text:
    JACK PLAXICO v. STATE.
    No. A-10282.
    April 19, 1944.
    (148 P. 2d 201.)

      Lewis Hunter and J. F. Thomas, both of Lawton, for plaintiff in error.
    Randell S. Cobb, A tty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Jack Plaxico, was charged by information filed in the district court of Comanche county with the crime of larceny of livestock; was tried, convicted and sentenced to serve three years in the State Penitentiary, and has appealed.

For a reversal of this case, it is contended that there is not sufficient evidence to corroborate the testimony of the accomplices and that, therefore, the evidence is wholly insufficient to sustain the judgment of conviction.

The theory of the prosecution was that the defendant had made an agreement with two youths, Ray Seay, age 17, and Ode Risinger, age 18, whereby the two youths were to put up some cattle belonging to L. A. Goodwin, but which were being looked after by Ray Seay, and that pursuant to such agreement three white-faced calves of Goodwin’s were placed in a barn where they were loaded into the pickup truck of the defendant and transported by defendant to a public sale at Frederick where they were sold in defendant’s name. The defendant gave the two youths a check in the sum of $20 as their part in the transaction.

L. A. Goodwin testified that he lived at Altus. That he had some cattle in Comanche county near the town of Cache. That Ed Seay and his son, Ray Seay, were looking after this livestock for him.

Ed Seay testified that he had been working for Mr. Goodwin near Cache since 1933. That Goodwin had some cattle on two different places. That he was farming and seeing after the cattle on one place, and that his son was living on the other place. That at the place where the son, Ray Seay, lived there were 15 cows and nine calves. That on the night of February 11, 1941, two white-faced heifers and one white-faced bull calf were taken from the herd of cattle at the Ray Seay place. That he gave no one permission to take those calves.

Ode Risinger testified that he lived one-half mile west of Cache and was well-acquainted with defendant. That on February .11, 1941, he had come to the town of Cache with Ray Seay. That he saw defendant, Jack Plaxico, in Cache. That Plaxico called him to the back end of his pickup truck and asked him if he knew where they could get any calves to where he, Plaxico, could make half price on them. That witness asked Plaxico who would take the blame if they got caught and Plaxico said he would. That witness then called Ray Seay over to the car and they asked Ray Seay if they could get any calves at his place to where the defendant could take them and make one-half profit on the calves. That after some conversation the witness and Ray agreed to have the calves in the barn at Ray Seay’s place the next night by 9 o’clock. That after defendant left the witness and Ray Seay decided they would put the calves in the barn that night. That they took three of the Goodwin calves, put them in the barn and then drove to the defendant’s house. That defendant was getting ready for bed, but stated he would be at Ray Seay’s place in about three-quarters of an hour. That he left Ray Seay at the witness’ brother’s house while he took Ray’s car and went on over to the place where the calves were left. That the defendant drove up to the yard, turned his lights out and then drove on down to the barn door. That the witness ran the calves into the truck and defendant drove back out in the yard and stopped. That the witness and defendant then took some weeds and stuff and rubbed out the car tracks. That before the defendant left he gave the witness a check for $20. The cheek was identified and admitted in evidence. That the next day he and Ray Seay took the check to Joe Barger’s filling station and cashed it and they divided the money.

Ray Seay told substantially the same story as that related by Ode Risinger.

Ernest Covington testified that about 8:30 a. m., February 12, 1941, he saw defendant at the sale barn in Frederick. Defendant had three good, white-faced calves. After some dickering with defendant, witness bought the calves for $47.50. That witness than ran the calves through the auction and they brought $64.50.

Tom Amyx, manager of the sale barn at Frederick, testified concerning the method of handling the sales and identified the check for $46.07 payable to A. J. Plaxico, the defendant, which was the sales price to Covington less, the commission. The check was introduced in evidence and shows an endorsement of A. J. Plaxico.

R. P. Dunham testified that he bought the three calves that Jack Plaxico had brought to the sale for $64.50 when they went through the sales ring. That he thought that was a fair price for the calves.

Joe Barger testified that he cashed the $20 check given by defendant to Ode Risinger on February 12th. That Ode Risinger and Ray Seay came to his service station together, filled the car with gasoline and he gave them the difference between the cost of the gasoline and the $20 cheek.

L. L. Tomlinson, sheriff of Comanche county, testified that he received a call from the deputy sheriff at Frederick with reference to some calves that had been brought to the sales ring by the defendant. That he drove to defendant’s house and had a conversation with him about the calves. That defendant told him he got them from Ode Risinger. That he left defendant’s premises as if to go talk to a man by the name of Sartain who had ridden to Frederick with defendant, but instead circled back towards the Risinger place to see whether defendant had gone there after his conversation with the witness. That they met defendant right at a bridge about 200 feet this side of Risinger’s place. That he stopped the defendant and asked what he was doing there and defendant said he had coxpe to the filling station to get some smoking-tobacco. The filling station Avas closed. That the sheriff then said, “You passed by several places that handled smoking tobacco.” That defendant did not say anything. That he then took him to toAvn on investigation concerning the calf deal. On the way to toAvn defendant told him he had given a $20 check to Risinger for the calves.

It was thereupon stipulated that defendant’s bank account showed a balance on February 8, 1941, of $10.27. That on February 13, 1941, there was deposited to defendant’s credit the sum of $40, and that on the 13th and 14th of February there Avere checks drawn against his account in the amount of $48.

The defense which was interposed was that the purchase of the calves was made by the defendant from Ode Risinger in good faith for the sum of $40. That $20 Avas paid in cash and a check given for $20.

Mrs. Jack Plaxico, wife of defendant, testified that she Avas with defendant in Cache when he was approached by Ode Risinger who told him he had some cattle for sale. That her husband did not get out of the car and go to the back end, but talked to Risinger by the door. That Risinger came to the house that night while she was busy in the kitchen. That she could hear them talking about some cattle the man was willing to sell, but she did not hear all the conversation. That her husband left that evening and brought back some cattle which he took to the sale at Frederick the next morning. That Mr. Sartain, a neighbor, went with him to the sale.

B. F. Sartain testified that he lived four miles south • and. two miles west of Cache. That early in the morning of February 12, 1941, the defendant came by his house and he rode to Frederick to the sale barn with him. He traced the route which he and the defendant traveled going to Frederick and the road they traveled was not the main road usually followed in going from Cache to Frederick, but was a graded road which did not go through the town of Chattanooga. • |

Connie Hill testified that he was the auctioneer at the sales barn at Frederick. That he thought the $47.50 paid by Covington for the three Plaxico calves was a fair price and that the $64.50 paid at the sales ring by Dun-ham was an extra good price brought on by spirited bidding. That he became suspicious of the calves because they were extra good calves and should have been on the cows and he notified the officers at Frederick concerning his suspicions and they in turn called the sheriff at Law-ton.

Clarence Cothren, by permission, was allowed to testify out of turn for the state. He saw defendant early in the morning of February 12th driving towards Chattanooga. That he was not on the main road, but was on what was known as the west road, which was a rough road. That it had rained a short time before that and the road had not been graded. That the east road was a graded, gravel road going from Cache to Chattanooga and on to Frederick. That the defendant was driving a V-8 Ford pickup.

The defendant testified in his own behalf that he was approached by Ode Risinger in Cache about the sale of some calves. That about two hours later Risinger came to his house and told him he had the calves up in a barn and wanted to sell them. That he looked at the calves and after some dickering he agreed to pay $40 for them. That he gave Risinger $20 in cash and a check for $20. That he put the calves in his pickup and left them there in his yard the rest of the night. The next morning he drove to Frederick with Sartain to take the calves to the sales barn. That a short time after he arrived at the sales barn Covington approached and wanted to buy the calves and after some conversation he sold them to Covington for $47.50. That he did not talk to Ray Seay about the calves and did not know that Ray Seay was getting any of tbe money. His testimony in substance was that all his actions were in good faith.

The testimony of the daughter of defendant, given at a former trial, was read to the jury and it corroborated the testimony of her father about Risinger coming to his house and asking for him to come, and look at the calves. She stated that Risinger said if he were interested to come on up and that if he were not he was going to see someone else as he needed the money.

22 O. S. 1941 § 742 provides:

“A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.”

