text:
    WILLIAM RABY v. STATE.
    No. A-10478.
    Oct. 31, 1945.
    (163 P. 2d 239.)

      Harry C. Kirkendall, of Enid, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and James G. Welch, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, William Raby, was charged by information filed in the county court of Garfield county with the unlawful transportation of intoxicating liquor; was tried, convicted, and sentenced to serve 90 days in the county jail and pay a fine of $100 and costs, and has appealed.

The only assignment of error presented by counsel for defendant is that the court erred in overruling the motion to suppress evidence.

At the hearing on the motion to suppress evidence, the testimony showed that the defendant, at the time in question, drove up in front of the Baker Hotel in the city of Enid and double-parked his automobile. One of the hotel porters approached him. The defendant opened the door and said, “Here it is,” motioning to a suitcase which contained a case of whisky. The hotel porter took the suitcase and defendant left. A deputy sheriff had parked his automobile a short distance away just before the defendant arrived at the hotel. He saw the porter struggling with the heavy suitcase and saw him set it down on the sidewalk. As the officer approached the negro porter, he asked him, “What you got in that bag?” To which the porter replied, “Whisky.” The officer then took the porter and the traveling bag to the sheriff’s office, where the bag was opened and disclosed 24 pints of whisky.

After the defendant left the hotel, he drove to the home of the head porter of the Baker Hotel, advised him that he had delivered a case of whisky, and the head porter paid him the sum of $80 for the case of whisky. After being paid for the whisky, the defendant drove to his home in the city of Enid, at which place he was arrested by the officers. The defendant was not a registered guest at the hotel. The deputy sheriff who seized the whisky did not have a search warrant.

It is contended by defendant that the constitutional immunity which an individual has against an unlawful search and seizure applies not only to the person of the individual but to his baggage and personal belongings and that the search by officers of his baggage without a search warrant upon mere suspicion was an unlawful search and seizure.

As we view the record, it is unnecessary to decide the contention presented by the defendant for these reasons:

First, the defendant was charged with unlawful transportation and not with the illegal possession of intoxicating liquor. Second, he had parted with the possession and, also, the title to the whisky at the time the officer stopped the porter. In this connection, the proof showed that defendant immediately after the delivery went to the head porter, told him he had delivered the whisky and was paid the sum of $80. The facts are not comparable to those where a guest of a hotel delivers his baggage to a . porter to be carried to his room. In that case, the guest or prospective guest retains constructive possession of the baggage. In the instant case, the defendant did not retain constructive possession of the baggage but delivered the same to the porter who took it as the agent of the head porter who was buying the whisky. The head porter had called the porter who took the whisky from the defendant prior to the defendant’s arrival at the hotel and advised him that the defendant was bringing a case of whisky and for him to meet the defendant in front of the hotel to secure the liquor.

This court has often held that the immunity against unlawful searches and seizures under the Constitution is personal and one accused will not be heard to object that the search of property or premises of another is a violation of the constitutional rights of the accused. Bynum v. State, 40 Okla. Cr. 352, 268 P. 993; White v. State, 33 Okla. Cr. 428, 244 P. 450; Taeker v. State, 72 Okla. Cr. 72, 113 P. 2d 394; Freeman v. State, 72 Okla. Cr. 137, 113 P. 2d 843.

Furthermore, when the negro porter told the officer that he had whisky in the suitcase, it was an admission of guilt and constituted grounds for the officer arresting the accused and searching the baggage for evidence of a crime committed in his presence. Nott v. State, 70 Okla. Cr. 432, 107 P. 2d 366.

The judgment of the county court of Garfield county is affirmed.

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


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    BENNIE J. CARR v. STATE.
    No. A-10474.
    Oct. 31, 1945.
    (163 P. 2d 241.)
    Mathers & Mathers, of Oklahoma City, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Bennie J. Carr, was charged by information filed in the district court of Oklahoma county, on August 23, 1943, with the crime of murder. Defendant was arraigned on August 28, 1943, and entered a plea of not guilty. Case was set for trial on September 20,1943, and on that date, defendant appeared in person and by his attorney and withdrew his plea of not guilty and entered a plea of guilty to manslaughter in the first degree.

Defendant and his counsel agreed to submit the facts to the court and leave the punishment to the discretion of the court. The court heard the arguments and then set the punishment at 50 years in the State Penitentiary. Later, two days after the sentence had been pronounced, defendant and a new counsel filed a motion to set aside the judgment and withdraw the plea of guilty and enter a plea of not guilty. It was alleged that defendant understood the penalty on a plea of guilty would not be more than 10 or 20 years, but that this 50 year sentence was equivalent to a life sentence to a man 45 years of age, as the defendant was. Motion to set aside judgment was overruled and a notice of appeal to the Criminal Court of Appeals was filed.

The facts in the case are as follows:

On the night of August 7, 1948, the defendant was at the beer garden of Lizzie Mitchell, his common-law wife, when Willie Jackson came in and ordered some beer and refused to pay for it. Jackson and Lizzie Mitchell got into an argument and Jackson slapped her and knocked her down. After doing this, he turned to the defendant and asked him what he was going to do about it, and walked out. Bennie Carr, the defendant, went into the back of the beer garden, got a shotgun and started after Jackson. He saw him in front of a beer parlor down the street. Willie Jackson was sitting outside of this place when Bennie Carr drove up in his automobile. The defendant got out of his car and shot at Willie Jackson, but the bullets missed him and went through the window of the beer parlor and hit a third person by the name of Lenville Green. Green died from a bullet wound through the heart. Willie Jackson escaped and ran down the street and Bennie Carr went on back to Lizzie Mitchell’s place and didn’t know that he had killed Green until the next day.

No brief has been filed and no appearance for oral argument was made on behalf of defendant. An examination of the record shows that the appeal is without merit and that the judgment of the district court of Oklahoma county should be affirmed. It is so ordered.

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


author: BAREFOOT, P. J.

text:
    WILLIAM A. STRONG v. STATE.
    No. A-10460.
    Nov. 7, 1945.
    (163 P. 2d 242.)
    Moman Pruiett, W. H. C. Taylor, and David Tant, all of Oklahoma City, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., E. J. Broaddus, Asst. Atty. Gen., and George Miskovsky, Co. Atty., of Oklahoma City, for defendant in error.
   BAREFOOT, P. J.

Defendant, William A. Strong, was charged in the district court of Oklahoma county by information with the crime of obtaining money under false pretenses; was tried, convicted, and sentenced to serve a term of seven years in the penitentiary, and has appealed.

The information charging defendant contained three counts. The first count charged him with obtaining money under false pretense; the second charged extortion, and the third, larceny by fraud.

At the conclusion of the state’s testimony, the county attorney elected to stand on the first count in the information. Under this count it was alleged:

“On the 7th day of February, 1942, in Oklahoma County, State of Oklahoma, William A. Strong, whose more full and correct name is to your informant unknown, then and there being, did then and there wilfully, unlawfully, and feloniously commit the crime of “Obtaining Money Under False Pretenses “in the manner and form as follows, to-wit:
“That is to say, the said defendant, William A. Strong, in the county and state aforesaid, and on the day and year aforesaid, then and there being, acting conjointly and together with one Fred D. Lowe and one Charles D. McNally, did then and there conspire with the said Fred D. Lowe and Charles D. McNally, and with each other, and did wilfully, unlawfully, designedly and feloniously obtain from Marie Eisiminger the sum of Eight Thousand and 00/100 Dollars ($8,000.00) in good and lawful money of the United States of America, by means and use of false and fraudulent representations, statements and pretenses: that is to say, the said defendant, acting conjointly and together with the said Fred D. Lowe and Charles D. McNally, represented to the said Marie Eisiminger that they, the said defendant and the said Fred D. Lowe and Charles D. McNally, could and would procure a pardon from * * * Governor of the State of Oklahoma for one J. W. Eisiminger, husband of the said Marie Eisiminger, who at said time, was serving a life sentence in the State Prison, at McAlester, Oklahoma, upon the charge of murder; and said defendant, acting conjointly and together with the said Fred D. Lowe and Charles D. McNally, further represented to the said Marie Eisiminger that they, the said defendant and the said Fred D. Lowe and.Charles D. McNally, could and would secure the release of the said J. W. Eisiminger from the said State Prison even though, at said time, said defendant and the said Fred D. Lowe and Charles D. McNally knew that there was, on said date aforesaid, an outstanding Federal hold order upon the person of the said J. W. Eisiminger at the said State Prison, at McAlester, Oklahoma; and, in this connection the said defendant, acting conjointly and together with the said Fred D. Lowe and Charles D. McNally, represented and stated to the said Marie Eisiminger that they, the said defendant and the said Fred D. Lowe and Charles D. McNally, could and would have the said * * * Governor of the State of Oklahoma, release the said J. W. Eisiminger to the said Marie Eisiminger; and the said defendant, acting conjointly and together with the said Fred D. Lowe and Charles D. McNally, further represented to the said Marie Eisimin-ger that they, the said defendant and the said Fred D. Lowe and Charles D. McNally, could and would procure, with the help of * * * a pardon from a Federal conviction outstanding against the said J. W. Eisiminger, through the United States Pardon and Parole Board; and said defendant, acting conjointly and together with the said Fred D. Lowe and Charles D. McNally, further represented to the said Marie Eisiminger that they, the said defendant and the said Fred D. Lowe and Charles D. McNally, would have to pay the sum of Five Thousand and 00/100 Dollars ($5,000.00) to the said [Governor], and, in this connection, said defendant, acting conjointly and together with the said Fred D. Lowe and Charles D. McNally, further represented to the said Marie Eisiminger that One Thousand and 00/100 Dollars ($1,-000.00) of the Five Thousand and 00/100 Dollars ($5,-000.00), aforesaid, would be paid by * * * to * * *; and said defendant, acting conjointly and together with the said Fred D. Lowe and Charles D. McNally, further represented to the said Marie Eisiminger that Five Hundred and 00/100 Dollars ($500.00) of said money aforesaid would have to be paid to an unknown person for a letter from the Prosecuting Attorney of Oklahoma County, Oklahoma, to be secured by said unknown person; and said defendant, acting conjointly and together with the said Fred D. Lowe and Charles D. McNally, further represented to the said Marie Eisiminger that unless she, the said Marie Eisiminger, paid over the sum of Eight Thousand and 00/100 Dollars ($8,000.00), aforesaid, before 12:00 M., on the 7th day of February, 1942, she, the said Marie Eisiminger, would be prosecuted criminally for the offense of bribery, and that her husband, the said J. W. Eisiminger, would be placed in the brick yard at the State Prison, at McAlester, Oklahoma, where the toughest criminals were held and where most severe punishment was administered; and said defendant, acting conjointly and together with the said Fred D. Lowe and Charles D. Mc-Nally, made various other false and fraudulent statements, representations and pretenses in connection with the proposed procurement of the pardon aforesaid; and the said Marie Eisiminger, relying upon the said representations, statements and pretenses of the said defendant, and the said Fred D. Lowe and Charles D. McNally, and believing them to be true, parted with and delivered to the said defendant, and the said Fred D. Lowe and Charles D. McNally, the said sum of Eight Thousand and 00/100 Dollars ($8,000.00), when, in truth and in fact, all of the said representations, statements and pretenses were false and fraudulent, all of which the said defendant, and the said Fred D. Lowe and Charles D. McNally, well knew; and the said Marie Eisiminger, relying upon the representations, statements and pretenses as aforesaid, was induced to part with and deliver unto the said William A. Strong, Fred D. Lowe and Charles D. Mc-Nally the sum of Eight Thousand and 00/100 Dollars ($8,000.00), good and lawful money of the United States of America, and the representations on the part of the said William A. Strong, Fred D. Lowe and Charles D. McNally, acting conjointly and together, were then and there made to cheat, wrong and defraud the said Marie Eisiminger out of the said sum of Eight Thousand and 00/100 Dollars ($8,000.00) as aforesaid, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the State of Oklahoma.”

