author: BAREFOOT, P. J.

text:
    Ex parte GROVER HARRISON et al.
    No. A-10121.
    Sept. 10, 1941.
    (117 P. 2d 177.)

      Hubert Hargrave and W. A. Billingsley, both of Wewoka, for petitioners.
    Mac Q. Williamson, Atty. Gen., and Roy P. Parham, Co. Atty., of Okemah, for the State.
   BAREFOOT, P. J.

Petitioners, Grover Harrison, Prank Loftis, Innis Clinton Woodard, and Dan Pry, filed in this court on the 8th day of August, 1941, their petition for writ of habeas corpus alleging that they were unlawfully imprisoned in the county jail of Okfuskee county by J. W. Kennedy, sheriff of said county; that the cause of said restraint was that they had been charged by complaint filed before a justice of the peace in said county with the crime of robbery with firearms, and at the preliminary hearing on said charge they had been held for appearance ■before the district court of Okfuskee county without bail-; that said petitioners filed an application for a writ of habeas corpus before the district court of Okfuskee county, and that said court had also denied petitioners the right of bail pending the hearing of said charge in the district court. It was further alleged that the evidence produced did not show that the proof of guilt was evident nor the presumption thereof great, and that they were entitled under the law to bail pending the hearing of their case in the district court of Okfuskee county.

The transcript of the evidence taken at the preliminary hearing and considered by the district court was attached to the petition. Upon presentation of the petition, all parties being present, a hearing was had on the same. Petitioners, in addition to the transcript of the evidence taken at the preliminary hearing, placed upon the witness stand the petitioner Grover Harrison, and the' state presented the testimony of Hon. Walter Johnson, commissioner of public safety. After said hearing, the court was of the opinion that, under the law and facts as presented, petitioners were entitled to> bail pending the trial in district court of Okfuskee county. An order was made and entered on that date, August 8, 1941, admitting petitioner Grover Harrison to bail in the sum of $15,000, and petitioners Frank Loftis, Innis Clinton Woodard, and Dan Fry were admitted to bail in the sum of $10,000 each, said bond to be filed and approved by the court clerk of Okfuskee county.

Petitioners in this case are charged with robbery with firearms. It is the outgrowth of a charge of taking intoxicating liquor from the possession of another of the value of $1,800. The statute under which petitioners were charged was Oklahoma Statutes 1931, section 2543, 21 O. S. A. § 801, which is as follows:

“Any person or persons who, with the use of any firearms or any other dangerous weapons, attempts to rob or robs any person or persons, or who' robs or attempts to rob any place of business, residence or banking institution or any other place inhabited or attended by any person or persons at any time, either day or night, shall be guilty of a felony, and, upon conviction therefor, shall suffer punishment by death, or imprisonment, at hard labor, in the State Penitentiary, for a period of time of not less than five years, at the discretion of the court, or the jury trying the same.”

The petitioner Grover Harrison was placed upon the witness stand at the hearing before the court and denied .participation in the commission of the crime. He was fully cross-examined by the county attorney of Okfuskee county.

The rule is well settled that on an application for admission to bail by one held under a commitment in a capital case, the burden of proof is on the petitioner to show that the proof of his guilt is not evident nor the presumption thereof great. Without a further discussion of the evidence and circumstances, we deem it sufficient to say that we are of the opinion that the petitioners were entitled to be admitted to bail pending trial in the district court of Okfuskee county, and the order made on the 8th day of August, 1941, is hereby confirmed.

JONES, J., concurs.


source: Caselaw Access Project

license: Public Domain

text:
    PETER JOSEPH O’DONNELL et ux. v. STATE.
    No. A-9872.
    Sept. 17, 1941.
    (117 P. 2d 139.)

      Peter Joseph O’Donnell and Florence Nightengale O’Donnell were convicted of robbery with firearms, and they appeal. Judgment affirmed as to Peter Joseph O’Donnell, and judgment reversed and cause remanded as to Florence Nightengale O’Donnell.
    Willis R. Stark, of Oklahoma City, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., and Lewis: R. Morris, Co. Atty., of Oklahoma City, for the State.
   BAREFOOT, P. J.

Defendants, Peter Joseph O’Donnell and Florence Nightengale O’Donnell, were jointly charged in the district court of Oklahoma county with the crime of robbery with firearms; were tried, convicted, and the defendant Peter Joseph O’Donnell was sentenced by the court to- serve a term of 35 years in the penitentiary and defendant Florence Nightengale O’Donnell was sentenced to serve 20 years in the penitentiary, and they have appealed. As these defendants: were unable to give bond pending appeal and are now confined in the penitentiary at McAlester, their cases have been advanced and decided at this time. The defendants were husband and wife and were jointly charged with their son, Thomas: William Efugart.

