text:
    DAVE UHLENHAKE v. STATE.
    No. A-8892.
    Nov. 22, 1935.
    (52 Pac. [2d] 117.)

      Karl D. Cunningham, for plaintiff in error.
    Mae Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

Appellant, Dave Uhlenhake, was tried and convicted in the county court of Kingfisher county, fche jury leaving the punishment to the court, upon an information which in substance charges that in said county on or about the 15th day of September, 1934, he did willfully, and unlawfully, obstruct and delay one H. E. Cleaver, a deputy sheriff, in the discharge of his duty as such officer in the execution of a search warrant, and did forcibly and violently prevent said officer from serving said search warrant.

Motion for a new trial was duly filed, presented, and overruled.

The judgment and sentence of the court was confinement in the county jail for thirty days and to pay a fine of $50 and the costs.

The statute under which the information in this case was prosecuted is as follows:

Section 2488, St. 1931. “Every person who willfully delays or obstructs any public officer in the discharge or attempt to discharge any duty of his office, is guilty of a misdemeanor.”

Several assignments of error are presented by the petition. Those argued in the brief are:

“Error in overruling the demurrer to the information; error in admitting incompetent testimony; and error in overruling the demurrer to the state’s evidence.”

It appears from the record that appellant with his family lived on East Broadway in the city of Kingfisher. On September 15, 1934, about the hour of 11 p. m., Ed Martin, sheriff, and three other peace officers gained admittance and searched appellant’s residence for intoxicating liquors, but the search was fruitless. The sheriff then arrested appellant and put him in jail.

The prosecuting witness H. E. Cleaver, deputy sheriff, testified that he had a search warrant and attempted to search the defendant’s home. That Ed Martin, sheriff, Jay Smith, chief of police, and Mr. Duggan went to the back door, and witness with Olin Wall went to the front door; that when he knocked the defendant raised the door curtain and peeked out, then opened the door about a foot, and he started to hand him the search warrant, the defendant started to close the door, and witness attempting to catch it, his left hand went through the glass panel in the door. The other officers then came around and he gave the search warrant to Sheriff Martin, and told him he was going uptown to have his hand dressed. He further testified that he had been unable to find the search warrant sincé he made his return on it Monday following the Saturday night when the search was made.

Olin Wall testified that he was night watchman of the city of Kingfisher and with other officers went to the home of Dave Uhlenhake to search for whisky; that with Toby Cleaver, he stopped at the front door and the other officers went around to the back door; that Uhlenhake pulled the curtain back, opened the door, and was shutting the door, when Toby told him he had a search warrant. Just then Toby hurt his hand in the door. The other officers came up, and Toby handed Sheriff Martin a paper. They then went in and searched the house.

The testimony of Jay Smith, chief of police of the city of Kingfisher, was to the effect that he was with the officers; they said they had a search warrant; that with the sheriff and Mr. Duggan he went around to the back door, and found it locked; they heard the glass break and walked around to the front door; there Cleaver handed Sheriff Martin a paper and said something about his hand being-cut and left, and they went in and searched the house.

C. O. Oakes, justice of the peace, against objections, testified that there was an affidavit for a search warrant and he issued a warrant to search the premises and turned it over to the sheriff’s office. Motion to strike as not the best evidence overruled. That he had made a search of his office and could not find either the affidavit or search warrant.

Sheriff Martin testified that he was at the back door and heard glass breaking and ran around to the front door and took the warrant from Cleaver and searched the house■ that Jay Smith went in ahead of him; that he handed defendant a copy of the search warrant; that he gave Mr. Cleaver the search warrant on Monday to make a return on it.

The state rested, and the defense interposed a demurrer to the evidence as being insufficient to show that the officers were at the home of defendant under and by virtue of a valid search warrant, which demurrer was overruled. Exception reserved.

On the part of the defense, Bill McHone testified that he was at the home of defendant at the time the glass panel was broken out of the door there; that he was sitting within six feet of the door, when defendant opened it, and didn’t hear a word spoken; that it was then about 11 o’clock at night; that Sheriff Martin, Jay Smith, and Olin Wall came in and searched the house; that Sheriff Martin laid a paper on the table in the second room; that the children were in bed; that his brother had been there in the early part of the evening.

Defendant as a witness in his own behalf testified that he was sitting in the front room when the door rattled, and he opened the door, looked out and did not see anybody, and shut the door; then the glass in the door was broken. He opened the door again, and Olin Wall walked in, Jay Smith, and Sheriff Martin following him, and they searched the house; it was about 11 o’clock at night. Sheriff Martin laid a paper on the dining room table, arrested him, and took him to jail, where they kept him from Saturday night until the following Tuesday at 4 o’clock.

On cross-examination he stated that he had lived in Kingfisher 84 years; that he had to get a writ of habeas corpus to be admitted to bail.

Iva Wells testified that she was at the home of defendant when the officers came there and saw defendant get out of his chair, go to the door and open it, and when he closed the door the glass panel was broken; that if anybody spoke to Mm she did not hear it. Then defendant again opened the door, and Olin Wall came in followed by Jay Smith and Sheriff Martin; they searched the house and arrested Mr. Uhlenhake.

Alice Uhlenhake, wife of appellant, testified that she was in the kitchen and heard somebody unlatch the screen on the back porch; that when she called the children in that evening, she put the night lock on the back door.

It is contended for appellant that the invasion of his home and the search of the same was an unauthorized trespass, and in violation of the constitutional guaranty that:

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

Section 30, art. 2, Bill of Bights. And in violation of section 2639, ,St. 1931, that:

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

And section 3230 requires that:

“The magistrate must insert a direction in the warrant that it be served in the daytime, unless the affidavits be positive that the property is on the person, or in the place to be searched. In which case he may insert a direction that it be served at any time of the day or night.”

In that there was no competent evidence showing, or tending to show, that a complaint or affidavit sufficient to justify the issuance of a search warrant for the home of the defendant was ever made, which warrant, if ever issued, was never returned, and no competent evidence showing that the officers had lawful authority to gain admittance to the defendant’s home, or that the warrant authorized a search in the nighttime. And that the evidence is insufficient to show that the offense charged, or any other crime, was committed by the defendant in the presence of the sheriff who made the arrest upon which this prosecution followed.

It is evident from the record that the defendant was convicted, the evidence and the law to the contrary notwithstanding.

Probable cause for the issuance of a search warrant is a mixed question of law and fact, and the true test of sufficiency of the complaint or affidavit to warrant the issuance of a search warrant is whether it has been drawn in such a manner that perjury could be charged thereon if any material allegation contained therein is false.

Our Criminal Code provides:

“A person who maliciously and without probable cause procures a search warrant to be issued and executed is guilty of a misdemeanor.”

Section 3239, St. 1931. And that:

“A peace officer in executing a search warrant, who willfully exceeds his authority, or exercises it with unnecessary severity, is guilty of a misdemeanor.” Section 3240.

The information in this case alleges that the defendant did willfully and unlawfully resist, obstruct, and delay an officer, “engaged in the execution of a legal process, in the due and lawful execution of his duty as such officer, the same being a search warrant.”

On the trial of this case it was necessary for the state to establish the fact that such process was regular and legal on its face.

A warrant regular on its face, although illegally' issued, is a protection to the officer who has no knowledge of the illegality of its issue.

The only primary and competent evidence introduced to show the issuance of a search warrant was Exhibit 1 as identified by the witness Owens, as follows:

“Case No. 346. State of Oklahoma v. Dave Uhlenhake.

“Journal Entiles. Complaint filed this 15th day of Sept. 1934, alleging that said Defendant on the 15th day of Sept. 1934, committed the crime of Violation of Prohibitory Law. Complaint sworn to by Ed Martin, S. Warrant issued 15 day of Sept. 1934, delivered to Sheriff of Kingfisher County, Oklahoma.
“Warrant Returned-day of-193 — , served as commanded-day of —■-, 193 — .”

It is a well-established rule of the law of evidence that the best evidence of which the case in its nature is susceptible must, if accessible, be produced. Dubois v. State, 22 Okla. Cr. 308, 210 Pac. 1043.

The rule of evidence requiring that the best evidence shall be produced, to the exclusion of secondary and hearsay, is violated by the admission of oral testimony to show the contents or recitals of a search warrant and the complaint or affidavit upon which such warrant issued.

Where a justice of the peace has acquired jurisdiction, the only competent evidence of the proceedings had is the record required by law to be made, and the record is conclusive as against any parol attack in a collateral proceeding attempting to impeach it. Ex parte Walton, 2 Okla. Cr. 437, 101 Pac. 1034.

In issuing a search warrant the statute requires the evidence of probable cause to be made a permanent record in the form of a verified complaint or an affidavit.

The complaint or affidavit and the search warrant should be matters of public record in the office of the justice of the peace who issued the search warrant.

The statement of the custodian of a record as to its contents is no more valuable than the statement of any other person who has read it. The record itself is the evidence, and the affidavit and the warrant issued thereon are the best evidence of what they contain.

« Where a record is lost or destroyed, the statute provides for substitution.