For a reversal of this case, four assignments of error are presented, as follows:

“I. The Court erred, as a matter of law, in overruling the demurrer of defendant to the first count in the information:
“(a) Because said information does not allege the false representation of any material, present or existing fact.
“(b) Because said information does not allege that the complaining witness did not secure the pardon for which she bargained.
“(c) Because said first count of the information is duplicitous in that it joins in said count more than one distinct offense.
“II. The Court erred in admitting in evidence a letter written by Judge Jean P. Day to the complaining witness, Mrs. Marie Eisiminger, in which letter Judge Day expressed an opinion as to the guilt of the defendant.
“III. The Court erred in instructing on the penalty in said case.
“IV. The verdict of the jury- is contrary to the law and the evidence, and is not supported by the evidence for the reason:
“(a) No material, present or existing fact was proven.
“(b) The evidence showed that the complaining witness received from the defendant just what she bargained for.
“(c) The complaining witness did not rely upon the representations made by the defendant.”

We will first consider the second assignment of error. This necessitates a brief statement of the facts, in addition to the allegations in the first count of the information.

This charge was the outgrowth of an attempt by Mrs. Marie Eisiminger to secure a pardon and release for her husband, Dr. J. W. Eisiminger, who was serving a life sentence in the State Penitentiary for murder, having been convicted in Oklahoma county. We consider it unnecessary to unduly lengthen this opinion by detailing all of the negotiations between the parties involved.

It is conceded that the defendant and those charged with him entered into an agreement with Mrs. Eisiminger to endeavor to secure a pardon for her husband. The defendant, however, contends that he did nothing in connection with the procurement of the clemency which was not legal. The Governor issued a parole, but no pardon was issued. The terms of the agreement were changed, whereby Mrs. Eisiminger agreed to accept a parole, instead of a pardon. This was accomplished by representations made to her that Dr. Eisiminger would be released from prison on the presentation of the parole. The parties who made these representations knew this could not be done, because of a holdover order at the penitentiary, whereby Dr. Eisiminger was to be delivered to the Federal authorities to serve the remainder of a 15 year sentence in the Federal prison, in the event he should be discharged from the State Penitentiary prior to the expiration of the 15 year term.

The defendant and others failed to secure a pardon, but obtained a parole, dated February 5, 1942, which Mrs. Eisiminger refused to accept. At this time she employed Judge Jean P. Day, attorney, to advise her in the matter. His employment was by a written contract, and by the terms thereof Judge Day was to attempt to secure the return of the $8,000 which Mrs. Eisiminger had paid to the defendant (a part of which had been paid to others who had rendered assistance in securing the parole), and to advise her with reference to whether she should accept a parole instead of a pardon.

Judge Day addressed a letter to Mrs. Eisiminger concerning the investigation he had made, and containing advice with reference to the acceptance of a parole for Dr. Eisiminger. Thereafter, and on February 27, 1942, a second parole was issued, and accepted by Mrs. Eisiminger.

Judge Day was called as a witness by the defendant, and on direct examination was questioned with reference to his having served as a Commissioner of the Supreme Court of this state, and as to his employment by Mrs. Eisiminger. He was then cross-examined by the county attorney, and an attempt was made to introduce in evidence as a part of the cross-examination the contract in writing between Judge Day and Mrs. Eisiminger, and the letter written by Judge Day to Mrs. Eisiminger. The court sustained an objection to the introduction of both instruments. The county attorney continued the cross-examination of Judge Day, and read certain excerpts from the letter, and asked if the statements were true. The court then reversed his former ruling, and permitted the state to introduce the letter to which reference has been made, as. a part of the cross-examination. This was done over the objection of defendant, and the record was properly protected. The letter was as follows:

“Law Offices of
“Jean P. Day
“Parrine Building
“Oklahoma City, Okla.
“Feb. 19, 1942.
“Mrs. Marie Eisiminger,
“2125 Glen Ellyn
“Oklahoma City, Okla.
“Dear Mrs. Eisiminger:
“In order that you may thoroughly understand my position as your attorney under contract dated the 11th day of Feb. 1942, I am writing this letter.
“I am mindful of the cruel and unfortunate situation of certain racketeers through fraud taking from you your $8000.00, all of which I hope at some time you may be able to recover. This, of course, could be accomplished only through long drawn out litigation; and, further, we would have to be able to show beyond any question that at least one of the conspirators was solvent. That is to say, we would have to get judgment against at least one of them that could be made to respond to that judgment. Otherwise, all will be lost. And in view of the facts as disclosed to me there may be some difficulty in connecting the one well to do man in the matter. This, of course, would come out upon the development of the case at the trial.
“As you told me when first you consulted with me, your chief interest in the entire transaction, was to get the doctor released. As I have explained to you, I believe this can be accomplished. They contracted to furnish you an unconditional pardon, but instead, they furnished only a parole, and on that parole, took down your $8000.00, which, of course, was unconscionable and too much and not in conformity with their representations and agreement. However, if the doctor accepts this parole, I am confident that he will ultimately get the release.
“You must bear in mind that before the government will entertain an application for clemency, the doctor must be in federal custody under a federal sentence. In other words, if an unconditional pardon had been granted the hold order would have held him in custody for the federal authorities exactly the same as if a parole had been granted, and he would have to have gone into federal custody and gone to federal prison in order that the federal clemency board could entertain his application for clemency.
“So, if he accepts the parole, he will be held in federal custody still and will be taken to a federal prison. Then his application should be made for federal clemency, and, in the event that the federal authorities decline to consider his application due to the fact that he has only a parole, then we have every assurance and fully believe that if the federal authorities so require, that a pardon will then be issued, in which event it will probably be only a short time thereafter that the federal authorities will give favorable consideration to his application.
“This application as to the federal clemency is based upon what Mr. Charlie McNally tells me that Mr. Lyons of the Federal Department in Washington told him relative to the case.
“In other words, what I am trying to make plain to you is that if it becomes necessary that a pardon be granted to an innocent man who is wrongfully suffering, in order that he may receive clemency from the Federal Government, that otherwise would be denied, that then and in such event I am of the firm opinion that a pardon will be granted him.
“If this parole is not accepted forthwith, I believe that same will be revoked and you will be back right where you started except that you will be out of pocket 18000.00, and the doctor will be wholly without hope of relief, and you wiil have to look forward to a long drawn out law suit to try to recover your money, and as you know, a lawsuit is always an uncertain quantity. Therefore, you have nothing to loose in the doctor’s accepting the parole, as that would not waive the fraud practiced upon you by the cruel and unscrupulous perpetrators of the wrong against you.
“So, let’s try to get relief for the doctor and if we fail in that, then lets take the lawsuit route. This is my advice to you as your attorney. Of course, if you do not see fit to accept my advice, then that is your responsibility, and not mine.
“I trust that you appreciate and understand the seriousness of this situation, as it affects the Doctor, your husband.
“Yours very truly,
“JPD :R s/Jean P. Day”

The most serious objection to the introduction of the letter is based upon the following statements contained therein:

“I am mindful of the cruel and unfortunate situation of certain racketeers through fraud taking from you your $8,000, all of which I hope at some time you may be able to recover.”
“They contracted to furnish you an unconditional pardon, but instead, they furnished only a parole, and on that parole took down your $8,000, which, of course was unconscionable and too much and not in conformity with their representations and agreement.”

And:

“Therefore, you have nothing to loose in the doctor’s accepting the parole, as that would not waive the fraud practiced upon you by the cruel and unscrupulous perpetrators of the wrong against you.”

