record it is not necessary to set out the testimony or refer to the same.

The only error that it is necessary for this court to consider is as follows: “Because the court erred in admitting in evidence the search warrant offered by the State of Oklahoma, and recitations therein, over the objections of the plaintiff in error.”

This question has been before this court many times. The allegations in the search warrant which were admitted over the objections of the defendant, as evidence in chief, put in issue the reputation of the defendant, his home, and his place of business. The state had no right to go into the reputation of the defendant until it has first been put in issue by him, which has not been done in this case. We hold the objection of the defendant to the introduction of search warrant was well taken and the court should have sustained the same. Beatty v. State, 34 Okla. Cr. 418, 246 Pac. 1103; Welch et al. v. State, 35 Okla. Cr. 2, 246 Pac. 1113; Lumpkins v. State, 36 Okla. Cr. 256, 253 Pac. 909; Leigh v. State, 41 Okla. Cr. 332, 273 Pac. 280; Phillips v. State, 43 Okla. Cr. 174, 277 Pac. 669; Bruner v. State, 44 Okla. Cr. 425, 281 Pac. 319; Johnson v. State, 52 Okla. Cr. 76, 2 Pac. (2d) 972.

The recitations in the search warrant are with reference to- the offense charged, and the introduction of the search warrant as independent evidence in chief was an error prejudicial to- the rights of the defendant.

For the reason herein stated the case is reversed.

DOYLE, J,, concurs. EDWARDS, J., not participating.


author: DOYLE, J.

text:
    A. P. BOUYER v. STATE.
    No. A-8812.
    March 29, 1935.
    (43 Pac. [2d] 153.)

      W. P. Morrison and John Morrison, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson and J. H. Lawson, Asst. Attys. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction of the defendant in the common pleas court of Oklahoma county, for the offense of “leaving the scene of an accident without giving information.”

The information charges that on the 5th day of April, 1934, in Oklahoma county, A. P. Bouyer did then and there commit the said offense, specifying: “The said defendant did then and there unlawfully, wilfully and wrongfully while driving and operating a certain 1929 Model Ford coupe automobile, Oklahoma license No. 302A555 — 1934, on Highway 66 at 60th and Western, near the Oklahoma Railway underpass, adjacent to' Oklahoma City said county and state, and going north on said highway, did strike one A. H. Gray, with the aforesaid automobile and seriously injuring the said A. H. Gray, and then and there failed to stop and give the said A. H. Gray the number of such automobile, the name of the owner and the names of the passengers and the address of each one.”

The jury rendered a verdict finding the defendant guilty as charged, but could not agree upon the punishment, thus leaving the same to be fixed by the court.

Motion for new trial was duly filed, and was by the court overruled; thereupon the defendant was sentenced to imprisonment in the county jail for one year, and to pay a fine of $500, and in default of the payment of the fine he be imprisoned in said county jail for a period not exceeding one day for every dollar of said fine and the costs.

The evidence upon which the defendant was convicted is conceded to establish the following facts:

A. H. Gray, on April 5, 1934, at about the hour of 8:30 p. m., was walking along North Western avenue on his way home, at Britton. When he reached a point near the underpass under the Oklahoma Railway, he was struck from the rear by a Ford car. Being rendered unconscious by this blow, he was unable to identify either the car or the driver. The driver, without stopping his car, drove on at a rapid pace, and less than a mile north, turned into Nichols Hills.

B. W. Haynes testified in substance that on the date alleged, about half past 8 o’clock p. m., he ivas driving towards the underpass going south; that, when about 150 feet north of the underpass, he saw a Ford coupe driven up the road towards him, with only one light, and that, just before coming to the underpass, the Ford car swerved to the left and, passing it, came over so far towards him that it crowded him off the pavement; that this Ford car was driven by a negro. He further testified that, when he passed under the underpass, he saw an object of some kind lying at the side of the road, and he stopped and went back to where he had seen the object, and discovered that it was a man lying on the east side of the road; that he then went back north to a confectionery near the entrance to' Nichols Hills, and inquired of some boys if they had seen a car go by there with one light, and they told him they had.

