text:
    C. L. SCOGIN v. STATE.
    No. A-9179.
    May 14, 1937
    (68 Pac. [2d] 111.)

      Morrill & Snodgrass, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, for convenience referred to as the defendant, was by information charged with the crime of furnishing intoxicating liquor; was tried, convicted, and sentenced to pay a fine of $300, and to be confined in the county jail for a period of 90 days.

It is not necessary for the court to consider the evidence as to whether or not the defendant had possession of liquor, but it is alleged in the information that he did have; for the reason that the officers in executing the search warrant did not search the property described in the search warrant. This is the only question presented by the defendant.

The defendant alleges two assignments of error, which are:

“1. That the court erred in overruling defendant’s motion to suppress the evidence in this cause.
“2. That the court erred in overruling defendant’s demurrer to the evidence.”

The motion to suppress, and the demurrer to- the evidence is based upon the proof presented that the description in the search warrant is as follows:

“Certain buildings, dugouts, and outhouses situated or described as follows: Residence and all outhouses thereto belonging located at 1104 North Grain street, within the city of Altus, Okla.”

The proof of the defendant, on his motion to suppress, shows that the officers did not search 1104 North Crain street, as described in the search warrant, but did search the defendant’s residence located at 1108 North Grain street, in the city of Altus, Okla., being a separate and distinct location and piece of property to that described in the search warrant.

Section 7012, C. O. S. 1921, now section 2638, O. S. 1931 (37 Okla. St. Ann. § 87), reads as follows :

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

In Preston v. State, 42 Okla. Cr. 372, 276 Pac. 784, this court had this question before it, and in the second paragraph of the syllabus stated:

“A search warrant authorizing the search of a building at 700 North Hightower street is not authority for the search of a building at 702 North Hightower street.”

In U. S. v. Rykowski (D. C.) 267 F. 866, it was held that premises described as belonging to William Kozman, 123 Garfield street, insufficiently described premises at 123 North Garfield street.

In U. S. v. Chin On (D. C.) 297 F. 531, it is stated that a warrant authorizing the search of a building at 24 Liberty street did not authorize the search of a building at No. 23 Liberty street.

The general rule is that search warants are to be strictly construed and the authority to search is limited to the place described therein.

In People v. Musk, 221 Mich. 578, 192 N. W. 485, it was held that a warrant to search the premises at 926 Elwood avenue is not authority to search. premises at 932 Ehvood avenue.

In Miller et al. v. State, 34 Okla. Cr. 103, 245 Pac. 68, 69, it is said:

“It is evident that it was the intention of framers of the Constitution and the lawmakers to limit the right of search to places and premises where a proper affidavit showing probable cause was filed, particularly describing the premises to be searched.”

There are many other decisions from this state applying the statute and holding there must be a particular description of the place to be searched.

It is not deemed necessary to' extend this opinion further. The search warrant in this case authorized the searching of the buildings at 1104 North Grain street, but did not authorize the search at 1108 North Grain. The search was not authorized, and the evidence obtained thereby on timely objection should be excluded. The case is reversed and remanded.

DOYLE and BAREFOOT, JJ., concur.


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
      JEFF ARMSTRONG v. STATE.
    No. A-9125.
    May 14, 1937.
    (68 Pac. [2d] 114.)

      R. A. Wilkerson, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and T. L. Marteney, Co. Atty., for tbe State.
   BAREFOOT, J.

When this case was called for trial, tbe county attorney read a copy of tbe original information filed in this case to tbe jury, and after reading tbe same, made bis opening statement. It afterwards developed that tbe information wbicb be read was not tbe “amended information” wbicb bad been filed and on wbicb tbe defendant was being prosecuted, and was not tbe information that bad been served on tbe defendant and to wbicb be bad plead on being arraigned. After some preliminary statements by counsel and tbe court, tbe “amended information” was found in one of tbe drawers of a table in tbe courtroom. Tbe court then permitted tbe county attorney to withdraw the original copy of tbe information, wbicb bad been read, and to read the “amended information,” and again make his opening statement to- the jury. This is assigned as error by tbe defendant. We do not think so.

Nothing is shown by this action of tbe court wbicb would in any way prejudice the rights of tbe defendant, nor prevent him from having a fair and impartial trial, as suggested in the brief of defendant.

Tbe defendant was charged jointly with Earnest Tennyson, and others, with tbe crime of robbery with firearms, in Mayes county, on tbe early morning of Saturday, January 12, 1935. He was charged with tbe robbery of a filling station and a small cafe in connection therewith, in the town of Salina, Mayes county, and with the taking- of $23 from the cash register and taking, away four slot machines. He was granted a severance, was tried, convicted, and sentenced to serve a term of 25 years in the penitentiary.

In the little town of Salina, Mayes county, Joe Lewis owned a filling station and cafe in connection therewith. A 19-year-old boy by the name of Percy Bolinger was employed by him to- run this place from 7 p. m. until 7 a. m. About 2 a. m. on the morning of January 12, 1935, eight men came into- the cafe and ordered coffee. The names of these parties were Earnest Tennyson, Ray Anderson, Norman Hoch, Howard Bridwell, Cap- Ellis, Jack Miller, Bill Meyers, and Blue Culver. The defendant, Jeff Armstrong, was not shown to have been present when these parties came. They ordered coffee, and while waiting* for it to be brought to them they began playing the slot machines and began tilting them in such manner that caused Percy Bolinger to- call the proprietor over the telephone. He afterwards came down, but the men had left. Before leaving one of the men had the young man change a bill which he could not change from the cash register and he went into a back room to get the money to change this bill. Between 4 and 4:30 a. m. upon the same morning, young Bolinger heard a noise and, thinking it was some one who wanted gas, opened the door, and as he did so some one shoved a gun into his side and commanded him to- “stick them up,” and then to lie down on the floor with his face down. One of the men, whom he afterwards identified as the defendant, struck him on the head five times with his gun. The two men rifled the cash register, taking about $23.71 and also taking the four slot machines. One of the robbers demanded of young Bolinger: “God ■damn yon, tell me where the rest of that money is.” And he told him there wasn’t any more, and the other party said: “Don’t kill the boy.” And as they started to leave one of them said: “God damn yon, lay there 20 minntes or I will kill yon.” On the Saturday following, the defendant and Earnest Tennyson were arrested at the home of Earnest Collins, in Claremore. They were carried to Pryor and put in the Mayes county jail. Cap Ellis, Jack Miller, Bill Meyers, Blue Culver, Bay Anderson, Norman Hoch, and Howard Bridwell, being the same parties who were with Earnest Tennyson, and had been at the cafe which was robbed during the early morning of January 12th, were also arrested and placed in jail. Young Bolinger, on Monday or Tuesday, went to the jail with his father and Joe Lewis, the proprietor of the filling station and cafe, and the defendant and the other parties were brought out of their cells for the purpose of identification. The witness looked at them and positively identified the defendant, Jeff Armstrong, as being the one who demanded of him to “stick them up,” and as to being one of the parties who robbed the cafe between 4 :30 and 5 o’clock on the morning of January 12, 1935, and also being the party who struck him with the gun and who told him to lay with his face down for 20 minutes or he would kill him.

The defendant was also identified by a witness by the name of Howard King, who- testified that he resided in the town of Salina; that about 4 or 4:30 a. m. on the morning of Saturday, January 12, 1935, the defendant with another person came to his home in a car; that he was trying to buy whisky; and that he came in the room where he was and he positively identified him.

Buby King, his wife, also testified corroborating her husband, and positively identified the defendant as coming to' ber home on this occasion and asking her husband for whisky. Both she and her husband told of having been previously convicted of a violation of the prohibition laws, and of having served sentences therefor.