In the case of Hathcoat v. State, 71 Okla. Cr. 5, 107 P. 2d 825, the following rules of law, which had been laid down by many decisions of this court, were again reaffirmed, as shown by the syllabus which reads:

“Evidence corroborative of an accomplice need not directly connect the defendant with the commission of the crime; it is sufficient if it tends to connect him with its commission.
“Evidence corroborating an accomplice and tending to connect the defendant with the commission of the crime need not be direct, but may be circumstantial only.
“It is not essential that the corroborating evidence shall cover every material point testified to by the accomplice, or he sufficient alone to warrant a verdict of guilty. If the accomplice is corroborated as to some material fact or facts by independent evidence tending to connect the defendant with the commission of the crime, the jury may from that infer that he speaks the truth as to all. Such corroborating evidence, however, must show more than the mere commission of the offense or the circumstances thereof.
“Where there is evidence in corroboration of an accomplice, tending to connect a defendant with the commission of the crime charged, the sufficiency of such corroborating evidence is for the jury.”

We have the following corroborating circumstances:

(1) The calves were loaded at night at the barn of Ray Seay on the Goodwin farm.

(2) Defendant knew that Ray Seay was living on the farm and looking after the Goodwin cattle.

(3) Ray Seay was not present when the calves were loaded.

(4) The route traveled by defendant in taking the calves to the sale at Frederick was over a rough country road until he passed the town of Chattanooga.

(5) Defendant, by his own admission, was dealing with Ode Risinger, a youth of 18 years whom he had known for some time.

(6) Defendant gave his check in the amount of $20 to Risinger for the calves.

(7) Defendant told Covington at the sales barn that he had purchased the calves for $35.

(8) Defendant told sheriff when he was first questioned that he had purchased the calves from Ode Risinger for $20.

(9) There were suspicious circumstances in connection with the defendant driving immediately to Ode Risinger’s house after being first questioned by the sheriff and his explanation of his conduct.

(.10) The defendant’s possession and transportation of the stolen property was also a circumstance which, if unexplained, would have been sufficient to have sustained the conviction.

In Underwood v. State, 36 Okla. Cr. 21, 251 P. 507, 509, it is stated:

“The law prescribes no standard for the strength of the corroborating evidence, and there is a failure to corroborate only if there be no evidence legitimately having that effect.”

In Haas v. State, 37 Okla. Cr. 335, 257 P. 1115, this court said:

“Where there is evidence in corroboration of an accomplice, tending to connect a defendant with the commission of the crime charged, the sufficiency of such corroborating evidence is for the jury.”

We have had two recent cases in which the facts were very similar to those herein involved and in which the convictions of the defendants were sustained. Mills v. State, 73 Okla. Cr. 98, 118 P. 2d 259; Rowland v. State, 75 Okla. Cr. 164, 129 P. 2d 609. If anything, the facts in the instant case are stronger than the facts in either of the tAVO above cases. The corroborating evidence is stronger than that Avhich this court held sufficient to sustain the comdction of the defendant Mills in Mills v. State, supra.

This court will not substitute its judgment on questions of fact or the weight of the evidence for that of the jury where there is competent evidence from which the jury might reasonably and logically find the guilt of the defendant, even though the evidence may be conflicting, or such that different inferences might reasonably be drawn therefrom, or even in cases where it might appear to this court that the evidence preponderates in favor of the defendant. That is one of the features of the jury system. Twelve jurors aaTio saw the witnesses and heard their testimony are in a far better position to determine the facts than a member of this court, and their judgment should stand if the record is free from prejudicial statements or influence.

The judgment of the district court of Comanche county is affirmed.

BAREFOOT, J., concurs. DOYLE, J., not participating.


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    G. M. COBURN v. STATE.
    No. A-10314.
    April 26, 1944.
    (148 P. 2d 483.)

      Leon J. York, of Edmonton, Alberta, Canada, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and James M. Springer, Jr., Co. Atty., of Stillwater, for defendant in error.
   BAREFOOT, J.

Defendant, G. M. Coburn, was charged in the county court of Payne county with the crime of unlaAvful possession of intoxicating liquor, towit: Eleven pints of tax paid and six pints of bonded liquor; was tried, convicted and sentenced to pay a fine of $400, and serve five months in the county jail, and has appealed.

It is contended that this case should be reversed by reason of the refusal to suppress the evidence because of the invalidity of the search and seizure.

The evidence on the motion to quash revealed that the defendant resided in a rural residence near the city of Stillwater, in Payne county. That Joe Bradley, a deputy sheriff, secured a search warrant on Saturday the 20th day of December, 1941, for the purpose of searching the premises of defendant. That on Sunday, the 21st day of December, he, in company with the chief of police of Still-water and two other police officers, went to the home of defendant for the purpose of executing the search. When they arrived at the premises and contacted defendant, they saw several parked automobiles in the yard. Upon being told by the officers they intended to make search, he told them he had a number of friends there and it would be very embarrassing for them to search at that time. The officers, as a “courtesy” to the defendant, did not search at that time and left the premises. They did not serve the search warrant which they had, on defendant, but in less than an hour and when the guests had left, they returned to the premises and served the search warrant on defendant, and executed the same. As a result of the search, five pints of tax paid and bonded whisky were found in the residence of defendant, and 11 pints were found in a brush pile near a fence on the premises. The officers did not know whether the 11 pints were on his premises or not, but there was a path leading from his premises to where the liquor was found.

The defendant testified at the hearing on the motion to suppress the evidence, but did not testify at the trial of the case, and he did not offer any testimony.

The facts as above stated do not in our opinion bring this case within the rule often announced that officers may not twice search the same premises where only one search warrant is issued. Duncan v. State, 11 Okla. Cr. 217, 144 P. 629.

In each of the cases cited in defendant’s brief, a search of the premises was made and the officers returned to the premises for a second search. In the instant case no search was made at first, nor was the warrant served, but the officers as a “courtesy” to the defendant and at his request, did not search his premises while his friends and acquaintances were there. It occurs to us that defendant should not be permitted to receive this consideration from the officers, and then seek to take advantage thereof in the manner here contended. The state has not filed a brief in this case, and we have been unable to find a case where the facts are identical to the facts here.

The contention of the defendant that the court erred in refusing to sustain the demurrer to the information cannot be sustained. The allegations were that the defendant did “willfully and unlawfully have and possess a certain quantity of intoxicating liquor, towit: eleven (11) pints of tax paid and six (6) pints of bonded liquor.”

We think that where the information stated “tax paid,” and “bonded” liquor, that this is sufficient under the law, although the term “whisky” .was not used. The court would readily understand that “tax paid,” and “bonded” liquor was whisky, and under these terms the defendant would be informed of the offense with which he stood charged.

It is finally contended that the judgment and sentence entered in this case is excessive and should be reduced. So far as this record is concerned, there is nothing to show that this defendant had, prior to this time, been before the courts and convicted of a violation of the prohibition laAVS. This court, however, takes notice of the fact that this same defendant has had numerous cases before this court Avliere he was charged with violation of the prohibition laws. These cases have been affirmed; Coburn v. State, 70 Okla. Cr. 329, 106 P. 2d 533; Coburn v. Schroeder, 71 Okla. Cr. 405, 112 P. 2d 191; Coburn v. State, 76 Okla. Cr. 85, 134 P. 2d 372. In one of them application was made to stay the sentence by reason of the age, infirmity and serious illness of the defendant.

Under all of these circumstances, and the facts in this case, and the amount of liquor found, we have come to the conclusion that justice would be subserved by reducing the sentence in this case to a fine of $150 and 60 days in the county jail.

As so modified, the judgment and sentence of the county court of Payne county is affirmed.

JONES, P. J., concurs. DOYLE, J., not participating.


author: JONES, P. J.

text:
    Ex parte GEORGE MAYBERRY.
    No. A-10504.
    May 3, 1944.
    (148 P. 2d 785.)
    Ernest Richards, of Oklahoma City, for petitioner.
    Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   JONES, P. J.

This original proceeding in habeas corpus was instituted by George Mayberry in an effort to secure his release from confinement in the State Penitentiary at McAlester.

The verified petition alleged that the petitioner was sentenced to serve a term of 20 years in the State Penitentiary, by the district court of Logan county, on a plea of guilty to the alleged crime of burglary in the second degree, after a prior conviction for a felony. That petitioner was delivered to the warden of the penitentiary on February 23, 1940, and has since that time been there confined.