Earl Veatch testified that on April 5, 1934, about 8:30 in the evening, he was at Sixty-Third and Western, at the City View Confectionery, which is just a little southeast of the entrance to Nichols Hills; that while he was there a colored boy came by in a Ford coupe which had only one headlight burning, and the car turned into Nichols Hills; that he went down to the scene of the accident, and a man that had been hit was lying about a foot from the pavement.

Paul Conray testified that on the 5th of April, in the evening, about 8:30 or 9 o’clock:

“A bunch of us boys were standing around 63d street, and a blue 1929 Ford coupe came by there pretty fast. A few minutes after the car passed a, man drove up and asked if we had seen a car go- by with one light, and we said we had. He said there was a man hit down there by the underpass about a half mile south. We went down there and a few minutes later the police came up and asked for, and we gave them our names.”

C. S. Emerick testified that he was driving, north on North Western avenue and there was a dark blue car with a tan top ahead of him three or four blocks; that just before reaching the underpass this car swerved across the road, and at that time there was another car coming south; that his car was doing 40 or 45 miles, and the car ahead was going much faster; that he noticed a man lying by the roadside; that he went by about 50 feet before he could stop, then came back and took the man out of the mud; that later he went over to the garage and picked the car out of all the cars there by himself.

W. H. Ridge, county evidence man, testified that he had occasion to go' to the scene of an accident near where the Oklahoma Railway underpass is on North Western avenue, and, when asked when he went out there, what he found, answered:

“We found the ambulance just leaving, taking the party that had been hit on the head, to the hospital, and we learned from witnesses there, that a man had been struck by a car that didn’t stop; it kept on going. We learned it was a Ford coupe, about a ’29 model, blue-black in color, with a khaki top on it, and it was driven by a colored man, with one light burning, one light out. We also learned that a colored boy driving that type of car at that time, had turned into Nichols Hills, that he was a colored man that worked for Blackstock. We immediately went to the Blackstock residence and we saw the Ford coupe sitting out off from the house by the side of the road. We examined it. The motor was warm; in fact, I would say it was hot. The right headlight was out.”

He was then asked:

“Q. Did you examine the front of the car for any breaks or bends? A. There was a little, but it was pretty hard to describe. The 'place on the bumper where the little clip fastened the bumper, it had slid over a little, and also a bend in the fender — the right fender, and a kind of curve; not what you would call a square curve like it had been hit or bent, but a round, soft curve in the fender. It appeared to be fresh, and also a little break in the side of the fender. I guess you would call it the rubbed part, or under part of the fender. There was a little break on it, the paint had cracked on it, and it was a fresh break.
“Q. Now, did you have any conversation with this defendant about that? A. We did.
“Q. All right, tell the court and jury what that was? A. The defendant told us he had been there about an hour and a half, and he denied having- any knowledge of the accident, and we learned also that he had come in about 8:30. We also found in the car, two' empty whisky bottles, and one of them had about that much whisky in it.”

Y. Y. Burke testified that he was deputy sheriff of Oklahoma county, and was called out- to this place where the man had been injured. When he arrived, they had just picked him up and put him on the ambulance carrier. He inquired of Bill Ridge, county evidence man, about what happened, and any information he knew about it; that they found two- boys and a Mr. Haynes, who told them what they knew about it, giving answer to the question :

“Q. Then, what did you do, Mr. Burke? A. We learned that A. P. Bouyer, who works for H. L. Black-stock, about two or three weeks previous, had bought a car similar to- the description of the car that hit Mr. Gray there at the underpass. We went to Mr. Blackstock’s home and found this coupe — ’29 model, blue-black, on-the west side of Blackstock’s home, out in the street. We looked it over and discovered that it had one headlight, the right fender was bent a little, just a kind of dished-out ,bend. We also' noticed on the bumper the clamp had been skidded just a little. In the car we found two whisky bottles.
“Q. Did you have any conversation then, with the defendant about this? A. I did. We walked up in the yard to' the servant’s quarters; there was a light when we drove up, but some one turned the light out. I went back and knocked. I had known A. P. Bouyer for sometime, and I hollowed, ‘A. P. are you there?’ and he didn’t answer for a few minutes, and then he said, ‘Yes, I am here.’ He said ‘Who is it?’ and I told him it was ‘Salty’ — that is my nickname, and he finally came to the door with two other colored boys, and of course I asked him about it, and he said, well he didn’t know that he had hit anybody, and that he had been down town. We asked him about what time, and he said, ‘Well, right around dark.’ And I asked him where he had been, and he said he had been over on the East side; and we asked him what he had done, and his actions, and he said he and one of the two colored boys that was there with him at the time, had obtained some whisky, and the two of them had drunk it. At that time he had an odor of intoxicating liquor on his breath; and so I brought him down. And he said, ‘Let me change my clothes’ and I said, ‘All right, A. P., go ahead and change them’.”