Section 810, St. 1931, provides:

“Whenever the record of any judgment or decree, or other proceeding, of any court of this State, or any part of the record of any judicial proceeding or any other public records, shall have been lost or destroyed, any person interested therein may, on application by petition, in writing, under oath, to the proper court of the county wherein the records were kept, and on showing, to the satisfaction of such court, that the same has been lost or destroyed without fault or neglect of the person making such application, obtain an order from such court, authorizing such defect to be supplied by a duly certified copy of such original record, where the same can be obtained; which certified copy shall, thereafter, have the same effect as such original record would have had, in all respects.”

Section 3233', St. 1931, provides that a return to a search warrant shall be verified by the affidavit of the officer. The written return to the execution of a search warrant is ordinarily the best evidence of what the executing officers did. Welch v. State, 30 Okla. Cr. 330, 236 Pac. 68.

Under the statute duly certified copies of the record in question would have the same validity and effect as the original complaint, or affidavit and warrant issued thereon. It would have been proper for the county attorney to ask for such substitution as soon as the loss was discovered.

The Constitution of our state designed as a bulwark against the power of official oppression is broad enough to accomplish its purpose.

In Foreman v. State, 8 Okla. Cr. 480, 128 Pac. 1101, 1102, we said:

“The Bill of Rights is something more than a mere compilation of glittering generalities. Some of its provisions constitute a formal and public declaration of popular rights and liberties. The guarantee in article 2, § 30 * * * that the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated, should be respected by all peace officers and law-abiding citizens.”

And the statutes are in accordance with the Bill of Rights.

The effect of said section 30 is to put the courts of the state and state officials in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, house, papers, and effects against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, and the duty of giving to it force and effect is obligatory upon all intrusted with the enforcement of the laws.

The violation of the rights, privileges, and immunities secured by the Constitution should find no sanction in the judgments of the courts which are charged at all times with support in the Constitution, and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.

What we have said leads to the conclusion that the court erred in overruling the defendant’s demurrer to the evidence, and also erred in admitting incompetent and secondary evidence.

It is hardly necessary to say, so far as the record shows, this prosecution was destitute of merit.

Because the conviction is contrary to law and to the evidence, the judgment of the lower court is reversed, and the case is remanded, with direction to dismiss and costs occasioned by this appeal taxed to Kingfisher county.

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


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    W. H. STEYH v. STATE.

      No. A-8868.

    June 28, 1935.
    Rehearing Denied Nov. 27, 1935.
    (52 Pac. [2d] 121.)

      Jack W. Page and T. J. Hinshaw, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Paul W. TJpdegraff, Co. Atty., for the State.
   EDWARDS, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Cleveland county of having the unlawful possession of intoxicating liquor and was sentenced to pay a fine of $800 and to serve 90 days in the county jail.

At the time charged, defendant was arrested by the sheriff and two police officers just after he had boarded a southbound Santa Fe train at the city of Norman. He was in a coach set apart for use of university students on their way to the Oklahoma-Texas football game at Dallas, and he had in his possession at the time a suitcase containing nine pints of whisky. The police officers testified they observed him as he boarded the train and that he staggered and appeared to be intoxicated. They informed the sheriff and the three then entered the train; the sheriff made the arrest and they secured the suitcase, searched it, and found the whisky. Defendant filed a motion to suppress op the theory that the search was illegal and the evidence inadmissible. The court heard testimony and overruled the motion. Defendant did not take the stand, but offered testimony of several witnesses who testified he was not intoxicated and to good character. On cross-examination of these character witnesses, the county attorney, over objection, inquired in substance if they knew that at the time of the arrest defendant had in his possession a number of obscene magazines they would consider his character good.

It is first argued the weight of the evidence is that defendant was not intoxicated at the time of his arrest; that the arrest was therefore illegal and the search as an incident thereto illegal. Upon this point some six witnesses testified defendant was not intoxicated; the two police officers and the sheriff were relied on by the state. This presents a question of fact for the court in passing on the legality of the search and the admissibility of the evidence, and there is ample evidence to support the state’s contention that defendant was intoxicated at the time of the arrest. There is no error in the ruling of the trial court on this point.

Next it is contended the cross-examination by the county attorney of defendant’s character witnesses was prejudicial misconduct in his suggesting that defendant at the time of the arrest had obscene literature .in his possession. Following the general rule, it has been held by this court that a witness to good character may be asked on cross-examination concerning rumors of particular specific acts of the accused inconsistent with good character. This is admissible, not to establish the truth of such rumors or reports, but to test the credibility of the witness and as going to< the value of his opinion of what constitutes good character. Pope v. State, 15 Okla. Cr. 162, 175 Pac. 727; Jones v. State, 17 Okla. Cr. 561, 190 Pac. 887; Underhill, Criminal Evidence, par. 82. Questions touching such rumors or reports, however, must be confined to a time previous to the time of the crime charged. In the instant case the questions refer to matters contemporaneous with the crime charged, and under a proper application of the rule the objections should have been sustained. But since there appears to be no question of the defendant’s guilt, this error does not require a reversal.

The judgment is modified to a fine of $50 and to a term of 30 days in the county jail, and as modified the case is affirmed.

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


author: DOYLE J.

text:
    MUTT DE WITT v. STATE.
    No. A-8913.
    Dec. 3, 1935.
    (52 Pac. [2d] 88.)

      W. M. Hall, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE J.

This appeal is from a judgment of conviction rendered on the 27th day of December, 1934, and sentence in pursuance of the verdict of the jury finding “the defendant, Mutt De Witt, guilty as charged in the information of assault with intent to kill and assess his punishment at 6 years in the state penitentiary.”

The information, omitting merely formal parts, charges:

“Be it remembered that Dennis Bushyhead, county attorney, in and for the county of Rogers, state of Oklahoma, who prosecutes in the name and by the authority of the state of Oklahoma, comes here in person into the district court of said county, this 19th day of November, A. D. 1934, and gives the court to understand and be informed that on the 26th day of November, A. D. 1934, in the county of Bogers, state of Oklahoma, one Mutt De Witt and Shorty De Witt, did then and there willfully and unlawfully, and feloniously commit the crime of assault and battery upon another by means of a deadly weapon with intent to kill in the manner and form as follows, to wit, that is to say, that on said date and in said county and state the said Mutt De Witt and Shorty De Witt then and there being did then and there willfully, unlawfully, and feloniously, and wrongfully and intentionally with a certain dangerous and deadly weapon, to wit, a knife with a blade about three inches long, which they then and there had and held in their hands, did willfully, unlawfully, wrongfully, intentionally and feloniously assault, cut, stab and wound one B. H. DeWeese, and then and there with force and violence likely to cause death, with the felonious intent of them, the said Mutt De Witt and Shorty De Witt, to then and there injure and kill him, the said B. H. De-Weese, all of which was then and there, contrary to,” etc.

The assignments relied upon for a reversal are: Error in overruling the demurrer to the information; error in overruling motion for a continuance; error in overruling demand for time to plead to the amended information; that the court erred in not properly instructing the jury as to the law; and that the verdict is contrary to law and to the evidence.

The facts as shown by the testimony for the state briefly stated are as follows: On October 19, 1934, a meeting was held in the auditorium of the new schoolhouse in the town of Catoosa, dedicating the same. Appellant, Mutt De Witt, his brother Shorty, codefendant, with their mother were seated in the rear near the entrance.

The prosecuting witness B. H. DeWeese testified that these two boys and two or three other boys and girls were disturbing the meeting by talking loud; that he asked them to be quiet, these two' boys wanted to know what right he had to ask them that, and continued to disturb the meeting, so he picked up Shorty in his chair and put him out. The others rushed out after him, Mutt De Witt wanted to fight and pulled his pocketknife out. He walked back into the room and the boys followed him; that he turned around and shoved the chair down over Shorty’s head, then they clinched and while they were scuffling Mutt De Witt stabbed him in the side; that he had Shorty down with his hand on his throat; that he got up and said Mutt stabbed him; that a place on his side had broken out like a little rupture; that he left the hospital on the seventeenth day.

It appears from the record that upon arraignment December 6, 1934, the defendants interposed a demurrer to the information upon the statutory grounds, which demurrer was overruled. Thereupon a severance was granted and the case against appellant was called for trial. Thereupon appellant filed an application for continuance and, after a hearing on the same, it was denied. Thereupon the county attorney filed a motion for leave to amend the information by striking the word “November” and to substitute “October.” The court granted the motion. Thereupon appellant for this reason asked the court to postpone the trial, which was denied. Thereupon the defendant moved for time to plead to the amended information. Motion denied.

Thereupon a jury was selected to try the case without a plea being entered to the information as amended.

Upon careful examination of the record and the evidence in the case, our conclusion is that the verdict is not supported by the law and the evidence, and that the ver-diet is too uncertain to support a conviction for the highest degree of the offense charged. Neither is it responsive to the issue under the proof, which was not of “assault with intent to kill,” but of an assault and battery by means of a deadly weapon with intent to kill, as defined by section 1873 (St. 1931) providing: “Or who commits any assault and battery upon another by means of any deadly weapon.”

It will be observed that the act constituting the offense so defined is clearly and distinctly set forth in the information. The information is also sufficiently direct and certain to charge a violation of the included offense defined by section 1870, providing:

“Every person who, with intent to do bodily harm, and without justifiable or excusable cause commits any assault upon the person of another with any sharp or dangerous weapon, * * * although without intent to kill such person or to commit any felony, is punishable by imprisonment in the penitentiary not exceeding five years, or by imprisonment in a county jail not exceeding one year.”