The defendant was also identified by a witness named Cecil Jameson. He testified that he lived in Salina, Okla., and was there on the 11th and 12th of January, 1935. He testified that he knew Jeff Armstrong when he saw him, and that he saw him about 12 o’clock on the night of January 11th; that he saw the defendant and some one with him in a car in the town of Salina; that the defendant was standing by the side of a car near the hotel; and that he passed within ten or fifteen feet of him.

The defendant testified in his own behalf and offered 16 witnesses who testified to different facts tending to substantiate his alibi in this case. Many of these witnesses were relatives of his, and many of them had previous records of convictions for violation of the prohibition laws. The defendant and these witnesses testified that the defendant was present at a dance at the home of Dennis Jones, in Claremore, Okla., on Friday night and early Saturday morning, January 11 and 12, 1935; that he went to this dance in the early part of Friday night and remained there until the dance was over something like 1 o’clock Saturday morning; that by this time he was “pretty drunk,’ and that a boy by the name of Lawrence Pullman took him to the home of Palmer Smith and put him to bed; that he stayed all night at Palmer Smith’s, got up about daylight next morning and went to the home of Earnest Collins in Claremore, and that his codefendant Earnest Tennyson was there. They remained there until they were arrested, on this charge on Saturday morning. He denies having been in the town of Salina on tbe night of the robbery, or of in any way participating therein. That Salina is 28 miles from Claremore.

It will thus be noted that there was a direct conflict in the testimony of the state and the defendant as to his whereabouts on Friday night, January 11th, and early Saturday morning, January 12th. From the above statements it is useless to further point out these differences. The jury saw the witnesses, heard them testify, and observed their demeanor upon the witness stand. Under these circumstances, this court has often held that where 'there is any evidence which supports the verdict of the jury it will not be set aside. This is wholly a matter for the jury to¡ determine and not for the court. Birdwell v. State, 22 Okla. Cr. 184, 210 Pac. 558; Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352; Odie Vice v. State, 54 Okla. Cr. 405, 22 Pac. (2d) 1089; Horn v. State, 13 Okla. Cr. 354, 164 Pac. 683.

It is next contended that the court erred in failing to sustain the motion for new trial on the ground of newly discovered evidence. This contention is based upon the affidavit of defendant in his motion for new trial to' the effect that his codefendant, Earnest Tennyson, who had been in jail with him up to the time of his trial, and who1 testified as a witness for the defendant, was after the trial of defendant permitted to withdraw his plea of not guilty and enter a plea of guilty, and on the recommendation of the county attorney was given a sentence by the court of five years in the penitentiary, and that since his trial he had talked with the said Earnest Tennyson, and that the said Tennyson had told him that he and another party, whose name was unknown to defendant, had committed the robbery, detailing to him the planning of same in Claremore on Friday night, and of the going to Salina in the early morning hours of Saturday and committing- the robbery, and after leaving there of dividing the money, and the finding of $120 in the slot machines, and after dividing the same throwing the machines into Lake Cherokee, and returning to Claremore, also stating that his co-defendant absolved him of participating in the commission of the robbery.

We do not think the court abused its discretion in overruling the motion for a new trial in this case. It will be noted that the defendant does not even attach the affidavit of the witness Earnest Tennyson to' his motion. He makes the affidavit himself purporting to set out what Tennyson had told him. From the time he was arrested to the time of his trial he had been in jail with the witness and had used him as a witness in his defense at the trial.- There is nothing to show that due diligence was used by the defendant to find out what the testimony of the witness Tennyson would be. It looks like this witness, after hearing of the verdict against the defendant and the number of years that had been given him, decided it would be best for him to1 enter his plea of guilty and make such terms as he could with the county attorney. The sentence which he received justifies this assumption. The court may have come to the conclusion that the witness Tennyson was seeking to' take the blame after he had received his sentence and thereby secure relief for the defendant.

By many decisions of this court it has been held that the granting of a new trial by reason of newly discovered evidence is within the sound discretion of the trial court and unless this discretion is abused it will not be set aside. Horn v. State, 13 Okla. Cr. 354, 164 Pac. 683; Peters et al. v. State, 35 Okla. Cr. 367, 250 Pac. 1032; Newman v. State, 35 Okla. Cr. 296, 250 Pac. 554; Odie Vice v. State, 54 Okla. Cr. 405, 22 Pac. (2d) 1039; Calloway v. State, 38 Okla. Cr. 418, 262 Pac. 696.

We are of tlie opinion that the motion for a new trial wholly fails to show dne diligence on the part of the defendant as contemplated by the statute of this state. See section 3120, O. S. 1931 (22 Okla. St. Ann. § 952); 16 C. J. pp. 1181, 1183, 1187, §§ 2710, 2713; Lawson v. State, 36 Okla. Cr. 349, 254 Pac. 110; Ruth Ball v. State, 47 Okla. Cr. 145, 286 Pac. 808; Harper v. State, 7 Okla. Cr. 581, 124 Pac. 1116; Johnson v. State, 5 Okla. Cr. 1, 112 Pac. 760; Perry et al. v. People, 38 Colo. 23, 87 Pac. 796; Hurst v. Territory, 16 Okla. 600, 86 Pac. 280.

We have carefully examined the record in this case and find that after the jury had found the defendant guilty and assessed his punishment at 25 years in the penitentiary, his codefendant, Earnest Tennyson, was permitted to withdraw his plea of not guilty and enter a plea of guilty, and on the recommendation of the county attorney was given a sentence of only five years in the penitentiary. We can see no good reason for such distinction between the punishment of these parties when both were equally guilty. The only distinction is that the witness Bolinger testified that he was struck on the head by the defendant five times. This distinction, and the fact that the state was permitted to prove all the facts and circumstances surrounding the coming of the seven men, including the codefendant Tennyson, to the place of the robbery during the early morning hours of .Saturday, January 12th, must have influenced the jury in giving the defendant this penalty. It is admitted by the state that the defendant, Jeff Armstrong, was not present at that time, or at least was not seen by any one. While we do not think, in view of all the evidence, that'the introduction of same was sufficient error to reverse this case, we do believe that under all the circumstances, taking into consideration the fact that his codefendant was given only a sentence of five years, the ends of justice would be met by modifying the judgment and sentence to ten years.

It is therefore ordered that the judgment of the district court of Mayes county be modified and affirmed as above stated.

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


author: DOYLE, J.

text:
    BOSS FISK v. VENABLE, Judge.
    No. A-9321.
    May 17, 1937.
    (68 Pac. [2d] 425.)

      J. J. Smith, for petitioner.
    William E. Poteet, Co. Atty., and Horace D. Payne, Asst. Co. Atty., for respondent.
   DOYLE, J.

This case is before us on petition for writ of mandamus to require John H. Venable, county judge, to disqualify from presiding in any further proceedings against petitioner in a case pending in the county court of Ottawa county, wherein petitioner is charged with the offense of unlawful possession of intoxicating liquor, and alleging that said county judge, respondent herein, is' biased and prejudiced against petitioner to such an extent that he cannot have a fair and impartial trial on said charge in said court before respondent county judge, and that said county judge refused to certify his disqualification in the case and overruled petitioner’s application therefor. The motion for change of judge was verified by petitioner’s oath and supported by oral testimony on the hearing. A copy of the motion, a partial transcript of the testimony taken upon the hearing, and the minutes of the court clerk are attached to and made a part of the petition.

On April 30, 1937, the case was heard and by agreement of counsel was submitted without briefs.

