text:
    VAUGHN HENSLEY v. STATE.
    No. A-9609.
    April 4, 1940.
    (101 P. 2d 279.)
    W. H. Cooper, of Anadarko, and J. F. Boettcher, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant Vaughn Hensley was jointly charged with his brother, Howard Hensley, with the offense of larceny of domestic animals in the district court of Caddo county, was separately tried, convicted and sentenced to serve a term of two- years in the state penitentiary, and has appealed to this court.

The chief contention urged by the defendant for the reversal of this case is that the evidence is insufficient to support the verdict of conviction of this defendant.

We have held in many cases that where the evidence and reasonable and logical inferences to- be drawn therefrom are sufficient to' convince the jury beyond a reasonable doubt of the guilt of the defendant, this court will not disturb the verdict on account of the insufficiency of the evidence. Pickett v. State, 85 Okla. Cr. 60, 248 P. 352; Clemmer v. State, 56 Okla. Cr. 354, 40 P. 2d 37; Goodnight v. State, 62 Okla. Cr. 382, 71 P. 2d 789.

The state proved herein that on the night of March 11, 1938, two- cows were stolen from the pen of the prosecuting witness J. F. Winchester while he and his family were away from home. That the next day, after the disappearance of the animals had been discovered, the tracks of the cows and the footprints of two men were found and trailed for some distance through the farm of the prosecuting witness, across two' other farms, to a place to where it appeared that the cows had been tied up for sometime before being loaded into a truck. The tracks made by the casings on the truck were observed and measurements thereof made. The search of the trucks in the neighborhood disclosed that the defendant owned a Ford V-8 pick up with casings similar in tread to the truck in which the cows were loaded. The defendant had lived on the farm adjoining the farm of the prosecuting witness the year before, but at the time of the alleged offense was living about two miles away from the prosecuting witness.

A search was commenced to try to find the stolen cattle. One of the cows was found in a wheat field near Geary, Okla., and one of them in the stockyards at Oklahoma. City. The testimony disclosed that the cows were purchased by Mr. Burk and Mr. Irwin at Chickasha early on Saturday morning, March 12th. They identified Howard Hensley, brother of the defendant, as the person from whom they purchased the cows, and stated that he came to them by himself to make the sale.

The nightwatchman at the fair grounds at Chickasha testified that on the night the cattle were stolen, two men came and unloaded the two cows which were later sold to Mr. Burk and Mr. Irwin, and that they were using a pick-up automobile.

Albert Hinkey testified that he lived in the neighborhood, about four miles from the prosecuting, witness Winchester; that he has known the defendant Yaughn Hensley ever since he was a baby; that on the morning after the night in which the cows were stolen, about 8 o’clock, he saw the defendant by himself in his Ford Y-8 pick-up going towards his home and coming from the east from the direction of Chickasha. This witness was positive in his identification, and stated that he spoke to the defendant at that time.

James Carroll testified for the state that on Saturday, March 12th, about 3 or 4 o’clock in the afternoon, the defendant came to his place to buy a ton of hay and paid him with a $5 bill and three $1 bills. That he noticed in the pick-up driven by the defendant there was quite a bit of fresh manure. His attention was called to it on account of having to put the hay in the truck while it was in such a filty condition.

The defendant in his own behalf testified that on the night the cows were stolen, he had sat up all night at his home with a three year old daughter, who had been poisoned, giving her medicine every two hours. That his brother, Howard Hensley, came to his house that night and borrowed his Ford pick-up and that he brought it back about 8 o’clock the next morning. He denied any knowledge of what the brother did with the car; and specifically denied seeing Albert Hinkey as testified to by Hinkey but did admit going over to1 Carroll’s and buying a ton of hay on Saturday afternoon.

The defendant was supported in his testimony concerning the alibi by his cousin, Woodrow McBride, and Roy Keel, wlm stated that they remained at the defendant’s house all night with him, administering to the baby.

Horace Blevins testified that he came over to the defendant’s place early on the morning of the 12th and that the defendant, his wife, and Woodrow McBride were there; that he drove into town with the defendant and his family that morning.

Howard Hensley, brother of the defendant and jointly charged with the offense herein, testified in behalf of the defendant. His evidence showed that he had entered his plea of guilty to this charge and was sentenced to serve a term of two> years in the state penitentiary. He testified that he borrowed the defendant’s pick-up and that he, together with a man by the name of Williams, took the cows from Winchester’s pen and took them to Chick-asha, and that he sold them. That he had met Williams in 1935 when he was working on the highway. He hadn’t seen him very often after they first met, but he had seen him on Wednesday before they had gotten the cattle on Friday night. He did not remember William’s given name, but said he was called “¡Slim,” and did not know where he was living at this time.

On cross-examination he admitted that he had never at any time before the date of the trial told any one that a man by the name of Williams had helped in the larceny. That he did not know a single man in the community that knew Williams.

No proof was introduced showing that anybody else knew of this man Williams; and it is apparent to this court from the evidence herein that he is a fictitious character injected into this case by Howard Hensley to try to save the defendant herein from being convicted of this charge.

It is significant in connection with the alibi presented by the defendant that the doctor that the defendant claimed treated his child and the druggist who filled the prescription for the medicine given the child were not called as witnesses and no effort was made to secure their attendance nor to explain their absence. Either of these men would probably have a record of the date of the child’s ailment, and their testimony would have been given great weight by the jury.

Alibis may generally be classed as falling into one of three groups:

(1) Where the facts detailed by the defendant and his witnesses are true and conclusively show the defendant was at another and different place at the time of the commission of the alleged offense.

(2) Where the facts and dates related are wholly fictitious.

(3) Where the facts and circumstances detailed by the witnesses are true, but for the purpose of the alibi they have been transposed from one date to another.

We think the alibi of the defendant herein falls into the third group. There appears to be no question that at about the time of the alleged offense herein, the child of the defendant was sick as related by the witnesses, but the fixing of the date of the ailment at which the defendant and all the parties sat up all night with the girl is unsatisfactory. The defendant’s story, if true, could easily have been sustained by the records of the doctor or the pharmacist who filled the medical prescription. The question of alibi was presented to the jury under proper instructions, and they have seen fit by their verdict to find against the defendant on that issue.

It was the theory of the state that after the two brothers had taken the cows to Chickasha, the defendant returned to- his home in the truck while his brother hitchhiked from Chickasha to Anadarko. Howard Hensley admitted being in Anadarko about 9 or 9:30 Saturday morning, but stated that he returned the truck to the defendant’s place and then hitch-hiked from the defendant’s home to Anadarko.

While the evidence against the defendant was wholly circumstantial, it is sufficient to support the verdict of guilty. The case was submitted to the jury under proper instructions on circumstantial evidence and the alibi of the defendant. No complaint is made as to the instructions herein. We have carefully examined the same and find that they fully and fairly presented the issues to the jury.

The judgment is accordingly affirmed.

DOYLE, P. J., and BAREFOOT, J., concur.


source: Caselaw Access Project

author: PEE CUEIAM.

license: Public Domain

text:
    Ex parte ROBERT H. DENTON.
    No. A-9833.
    April 4, 1940.
    (101 P. 2d 276.)

      Eobert H. Denton in pro; per.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   PEE CUEIAM.

This is an application for discharge from imprisonment in the penitentiary by writ of habeas corpus on the part of Eobert H. Denton.

Petitioner was convicted of murder in the district court of Oklahoma county. On appeal to this court, duly perfected, the judgment was affirmed. Denton v. State, 58 Okla. Cr. 275, 53 P. 2d 1136, 1140.

On rehearing the court said:

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

The petitioner here contends:

“That the commutation is a change of sentence, that a change of sentence involves imposition of another sentence and constitutes a violation of statutes designed to protect rights of the defendant whose sanity has been made an issue and is in doubt.
“And further contends that the Governor’s office erred in commutation of sentence, that the error constituted a violation of defendant’s rights as defined by Oklahoma statutes, and was a violation of such statutes.
“That the Governor’s action imposed a sentence far more severe, far more rigorous (when defendant’s mental condition is considered), than the original penalty of death imposed by the jury in the case of State v. Denton.
“The defendant contends that the only legal clemency the Governor can grant on grounds of insanity, or where defendant’s sanity is at issue and is in doubt, is a full pardon, similar to- the action of a jury, which is instructed to, and required to acquit defendant when an insanity plea is offered and substantiated to a jury’s satisfaction in any criminal case.
“The defendant respectfully submits that six full years of a life sentence have been served, that this time is equivalent to- eleven years of penal servitude when allowance for a first-class prison record is made in accordance with prison rules and that this writ and appeal were- filed as soon as defendant’s mental condition permitted full realization of his legal status. The defendant calls the court’s attention to- the fact he was transferred to the Western Oklahoma Hospital at Supply, was given the insulin shock treatment for dementia praeeox, and was at the Western Oklahoma Hospital for a period of approximately three years. State psychiatrists cannot pronounce defendant sane even now and it is very likely that defendant’s mental ailment will require his return to a state hospital at'intervals for the remainder of his life.
“Defendant’s primary purpose, in seeking a release from this illegally imposed sentence, is to return to the Western Oklahoma Hospital or some other mental institution for further care and treatment necessary to return to complete normalcy, and forestall a possibly impending relapse.
“The petitioner, Robert H. Denton, acting in his own behalf, believes that an injustice has been done and respectfully asks that the appellate court issue a mandate ordering his unconditional release from a prison sentence at the state penitentiary at McAlester, Okla.”