The court instructed the jury that the defendant was charged with the offense defined by said section 1873. The court also instructed on the included offense of assault with intent to do bodily harm without intent to kill as defined by said section 1870. The court also submitted the issue of assault and battery as defined by sections 1865, 1866. The court did not submit the issue on section 1874 providing:

“Every person who is guilty of an assault with intent to kill any person, the punishment for which is not prescribed by the foregoing section, is punishable by imprisonment in the penitentiary for a term not exceeding five years, or in a county jail not exceeding one year, or by a fine not exceeding five hundred dollars or by both such fine and imprisonment.”

The means prescribed in sections 1873, 1874, and section 1870, by which the offense may be committed, are in substance identical, and the material difference arises only in the punishment prescribed. In the first, punishment must be by imprisonment in the penitentiary with ten years maximum; in the second, the maximum is five years and the punishment may be as for a misdemeanor; in the third, the maximum is five years, and the punishment may be as for a misdemeanor.

In the first, the essential element is an assault and battery by means of a deadly weapon with intent to kill; in the second, the assault must be with intent to kill. In said section 1870, the essential element is the intent to do bodily harm with a sharp or dangerous weapon. The offenses are all of the same character. An assault and battery with intent to kill necessarily includes an assault with intent to kill, also an assault with intent to do bodily harm; for a person cannot be killed without bodily harm being done, and an assault and battery by means of a deadly weapon necessarily includes an assault with any sharp or dangerous weapon. Clemons v. State, 8 Okla, Cr. 452, 128 Pac. 739.

Without entering upon any analysis of the testimony, it is sufficient to say that there was no testimony offered to show that the pocketknife used in committing the assault and battery was a deadly weapon, except the manner and probable effect of its use.

An ordinary pocketknife is not necessarily a deadly weapon. A deadly weapon is one likely to produce death or great bodily harm by the use made of it, but a weapon capable of producing death is not necessarily a weapoi likely to produce death. In many cases the court may declare as a matter of law that the particular weapon was or was not a deadly weapon, but where the weapon used may be a deadly weapon or not, according to the manner in which it was used or the part of the body struck, the question must be submitted to the jury. To convict of the highest degree of the offense charged in this information, it was necessary to show that the assault and battery was committed by means of a deadly weapon, and not by means of any sharp or dangerous weapon as prescribed by said section 1870. And in this case it was a question of fact for the jury Avhether the pocketknife Avas a deadly weapon or merely a sharp and dangerous Aveapon. Clemons v. State, supra.

The record shows that the court instructed the jury in paragraph 7 as folloAVs:

“A pocket knife may, under certain circumstances, be a weapon, and it is for you to determine in this case whether the instrument used by the defendant at the time of the alleged assault was a dangerous weapon as used by the defendant.”

In paragraph II the court used the following language :

“And feloniously make an assault upon B. H. De-Weese with a sharp and dangerous weapon, to wit, a knife with the willful, unlawful, wrongful and felonious intent on the part of him, said Mutt DeWitt, to kill the said B. H. DeWeese, then you should find the defendant guilty of assault Avith intent to kill.”

Instruction No. 12 submits the issue of assault with a sharp and dangerous weapon with intent to do bodily harm.

Instruction No. 13 is as follows:

“The punishment for assault with intent to kill is imprisonment in the penitentiary not exceeding ten years.”

Instruction No. 16 submits the issue of assault and battery.

It follows from what has been said that a verdict finding “the defendant, Mutt DeWitt, guilty as charged in the information of assault with intent to kill” is insufficient as to form, and is too vague and uncertain to support a judgment for the highest degree of the offense charged.

The case having been tried upon a wrong theory and the issues under the pleadings and evidence not having been correctly submitted to the jury, all to the prejudice of the substantial rights of the defendant, we are of the opinion that the defendant was not accorded a legal trial and we are without doubt as to the propriety and necessity of reversing the judgment herein.

The record discloses other rulings arising during the course of the trial that would be difficult to defend. For the reasons stated, the judgment of the district court of Rogers county is reversed and the case remanded.

The record discloses that this defendant being unable to give bail is now confined in the reformatory at Granite. The warden of the reformatory will surrender the defendant, Mutt De Witt, to the sheriff of Rogers county, who shall detain him in custody until otherwise ordered, according to law.

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


author: EDWAEDS, J.

text:
    BILL DAVIS v. STATE.
    No. A-8918.
    Dec. 6, 1935.
    (52 Pac. [2d] 96.)

      Ward & Ward, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Mat-son, Asst. Atty. Gen., for the State.
   EDWAEDS, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of unlawfully tapping a pipe line, and was sentenced to serve a term of one year in the state penitentiary.

The record discloses that at the time charged, defendant, in the nighttime, while acting with some person unknown, uncovered a pipe line belonging to the Texas Pipe Line Company, removed a nipple from a tap saddle, connected a rubber hose thereto, and drew out 43 gallons of gasoline. They were discovered before removing the gasoline. Defendant was arrested the following day and this prosecution followed.

Several assignments of error are argued, none of which we think have any merit, except that of error of the court in overruling the demurrer on the ground the information did not state facts sufficient to. constitute a violation of section 2274, Okla.. St. 1931, under which the prosecution is based. Our statute has two sections relating to the tapping or removal of crude oil and its derivatives from a pipe line, being sections 2274 and 2275, Okla. St. 1931. They are:

“2274. Any person who shall unlawfully make or cause, to be made any connection with or in any way tap or cause to be tapped, or drill or cause to be drilled a hole in any pipe or pipe line or tank laid or used for the conduct or storage of crude oil, naphtha, gas or casinghead gas, or any of the manufactured or natural products thereof, with intent to deprive the owner thereof of any of said crude oil, naphtha, gas, casinghead gas or any of the manufactured or natural products thereof, shall be guilty of a felony.”
“2275. Any person who shall unlawfully take any crude oil or gasoline, or any product thereof, from any pipe, pipeline, tank or other receptacle or container with intent to deprive the owner thereof of said crude oil, gas or gasoline or any product thereof shall be guilty of a misdemeanor.”

The charging part of the information is “* * * that said defendant * * * did unlawfully, willfully, and felon-iously, while acting in concert with one John Doe * * * tap a pipe line owned and operated by the Texas Pipe Line Company of Oklahoma, a corporation * * * by then and there removing a nipple from a tap saddle and then and there connecting a rubber hose to said saddle and turning a stop and then and there drawing and removing 43. gallons of gasoline from said pipe line, with the unlawful and felonious intent, then and there upon the part of said defendant while acting in concert with said John Doe, to deprive the owner thereof permanently and to convert the same to his own use and benefit.” Defendant interposed a demurrer, specifically pointing out that the information did not allege the pipe line was laid or used by said Texas Company or any other person “for the conduct or storage of crude oil, naphtha, gas, etc.” Section 2274, supra, defines a “felony” in the tapping of a pipe line laid or used for the conduct or storage of crude oil, etc. The tapping of a pipe line laid or used for any other purpose does not fall within the terms of section 2274, and a charge of tapping a pipe line without an allegation that it was laid or used for the conduct or storage of crude oil and its derivatives omits an essential part of the definition of the offense denounced by section 2274 and is insufficient to charge a crime under that section. The concluding part of the charge more nearly falls within the terms of section 2275, supra, in alleging the removal from a pipe line of gasoline. Stout v. Territory, 2 Okla. Cr. 500, 103 Pac. 375; Saddler v. State, 36 Okla. Cr. 412, 255 Pac. 719.

For the reasons assigned, the case is reversed.

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


author: DAVENPORT, P. J.

text:
    Ex parte EARL MAISH.
    No. A-9021.
    Dec. 13, 1935.
    (52 Pac. [2d] 85.)

      Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for respondent.
   DAVENPORT, P. J.

This is an original petition filed in this court in which the petitioner alleges he is unlawfully confined by Roy W. Kenny, warden of the state penitentiary, at McAlester.

The grounds upon which he alleges he is unlawfully confined is that in December-, 1921, the petitioner was convicted in the district court of Tulsa county, Oltla., on a charge of larceny of an automobile, and by reason of such conviction was sentenced to the penitentiary for a term of 20 years for said offense.

The petitioner further alleges that he intended to appeal and did not do so for the reason that the county attorney and the assistant county attorney promised him, if he would not appeal his case, when he had served three years they would see he did not have to serve longer.

Petitioner further alleges he was incarcerated in the penitentiary, and on the 16th day of August, 1923, Governor Walton wrote a note to J. H. Townsend, warden of the state penitentiary, at McAlester, ordering and directing that the petitioner be granted a leave of absence. Petitioner attaches a copy of this order to his petition, the last statement in the order being as follows:

“The leave expires on the 16th day of September, 1923. The said judgment be thereafter proceeded with to all intents and purposes as though this leave had not been granted, in the event further clemency is not extended.”

It is further shown by the petitioner that on the 8th day of September, 1923, further leave was granted by Governor Walton, extending the leave of the petitioner until the 16th day of December, 1923, with the statement in the order:

“The said, judgment to be hereafter proceeded with to all intents and purposes as though this leave had not been granted, in the event further clemency is not extended.”