To support his contention that the statements made in the above letter were inadmissible, as being hearsay, opinion of the writer, and prejudicial to his rights, defendant cites the following cases: Otey v. State, 39 Okla. Cr. 61, 263 P. 155; Casselman v. State, 58 Okla. Cr. 371, 54 P. 2d 678; Lizar v. State, 74 Okla. Cr. 368, 126 P. 2d 552; Wells v. State, 5 Okla. Cr. 22, 113 P. 210; People v. Colburn, 105 Cal. 648, 38 P. 1105; State v. Shaw, 75 Wash. 326, 135 P. 20; Poy Coon Tom v. United States, 9 Cir., 7 F. 2d 109; Hollingsworth v. State, 80 Tex. Cr. R. 299, 189 S. W. 488; Marshall v. United States, 2 Cir., 197 F. 511.

The state in its answer brief does not make reference to any of the above-cited cases, nor is any attempt made to distinguish them from the instant case. The only reason we can conceive, after reading these cases, for not referring to them, is that they could not be distinguished.

The state contends that the fact that Judge Day was placed upon the witness stand by the defendant, and, for the purpose of showing that he was an eminent lawyer, asked if he had been a member of the Supreme Court Commission, justified the state in showing, on cross-examination, the advice given to Mrs. Eisiminger by Judge Day, and the introduction of the letter above quoted. We do not see the force of this argument.

We have read the authorities cited by the state. They are: Rogers v. State, 8 Okla. Cr. 226, 127 P. 365; 70 C. J. p. 638, § 807 (Witnesses) ; State v. Ford, 286 Mo. 624, 228 S.W. 480; 3 Amer. & Eng. Enc. Law, 2d Ed., 1102; 70 C.J. p. 629, § 800 (Witnesses).

These authorities only state the general rule of law that in no wise touch the issues here presented. Even conceding that a part of the letter could have been offered, there can be no justification for the admission of the three sections above quoted, which a mere reading will show were the expressions of an opinion by the writer of the letter to a party other than the defendant, and were such statements as would be highly prejudicial before the jury that was trying him. The contention that it was offered as impeachment of the witness is untenable.The witness did not at any time deny any statement made in the letter.

Referring to some of the cases cited by the defendant, we note the case of Otey v. State, supra. In this case an auditor’s report, accompanied by a letter, was made to the State Examiner and Inspector. The report and letter transmitting the same were introduced in evidence over the objection of the defendant, who was charged with falsifying records. The letter contained expressions of opinion of the auditor similar to the ones here made, but not so harsh. Judge Davenport, in his opinion, quoting from the case of Hays v. State, 22 Okla. Cr. 99, 210 P. 728, says [39 Okla. Cr. 61, 263 P. 157] :

“ ‘The defendant contends this evidence was incompetent and prejudicial, and that the error was not cured by its withdrawal from the jury. * * * This examiner’s testimony, authenticating his official reports as well as the reports themselves, was competent as tending to throw light upon the question of whether or not the offense was committed, but mere conclusions of the examiner, independent of his official report, are incompetent. For the reasons previously stated, the motion to direct the jury to return a verdict of not guilty should have been sustained.’
“The letter transmitting the audit to the examiner and inspector only expressed the views of the compiler of the report, and was prejudicial to the rights of the defendant, and the objections of the defendant should have been sustained.
“This court holds that the admission of the letter transmitting the audit, together with the notations on the margins of the audit, over the objection of the defendant, was prejudicial to the rights of the defendant.
“There are other errors assigned by the defendant, but, in the view we take of this record, we do not deem it necessary to discuss them. For the errors hereinabove stated, the case is reversed and remanded.”

In the case of Casselman v. State, supra [58 Okla. Cr. 371, 54 P. 2d 682], the court said:

“The court also admitted in evidence the letter of transmittal of the accountant in which his conclusions were embodied, which is inadmissible under the rule announced by this court in Otey v. State, 39 Okla. Cr. 61, 263 P. 155. The admission of this testimony and the audit without the books from which it was made, being in court, and the admission of the accountant’s letter of transmittal, is error requiring a reversal.”

In the case of Lizar v. State, supra [74 Okla. Cr. 368, 126 P. 2d 554], Judge Jones in the seventh paragraph of the syllabus, says:

“A letter found on an inmate of the jail which contained statements incriminating defendant, and identified by witness as having been written by him to defendant, which said letter was never received by defendant, is hearsay and inadmissible.”

In that case the letter was written by the witness to the defendant, and not to a third party.

The case of People v. Colburn, supra, a California case, is quoted in the Lizar opinion. We give a part thereof:

“ ‘This letter was clearly hearsay. Were such evidence admissible against a defendant charged with crime, there would be no limit to the power of designing persons to manufacture testimony against their neighbors. It will not do to say that Moore was a friend of the defendant, and hence that the evidence was admissible. It would be quite easy for an enemy, under the guise of friendship, to indict the most damaging epistles to a victim whose destruction he was seeking to encompass. * * * The letter was a statement of a third party, in no wise connected with defendant; was not made under the sanction of an oath; and not admissible. * *’
“This letter was hearsay and not competent for any purpose.”

Further along in the Lizar opinion, the court said:

“If we were to sustain the admissibility of this note in evidence, its tendency to abuse would be so great as might create an injustice in many future cases towards a person accused of crime. It would be very easy to frame an accused by having an alleged accomplice write damaging statements to be read as evidence against the accused to bolster the testimony of the alleged accomplice. This invitation to abuse is so great that we will not extend the exceptions to the hearsay rule for the purpose of authorizing the introduction of such evidence.”..

In the case of Krause v. State, 75 Okla. Cr. 381, 132 P. 2d 179, 180, it is stated in the fourth paragraph of the syllabus:

“It is error to admit in evidence, over objection of defendant, a letter written by Deputy State Examiner and Inspector addressed to State Examiner and Inspector and attached to audit which recites work which was done by Deputy Examiner and conclusions of Examiner.”

The foregoing cases sustain the proposition that the portion of the letter which expressed the opinion of the writer and referred to the defendant as a “racketeer,” and as the “perpetrator of a fraud,” should not have been permitted to go to the jury. This was the first opinion of the trial court ivhen he sustained an objection to the introduction of the letter and the contract which had similar references. No one can gainsay the fact that these expressions were damaging and prejudicial to the defendant, and deprived him of a fair and impartial trial. For this reason this case must be reversed.

We have examined the first assignment of error with reference to the demurrer to the information, and are of the opinion that the court did not err in overruling the same.

The third assignment of error cannot be sustained. This proposition has been fully covered in the case of Welch v. State, 78 Okla. Cr. 180, 146 P. 2d 141.

As to the fourth assignment of error, we do not care to discuss, the evidence, inasmuch as this case is to be retried. However, we do not find that the court erred in refusing to sustain the demurrer to the evidence, or that the judgment was contrary to law.

For the reasons above stated, the judgment of the district court of Oklahoma county is reversed and remanded.

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


author: PER CURIAM.

text:
    STATE ex rel. McDANIEL v. COFFMAN, Acting County Judge.
    No. A-10679.
    Nov. 7, 1945.
    (163 P. 2d 248.)
    Hulsey & Hulsey, of McAlester, for petitioner.
    Randell S. Cobb, Atty. Gen., and James M. Springer, Co. Atty., of Nowata, for respondent.
   PER CURIAM.

This is an action instituted by the petitioner, Tom McDaniel, in which he sought a writ of mandamus to force the dismissal of a certain action pending against him in case number 3748, in the county court in and for Nowata county, State of Oklahoma.

After the institution of the instant action, the Criminal Court of Appeals has received a certified copy of an order made by the county judge of Nowata county, on October 20, 1945, dismissing case number 3748 aforesaid, in the county court of Nowata county, against the said Tom McDaniel, and because of said dismissal, it is apparent that the question involved in the instant case is moot.

It is therefore ordered that the above entitled and numbered cause be and the same is hereby dismissed for the reasons aforesaid.

DOYLE, J., not participating.


text:
    STERMAN PETE KING v. STATE.
    No. A-10485.
    Nov. 7, 1945.
    (163 P. 2d 248.)

      F. E. Riddle, of Tulsa, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and Ewing C. Sadler, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Sterman Pete King, was charged in the court of common pleas of Tulsa county with the offense of unlawful possession of intoxicating liquor; was tried, convicted, and sentenced to serve 30 days in the county jail and pay a fine of $50 and eosts, and has appealed.

There are several assignments of error presented in the brief of the defendant, but it is only necessary to consider the assignment that the evidence is insufficient to sustain the conviction.

The defendant lived on a 160-acre farm about five miles from the town of Bixby. On the date set forth, in the information, three deputy sheriffs of Tulsa county, armed with a search warrant, went to the premises of the defendant to make a search. The defendant was not at home when the officers arrived. While the officers were several yards back of defendant’s house making a search, the defendant, his wife, and another man drove up to the house in defendant’s automobile. The officers saw the defendant walking across a field towards a pasture and got in their automobile and started across the field towards him. When they got within about 25 yards of defendant, defendant pulled a pint bottle out of his right pants pocket and started emptying'the liquid contained in the bottle. He then threw the bottle down and pulled another bottle of similar size out of his left pants pocket and commenced emptying it. The first bottle was found by the officers with a small amount of liquid still in it which the officers identified as whisky. The second bottle was never found by the officers. None of the officers tasted the liquid found in the bottle, and it was not presented in the trial, although request was made by the ¿ttorney for the defendant that it be presented for examination by the court. The officers explained that it did not have a cork in it and they had emptied it. The defendant told the officers that he had started to his hogpen and the officers then accompanied him to the hogpen and left the defendant there feeding his hogs while they proceeded back to town. Later, the charge in the instant ease was filed and defendant’s arrest was made. This was all of the evidence in the case.