The petition further alleged that the restraint is illegal and unauthorized in that the petitioner entered a plea of guilty without having had the benefit of counsel at any stage of the proceedings. That the petitioner did not waive his right to counsel and Avas not advised of his right to counsel. That after his plea of guilty was entered, the defendant made a request for permission to withdraAV the plea of guilty and enter a plea of not guilty, but the trial judge refused to grant such permission.

In his response to the rule to show cause issued by this court, the Avarden of the State Penitentiary specifically denied that petitioner Avas not advised of his right to counsel, but alleged that he was fully advised and informed as to all his constitutional rights. The respondent admits that lie is holding the petitioner by reason of a commitment issued by the district court of Logan county to serve a term of 20 years’ imprisonment in the State Penitentiary for the crime of burglary in the second degree, after a former conAdction of a felony, as alleged in the petition.

The respondent further alleged that the petitioner committed the crime of burglary on January 31, 1940; that on February 10, 1940, petitioner was arraigned before the district court, was fully informed as to all his constitutional rights, and thereupon asked and was granted 24 hours in which to plead; that thereafter, on February 12, 1940, petitioner appeared before the court, entered his plea of guilty, and was duly sentenced. That he was then advised of his right to appeal, but that no effort was made to appeal such sentence, although the petitioner remained in the county jail of Logan county for ten days thereafter before being transported to the State Penitentiary. That at no time was a request made for permission to withdraw the plea of guilty.

Attached to the response were several exhibits, among them being an affidavit executed by the petitioner after his arrest on the charge of burglary. This affidavit reads:

“State of Oklahoma, { “County of Logan, j ss
“George Mayberry, of lawful age, being first duly sworn upon his oath, states:
“I have been informed that I do not have to make a statement and that anything I say will be used against me. I have been informed that I am entitled to have a lawyer present and I have not been promised anything to make this statement.
“I am 27 years old and my home is at Perry, Okla-. homa. I have been in Guthrie for about two weeks staying at Sammy Simms place. I was convicted of Burglary in Noble County in 1930 or 1931 and was given two years. I was also sentenced to two years for Burglary in Noble County in 1937. JC once served a sentence for being drunk in Noble County.
“I broke into a men’s store in Guthrie, Oklahoma, on a side street at about 1 or 1:30 in the morning Wednesday, January 31st, 1940. I was by myself and I did not have a gun or any other weapon. I got in by kicking out a plate glass window of the store and crawling through the hole. I took one load of goods out and put it down by a fence across the street. Then I went back after another load. While I was still in the store, the officers came in and found me hiding behind a box.
“I broke in the store because I wanted some money. I was broke and out of a job. I was full of whiskey. I knew what T Avas doing.
“(Signed) George Mayberry
“Subscribed and SAVorn to before me this 31st day of January, 1940.
“(Signed) Irene McClellan
“Notary Public
“Seal.
“My Comm. Exp. 2-15-41.”

Also attached Avere affidavits from the court clerk and county attorney of Logan county and a certified copy of the minutes of the proceedings on the arraignment of the petitioner and in connection Avith the subsequent plea of guilty. These minutes recite that the information Avas read to defendant and that he was advised of his constitutional rights and thereupon took 24 hours in which to plead. The judgment and sentence attached to the response sIioavs that the petitioner appeared on February 12, 1940, and entered his plea of guilty to the charge of “burglary in the second degree after conviction of offenses punishable by imprisonment in the penitentiary.” The prison record of the petitioner was also attached to the response and it showed that the petitioner is now serving his fourth term of imprisonment in the State Penitentiary.

LTpon the issues thus made a hearing was held before this court on March 29, 1944. At that time counsel for petitioner admitted the execution of the affidavit by the petitioner as hereinabove set forth.

Upon the hearing thus had, this court finds that the petitioner was fully advised by District Judge Henry W. Hoel of all his statutory and constitutional rights, including his right to counsel and his right to have the court appoint a lawyer if the defendant was not financially able to employ counsel, and also the right of the accused to a trial by jury.

Having found that the facts as alleged in the petition were untrue, it becomes unnecessary for this court to determine the question of law which would have been presented if the allegations of the petition had been correct.

In issuing the rule to show cause, the court was acting upon the verified petition which questioned the jurisdiction of the trial court to render the particular judgment and sentence by which the petitioner was imprisoned. This is always a proper subject for inquiry on habeas corpus.

Finding that the proceedings in connection Avith the arraignment and sentence of the accused were regular in every respect, the petition for a writ of habeas corpus is accordingly denied.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    LUTHER McCORMICK v. STATE.
    No. A-10292.
    May 3, 1944.
    (148 P. 2d 787.)

      William A. Tidwell, of Idabel, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and L. E. Mifflin, Co. Atty., of Idabel, for defendant in error.
   BAREFOOT, J.

Defendant, Luther McCormick, was charged in the county court of McCurtain county with the crime of selling intoxicating liquor; was tried, convicted and sentenced to pay a fine of $50 and serve 30 days in the county jail, and has appealed.

Defendant was charged jointly with Roy Peters and Johnny Peters. At the commencement of the trial, on motion of the county attorney, the case was dismissed as to Roy Peters and Johnny Peters, and the trial proceeded against this defendant.

Three witnesses testified for the state: Odis Hawkins, Sam Sellers, chief of police of Idabel, and Gilbert Short, a police officer.

The defendant, who drove a taxicab in the city of Idabel, McCurtain county, was charged with selling one pint of whisky to Hayes Duckett and Odis Hawkins, two negro men, on Saturday night, November 29, 1941.

The officers testified to finding these men in an automobile parked by the side of the road on Saturday night, November 29, 1941. They had a pint bottle, more than half full of whisky, and one of them, Hayes Duckett, was in an advanced stage of intoxication. They were both arrested and placed in jail, and on Sunday following, the defendant was taken before them, and they identified him as the party who sold them the whisky. Odis Hawkins testified that they paid a $1.75 for the whisky, that he contributed 60 cents on the purchase price; and that they bought it from the defendant, out by the side of the road near the place of business of Roy Peters, but not in his place.

It is contended that by reason of the questions propounded to him by the county attorney on cross-examination, the defendant did not have a fair and impartial trial, and that the admission of certain evidence was contrary to law.

The defendant took the witness stand in his own behalf, and denied that he sold the liquor to the witness and Hayes Duckett. He testified that he operated a taxicab, and that he did not remember whether he was at home or up town on the Saturday night in question. He testified that he did not go to Roy Peters’ place or near there, on that night. On cross-examination the following proceedings were had:

“Q. (By Mr. Mifflin, County Attorney) Now, you say you drove a taxi? A. Yes sir, I drove a taxi for Lloyd Tollett. Q. A lot of your trips was going to take folks to Roy Peters to get whisky, wasn’t it? A. I made trips out there, but I don’t know what for. Q. When you talk about taking folks that stopped at Roy Peters, you knew the place had the reputation of being a place where you get whisky? Reputation is what folks say. Mr. Wilkinson: W'e object to that kind of stuff. The Court: I can’t see that it is material. Mr. Mifflin: If I don’t develop it — ■ Mr. Wilkinson: If you did, it would not be competent. If you undertake to establish the reputation of somebody’s place, you certainly ought to have had the testimony. Mr. Mifflin: I want to show that he knew himself what these folks were going out there for. The Court: Overruled. I don’t know where it affects the defendant. Mr. Wilkinson: If I thought it did not affect the case, then I would stop him from doing it. The Court: He might be leading up to something. Mr. Wilkinson: He could not be leading up to anything. The Court: I don’t know, I can’t read his mind. Mr. Wilkinson: Your Honor certainly ought to be able to read his mind. The Court: Your objection is overruled, and you have your exception. Proceed. Mr. Wilkinson: In other words— The Court: Your objection has been overruled. Q. You may answer the question. A. I have heard people say that. Q. That is what reputation is. Were you ever around there at any time other than when you would take folks out there? Mr. Wilkinson: Don’t answer the question. I want to make the same objection. If it is absolutely necessary that the county attorney have a conviction in this case, regardless of the law, or right, or anything else, and the court is going to permit him to do it, I can’t help it. The Court: I am going to shut out incompetent evidence, but I can’t tell. Mr. Wilkinson: When will the court start to do it? The Court: When I think it is necessary. If I have any doubt, I will ask you. Proceed. Mr. Wilkinson : I certainly appreciate that much consideration. The Court: We are going to proceed. Mr. Mifflin: Maybe I can get the question up quicker than we could find it. Mr. Wilkinson: What do you want an answer to?_ The Court: Mr. Wilkinson, will you please address your remarks to the court? Q. Were you ever out around there at any time other than when you would take folks out there in the jitney? A. I could not say for sure. I might have been. Q. I will ask you if here a short time before this incident involved in this case, or just shortly after, if the officers did not run you out there, and you have a sack, out close to Roy Peters’ place? Mr. Wilkinson : If your Honor please, what does that have to do with this? The Court: I will sustain the objection to that. Mr. Mifflin: I want to show that he operated out there. Mr. "Wilkinson: And I want at this time, I want the court to advise the jury not to consider those remarks of the county attorney. The Court: There is no evidence. I struck that out. There is nothing for the jury to consider. Give them credit for having common sense. Mr. Wilkinson: I know that is right. I think that should be done. But at the same time the county attorney ought to have sufficient sense not" to ask those questions. The Court: Proceed. Mr. Tidwell (for defendant) : Plere is the proposition: The Court: I have heard enough of this, we are going to proceed. Mr. Tidwell: Give us an exception. Mr. Mifflin: I don’t believe they want me to question him. The Court: Anything further? Mr. Wilkinson: That is all.”
It will be observed from the above statement of this case that the only issue here involved was whether the defendant sold the whisky to the parties named in the information. The state offered no evidence to in any way connect the defendant with either Roy Peters or Johnny Peters, or with the place they conducted. From the questions of the county attorney, it is evident that he was of the opinion that these parties were conducting a place where intoxicating liquors were being sold, and he was persistent in his attempt to get before the jury that defendant was connected with that place of business. If he had any evidence to this effect, it should have been produced. Neither the reputation of these parties nor of their place of business was an issue involved in this case, and we can readily see how the questions propounded by the county attorney to the defendant in the presence of the jury would have been to his prejudice. It is true that the court sustained some of the objections, but the persistent effort of the county attorney to get this evidence before the jury was such that in our opinion prevented the defendant from having that fair and impartial trial to which he was entitled under the' law.

We have often held that in a prosecution for unlawful possession of intoxicating liquor, before the general reputation of a place may be proven, it must be shown that such place was one of public resort, not merely that it bore such reputation. Yakum v. State, 30 Okla. Cr. 184, 185, 235 P. 253; Welch v. State, 35 Okla. Cr. 2, 246 P. 1113; Dean v. State, 71 Okla. Cr. 253, 110 P. 2d 921; Culwell v. State, 75 Okla. Cr. 95, 128 P. 2d 1027.

In the instant case there is no evidence in the record to show the defendant’s connection with the Roy Peters place, the reputation of which the county attorney was attempting to prove. The mere fact that the defendant drove a taxicab and carried parties to this place was not a violation of law, nor evidence of his connection therewith.

For the reasons above stated, the judgment of the county court of McCurtain' county is reversed, and the case remanded.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    BILL SMITH v. STATE.
    No. A-10290.
    May 10, 1944.
    (148 P. 2d 994.)

      Long & Long, of Pauls Valley, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

Bill Smith was charged in the district court of Garvin county with the crime of receiving stolen property, was tried, convicted by a jury who left the punishment to the court.

After motion for new trial was overruled, the defendant was sentenced to serve a term of three years imprisonment in the State Penitentiary, and has appealed.

The evidence of the state showed that two 14-year-old youths went to a motion picture show in the town of Lindsay on Saturday night, November 2, 1941. After the show the boys stole three dresses which belonged to Mrs. Mildred Rutherford and which were laying wrapped in a bundle in a Chevrolet car belonging to the Rutherfords. After the boys had stolen the dresses, they took them behind a seed store, unwrapped the package and then rewrapped them and hid the dresses in some bushes. They then went to the secondhand shop owned and operated by the defendant and told the defendant what they had done and he told them if the stuff they had stolen was pretty good he would give them a dollar. They then went after the dresses and returned to the defendant’s place of business with them about midnight. After the defendant looked the dresses over he gave them a quarter apiece for them. About a week later the officers searched the place of business of the defendant and found the three dresses which were identified by Mrs. Rutherford as being her property.

The defendant admitted the purchase of the dresses from the boys, but claimed he did not know they were stolen. Tie said the boys told him that they found the bundle along the road. He further testified that when he bought the property he had the boys who sold him the property sign a ticket in accordance with the law and that he turned the ticket over to the officers. He also denied that the boys sold the stolen property to him about midnight. but stated that it was about dusk when they brought the bundle to him. He further testified that he bought the property for a quarter, in accordance with instructions which he had received from the town constable who had told him that Avhenever any boy brought him anything for sale that looked suspicious for him to pay them a very small price for it and hold it until they could find the true OAvner.

It is first insisted that the court erred in not instructing the jury that the two youths were accomplices of the defendant and that defendant could not be convicted on the uncorroborated testimony of an accomplice.

In the case of Comba v. State, 68 Okla. Cr. 373, 99 P. 2d 170, 171, it is stated:

“The term ‘accomplice,’ as used in section 3071, O. S. 1931, 22 Okla. St. Ann. 742, providing that no person shall be convicted of a crime on the testimony of an ‘accomplice,’ without corroboration, is construed as meaning one culpably implicated in the commission of the crime of which the defendant is accused; in other words, an associate, one Avho knowingly and voluntarily co-operates, or aids or assists in the commission of the crime.
“The general rule of law is that a person who steals property is not an accomplice of the one who receives the property, knowing it to be stolen. They are independent crimes.
“The well-recognized exception to this general rule is that if the one who steals and the one who receives the property conspire together, or enter into a prearranged plan for one to steal the property and deliver the same to the other, the one who receives it is the accomplice of the one who commits the theft, and vice versa. * * *
“The statute providing that no person shall be convicted of a crime on the testimony of an accomplice, without corroboration, was adopted for the purpose of protecting an accused * * *
“The purpose of the statute providing that no person shall be convicted of a crime on the testimony of an accomplice, without corroboration, is to prevent one guilty of a crime from implicating another falsely, for hope of clemency, motives of revenge, or for any other reason.”

See, also, Finkelstein v. State, 68 Okla. Cr. 341, 99 P. 2d 167; Key v. State, 38 Okla. Cr. 169, 259 P. 659; Pringle v. State, 32 Okla. Cr. 166, 239 P. 948; Brownell v. State, 33 Okla. Cr. 323, 244 P. 65; Buttry v. State, 18 Okla. Cr. 330, 194 P. 286.

The testimony of the two youths was that they had stolen the property and hidden it before they talked to the defendant. Under such circumstances they would not be accomplices of the person who bought the stolen property because the person did not enter into a pre-arranged plan with the boys for them to steal the property and deliver it to him. The contention of the defendant is based upon the following question and answer addressed to the witness Huey Prichett:

“Q. How come you to take them down to him? A. He told us that anything we got to bring it down there and he would buy it.”

We do not think that this evidence, standing alone, when construed with reference to the other testimony of this youth and his companion, was such to require the court to give an instruction on accomplice testimony.

It is next insisted that the court committed error in the giving of instruction No. 6, which reads:

“You are instructed that evidence has been offered by the state tending to show the commission by the defendant of an offense or offenses other than the oné for which he is now on trial, and in this connection, you are instructed that such evidence has been admitted and is to be considered by you only for the purpose of throwing light upon the question of the guilt or innocence of the defendant of the specific charge contained in the information in this case and for which he is now on trial, if you find that such evidence does throw light upon the guilt or innocence of the defendant.”

An instruction in the identical language given by this same trial court was criticized in the recent opinion of this court in the case of Herren v. State, 75 Okla. Cr. 251, 130 P. 2d 325.

The other offenses herein involved concerned the testimony of one of the youths that he had previously sold the defendant some flashlights and other things that he had stolen out of some cars.

In the early case of Smith v. State, 3 Okla. Cr. 629, 108 P. 418, it is stated:

“Upon the subject of motive or intent, other transactions tending to prove its criminal existence, even though they may involve other offenses, may be given in evidence against the defendant, but such evidence must be so limited and restricted as to leave the jury only at liberty to use it to discover the motive or intent actuating the accused in the act for which he is on trial.”