As shown by the petitioner, no further leave was granted, and the petitioner did not return to the penitentiary. The petitioner shows that he worked at different places, and was, at the time he learned he was booked as an escaped convict, in the state of New York visiting his brother; that he was returned to the state penitentiary on the 12th day of December, 1931, where he has remained imprisoned and incarcerated in the state prison.

Many other allegations are set forth in the petition which it is not necessary to enumerate, which are in the nature of an argument that the petitioner is entitled to the relief prayed for.

The response of the warden admits the facts stated in the petition as to the leave of absence granted by Governor Walton, and the extension of the leave of absence, and the fact that the books show that he was entered as an escaped convict after the expiration provided in the extension to- his leave of absence, and that the petitioner did not return to’ the penitentiary himself to serve out the term of imprisonment.

A careful reading of the petition, and the response, discloses there is only one issue in the case, and that is the leave of absence granted by the Governor was not filed in the (Secretary of State’s office, and did not bear the seal of the state. And the same argument is presented against the extension to the leave of absence.

It is true that the granting of the leave of absence and the extension of the leave of absence does not bear the seal of the state, or the signature of the Secretary of State, at the time, yet it is admitted by the petitioner that the granting of the leave of absence, and the extending of the leave of absence by the Governor was what gave the petitioner his leave from the penitentiary, and the petitioner not only was released, but received the benefit of the absence from the penitentiary, and the liberty for many years. Petitioner was in possession of the documents signed by the Governor, and knew their provisions, and there is nothing shown in the petition that when the time fixed in the extension of the leave of absence expired that he offered to surrender himself to the warden of the penitentiary, or to the chief executive of the state, but continued do exercise the privilege granted under them, and failed to return when the time had expired. The petitioner is not in a position to raise the question that the leave of absence granted by the Governor, or the extension to the leave of absence, was not attested by the Secretary of the State, with the great seal of the state, for the reason that he got the benefit of the provisions and cannot be heard to question the legality, or complain that after the expiration of the time fixed in the leave of absence, and extension, he was entered on the books of the penitentiary as an escaped convict. From the time the leave of absence expired until the time he was taken into custody, as a matter of law, he was absent without leave from the penitentiary, and was an escaped convict. He was located in the state of New York and returned to the penitentiary.

The statements contained in the petition and the response of the warden show that the petitioner has not served his term of sentence, and that he is legally committed to the penitentiary, and is now being held under a legal commitment by the warden; that he is not entitled to the relief prayed for.

The writ is denied.

EDWARDS and DOYLE, JJ., concur.


author: EDWARDS, J. PER CURIAM.

text:
    ROBERT H. DENTON v. STATE.
    No. A-8911.
    Nov. 15, 1935.
    On Rehearing Dec. 12, 1935.
    (53 Pac. [2d] 1136.)

      Clay M. Roper and Herman Merson, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., Lewis R. Morris, Co. Atty., and John F.' Eberle, Asst. Co. Atty., for the State.
   EDWARDS, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of murder and his punishment fixed at death.

The information alleges that on the 15th day of May, 1931, defendant shot and killed one John O. Peters. A very brief statement of the facts is all we deem necessary. The voluminous record discloses that defendant, twenty-two years of age, married Mildred Gozart. That some few months after the marriage he developed syphilis, which he claims to have contracted from his wife. Some time later the wife sued for divorce. Defendant entered an appearance in the case. The divorce was granted. In less than two weeks defendant married another woman, though he continued to claim a supervisory attitude toward the conduct of his former wife. Soon after the separation of defendant and his first wife and before a divorce had been obtained, she made a trip to California by automobile with deceased. After the divorce and subsequent marriage of defendant, the former wife and the deceased were frequently together and to this conduct defendant gave particular attention and made threats which led to his finally preparing himself and killing deceased. The killing occurred near the corner of Harvey and Main streets, Oklahoma City. On the date charged, defendant, who was armed with a pistol, saw deceased leaning against the west side of the Security building and fired twice at his head, one of the shots wounding him slightly. Deceased, who1 was unarmed, ran around the corner of the building toward the Main street entrance and as he ran defendant shot him in the back. Deceased fell on the sidewalk and expired in a few minutes without making any statement. Defendant then surrendered to the police, was taken to the police station and made a statement which disclosed a case of premeditated murder. The defense is self-defense and insanity. The only testimony in support of self-defense is that of defendant and it is of a very unsubstantial character. The defense of insanity is supported by three experts and a number of lay witnesses. The charge of the court correctly states the law applicable to each defense. Such of the assignments argued which we deem of sufficient importance will be discussed.

Complaint is made of error in overruling challenge for cause to juror Griffith. The challenge was directed to the answer of the juror on his voir dire touching insanity as a defense. This juror was intelligent and while he was not able to state the rules of evidence and procedure under which the prosecution is required to prove beyond a reasonable doubt the defendant’s sanity at the time of the commission of the crime, when the evidence has once raised a doubt of his sanity, his answers to questions disclose such was his understanding and he readily assented he would be governed by the court’s instructions on this point. The juror was excused by peremptory challenge and defendant asserts he was compelled to use one of his peremptory challenges on this juror. There was no error in the ruling. Under this assignment, objection was also made to juror Brown. This juror was drawn from the box as a member of the regular panel; the objection is that he was not a taxpayer, citing State v. Willis, 135 Wash. 312, 237 Pac. 711. The juror'was listed for taxation and his name was properly on the tax rolls, but by reason of being an ex-service man the' statutory exemption relieved him from the payment of taxes for that year, but that he was subject to payment the next year. The qualifications of a juror are prescribed by section 805, Okla. Stat. 1931. The list of jurors must' be selected from the tax rolls. Section 797, Okla. Stat. 1931. There is no requirement of law that a juror must be a taxpayer. The case of ¡State v. Willis, supra, is not in point for the reason the law of that state requires á juror shall be a taxpayer. The juror Brown was qualified. It is asserted in the brief of defendant that all the peremptory challenges allowed him were exercised. The record does not disclose this to be a fact.

Defendant’s counsel argue error in the court’s permitting the witness Lee to testify for the reason the list of state’s witnesses served on defendant did not bear the correct street address as required by article 2, § 20, of the Constitution. A list of the state’s witnesses, containing the name of this witness, was duly served. When the witness was called in chief, objection was made and it was discovered the street address on the list was incorrect. The court thereupon excused the witness, stating he would look into the question; two days later the witness was again called and testified without objection, and at the conclusion of his testimony a motion to strike was made, because of incorrect street address. There was no attempt to conceal this witness, and, after he was first called, defendant had an opportunity to know his correct address and to ascertain what his testimony would be. The constitutional period elapsed before the witness was used. The purpose of the requirement that a list of witnesses be served is to apprise defendant who the witnesses are, where they may be found, and to enable him to investigate their testimony, their character, and credibility; it was never intended the provision should operate as a means to defeat justice by a too strict or technical construction. State v. Frisbee, 8 Okla. Cr. 406, 127 Pac. 1091; Galbert v. State, 12 Okla. Cr. 571, 160 Pac. 332. Another reason for holding the use of this witness no error is his testimony was cumulative. Havill v. U. S., 5 Okla. Cr. 334, 115 Pac. 119.

On this subject defendant argues the court ei'red in permitting the former wife of defendant to testify for the reason her name and address had not been served. Her name appeared on the list served, but her street address was incorrect. As his former wife, defendant knew her character, reputation, and history and what she would testify better than any one else. The objection is further made that the court records did not disclose her divorce from defendant and her testimony was therefore incompetent, although the specific objection that the witness was incompetent is not made, citing Garrett v. State, 118 Neb. 373, 224 N. W. 860. Both the witness and the defendant testified they had been divorced. Defendant further testified he had remarried after the divorce. In addition, there was introduced in evidence certain court records in which is a minute of the granting of decree. The contention is without merit.

The contention is made that the evidence is insufficient to sustain the judgment and the judgment is contrary to the law and the evidence. A large part of the briefs of both defendant and the state is directed to this assignment and the testimony is quoted at length. Some of defendant’s argument goes more to the credibility than to the sufficiency of the testimony. For instance, defendant argues the testimony of the mother of deceased, in some particulars, is unbelievable and contradicts that of other witnesses; further, that Exhibit 1, a letter from defendant to this witness, discloses it was altered to constitute a threat. We agree with the argument that the testimony of this witness shows animus and is colored by her zeal. As to the exhibit, there is no question but that this letter was altered by the erasure of some three or four words and the insertion of other words. The witness testified it was in this condition when she received it. She was subjected to a vigorous cross-examination and her interest and animus were fully shown the jury. The change in the exhibit, by whomsoever it may have been made, was particularly stressed and the jury permitted to examine it with a magnifying* glass. All the testimony of this witness may be disregarded and the change and alteration of the exhibit considered in the light- most favorable to defendant, and yet there is no question but that the evidence, both direct and circumstantial, overwhelmingly sustains the charge of premeditated murder. The evidence is practically all one way, so much so that we deem it unnecessary to point out the various items of testimony, particularly the testimony of defendant and his admissions on the stand, which justify this conclusion.