Which application was duly verified by petitioner.

To this application the Attorney General filed a general demurrer on the ground that the allegations therein were not sufficient to show that petitioner was entitled to have the writ of habeas corpus issue, and that the same does not state facts sufficient to entitle petitioner to any relief. Citing Ex parte Ridley, 3 Okla. Cr. 350, 106 P. 549, 26 L.R.A., N.S., 110; Ex parte Warren, 39 Okla. Cr. 348, 265 P. 656; Biddle v. Perovich, 274 U. S. 480, 47 ,S.. Ct. 664, 71 L. Ed. 1161, 52 A.L.R. 832.

It is the well-settled general rule that, where the facts alleged in a petition for a writ of habeas corpus, if established, would not warrant a discharge of the petitioner, the writ will be denied.

In Ex parte Ridley, 3 Okla. Cr. 350, 106 P. 549, 551, 26 L.R.A. (N.S.) 110, it is said:

“Under our Constitution the pardoning power is vested exclusively in the Governor of the state, and any law which restricted this power would be unconstitutional and void. The co-ordinate departments of the government have nothing to- do with the.pardoning power, except that the Legislature may by law provide how applications may be made, and is entitled to a report at each regular session of the action taken. * * *
“The power conferred by section 10 [article 6] of the Constitution is practically unrestricted, and the exercise of executive clemency is a matter of discretion. It cannot, however, be treated as a privilege. It is as much an official duty as any other act. It is vested in the Governor, not for the benefit of the convict only, but for the welfare of the people, who may properly insist upon the performance of that duty by him if a pardon or parole is to be granted.”

In Ex parte Jones, 25 Okla. Cr. 847, 220 Pa. 978, 979, we said:

“The Constitution deals with the pardoning power not as a prerogative claimed by divine right, but as an adjunct to the administration of justice, recognized in all civilized governments as necessary by reason of the fallibility of human laws and human tribunals. * * * The indiscriminate exercise of the pardoning power is a blow at law and order, and is an additional hardship upon society in its irrepressible conflict with crime and criminals.”

In Ex parte Horine, 11 Okla. Cr. 517, 148 P. 825, L.R.A. 1915F 548, the court held:

“The Governor of the state has the power to annex to a pardon or parole any condition precedent or subsequent, provided it be not illegal, immoral, or impossible to' be performed.”

In Ex parte Warren, supra, the court held:

“A commutation of sentence is a substitution of a less for a greater punishment, and the commuted sentence is the only one in existence, and the sentence has the same legal effect, and the status of the prisoner is the same, as though the sentence had originally been for the commuted term.”

In the case of Biddle v. Perovich, supra, the Supreme Court of the United States held:

“The consent of a convict is not necessary to the commutation of his sentence of death to imprisonment for life.”

And:

“The constitutional power of the President to grant reprieves and pardons for offenses against the United States extends to the commuting of a sentence of death for murder to imprisonment for life.”

Mr. Justice Holmes, speaking for the court, said:

“We will not go into history, but we will say a word about the principles of pardons in the law of the United States. A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed. See Ex parte Grossman, 267 U. S. 87, 120, 121, 45 S. Ct. 332, 69 L. Ed. 527 [535], 38 A. L. R. 131. Just as the original punishment would be imposed without regard to the prisoner’s consent and in the teeth of his will, whether he liked it or not, the public welfare, not his consent, determines what shall be done. - So far as a pardon legitimately cuts down a penalty it affects the judgment imposing it. No one doubts that a reduction of the term of an imprisonment or the amount of a fine would limit the sentence effectively on the one side and on the other would leave the reduced term or fine valid and to be enforced, and that the convict’s consent is not required.
“When we come to the commutation of death to imprisonment for life it is hard to see how consent has any more to do with it than it has in the cases first put. Supposing that Perovich did not accept the change, he could not have got himself hanged against the executive order. Supposing that he did accept, he could not affect the judgment to be carried out. The considerations that led to the modification had nothing to do with his will. The only question is whether the substituted punishment was authorized by law — here, whether the charge is within the scope of the words of the Constitution, article 2, § 2: ‘The President * * * shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.’ We cannot doubt that the power extends to this case. By common understanding imprisonment for life is a less penalty than death.”

We may remark here that the words of the State Constitution, art. 6, § 10, Okla. St. Ann., that “The Governor shall have power to grant, after conviction, reprieves, commutations, paroles, and pardons for all offenses, except cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper, subject to such regulations as may be prescribed by law,” are much broader than the words of the Federal Constitution as above quoted, art. 2, § 2.

A “commutation” is the change of punishment to a less severe one, or the substitution of a less for a greater penalty or punishment, and the commuted sentence has the same legal effect, and the status of the prisoner is the same.

It follows from the foregoing authorities and what has been said that the application is insufficient to show that the petitioner is entitled to have the writ issue, or a rule entered to show cause why the writ should not issue, the demurrer thereto is therefor sustained.

For the reasons stated, the writ of habeas corpus should be denied. It is so ordered.


author: BABEFOOT, J.

text:
    SAMMY KUTZ v. STATE.
    No. A-9645.
    April 4, 1940.
    (101 P. 2d 268.)

      Willis B. Stark, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Lewis B. Morris, Co. Atty., and Phil E. Daugherty, Asst. Co. Atty., both of Oklahoma City, for the .State.
   BABEFOOT, J.

The defendant, Sammy Kutz, was charged in the court of common pleas of Oklahoma county with the crime of having unlawful possession of intoxicating liquor; was tried, convicted, and sentenced to pay a fine of $250, and serve a term of six months in the county jail of Oklahoma county, and has appealed.

Prom a reading, of the record in this case, and the assignments of error, it is only necessary to consider one of the assignments.

The evidence reveals that the defendant, Sammy Kutz, was proprietor, and was operating a place known as the “Mistletoe Tavern”, at 30th street and South Eastern avenue, in Oklahoma City. On the 21st day of August, 1938, four deputy sheriffs of Oklahoma county went to this place of business of defendant and searched the same; two of the officers going to the back entrance and the other two entering the front door. The officers found a box in one of the back rooms and requested defendant to turn over the key and unlock the same, and when he did so there was found therein 58 pints of tax-paid liquor.

The officers who made this search were experienced officers, they were acquainted with the premises to be searched, and some of them had searched it many times prior thereto. They went directly to the place for the purpose of searching the same, yet knowing the premises, and knowing that they intended to search it, they made no attempt to procure a search warrant, as the law required, hut this search was made wholly without a search warrant. The framers of the Constitution of the United States, and of this state, and the Legislature of this state, may have made a mistake when they wrote it into the Constitution and laws that it was necessary to secure a search warrant before the premises of a citizen could be searched, but they wrote it there as a result of the sound experience of the ages, and it was written there, not only for the protection of the citizens of this country that they might be secure in their homes and places of business, but also for the protection of the officer wlm conducted the search. A search such as this gives the officer the benefit of the local advertisement that he made a search and found the whisky, but it is in straight defiance of the law, and a burden upon the taxpayers of the county in the prosecution of the same.

This court, from the time of its existence to- the present time, and in common with the decisions of the Supreme Court of the United States, and all other states, has held that a search of the premises, under conditions as here existed, cannot be made without the securing of a search warrant.

The Constitution of the United States, Oklahoma Statutes Annotated, Constitution, Amend, article IV, provides :

“The right of the people to- be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and m> warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing, tbe place to be searched, and the persons or things to- be seized.”

The Constitution of Oklahoma, Okla. Stats. Anno. Constitution, article II, section 30, is in identical terms.

The Legislature of this state has provided the grounds upon which search warrants may be issued. Okla. ¡Stats. 1931, secs. 3222, 2635, 22 Okla. St. Ann. § 1222, and 37 Okla. St. Ann. § 84. This court did not enact these constitutional and statutory provisions. It is our duty, under our oaths, to enforce them the same as the other provisions of the Constitution and statutes. There is nothing which permits a peace officer to violate its positive terms, and when he does so he is not only violating his duty and oath of office, but he is throwing his county into useless and unnecessary expense under the guise that he is enforcing the law. His excuse to the public that he can-) not enforce the law by reason of “technical, decisions”^ of the courts may meet with public favor, but should be" of little comfort to his own conscience. These decisions! are not technical, but are based upon positive provisions| of the Constitution and statutes, which are the result of' the thought and. wisdom of the best minds of the ages. They are for the protection of the citizens of this state, and although by their terms some guilty person may escape, they stand as the bulwark and defense to the innocent, against the unwarranted search and seizure of their property by those who would not, or do not, desire or care to’ comply with the positive terms of the Constitution and statutes of this state.