At the close of the state’s evidence, the defendant asked for a directed verdict of not guilty in the form of a general demurrer to the evidence, which was overruled. Exception reserved.

On the part of the defendant, David Morrison testi-fieed that he lived in the neighborhood of Sixty-Third and Western; that Mr. Blackstock’s place, where the defendant, A. P. Bouyer, works, is directly behind his place; that he drove up when the officers were questioning the boys around there, and heard the boys say the car had green shades on the headlights, and that one light was out; that, after the defendant was arrested, he went hack to Sixty-Third and Western, and a car going south, with green shades, came by that filled the description the boys had given to the officers, and these same boys said at that time that that car going south filled the description of the car that had struck Gray.

Earl Veatch and Paul Conray were called in for identification, and the witness testified that they were somewhat of the description of the hoys he saw there. Upon cross-examination he was asked the question:

“Q. I will ask you if it is not a further fact .that this negro boy was drunk when you were over there? A. No, sir, he wasn’t very drunk; he had been drinking, but he could walk and was in his right mind.”

Mitchell Andrews testified that he lived at the filling station at Sixty-Third and North Western, and was working there on the night of April 5th, and that he knew Earl Veatch and Paul Conray; that he heard the witnesses, Veatch and Conray, giving a description of the car they had seen turn into Nichols Hills, to- the officers; that they said the Ford coupe that turned into Nichols Hills had green half shades over the front headlights; that, after defendant was arrested, the boys continued to stay around Sixty-Third and Western, and David Morrison was there when a Ford coupe going south on Western, with green half shades over the front headlights went by, and Veatch and Conray said, “There goes the car”; that he serviced the defendant’s car and had noticed the dent on the right front fender about ten days before the accident; that the defendant’s car did not have green shades on the headlights.

At the request of the defendant, the state not objecting, the jury was allowed to view the defendant’s automobile.

A. P. Bo-uyer, the defendant, testified: That he and his wife were both employed by H. L. Blackstock and lived in the servants’ quarters on the Blackstock premises; that on the night of his arrest he had been home about 45 minutes or an hour; that he had been down in the city and returned over North Western; that he did not hit anj one on the road home in his automobile; that the dent in the right fender of his car was up on top of the fender, at a point where it is impossible the right front fender could have hit a man and not broken or dented the headlight; that his car was in the same condition when the jury viewed it as it was when he was arrested.

On cross-examination he stated:

“I am sure I was home 45 minutes before I was arrested. I drove home from Second street; I wasn’t drunk that day; I drunk just about that much out of a half-pint bottle — not out of those bottles they found in the car. They were left after a party about two- weeks before the accident, and were still in the car. I couldn’t exactly say how fast I was driving on Western, but I imagine I was driving between 30 and 35 miles, when I came under that underpass.”

Officers Burke and Badge, recalled, testified that none of the boys said that the car that drove into Nichols Hills had green shades over the headlights.

At the conclusion of all the evidence, the defendant moved the court to- instruct the jury to return a verdict of not guilty, for the reason the evidence was wholly insufficient to sustain a conviction. The motion was denied. Exception reserved.

The errors relied on, and upon which the defendant asked for reversal, are as follows: That the court erred in admitting incompetent, irrelevant, and prejudicial evi-deuce; that the court erred iu overruling the demurrer of the defendant to' the evidence of the state, and in refusing to instruct the jury to return a verdict of not guilty at the close of all the evidence.