In the case of State v. Rule, 11 Okla. Cr. 237, 144 P. 807, it is held:

“Where evidence is offered tending to prove that the defendant has committed an offense other than that for which he is on trial, good practice requires that the prosecuting attorney should state the purpose for which the evidence is offered, and, if it is admissible for that purpose, the trial court should instruct the jury as to the purpose for ivhich they may consider it.”

In this case the admission of the testimony of the youth that he had sold certain other articles of personal property which he had stolen that same night to the defendant was evidently admitted solely for the purpose of showing guilty knowledge or intent in the commission of the crime charged. The only controversy in this case was whether the defendant knew that the goods were stolen property at the time he purchased them. Upon this question the court properly admitted evidence of sales of the other personal property made to the defendant at the same time as that herein involved. However, the court should have asked the county attorney the purpose for which such evidence was offered, and then, in accordance with the decisions above quoted, limited the jury in its consideration of said testimony to the purpose for which it was admitted.

In the case of L. Jones v. State, 69 Okla. Cr. 244, 101 P. 2d 860, we approved the following instruction:

“8. You are further instructed that testimony has been permitted to go before you relative to. the alleged forgery and the offering of other requisitions than the one described in the Information filed herein. This has not been permitted to be introduced for the purpose of affording any proof that the defendant either forged or offered for sale the instrument described in the Information, and must not be so considered by you. It was permitted to go to you only for the purpose of aiding you in determining what, if any, intent the defendant may have had in the performance of any act having to do with the particular requisition described in this Information, and to aid you in determining whether or not he was a party to any plan or scheme entered into between himself and others for the purpose of defrauding the County or State by the forging and uttering of requisitions, among which was the one described in this Information. Before you can find the defendant guilty of the offense charged in this Information, you must find, beyond a reasonable doubt, that he directly aided and abetted in the forging and uttering of this particular requisition.”

Also, in the case of Spivey v. State, 69 Okla. Cr. 397, 104 P. 2d 263, the same trial judge who gave the instruction in L. Jones v. State, supra (Judge Lucius Babcock), gave the following instruction which complies with the law in fairly instructing the jury as to the purpose for which other offenses were admitted in that case.

“7. You are further instructed that certain testimony has been permitted to go before you concerning other transactions than the one charged in the Indictment herein. Testimony has been introduced relative to the sale of the royalty under the Webster School property, testimony relating to the sale of the oil and gas lease of what is known as the Park Place-Wilson Lease and also testimony relating to the purchase of land for the Northwest High School from T3. R. Cummings. This testimony was not admitted in evidence, nor should you so consider it, as in any way tending to prove the guilt or innocence of the defendant of the specific offense charged in this Indictment, for one may not be convicted of the commission of one crime by any proof tending to show that he may or may not have committed another. The defendant in this case is being tried for the specific offense charged in the Indictment herein and before you can return a verdict of guilty in this case, you must find that he committed that specific offense. This testimony was permitted to go before you to aid you to determine from all the facts and circumstances disclosed upon this trial whether or not there was a concerted plan and scheme entered into by these defendants or any of them to violate the laws of the State of Oklahoma by corruptly accepting and receiving gifts and gratuities in consideration of the official services of members of the Board of Education of the City of Oklahoma City; and also to aid you in determining what, if any, was the intent of this defendant in relation to his acts, and you may consider it for such purposes and such purposes only.”

Either of these instructions may well serve as models to other trial courts where similar cases arise.

Unless the trial court limits the jury in its consideration of other offenses to the particular purpose for which said testimony was admitted, such evidence will find a permanent lodgement in the average juror’s mind who will oftentimes justify defendant’s condemnation because of these other offenses, irrespective of his guilt of the crime for which he is being tried.

As was said in the recent case of Byers v. State, 78 Okla. Cr. 267, 147 P. 2d 185, 188:

“Juries are too prone, when such other offenses are admitted in evidence, to find an accused guilty of the crime charged merely because lie might have committed some other offense.”

There are other assignments of error discussed in the brief of defendant. These questions deal with the alleged insufficient verdict and irregularities in procedure that will not arise in another trial and for that reason this opinion will not be prolonged by a discussion of them.

For the reasons hereinabove stated, the judgment of the district court of Garvin county is reversed and remanded, with instructions to grant the defendant a new-trial and for further proceedings in accordance with this opinion.

BAREFOOT, J., concurs-. DOYLE, J., not participating.


text:
    J. H. HILL v. STATE.
    No. A-10277.
    May 10, 1944.
    (148 P. 2d 992.)
    Robert O. Swimmer, Wheeler & Mounger, and Glen O. Morris, all of Oklahoma City, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and John Eberle, Asst. Co. Atty., of Oklahoma City, for defendant in error.
   BAREFOOT, J.

Defendant, J. H. Hill, Avas charged in the district court of Oklahoma county Avitb the crime of receiving stolen property, to wit: six rolls of cyclone vvire fence; was tried, convicted and sentenced to pay a fine of $100, and to serve six months in the county jail, and has appealed.

Two propositions are presented for a reversal of this case. They are:

“First: The defendant was not accorded a fair and impartial trial as guaranteed under the Constitution and laws of the state of Oklahoma.
“Second: The defendant was not accorded a fair and impartial trial by reason of statements made by the presiding judge from the bench which were calculated to prejudice the jury against the defendant.”

These propositions may be considered together.

The first proposition is presented because of “the flagrant impropriety of the examination of the defendant and witnesses of defendant; and by reason of the introduction of evidence by the county attorney calculated to prejudice the jury against the defendant; and by reason of the incompetent, irrelevant, and immaterial evidence introduced over the objection of the counsel for the defendant.”'

We have carefully read the record and do not think it necessary to extensively discuss the evidence offered by the state. It reveals that defendant purchased the wire fencing above described, and that it had been stolen from the Crosby Oil Company. The defendant claimed that he purchased it from Carl Newberry. It is unnecessary to unduly lengthen this opinion by a review of the evidence. It was amply sufficient to convict the defendant of receiving stolen property, under the law. The jury heard this evidence. The case was fairly presented to the jury by the instructions. The defendant’s theory was presented, and the jury found against that contention, and rendered a verdict of guilty. We do not find that the court permitted any incompetent evidence to be introduced, nor do we find that anything was done in the trial of this case that was to the material prejudice of this defendant sufficient to cause a reversal of the case.

The statement of the trial court referred to in the second proposition was made in passing upon a motion to permit the jury to view the premises of the Crosby Oil Company from where the wire was stolen, and the premises of the defendant where the wire had been used by him in building a fence. The motion was made after the evidence had been submitted, and the statement of the court was: “Let the record show that it is denied for several reasons which will be apparent to the appellate court.”

The question of permitting the jury to make this examination was primarily one within the discretion of the court from a knowledge of the evidence introduced, and all the facts and circumstances surrounding the case. From our examination of the record, we are convinced that no material information necessary for the consideration of the facts in this ease by the jury would have been added by the granting of the motion; and there was certainly no abuse of discretion in overruling the same. We do not think the remark of the court above quoted did in any way prejudice the rights of the defendant before the jury, and certainly did not “convict the defendant from the bench,” as contended.

The defendant in this case had a fair and impartial trial. The sentence imposed was not severe under the law; and, finding no error, the judgment of the district court of Oklahoma county is affirmed.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    JOE BOUZIDEN v. STATE.
    No. 10307.
    May 17, 1944.
    (149 P. 2d 99.)
    C. E. Wilhite, of Alva, for plaintiff in error.
    Randell S. Cobh, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and H. C. Crandall, of Alva, for defendant in error.
   BAREFOOT, J.

Defendant, Joe Bouziden, was charged in the county court of Woods county with the crime of unlawful possession of intoxicating liquor, towit, one pint of whisky and one-lialf pint of alcohol; was tried, convicted and sentenced to pay a fine of $50 and to serve 30 days in the county jail. From this judgment and sentence he has appealed.

A motion has been filed by the Attorney General to dismiss the appeal, .for the reason the same, was not filed in this court within the time prescribed by law.

The record reveals that judgment and sentence was pronounced on May 5, 1942. O. S. A. 1941, Title 22, § 1054, provides:

“In misdemeanor cases the appeal must be taken within 60 days after the judgment is rendered: Provided, However, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days. In felony cases the appeal must be taken within six months after the judgment is rendered, and a transcript in both felony and misdemeanor cases must be filed as hereinafter directed.”