It appears from the record that said county judge issued a search warrant against a place of business known as the Shamrock Buffet, located on the corner of Central avenue and A Street S.W., or just across the street from the northwest corner of the courthouse square in the city of Miami, and against petitioner, an employee of said concern, and not against R. T. Walker, the proprietor of said place. That after the issuance of the search warrant and pursuant to- said search there was filed in the district court of Ottawa county by the county attorney a petition wherein said county attorney seeks to close the said Shamrock Buffet and to abate the place as a public nuisance; that said action runs against the petitioner as well as against the owner of the place, that said action is now for trial in said district court, and said respondent has manifested his interest therein by attending said district court on April 15, 1937, when proceedings were had and heard with reference to said case; that after the case against petitioner was assigned for trial, counsel for petitioner agreed with the county attorney that the case might be continued over the term, and when said judge was notified thereof counsel for petitioner was given to understand that the case would be continued over the present term; that later petitioner learned that his case had not been continued over the term but had been reassigned for trial on April 21; that this was done without the knowledge or the consent of either petitioner or the county attorney and against the express agreement to the contrary. Thereupon counsel for petitioner advised the court that said assignment conflicted with his engagements in the district court, and said judge told the county attorney and counsel for petitioner in substance that it was already being talked around by people that the case would never be tried, and that some one had said in a conversation with him that the case would never be tried, and therer upon said judge refused to continue said case over the term but reset the same for trial on May 3, 1937.

Among other matters and specifically charged is the one of the manner of selecting the jury. It appears that the jury panel for the term was supplemented by an order directed to the sheriff to summon additional jurors for the completion of the panel from the body of the county. It is alleged and not denied that only two or three other than members of said judge’s Sunday school class, in sympathy with the prosecution, were selected. In other words, the motion alleges that said respondent on account of his bias and prejudice against petitioner would not afford or allow him a fair and impartial trial, and in pursuance of such purpose had taken such steps as would result in him being tried by a jury prejudiced against him, and selected for that purpose. That petitioner has filed in said county court a motion to suppress evidence obtained in executing the search warrant which is now pending.

That in the case of State v. Boydston, counsel presented a motion to suppress the evidence for the state, based upon the identical grounds in petitioner’s motion, that upon conclusion of the arguments the court indicated that in his opinion that said motion was well taken, but upon being reminded that seven or eight eases hinged upon the same question, all of which cases were founded upon search warrants issued by said county judge, among which was the petitioner’s case, said motion to suppress was overruled. It was in evidence on the hearing of the motion that the court, in overruling- the motion to suppress the evidence in the Boydston Case, stated that this court might overrule the Bishop Case as the Supreme Court of the United States had reversed itself. In his answer the respondent states:

“Nothing of this kind was said at the time, but after-wards Perry Porter came in when Bill Poteet and I were talking, and made some statement about the Bishop case governing, and to his statement I told him I thought there was some difference, and then I jokingly stated in reply to a statement by him that that case was controlling, that the Criminal Court of Appeals might back up as the Supreme Court of the United States had done, these are the cold facts and the record distorted them in that particular.”

It is also alleged that in the meantime the case of State v. Boydston was tried and the jury returned its verdict of guilty and fixed the maximum punishment, six months’ confinement in the county jail and a fine of $500, that said judge in open court and in the presence of the jury panel commended such verdict and in substance stated that by such verdicts the officials of the county would be aided in the enforcement of the liquor laws. In the case following, State v. Riggs, a jury selected from the panel hearing the court’s remarks and statements returned a verdict of guilty and fixed the maximum punishment; that said remarks of the court were manifestly prejudicial to a fair consideration of petitioner’s case by the jury.

It is further alleged that said judge has shown an undue interest in the aforesaid injunction suit based upon matters arising out of the search warrant issued by said judge; that by reason of the fact that said judge each day passed by and near said Shamrock Cafe, he should have as much general knowledge of the matters alleged in said petition for injunction as any other person and perhaps could and should be a material witness in said cause.

It appears from the record that the respondent made no response to the motion, except that orally in open court he stated that he did not have any bias or prejudice against the defendant. In this court the respondent appeared by counsel and made return without the service of an alternative writ of mandamus; thus the petition stands as and for the writ itself for the purpose of the case and the return, and it was stipulated that the case would be heard on oral argument and respondent’s general denial.

It is due to respondent to say that following the submission of the case he filed a statement in this court.

The petitioner bases his right to the relief prayed for upon the provision of the Bill of Bights, which reads:

“The courts of justice of the state shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice.” Const. art. 2, § 6.

By this provision of the Constitution the people have prohibited a judge from trying a cause in which he has prejudice in favor of one of the parties or against the other.

The procedure prescribed by the statute where a judge refuses to admit his disqualification in a criminal case is as follows:

“Any party to any cause pending in a court of record may in term time or in vacation file a written application with the clerk of the court, setting forth the grounds or facts upon which the claim is made that the judge is disqualified, and request said judge so to certify, after reasonable notice to the other side, same to be presented to such judge, and upon his failure so to do within three days before said cause is set for trial, application may be made to the proper tribunal for mandamus requiring him so to-do.” Section 2915, St. 1931 (22 Okla. St. Ann. § 575).

If the application is in compliance with the statute and the judge concedes that he is disqualified, he certifies his disqualification as requested.' If he refuses to' admit his disqualification or fails to make the certificate, a petition may be filed for writ of mandamus to require him so to do, and the question of his disqualification will then be determined by this court upon the petition, the response thereto, and the proof. The facts upon which the claim of prejudice is made must be set out in the original application so that the judge may know upon what the claim is based, and it is not sufficient to set those facts out for the first time in the petition for the writ. McCullough v. Davis, Judge, 11 Okla. Cr. 431, 147 Pac. 779; Whitfield v. Walden, Judge, 31 Okla. Cr. 332, 239 Pac. 266.

The sole question presented in this proceeding is the sufficiency of the application and the proof in support of the same.

Questions of this nature are always unpleasant; they must first be addressed to the judge whom they affect. The anomoly is there presented of one sitting in judgment upon the trial of questions involving, if not his official integrity, certainly his official impartiality, and he is required to pass upon them. On his failure or refusal to disqualify in a criminal case, application may be made to this court for mandamus requiring him so- to do. Brown v. State, 6 Okla. Cr. 442, 119 Pac. 447.

The first adjudicated case construing the foregoing provision of the Bill of Rights is the case of Ex parte Ellis, 3 Okla. Cr. 220, 225, 105 Pac. 184, 186, 25 L. R. A. (N.S.) 653, Ann. Cas. 1912A, 863. The court said:

“The framers of our Constitution guarded with special care our judiciary and tried to place it above suspicion of unfairness, passion, or prejudice, so that public confidence in our courts would not be shaken, and provided that right and justice should be administered without prejudice. By virtue of this constitutional provision, who can doubt or question the absolute and unqualified right of the citizen when called to answer in a court of justice to demand that his trial shall be before an impartial judge and by impartial jurors? Any other doctrine would place the rights of the citizen which were intended to be protected by this constitutional provision at the mercy or control of the court or judge thereof.”

As was said in Ex parte Owens, 37 Okla. Cr. 118, 258 Pac. 758, 803:

“Under the declaration of article 2, § 6, Bill of Rights, that ‘Right and justice shall be administered without sale, denial, delay, or prejudice,’ as well as by the unwritten dictates of natural justice, the courts of this state are commanded to administer justice without prejudice.”

In order to maintain and foster proper respect and confidence of the people in the courts, the courts must be presided over by unprejudiced, unbiased, impartial, and disinterested judges and all doubt and suspicion to the contrary must be jealously guarded against. McCullough v. Davis, Judge, 11 Okla. Cr. 431, 147 Pac. 779; Dennison v. Christopher, Judge, 19 Okla. Cr. 467, 200 Pac. 783; Whitfield v. Walden, Judge, 31 Okla. Cr. 332, 239 Pac. 266; State ex rel. Conley v. Parks, Judge, 32 Okla. Cr. 61, 239 Pac. 941; Ex parte Owens, 37 Okla. Cr. 118, 258 Pac. 758.