In the case of Hess v. State, 84 Okla. 73, 202 P. 310, 314, in a decision by Judge Kennamer, who is now a federal district judge for the Northern District of Oklahoma, said:

“In the case of People v. Marxhausen, 204 Mich. 559, 171 N.W. 557, 3 A.L.R. 1505, the Supreme Court of Michigan had before it a case where the officers went to the premises of Marxhausen without a search warrant, searched his house, and secured a quantity of liquor, which liquor was carried to a county building, and stored. Marxhausen was prosecuted for a violation of the liquor laws, and before the case came on for trial moved the court to quash the prosecution against him and return the liquor that had been seized. The motions were sustained by the court, and the prosecution appealed. In affirming the action of the trial court the court said:
“ ‘These officers had no1 search warrant issued upon oath or affirmation; no> search warrant of any kind. They entered the home of defendant by command of no court; they searched his premises by virtue of no process. They justify, if at all, v under administrative will and mandate not recognized by the Constitution, and unauthorized in a government of laws. That “the end justifies the means” is a, doctrine which has not found lodgment in the archives of this court. The search and seizure detailed in this record was an unauthorized trespass and an invasion of the constitutional rights of this defendant. These rights of the individual in his person and property should be held sacred, and any attempt to fritter them away, under the guise of enforcing drastic sumptuary legislation (no matter how beneficial to the people it may be claimed to be), must meet with the clear and earnest disapproval of the courts.’ * * *
“In the case of Amos v. United States, 255 U. S. 313, [316], 41 S. Ct. 266, 65 L. Ed. [654], the Supreme Court of the United States in the first syllabus [paragraph] announced the following rule of law:
“ ‘Property seized in the search of a private home by government agents without warrant of any kind, in plain violation of Const. U. S. Amends. 4 and 5, should have been returned to the owner on his petition, presented by him after the jury in a criminal prosecution against him was impaneled, but before any evidence was offered.’
“It appears to- us that it would place the courts organized and established for the purpose of enforcing the laws of the state in a most ridiculous position to permit a judgment or decree to stand, the very foundation of which is based upon a violation of the law and a disregard for the constitutional protection guaranteed to' every citizen within the state.
“Can it be maintained that a citizen may be deprived of his property by a proceeding which has had its inception in an open and flagrant violation of the laws of the state by a sworn officer, whose duty it is to uphold and enforce the law?
“Can it be said that constitutional government any longer exists in this country if the citizen and his property are subject to seizure at any moment’s time without the authority or mandate of any court, but merely upon the initiative and authority of an officer acting without the authority or process of any court? In the case of Youman v. Commonwealth, supra [189 Ky. 152, 224 S.W. 860, 13 A.L.R. 1303], we desire to direct attention to the able and pertinent statement of Chief Justice Carroll of the Supreme Court of Kentucky, which is as follows:
“ ‘On these facts the question presented is: Will courts established to administer justice and enforce the laws of the state receive, over the objection of the accused, evidence offered by the prosecution that was admittedly obtained by a public officer in deliberate disregard of law for the purpose of securing the conviction of an alleged offender? In other words, will courts authorize and encourage public officers to violate the law, and close their eyes to methods that must inevitably bring the law into disrepute in order that an accused may be found guilty? Will a high court of the state say, in effect, to one of its officers that the Constitution of the state prohibits a search of the premises of a person without a search warrant, but if you can obtain evidence against the accused by so doing you may go to his premises, break open the doors of his house and search it in his absence, or over his protest if present, and this court will permit the evidence so secured to go to the jury to secure his conviction?
“ ‘It seems to us that a practice like this would do infinitely more harm than good in the administration of justice; that it would surely create in the minds of the people the belief that courts had no' respect for the Constitution or laws, when respect interfered with the ends desired to be accomplished. We cannot give our approval to a practice like this. It is much better that a guilty individual should escape punishment than that a court of justice should put aside a vital, fundamental principle of the law in order to secure his conviction. In the exercise of their great powers courts have no higher duty to perform than those involving the protection of the citizen in the civil rights guaranteed to him by the Constitution, and if at any time the protection of these rights should delay or even defeat the ends of justice in the particular case, it is better for the public good that this should happen than that a great constitutional mandate should be nullified. It is trifling with the importance of the question to say, as some courts have said, that the injured party has his cause of action against the officer, and this should be sufficient satisfaction. Perhaps, so far as the rights of the individual are concerned, this might answer; but it does not meet the demands of the law-abiding public, who are more interested in the preservation of fundamental principles than they are in the punishment of some petty offender.’ ”

There are certain well-defined exceptions as to when a search can be made without the necessity of a search warrant, but the facts in this case do not come within those well-defined exceptions. The officers making this search should have, and surely did, know of these decisions. The court and the assistant county attorney were familiar1 with the same, and the court should have sustained a demurrer to the evidence in this case. Aside from a failure to secure the search warrant, the court permitted the officers, while testifying, to say:

“Q. And what business was he engaged in at the time you went there? A. Running this Mistletoe Tavern; it is a beer joint and bootlegging joint. * * * Q. Yes, tell us what he used it for on that day, if you know? A. Well, that is where everybody buys whisky in that end of town.”

An objection was made as not being responsive and prejudicial to defendant. The court overruled this objection and permitted it to go to the jury. On other occasions objections to questions and answers such as this were made in the presence of the jury. On some occasions objections to them were sustained, on other occasions they were overruled. Evidence of this character is clearly inadmissible under the holdings of this court. Notwithstanding the fact that the officers did not have a search warrant it would be necessary to reverse this case by reason of the introduction of this evidence over the objection of defendant.

■ In this case the evidence clearly shows that defendant was engaged in the liquor business. Had the officers made any effort to' comply with the settled law of this state, as written in the Constitution and statutes, it would not be necessary to reverse the same, but it would be affirmed, and the defendant forced to suffer the punishment which he deserved for a violation of the law. But no matter how guilty, under our system of government, he is entitled to' a fair and impartial trial as guaranteed under the Constitution and laws of this state. This he did not receive.

For the reasons above stated, the judgment of the court of common pleas of Oklahoma county is reversed, and the defendant ordered discharged.

BOYLE, P. J., and JONES, J., concur.


author: BAREFOOT, J.

text:
    Ex parte RICHARD GREEN.
    No. A-9829.
    April 11, 1940.
    (101 P. 2d 641.)
    H. J. Mackey, of Oklahoma City, for petitioner.
    Mac Q. Williamson, At-ty. Gen., and Granville Scan-land, of Oklahoma City, for the State.
   BAREFOOT, J.

The petitioner, Richard Green, was arrested by a policeman of Oklahoma City upon two charges. The first for the unlawful possession of intoxicating liquor, and the second for the breaking of glass upon the streets of said city.

He was prosecuted upon two' complaints, Nos. 12558 and 12559, filed before the police judge of Oklahoma City. When his cases were called for trial he entered a plea of not guilty in No. 12558, and upon trial was found guilty and the court assessed a fine of $15, and $1 costs. In No. 12559 he entered a plea of guilty, and was fined $10 and $1 costs, and in default of fines and costs he was by proper commitments delivered to the chief of police of Oklahoma City for detention until said fine and costs were paid.

On March 30, 1940, petitioner, after having been denied a writ of habeas corpus in the district court of Oklahoma county, filed an application for a writ in this court, alleging that his restraint is unlawful and void, for the following reasons:

“1. That the two complaints in said cases 12558 and 12559, police court of Oklahoma City, Oklahoma, are signed by one N. Baker; that the said N. Baker did not swear to said complaints before said Merrel Siler, as by said complaints shown, and that said complaints do not speak the truth;
“2. That no commitments were issued to the said Frank Smith, chief of police in and for said Oklahoma -City, Oklahoma, as required by law, that there are two purported commitments issued in said cases, but said commitments do not speak the truth and are false and fraudulent; and
“3. That the complaints in said two cases, 12558 and 12559, do not state facts sufficient to charge petitioner with any crime under the Ordinances of said Oklahoma City, Oklahoma.”

Upon the filing of his petition in this court the same was denied but a rule to show cause was granted. A response was filed on behalf of the chief of police of Oklahoma City in which he stated his reasons for the detention of petitioner as above set forth, and stated that the time for his release by the terms of the commitments had not expired. At the hearing before this court the petitioner offered oral evidence, and among those testifying were Judge Merrel Siler, police judge of Oklahoma City.

By section 3328, Okla. Stats. 1931, 39 Okla. St. Ann. § 494, it is provided:

“All proceedings and actions before a county or justice court for a public offense of which such courts have jurisdiction, must be commenced by complaint, under oath setting forth the offense charged with such particulars of time, place, persons and property as to enable the defendant to' understand distinctly the character of the offense complained of, and to answer the complaint. The complaint, if found insufficient, may be amended to any extent necessary to conform to the facts proven. * * *”

In the case of Ex parte Bochmann, 20 Okla. Cr. 78, 201 P. 537, 541, this court holds: “* * * That in all cases involving a penalty for the violation of a municipal ordinance, pending before a municipal judge, prosecutions should be predicated and maintained upon a verified written complaint.” This decision is based upon section 17, of the Bill of Rights, Okla. St. Ann. Const., which provides : “Prosecutions may be instituted in courts not of record upon a duly verified complaint.” But this court has also held that this and similar provisions of the Constitution and statutes, which were intended for the personal security and liberty of the individual, by the forbidding of the issuance of a warrant for his arrest except upon probable cause upon oath, and by preventing as far as possible the institution of baseless and unfounded prosecutions, may be waived.