It is insisted that “the court erred in permitting the arresting officers to testify over defendant’s objection as to an extrajudicial identification of the defendant”—citing Johnson v. State, 44 Okla. Cr. 113, 279 Pac. 933, and McCandless v. State, 49 Okla. Cr. 116, 295 Pac. 412.

With this contention we do not agree. The facts in the case at bar do not bring it within the rules announced in the cases cited; that extrajudicial identification of a defendant is generally inadmissible, and that prior consistent statements of a witness are inadmissible to corroborate him when he has been attacked by showing his prior inconsistent statements.

It appears that some of the testimony objected to was hearsay; as to facts that were not disputed by the defendant, he admitted that about 45 minutes before the officers arrested him he drove his car north on North Western avenue, passing under the underpass, turning into Nichols Hills, and as a witness in his own behalf he so testified.

It is true the defendant denied hitting any one. The witnesses Haynes, Veatch, and Conray described the car, and the witness Emerick positively identified the defendant’s car as the one which was driven at the time the accident occurred. It appears that the defendant continued his flight away from the scene of the accident until he arrived at his home.

The testimony of the officers, Eidge and Burke, detailed steps taken in searching for the car and its driver; their examination of the car and their conversation with the defendant before arresting, him.

In the case of People v. Ogle, 104 N. Y. 511, 11 N. E. 53, an indictment for murder, the Court of Appeals of New York held :

“The testimony of officers, detailing the steps taken in searching for and arresting the accused, is admissible for the purpose of proving his flight.”

It is also insisted “that the court erred in permitting the officers to testify that the defendant was drunk at the time he was arrested and that there were whisky bottles in the car.”

Counsel in their brief say:

“It is our contention that evidence that defendant was intoxicated, was evidence tending to prove another crime in no way connected with the crime of which he was charged.”

The rule is universal that the parties in the trial of a cause are at liberty to impeach the testimony of a witness by sho wing that he was intoxicated at the time of the events about which he testifies. In the case of Prochneau v. State, 32 Okla. Cr. 210, 240 Pac. 1090, 1091, syllabus 3, this court said:

“A witness’ testimony may be impeached by showing intoxication at or about the time of the transaction testified to, not only by the evidence of other witnesses, but by cross-examination of the witness himself.”

It cannot be said that the testimony objected to> standing by itself, had no logical bearing upon any fact involved in the issue upon which the defendant was being tried. It went, not only to his credibility, but also to his capacity to know and remember with accuracy what took place at the time of the accident. It is a matter of common knowledge that a person under the influence of intoxicating liquor is more likely to he reckless and careless in driving a car than one who is duly sober, and that, when intoxicated, such-persons often have little or no regard, for the lives of other people or for their rights. For this reason the law makes it a felony for any person who is under the influence of intoxicating liquor to operate or drive motor vehicles on any highway within the state.

The rule is well settled that evidence is admissible that tends directly to prove the defendant guilty, although it may also tend to' prove a distinct felony and thus prejudice the accused. In support of this rule see Carmack v. State, 44 Okla. Cr. 171, 279 Pac. 964. In syllabus 1 and 2 this court said:

“In a criminal prosecution, evidence which is relevant to the issue is not rendered inadmissible by reason of the fact that it tends to prove the defendant guilty of a crime other than the one charged in the information.
“Evidence of a different offense from the one charged is admissible, when both offenses are so closely linked or connected as to form a part of the res gestae.”

It follows that the contention made is without merit.

Other questions are raised as to' the admissibility of certain testimony; we have examined them and find they are without merit.

There can be no doubt as to the sufficiency of the evidence to sustain the verdict; the testimony of the defendant in his own behalf is in effect a plea of guilty a,s charged. However, we are inclined to' think that the maximum punishment imposed by the court is excessive.

It is both the spirit and intention of our laws that punishment for crime shall be imposed for the protection of society and reformation of the criminal. In tbis case we are of opinion that substantial justice requires a modification of the judgment and sentence to' imprisonment in the county jail for six months, and a fine of $250, and in default of payment of the fine the defendant to- be imprisoned for a further period not exceeding one day for each dollar of the said fine.