Under this statute, defendant had 60 days after this judgment was rendered to file his appeal in this court. He was thus given until July 4, 1942. On May 28, 1942, the defendant had the court enter the following order:

“It is therefore by the court ordered and decreed that said defendant have and he is hereby given an extension of 30 days time from and after the 4th day of June, 1942, in which to prepare and serve case-made herein the state to have ten days thereafter in which to suggest amendments, and the same to be signed and settled on five days’ notice, * *

The case-made was signed and settled on July 3,1942, but was not filed in this court until July 11, 1942. In his response to the motion to dismiss, it is contended by defendant that by reason of the terms of the order made on May 28, 1942, that he was given 30 days additional time from June 4, 1.942, and that the state having ten days additional time to suggest amendments, and the same to be signed and settled on five days’ notice, that this gave him an additional 15 days, which would extend the time to July .19. We are of the opinion that this extension did not automatically give him the 15 days additional time, and when he had the case-made served and signed by the court on July 3, 1942, it then became his duty to file the same in this court within the 60-day period as provided by the statute above quoted.

After the motion of the Attorney General was filed, defendant could have applied to the county court for an order nunc pro tunc, but this was not done. We dislike to dismiss an appeal in a criminal case and it is only when we are deprived of jurisdiction that we will do so. This is especially true in cases of this character, where we have examined the record and find that the evidence was insufficient under the law to sustain the judgment and sentence.

Under the facts as above stated, the motion to dismiss the appeal is sustained, and the judgment and sentence of the county court of Woods county is affirmed.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    HENRY HALL v. STATE.
    No. A-10250.
    May 24, 1944.
    (149 P. 2d 268.)

      E. Moore, of Coalgate, and J. A. Shirley, of Durant, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   BAREFOOT, J.

Defendant, Henry Hall, was charged in the district court of Coal county with the crime of murder; was tried, convicted and sentenced to serve a life term in the penitentiary, and has appealed.

Defendant was charged with killing J. C. Chastain on January 1, 1941, in a village called Cottonwood, at a place commonly known as a “honky-tonk,” about one and a half miles east of Coalgate. Beer and other cold drinks were sold, and a dance hall was operated on the premises, a juke box furnishing the music.

The contention of the defendant is that;

“First. The court erred in overruling the defendant’s motion to set aside the information, the information not having been signed by Dale Brown, former county attorney, nor by his authority or under his direction.
“Second. That the court erred in denying the application of the defendant for change of venue in said cause.
“Third. The court erred in denying the challenge on the part of the defendant to the jury panel.
“Fourth. The verdict of guilty of murder assessed against the defendant is not supported by the evidence, and is contrary to the evidence, and contrary to the law applicable to the case.
“Fifth. That said verdict was the result of a highly prejudiced and inflamed state of mind on the part of the jury, against the defendant.”

The first three alleged errors may be considered together.

The defendant contends that the information was not signed by the county attorney, Dale Brown, but was signed by some other party, presumably the attorneys who were appointed as special prosecutors by reason of the disqualification of the county attorney. Defendant’s motion to quash and set aside the information was filed on November 18th, and overruled by the court on November 19, 1941. No evidence was presented. The information is shown in the record, and the name of the county attorney, Dale Brown, appears thereon. It is regular on its face, and nothing appearing to the contrary, the presumption is that the information was signed and filed in the proper manner and in proper form, and on the date it bears. We are of the opinion that the court did not err in overruling the motion to quash and set the same aside.

On the motion for change of venue, and the challenge to the panel of jurors, evidence was heard by the court. Both oral evidence and affidavits were presented, and there was some conflict in the testimony. We have carefully examined the record, and do not find that the court abused its discretion in overruling these motions. They were filed on November 18th, and presented and overruled on November 19, 1941, the date the case was tried.

The contention that the judgment and sentence is contrary to the evidence can be sustained. From a reading of the record, it is revealed that the defendant was employed to operate the place of business above described, which was owned by one Bill Sandman. Mr. Sandman left the place about 11 o’clock on the night of December 31, 1940, which was New Year’s Eve, leaving the defendant in charge. The deceased and a number of associates, both men and women, came to the premises about midnight. They were in three automobiles. They entered and danced some, and in a short while a fight started between the deceased, J. 0. Chastain, and a man by the name of Shipley. This fight was over the possession of a hat. Marvin Abies, who was a member of the Chastain party, tried to separate the parties, and in the confusion a stove was knocked down, and the room filled with smoke. The defendant came from behind the bar, and was pushed back by Marvin Abies. He then secured a pistol from a drawer behind the bar. A number of witnesses testified that he was drunk, and that Shipley was drunk. They also testified that deceased was standing near the wall when the defendant shot him, and that he was unarmed and was in no way attempting to molest or injure the defendant. It is unnecessary to give a detailed statement of the testimony of these witnesses. All of them testified to practically the same state of facts. One witness for the defendant testified that he saw some one waving a poker, but he did not Iidow who it was. Several witnesses on rebuttal testified that they did not see this witness present at any time.

The evidence was not only sufficient to convict the defendant, but the jury could not have arrived at any verdiet other than the guilt of the defendant. The killing of the deceased by defendant could not be justified, under the evidence. The defendant was found gnilty of murder, and given a life sentence. The only question for serious consideration is, was this punishment excessive, under all the facts and circumstances of this case?

The right of this court to modify a sentence imposed, and the reason for doing so, has often been stated in its opinions. It is unnecessary to restate them. Fritz v. State, 8 Okla. Cr. 342, 128 P. 170; Anthony v. State, 12 Okla. Cr. 494, 159 P. 934; Owen v. State, 13 Okla. Cr. 195, 163 P. 548; Westbrook v. State, 14 Okla. Cr. 423, 172 P. 464; Phillips v. State, 27 Okla. Cr. 108, 225 P. 180; Jones v. State, 48 Okla. Cr. 415, 292 P. 570; Alder v. State, 53 Okla. Cr. 374, 12 P. 2d 545; Methvin v. State, 60 Okla. Cr. 1, 60 P. 2d 1062; Johnson v. State, 70 Okla. Cr. 270, 106 P. 2d 149; Hood v. State, 70 Okla. Cr. 334, 106 P. 2d 271; Moore v. State, 75 Okla. Cr. 222, 130 P. 2d 114.

As was said in Alder v. State, supra [53 Okla. Cr. 374, 12 P. 2d 547]:

“Upon what consideration then shall this court modify the judgment? Having regard for the law, we cannot do so for reasons of sentiment or sympathy; we can do so only if we can say judicially that under the entire record the punishment is too severe and that justice requires it to be modified.”

The facts in this case are that defendant and deceased were practically strangers. There had been no ill feeling or ill will between them. The deceased had entered the place defendant was operating, and had been there only a short time when he became engaged in a fight with another party — not the defendant. The fight was over a trivial matter — the possession of a hat. Deceased was not under the influence of liquor, but the party with whom he was fighting was. Defendant, evidently with the intention of stopping the fight, came from behind the bar with his pistol in his hand. Several witnesses testified that he was drunk. Others testified that he could attend to business. The testimony of practically all of the witnesses was to the effect that he was not justified in firing the shot that killed the deceased. There was no attempt on the part of deceased to do him any bodily harm.

Our statutes define murder as follows (Tit. 21 O. S. A. 1941 § 701) :

“Homicide is murder in the following cases.
“1. When perpetrated without authority of law, and with a premeditated design to effect the death of the person killed, or of any other human being.
“2. When perpetrated by any act imminently dangerous to others and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual.
“3. When perpetrated -without any design to effect death by a person engaged in the commission of any felony.”

Manslaughter in the first degree is defined (Tit. 21 O. S. A. 1941 § 711) as follows:

“Homicide is manslaughter in the first degree in the following cases:
“1. When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor.
“2. When perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as constitute excusable or justifiable homicide.
“3. When perpetrated unnecessarily either while resisting an attempt by the person killed to commit a crime, or after such attempt shall have failed.”