In the case of In re Talley, 4 Okla. Cr. 398, 112 P. 36, 37, 31 L.R.A., N.S., 805, this court, in a very elaborate opinion, said:

“The verification is no part of the information itself; and an unverified information charging an offense in proper and intelligible language, signed by the county attorney and filed in a court having jurisdiction of the offense charged, though insufficient ito authorize the issuance of a warrant- of arrest, if not properly challenged is sufficient for all other purposes. The requirement that the information be verified being for the personal benefit of the defendant we see no reason why he may not waive it if he desires; and if he submits himself to- the jurisdiction of the court, either by voluntarily appearing and answering the information or by failing to move to quash the same when arrested and brought up for arraignment, he thereby waives the defect. There are many rights vouchsafed an accused by our Constitution and laws which may be waived, and many of them have reference to the form of the accusation and the manner of its presentment. Thus it is provided by section 6738, Snyder’s Comp. Laws [22 Okla. St. Ann. § 493 et seq.j, that an indictment must be set aside when it is not found, indorsed, presented, or filed as prescribed by the statutes of the state; but the section following provides that, if the motion to set aside the indictment on that ground be not made, the defendant is precluded from afterwards making the objection; and it- seems to us that this provision is also applicable to informations. It is so held by the courts of practically all the states where prosecutions by informations are authorized. Kansas has in effect the same constitutional and statutory provisions that Ave have, and it is held in that state that the verification of an information must be made in positive terms and not on information and belief; but the Supreme Court of Kansas held, in State v. Otey, 7 Kan. 69, that the objection that an information is not properly verified is waived by pleading to the merits and going to trial. The same court reaffirmed that holding in a subsequent opinion by Justice Brewer in State v. Adams, 20 Kan. 311; and later in State v. Ruth, 21 Kan. 583, Justice Brewer said: ‘It is alleged that the information was insufficient for lack of a proper verification. The verification was defective, but the defect was waived by the defendant’s pleading to the merits and going to trial.’ ”

See, also, In re Cummings, 11 Okla. 286, 66 P. 332; Steiner v. State, 33 Okla. Cr. 298, 243 P. 1002; Christian v. State, 49 Okla. Cr. 16, 292 P. 876; State v. Blackman, 32 Kan. 615, 5 P. 173; State v. Longton, 35 Kan. 375, 11 P. 163; State v. Ellvin, 51 Kan. 784, 33 P. 547; State v. Barr, 54 Kan. 230, 38 P. 289; State v. Osborn 54 Kan. 473, 38 P. 572; Hodgkins v. State, 36 Neb. 160, 54 N.W. 86; State v. Montgomery, 181 Mo. 19, 79 S.W. 693, 67 L.R.A. 343, 2 Ann. Cas. 261; State v. Brown, 181 Mo. 192, 79 S.W. 1111.

We have examined the cases of Bowen v. State, 5 Okla. Cr. 605, 115 P. 376, and Fullingim v. State, 7 Okla. Cr. 333, 123 P. 558, and the opinions rendered in those cases are no way in conflict with the principle here announced. They are in fact in full accord with the principle above stated. In both of those cases motions were properly made to set aside the warrant of arrest. These motions were overruled and the defendant excepted. He was then placed on trial. In the instant case defendant did not file a motion to set aside the warrant of arrest, but in one of his cases entered a plea of not guilty, was tried and convicted. In the other he entered his plea of guilty and in each was sentenced to serve a term and pay the costs. His application for a writ of habeas corpus was filed after his conviction and plea of guilty. We are of the opinion that, under the facts as above stated, he waived any right he might have had by failing to file a motion to set aside the warrant of arrest and entering his plea of not guilty in one case and his plea of guilty in the other. If these objections had been made at the time of his trial, the city would have had the right to correct the error, if any, that might have existed in the complaint, but if the defendant can raise this issue on a writ of habeas corpus, as attempted here, there would be no chance to correct any error that might exist.

The writ of habeas corpus is not designed for the correction of errors or mere irregularities, and cannot be substituted for an appeal or writ of error. And where a petitioner is imprisoned under a judgment of conviction for crime, unless the court was without jurisdiction to render the particular judgment, and the judgment is void and not merely voidable, relief cannot be had by habeas corpus, however numerous and gross may have been the errors committed during the trial or in the proceedings preliminary thereto. In re Talley, 4 Okla. Cr. 398, 112 P. 36, 31 L.R.A., N.S., 805, and cases therein cited.

In this case the evidence of the police judge revealed that it was the practice in the police court of Oklahoma City for the police judge to sign affidavits to complaints in blank and the police officer making the arrest would sign the complaint and affidavit and especially was this true when arrests were made at night when the police judge was not present. That when the defendant appeared before the court on the following morning for trial, the prosecuting witness who signed the complaint and affidavit was asked, “If the statements made in the complaint were true.” We are not holding that this procedure is insufficient, but suggest it would be better practice for the prosecuting witness to be brought before the police judge and sworn to the complaint prior to the time of trial.

For the reasons above stated, we are of the opinion that the petitioner is not entitled to the writ, and it is, therefore, denied, and he is remanded to the custody of the chief of police of Oklahoma City to be held by him until discharged in the manner provided by law.

DOYLE, P. J., and JONES, J., concur.


text:
    JUG DRAKE v. STATE.
    No. A-9700.
    April 11, 1940.
    (101 P. 2d 651.)
    Durward F. Mathis, of Frederick, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Haskell A. Holloman, Co. Atty., of Frederick, for the State.
   BAREFOOT, J.

The defendant, Jug Drake, was charged in the district court of Tillman county with the crime of selling intoxicating liquor, and as a second offender; was tried, convicted and sentenced to serve a term of one year1 in the penitentiary, and pay a fine of $100, and has appealed.

The first assignment of error is: The error of the trial court in overruling the demurrer to the information.

The information, after alleging the prior offense, stated: “* * * on or about the 24th day of February, 1939, * * * the said Jug Drake * * * did then and there knowingly, willfully, unlawfully and feloniously sell certain intoxicating liquor to wit: one-half gallon of whisky to one Buddy Lynch.” It is contended that the information is insufficient in that it does not allege the exact time and place of the sale of the whisky or the details of the transaction. To support this contention counsel for defendant relies upon the cases of Abrams v. State, 13 Okla. Cr. 11, 161 P. 331; Killough v. State, 16 Okla. Cr. 317, 183 P. 430. A careful reading of these cases will reveal a different state of facts than are here presented. •The first case does not involve a violation of the prohibition laws. Cases which are more nearly in point with the issue here involved, and which sustain the allegations of the information in this case, are: Star v. State, 9 Okla. Cr. 210, 131 P. 542; Castleberry v. State, 10 Okla. Cr. 504, 139 P. 132; Irvin v. State, 15 Okla. Cr. 260, 176 P. 83; Ealum v. State, 32 Okla. Cr. 197, 239 P. 933; State v. Zanger, 9 Okla. Cr. 122, 130 P. 1107; Antonelli v. State, 3 Okla. Cr. 580, 107 P. 951; Gravitt v. State, 44 Okla. Cr. 45, 279 P. 968; Pruitt v. State, 44 Okla. Cr. 81, 279 P. 971. From a reading of the above cases, it will be seen that under the holdings of this court the allegations of the information were sufficient and the court did not err in overruling the demurrer thereto:

It is next urged that the evidence was insufficient, and the court erred in overruling the motion of defend ant for a directed verdict.

The evidence revealed that Leroy Lynch, whose nickname was “Buddy” Lynch, was seen driving' on the highway near Frederick by the county attorney of Tillman county. He turned his car around and stopped upon the highway, and in a few minutes defendant, who was well known to- the county attorney, was seen driving a car at a high rate of speed toward where the car of Buddy Lynch was parked. He had another party in the car ivith him. They were followed by the county attorney, who saw them drive up opposite the parked car and the party Avho was in the car with defendant handed Buddy Lynch a package, and Buddy Lynch handed him something in return. The car of defendant quickly drove away, but the car of Buddy Lynch Avas overtaken by the county attorney, who being refused permission to search the car, got in the same and drove with the said Buddy Lynch into the city of Frederick, where he procured a search warrant and the sheriff found a one-half gallon jar of whisky on the seat of the automobile. Defendant Avas charged AAdth the sale of whisky to- Buddy Lynch, and Buddy Lynch testified as a witness- for the state at the time of the trial.