It is argued the court erred in overruling defendant’s motion for a new trial and his motion in arrest of judgment. We consider these assignments together. The new trial motion is voluminous, setting out affidavits of evidence of insanity which defendant states he would be able to procure at another trial. Further he offers to prove by an expert the alteration in Exhibit 1, the letter from defendant hereinbefore referred to; he further offers proof contradicting some of the testimony of the state’s witnesses. The motion for new trial presents no new matters, but merely some cumulative testimony and some impeaching or contradicting the state’s witnesses. It was properly overruled. The motion in arrest of judgment alleges the present insanity of defendant and has attached thereto certain exhibits. Defendant contends this required a hearing and a jury trial of present sanity before judgment and sentence, citing Marshall v. Territory, 2 Okla. Cr. 136, 101 Pac. 139; Taylor v. State, 27 Okla. Cr. 165, 225 Pac. 988; Adams v. State, 49 Okla. Cr. 94, 292 Pac. 385; Fralick v. State, 25 Ariz. 4, 212 Pac. 377; People v. Vester, 135 Cal. App. 223, 26 Pac. (2d) 685. On the question of insanity, the instant case is within the rule announced in Adams v. State, supra. The motion tenders eight exhibits attached thereto, being three affidavits of medical experts and certain letters written by defendant to his parents during his incarceration, and stated, further, testimony would be offered if the court would submit to a jury the question of present insanity. The question of present sanity of an accused is directed first to the attention of the trial court. The applicable statutes are section 3212 et seq. and section 3106, Okla. Stat. 1931. Under the procedure prescribed when an indictment or information is called for trial, or when, after conviction, the defendant is brought up for judgment, if a doubt arises in the mind of the court as to the present sanity of a defendant, the court must then order a trial of this question by a jury as a question of fact, as in a civil case or special proceeding. The proceeding is outlined in the sections of the statute referred to. If a claim coming from a reputable source is made, either at the beginning of the trial or at the time for judgment and sentence, that a defendant is insane at the time, with a reasonable showing or tender of proof in support thereof, it is the duty of the court to submit the question to a jury. But where, at the trial, the defense is interposed, not of present insanity, but insanity at the time of the commission of the crime charged, which question is tried to the jury, which by its verdict finds against such plea, such finding is conclusive up to the time of the return of the verdict. The showing in support of a motion in arrest of judgment on the ground of present insanity must be of matters arising subsequent to the verdict.

This question has not been before the courts of the different states a great many times and the authorities are not uniform. Some of the states have no statute governing the procedure in such cases, while statutes of other states vary. Some courts have held that when , the question of present sanity is raised after verdict, it may be determined either by the court or by a jury. Bonds v. State, Mart. & Y. (Tenn.) 143, 17 Am. Dec. 795; State ex rel. Chandler, 45 La. Ann. 696, 12 So. 884. In an early California case, People v. Pico, 62 Cal. 50, it was held that where the showing made did not raise in the mind of the court a reasonable doubt of the defendant’s sanity, there was no error in refusing to submit the issue to the jury. See, also, annotations Baughn v. State (Ga.) 38 L. R. A. 577. Under our statutes, section 3212 et seq., the correct procedure is that where a motion in arrest of judgment on the ground of present insanity is filed, it must be of a substantial character, setting out the facts relied upon to show insanity subsequent to the verdict and it should be supported by affidavits and tender squarely the issue of present insanity. It is not enough that the motion tender an issue of insanity prior to the verdict, for in that case it offers merely a. retrial of an issue unsuccessfully urged before'the jury. State v. Brinyea, 5 Ala. 241. When the motion is made and supported by such a showing, then a legal doubt of defendant’s sanity arises, and it is the duty of the trial court to impanel a jury and to try the issue. While a trial judge may personally have no doubt of defendant’s sanity, yet if the motion and showing in support thereof is substantially as outlined, it is sufficient legally to raise a doubt. In such a case, a refusal to submit the issue to the jury is an abuse of discretion.

In the instant case, the motion in arrest of judgment is subject to criticism as not tendering squarely the issue of insanity arising subsequent to the verdict, but such we think is its import. The showing in support of the motion is of such a substantial character that it became the duty of the trial court before pronouncing judgment to submit to> a jury impaneled under the statute the question of defendant’s present sanity. While the trial court has a discretion, it is not arbitrary or absolute. Commonwealth v. Buccieri, 153 Pa. 535, 26 A. 228; State v. Harrison, 36 W. Va. 729, 15 S. E. 982, 18 L. R. A. 224. The overruling the motion in arrest was an abuse of discretion.

We find no substantial error in the record up to' this point. The court properly overruling the motion for a new trial. His error in overruling the motion in arrest of judgment, without submitting the question of present sanity to the jury, does not require a retrial of the case. The order of the court overruling motion in arrest is vacated and the judgment set aside and the case is remanded to the district court of Oklahoma county, with instructions to impanel a jury as provided by section 3212, Okla. Stat. 1931, and try the issue of the present sanity of defendant. If the verdict in such trial shall be that defendant is sane, judgment and sentence shall be in accordance with the verdict; if the verdict shall be that defendant is insane, judgment and sentence shall be suspended until he be restored to sanity and for further proceedings as provided by law.

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

On Rehearing.

PER CURIAM.

Opinion was heretofore filed in this case on the 15th day of November, 1935, thereafter petition for rehearing was filed by the plaintiff in error and was granted.

Pending the rehearing, we are officially advised that the Governor of this state, under his constitutional authority, has extended clemency to plaintiff in error by commuting the sentence from death to life imprisonment and that such clemency has been accepted.

Upon a further consideration, the original opinion is adhered to, but on account of the grant of clemency tha,t part of the opinion ordering a sanity hearing is abated.


text:
    Ex parte BENTON WALKER.
    No. A-9023.
    Dec. 13, 1935.
    (52 Pac. [2d] 111.)
    Morrill & Snodgrass, for petitioner.
    . Mac Q. Williamson, Atty. Gen., and Smith 0. Matson, Asst. Atty. Gen., for respondent.
   DAVENPORT, P. J.

This is an original petition filed in this court in which the petitioner alleges he is unlawfully confined, imprisoned, and restrained of his liberty, by Fred Hunt, warden of the state reformatory, at Granite, Okla.; that the reason of said restraint to the best of his knowledge and belief is that on the 24th day of September, 1927, petitioner, on a plea of guilty in the district court of Jackson county, Okla., was convicted of the crime of burglary in the second degree, and adjudged by the trial court to be confined in the state reformatory at Granite for a period of three years; that the judgment and sentence provided that said sentence should be suspended during the pleasure of the district judge and the good behavior of the petitioner, Benton Walker.

The petitioner further alleges that on the 24th day of January, 1928, and after said judgment had become final and unappealed from, said cause came on for hearing upon a motion of the county attorney of Jackson county, Olda., to' revoke the suspended sentence heretofore given, and the district judge of Jackson county made an order wherein and whereby said suspended sentence granted said petitioner was revoked, and an order made that the said Benton Walker be transported to the state reformatory at Granite to serve out said sentence, and at the same time and place and in the same decree it was provided that, whereas the defendant had given notice of appeal from said order to the Criminal Court of Appeals of the State, that said order should be stayed, pending the defendant’s execution of an appeal bond in the sum of $2,000, conditioned as provided by law.

It is further alleged by the petitioner that he executed the appeal bond fixed by the court, and has been at liberty thereunder ever since said date until the 5th day of October, 1935; that at said time and place it was understood by the district judge, the county attorney, and the attorney for the defendant that no appeal was contemplated and that said bond was given and said order made to better insure the behavior of the petitioner.

The petitioner further alleges that the original term of said imprisonment has long since expired, and that under said order revoking said suspended sentence on the 24th day of January, 1928, under a commitment issued by the clerk of Jackson county, the sheriff of Jackson county transported petitioner to the said reformatory at Granite, Okla., on the 5th day of October, 1935, and there delivered him to the said Fred Hunt, warden of the state reformatory, at Granite, and there holds and restrains the defendant of his liberty. The petitioner avers that said imprisonment is illegal for the following reasons:

“First. That said commitment is void for uncertainty for the reason that it does not describe the offense for which petitioner was convicted and does not fix a definite time to be served by the petitioner.
“Second. Your petitioner further avers that said order revoking said suspended sentence is an unappealable order and that no appeal lies from any orders of the court except the judgment of the court, and that no appeal would or could lie and that said order could not be suspended by any supersedeas bond; that it was the duty of the court at said time to commit the petitioner to the custody of the sheriff of Jackson county, Oklahoma, and to cause him to be transported to the state reformatory to satisfy said judgment and sentence of conviction and that the action of the court, the county attorney and the sheriff in agreeing that said bond might be executed and that said petitioner might depart from said court was and is unlawful and without any authority of law and could not operate to stay the running of the sentence and that said sentence started to and did begin to run as of January 24, 1928, and that the same has by operation of law, long since expired.”

The warden of the reformatory, in making his return, admits the sentence was suspended until the 24th day of January, 1928. Further he says that on the 24th day of January, 1928, the judge who imposed the sentence upon the petitioner revoked the order for the reason that the said petitioner, Benton Walker, had violated the terms of the suspension by committing the crime of burglary in the second degree.