As thus modified, the judgment is affirmed.

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


text:
    CHARLIE HOLDEN v. STATE.
    No. A-8806.
    March 29, 1935.
    Rehearing Denied April 19, 1935.
    (47 Pac. [2d] 223.)
    Wm. H. Lewis, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, for convenience hereinafter referred to- as the defendant, was by information jointly charged with W. L. Cummings and Mrs. Charlie Holden; was tried separately, convicted, and sentenced to pay a fine of $50.00 and to be imprisoned in tbe county jail for 30 days.

Tbe testimony shows in substance that tbe defendant and bis wife and W. L. Cummings were driving in tbe northeast part of tbe city of Oklahoma City. The officers George Kerr and Don Stone were also driving in tbe northeast part of tbe city. Tbe officers saw defendant driving along tbe street and followed him and forced him into tbe curb, told him to get out of bis car, and, after they bad gotten tbe defendant out of tbe car, they looked in the back seat of the car and found two pistols and one gun. In order to justify their conduct of stopping tbe defendant’s car on tbe street, the officers testify they arrested him on suspicion of bis having been connected with a bank robbery, and used that as a justification for stopping tbe defendant and searching his car without a warrant for bis arrest or to search bis car. The statement of tbe officers as to why they stopped him and put him under arrest is uncontradicted. However, it does not seem reasonable, and seems to be an afterthought of tbe officers when they considered they bad acted without authority.

Tbe defendant admits be bad tbe guns, and stated be bad started to tbe farm near Shawnee and bad put tbe guns in tbe car to take them down there.

Several questions have been raised by tbe defendant in bis assignment of errors and argued at length. Some of tbe questions argued have merit, but, in tbe view we take of this record, it is not necessary to set out at length tbe questions argued and submitted. Tbe evidence in tbe case shows a technical violation by tbe defendant of unlawfully carrying weapons. Considering all tbe circumstances in tbe case, we bold that tbe evidence is sufficient to sustain a violation of tbe statute (St. 1931, § 2584), ■but we bold the evidence is not sufficient to warrant the maximum punishment' which was imposed on the defendant. Under the authority given this court by the statute (St. 1931, §3204), we believe that this judgment should be modified from a fine of $50.00 and 30 days in jail to a fine of $50.00, and, as modified, the judgment is affirmed.

DOYLE, J., concurs. EDWARDS, J., not participating.


text:
    Ex parte W. W. CRAIG.
    No. A-8893.
    April 26, 1935.
    (43 Pac. [2d] 1118.)
    See, also, 56 Okla. Cr. 184, 36 Pac. (2d) 60.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an original petition filed by W. W. Craig, in which he alleges he is restrained wrongfully and unlawfully of his liberty by W. S. Key, warden of the state penitentiary, and has been unlawfully restrained of his liberty since the 27th day of, November, 1933.

Petitioner alleges and states that he was tried by a jury and convicted of the offense of passing a bogus check; that the jury returned a verdict of guilty, and the court fixed his punishment at five years in the state penitentiary at McAlester; and petitioner further alleges that the imprisonment is contrary to the statutory laws of the state of Oklahoma and the Constitution.

The only ground upon which petitioner seeks to be released by habeas corpus is his statement that the trial judge was biased and prejudiced against bina for the reason that be'bad tried to pass a bogus check for $15 on the judge who sentenced him, but did not succeed in getting the trial judge to cash the check, and alleges that the judge was therefore biased and prejudiced against him. The allegation is not supported by the facts.

The record shows the defendant was regularly tried, convicted, and sentenced, and there is no question raised by the petitioner that this court can consider upon habeas corpus.

The writ is denied.


text:
    ROY DENMARK et al. v. STATE.
    No. A-8581.
    April 19, 1935.
    (43 Pac. [2d] 1118.)
    David Tant and Mathers & Mathers, for plaintiffs in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

This is a companion case to Walter A. Brannon v. State, 56 Okla. Cr. 387, 40 Pac. (2d) 1115, decided February 1, 1935.

Defendants are jointly charged with the defendant in that case, and, while tried separately, the judgment rests on the same information and state of facts and is controlled by the decision in that case.