He testified he knew the defendant, Jug Drake, and that on the 24th day of February, 1939, he drove out to a filling station in the west edge- of Frederick; that he inquired for defendant, whom he knew; that he told them he wanted to- get some liquor; that defendant was not present Avhen he- first got there, but soon drove up, and he asked him about getting some liquor, and defendant asked him “to- come out on 14, by the old dump grounds”; that he went out there and stopped his car and defendant came out in a car and had another party with him, and defendant drove up by his car and the other party handed him a package containing a half gallon of whisky and he gave him $2 in money; that defendant immediately drove away, and the county attorney of Tillman county drove up and arrested him as above stated.

The defendant did not take the witness stand, and did not offer any evidence. Under these facts it cannot be held that the evidence was insufficient to sustain the verdict. The court properly instructed the jury, and they found defendant guilty. The contention that there was no evidence that the package in the car contained whisky and that the evidence merely created a suspicion, cannot be upheld. The one-half gallon of whisky was offered in evidence, and the evidence was sufficient to justify the jury in finding that defendant sold the same to Buddy Lynch. The contention that the whisky was sold to' Leroy Lynch and not Buddy Lynch, as alleged in the information, is answered by the fact that he testified his name Avas Leroy Lynch, but that he was known as “Bud” and “Buddy” Lynch, also.

The verdict of the jury finding defendant guilty was returned on the 14th day of March, 1939. A motion for neAv trial was filed on the 17th day of March, 1939. The motion for new trial was overruled on the 25th day of March, and defendant was sentenced on that date. It is contended that under the provisions of section 2632, Okla. Stats. 1931, 37 Okla. St. Ann. § 12, which is as follows: “For the second and all subsequent convictions for the violation of any of the provisions of this act, the penalty shall be a fine of not less than fifty ($50.00) dollars, nor more than two thousand ($2,000.00) dollars, and by imprisonment of not less than thirty (30) days in the county jail, nor more than five (5) years in the state penitentiary, and it shall be mandatory upon the trial judge in cases where anyone has been convicted under any provision of this act, to pronounce sentence within ten days from the date of conviction.” That the sentence must be pronounced within ten days from the verdict of the jury finding defendant guilty, and inasmuch as he was not sentenced until the 25th day of March, 1939, it was eleven days after the rendition of the verdict, that the judgment and sentence was illegal, and that defendant should, therefore, be discharged. In the first place defendant admits in his brief that the delay and sentence from the 24th day of March to the 25th was caused by reason of the fact that the defendant could not be found by his attorney, and the court continued the date of sentence until the next morning at his request. Under this state of facts defendant waived any right which he might have had by not being sentenced within the ten days. Regardless of this fact, we do' not think it was the intention of the Legislature to say that a judgment would be void where the defendant was not sentenced within the ten-day limit. It is well known that many times it is impossible to pass upon the motion for new trial within the ten-day period, and under these circumstances it would be impossible to pass sentence within the ten-day limit. The defendant could in no way be prejudiced by reason of this delay, and as above stated waived any right which he might have had thereunder by reason of his failure to appear before the court on the 24th day of March, at the time the motion was set for hearing.

Finding no' error in the record, we are of the opinion that the judgment and sentence of the district court of ■Tillman county should be affirmed.

DOYLE, P. J., and JONES, J., concur.


author: DOYLE, P. J.

text:
    ODUS SWEAT v. STATE.
    No. A-9797.
    April 11, 1940.
    (101 P. 2d 648.)

      Fred E. LaRue, of Clinton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error was convicted upon an information charging that in Custer county on or about the 7th day of October, 1939, he did then and there commit the offense of forgery in the second degree, in manner and form as follows; to* wit:

“That on or about the date aforesaid, in the County and State aforesaid, the said Odus Sweat did willfully, unlawfully, knowingly, wrongfully, feloniously and falsely, make, write and forge upon a consideration a certain written instrument, to-wit:
“ ‘Arapaho*, Okla. Oct. 7, 1939 No*.
“ ‘Custer County State Bank
“ ‘Pay to* the order of S. J. Sweat $8.85
Eaght 85/ioo - Dollars
“‘T. E. Cloud
“‘(Endorsed ¡S. J. Sweat; Melvin Lee)
“(Signature not genuine)

with the fraudulent intent of the said Odus Sweat then and there to* defraud one Melvin Lee and C. R. Anthony and company a corporation, doing business in the City of Clinton out of merchandise and cash of the value of $8.85 good and lawful money of the U. S. the name of T. E. Cloud on said check being wrote, forged and signed by the said Odus Sweat without authority and consent of the said T. E. Cloud, contrary to,” etc.

Upon the trial the jury returned a verdict finding the defendant guilty of forgery in the second degree, but was unable to* agree upon the punishment.

Motions for a new trial and in arrest of judgment were overruled November 3, 1939, and rendering judgment on the verdict, the court sentenced the defendant to confinement in the state penitentiary for a term of nine months and to- pay the costs.

Several assignments of error question the sufficiency of the information.

It is contended that the court erred in overruling the defendant’s demurrer to the information, and in not sustaining his objection to the introduction of evidence, and in overruling his motion in arrest of judgment.

The defendant demurred to the information for the following reasons, to< wit:

“(1) That said information does not charge an offense under the statutes of the state of Oklahoma.
“(2) That more than one offense is attempted to be charged in said information and is therefore duplications:.
“(3) That said information is so indefinite and uncertain that said defendant is unable to ascertain with what offense he is charged, if any.”

It is said in the brief of counsel:

“We say the information does not include the elements of forgery in the second degree as defined 2d subdivision of section 2133, 21 Okla. St. Ann. § 1585.
“To say that the defendant forged a check is a mere conclusion of the pleader. They do not allege that the instrument in writing created a pecuniary demand or obligation. They should have plead it in the information, in the words of the statute or in words with similar meaning.
“It is too indefinite and uncertain to apprise the defendant of what he is charged. He could not tell under the information whether he was going to be tried for uttering a forged check to Melvin Lee, and obtaining his endorsement under section 2127, 21 Okla. St. Ann. § 1579, or whether he was going, to be tried for selling,, exchanging and delivering a forged check for a consideration to C. R. Anthony Co. and under section 2125, 21 Okla. St. Ann. § 1577, or whether he was going to be tried for forging the name of T. E. Cloud to the check under section 2133 supra, or if he would be tried on all three of them.”

The information in this case is based on Penal Code, section 2133, 2d subd., 21 Okla. St. Ann. § 1585, which reads:

“Every person who, with intent to defraud, falsely marks, alters, forges or counterfeits: * * *
“Second [2], Any instrument of writing, being or purporting to be the act of another by which any pecuniary demand or obligation is, or purports tO' be created, increased, discharged or diminished, or by which any rights or property whatever, are, or purport to be, transferred, conveyed, discharged, diminished, or in any manner affected, the punishment of which is not hereinbefore prescribed, by which false marking, altering, forging or counterfeiting, any person may be affected, bound or in any way injured in his person or property, is guilty of a forgery in the second degree.”

To constitute the offense of “forgery” the following three essential elements must exist:

There must be a false writing or alteration of an instrument; the instrument as made must be apparently capable of defrauding; and there must be an intent to defraud.

The essence of forgery is the making of a false writing with the intent that it be received as the act of another than the one signing it.

In a prosecution for forgery in the second degree, where the information sets forth the alleged forged instrument in full, and the instrument shows on its face, that it Avould, if it were genuine, be of some apparent legal efficacy for an injury to a person other than the alleged forger, the information is sufficient to- support a conviction. Boyer v. State, 68 Okla. Cr. 220, 97 P. 2d 779.

Demurrers and motions in arrest of judgment under our system of criminal pleadings are not favored if they relate to matters of form only and not to matters of substance.

A copy of the alleged forged check is set out fully in words and figures and speaks for itself. It is neither incomplete, unmeaning nor unintelligible, and needs no explanation to make it the subject of forgery, and the information is not open to the objection of duplicity in alleging the fraudulent intent to defraud the person and corporation named therein, and it is obvious that only a single offense is therein charged.

While the information might have been drawn which would have stated the charge against the defendant with greater fullness and precision, may well be conceded; but an objection on this ground cannot prevail if the substantial requirements of the law have been complied with, and this we think has been done in this information.

It follows from what has been said that the court did not err in overruling the objections to the sufficiency of the information.

Other assignments question the sufficiency of the evidence to sustain the conviction, and it is contended that the judgment should be reversed because it is not supported by sufficient legal and competent evidence.

The testimony to- show the circumstances of the forgery was substantially as follows:

Melvin Lee testified that he lived in Custer county for 31 years, was acquainted with the defendant, met him in Clinton, had a conversation with him around 4 o’clock, October 7, 1939. The defendant said he had a check on Gene Cloud and asked him if he knew anybody who would cash it; that he went to Anthony’s Store with him to get the check cashed. After he identified the original check, it was introduced in evidence. He said it was the check he endorsed; that the defendant endorsed it, and he endorsed it. The clerk in the store took the check and the defendant bought some clothes and received the balance in money. Later he took up the check at Anthony’s Store and presented it at the Custer County State Bank, at Arapaho, and was informed that the signature was not genuine, and he brought it to the county attorney and verified the complaint in this case.