The case of Thomas v. State, 70 Okla. Cr. 404, 106 P. 2d. 836, 837, presented a similar state of facts. In that case, the officers found two bottles of intoxicating liquor. One of them contained about one-half pint of whisky and the other three-fourths of a pint of dry gin, the total being less than one quart. In that case, as here, the defendant interposed her demurrer to the evidence. In disposing of that question, this court stated:

“We think this demurrer should have been sustained. However guilty the defendant may have been, the state has wholly failed to make a prima facie case. Less than one quart of whisky was found. The state made no effort to prove that the place where the whisky was found was a place of public resort and that it had the general reputation of being a place where intoxicating liquors were sold, which they would have had a right tO' [do] in order to establish the unlawful intent of the defendant in the possession of liquors. Winton v. State, 50 Okla. Cr. 1, 295 P. 400; Eastridge v. State, 57 Okla. Cr. 323, 48 P. 2d 869; Reed v. State, 24 Okla. Cr. 305, 217 P. 1058; Buckley v. State [69 Okla. Cr. 285], 102 P. 2d 619.
“It is not against the law to have possession of liquor in.Oklahoma for your own use; but it is against the law to have the possession with intent to sell. The intent to sell is an element of the offense and must be proved the same as any other element. The Legislature has provided that the possession in excess of one quart of intoxicating liquor is prima facie evidence of an intent to violate the law (2626, O. S. 1931, as amended by Session Laws of 1933, ch. 153, p. 339, 37 Okla. St. Ann. 82); but where the possession is of less than one quart, the intent to sell must be proved by the state.”

In this case, the proof that defendant had the possession of intoxicating liquor is weak. The bottles were unlabeled. The liquid contained in the bottle which was found was not tasted and not preserved for use as evidence. The officers did testify that it bore the odor of alcohol. One of them said, that it was “rot-gut,” without further explanation of the term. However, assuming that the liquid in the two bottles was whisky, still, the amount found in possession of the defendant was not in excess of one quart, therefore, was not sufficient to make a prima facie case of guilt. Under such circumstances, it is incumbent upon the state to introduce some other proof to establish the unlawful intent of the defendant in the possession of the intoxicant.

For the reasons hereinabove stated, the judgment of the court of common pleas of Tulsa county is hereby reversed and the defendant discharged.

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


text:
    MILLARD GEORGE GREEN v. STATE.
    Nos. A-10519, A-10543.
    Nov. 14, 1945.
    (163 P. 2d 554.)

      F. E. Riddle and R.. R. Linker, both of Tulsa, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Millard George Green, was charged in the district court of Muskogee county with the crime of rape in the first degree; was tried, convicted, and sentenced to serve 15 years in the State Penitentiary, and has appealed.

The arguments presented on behalf of defendant for a reversal of this case may be considered under two propositions :

First, the defendant did not have a fair trial. Second, the court erred in overruling the supplemental motion for new trial on account of newly discovered evidence.

Counsel who now appear in this court for the defendant did not represent the accused and was not present at the trial in the district court. The defendant, however, was represented by reputable counsel of the Muskogee Bar of defendant’s own choosing, both at the preliminary examination and at the trial in the district court. .

In connection with the first assignment of error, it is contended that defendant did not have a fair trial because of leading questions propounded by the county attorney to his own witnesses; and, secondly, because of admission of hearsay evidence.

An examination of the record discloses that the county attorney did ask his witnesses a great number of lead1 ing questions. Counsel who represented the defendant, likewise, in presenting their evidence, asked a great number of leading questions. No objections were interposed by counsel for defendant to any of the leading questions asked by the county attorney, and, likewise, no objections were interposed by the county attorney to the leading questions asked by counsel for the defendant.

It is a settled rule of law that leading questions which suggest the answer to the witness should not be asked the witness by the party placing him upon the stand. Mulkey v. State, 5 Okla. Cr. 75, 113 P. 532; Campbell v. State, 23 Okla. Cr. 250, 214 P. 738; Gallatt v. State, 80 Okla. Cr. 208, 158 P. 2d 353.

In the most recent expression of this court in the case of Gallatt v. State, supra, there is reviewed the authorities on this question and that opinion points out the evils of such practice.

If counsel for the defendant had presented any objections to any of the leading questions which were asked by counsel for the state, the learned trial judge undoubtedly would have sustained the objection and, if the county attorney had persisted in the practice over the objection' of counsel for defendant and his action had clearly adversely affected the defendant, this court would have reversed the conviction, but here we are confronted with a record where no objection was ever at any time made and the question was not even presented in the motion for new trial, nor in the supplemental motion for new trial.

In passing upon this issue, one of the factors which influences us the most is that a careful reading of the record convinces us of the absolute guilt of the accused. The proof on behalf of the state shows that the prosecuting witness was a 52 year old negro maid in the Eeid Hotel in Muskogee. Shortly after noon, on November 30, 1942, as she prepared to clean up room No. 303. of the hotel, the defendant seized her, held a sharp knife to her throat and directed her to remove her clothing, and, by the use of force and threats to kill the prosecuting witness if she made an outcry, had the prosecuting witness to lie on the bed and there he accomplished the act of sexual intercourse with her. The accused was an occupant of room 304, which adjoined the room where the assault occurred. Immediately after the assault was completed, the prosecuting witness ran from the room screaming and in a hysterical condition. Several witnesses testified to her condition. Her dress was wrinkled. Two or three buttons were torn off of her dress and her hair was mussed. She was crying. The hotel clerk, another maid, a porter in the hotel, and a policeman who was summoned, all described her condition as being hysterical. Her shoes and underwear were left in the room where the attack occurred. The policeman who was summoned arrested the defendant on the third floor as he was trying to enter room No. 3Q9, which was locked. The prosecuting witness was in such a condition that she was taken immediately to a hospital. She was away from her work for a week because of the shock.

The only evidence presented on behalf of the defendant was the testimony of the defendant himself, in which he admitted committing sexual intercourse with the prosecuting witness, but testified that the act was done at the suggestion of the prosecuting witness, wherein she proposed to allow him to have sexual relations with her for the sum of $1.

The physical facts all refute the story related by the defendant and corroborate the testimony of the prosecu-trix. An impartial jury, after hearing the evidence, could have come to no other conclusion than that the defendant was guilty as charged. He was given the minimum punishment. Under such circumstances, being convinced of the absolute guilt of the accused, this court does not feel that the asking of the leading questions by the county attorney was an error so fundamental that this court should reverse the conviction, especially in view of the fact that no objection was made to any of said questions and the matter was not assigned as error in the motion for new trial.

Counsel who now' appears for defendant says that the counsel who represented him at the trial did not properly take care of the defendant’s interests, and, in that connection, he states that counsel for the defendant at the trial brought out on direct examination of the accused that he had been twice convicted of felonies prior to the trial of the instant case — once for the crime of manslaughter in the State of Kansas, and once for passing a forged check in the State of Texas.

This court will not be so brash as to try to suggest to any attorney how to best handle a case for one accused of crime. Many of our best attorneys differ on what should be done in presenting the cause of their client in the best manner to the jury. Counsel who represented defendant in the lower court undoubtedly thought that it was better to bring out the fact of the prior convictions on direct examination and let the defendant explain the circumstances surrounding them rather than to wait and let the county attorney bring out the fact of the two prior convictions on cross-examination in order to affect the credibility of the defendant as a witness. The counsel who represented the accused at the trial were counsel of his own choosing and were men who have had years oí experience in the trial of criminal cases. It was a case that was extremely hard to defend because the absolute guilt of the defendant was bound to be apparent to all parties concerned, and this fact, coupled with the former bad record of the accused, should demonstrate that counsel for the defendant at the trial protected his interest in that he did not receive more than the minimum punishment provided by law.

We agree with the statement of present counsel that the trial judge has the duty to see that every defendant on trial for a felony has a fair and impartial trial and that, if his counsel, through negligence, inadvertence, incompetency, or otherwise, continually fails to protect the rights of the defendant and permits his substantial rights to be clearly violated, it becomes the duty of the trial judge to interfere in the interest of justice. However, in View of what has been herein before said, we do not think this rule of law is applicable to the facts in the instant case.

Counsel for defendant also, in connection with this assignment of error, present the question that the policeman who testified on behalf of the state gave hearsay evidence as to what the prosecutrix had told him about the assault. This statement by the prosecutrix given to the policeman was within a few minutes after the alleged assault occurred and was properly a part of the res gestae. Her physical condition and the nearness to the time of the alleged assault all contradict the theory of a fixed story. Frazee v. State, 79 Okla. Cr. 224, 153 P. 2d 637. Furthermore, this testimony was also given without objection and defendant may not now complain.

Several months after the trial and after the appeal was lodged in this court, a supplemental motion for new trial on the ground of newly discovered evidence was filed and overruled. Attached to the motion were three affidavits — one from Pat W. Mendenhall (who is the Men-denhall involved in Mendenhall v. State, No. A-10520, now pending in this court) in which he stated that he went to room 303 during the time the defendant was committing the act of sexual intercourse with the prosecu-trix, that he was looking for one Joe Stump, that he did not hear any loud talking or screaming or resistance in the room, that he opened the door and saw the defendant committing the act with the prosecuting witness, that he saw both of the defendant’s hands and that he did not have a knife in either hand. Another affidavit was from one Chester Wood, who stated that he was hired to make an investigation into the trial and conviction of the defendant Green in October, 1943; that he talked to the prosecutrix, Callie Ennis, and that during the conversation, Callie Ennis stated to the said Chester Wood that she had had sexual intercourse with the defendant, that after the completion of the act, the defendant handed her a dollar bill and she demanded $10, and that the prosecutrix told the defendant that if he would not give her $10, that she would put him so far in jail that they would have to feed him beans with a pole. The third affidavit was from one Willie Watson, a negro, who is now serving a term of imprisonment in the State Penitentiary. In his affidavit, he stated that the prosecutrix came to him prior to the trial and tried to employ his services to see if he could secure from the defendant the sum of $100 to settle the case, and told him that she had framed the defendant — that she had consented to the act of sexual intercourse and that had someone not opened the door of the room where they were, she would not have made the charge, but that after the door of the room was opened, she was afraid that if she did not make the charge, she would lose her job and that her husband would hear about it.