The case is reversed.


author: EDWARDS, J.

text:
    C. G. MESSER v. STATE.
    No. A-8787.
    April 5, 1935.
    Rehearing Denied May 3, 1935.
    (47 Pac. [2d] 218.)
    Jordan & Evans, for plaintiff in error.
    J. Berry King, Atty. Gen., and- Smith O. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

Plaintiff in error, hereinafter called defendant, was convicted in district court, Choctaw county, of second degree arson, and his punishment fixed at two years in the state penitentiary.

Defendant was charged jointly with A. A. Walling and J. E. Fuller with having burned a cotton gin in Hugo.

Both Fuller and Walling testified they burned the building by agreement with defendant, who promised them $75 for so doing. Defendant did not testify.

Defendant argues the evidence is insufficient for lack of corroboration of the accomplices. The trial court instructed the jury that Fuller and Walling were accomplices, and a conviction could not be had upon their testimony alone, but it was necessary for the state to corroborate them by other evidence, tending to connect defendant with the commission of the crime.

In the instant case there is evidence by different witnesses that defendant was seen talking to accomplices at different times immediately before the fire, corroborating the evidence of the accomplices that defendant talked to them at such times and places about the fire; evidence that defendant denied this when questioned by the fire marshal, but later changed his statement; evidence by a deputy sheriff that he overheard a conversation between defendant and Walling in the jail in which Walling asked about pay for burning the gin and defendant said the “other fellow” was scared and suggested there were dicta-phones in the jail. This is circumstantial corroboration of Walling’s testimony to the same effect.

In Moody v. State, 13 Okla. Cr. 327, 164 Pac. 676, this court held:

“Evidence corroborating an accomplice and tending to connect the defendant with the commission of the crime need not be direct, but may be circumstantial only. It is not essential that the corroborating evidence shall cover every material point testified to by the accomplice, or be sufficient alone to warrant a verdict of guilty. If the accomplice is corroborated as to some material fact or facts by independent evidence tending to connect the defendant with the commission of the crime, the jury may from that infer that he speaks the truth as to all.”

See, also, Wilson v. State, 24 Okla. Cr. 332, 217 Pac. 885; Key v. State, 38 Okla. Cr. 169, 259 Pac. 659; Varner v. State, 42 Okla. Cr. 42, 274 Pac. 43.

In Haas v. State, 37 Okla. Cr. 335, 257 Pac. 1115, 1116, we said:

* * The weight and sufficiency of this evidence is for the jury, and, when the jury has returned its verdict, this court will take the strongest view of the corroborating testimony that the evidence warrants.”

See also, Rhea v. State, 9 Okla. Cr. 220, 131 P. 729.

The only other point raised by defendant is that the judgment should be set aside because the witness Walling testified without being sworn. The record recites that this witness was sworn although in the hearing on the motion for new trial he testified he was not sworn, but that his testimony was true. The record does not show any objection made at the trial for failure to swear the witness, nor that such fact, if it existed, was not known to defendant’s counsel at the time. The witness was cross-examined fully and objections made to the testimony on other points.

It is well settled that error is not presumed, but must be made to affirmatively appear. If a witness is not sworn, and this fact is known to defendant’s counsel, he must object at the time, or the error is waived. In Keeney v. State, 53 Okla. Cr. 1, 6 Pac. (2d) 833, it is held in syllabus 2:

“Where defendant has knowledge that witnesses testifying have not been sworn, and makes no objection until after verdict, right to have such witnesses sworn is waived.”

In State v. Hope 100 Mo. 347, 13 S. W. 490, 8 L. R. A. 608, in syllabus 3 the court held: “When defendant has cross-examined a witness, he cannot object, on motion for new trial, that the witness was not sworn, ivhere there is nothing in the record to show when the fact was discovered by defendant.”

To the same effect is Goldsmith v. State, 32 Tex. Cr. R. 112, 22 S. W. 405.

We find no substantial error. The case is affirmed.

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


text:
    H. H. DELANO v. STATE.
    No. A-8802.
    March 22, 1935.
    Rehearing Denied May 3, 1935.
    (47 Pac. [2d] 213.)
    Lester & Briggs, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to- as the defendant, was convicted of the crime of grand larceny, and sentenced tO‘ serve a year in the state penitentiary.