The respondent further admits that the said petitioner, Benton Walker, prayed an appeal from the order of the district court of Jackson county, Okla., revoking the order of suspension and was enlarged at the time of said revocation of the suspended judgment, on a super-sedeas bond of $2,000, and remained at large without being confined on said judgment of conviction for the crime of larceny, on the 24th day of January, 1927, until the 5th day of October, 1985, when he was committed upon said judgment to the custody of the warden of the said reformatory.

The petitioner contends that the suspension of the judgment against him from September 24, 1927, until the order of suspension was revoked, and then permitting him to remain on his bail he had given until October 5, 1935, amounted to releasing him from the judgment and sentence, for the reason he claims that he did not appeal from the original judgment and sentence, and that the order revoking the suspended sentence ivas not an order that could be appealed from. The petitioner by executing the supersedeas bond got the benefit of its provisions and was at large for many years under the provisions of this bond and cannot now be heard to complain that the order appealed from, for which the supersedeas bond was given, was such an order that could not be appealed from, and that the execution of that bond did not stop the running of his sentence. It would be absurd to say that a defendant in a criminal case could execute a bond and get the benefit derived therefrom, and then be exonerated because the order he was attempting to appeal from was such an order that an appeal could not be taken therefrom.

The statements of the petitioner in his petition amount to an admission, and clearly show that he is not entitled to be discharged from custody, but that under the terms of the revocation and his supersedeas bond he has been at large, and we hold his term of imprisonment was not running during the time he was at liberty on bond, even though it may be conceded when he gave the bond he did not intend to appeal from the order revoking his suspended sentence. The petitioner has not served the time for which he was sentenced.

After carefully considering the allegations of the petition, and the response thereto, and the statement and facts admitted, without lengthening this opinion further, we hold that the petitioner is not entitled to the relief prayed for.

The writ is denied.

EDWARDS and DOYLE, JJ., concur.


text:
    JESSE GILLASPIE et al. v. STATE.
    No. A-8970.
    Dec. 13, 1935.
    (52 Pac. [2d] 87.)

      John Steele Batson and H. H. Brown, for plaintiffs in error.
    •Mac Q. Williamson, Atty. Gen., and Smith C. Mat-son, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiffs in error, Jesse Gillaspie and George Randolph, hereinafter referred to as the defendants, were convicted of the crime of assault and battery, and their punishment fixed at a fine of $100 each and the costs of the prosecution and confinement in the county jail for a period of thirty days.

The testimony in this case shows that the defendants were driving along the highway between Oswalt and Healdton, in Love county, and that Emmerson Hyman was driving along the same highway; that the defendants overtook Hyman and stopped his car, and they got in a row, complaining that Hyman had in some trial previous to. that time testified that the reputation of the defendants was bad and that they were whisky peddlers or bootleggers.

The prosecuting witness, Emmerson Hyman, claimed the defendants came to his car and insisted on getting him out, and tried to pull him out of the car, and Hyman claims they struck him with some kind of a crank, or something of the kind. This is denied by the defendants and other parties. It is admitted, however, that each of the defendants did fight the prosecuting witness; they fought there in the road, and quarreled, and rowed for some time; and a man by the name of Stevens advised other parties to drive on and not interfere with the parties, as it was none of their business.

Jesse Gillaspie was driving, the car, and George Randolph was in the front seat; they were on the public highway about a mile west of where the road turns toward Leon and Wilson, and they drove about a mile north, and there was a car coming up from behind the prosecuting witness. The parties began blowing the horn. Hyman stated he let the car go by, and the car whipped up in front of him and stopped his car. The fight toot place, and defendants deny they hit the prosecuting witness with anything hut their fist, but they did at different times each of them have a fight with the prosecuting witness.

It is clearly shown by the testimony that the defendants stopped the prosecuting witness on the highway for the purpose of whipping, him; that they each engaged in a fight with Hyman, and, when the fight ended, both the defendants and the prosecuting witness were bloody. Neither of the participants in the fight received any serious injury. The testimony clearly shows that the defendants are guilty of assault and battery; that no sufficient reason exists for a reversal of the judgment.

It is urged by the defendants that the punishment assessed by the jury is excessive. Considering all the facts and circumstances in the record, and the authority given to this court in section 3204, O. S. 1931, this court, in furtherance of justice, may modify a judgment appealed from by reducing the sentence. In view of the record in this case, we are persuaded the punishment is excessive, and that this is a case where a substantial reduction of the judgment and sentence pronounced by the trial court should be made, and the judgment will therefore be modified by reducing the sentence of each of the defendants from thirty days in the county jail and a fine of $100 and costs to a fine of $100 and costs, and, as thus modified, the judgment and sentence of the trial court will be, and is, affirmed.

EDWARDS and DOYLE, JJ., concur.


author: DOYLE., J.

text:
    SCOTT MORELAND v. STATE.
    No. A-8930.
    Dec. 13, 1935.
    (52 Pac. [2d] 97.)

      Hickman & Ungerman, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith 0. Mat-son, Asst. Atty. Gen., for the State.
   DOYLE., J.

Plaintiff in error, Scott Moreland, and bis son, Nathaniel Moreland, were jointly charged and tried in the district court of Tulsa county upon an information charging the larceny of a heifer, the property of John Palmer, on the 26th day of August, 1934.

The jury returned two verdicts; one finding the defendant Nathaniel Moreland not guilty, the other finding the defendant Scott Moreland guilty of the crime of larceny of a domestic animal and fixing his punishment at confinement in the state penitentiary for the term of five years.

Motion for a new trial was duly filed, presented, and overruled. Prom the judgment entered in conformity with the verdict on December 19, 1934, he appeals.

The assignment of error strenuously urged is that the verdict is contrary to the evidence and contrary to law.

It is also urged that the court erred in denying a new trial on the ground of newly discovered evidence.

It appears the defendants were poor and unable to employ an attorney in making their defense, and counsel was assigned them by the trial court; other counsel, however, appear for plaintiff in error in this court. It appears that the defendants lived on a farm about eleven miles east of the city of Tulsa. John Palmer, living in the same neighborhood, was the owner of a two year old heifer. On Sunday night, August 26th, about 9:30 o’clock, Mr. Palmer heard a shot fired from the direction of his pasture; the next morning he found his heifer was gone. He called the sheriff’s office, and Deputy Sheriffs McDonald and Thomas: went out there. They testified that in the pasture they found blood and tracks which they followed partly over plowed ground to plaintiff in error’s house. His wife was cooking freshly butchered meat. They found the rest of the meat under a bed covered by a sheet. On further search following tracks from the house, they found the bones and head and hide of' this heifer.

Forrest Kramer, deputy sheriff, testified that he arrested the two defendants the next afternoon; that Nathaniel, the boy, said that when he came home from church that night his father told him to get an ax and a tub, and he helped his father to carry the meat; that they hauled the bones off about a mile and a half towards Catoosa.

At the close of the evidence in chief, a demurrer thereto' was interposed on the ground that it was insufficient to warrant a conviction.

The defendant Scott Moreland testified: That on July 10th, this year, John Palmer came to his place and sold him a heifer calf for $5. That Mr. and Mrs. E. Z. Collins from Sand Springs were visiting there and witnessed his mark to the bill of sale as follows:

“[Exhibit I] Tulsa, Okla., July 10th, 34.
“In consideration of five dollars in hand paid, I, John Palmer, does sell to T. S. Moreland one hiffier calf, the above property is mine and free from all indebtedness.
“X John Palmer
“Witnesses E. 25. Collins
“Viola Collins.”

That he signed Mr. Palmer’s name and Palmer made his mark. That he bought it to butcher and can for the winter, and, having no place to keep it, Palmer agreed to pasture it.

That Sunday night, when the boys came home from church, he, with Nathaniel, went over there, killed the calf and skinned it, then boned the meat so it would cool off. That the next morning he put the bones in his car and hauled them away and dumped them out near the highway. That when he went to get the calf Mr. Palmer said he would have to pay $2.50 pasture bill. That he butchered in the night to avoid the flies.

On cross-examination he stated that he had been twice convicted of felony.

Mr.' and Mrs. E. Z. Collins identified their signatures as witnesses to John Palmer’s mark on the Instrument Exhibit I, and each testified they were present when Mr. Moreland bought the calf and gave some money to Mr. Palmer.

Fred Gochenour testified that he was present as driver for Mr. Collins and his wife and saw this defendant write the bill of sale and hand some money to John Palmer.

Cross-examination showed he had been convicted of a felony.

Nathaniel Moreland, codefendant, testified that when he came home from church about 11 o’clock his father told him he had killed a calf and wanted him to help skin it. They went over in the pasture, skinned the calf, cut it up, and brought it home, and later dumped the bones out by a culvert on the highway. That he knew nothing about the buying of this heifer calf. On cross-examination he stated that he had served time twice in the reform school at Pauls Valley.

C. S. Payne testified that John Palmer borrowed $25 from him in May of this year, agreeing to give a mortgage on a cow and a calf, and later said that the calf belonged to his boy Bob and he could not give the mortgage. On cross-examination he stated that he did not have any use for Mr. Palmer.

In rebuttal John Palmer testified that he could not read or write; handed Exhibit I, he stated that he had never seen it before and did not make the cross-mark there; that he was not at the Moreland place in July of this year, was never there when two men and a lady were present; that he did not know Mr. and Mrs. Collins or Fred Gochenour; that he did not sell his heifer to Scott Moreland, nor did he receive $5 from him.