The Supreme Court of the state construes this section of our Constitution in the case of Shearer v. Linebaugh, Judge, 101 Okla. 291, 225 Pac. 686, 688.

The court, speaking through Justice Nicholson, says:

“While the respondent insists that he is not unfriendly to either of the petitioners, and that he can accord them a fair and impartial trial, and while we do not doubt his sincerity in this regard, yet the question is not so much whether he feels that he would be able to give the petitioners a fair and impartial trial, as whether his utterances and actions preclude reasonable men from feeling* that a fair and impartial trial can be had before him, and that he is disinterested in the result.
“Section 6, art. 2, of the Constitution requires that ‘right and justice shall be administered without sale, denial, delay, or prejudice.’ The basic principle on which the law rests is that every litigant is entitled to have his rights determined by an impartial and disinterested tribunal, and one that has not prejudged his case. It matters not that a judge is honest, and that he actually believes he can give litigants a fair trial; if he has discussed the merits of a case, and has formed an opinion before a trial, he is bound to enter upon the trial more or less biased and prejudiced. This should not be. Judges should refrain from partisanship in cases pending before them, and should not permit the clamor of the public to warp their judgment. The judiciary is the safeguard of the nation and the state, and the members thereof should so conduct themselves as to inspire the confidence of all, so that every one will feel and know that in the courts their rights will be protected. This confidence cannot exist, if judges persist in discussing out of court the merits of cases pending before them and forming and expressing opinions thereon before a hearing in the orderly course of procedure, and where this has been done the judge should not, in justice to the litigant, insist upon being permitted to sit in the trial of his case.”

In State ex rel. Warner et al. v. Fullerton, Judge, 76 Okla. 35, 183 Pac. 979, 980, Chief Justice Owen says:

“Courts should scrupulously maintain the right of every litigant to an impartial and disinterested tribunal for the determination of his rights. All are interested in the integrity, independence, and impartiality of the judiciary, the most important and powerful branch of our government. Judges presiding over the courts should be unbiased, impartial, and disinterested in the subject-matter in litigation, and it- is of the utmost importance that all doubt or suspicion to the contrary be jealously guarded against, and, if possible, completely eliminated, to the end that we may maintain and give full force and effect to the high ideals and salutary safeguards written in the organic law of the state. State ex rel. Mayo v. Pitchford, 43 Okla. 105, 141 Pac. 433; Yazoo & M. V. R. Co. v. Kirk, 102 Miss. 41, 58 So. 710, 834, 42 L. R. A. (N.S.) 1172, Ann. Cas. 1914C, 968.”

To like effect are Robertson v. Bozarth, 87 Okla, 102, 209 Pac. 742; Schulte v. Bolen, 90 Okla. 238, 216 Pac. 928; State v. Martin, 125 Okla. 24, 256 Pac. 681.

In the case of State ex rel. Conley v. Parks, 32 Okla. Cr. 61, 239 Pac. 941, 942, it is said:

“Prejudice is a state of mind which is ordinarily not capable of being proven by direct and positive evidence. It can generally be proven only by the circumstances, environment, association, relationship, and conduct of the person who entertains it. It is often not known to be held by the person entertaining such prejudice; that is to say, one may have a prejudiced state of mind upon a subject against an idea, cause or person, and be wholly unconscious that he had any prejudice. In fact upon casual thought, we are aware that many persons are prejudiced upon public questions, in matters of politics or religion, or on many other subjects, and by reason of such prejudice incapable of giving a dispassionate consideration to such question, and at the same time be totally unconscious that be is prejudiced, and would be quick to repudiate a suggestion that bis state of mind is other than fair and' open.”

Tbe constitutional provision wbicb guarantees to- every person charged with crime a trial without “prejudice” in so far as it relates to- the presiding judge does, not include the opinion of the judge as to- the guilt or innocence of the defendant; the prejudice contemplated means the presence of such a state of mind or feeling as might prevent him from giving the defendant a fair trial.

We do not think it is necessary that the application should allege facts which tend to show that the judge was intentionally unfair or that he would knowingly disregard the law or the evidence to- the prejudice of the defendant. It may, however, sometimes happen that conditions or circumstances are such that a perfectly honest and competent judge would in fact be unable to- afford a defendant such a fair and impartial trial as the law intends and requires.

Of course, it is important that the laws should be enforced and violations thereof punished, but it is still more important that, as far as possible, every person accused of an offense should have a fair trial before an impartial court or judge.

The question here submitted for our consideration is not whether petitioner is guilty or innocent of the offense charged. Petitioner may be guilty, but this does not furnish any excuse for the refusal of respondent to vacate the bench.

Upon careful examination of the record, it is our opinion that upon the undisputed facts the application for a change of judge in petitioner’s case on account of the prejudice of the judge should have been granted.

Respondent haying refused to disqualify, the writ of mandamus as prayed for is awarded.

DAVENPORT, P. J., and BAREFOOT, J., concur.


text:
    H. L. NEWTON v. STATE.
    No. A-9249.
    May 21, 1937.
    (68 Pao. [2d] 431.)
    Clayton Carder, for plaintiff in error.
    Mac. Q. Williamson, Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction in the county court of Washita county, under section 2591 (21 Okla. St. Ann. § 1279), upon an information charging that in said county on the 18th day of February, 3935, “H. L. Newton did then and there unlawfully, wil-fully, intentionally and wrongfully point a pistol at and towards the person of one J. A. Duncan.” The jury were unable to agree upon the punishment. Motion for new trial was denied. September 22, 1936, the court rendered judgment on the verdict and imposed the minimum punishment, confinement in the county jail for three months and a fine of |50. Section 2592 (21 Okla. St. Ann. § 1280). From the judgment an appeal was perfected by filing in this court on January 15, 1937, a petition in error with case-made.

It is assigned as error that the verdict is contrary to the law and the evidence and that the court erred in overruling- the defendant’s motion for a new trial.

No brief has been filed, and no- appearance made in behalf of plaintiff in error in this court.

It appears from the record that no objection was made to the information, and that no exceptions were taken to the instructions given by the court.

The testimony of several witnesses called by the state supports the material facts alleged in the information. The testimony of the defendant as a witness in his own behalf was to the effect that he did not point his pistol at any person at the time of the altercation.

The evidence gives full support to the verdict.

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

DAVENPORT, P. J., and BAREFOOT, J., concur.


author: DAVENPORT, P. J.

text:
    WADE CRANE v. STATE.
    No. A-9129.
    May 21, 1937.
    (68 Pac. [2d] 539.)

      Harrison Hoe and David Tant, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty Gen., for the State.
   DAVENPORT, P. J.

The defendant, Wade Crane, was by information jointly charged with Newt Lawson of the crime of grand larceny. The property alleged to have been stolen was 65 bushels and 30 pounds of wheat, the personal property of Jake Zumwalt. The defendant was tried separately, convicted, and sentenced to serve a term of one year and one day in the state penitentiary. Motion for a new trial was filed, considered, overruled, and the plaintiff in error has appealed. In this opinion, the plaintiff in error will be referred to as the defendant.

In the trial of the case, Newt Lawson, the codefend-ant, testified for the state. He and two negroes testifying they went with Wade Crane to the granary of Jake Zum-walt in the nighttime and got the wheat named in the information.

The defendant in his brief does not question the sufficiency of the testimony and for that reason it is not necessary to set out the testimony in full. The main question raised by the defendant is that in the trial of the case in order to corroborate the testimony of Newt Lawson and two negroes, the state read from the testimony of one Bennie Thomas, who was a witness at the preliminary trial. Tbe testimony showed the wheat when, taken from the granary of Jake Zumwalt was taken to the granary belonging to the defendant, or some member of his family, and unloaded in the granary. The next day the defendant, Wade Crane, employed the witness Bennie Thomas to move this wheat from the granary of the defendant or some member of his family to the elevator in G-randfield.