Burt Self, a witness for tbe state, in substance testified be lived near Seminole, Obla.; that be was shop foreman for tbe Seminole Supply Company, and bad. been for two and one-balf years. On August 9, 1933, the supply company lost eight boomers and chains of tbe value of $65 tO' $80. Tbe property was taken from the yards of the Seminole Supply Company. They were found tbe next morning in a field in a bunch of weeds on tbe opposite side of tbe road from tbe supply company bouse. Watch was kept over them, and some time that evening after dark tbe defendant drove up in a Packard car where the property was located, parked tbe car, and turned tbe lights out. The witness Self testified he got a shotgun and went out to tbe corner of tbe fence. The defendant made several trips into the field and loaded the chains and boomers into bis car. Tbe witness and defendant had some conversation, and defendant got into bis car and drove rapidly away. Witness fired his shotgun into tbe back end of tbe car but tbe defendant kept going. The witness secured tbe officers and went to tbe home of the defendant, where they found tbe car that bad been shot into. They did not find any of the stolen property.

Tbe defendant admitted he stopped near tbe place where the prosecuting witness testified he did, but stated be bad been to tbe home of a party who' owed him some money, and, as be was returning home, nature demanded him to stop, and be drove off the pavement for the purpose of getting out of sight, and denied he bad anything to do with tbe taking, or handling of the property taken from tbe supply company yard.

Virgil Stubbs was called as a witness, and testified the defendant came to bis bouse tbe evening of August 9, 1933, to collect some money be owed him; it was about 8 or 8:30 when be left. This is tbe substance of tbe testimony.

Tbe defendant in bis petition in error alleges several errors as grounds for reversal; tbe third assignment being: “That the verdict and judgment passed thereon was not supported by the evidence, and was and is contrary to law.”

Tbe defendant in bis argument discusses only tbe question of the evidence being insufficient to sustain the verdict and judgment. Tbe testimony in this case is conflicting. Witness Self positively identifies the defendant as being the party who came and loaded tbe property in tbe car and went off with it.

In Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352, this court said: •

“Where tbe evidence and tbe reasonable and logical inferences and deductions to be drawn from it are sufficient to convince tbe jury beyond a reasonable doubt of tbe guilt of a defendant, this court will not disturb the verdict for insufficiency.”

In Choate v. tSate, 37 Okla. Cr. 314, 258 Pac. 360, this court held:

“Where there is competent evidence which reasonably sustains the verdict and judgment, a conviction will not be reversed, although the evidence may be conflicting or different inferences may be drawn from it.”

In Strong v. State, 42 Okla. Cr. 248, 275 Pac. 385, this court said:

“When the evidence disclosed by the record tends reasonably to support- the verdict of the jury, such verdict will not be disturbed by this court on appeal.”

In Campbell v. State, 23 Okla. Cr. 250, 214 Pac. 738, this court held:

“Conflicting issues of fact are for the sole determination of the jury. The conviction will not be disturbed on appeal because of sharp conflicts in the evidence, if the evidence adduced reasonably tends to support- the verdict and judgment.” Underwood v. State, 36 Okla. Cr. 21, 251 Pac. 507.

The testimony on behalf of the state is positive that the defendant is the man who' came and hauled the stolen property away, the evening after it had been stolen and located on adjoining property. The defendant denied he removed the property as stated by the witness for the state. The jury, in rendering its verdict, evidently believed the testimony of the defendant. This defendant was accorded a fair and impartial trial. The court correctly advised the jury as to the law applicable to the facts. There-are no errors in the record warranting a reversal.

The judgment is affirmed.

DOYLE, J., concurs. EDWARDS, J., not participating.


text:
    Ex parte J. C. BRALEY.
    No. A-8896.
    May 7, 1935.
    (45 Pac. [2d] 167.)
    J. O. Braley, pro se.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for the State.
   PER CURIAM.

Upon an examination of the petition, record, and response in the above-styled cause, the court finds that no question is presented that can be raised by habeas corpus, and the ivrit is denied.