At the hearing on this supplemental motion for new trial, no evidence was presented, but the court overruled the motion after reading the same and held that it was insufficient on its face to justify or require the granting of a new trial. The court’s ruling was proper. It would have been a gullible court, indeed, who would have taken these three affidavits and granted a new trial upon them. They are so contrary to the physical facts that they were wholly unworthy of belief. Furthermore, there was no allegation nor showing that the persons who made the affidavits could be presented as witnesses if a new trial had been granted. When such a motion is presented, it is addressed to the sound discretion of the trial court and, unless this court can clearly see that in overruling this motion the trial court abused its discretion, the trial court’s ruling thereon should be allowed to stand.

A careful examination of the evidence and the instructions of the court, together with a consideration of the verdict, convinces us that the defendant has no just cause for complaint and that the judgment of the district court of Muskogee county should be affirmed.

It is so ordered.

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


text:
    J. G. BOYKIN v. HUNT.
    No. A-10687.
    Nov. 14, 1945.
    (163 P. 2d 554.)

      David Tant, of Oklahoma City, for petitioner.
    Randell S. Cobb, Atty. Gen., and Warren H. Edwards, Co. Atty., Oklahoma County, of Oklahoma City, for respondent.
   BAREFOOT, P. J.

J. G. Boykin filed a petition for writ of prohibition in which it is sought to prohibit the Honorable Albert C. Hunt, Judge of the District Court of Oklahoma County, from assuming jurisdiction to pass upon a motion for a new trial in a case where petitioner was tried and convicted in the district court of Oklahoma county of the crime of “assault with a dangerous weapon,” on the 26th day of January, 1932.

By reading the petition it is revealed that the petitioner has time to appeal his case in the manner provided by law, and for this reason the court refuses to take original jurisdiction to hear and pass upon the question here involved. It does not fall within the class of cases where the public good demands that the question should be decided by a writ of prohibition. Bennett v. District Court Tulsa County, 81 Okla. Cr. 351, 162 P. 2d 561; In re Strauch, 80 Okla. Cr. 89, 157 P. 2d 201.

For the reasons above stated, the petition for writ of prohibition is denied.

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


text:
    MAE STRONG v. STATE.
    No. A-10492.
    Nov. 21, 1945.
    (164 P. 2d 252.)
    E. D. Reasor and Reily & Reily, all of Shawnee, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Claude Hendon, Co. Atty., of Shawnee, for defendant in error.
   BAREFOOT, P. J.

The defendant Mae Strong was charged jointly with Ollie Strong, in Pottawatomie county, with the crime of assault and battery with intent to kill. They were tried and both convicted, and each sentenced to serve one year and one day in the State Penitentiary. The court suspended the sentence as to the defendant- Ollie Strong during good behavior; and the defendant Mae Strong has appealed from the judgment and sentence assessed against her.

The error complained of is that the evidence is insufficient to sustain the judgment and sentence, and that the sentence imposed should be modified.

This case arose by reason of a dispute between the two defendants and one Mary Ester, the prosecuting witness, over the possession of a small tract of land in the city of Shawnee. This property was owned by Charles E. Wells, who had given Mrs. Ester permission to use the same for garden purposes, and she had a garden growing thereon. He subsequently sold the property to the defendants, and on the morning of August 22, 1912, the defendant and Ollie Strong, her brother-in-law and co-defendant, went to the lot for the purpose of measuring the same, and to fence it. They encountered the husband of the prosecuting witness, and informed him of their purpose. The prosecuting witness appeared and some harsh words were passed. The testimony as to what was said is conflicting and need not be stated. The defendants left the scene for the purpose of seeing Mr. Wells, who had sold them the property. They saw him, and also saw a justice of the peace.

On the same day and about noon, the defendants were returning to their home, and stopped at the home of a Mrs. Ef finger to pay her for some laundry. Just as the defendant Mae Strong came from the house, she encountered the prosecuting witness. Ollie Strong, the codefendant, was standing across the street. The defendant and the prosecuting witness started fighting. The evidence is conflicting as to who was the aggressor. The prosecuting witness testified that while they were fighting Ollie Strong kicked her in the side. This was denied by the defendant and by Ollie Strong, and also by some four or five disinterested witnesses who saw the difficulty. The prosecuting witness was the only one who testified to this fact, all of the witnesses testifying that Ollie Strong was standing across the street, and that they did not see him kick her. The evidence revealed that the two women had quite a fight, and that while the prosecuting witness was pulling the hair of defendant, defendant bit one of her fingers. A picture of the prosecuting witness was offered in evidence, and it showed severe bruises on her body, and a woman doctor who examined her testified as to the extent of her injuries, and that she was not able to be about for a number of days. There was no evidence that defendant used anything other than her hands in the fight, except that she bit the prosecuting witness when the witness was pulling her hair.

We have carefully examined the record, and have reached the conclusion that the evidence in this case does not justify the sentence imposed. It only justifies the finding of the defendant guilty of assault and battery.

For the reasons above stated, the judgment and sentence of the district court of Pottawatomie county of one year and one day in the State Penitentiary is modified to a fine of $50 and costs; and, as so modified, the judgment is affirmed.

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


text:
    Ex parte EDWARD BOOTS.
    No. A-10649.
    Nov. 21, 1945.
    (163 P. 2d 856.)

      Edward Boots, per se.
    Randell S. Cobb, Atty. Gen., and E. J. Broaddus, Asst. Atty. Gen., for respondent.
   JONES, J.

This is an original action in habeas corpus instituted by the petitioner, Edward Boots, to secure his release from confinement in the State Penitentiary.

The petition is lengthy and we have given it careful consideration. The petitioner is 68 years of age and has been confined in the State Penitentiary since February 8, 1923, for the crime of murder. The petition is in the nature of an appeal for clemency. There are no facts alleged which show that the judgment and sentence of life imprisonment which the petitioner is serving is void. In substance, the petition alleges that counsel for petitioner, at his trial, did not allow the petitioner to introduce evidence which would have cleared him, and that, under any view of the case, he should not have been given punishment for more than manslaughter.

When a conviction has become final and no appeal has been lodged in this court, the Criminal Court of Appeals may not then modify any sentence assessed against an accused. 22 O. S. 1941 § 1066.

Under the provisions of article 6, sec. 10, Oklahoma Constitution, the sole power to issue clemency after conviction is vested in the Governor.

Since the Criminal Court of Appeals is without authority to grant the relief sought in the petition, it follows that the petition for writ of habeas corpus should be and the same is hereby denied.

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


text:
    In re WALTER CAVERS.
    No. A-10617.
    Nov. 21, 1945.
    (164 P. 2d 237.)
    Walter Cavers, pro se.
    Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   JONES, J.

The petitioner, Walter Cavers, seeks his release from confinement in the State Penitentiary by this proceeding in habeas corpus.

This is the second action of this nature filed by this petitioner. See former opinion, In re Cavers, 79 Okla. Cr. 262, 154 P. 2d 106. The allegations of the petition in the instant case are substantially the same as those heretofore considered in the former opinion.

It is the rule of the court that where the Criminal Court of Appeals has denied an application for writ of habeas corpus, it will not ordinarily entertain a subsequent application for such writ on the same grounds or facts existing when the first application was made, whether then presented or not. Ex parte Gray, 74 Okla. Cr. 200, 124 P. 2d 430; Ex parte Davis, 74 Okla. Cr. 75, 123 P. 2d 300; Ex parte Berrie, 75 Okla. Cr. 115, 129 P. 2d 88; Denton v. Hunt, 79 Okla. Cr. 166, 152 P. 2d 698; In re Edwards, 79 Okla. Cr. 259, 154 P. 2d 105.

The writ of habeas corpus is denied.

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


text:
    JOHN EDWARDS v. STATE.
    No A-10486.
    Nov. 28, 1945.
    (164 P. 2d 245.)

      F. E. Riddle, of Tulsa, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., James G. Welch, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for defendant in error.
   BAREFOOT, P. J.

Defendant, John Edwards, was charged in the court of common pleas of Tulsa county with the crime of unlawful possession of intoxicating liquor, to wit, seven and one-half pints of corn whisky. He was tried, convicted and sentenced to pay a fine of $100, and to serve 60 days in the county jail, and has appealed.

This case was the outgrowth of the search of defendant’s automobile by deputy sheriffs W. H. Wards and Roy Vaden on September 17, 1943, in Tulsa county.

The two deputies were at a filling station and went inside to get a “soft drink.” Defendant drove up and parked his car on the other side of the street. The deputies walked in the direction of defendant’s parked automobile, and their testimony was that they' saw bottles in a paper sack on the floor of the car, between the front and rear seats, which bottles had the appearance of “whisky bottles.” They opened the door of the automobile and examined the contents of the sack and discovered that the bottles contained whisky. They arrested defendant, and while taking him to jail, one of the deputies asked him how much he was getting for his whisky, and the defendant answered $2.50 a pint. The glove compartment of the car was searched and four pints of corn whisky were found there.

Defendant waived a jury and the case was tried before the court. A motion to suppress was filed for the reason that the officers did not have a search warrant at the time the automobile was searched, and this motion was heard before the trial, overruled, and exception saved. The legality of the search is the only question presented. The trial court sustained the motion insofar as it applied to the liquor found in the glove compartment, and considered only the possession of the liquor found between the seats. The amount of liquor found there was in excess of one quart. The defendant did not take the witness stand, and the only two witnesses offered by defendant testified with reference to the working of the lock on .the glove compartment of the automobile.

The contention of counsel for defendant is based principally upon the cross-examination of the two deputies who searched the automobile of defendant. By this cross-examination it was developed that they were acquainted with the defendant and knew his general reputation, and that was their reason for going to his parked car. An attempt was also made to show that it would have been physically impossible for the officers to have seen the bottles containing whisky in the sack, from where they were standing. This was done by counsel placing a sack with bottles of same kind before the court.

The cross-examination was very searching, and the witnesses made some statements which were to the disadvantage to the state. Some of the answers made by the witnesses on cross-examination might have been inadmissible,. but the case was tried by the court, and not by a jury, and the presumption is that the court only considered the evidence which was admissible and disregarded that which was inadmissible. The evidence taken on the motion to suppress is not contained in the case-made — only the evidence at the trial.