The facts in this case further reveal that when defendant was arrested and had his preliminary examination, he was represented by Mr. H. M. Shirley. That on July 11, 1941, Mr. Shirley was appointed county attorney of Coal county to succeed Dale Brown, who had resigned. Defendant testified (at the hearing on the motions) that he had been told by Mr. Shirley that he would not be tried at the November, 1941, term of court. Mr. Shirley, knowing that he was disqualified, secured the services of his brother, J. A. Shirley of Durant, and E. Moore of Coal-gate, to represent the defendant. Marvin Balch, who was formerly county attorney of Coal county, and his partner Hugh Sandlin, of Holdenville, were appointed as special prosecutors in this case on November 13, 1941. The case was set for trial for November 19, 1941, and was tried on that date. Counsel for defendant did not ask for a continuance on the ground that they had not had time to prepare the case for trial; but on the motion for new trial, they attached thereto an affidavit setting forth the lack of time to secure the evidence with reference to the motion for change of venue and the challenge to the panel of the jury.

In practically all of the cases we have read where the facts were similar to those in this case, the juries have found the defendant guilty of manslaughter in the first degree, and not guilty of murder. The punishment assessed has varied in accordance with the facts and circumstances surrounding each individual case. In all of these cases, Ave have recognized the principle that commutation can be granted only by the chief executive of the state, and is granted as a matter of clemency, and that the judicial power to modify a judgment and sentence is an award of justice, and the act of the chief executive is an act of grace. “Commutation is a matter of discretion and may be refused. Justice is imperative, and must not be denied." Fritz v. State, 8 Okla. Cr. 342, 128 P. 170, 177. “In other words, this provision of our criminal procedure act makes it the duty of this court to review the record, and in a proper case, if necessary in the furtherance of justice, modify the judgment so as to prevent the imposition of punishment which the evidence will not warrant.”

While, as above stated, there was no justification for the killing of deceased by defendant, the facts cause one to come to the conclusion that the punishment given defendant was the result of passion and prejudice on the part of the jury. We are, therefore, of the opinion, as in the Alder Case, supra, “that under the entire record the punishment is too severe and that justice requires it to be modifiedand that the punishment should be reduced from life imprisonment to imprisonment in the State Penitentiary for a period of 50 years.

As so modified the judgment and sentence of the district court of Coal county is affirmed.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    CARL PAYNE v. STATE.
    No. A-10452.
    May 24, 1944.
    (149 P. 2d 272.)

      Wall & Green, of Sallisaw, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Jess L. Pullen and J. Walker Field, Asst. Attys. Gen., and R. O. Ingle, Co. Atty., of Sallisaw, for defendant in error.
   JONES, P. J.

The defendant, Carl Payne, was charged in the district court of Sequoyah county with the crime of grand larceny, was tried, convicted and sentenced to serve three years in the State Penitentiary.

An appeal from this judgment was filed in this court on October 26, 1943. On April 19, 1944, the Attorney General filed a motion in this court to dismiss the appeal in which he alleged that the plaintiff in error, subsequent to the filing of the appeal in this court, was charged by preliminary complaint in Sequoyah county with the crime of burglary in the second degree; that after the filing of said preliminary complaint the defendant fled from the State of Oklahoma to the State of Californih. That he was arrested at Bakersfield, Caiif., and at the time of the filing of said motion was still incarcerated in the county jail at Bakersfield, Calif. That no permission to leave the state had ever been granted to defendant and that as one of the conditions of the appeal bond filed herein it was provided that said defendant, during the pendency of this appeal, “shall not depart without leave of the court.”

A copy of the motion and the order of this court setting it for hearing on May 22, 1944, were served upon the defendant and his counsel of record in this cause. No response to said motion has been filed by defendant and no appearance was made at the time said motion came on for hearing.

The proof of the state offered at the hearing on the motion to dismiss substantiated the allegations of their motion to dismiss the appeal.

In Evinger v. State, 35 Okla. Cr. 12, 247 P. 416, it is stated:

“Where a convicted defendant appeals and gives bond to stay the execution of the sentence during the pendency of the appeal, and violates the conditions of his bond by leaving the state without leave of court, it is within the discretion of the court, whether it will proceed to a decision of the cause or dismiss the appeal.
“Where a defendant has been convicted and sentenced and perfects an appeal, this court will not consider his appeal, unless defendant is where he can be made to respond to any judgment or order which may be rendered or entered in the case.”

In Bryce v. State, 14 Okla. Cr. 456, 172 P. 976, 977, Judge Matson, speaking for the court, says:

“If persons who are convicted of crime within this state leave the jurisdiction of this court after taking an appeal without its permission or order, even for a short period of time, they may, with equal right and propriety, leave the court’s jurisdiction during the entire pendency of the appeal, and the court, under such circumstances, would, be practically helpless to enforce its judgment against them. Persons convicted of crime in courts of record within this state have a right to appeal to this court, hut such appeals must he taken in the manner and under the conditions provided by law. The right to supersede a judgment of conviction by the giving of an appeal bond cannot be considered by appellants as a license to roam at large pending such appeal, continually violating the criminal statutes of this state.”

See, also, Mann v. State, 73 Okla. Cr. 245, 119 P. 2d 878; Herring v. State, 71 Okla. Cr. 69, 108 P. 2d 193; Kilpatrick v. State, 71 Okla. Cr. 125, 109 P. 2d 514.

Upon consideration of this matter we are of the opinion that the defendant, by his conduct, has waived his right to have his appeal in this case considered and determined.

The appeal is therefore dismissed.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    MRS. M. A. BROWN et al. v. CITY OF STILLWATER.
    No. A-10313.
    May 31, 1944.
    (149 P. 2d 509.)

      Hayden Covington, of Brooklyn, N. Y., and Stephenson & Stephenson, of Okemah, for plaintiffs in error.
    Randell S. Cobb, Atty. Gen., and Ernest F. Jenkins, City Atty., of Stillwater, for defendant in error.
   BAREFOOT, J.

The defendants, Mrs. M. A. Brown, Delbert Williams and E. F. Walrod, were tried and convicted in the county court of Payne county, Okla., on appeal from the municipal court of the city of Stillwater, for the violation of section 2 of Ordinance 742 of said city, which is as follows:

“It shall be unlawful and an offense for any person, firm or corporation within said City to display any sign, emblem, flag or device which, in its common acceptation, is insulting, profane, or abusive to the citizens of said City, and which is calculated, or where the natural consequence is, to cause a breach of the peace or an assault.

The defendants were sentenced to pay fines of $20 each, and from such judgment and sentence have appealed.

This case was by agreement consolidated with the case of Ex parte Walrod, 78 Okla. Cr. 406, 149 P. 2d 513, No. A-10281. Oral arguments and briefs have been submitted, and the questions involved in the two cases are identical.

This appeal involves the rights of four “Jehovah’s Witnesses,” and similar cases have been before this court and the Supreme Court of the United States many times. See the following: Ex parte Walrod, 73 Okla. Cr. 299, 120 P. 2d 783; McKee and Wilson v. State, 75 Okla. Cr. 390, 132 P. 2d 173; Miller v. State, 75 Okla. Cr. 428, 133 P. 2d 233; Greiner v. City of Yale, 77 Okla. Cr. 135, 139 P. 2d 606; Pendley v. State, 77 Okla. Cr. 259, 141 P. 2d 118; Wood v. State, 77 Okla. Cr. 305, 141 P. 2d 309; Schneider v. State of New Jersey, Town of Irvington, 308 U. S. 147, 60 S. Ct. 146, 84 L. Ed. 155; West Virginia State Board of Education v. Barnette, 319 U. S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628, 147 A. L. R. 674; Taylor v. Mississippi, 319 U. S. 583, 63 S. Ct. 1200, 87 L. Ed. 1600; Benoit v. Mississippi, 319 U. S. 583, 63 S. Ct. 1200, 87 L. Ed. 1600; Cummings v. Mississippi, 319 U. S. 583, 63 S. Ct. 1200, 87 L. Ed. 1600; Follett v. Town of McCormick, 64 S. Ct. 717, 88 L. Ed. — ; Murdock v. Pennsylvania, 319 U. S. 105, 63 S. Ct. 870, 891, 87 L. Ed. 1292, 1293, 146 A. L. R. 81; Jones v. City of Opelika, 319 U. S. 103, 63 S. Ct. 890, 87 L. Ed. 1290; Lovell v. City of Griffin, 303 U. S. 444, 58 S. Ct. 666, 82 L. Ed. 949; Cantwell v. Connecticut, 310 U. S. 296, 84 L. Ed. 1213; Oney v. Oklahoma City, 120 F. 2d 861.