The defendant alleges four assignments of error which he deems sufficient to warrant this court in reversing the case. The second assignment is the only error it is necessary for this court to consider, which is as follows:

“Error of the court in permitting the county attorney to read to the jury certain testimony introduced at the preliminary trial, over the objections and exceptions of the defendant.”

The other errors complained of are not discussed in defendant’s brief, and he admits that the testimony is sufficient to sustain the verdict and judgment if the court did not err in admitting the transcript of the testimony of Bennie Thomas, taken at the preliminary trial, to' be read to the jury by the court over the objection of the defendant. The Thomas testimony permitted to be read to the jury goes to the fact that the defendant in this case, Wade Crane, on Saturday morning after the wheat is alleged to have been stolen on Friday night, came to a cafe and spoke to his father-in-law and asked his father-in-law to ask Bennie Thomas if he wanted to haul a load of wheat; and Thomas said, “Yes,” and Thomas said:

“I went out and talked with the defendant, Crane, and asked him how much; and how far it was and we got together on the price, and I went out to> the Crane farm where the defendant had told me the wheat was in the granary. The defendant was at the farm, and when I backed up to the granary the defendant asked me how much the bed would bold, and I told him between 90 and 100 bushel; and he said he had about 70 or 75, and I loaded until I thought I had about that much, and as I started to drive away he said to sell the Avheat in Newt Crane’s name, and when I unloaded it and they made out the check, one of the defendant’s boys was at the elevator and said he would give the check to his daddy, and he would pay me for the hauling. I did not know whose wheat it was; I thought it was Newt Crane’s; I got the wheat four miles north and 1 mile east of Grandfield; I thought Garland Crane lived on the place where I got the wheat.”

It is urged by the defendant that the admission of this testimony over the objection of the defendant was reversible error, for the reason that due diligence was not shown, nor was a sufficient predicate laid to authorize the court in admitting the testimony of this witness taken at the preliminary examination. Citing many decisions in support of his contention that the proper predicate was not laid for the state to offer the transcript of the testimony of the witness Bennie Thomas taken at the preliminary.

From an examination of the record, it is not deemed by this court necessary to go into the question as to whether or not due diligence was used by the state in trying to secure the attendance of the witness Bennie Thomas, and as to whether or not a proper predicate was laid to justify the court in admitting the testimony of Bennie Thomas, for the reason that the record shows that the defendant, testifying in his own behalf, admitted he hired the witness Bennie Thomas to go to the farm and haul the wheat from the farm to the elevator. Defendant further admitted that when the wheat was loaded into the truck of Bennie Thomas he told Thomas to sell the wheat in the name of his brother, Newt Crane, and that his son received the check.

Defendant further states he took the check to his brother who indorsed it and he then brought it back to toAvn and deposited $20 of it in the bank and kept the other. He denied he paid Newt Lawson $25, but admitted he paid a colored man by the name of Rearman and another colored man $4 for their services in helping Newt Lawson load the wheat at the Zumwalt granary the night previous to the time he hired Bennie Thomas to haul the wheat from the Crane granary and sell it.

In view of the admissions made by the defendant in his testimony that he hired Bennie Thomas to' haul the wheat from the granary on the Crane place, and giving directions as to the sale of the wheat and the disposition of the check received for the wheat, it was not error for the court to admit the transcript of the testimony of Bennie Thomas taken at the preliminary trial. Pruitt v. State, 60 Okla. Cr. 210, 63 Pac. (2d) 776.

The evidence is sufficient to sustain the judgment. The defendant was accorded a fair and impartial trial. The court properly advised the jury as to the law for its guidance in considering its verdict. Finding no errors in the record sufficient to warrant this court in reversing the same, the judgment of the trial court is affirmed.

DOYLE and BAREFOOT, JJ., concur.


text:
    JOHN CHERRY v. STATE.
    No. A-9212.
    May 28, 1937.
    (69 Pac. [2d] 407.)

      Turner M. King, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, the defendant in the lower court, was by information charged with attempting to break and enter a building with intent to commit larceny; was tried, convicted, and sentenced to be imprisoned in the state penitentiary for a term of five years. Defendant duly excepted and from the judgment and sentence has appealed. Petition in error and case-made was filed October 13, 1936.

On the 21st day of May, 1937, the Attorney General filed a motion to strike the case-made for the reason as shown by the case-made the judgment and sentence was rendered on the 16th day of April, 198'6, and the record also shows that on April 16, 1936, motion for new trial was filed; that no extension of time in which to make and serve a case-made was granted at the time the defendant was sentenced. The Attorney General in his motion further states that the records and journals kept by the court clerk show that on June 9, 1936, the motion for a new trial was overruled. Notice given by the defendant of his intention to1 appeal, and sixty days to provide a case-made. The record further shows that the case-made was served on the county attorney August 10, 1936.

Section 534, O. S. 1931 (12 Okla. St. Ann. § 958), in part is as follows:

“The case so made or a copy thereof, shall, within 15 days after the judgment or order is rendered, be served upon the opposite party or his attorney.”

The record is silent as to the court granting the defendant time to make and serve a case-made, and it fails to show that the defendant in this case did cause to' be made and served upon the county attorney the case-made within the 15 days as provided by the statute.

The sentence in this case was imposed on the defendant on the 16th day of April, 1936. The motion for a new trial was not heard by the court until June 9, 1936. When the motion for a new trial was overruled, then for the first time the court granted the defendant a 60-day extension of time from the date of the overruling of the motion for a new trial. Under our practice in criminal cases, an appeal is from the judgment and not from the order overruling the motion for a new trial, and the time of perfecting an appeal runs from the date of the judgment.

In Parker v. State, 10 Okla. Cr. 541, 139 Pac. 708, in the third paragraph of the the syllabus the court stated:

“There is no statute authorizing an appeal from, an order denying a motion for a new trial, except as instant to an appeal from a judgment of conviction.”

In Clark v. State, 18 Okla. Cr. 145, 193 Pac. 1008, 1009, in the syllabus the court said:

“Under Code of Criminal Procedure (section 5991, Eev. Laws 1910 [22 Okla. St. Ann. § 1054]), In felony cases the appeal must be taken within six months after the judgment is rendered,’ and not six months after the motion for a new trial is overruled.”

Section 5991, E. L. 1910, is now section 3192, O. S. 1931 (22 Okla. St. Ann. § 1054).

In Hensley et al. v. State, 121 Okla. 47, 247 Pac. 376, 377, the court in the body of the opinion said:

“Judgment was rendered herein on February 20, 1925, and on the 19th day of March, 1925, the trial court made an order extending the time 60 days from that date within which to make and serve case-made. This order, however, is void for the reason that the 15 days allowed by section 785, C. O. S. 1921 [12 Okla. St. Ann. § 958] had expired at the time the order was made. The trial court has no power to extend the time within which to make and serve a case-made after the time allowed by statute or granted by a previous extension has expired.” Section 785, C. O. S. 1921, is now section 534, O. S. 1931 (12 Okla. St. Ann. § 958).

In Welch v. State, 38 Okla. Cr. 300, 260 Pac. 787, in the second paragraph of the syllabus the court said:

“A case-made for appeal, not served within the time originally allowed by the trial court for serving case-made, nor within the time fixed by any valid extension of time, is a nullity.”

In this case the record clearly shows that the defendant Avas sentenced on the 16th day of April, 1936, and no order giving the defendant an extension of time beyond the statutory 15 days to make and serve a case-made was entered. In Welch v. State, supra, in the first paragraph of the syllabus this court said:

“The time within which an act is to be done shall be computed by excluding the first day, and including the last; if the last day be Sunday, it shall be excluded.”