It is argued by counsel for the defendant that his testimony and that of the witnesses testifying in his behalf, in support of the defense made and explanatory of the incriminating circumstances, is contradicted only by the testimony of the prosecuting witness, and for this reason they assume that the jury should have believed their testimony. The credibility of the testimony of the defendant and the witnesses testifying in his behalf is the exclusive province of the jury to determine, and, although such testimony may be uncontradicted and not directly impeached when there are facts and circumstances admitted and proven tending to lessen the probability that such testimony is true, the jury may give it such weight as they deem proper, even to the extent of wholly disregarding the same. Wainscott v. State, 8 Okla. Cr. 590, 129 Pac. 655.

The rule as stated in Gyc. is as follows:

“The jury are not bound to believe testimony because it is uncontradicted and not directly impeached. The jury may consider the inherent improbabilities of the statements of the witness, and they may be of such a character as to justify them in disregarding his testimony, although uncontradicted by direct testimony. He may be contradicted by the facts that he states as completely as by adverse testimony, and there may be so many omissions and improbabilities in his evidence as to discredit his whole story.” 12 Cyc. 486.

The only other contention made by counsel for the defendant is that the trial court erred in not granting a new trial on the ground of newly discovered evidence. The trial court in overruling the motion for a new trial stated in substance that the alleged new evidence was cumulative and not such as is likely to change the result.

It is well settled that the granting of a new trial on newly discovered testimony is largely within the discretion of the trial court, and is not to be exercised except when there is reasonable probability that, if the evidence had been introduced, a different result would have been reached, and that courts will not ordinarily grant new trials upon the ground of newly discovered evidence where the evidence sought to be introduced is cumulative or for mere purpose of impeachment. Howey v. State, 9 Okla. Cr. 453, 132 Pac. 499.

Upon a careful review of the entire record, we are convinced that no sufficient reason exists for a reversal of the judgment. Finally it is argued on behalf of the defendant that the punishment assessed by the jury is excessive. Under section 3204, St. 1931, this court in the furtherance of justice may modify any judgment appealed from by reducing the sentence.

In view of certain disclosures in the record, we are persuaded that the punishment imposed is excessive, and that this is a case where substantial justice requires that the judgment should be modified.

The sentence pronounced by the court below will therefore be modified and the term of imprisonment fixed at two years; as thus modified, the judgment and sentence of the district court of Tulsa county will be, and is, affirmed.

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


author: EDWARDiS, J.

text:
    Ex parte FRANK DANE.
    No. A-9034.
    Dec. 16, 1935.
    (52 Pac. [2d] 1078.)

      Leonard T. May, for petitioner.
    Mae Q. Williams on, Atty. G-en., Smith C. Matson, Asst. Atty. Gen., Everett ¡S. Collins, Co. Atty., and Luster Cook, Asst. Co. Atty., for the State.
   EDWARDiS, J.

This is an original proceeding in babeas corpus. Petitioner was charged with larceny from the person in the nighttime under section 2260, Okla. Stat. Í931. The court submitted to the jury the larceny of lost property under section 2254, Okla. Stat. 1931, evidently acting on the assumption that a larceny under the latter section was an included offense under the former. The jury returned a verdict as follows: “We, the jury impaneled and sworn in the above entitled cause, do upon our oaths, find the defendant guilty of appropriating the proceeds of lost and found pocketbook, without making effort to find the owner thereof and leave his punishment to the court and recommend leniency.” Under this verdict, the court pronounced judgment adjudging petitioner guilty of grand larceny and assessing his punishment at confinement in the state penitentiary for a term of six months.

Petitioner here asserts the court had no jurisdiction to render the particular judgment, that he is entitled to relief by habeas corpus and is not required to seek relief by appeal. It is well settled that the writ of habeas corpus cannot be used to perform the office of a writ of error or appeal, but is limited to cases in which the judgment attacked is clearly void, by reason of its having been rendered without jurisdiction or by reason of the court having exceeded its jurisdiction, or where the court having general jurisdiction has no authority to render the particular judgment complained of.

Our statute defines larceny as follows:

“2256. Grand larceny is larceny committed in either of the following cases: First. When the property taken is of value exceeding twenty dollars. Second. When such property, although not of value exceeding twenty dollars in value, is taken from the person of another. Larceny in other cases is petit larceny.”

By subdivision 2, § 2256, supra, larceny from the person is grand larceny, without regard to the value of the property taken, and this is the offense with which petitioner was charged. Larceny of lost property under section 2254 is a different and special form of larceny, and the degree depends upon the value of the property found and appropriated. It is not an included offense under the provisions of section 2260 and subdivision 2 of section 2256. The charge being a larceny from the person of another in the nighttime, the verdict returned is not responsive to the issue and purports to find petitioner guilty of a crime not within the charge. The judgment of the court also is not responsive and beyond his jurisdiction. The judgment is beyond the jurisdiction of the court for the further reason the verdict which purports to find petitioner guilty of the appropriation of lost property neither specifies that it finds him guilty of grand larceny, nor that the property appropriated was of a value exceeding $20. The passing of a judgment of grand larceny is therefore also an assumption of something which is not in the verdict. The judgment must be based upon the verdict of the jury and must be responsive to the issue joined upon the information and plea. Otherwise the court is without jurisdiction to pronounce the judgment. Ex parte Harris, 8 Okla. Cr. 397, 128 Pac. 156; Ex parte Grant, 32 Okla. Cr. 217, 240 Pac. 759.

Without reviewing the authorities, we are of the opinion the court was without jurisdiction to pronounce the judgment complained of, and that petitioner should be discharged from imprisonment thereunder and be remanded to the custody of the sheriff of Creek county for further proceedings not inconsistent with this opinion.

It is so ordered.

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


text:
    JAMES R. HARGUS v. STATE.
    No. A-8925.
    Dec. 3, 1935.
    Rehearing Denied Dec. 20, 1935.
    (54 Pac. [2d] 211.)

      J. M. Hill, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   EDWARDS, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of murder and his punishment fixed at death.

The homicide which forms the basis of this charge occurred in this manner: Defendant, who had formerly been convicted on a federal charge in Texas, came to Tulsa and at about 11:30 at night parked his car near a drug store and went into it and made some small purchase, then went away for a few minutes and returned and made inquiry, and so acted that the employees feared a holdup. The manager sent a messenger boy by the back door to phone the police. Defendant left the drug store and went to bis car parked a short distance down the street, and about this time two police officers, W. L. Martin and L. B. Mitchell, the deceased, in a police car, came to the drug store, parked, and walked down the street to where defendant was getting in his car. One of them called to him to wait a minute, and they Avalked up to the car and defendant said in substance: “You had better get away from here or I will kill you.” As Martin came up to the car, defendant kicked open the car door violently into Martin’s face, striking him on the nose and in the eye, and as Martin fell back from this bloAv defendant shot him in the region of the stomach, the bullet passing through his body. Defendant then shot Mitchell, inflicting tAvo wounds which caused his death in a few seconds. Martin, after he was shot, immediately opened fire, as also did Mitchell. Defendant received two serious wounds which disabled him and he was detained by Martin until other officers arrived at the scene. Defendant Avas taken to police station, and there made a statement in substance that “he was so hot that he couldn’t afford to be taken alive”; further saying he was under indictment in Texas. The follOAving morning he talked Avith a newspaper reporter, who testified to the following conversation:

“A. I asked him if he would mind telling me about the shooting of the night before and he indicated he would not mind and proceeded to tell me that he had gone to the drug store, in his own words, to take the place — to take the joint, and after he arrived there he said, apparently it was not quite ready, so he stalled around awhile and then he indicated he might have changed his mind about taking the joint and walked over to his car. Then he said he saw a car drive up and two men got out of it. He said he noticed that it had a Texas license on it. He said those two men walked over to his car and he said he kicked the door open and put the heat on ’em. Then he said, I told the men, ‘I don’t want to get hurt and I don’t want to hurt you/ then he said that he thought — he wasn’t sure— he thought he saw one of the men with a gun. He said, if I knew he had a gun I knew that would be the end of me, so I started blasting. I believe that is all pertaining to what happened there.”

Dee Southern, a witness for the state, saw the homicide from where he stood on a porch about 20 feet away. He testified:

“Q. All right, now, you say the two police officers got down to the car; now did you see what happened after they got down to the car? A. Well, the only thing I saw them, both went up on the same side of the car— Q. Which side of the car did they go up on? A. The left-hand side of the car; the car was facing east on Latimer and they both walked up on the same side of the car and the next thing I noticed, one of them ran behind the car and said ‘I am shot/ and he grabbed his side. * * Q. All right now, after the officer said he had been shot what happened? A. Well, I yelled for the officers to get around the corner of my porch; it is a concrete porch — it was a concrete porch, so about that time the other officers, they started back up the street, both officers were coming back up the street and he backed up behind the car, pulled his gun and started shooting. Q. Do you know which officer that ivas? A. It was the one that was killed.”