See, also, decisions from the Federal Courts, and the Supreme Courts of other states: State of Kansas v. Smith and State of Kansas v. Griggsby, 155 Kan. 588, 127 P. 2d 518, 141 A. L. R. 1023; City of Blue Island v. Kozul, 379 Ill. 511, 51 N. E. 2d 515; Borchert v. City of Ranger, D. C., 42 F. Supp. 577; City of Cincinnati v. Mosier, 61 Ohio App. 81, 22 N. E. 2d 418; Commonwealth v. Reid, 144 Pa. Super. 569, 20 A. 2d 841; Donley v. City of Colorado Springs, D. C., 40 F. Supp. 15; State ex rel. Hough v. Woodruff, 147 Fla. 299, 2 So. 2d 577; McConkey v. City of Fredericksburg, 179 Va. 556, 19 S. E. 2d 682; McLean v. Mackay, 124 N. J. L. 91, 10 A. 2d 733; People v. Kieran, Sup., 26 N. Y. S. 2d 291; Village South Holland v. Stein, 373 Ill. 472, 26 N. E. 2d 868, 127 A. L. R. 957; State v. Mead, 230 Iowa 1217, 300 N. W. 523; Thomas v. City of Atlanta, 59 Ga. App. 520, 1 S. E. 2d 598.

The ordinance under which the defendants were charged is very similar in its terms to the various ordinances which have been considered in the cases above cited. It is unnecessary to unduly lengthen this opinion by reviewing these decisions, or by quoting the ordinance in full. The complaint under consideration charges that:

“[defendants] without authority of law, did display a sign, emblem, or device, towit: Watchtower and Consolation, Avhich is and was commonly known by the citizens in general in the city of Stillwater, Oklahoma, to teach disrespect to the law and the United States flag; which is and was in its common acceptation insulting and abusive to the citizens of said city, and the natural consequences thereof was to cause a breach of the peace or an assault contrary to and in violation of section No. two, of Ordinance No. 742 of said City of Stillwater, Oklahoma.”

Defendants, in their brief, discuss four propositions upon which they rely for a reversal of this case. They are as follows:

“One. The ordinance in question is unconstitutional on its face because, by its terms, it denies and deprives all persons in Stillwater, Oklahoma, of their rights of freedom of speech and of press, contrary to Article 1, Section 2; Article 2, Section 22; and Article 5, Section 46 of the Constitution of the State of Oklahoma and Amendments 1 and 14 to the United States Constitution.
“Two. The ordinance in question is unconstitutional, as construed and applied to the facts and circumstances, because it abridges appellants’ rights of freedom of conscience, of press, of speech and of worship of Almighty God, contrary to Article 1, Section 2; Article 2, Section 22; Article 5, Section 46 of the Constitution of the State of Oklahoma and Amendments 1 and 14 of the United States Constitution.
“Three. The ordinance in question, both on its iace and as construed and applied, violates the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution and is contrary to the Oklahoma Constitution, because it is vague, indefinite, uncertain, too general, does not furnish a sufficiently ascertainable standard of guilt, enables the court and jury trying the indictment to speculate, permits arbitrary and discriminatory action and amounts to a dragnet, thus depriving appellants of their liberty, without equal protection and due process of law.
“Four. The City of Stillwater failed to'offer any evidence to show guilt on the part of appellants, since the undisputed evidence showed that appellants were not guilty of the acts charged in the complaint because the conduct of appellants in distributing the literature and the contents of the literature were not calculated to cause a breach of the peace, nor caused disorder, and were not insulting or abusive, and did not cast reproach or ridicule upon Christ Jesus or Almighty God.”

The cases hereinabove cited fully discuss these propositions. After a careful review of the record, we have come to the conclusion that even though the ordinance in question be valid on its face, it is nevertheless unconstitutional as construed and applied to the facts and circumstances revealed in the record in this case. Concordia Fire Ins. Co. v. People of State of Illinois, 292 U. S. 535, 54 S. Ct. 830, 78 L. Ed. 1411.

The evidence of the city upon which these convictions were based is that the defendants and Mrs. E. F. Walrod (the petitioner in case No. A-10281), were offering for sale upon the streets of the city of Stillwater, magazines known as “Watchtower,” and “Consolation,” the official publications of Jehovah’s Witnesses. They were wearing magazine bags which held these magazines, and upon which these words were printed. A copy of each of the magazines, and one of the bags, are attached to the case-made.

The defendants were approached by C. E. Sexton, a retired physician, who was the prosecuting witness. He talked with them, and asked Delbert Williams, who is a young man, if he believed in saluting the flag. The boy replied that he did not, and asked him to obtain one of the magazines. Other words were passed. There was no physical demonstration of any kind, and no breach of the peace. M. A. Brown (who was originally a defendant in the case but who was found not guilty) motioned to the defendants, and they passed on to another place, and did not argue with the prosecuting witness.

Several officers testified to having previously purchased copies of the magazines from the defendants. All of the witnesses testified that the presence of the defendants upon the streets of Stillwater was disconcerting to the citizens, and that the officers had often been asked to keep them off the streets, in order to avoid trouble. No evidence was introduced to show that any matter contained in the magazines sold was repulsive or such as would cause a breach of the peace. It was only the presence of the defendants and the knowledge that they taught a doctrine of refusal to salute the flag that Avould cause any disturbance. They were all tried, and assessed a fine of $20 each. They appealed to the county court of Payne county, and the same fine was assessed. From such judgment and sentence this appeal has been perfected.

In one of the first cases to come before this court, 73 Okla. Cr. 299, 120 P. 2d 783, that of Ex parte Walrod, supra, Judge Doyle, in an exhaustive opinion, rendered on December 23, 1941, and in which many authorities are cited and reviewed, considered an ordinance of Stillwater very similar to the one here involved, and decided that it was unconstitutional. Since that time the cases of Miller y. State, supra, Pendley v. State, supra, McKee and Wilson v. State, Wood v. State, supra, have been decided, and a number of the decisions by the Supreme Court of the United States above cited have been rendered. It is unnecessary to quote extensively from them.

In the Wood Case it is said

“As we have so often stated, it [the Supreme Court of the United States] is the highest court in the land. Its decisions considering the applicability of state statutes to the terms of the Constitution of the United States are final and have and will be followed by this Court.”

And in Ex parte Walrod we said [73 Okla. Cr. 299, 120 P. 2d 792]:

“Considering the questions presented in the light of the First and Fourteenth Amendments to the Constitution of the United States, and the decisions thereon pronounced by the Supreme Court of the United States, which decisions are final and conclusive and to which all state tribunals must yield, it follows that the ordinance in question is unconstitutional and void.”

In Pendley v. State, supra:

“This decision of the Supreme Court of the United States, being expressly in point, controls in the disposition of the instant case. Regardless of any personal views this court maj entertain concerning the reasonableness or unreasonableness of the defendant’s views, we shall adhere to the ruling of the highest court of the land. It is sound in principle and consonant with the constitutional provisions.”

For the reasons above stated, and the reasons given in the cases above cited, the judgment and sentence of the county court of Payne county is reversed, and the case remanded.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    Ex parte MRS. E. F. WALROD.
    No. A-10281.
    May 31, 1944.
    (149 P. 2d 513.)
    Hayden Covington, of Brooklyn, N. Y., and Stephenson & Stephenson, of Qkemah, for petitioner.
    Randell S. Cobb, Atty. Gen., and Ernest F. Jenkins, City Atty., of Stillwater, for respondent.
   BAREFOOT, J.

The petitioner, Mrs. E. F. Walrod, filed petition for writ of habeas corpus, alleging that she is illegally restrained of her liberty by Gene Hoyt, Chief of Police of the City of Stillwater, Okla.

This petition is the outgrowth of the facts as alleged in case of Mrs. M. A. Brown, Delbert Williams and E. F. Walrod v. State of Oklahoma, No. A-10313, 78 Okla. Cr. 399, 149 P. 2d 509. This petitioner was charged, tried and convicted in the same case as those defendants. She did not make bond, but filed this petition after her conviction.

For the reasons stated in that opinion, the writ of habeas corpus is granted, and it is ordered that petitioner be released from custody.

JONES, P. J., concurs. DOYLE, J., not participating.