T. E. Cloud testified that he has lived eight miles southwest of Arapaho, for the past 37 years, has known the defendant, Odus Sweat, four or five years, that he had worked for him three or four weeks ago and he paid him cash. Handed the original check he said the name on the bottom of the check, “T. E. Cloud,” was not his signature. That he did not write any part of the check, nor authorize the defendant to write the check, nor did he authorize any one to write the check, or to write his name on it.

Buster Wilson testified that he was a clerk in the Anthony Store, at Clinton. The defendant came in the store with Melvin Lee, and he sold him some overalls and a shirt and he paid for them by check; State’s Exhibit 1, was the check; that he saw the defendant write his name on the back of the check and Melvin Lee endorsed it.

Jim Murphy qualified as a handwriting expert. Handed the original check, he testified that in his opinion the entire check was written by the person who endorsed the check “S. J. Sweat.”

When the state rested the defendant moved the court to direct the jury to return a verdict of not guilty, for the reason that the evidence was insufficient to sustain the charge, in that if it tends to prove anything, it tends to prove a separate offense, to wit, the sale of a forged check, which motion was overruled, exception reserved.

There was no testimony offered on the part of the defense.

The rule is well settled that this court will not reverse a conviction upon the ground that the evidence is insufficient to sustain the same, unless there is no testimony in the record from which the jury could reasonably conclude that the defendant was guilty, there being no contention that the jury was influenced by improper motives in arriving at the verdict.

We think the testimony without any doubt is ample to sustain the conviction. Obviously, there was no variance between the information and the proof.

It appearing from the record that a fair and impartial trial was accorded the defendant, the judgment of the district court of Custer county herein is affirmed.

BAREFOOT and JONES, JJ., concur.


author: JONES, J.

text:
    Ex parte DANIEL L. ROBNETT.
    No. A-9825.
    April 11, 1940.
    (101 P. 2d 645.)

      Sid White, of Oklahoma City, for petitioner.
    Mae Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for respondent.
   JONES, J.

This is an original proceeding in habeas corpus. In the verified petition filed herein it is alleged:

“That the petitioner is a man now twenty-four years of age, without education, and with no understanding of law.
“That on the 21st day of February, 1938, the petitioner stood charged by information in the district court of Cleveland county, Oklahoma, in cause numbered 3554 with the offense of grand larceny.
“That on said date the petitioner entered his plea of guilty to said charge with the agreement and understanding that the judgment and sentence should be arrested and suspended during his good behavior, all of which was accordingly done.
“That thereafter and on the 3rd day of January, 1939, the petitioner was again charged by information in the district court of Cleveland county, Oklahoma, in cause numbered 3596 with the offense of larceny of domestic animals.
“That at said time the petitioner was alone and without the advice of counsel. That at said time it was agreed by the county attorney and acquiesced in by the trial judge that if he, this petitioner, would enter his plea of guilty in said cause numbered 3596, a sentence of two years imprisonment in the penitentiary would be assessed therefor; the judgment in cause numbered 3554 aforesaid would be set aside, and the petitioner permitted to again enter his plea of guilty in said cause and a sentence there imposed of two years in the state penitentiary and that both said judgments would be so entered, worded, and executed; that the sentences should and would run concurrently, and petitioner be accordingly permitted to serve the two together. That the petitioner relying upon said representations of the county attorney and trial jndge did enter his plea of guilty in said cause numbered 3596 and did receive a sentence of two years in the state penitentiary at McAlester therefor. That there upon and on the same date, the district judge did make and enter his order in cause numbered 3554, revoking the suspended sentence and committing the defendant to the warden of the state penitentiary to serve said judgment and sentence.”

Copies of the orders of the court pertaining to said causes are attached to the petition.

“That the petitioner completely served two- years in the state penitentiary, and that the said warden is now holding the petitioner to serve an additional two- years by reason of the judgment • and sentence pronounced in cause numbered 3596.”
“That if the district court of Cleveland county, Oklahoma, did not on the 3rd day of January, 1939, have power to deal with the judgment in cause numbered 3554 as agreed and attempted, then the judgment and sentence in cause numbered 3596 is a fraud and imposition upon the rights of this petitioner.”

The rule to show cause was issued, and the warden in his response pleads that the court did not have jurisdiction to make the orders complained of and is- wholly without authority to adjudge that the sentences run concurrently.

Upon the hearing the petitioner introduced proof that showed facts in substance the same as alleged in the petition. Statements of the county attorney and the trial judge were introduced in evidence on behalf of the petitioner in which they agree that the representations were made to the petitioner, that if he would plead guilty in cause numbered 3596 he would receive a sentence of two years, and that the same would run concurrently with the two years to which he had been sentenced in cause numbered 3554. There was also- introduced in the record an order nunc pro- tunc, issued by the district judge of Cleveland county on February 5, 1940, in which order the judge attempted to correct the order made in said causes numbered 3554 and 3596 so as to provide that the sentences therein imposed should run concurrently, all as of the date of January 3, 1939.

We heretofore have held in the case of Ex parte Hudson, 44 Okla. Cr. 14, 279 P. 711:

“Where any person is convicted of two or more crimes, before sentence is pronounced upon him for either, the trial court, under the provisions of sections 2303 and 2774, Comp. Stat. 1921 [21 Oída. St. Ann. § 61; 22 Oída. St. Ann. § 976], may provide in the sentences that they shall run concurrently. Where a defendant has been sentenced upon one conviction and a suspension or judicial parole given under the provisions of section 2803, Comp. Stat. 1921 [22 Oída. St. Ann. § 991], and thereafter he is convicted for another offense, and the trial court then revokes the suspension given, the court is without authority to adjudge that the sentences run concurrently.”

Under the authority of this case, the district court of Cleveland county was clearly without authority to adjudge that the sentences run concurrently.

However, there is merit to the contention of the petitioner that the judgment and sentence pronounced against him in cause numbered 3596 is void for the reason that the accused was not fully advised as to his rights and was incorrectly advised as to the consequences of his act by the court before entering his plea to the information.

It is conceded that the representations made by the county attorney and the district judge were contrary to our ruling in Ex parte Hudson, supra.

In the case of Ex parte Barnett, 67 Okla. Cr. 300, 94 P. 2d 18, 19, this court expressed the following rules which govern in habeas corpus proceedings such as this:

“The scope of review on habeas corpus is limited to an examination of the jurisdiction of the court whose judgment of conviction is challenged.
“Every person charged with a crime, whether guilty or innocent, is entitled to a fair and impartial trial according to the due and orderly course of the law, and it is a duty resting upon the courts to see that the guaranty of such a trial, conferred by the laws upon every citizen, shall be upheld and sustained.
“When a person is held in custody under a void order of commitment, or is imprisoned without due process of law under the sentence of any court of the state, it is court’s duty upon habeas corpus to inquire into the illegality of the commitment when the matter is properly before it, and, if it be adjudged that the order of commitment was made without authority of law, the person will be entitled to a discharge from custody. * * *
“The remedy of habeas corpus is available wherever it is found that the court in which the petitioner was tried had no jurisdiction to' try him, or that in its proceedings his constitutional rights were denied. * * *
“Under the Bill of Rights [Okla. St. Ann. Const, art. 2, § 20], an accused has the right to consult with counsel and to be fully advised as to his rights, and as to- the consequences of his act before entering his plea to the indictment or information.”

In Howington v. State, 30 Okla. Cr. 243, 235 P. 931, this court held:

“A plea of guilty should be entirely voluntary, and should be made by one competent to know the consequences thereof, and should not be accepted until after the defendant has been fully advised by the court of his rights and the consequences of his plea.”

Clearly, if it is the duty of the court to advise the defendant of the consequences of his plea and the court accordingly makes certain promises which cannot lawfully be carried into execution, a plea of guilty thus obtained is contrary to' the spirit of the Bill of Rights of our Constitution. The petitioner was young, ignorant, and inexperienced; he had a right to' rely upon the representation made to him by the county attorney and concurred in by the trial judge. Under such circumstances it is our opinion that the judgment and sentence pronounced in cause numbered 3596 is null and void, and that the petitioner is unlawfully restrained of his liberty and imprisoned by reason thereof without due process of law.

A void judgment may be vacated in a habeas corpus proceeding. When the judgment is thus vacated, the proceedings should be remanded to the trial court where the defendant may be tried on the merits of the case pending against him. If the defendant’s rights have been prejudiced to* such an extent that he cannot have a fair trial by reason of disclosures made at the first hearing or for any other reason, this court may order his release from custody.

It is therefore ordered that the judgment and sentence pronounced in cause numbered 3596 in the district court in and for Cleveland county, Okla., be and the same is hereby vacated and set aside.

It is further ordered that the writ of habeas corpus as prayed be issued, and that the warden of the state penitentiary at McAlester, Okla., be and is hereby commanded forthwith to' deliver into' the custody of the sheriff of Cleveland county, Okla., the petitioner Daniel L. Rob-nett.

It is further ordered that the sheriff of Cleveland county, Okla., hold the said Daniel L. Robnett pending the disposition of the offense alleged against him in cause numbered 3596 in the district court of Cleveland county or until he is otherwise discharged by the making of bail in accordance with the law as provided in such cases.