Computing the time from the date of the sentence on April 16, 1936, the fifteen days allowed by the statute for the defendant to make and serve a case-made would expire on May 2, 1936. In the absence of an order granted by the court giving the defendant an extension of time to make and serve a case-made prior to May 2, 1936, any order made by the court thereafter is without jurisdiction and is a nullity.

The motion of the Attorney General to strike the case-made as a case-made is sustained. Under our procedure, there are two methods for taking an appeal which are provided for. First, by filing a petition in error with case-made attached thereto; second, by filing a petition with duly certified transcript of the record attached thereto.

Our court has held in Mathis v. State, 18 Okla. Cr. 199, 194 Pac. 278:

“If the first method is pursued, and for any reason the case-made is fatally defective, the appeal will be considered upon the transcript, provided it is properly certified by the clerk.”

In this case the record, filed by the defendant is properly certified by the clerk, and this court will consider the record as a transcript and ascertain if there are any fundamental errors sufficient to warrant a reversal of the case.

The information in clear and concise language charges the defendant with knowingly, willfully, burglariously, unlawfully, and feloniously attempting to break into a certain dwelling about a mile north of Ada, Okla., then and there belonging to one George Mayhue, and used and occupied as a dwelling. The information is sufficient to advise the defendant of the charge against him. No demurrer or objection to the information was interposed by the defendant.

Where an appeal is by transcript, the most of the questions raised by the petition in error are not such as may be passed upon by the court. The court will examine the transcript for fundamental errors and if none appear the judgment will be affirmed.

We have carefully examined the transcript of the record and considered the same in connection with the errors assigned in the petition. The proceedings leading up to the judgment appear to be regular. No fundamental error is contained in the instructions given. The judgment conforms to the charge, and the sentence imposed is within the limit allowed by the statute. Washington v. State, 26 Okla. Cr. 262, 223 Pac. 408.

We find no fundamental or prejudicial errors in the transcript that will warrant this court in reversing the case.

The judgment is affirmed.

DOYLE and BAREFOOT, JJ., concur.


text:
    BERT STANLEY v. STATE.

      No. A-9215.
    May 28, 1937.
    (69 Pac. [2d] 398.)
    O. P. Mason, for plaintiff in error.
    Mac Q. Williamson, Atty.' Gen., for the State.
   DAVENPORT, P. J.

Tbe plaintiff in error, the defendant in the lower court, was by information charged with larceny of one black sow, weight about 260 pounds, marked with a swallow fork in the left ear and a split in the right ear, and five black and red spotted shoats which weighed about 40 pounds each, with no marks or brands, the property of Alvie Cunningham; was convicted and sentenced to serve a term of two> years in the state penitentiary. Record was properly saved, and the defendant has appealed.

The state to maintain the charge against the defendant called as a witness Alvie Cunningham, who. stated he lived in Ottawa county in the fall of 1934 and until January, 1935:

“I know Bert Stanley; he lived north and east of me something like a mile and a half; I know Hallie Lankford; he lives south and west of my place something like a mile or a mile and a half; early in January, 1935 I was the owner of a black sow that weighed about 250 pounds, and five shoats; the so w was marked with a swallow fork in the left and a split in the right ear; I had owned her for more than two years; the shoats, I imagine Avould weigh about forty pounds; they were running on the open range; the sow had been ranging down on Cow Skin, she would g'o back and forth; I got Mr. Maddux to go with me down there and hauled them home and kept them shut up for about three weeks and turned them out, and they would go off and stay maybe three or four days, maybe a week, and then come back and then disappear again.
“After they disappeared I went down to Mr. Hamas,’ where she had been running, in a wheat field and late corn field near the river; I went next to. Mr. Lankford’s, the sow had been there but was gone; I looked for my hogs but I did not find them. I went to Mr. Bert Stanley, the defendant, and told him I had come to demand my hogs, that I had found out he had my hogs and I wanted my money for them; he said he did not know they were my hogs or he wouldn’t have gotten them; we talked a little while and Stanley said how much money, and I told him $22.50; he wanted to know how soon I had to have it and I told him .Saturday; I suppose it was about Wednesday when I was talking to him; I went back to his place Saturday evening, but he was not there and I did not get' to see him until after Mr. Dry went down with me and he was arrested. I do not know what hogs Mr. Stanley had prior to January; I saw some hogs there in his pen when I was at Mr. Stanley’s house asking about my hogs but I do not know they were his.
“The last time I saw my bogs was a few days before Christmas 1934, down in the southeast part of Ottawa county, near Turkey Ford district. I live on the north side of the Delaware county line. It is rough country; the last time I saw them was down toward Mr. Hamas’ place. I don’t know how far Mr. Lankford’s place is from Mr. Hamas’ farm; there is quite a hilly country around there; it is a little over half a mile from Mr. Lankford’s place to the Hamas farm; they are in Delaware county. The hogs had been gone from my place since two or three days before Christmas, 1934; I do not know how old the pigs were._ I went down to Mr. Bert Stanley’s, the defendant’s, about the twentieth of January, I believe it was, wouldn’t say for sure. My cousin Elmer Cunningham was with me. When we got to his home he was working on a Model T Ford; after we passed the time of day I told Bert I came to demand my money for the hogs; he said he didn’t think they were my hogs or he wouldn’t have taken them; I wouldn’t say he stated they were his hogs; he agreed to pay me for them but he never talked about it any more; he went to a saw mill where his brother-in-law was working, and was working there when the sheriff went down and got him.”

Hallie Lankford, testifying for the state, stated:

“My name is Hallie Lankford; I live a mile and a half west of the Turkey Ford store; I know Alvie Cunningham and Bert Stanley; I have seen Dewey McElheany a few times; in the early part of January 1935, I was living about five miles from Bert Stanley’s place and about four miles across the hills from Alvie Cunningham; about a quarter of a mile in Delaware county; in an open hilly countryj in the early part of January there was a black sow and five shoats around my place; the sow would weigh about 250 or 260 pounds; I couldn’t say about the mark in the left ear; the pigs were black and red spotted and I judge would weigh about sixty or seventy pounds; they were around my place about a month or more. Bert Stanley came down and got them. Dewey McElheany was with him; I could not say just what time in January it was went they got them; they were in a Ford Roadster, T model, they put them in the turtle back of the roadster; Bert Stanley was driving' the car. Stanley told me he came down one time and I was not there, and he could not get hold of the hogs; he left word for me something about if he could not get hold of them for me to> butcher them and he would give me half of them. I was working during the day, and would come home in the dark, leaving by daylight; I told him if he would come down I would help him catch them; I was not acquainted with Stanley at the time; he first came down and talked with me a short Avhile before Christmas, 1934; these hogs had been running around my place for something like a month, and running down in the low bottom near my house most of the time; the Hamas place is something like three or four miles from my place; the Cunningham place is something, like three or four miles right over the hills, to go around the road to get to his place I expect would be twelve or fourteen miles. Stanley lived on the road going around to the Cunningham place a little over half way; traveling back from the Cunningham house along the road to the Stanley house is something like four or five miles. I don’t know how many times Stanley was down inquiring for the hogs; he came and got the sow once and she came back. I helped him load her one time; Stanley came down one morning about daylight as I was starting to work, and my nephew helped him load her that time; Stanley told me they were his hogs and asked me to help butcher them; he asked me whether or not they were damaging me, and I told him there would be no damage if he could get them and take them away. Stanley got the hogs after Christmas; the sow was fat and the pigs were just in fair shape.”