The evidence of the officers was positive that they were standing in the street in a public place when they observed the bottles in the sack, and that in addition to the seven and one-half pints of whisky they found in the car two or three empty jugs and a couple of dozen empty pint bottles which had been used for whisky.

The evidence in this case, taking into consideration the cross-examination of the witnesses, makes what is known as a “border line case”; but taken as a whole, we think the court was justified in finding defendant guilty. His automobile was parked in a public place, and on a public street. The officers knew of his general reputation as being that of one who sold whisky, and he had been searched on numerous occasions, and whisky found. The officers saw the bottles in a paper sack, and the empty bottles on the floor of the car. The officers had a right to be on the public streets, and they had the right to observe defendant’s parked automobile. While it has been recognized that a search of one’s automobile may not be made without a search warrant, yet it has often been held by this court that an officer in a public place, in the discharge of his duty, has the right to search an automobile without a warrant when the facts, by reason of exercising his senses of sight, hearing or smell, justify his doing so. As was stated in the case of Matthews v. State, 67 Okla. Cr. 203, 93 P. 2d 549, 550:

“Whether search of, and seizure from, an automobile parked on a public street or other public place, without a warrant, is unreasonable, is to be determined as a judicial question in view of all the facts and circumstances under AAhich it is made.”

See, also, Barfield v. State, 68 Okla. Cr. 455, 99 P. 2d 544; Arnold v. State, 70 Okla. Cr. 203, 105 P. 2d 556; Nott v. State, 70 Okla. Cr. 432, 107 P. 2d 366; Franklin v. State, 71 Okla. Cr. 115, 109 P. 2d 239; Young v. State, 71 Okla. Cr. 112, 108 P. 2d 1028; Golden v. State, 75 Okla. Cr. 121, 129 P. 2d 202; Brown v. State, 73 Okla. Cr. 199, 119 P. 2d 253. Also cases from other states, cited in the note in 74 A.L.R., beginning on page 1457; and 30 Am. Jur. pp. 532 and 533; People v. Case, 220 Mich. 379, 190 N. W. 289, 27 A.L.R. 686, in which the court notes some distinction, and reasons that should be made in the search of an automobile and a private home.

This case has been well briefed by both defendant and the state, and while it is a border line case, we are of the opinion that the court did not err in finding the defendant guilty under the evidences offered; and the judgment of the court of common pleas of Tulsa county is affirmed.

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


text:
    Ex parte JACK BALDRIDGE.
    No. A-104642.
    Dec. 5, 1945.
    (164 P. 2d 253.)

      Hulsey & Hulsey, of McAlester, for petitioner.
    Bandell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   JONES, J.

This is an original proceeding in babeas corpus instituted by the petitioner, Jack Baldridge, to secure bis release from confinement in tbe State Penitentiary.

Tbe verified petition specifically attacked two judgments pronounced against tbe petitioner in tbe district court of Ottawa county in cases numbered 2624 and 2625 in said court, wherein tbe petitioner entered a plea of guilty to tbe crime of murder entered against him in each of said cases and was sentenced to serve a term of life imprisonment on each of said charges.

Tbe petition is lengthy and it is contended that tbe judgments are void for tbe reason that in tbe proceedings before the trial court, tbe convictions were sustained without due process of law.

A rule to show cause was issued and response filed by tbe warden of tbe State Penitentiary, wherein it is shown that, in "addition to tbe two commitments in the cases attacked in tbe petition, the warden is also holding tbe petitioner by reason of tbe revocation of a parole and recommitment of tbe petitioner to tbe State Penitentiary to serve an unsatisfied portion of a 20-year sentence for manslaughter.

A bearing was bad before this court. It appeared from tbe facts that in the year 1915, petitioner was convicted in tbe district court of Ottawa county of the crime of manslaughter in tbe first degree and was sentenced to serve 20 years imprisonment in the State Penitentiary. He escaped from tbe penitentiary in 1918. While be was an escapee, be married under an assumed name and lived in another state until 1939. In tbe year 1939, tbe petitioner became seriously ill and thought be was going to die. At that time, petitioner made a “death-bed confession,” disclosing bis identity and the fact of bis escape from tbe Oklahoma State Penitentiary. After petitioner recovered from his illness, he was taken back to tbe penitentiary to finish serving his sentence. A few months later, he obtained a parole. After he killed his wife and one J. W. Williams, in the town of Commerce, in Ottawa county, on November 29r 1944, the parole was revoked.

The purpose of the writ of habeas corpus is to secure release from confinement. Since petitioner is noAV serving the unexpired term of the manslaughter conviction, which is not being attacked, this court could not grant his release from confinement even though the judgments attacked are void.

As was said in the case of Ex parte Tollison, 73 Okla. Cr. 38, 117 P. 2d 549:

“Where petitioner stands committed on unsatisfied judgments, other than the one upon which he is seeking Ids release on habeas corpus, the writ of habeas corpus will be denied.”

In the body of the opinion, it is stated:

“Since the allegation of the petitioner, if true, would only serve to set aside the judgment pronounced in the case which is being attacked and would not serve to grant him a discharge from his imprisonment for the reason that be stands imprisoned to answer three other judgments pronounced against him, which sentences thus pronounced are unsatisfied, the petition will have to be denied. Ex parte Allen, 56 Okla. Cr. 154, 35 P. 2d 284; Ex parte Russell, 52 Okla. Cr. 136, 3 P. 2d 248; Ex parte Adams, 39 Okla. Cr. 334, 265 P. 147.”

For the reasons hereinabove stated, the petition for writ of habeas corpus is denied.

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


author: BAREFOOT, P. J. DOYLE, J.

text:
    JOHN BROWN v. STATE.
    No. A-10488.
    Dec. 5, 1945.
    Concurring Opinion on Rehearing, Feb. 27, 1946.
    (164 P. 2d 249; 166 P. 2d 1021.)
    O. A. Brewer, of Hugo, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Ralph K. Jenner, Co. Atty.,. Choctaw County, of Hugo, for defendant in error.
   BAREFOOT, P. J.

Defendant, John Brown, was charged in the county court of Choctaw county with the crime of driving a motor vehicle while under the influence of intoxicating liquor. He waived a jury, was tried before the court, found guilty and his punishment assessed at a fine of $50 and costs. From this judgment and sentence he has appealed.

A motion filed by the state to dismiss the appeal for the reason that brief had not been filed within the time allowed by the rules of the court, and that the appeal was frivolous and for delay only, has been examined and considered, and we are of the opinion that the motion should be denied. A brief was filed by the defendant on September 3, 1944, and long before this case was reached for consideration.

A number of assignments of error are presented, but we are of the opinion that they may all be considered under the assignment:

“That the verdict is contrary to law and the evidence, and is wholly insufficient to sustain the judgment and sentence.”

Only one witness was presented by the state, and the defendant placed no witness upon the stand.

We deem it advisable to quote the whole of the testimony of the one witness, L. D. Rhodes:

“Q. Your name is L. D. Rhodes? A. Yes, sir. Q. What official position do you hold in the state? A. I’m a trooper with the State Highway Patrol. Q. Do you know the defendant, John Brown? A. Yes, sir. Q. Did you see him on the 9th of October, 1943? A. It was on the 10th, I believe. Q. It was on or about that time that you saw him? 7 A. Yes, sir. Q. Where did you see him? A. About one-half mile south of Grant, on the turn, just south of the underpass, on U. S. Highway 271. Q. What was the occasion for you going there? A. There had been an ¿ccident reported down there and I went to investigate it. Q. What did you find there? A. There was an auto sitting on the right side of the road next to a post and John was in another car that was on the north side of the highway facing west, on the opposite side of the highway, with clearance between for traffic. Q. John’s car was facing west? A. Yes, sir. Q. John’s car was on the north side of the highway? A. Yes, sir. When I got there John was sitting in his car and the people in the other car, two of them were named Holley and I don’t remember the names of the others, they were in front of their car. I went thru the regular procedure, I took down their names and filled out my report. I called their car number one? I went to John’s car and asked him to get out and he did, he was unsteady on his feet and I asked him to stand in front of the car while I searched his car. He was unsteady on his feet. He began to tell me how to prevent these accidents, and he said, ‘Johnnie had had several drinks,’ and he said ‘you know how it was,’ and I asked him why he was there in that condition and he said he had been to Grant and that his wife had been driving, and he said he got in the car and was coming back to town, I brought him to town. It was about 5:30 when I got there and I brought him to town about 7:30. He was still woosie on his feet then. Q. He said he had driven from his place to the scene of the accident? A. Yes, sir. Q. He was under the influence of liquor? A. Yes, sir. By Mr. Jenner: That is all. Cross-examination by Mr. Brewer: Q. All you know about it is what he told you? A. I know he was under the influence of liquor. I don’t know how far he had driven. Q. You don’t know whether he had taken the drink after the accident or before? A. At the time of the investigation Mr. Holley said he was drunk. By Mr. Brewer: We object to what Mr. Holley said. By the Court: Overruled, exceptions allowed. A. At that time I had not been to his car and he was not trying to get away. Q. Was he shaken up a bit? A. He had a bruise on his head. Q. There was blood on his head? A. It was a blue spot on his head. Q. You don’t know how long it had been since the accident happened when you got there? A. They said it had been about 15 minutes. Q. Did John tell you that? A. No, sir. Q. In all your investigation, did he tell you it Avould not have happened if the steering gear had not broken? A. No, sir. Q. You don’t know whether he was drinking at the time of the accident except what he told you? A. At the very minute of the accident I could not tell, but I can say he was drinking in 15 minutes from the time of the accident. By Mr. Brewer: That is all. By Mr. Jenner: Q. Why did he say they had an accident? A. He told me ‘Johnnie does not have these accidents’ and I ask him why he had this one and he said ‘if Johnnie had not had several drinks he would not have had this accident.’ By the Court: Q. He admitted he had several drinks? A. Yes, sir. Q. Do you think he told you the truth about the accident? A. Yes, sir. By Mr. Jenner: State rests.”