DOYLE, P. J., and BAREFOOT, J., concur.


text:
    ALFRED STEVENSON v. STATE.
    No. A-9610.
    April 11, 1940.
    (101 P. 2d 644.)
    Moody & Henderson, of Pauls Valley, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant- was charged in the district court of Murray county with the offense of assault with intent to kill, was tried, convicted and sentenced to serve a term of two years in the state penitentiary, and has appealed to this court.

The only assignment of error argued before this court is the contention of the defendant that the punishment assessed against him is excessive under the facts.

The defendant is a negro. The evidence shows that on Christmas Eve night, 1937, the defendant with several other negroes went to the home of Ruben Jackson, near Hennepin in Murray county. While they were at Ruben Jackson’s home, some one proposed that they get a blanket and shoot a few craps. A dice game started, and after a few minutes two of the negroes, SammyJohn-son and Ruben Jackson, got into an argument over the dice. A scuffle between Jackson and Johnson started, and the defendant pulled his pistol and started firing. The first shot hit Ruben Jackson; he then shot the complainant Wyley Newberry in the leg and in the stomach. Newberry apparently was not engaged in the fracas at all, but was sitting on a bed talking to a negro girl. When the defendant grabbed his pistol and started to fire, Newberry spoke up and said, “Alfred, don’t do that;” and the defendant then shot Newberry. One of the shots went through the lower part of Newberry’s stomach, hit his hip bone and went on through his body. After he had shot Newberry, he snapped his pistol at him again while Newberry was lying on the floor. Newberry was taken to the Hardy ¡Sanitarium at Ardmore where he was confined for eight weeks.

The evidence showed that Sammy Johnson, the man engaged in the scuffle with Ruben Jackson, pulled a gun in his scuffle with Jackson. So far as the complainant Newberry was concerned, he was unarmed and made no move towards the defendant nor did he make any statement justifying the assault that was made on him.

The defendant did not take the witness stand, and no evidence was offered in his behalf.

We have carefully examined the record herein; the instructions given fairly presented the issues to the jury, the evidence abundantly satisfies the requirements of the law, and we think the contention of the defendant that the punishment is excessive is wholly without merit.

The judgment is accordingly affirmed.

DOYLE, P. J., and BAREFOOT, J., concur.


text:
    L. JONES v. STATE.
    No. A-9715.
    April 18, 1940.
    (101 P. 2d 860.)

      Gomer Smith and Nelson Rosen, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis R. Morris, Co. Atty., and Walter Marlin, Asst. Co. Atty., both of Oklahoma City, for defendant in error.
   JONES, J.

L. Jones and R. Y. Boyer were jointly charged in the district court of Oklahoma county with the offense of forgery in the second degree; a severance was granted; the defendant, L. Jones, was tried and convicted by a jury which left the punishment to the court. The court thereupon sentenced the defendant, L. Jones, to a term of two years in the state penitentiary, and he has appealed to this court.

The state’s proof showed that R. Y. Boyer was director of the Oklahoma county welfare board. That on March JO, 1935, he directed his secretary, Comanan Biewer, to write several relief requisitions, approximately 50 in number. Most of these requisitions were for the sum of $10, and the names of the relief clients shown thereon were taken from the relief rolls of Oklahoma county. These requisitions were issued to different persons in all sections of Oklahoma county, but they all managed to get into the hands of the defendant, who' presented them for payment to the county clerk’s office. It was stipulated that the names of the relief clients shown on each of the requisitions were forged thereon, and it was further stipulated that the relief clients named in the requisitions did not secure any groceries or supplies on any of the requisitions.

All of the requisitions written on March 30th were identified as exhibits and introduced in evidence. The signature, L. Jones, appears on the back of each of these requisition claims; and Ruth Turner Hodges, the deputy county clerk, testified that they ivere signed by the defendant in her presence. The signature appears on the back of the requisition claims in the space provided therefor as follows:

“Claim
“I, the undersigned, upon oath, depose and say that the above items and amounts represent a true and correct list of Supplies furnished or services rendered to the person or family designated on the reverse hereof and receipted for above, that the amount indicated above is now due and payable, and that I am the person who rendered such supplies or service.
“Signed L. Jones
“Subscribed and sworn to before me this-day of-, 19—
“County Clerk, or Notary Public.”

This case is another one of the series of cases growing out of the alleged forgery of relief requisitions in Oklahoma county. This court has heretofore in two cases, Moss v. Arnold, 68 Okla. Cr. 343, 75 P. 2d 491, and Boyer v. State, 68 Okla. Cr. 220, 97 P. 2d 779, in two able opinions by Presiding Jndge Doyle, gone into most, if not all, of the legal questions involved in this appeal.

The defendant contends that there is one distinction between this case and the requisition claim involved in the two* above cases, in that in the two above cases the claim involved in the prosecution of those cases was verified, while in the instant case the claim was not verified and for that reason the purported claim is void on its face and the crime of forgery cannot be predicated upon it.

It is undisputed that the identical claim involved herein is not verified. It is signed by the defendant, L. Jones, but the jurat of the county clerk is not placed thereon.

As regards the particular claim here involved and the method used by the county clerk’s office in handling these requisitions, the state introduced the testimony of Ruth Turner Hodges, deputy county clerk. She testified that if one person brought a large number of requisitions to., the county clerk’s office, .which requisitions were all owned by one person, as many as could be conveniently scheduled on the voucher which would be issued in payment thereof would be joined together, and the jurat on the back claim would be filled in, and the clerk’s seal affixed thereto. The claimant, however, was required to sign each requisition on the reverse side in which he states that the items and amounts entered on the requisition represent a true and correct list of supplies furnished to the person whose name was given thereon, and that the amount indicated was due and payable, and that the person signing the claim was the one who furnished such supplies. In this particular case her testimony showed that the claim involved herein had requisition No'. 366. That it also had case No. 805, which was the number identifying the relief client on the records of the welfare department in Oklahoma county. That this requisition, along with several others, was brought to her office by the defendant, who signed his name on each of the requisitions, and she swore him to the top one and bradded them all together and issued voucher No; 171 on the State Public Welfare Fund in the total amount of $>134 to the defendant as payment in full for all of the requisition claims appearing in that particular group.

Section 5966, O. S. 1931, 62 Okla. St. Ann. § 301, provides as follows:

“All claims for money due from any county, township, city or incorporated town shall be itemized in detail, verified and filed for' allowance with the proper authority not less than five days before the meeting of such body for such purposes. Such verified claims shall show in detail the amount due on each item, the date thereof, the purpose for which each item was expended, and such, other facts as are necessary to' show the legality of such claim and each item thereof.”

This statute is cited by the defendant in support of his contention that the particular claim upon which the prosecution is based cannot be the subject of forgery charges for the reason it is not verified, and therefore it is not of legal efficacy.

The defendant contends that the claim herein involved, along with all other requisition claims, was payable out of county funds by reason of the fact that the legislative act making an appropriation to carry out the provisions of the Welfare Act provided that the funds so allocated to the counties became county funds, and as such to be expended under the direction of the county welfare board. It is immaterial in the consideration of this cause whether the funds were county or state funds as claims against either fund are required to be verified.

The record herein discloses that many hundreds of requisition claims were being issued by the county welfare board of Oklahoma county; to expedite the handling of these requisitions, the welfare board adopted the policy of treating all of the requisitions which were presented by one person, and which could be conveniently placed upon the schedule shown on the voucher which would be paid therefor, as one account. That the verification on one of the claims would be treated as a verification of the total number of claims that were bradded together, and the claims thus bradded together were treated as one account and given one identifying number to correspond with the number shown on the voucher. While this method of handling the claims is not literally the procedure prescribed by the State Examiner and Inspector under the statute, we hold that it was a substantial compliance with the law.

The prosecution herein is brought under the provisions of section 2125, O. S. 1931, 21 Okla. St. Ann. § 1577, which reads as follows:

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

The information filed herein sets forth the requisition claim in detail, and the same will not be set forth in this opinion as similar informations, with the exception of the jurat of the county clerk, as hereinbefore noted, are set forth in the cases of Moss v. Arnold and Boyer v. .State, supra.

The numerous authorities cited by the defendant in support of his contention that an instrument void on its face cannot be the subject of forgery because it is not capable of effecting a fraud are not in point here for the reason that the fraud herein was actually perpetrated. The defendant actually uttered and passed the requisition claim to the county clerk who had charge of the payment of the money belonging to the welfare fund. The money was actually delivered to the defendant at that time in payment thereof. The defrauding of the welfare department became complete at that moment. The instrument was sufficient on its face to effect a fraud, and the fraud was actually effected.

We have carefully examined each of the authorities cited and relied upon by the defendant in support of his contention. Most of these cases are cases where the accused was charged with the actual forging of the instrument involved. In the chapter on forgery and counterfeiting in our Penal Code (chap. 15, art. 47, O. S. 1931, 21 Okla. St. Ann. § 1561 et seq.), we find several sections dealing with the actual forgery of certain instruments, to wit: wills, deeds, public securities, shares of stock, bank note plates, checks, and many other instruments. Under these statutes, where a person is charged with the actual forgery of one of these instruments, and the same is void on its face and not legally capable of effecting a fraud, the accused would not be guilty of forgery under tbe rule of law contended for by tbe defendant herein, wbicb is tbe correct rule as applied to those situations.