Dewey McElheany, testifying for the state, stated:

“I am acquainted with Bert Stanley; at the time of the alleged crime I was living about 200 yards south of him, and about a half mile from Alvie Cunningham; I went with Bert Stanley to Hallie Lankford’s place after some hogs some time in January; Stanley said he had a sow and four or five shoats; he said he would give me half the hogs if I would help him butcher them; we first went down on Sunday night, and the hogs were not up and we did not get them; we went back early Monday morning, the hogs were there and we loaded the sow in the turtle back of the car and took her to Stanley’s place and butchered her; we went back later and got four of the shoats, and hauled them in the same car we hauled the sow in; we put them in a pen and they got out and we went back later in the week and got them; I would say the sow would weigh around 175 to -200 pounds. Bussell Cunningham, who is a cousin of Alvie Cunningham, Charley Frost, and one of my brothers came down to Stanley’s; while we were butchering. Joe McElheany and Elbert Martin was also there. Bert McOarkell helped us load the sow in the car; Mr. Lankford was not there, he had gone to work.”

Bussell Cunningham, called as a witness, stated:

“I am a cousin of Alvie Cunningham; I lived in the same neighborhood with Alvie last January, near Bert Stanley’s; I was at Bert’s place in January when they was doing some butchering; I do not remember the date; when I got there Dewey and Bert were fixing to kill a black sow, I judge she would weigh about 240 or 250 pounds.”

Elmer Cunningham stated :■

“I am a cousin of Alvie Cunningham; I knew Bert Stanley; I went with Alvie to Stanley’s house to see about some hogs some time in January, 1935; Alvie asked him what he was going to do about the hogs; Stanley said, ‘Alvie, if I had known these were your hogs, I would not have taken them’; Alvie told him he wanted pay for his hogs — ‘If you do, there will be nothing further said about it; if you don’t, I will have to turn you over to the law.’
“Bert asked him how long he could wait for the money, and he said Saturday; and Alvie said, ‘I will be back here Saturday afternoon between four and five o’clock’; I live near Alvie and know he had some hogs at that time, but I do not know how many; he had a black sow. I am a cousin of Bussell Cunningham.”

Joe McElheany, testifying, in substance stated:

“I know Bert Stanley; I went to my brother Dewey’s place on Monday and saw them butchering; Dewey, Elbert Martin and Bussell Cunningham was at Stanley’s place when I got there.”

The foregoing is the substance of the state’s testimony.

The defendant, testifying in his own behalf, stated:

“My family consists of myself and wife; I live at Turkey Ford, have lived in and around there since 1900; I got these hogs I am charged with stealing from Mrs. Cora Dameron to raise on the halves; I took them home and put them in a pen, one of them got out; the black sow ran off and I found her down at Hallie Lankford’s; I made five or six trips to get them; she was marked split in each ear; she would weigh, I guess, about 250 pounds; when I located the sow Dewey McElheany went with me to help me get them, I as not able to lift very much; we made two trips to get the hogs; we took the sow to my place and butchered her that morning; at the time we butchered her Dewey McElheany, Bussell Cunningham, Elbert Martin, and I believe Joe McElheany were there; we got four of the shoats after we got the sow, and butchered them. At the time I had a listed sow and four shoats I got from Mrs. Dameron; they came and got the listed sow and hogs after I butchered. I have always used the mark of a split in each ear. The difference in a swallow fork and split is in a swallow fork you cut out a big hunk of the ear.
“Mr. Cunningham came to my house and talked to me about having some hogs missing; I advised him I had not killed his hogs, and he said I did, and if I did not pay him for them he would have me arrested; I told him I could not help it; I don’t remember whether he fixed a definite date he should be paid, but I told him I was paying another party for them. I never did agree to pay him for the hogs; at the time he should have come back on Saturday I was working at a saw-mill between Grove and Jay, at Perry’s place; be was my brother-in-law; I did not run when the sheriff came down to arrest me; I told Mr. Cunningham if I had known they were his hogs I would not have taken them.”

On cross-examination witness stated the hogs that were butchered were his :

“I got the sow from Mrs. Cora Dameron who- lives out on Tar creek, to raise on the halves, in October, 1934; in the bunch was a belted sow and four shoats and this sow; she had pigs about a week after I got her; I hauled the hogs from Mrs. Dameron’s in a pick-up; I taken the hogs down from Mrs. Dameron’s and penned them for a while; the black sow got out and brought pigs and I never got her back; I did not see her again until I got her down at Mr. Lankford’s; I do not know what age the pigs were, they were running with her and were black and red; they were not marked; I sold one of the belted pigs to* Lee James; Mrs. Cora Dameron is my cousin; I did not agree to pay Mr. Cunningham $22.50 for the sow and shoats I had butchered, nor did I tell him had I known they were his hogs I would not have taken them; I told him they were my hogs, and that the sow belonged to Mrs. Dameron, and I had a right to do what I wanted to with them.
“The saw-mill was at my brother-in-law’s place where I was working about 20 miles from my home, I judge. I was acquainted with Ely Dry, the sheriff of Ottawa county at that time; I was out in the woods cutting timber.”-

Cora Dameron, testifying in behalf of the defendant,, stated :

“I live on N Street, S. E., of Miami, Okla.; have lived there four years; I know Bert Stanley; he and I had a deal with some hogs; there was six of them, four shoats and two sows; one of the sows was a white belted sow, and the other black. I judge the shoats would weigh about 30 or 40 pounds; the pigs belonged to the listed sow; Stanley was raising them on the halves; I never got anything out of them, but my sou did; I don’t know exactly how many he did get. Stanley killed some of them, I told him that was all right, half of them were his.”

On cross-examination witness stated she was a first cousin of Stanley:

“I raised these hogs from little pigs, did not own the mothers, I got the pigs from Bub Ward; I did not mark them and told Mr. Stanley he could mark them; I intended in the division to let Mr. Stanley keep one of the sows. My son now lives in Colorado; his name is Noah Tanner; he was living with me at the time I let Mr. Stanley have the hogs; he afterwards moved to Big Cabin; I don’t know what my son did with them; I have never seen them since.”

Elbert Martin, testifying for the defendant, stated:

“I live southeast of Fairland; am acquainted with Mr. Stanley; have known him 25 years; in January, 1935, he lived in about 300 yards of me; I know Elmer Cunningham; Alvie Cunningham lived northeast of me about a mile and a half; I don’t know just when he left; I was at Mr. Stanley’s when they were getting ready to butcher; Bert Stanley, Dewey McÉlheany, and a boy called Sandy Cunningham, Bussell Cunningham, and probably Dewey McElheany, my brother, were there; they had the water hot and were getting ready to butcher when I walked up; they killed the sow with a butcher knife by sticking her. Mr. Alvie Cunningham had a bunch of spotted hogs; there was nothing about these hogs that caused me to think they were Cunningham’s hogs; I did not think she was Alvie’s sow; his stock was a kind of a mixed up spotted hogs; I had lived there and observed them for about two years; I paid no attention to the marks on the sow and I don’t remember Mr. Cunningham’s mark, I think it was a swallow fork in the right and a split in the left ear. I remained at Stanley’s until after they got done butchering, and got Bert to take me to the store; I was not there at any time when they butchered any pigs ; Alvie Cunningham had quite a few hogs and I can’t figure out which ones were gone.”

Bert Markell, testifying for the state, stated:

“I live one mile west of Turkey Ford; been living there two years the 16th of January; I know Mr. Cunningham and also Mr. Stanley; some time about Christmas Stanley came over looking for some hogs; he came about three times; I told him there was a black sow there; he described the hogs he was inquiring about and I gave him some information; I helped get the hogs into the barn lot down at Uncle Hallie Lankford’s; there was a black sow and five pigs; Stanley claimed these hogs were his, I don’t know whose they were; I lived within a half mile of my uncle Hallie Lankford’s at the time; I had not seen Mr. Stanley or Mr. Cunningham down there looking for hogs prior to that time.”

The foregoing is the substance of the testimony of both the state and the defendant upon the question of the larceny of the hogs.