It is the contention of the defendant that the answer of the witness in the following testimony should have been stricken:

“Q. You don’t know whether he had taken the drink after the accident or before? A. At the time of the investigation Mr. Holley said he was drunk. By Mr. Brewer: We object to what Mr. Holley said. By the Court: Overruled, exceptions allowed.”

This testimony was clearly hearsay, and should have been stricken by the court.

It is also contended that under the law, corpus delicti in a criminal case cannot be established by the confession alone, but there must be independent evidence direct or circumstantial of corpus delicti before a conviction can be sustained; and that this rule of law has application to the facts here presented.

This contention is based upon the testimony of the witness Rhodes when he testified that defendant said to Mm: “Johnnie does not have accidents.” And, further: “And I asked him why he had this one, and he said, ‘If Johnnie had not had several drinks he would not have had this accident.’ ”

The above rule of law has often been announced by this court. Phenis v. State, 76 Okla. Cr. 156, 135 P. 2d 62; Lake v. State, 59 Okla. Cr. 280, 57 P. 2d 1199.

The record does not disclose or give any intimation as to why only the witness Rhodes was placed upon the witness stand in this case. He was not present at the time of the collision, and did not see the defendant operating the automobile. The parties who were in the other car were not placed upon'the stand. The witness Rhodes testified that the defendant was under the influence of intoxicating liquor. This was evidently his opinion, and the only facts testified to were that defendant was “unsteady on his feet”; and, “He was still woozy on his feet then.” No doctor was called to examine defendant, and no officer or other person was presented who saw him when he was brought to town. The following question was asked the witness:

Q. You don’t know whether he was drinking at the time of the accident, except what he told you?” And he answered: “A. At the very minute of the accident I could not téll, but I can say he was drinking in 15 minutes from the time of the accident.”

Just how the witness could have known that the defendant was drinking 15 minutes from the time of the accident is hardly understandable.

Taking the record in this case as a whole, after elimination of the hearsay testimony, we are of the opinion that it was insufficient to sustain the conviction. The circumstances may have been sufficient to warrant the court in reaching tlie conclusion that the defendant was driving the car at the time of the collision; but the evidence that defendant was under the influence of intoxicating liquor at the time of the collision is almost wholly dependent upon the statement of defendant as above set forth, and the opinion expressed by the one witness, Rhodes, which is based upon very meager facts.

The statement of counsel that the facts in this case are not as strong as in the case of Phenis v. State, supra, and Lake v. State, supra, is true, and both of those cases were reversed.

For the reasons above stated, the judgment of the county court of Choctaw county is reversed and remanded.

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

On Rehearing.

DOYLE, J.

(concurring). Among the alleged errors assigned for reversal is that there is no sufficient proof of the corpus delicti.

It is contended that the proof of the corpus delicti is based solely upon the extrajudicial confession of the defendant.

To prove the offense charged the state relied wholly upon the testimony of L. D. Rhodes, in substance as follows :

“I’m a trooper with the State Highway Patrol. I saw the defendant about one half mile south of Grant, there had been an accident reported, I went there to investigate it, there was an auto on the right side of the road and John was in another car on the opposite side of the highway with a clearance between for traffic. John was sitting in his car and the people in the other car were named Holley. I went to John’s car and asked him to get out and stand in front of the car while I searched his car, he was unsteady on his feet. He began to tell me bow to prevent these accidents and be said, ‘Johnnie bad bad several drinks’ and be said ‘you know bow it was,” and I asked him why be was there in that condition, and be said be had been to Grant, and that bis wife bad been driving, I brought him to town.”

He was then asked by the county attorney:

“Q. He said be bad driven from bis place to the scene of the accident. A. Yes, sir. Q. He was under the influence of liquor? A. Yes, sir. By Mr. Jenner (county attorney) : That is all.”

Following the cross-examination the record is as follows:

“By the Court: Q. He admitted be bad several drinks? A. Yes, sir. Q. Do you think he told you the truth about the accident? A. Yes, sir. By Mr. Jenner: State rests.”

In every criminal prosecution the burden rests upon the state of proving the corpus delicti beyond a reasonable doubt.

It is well settled that extrajudicial confessions are those which are made by the defendant out of court, whether to an official or nonofficial person, and such confessions in order to be admitted must be entirely free and voluntary.

Under our Code of Criminal Procedure, Tit. 22, sec. 952, subdivision Sixth, a new trial shall be granted:

“Sixth. When the verdict is contrary to law or evidence.”

In Gorum v. State, 60 Okla. Cr. 248, 63 P. 2d 765, 766, we said:

“Under this, provision the responsibility of determining whether or not there has been adduced before the jury a sufficient amount of legal and competent evidence to render it safe to allow the verdict to stand is imposed on the trial court in the first instance and on appeal upon this court.
“That a crime has actually been committed must necessarily be the foundation of every criminal prosecution, and this must be proved by other testimony than a confession; the confession being admitted merely for the purpose of connecting the accused with the offense charged. . . .
“In Mays v. State, 19 Okla. Cr. 102, 197 P. 1064, 1068, we said:
“This court adheres to the rule that a conviction cannot be had on the extrajudicial confessions of the defendant without independent evidence of the corpus de-licti, and, before such confessions should be admitted, there should be evidence prima facie sufficient to show that the offense to which the confession relates has been committed. * * * In passing upon the evidence submitted to them the jury must first determine beyond a reasonable doubt that the crime has been committed; then they are at liberty to give the alleged confession such weight as it is entitled to, taking into consideration the circumstances surrounding it and the extent to which it has been corroborated.’ ”

In Robinson v. State, 71 Okla. Cr. 75, 108 P. 2d 196, 198, in the opinion we said:

“In every criminal prosecution, it devolves upon the state to prove, first, the corpus delicti; second, that the crime charged was committed by the accused. This court Avill not ordinarily disturb the decision of a trial judge in overruling a demurrer to the evidence, or in denying a motion for a new trial, based upon the insufficiency of the evidence to support the finding of the trial court where a jury has been waived; and it will not do so where the record discloses evidence showing the commission of the offense charged, and from which guilt of the defendant can be fairly inferred; but it will interfere where it clearly appears that the finding of fact and the decision of the trial court have no substantial support, or are clearly without support in the evidence.
“That a crime has actually been committed must necessarily be the foundation of every criminal prosecution, and this must be proved by other testimony than a confession; the confession being admitted merely for the purpose of connecting the accused with the offense charged. . . .
“Extrajudicial confessions of guilt, without proof of the corpus delicti, are insufficient to justify a conviction.
“In 22 C.J.S., Criminal Law, § 839, it is said:
“ ‘It is the general rule both under statutes and at common law that an extrajudicial confession does not warrant a conviction unless it is corroborated by independent evidence of the corpus delicti.’ Citing the following Oklahoma cases: Gorum v. State, 60 Okla. Cr. 248, 63 P. 2d 765; Lake v. State, 59 Okla. Cr. 280, 57 P. 2d 1199; Young v. State, 56 Okla. Cr. 375, 40 P. 2d 686: Bridwell v. State, 52 Okla. Cr. 353, 5 P. 2d 403; Edwards v. State, 46 Okla. Cr. 77, 288 P. 359; Blakemore v. State, 39 Okla. Cr. 355, 265 P. 152; Cherry v. State, 33 Okla. Cr. 37, 241 P. 833; Key v. State, 26 Okla. Cr. 55, 221 P. 1048; Mays v. State, 19 Okla. Cr. 102, 197 P. 1064; Henry v. State, 14 Okla. Cr. 189, 169 P. 658; Shires v. State, 2 Okla. Cr. 89, 99 P. 1100. And see Choate v. State, 12 Okla. Cr. 560, 160 P. 34, L.R.A. 1917A, 1287.”

See, also, Underhill’s Crim. Ev., secs. 240, 241.

In the case of Hamil v. State, 8 Okla. Cr. 119, 126 P. 591, it is held:

“To sustain a conviction of crime, each and every material element must be supported by the evidence.”

In Henry v. State, 14 Okla. Cr. 189, 169 P. 658, it is held:

“In a criminal case a conviction cannot be bad on the extrajudicial confessions of the defendant, without evidence aliunde of the corpus delicti, but direct and positive proof of that fact is not indispensable.”

In the case of Brown v. State, 18. Okla. Cr. 509, 196 P. 967, it is held:

“Where the state relies in part for a conviction on a purported extrajudicial confession of defendant, there must be other proof of the corpus delicti, either direct or circumstantial, before a conviction can be sustained.”

An “admission,” as applied in a criminal case, is a statement by the defendant of a fact or facts pertinent to the issue, but which is of itself insufficient to sustain conviction.

“Admission” admits only some part or some element of the crime charged, but not the guilt, and leaves the rest to be proved by other evidence.

In 22 C. J. S., Criminal Law, sec. 842, p. 1478, it is said:

“Where the state introduces in evidence the confession of accused, it is bound by exculpatory statements contained therein unless they are shown by the evidence to be untrue; but the falsity of such exculpatory statements may be shown by circumstantial as well as by direct evidence.”

It will be noted, that the witness Rhodes stated that the defendant “said he had been to Grant, and that his wife had been driving”. There is no evidence in the record that “Johnnie had had several drinks”, that were of intoxicating liquor. The evidence shows that the witness Rhodes failed to find any signs of intoxicating liquor in searching the defendant’s car, or the person of the defendant; which action on the part of said witness, as an officer, was wholly unauthorized. There is no proof as to what direction the Pontiac car was driven to reach the point where it was fonnd, except witness’ answer to the leading and suggestive question by the county attorney when asked after he said his wife had been driving:

“Q. He said he had driven from his place to the scene of the accident? A. Yes, sir.”