Here tbe defendant, however, is charged with tbe uttering of a forged instrument with intent to defraud tbe public welfare board of Oklahoma county. Sec. 2125, supra. This statute not only makes it an offense for every person selling, exchanging or delivering tbe forged instrument, but further makes it an offense for a person to offer any such instrument for sale, exchange, or delivery with knowledge of the forgery. Under this statute tbe defendant would have been guilty of forgery if he had offered to pass the requisition claims to another for a valuable consideration, knowing the same to be forged, even though it was not actually passed. Under this statute, if the defendant had offered to' pass the claim to' the county clerk, knowing the same to' be forged, and the county clerk had at that time refused to accept the requisition which was presented, still the defendant would be guilty of forgery.

There are three essential elements of forgery, to wit: a false writing or alteration of an instrument; the instrument as made must be apparently capable of defrauding, and there must be an intent to defraud. These three elements have all been conclusively shown by the state’s proof.

In State v. Eades, 68 Mo. 150, 30 Am. Rep. 780, it was held that the fraudulent making of a false certificate of municipal indebtedness is forgery although the municipality has no power to issue such certificates. That the question involved is whether on its face the instrument will have the effect to defraud those who may act on it as genuine, or the person whose name is forged. It is not essential that the person in whose name it purports to be made has the legal capacity to make it nor that the person to whom it is directed be bonnd to act apon it as genuine.

See, also, in this connection People v. Bibby, 91 Cal. 470, 27 P. 781; Spicer v. State, 52 Tex. Cr. R. 177, 105 S. W. 813; State v. Hazzard, 168 Ind. 163, 80 N. E. 149; Commonwealth v. Costello, 120 Mass. 358, which all deal with the proposition urged by the defendant.

In Holloway v. State, 90 Ark. 123, 118 S. W. 256, 257, it is held:

“To utter a forged instrument is to put it in circulation, or to offer to do so-, with fraudulent intent to- injure another.”

In the body of the opinion the court uses the following language:

“It is contended on behalf of the defendant that, even if he forged the names of the sureties and delivered the bond to the sheriff, the offense was not complete, for the reason that it was not filed with the clerk as required by statute, and therefore never became operative for any purpose. This contention involves a misconception as to the distinction between the crime of forgery and of uttering a forged instrument. A delivery of the forged instrument. is not necessary to- constitute and complete the crime of forgery. The elements of that offense are the false making or alteration of an instrument of writing which is apparently valid, with the fraudulent intent to make use of it to the injury of another. 19 Cyc. 1373; Clark on Criminal Law, p. 333 et seq. To- utter a forged instrument is to- put it in circulation, or to offer to do- so, with such fraudulent intent. Elsey v. State, 47 Ark. 572, 2 S. W. 337.”

We have hereinbefore in the beginning of this opinion expressed our view that the manner in which these claims were handled by the county clerk’s office was in substantial compliance with the law. Since all of the argument presented by the defendant in his brief is based on the assumption that the action of the county clerk’s office in the handling of these claims was not in substantial compliance with the law, our ruling thereon made it unnecessary to consider the question raised by the defendant as to the legal efficacy of these claims. By reason of the fact, however, that the defendant spent many pages in his brief and most of his argument presenting the proposition that there could be no' forgery because the instrument was void by reason of the absence of the county clerk’s jurat thereon, and the state likewise has extensively briefed the matter, we have made the statements herein above set forth to show that as applied to the offense of uttering forged instruments similar to the one herein involved the law is contrary to the defendant’s position even if we should assume that the method of handling the claims was not in substantial compliance with the law pertaining thereto:

The defendant next contends that the court erred in the wording of the instruction given by the court on circumstantial evidence. The instruction complained of reads as follows:

“7th. You are further instructed that the state relies for a conviction,-in part, upon what in law is termed circumstantial evidence, that is, proof of facts and circumstances connected with or surrounding the commission of the crime charged from which the guilt of the accused should be inferred. Such proof is as competent, for the purpose of establishing a given fact, as is direct evidence, and should be SO' regarded by you. It is not necessary that each circumstance introduced in evidence, and relied on by the state, should in and of itself establish the guilt of the defendant, but, each part necessary to the conclusion sought to- be established — that is, the guilt of the defendant — must be proved by competent evi-deuce, beyond a reasonable doubt, and each circumstance must be consistent with the other and with the main fact sought to be proved, and inconsistent with any other rea,-sonable hypothesis or conclusion than that of the guilt of the defendant.”

The defendant requested the following instruction be given:

“You are instructed that the state relies for a conviction in this case upon what is known as circumstantial evidence, and in this matter you are instructed that, to warrant a conviction upon circumstantial evidence, each fact necessary to the conclusion sought to> be established (that is, the guilt of the defendant) must be proved by competent evidence, beyond a reasonable doubt, and that all the facts and circumstances proven should not only be consistent with the guilt of the accused, but consistent with each other, and inconsistent with any other reasonable hypothesis or conclusion than that of his guilt, and sufficient to produce in your minds the reasonable moral certainty that the accused committed the offense charged against him. You are instructed that, when, the circumstances are sufficient under this rule herein given you, they are competent and are to be regarded by the jury as competent for your guidance as direct evidence.”

The defendant’s requested instruction is identical with the instruction on circumstantial evidence which this court has approved in a great number of decisions. Carter v. State, 6 Okla. Cr. 282, 118 P. 264; Baldwin v. State, 11 Okla. Cr. 228, 144 P. 634; Jackson v. State, 22 Okla. Cr. 338, 211 P. 1066, 1072; Gore v. State, 25 Okla. Cr. 214, 219 P. 153; Ross v. State, 42 Okla. Cr. 227, 275 P. 401; McNeill v. State, 47 Okla. Cr. 53, 287 P. 1045; Walker v. State, 50 Okla. Cr. 333, 297 P. 331.

There is no justification in the court’s action herein in refusing to give the defendant’s requested instruction. Many years ago this court prepared the form of instruction on circumstantial evidence which the defendant requested, and recommended its use by the trial courts in this state. If the trial court had been diligent in the preparation of his instructions on circumstantial evidence, he would have found that the defendant’s requested instruction was verbatim with the model instruction we have for years advised trial courts in this state to give. But the fact that the trial court chooses to> ignore the model instruction on circumstantial evidence which has been in use and approved for years in this state does not necessarily mean that the instruction which he prepared is bad.

The defendant contends that the wording of the instruction is a charge by the trial court on the weight of the evidence and amounts to an order by the court to the jury that the facts and circumstances are such that the guilt of the defendant should be inferred. The instruction is not susceptible of that construction. We cannot see how the jury was confused by this instruction, especially in view of the fact that the court gave the substance of the defendant’s requested instruction after telling them the contentions of the state. There is a bare possibility that this instruction standing alone might be confusing to the jury, and we are unwilling to place our stamp of approval on this instruction so that it may be used as a model in the future; but when it is read as a whole and considered in connection with all the other instructions given by the court, we are convinced that the defendant was not prejudiced thereby. It was the duty of the jury, and they were so instructed, to consider the instructions as a whole and no part thereof to the exclusion of any other part. The question raised on this instruction is the most serious question with which this court is concerned in this case, a much more serious question than the highly technical proposition raised, by the defendant in his contention that the forged requisition could not be the basis of a forgery charge. But after considering the instructions as a whole, and in view of this record where the guilt of the defendant has been so clearly proven, we do not feel that the giving of this instruction has prejudiced the defendant.

The defendant is now 70 years of age. He has reared a large family. Before retiring from business in 1933 he had developed a chain of seven grocery stores in Oklahoma City, which had become known as the Jones Stores. Upon his retirement in 1933 he made a gift of his stores to each of his sons and his two daughters. He continued to maintain an office at one of the stores, but retained no authority nor control over any of the stores. Up to the time of his retirement his career had been very successful and evidenced much hard work on the part of the defendant. The evidence shows that a few months after his retirement, the defendant was arrested for drunk driving and paid a fine therefor. Probably because of the idleness brought about by his retirement from business, this defendant, with plenty of money and an appetite for strong drink, became an easy prey to' the fraudulent scheme by the arch-conspirator, Boyer, in which scheme Boyer sold to Jones and other merchants forged requisition claims on the welfare fund. The chief criminal, Boyer, who started this fraudulent scheme, and without whose help the same would never have been established, was tried to a jury and given only a sentence of one year in the state penitentiary. Boyer v. State, supra. In the case herein the jury was unable to agree on the punishment, and the trial court gave the defendant a sentence of two years in the state penitentiary. Under the circumstances presented herein, we are of the opinion that the ends of justice would he met by reducing the sentence here imposed to one year.

It is therefore ordered that the sentence of the defendant he modified by reducing the same to' one year’s imprisonment in the state penitentiary, and that the judgment, as modified, be affirmed.

DOYLE, P. J., and BAREFOOT, J., concur.