The defendant in his petition in error has assigned eight errors alleged to have been committed in the trial of his case, the first, second, fourth, fifth, and eighth errors being as follows:

“1. Error of the court in overruling the motion for a new trial.
“2. Errors of the court in the decisions of questions of law arising during the trial.
“4. Error of the court in not sustaining his demurrer to the evidence of the state.
“5. Error of the court in submitting the cause to the jury.
“8. The judgment is not supported by sufficient evidence, and is contrary to the law and the evidence.”

The only question for this court to determine is the question of the testimony, that is, under the testimony as shown by the record, is it sufficient to sustain a charge of larceny?

Section 2253, O. S. 1931 (21 Okla. St. Ann. § 1701), defines larceny as follows:

“Larceny is the taking of personal property accomplished by fraud or stealth, and with intent to deprive another thereof.”

Section 2255, O. S. 1931 (21 Okla. St. Ann. § 1703), reads as follows:

“Larceny is divided into two' degrees; the first of which is termed grand larceny, the second petit larceny.”

Section 2256, O. S. 1931 (21 Okla. St. Ann. § 1704), defines grand larceny as larceny in either of the following cases:

“1. When the property taken is of value exceeding $20.
“2. When such property, although not of value exceeding tAventy dollars in value, is taken from the person of another.’ ’

Section 2267, O. S. 1931 (21 Okla. St. Ann. § 1716), in part provides:

“And any person in this state who shall steal any cow or hog shall be guilty of a felony and upon conviction shall be punished by confinement in the state penitentiary for a term of not less than two (2) years, nor more than ten years.”

The evidence clearly shows that the defendant in this case claimed the hogs butchered to be his, and that he had a right to butcher them. He went to his neighbor’s home Avhere the hogs were ranging but could not find them, later the hogs came to the neighbor’s and he penned them in his barn, and the defendant who had previous to the time of getting the sow bad been down and inquired about the bogs. A neighbor went with bim and helped load the sow in the car, and traveled with bim to bis home where the sow was butchered in the presence of a number of the neighbors of the defendant, who were going back and forth while the butchering was being done. The defendant later got four of the shoats and butchered them. The proof further shows that they were butchered near the highway in front of the defendant’s house.

There is not a word in the testimony of the state indicating any effort was made on the part of the defendant to conceal the hogs or the butchering of them. All of the testimony shows that the hogs were caught at his neighbor’s place in daylight without any attempt to deceive or conceal what was being done with the hogs.

The defendant in his testimony states positively he had a right to butcher the hogs, and that he did not butcher any of the prosecuting witness’ hogs to his knowledge. All of the testimony goes to1 the fact that the defendant either butchered his own hogs or believed he was butchering his own hogs-, and if they belonged to Alvie Cunningham, the defendant was honestly mistaken. This question has been passed on by this court and by the courts of the different states. In Rugless v. State, 97 Ark. 152, 133 S. W. 600, the court said:

“The evidence for the state shows that the defendant took the horse in the presence of others under claim of title, and there is an absence of criminal intent, which must operate jointly with the act to constitute the larceny.”

This court, in Sneed v. State, 61 Okla. Cr. 96, 65 Pac. (2d) 1245, in the second paragraph of the syllabus, said:

“Penal Code, § 2267 ( 21 Okla. St. Ann. § 1716), providing that ‘any person in this state Avho shall steal any cow or hog shall be guilty of a felony and upon conviction shall be punished by confinement in the state penitentiary for a term of not less than two years, nor more than ten years,’ creates a separate and distinct offense from section 2253 (21 Okla. St. Ann. § 1701) defining larceny to be ‘the taking of personal property, accomplished by fraud or stealth, and with intent to deprive another thereof,’ and does not make the stealing of the animals named grand larceny, without regard to value. To support a conviction under section 2267, it is necessary to prove a felonious intent on the part of the taker to deprive the owner thereof and to convert the same to his, the taker’s own use, which specific proof is not necessary to support a conviction under the general larceny statute.”

In Linde v. State, 61 Okla. Cr. 136, 66 Pac. (2d) 527, 528, this court in discussing the testimony in the body of the opinion said:

“The taking of the turkeys was in the daytime, with knowledge of others that they, had been taken. The defendant at no time did anything to conceal the fact that he had taken them. He assisted the prosecuting witness in examining them and she at no time made demand for their return to her as her property.
“It was the contention of the defendant in his evidence that the turkeys belonged to him and were his property at the time they were taken. Many neighbors testified to his good character and reputation in the community where he had resided. There was some testimony as to his having a bad reputation, but this was mostly from those with whom he had had some kind of controversy.
“Prom the reading of this record, we cannot but come to the conclusion that it does not show any criminal intent on the part of the defendant to commit the crime of larceny.”

In Lansdale v. State, 45 Okla. Cr. 123, 282 Pac. 170, 175, this court said:

“36 C. J. § 105, p. 764, says: ‘If one in good faith takes the property of another believing it to be legally his own, or that he has the legal right to its possession he is not guilty of larceny although his claim is based on, a misconception of the law or his right under it. For although ignorance of law and honest intention cannot shield a man from civil liability for the trespass' committed by him, yet they do protect him from criminal liability by divesting the act of the felonious intent, without which it cannot be a crime.’ ”

In Griffin v. State, 87 Tex. Cr. R. 194, 220 S. W. 330, the court in the sixth paragraph of the syllabus says:

“One taking a hog from the range or commons believing in good faith that it belonged to him would not be guilty of theft.”

The court, in Leak v. State (Tex. Cr. App.) 97 S. W. 476, in the first paragraph of the syllabus, says:

“Where defendant took a calf, erroneously believing it belonged to his employer, whose cattle he had charge of, and took it to his employer’s farm, and there branded it * * * and afterwards sold' it as his own, he was not guilty of theft, though before selling it he discovered his mistake. For him to- be guilty, there must have been fraud in the original taking.”

In Johnson v. United States, 2 Okla. Cr. 16, 99 Pac. 1022, this court, speaking through Judge Baker, reaffirmed the principle that, if the defendant took the property which he is charged with stealing, with the honest belief that he had the right or authority to do so, he would not be guilty of larceny, although he may have been mistaken.

In McSpadden v. Territory, 7 Okla. Cr. 228, 122 Pae. 1105, 1107, the court in the body of the opinion said:

“They admitted the unlawful taking of the property, but claim that it was taken by mistake, and not with intent to deprive the owner of his property; that when they became duly sober and discovered their mistake in taking the wrong bale of cotton they started to return with it, and Avould have returned the same that night, but they were arrested in the meantime. This was a proper and legitimate defense to the charge of larceny. No instruction was requested, and the court omitted to instruct the jury on this theory of the defense.”

In Lockhart v. State, 10 Okla. Cr. 582, 139 Pac. 1156, 1158, the court reaffirmed the doctrine that, if the property alleged to have been stolen by the defendant was taken, honestly, believing it- to- be his, there was no' felonious intent.

The court is of the opinion that the testimony is insufficient to sustain a conviction of the offense charged against the defendant, as it appears from the undisputed testimony that the defendant got the hogs at his neighbors who had penned them for him, and another neighbor had helped load the hogs; he took them home in his car in the daytime and in the presence of his neighbors in the community butchered them within a feAv feet of the public highway. The defendant stated positively that he got these hogs from Mrs. Cora Dameron, and she corroborated the defendant.

It has been held universally by the courts, not only in this state but in other states, that where the taking is open and in the presence of friends, and there is no subsequent attempt to conceal the property, and no denial, and where possession is not obtained by force, trickery, or stratagem, a strict presumption of fact arises that there was no felonious intent which must be rebutted by clear and convincing evidence before a jury may legitimately infer a felonious intent.

The evidence in this case is wholly insufficient to- show1 the necessary elements of the offense charged. We therefore do not hesitate to say the judgment of conviction should be reversed.

For the reasons stated, the judgment is reversed.

DOYLE and BAREFOOT, JJ., concur.