Defendant, in his own behalf, testified as follows:

“I stopped here on Latimer going east and walked across the street and walked in this drug store and ordered a coca cola. I ordered this coca cola and turned around, I paid for the coca cola and turned around and ordered a package of gum. I paid for that and walked directly out the front door of the drug store, turned to my left and I hesitated on the corner, and lit a cigarette and walked right across to my car and just as I got in my car, well there was someone says, ‘Hey, wait a minute, Buddy.’ That is all that was said. I got in my car and turned around and looked and I didn’t recognize the men, but I had seen the car from Texas, and they made an attempt to draw their pistols. Well, whenever they did that — well, I just thought, well, to save my own life I have got a pistol, I will just shoot them.”

Defendant sought to justify the killing On the ground of self-defense. The court instructed fully and correctly on the law of murder, manslaughter in the first degree, and self-defense.

The first contention is that no proper judgment has ever been entered. Upon this point the record is that after motion for new trial had been overruled, the court informed defendant the fact of the charge of the crime of murder by information, the plea of not guilty thereto, the trial on such charge, the verdict of guilty by the jury, and then asked defendant if he had any legal cause to show why judgment and sentence should not be pronounced; then stating that none appearing he pronounced judgment that defendant be transported to the state penitentiary for the purpose of execution by electrocution as provided by law; that he was remanded to the custody of the sheriff to be transported and to be delivered to the warden, and the day of execution was fixed. The signed minutes of the court, attested by the clerk, are slightly more brief, stating motion for new trial was presented, heard, and overruled, exceptions taken, notice of intention to appeal given, time for appeal fixed, then “upon the verdict returned by the jury finding the defendant, James E. Har-gus, guilty of the crime of murder as charged in the information and fixing his punishment at death, the defendant was sentenced by the court to be delivered to the state penitentiary at McAlester, within ten days and said defendant, James E. Hargus to be executed on Friday, the 8th day of March, 1935, by electrocution, according to the death warrant.” The record then contains a death warrant setting out the verdict in full and a recital of the proceedings in full. The applicable provisions of law are sections 3134, 3136, 3146, and 3170, Okla. Stat. 1931. We deem it unnecessary to quote them. There is some slight confusion, in that the judgment entered on the 8th day of December, the date of the proceedings just referred to, is erroneously combined with and designated as a death warrant. It contains all the requisites of the statute, is signed by the judge and attested by the clerk, with the seal of the court, and is sufficient. This irregularity is purely technical and does not affect any substantial right of defendant and affords no reason for a reversal. In this connection, however, it is well to say that in cases of- felony, and particularly those involving capital punishment, the county attorney and the trial judge should examine the statutes and strictly conform thereto.

Next it is argued the evidence is insufficient to sustain the judgment, in that it discloses the killing was in self-defense. As stated, the issue of self-defense was submitted to the jury, but defendant argues the officers were without authority to arrest defendant, that he was engaged in the commission of no crime, and there was no reasonable cause for believing him to have committed any felony, nor was there any charge of the commission of a felony such as to warrant an arrest under section 2780, Okla. Stat. 1931; that the officers had no warrant and did not inform defendant of their authority and of his arrest, as required by section 2783, Okla. Stat. 1931. It is not the law that a peace officer or any other person, if he makes an inquiry of any person, not having at the time a warrant, does so at the peril of death. In this modern time, when automobile travel permits persons to cover long distances in a short time, it is not unlawful for a peace- officer, nor for a private citizen, to make a reasonable inquiry of strangers or others and at the least a mere accosting or inquiry does not permit the person so accosted, in the absence of a reasonable apprehension of immediate danger, to open fire and then justify on the ground the officer or citizen was without authority. This does not limit the duty of an officer, before making an arrest, to inform the person sought to* be arrested of his authority and the cause of his arrest. Here no opportunity was given the officers to state their authority or the purpose of their inquiry. Altizer v. State, 21 Okla. Cr. 229, 205 Pac. 1106; Annotation, State v. Hunter, 8 L. R. A. 535; Roberson v. United States, 4 Okla. Cr. 336, 111 Pac. 984; Heinzman v. State, 45 Okla. Cr. 305, 283 Pac. 264; Robsion v. State, 53 Okla. Cr. 178, 9 Pac. (2d) 54; Oglesby v. State, 56 Okla. Cr. 286, 38 Pac. (2d) 32; 2 R. C. L. 474, art. 32. These cases mainly refer to an arrest or attempted arrest by a known officer, but since a wide latitude is given a private citizen to make arrests, it is a salutary rule that the mere accosting of a person by even a private citizen will not justify a deadly attack by the person accosted unless there is a reasonable apprehension of danger, and if the person so accosted does attack and kill an officer or citizen without such reasonable apprehension, the lack of authority in the person killed does not reduce the killing from murder to manslaughter.

Complaint is made that the county attorney was guilty of misconduct. This is predicated on the single question of the defendant on cross-examination if the car in his possession at the time was stolen. No objection or exception was taken, and the defendant answered that it was his wife’s car. Counsel cite cases in which a persistent effort by the county attorney to get incompetent matter before a jury is ground for a new trial; here there was nothing behind the single question. Defendant also argues the county attorney was guilty of misconduct in inquiring on cross-examination if defendant was wanted in Texas or if the Texas authorities were after him. The court sustained an objection. As above set out, defendant had made a statement he was “so hot he could not afford to be taken alive,” and in his direct testimony one of the moving causes for resisting the officers when they approached was he had observed a Texas license tag on their car and that he had enemies in Texas. This probably justified the question if he was wanted in Texas, but in any event the sustaining of the objection rendered the matter harmless.

Some other assignments are referred to in the brief of defendant, and while they have not been overlooked, they are not of sufficient merit to require discussion. Upon the whole record we are satisfied defendant had a fair trial and that there is no reason for this court to interfere with the judgment and sentence.

The case 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 distinct court of Tulsa county be carried out by electrocution of the defendant on the 7th day of February, 1936.

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


author: DOYLE, J.

text:
    BOB JONES et al. v. STATE.
    No. A-8956.
    Dec. 20, 1935.
    (53 Pac. [2d] 292.)

      Carroll J. Moody, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Clarence Bowie, Co. Atty., for the State.
   DOYLE, J.

Plaintiffs in error, hereinafter called the defendants, were jointly charged, tried, and convicted upon an information charging that Bob Jones and Julius Callins did in said county on the 24th day of August, 1934, have in their possession certain intoxicating liquors with the unlawful and willful intent to sell, convey, or otherwise furnish the same.

The jury returned their verdict finding both the defendants guilty and fixing Bob Jones’ punishment at confinement in the county jail for 30 days and a fine of $500, and fixing Julius Callins’ punishment at confinement in the county jail for 30 days and a fine of $50.

From the judgments entered on the verdict, they appealed by filing in this court on July 10, 1935, a petition in error with the case-made.

It appears from the testimony that three or four peace officers, in serving a search warrant against the Leland Hotel in the city of Pauls Valley on August 24,1934, found about 19 cases of whisky and gin, and that the defendants, Jones and Callins, had possession of this whisky and gin.

The defendants did not offer any testimony in the case. No brief has been filed, and there was no appearance on the part of the defendants at the time the cause was assigned for oral argument and final submission.

In cases of this kind, we do not consider it the duty of the court to go into a careful examination of the record to determine whether the trial court erred in the admission or the rejection of testimony.

From an examination of the record, it appears that this appeal is wholly destitute of merit. The evidence of guilt is conclusive, and no material error is apparent.

The judgment and sentences appealed from are therefore affirmed.

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


text:
    ISHMAN BYRNS v. STATE.
    No. A-8958.
    Dec. 20, 1935.
    (53 Pac. [2d] 293.)
    J. N. Fortner, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., for the State.
   EDWARDS, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of McCur-tain county of burglary in the second degree, and was sentenced to serve a term of four years in the state penitentiary.

At the time charged, a store building in the town of Broken Bow was broken into and burglarized. Defendant and one Red Henson were charged with the crime. Just before daylight on that morning, Red Henson, accompanied by defendant, who' was his son-in-law, came to the Henson home, Henson carrying a bag containing some of the property taken in the burglary, which, over her protest, he delivered to his wife, Myrtle Henson, who took it away from the home and deposited it in some undergrowth, where it was recovered that day. The defense was alibi. Defendant had previously been convicted of a felony in connection with stolen property.

It is first argued the court erred in not permitting defendant to prove the home of Myrtle Henson bore the reputation of being a bootlegging joint. The question is not directed to the general reputation of the place, but the inquiry is merely to its reputation. Since Myrtle Henson was a housewife, living with her husband, who presumably was the head of the family, her reputation as a witness could not be impeached in this manner. There was no error in excluding this testimony. The case is not within the rule announced in Hendrix v. State, 4 Okla. Cr. 611, 612, 113 Pac. 244; Hurst v. State, 25 Okla. Cr. 102, 219 Pac. 151.

Defendant also argued that the court erred in permitting the introduction of hearsay testimony. This is directed to the testimony of the witness Stevens, who said with reference to finding the stolen property that he was informed of the place where it had been secreted by one Marlow West. This is of no particular consequence, and in any event it was first brought out by defendant’s counsel that West made this statement and it wag then again gone over by counsel for the state in cross-examination. The contention is without merit.

Upon the examination of the entire record, we find no material error and no reason for this court to interfere with the judgment.

The case is affirmed.