There is no testimony tending to show the location of the defendant’s place.

Outside of the defendant’s purported confession there is an entire absence of evidence that the defendant drove the said car as alleged in the information.

To sustain the allegations of the information, the proof should have shown that the Pontiac 4-Door Sedan car was driven by the defendant, “northward on Highway Number 271, from a point about one mile south of Grant, Oklahoma, to a point about % mile south of said Grant, Choctaw county,” while the defendant was under the influence of intoxicating liquor.

In Green v. State, 7 Okla. Cr. 194, 122 P. 1108, 1109, this court held:

“Where the evidence only raises a mere suspicion of the guilt of the accused, it is insufficient to warrant a conviction; and where it clearly appears that the findings of fact and the decision of the trial court has no substantial support, or is clearly without support in the evidence, the judgment will be reversed.”

In Wheeler v. State, 67 Okla. Cr. 291, 94 P. 2d 9, a conviction for driving an automobile on public highway while under the influence of intoxicating liquor, this court held:

“To sustain a conviction, it should appear that not only the offense was committed, but the evidence inculpating the defendant should do so to a degree of certainty, transcending mere probability or strong suspicion.”

In Kennedy v. State, 76 Okla. Cr. 256, 137 P. 2d 244, a similar case, this court held:

“Where the evidence raises a mere suspicion, or, admitting all that it tends to prove, the defendant’s guilt is left doubtful or dependent upon mere supposition, surmise, or conjecture, the court should advise the jury to return a verdict of acquittal.”

It is a Avell established principle of law that, where a criminal charge is to be proved by circumstantial evidence tending to show defendant’s guilt, if any, the proof ought to be not only consistent with the defendant’s guilt, but inconsistent with any other rational conclusion.

From a careful examination and consideration of the entire record in the case, it appears that the trial judge, as shown by the two final questions propounded by the court, found the defendant guilty upon a mistaken view of the law, in that he based his judgment upon the admissions of the defendant as testified to by the prosecuting witness.

It follows that for the reasons assigned, the judgment appealed from should be reversed.


text:
    E. I. BROWN v. STATE.
    No. A-10499.
    Dec. 12, 1945.
    (164 P. 2d 401.)

      Nolen & Ross, of Okemah, and L. D. Williams, of Henryetta, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and L. A. Wallace, Co. Atty., of Okmulgee, for defendant in error.
   BAREFOOT, P. J.

Defendant, E. I. Brown, was charged in the district court of Okmulgee county with the crime of assault with a sharp and dangerous weapon, to wit: a pocket knife. He was tried, convicted, sentenced to serve a term of two years in the penitentiary, and has appealed.

The defendant was charged with cutting and stabbing one Stanley Szymanski, in Okmulgee county, on August 9, 1943.

Stanley Szymanski and Raymond Christopher were soldiers located at Camp Gruber, in Muskogee county. On August 8, 1943, they left Camp Gruber and went to Henryetta, in Okmulgee county, arriving there about 2 o’clock in the morning, and went to a hotel. They were up about 9 or 9:30 the following morning, and tried to find some beer. They contacted a woman taxi-driver, after they failed to find beer in Henryetta, and she drove them about four miles west of town, to the defendant’s home. There they were invited in by the wife of defendant, and told by defendant that they could get some homebrew. They remained until about noon, when, according to the testimony of the soldiers, they left with defendant and his wife, who took them back to Henry-etta for the purpose of getting some other parties and returning to the home of defendant. This they did, and defendant got several women, and later some men came, and they remained at defendant’s home until late in the afternoon, when some of the guests departed, but the two soldiers did not leave. In the meantime, one of the soldiers had on two different occasions procured a pint of whisky, which was consumed by different members of the party, but mostly by the defendant. The soldiers started to leave about 8 o’clock, but one of them left his hat and they returned to get the hat. Defendant was sitting on the porch, vomiting, and somewhat under the influence of intoxicating liquor. Defendant accused' the prosecuting witness, Stanley Szymanski, of “making eyes,” at, and becoming too familiar with his wife. The defendant was 55 years of age, and his wife 23, and she was his fifth wife. Some argument arose, and the defendant stabbed and slashed Stanley Szymanski in the abdomen with his pocket knife. A portion of his intestines and his appendix protruded from the wound, and the soldier was carried to the hospital in Henryetta, where an operation was performed, his appendix removed, and the protruding intestines placed back' in place. He spent 31 days , in the hospital.

The testimony of the soldiers was that nothing had been, said or done by either of them to the wife of defendant that could have been the cause of defendant’s action in stabbing Szymanski, and that it was caused by his drinking and jealousy. All of the witnesses who had been in the home during the day but had departed before the difficulty, testified that they had not heard nor observed anything on the part of the soldiers that was in any way improper, during the time they were there.

The defendant testified that the witness had his arm around his wife at the time he stabbed him, and his wife testified that he had been “making eyes” at her all during the day, and while the others were present. '

It will thus be observed that the testimony was somewhat conflicting as to minor details. This, of course, was a question for the jury, and they no doubt reached the conclusion that the defendant had become jealous and by reason of his condition, unlawfully stabbed the prosecuting witness. This verdict is binding on this court, and will not be set aside under the law where there is evidence to sustain, as in this case. Grooms v. State, 77 Okla. Cr. 448, 142 P. 2d 862; Orrell v. State, 79 Okla. Cr. 300, 154 P. 2d 779; Wehr v. State, 79 Okla. Cr. 426, 155 P. 2d 731; Salisbury v. State, 80 Okla. Cr. 13, 156 P. 2d 149.

The first assignment of error is that the court admitted the testimony of Stanley Szymanski, which was supposed to have been taken at the preliminary hearing, and was offered by the state at the trial of the defendant in the district court.

The facts with reference to this are that the prosecuting witness was in the hospital at Henryetta at the time of the preliminary hearing. The magistrate and the attorneys for the state and defendant went to the hospital and took his testimony. It was taken by the reporter, transcribed and filed with the court clerk of Okmulgee county. When the case was called for trial in the district court, the witness had been transferred to the hospital at Camp Gruber, in Muskogee county, and the evidence revealed that he was unable to attend. The testimony of Raymond Christopher was: “He is in the hospital at Camp Gruber, Oklahoma, under the doctors’ care; he is not able to be discharged; he is confined to the ward.”

The statute with reference to presenting the testimony of absent witnesses is 22 O. S. 1941 § 762.

Under the facts above stated, we are of the opinion that the court did not err in permitting the evidence of the witness, taken at the preliminary examination, to be read to the jury.

In the case of Pierce v. State, 35 Okla. Cr. 67, 248 P. 654, 655, the court said:

“From these various cases it may be said that the rule is well settled that, where a witness has testified at a former trial, or at a preliminary hearing, and the defendant had an opportunity to cross-examine him, the evidence so given may be read as the evidence of the witness at a subsequent trial where the witness is dead, is out of the jurisdiction of the court, or his whereabouts is unknown, or his presence with due diligence cannot be obtained, or where he is sick and unable-to testify.”

See, also, Houser v. State, 41 Okla. Cr. 129, 271 P. 857.

In view of the fact that counsel for defendant was present at the time of the taking of the testimony and cross-examined the witness, it cannot be said that he was denied the right to be confronted with the witness as guaranteed him by the Constitution of the United States, and of the State of Oklahoma.

If a witness has testified at a former trial, or at a preliminary hearing, and the defendant had an opportunity to cross-examine him, and when the case comes on for trial again it is satisfactorily proven that said witness is dead, or out of the state, or is insane, or that his whereabouts cannot with due diligence be ascertained, or is sick and unable to testify, the testimony of such witness, given upon said former trial, may be proven upon the subsequent trial. And the constitutional provision which guarantees to the defendant the right to be confronted by the witnesses against him, is fully complied with when he has had the right to cross-examine said witnesses at the former trial.

The record in this case does not affirmatively show that the defendant accompanied the magistrate, the court reporter and the attorneys to the hospital where the testimony of the witness Stanley Szymanski was taken. Neither does it show that he did not do so. The presumption is that he was present. Henry v. State, 10 Okla. Cr. 369, 136 P. 982, 52 L.R.A., N.S., 113.

The Sixth Amendment to the Constitution of the United States gives to a defendant the right to be confronted by witnesses against him, but this provision has application to the trial of Fedei'al cases only. Almost all of the states, however, have similar provisions.

It is provided by Art. II, § 20 of the Oklahoma Constitution :

“In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed: * * *. He shall be informed of the nature and cause of the accusation against him and have a copy thereof, and be confronted Avith the witnesses against him, and have compulsory process for obtaining Avit-nesses in his behalf. * * *”

And 22 O. S. 1941 § 13, subdiv. 3, is as follows:

“3. To produce witnesses on his behalf, and to be confronted Avith the Avitnesses against him in the presence of the court.”

This court has on numerous occasions had the construction of the above statute under consideration. In the case of Warren v. State, 6 Okla. Cr. 1, 115 P. 812, 34 L.R.A., N.S., 1121, Judge Furman has fully discussed the question of one being “confronted” by the witnesses against him, and many authorities are cited bearing upon this exact question, among them being: 2 Wigmore on Evidence, § 1895, and Underhill on Criminal Evidence (2d Ed.) § 265. It is unnecessary to quote from this or other decisions. The main and essential purpose of confrontation is to secure the right of cross-examination. This right was given in the instant case, and defendant’s counsel fully and ably cross-examined the Avitness, and this cross-examination was read to the jury as was the direct examination. Williams v. State, 42 Okla. Cr. 399, 276 P. 515; Foster v. State, 35 Okla. Cr. 70, 248 P. 847; Mendenhall v. United States, 6 Okla. Cr. 436, 119 P. 594; Stealer v. State, 10 Okla. Cr. 460, 138 P. 395; Bryant v. State, 33 Okla. Cr. 283, 244 P. 453.

For the reasons stated, the judgment of the district court of Okmulgee county is affirmed.