The only questions presented on this appeal are: First, that the court erred in refusing to sustain a demurrer to1 the evidence as against the defendant Florence Nighten-gale O’Donnell for the reason 'that the evidence was insufficient to sustain a conviction as against her; and, second, that the sentence of 35 years imposed against the defendant Peter Joseph O’Donnell is excessive and should by this court be reduced. The first contention is based upon the question of coverture, in the absence of proof that she participated, or aided and abetted in the commission of the offense. To properly consider these questions it will be necessary to briefly review tbe evidence as revealed by the record.

The defendants resided in St. Louis, Mo. They left there some time prior to May 10, 1939, with the son of Florence Nightengale O’Donnell, Thomas William Hu-gart, who was 17 years of age, and were traveling in a 1934 Terraplane automobile bearing a, Missouri tag. They ostensibly were coming to Vinita, Okla., or Denison, Tex., for the purpose of defendant Peter Joseph O’Donnell’s securing work upon one of the dams that was being constructed, he being an iron worker. They, however, visited quite a number of towns and cities in Texas and Oklahoma, and arrived in Oklahoma City on the evening of the 9th of May, 1939. They camped that night at Rotary Park. Next morning they were driving over the city, all three being in the car. The car was parked near a grocery store and church about a block from the substation of the Oklahoma Natural Gas Company in Capitol Hill. The defendant Florence Nightengale O’Donnell remained in the car and the defendant Peter Joseph O’Donnell and his stepson, Thomas William Hugart, immediately went to the substation of the Oklahoma Natural Gas Company. Charles C. Masters and J. B. Smith, employees of the company, were on duty there behind the counter in said building. Upon entering young Hugart demanded of them that they “Get them up.” The defendant Peter Joseph O’Donnell was in the rear and held in his hand a pistol which was pointed in the direction of the employees. They went behind the counter and young Hugart directed the two employees to enter a store room in the rear of the building, and he there tied their hands behind them with wire which was furnished by the defendant Peter Joseph O’Donnell. They ordered the employees to lie on the floor. They then proceeded to rob the safe and money drawers of the company and secured, as shown by an audit, the sum of $241.50. They immediately proceeded to where they had left the automobile and entering the same drove west out of the city contacting highway No. 81 and going to El Reno. They stopped at a roadside park, and young Hugart changed clothes there and buried a black box which he had secured at the time of the robbery and which contained only valuable papers belonging to Mr. Masters, one of the employees, and having' his name thereon. This box wasi after-wards recovered by the officers under the direction of young Hugart.

After the party left El Reno going north on United States Highway No'. 81, they were intercepted by two state highway patrol officers who1 had been informed by radio' of the robbery and who had a description of the car. They were taken to> the police station at El Reno, and there they, their luggage, and their car were searched. The officers found different sums of money at different places. The sum of $17 was found in defendant Peter Joseph O’Donnell’s billfold, $71 in defendant Florence Nightengale O’Donnell’s purse, $7 in a green colored coat found in the car, $16 found in a man’s coat in the car, and $8.52 in silver was found in a compartment of the automobile and in defendant Florence Nightengale O’Donnell’s purse. A matron in the Oklahoma City jail found $69 on the person of defendant Florence Nighten-gale O’Donnell when she was searched there.

Officers from Oklahoma City came 1» El Reno, and the defendants were taken toi Oklahoma City police station. The defendant Peter Joseph O’Donnell rode in the car with one detective and the defendant Florence Nighten-gale O’Donnell and her son with the other. When they arrived at Oklahoma City and got out of the automobile young Hugart handed his mother a dirty handkerchief and she placed it in her brassiere. She was afterwards searched by the matron in the city jail and this handkerchief was found to contain $57 in bills.

Some conflicting statements were made by defendants as to where they had been during, the past few weeks. The two employees of the Oklahoma Natural Gas Company, Mr. Masters and Mr. Smith, both immediately identified the defendants Peter Joseph O’Donnell and Thomas William Hugart as being the parties who had entered! the building and robbed them. They were picked out from five other persons. The defendant Hugart made a written statement to the officers after being told by his stepfather to- tell the truth. This defendant, who upon arraignment entered a plea of guilty, afterwards went on the witness stand at the time of the trial and told a quite different story, claiming that he and a man whom they had picked up in Rotary Park on the morning of the robbery had committed the robbery and that the defendant Peter Joseph O’Donnell did not participate therein. This statement was submitted in evidence by the court for the purpose of impeachment of the witness Hu-gart, and the jury was directed not to consider it for any other purpose.

No instruction was given by the court upon the question of duress by reason of coverture as to the defendant Florence Nightengale O’Donnell, nor was any request made for such instruction. The defendant Peter Joseph O’Donnell represented himself and his wife. The public defender was also present and assisted in the defense of each of these defendants.

The Oklahoma statute with reference to subjection inferred from coverture is Oklahoma Statutes 1931, section 1802, 21 O. S. A., Title 21, § 157, and is as follows:

“A subjection sufficient to excuse from punishment may be inferred in favor of a wife from the fact of cover-ture whenever she committed the act charged in the presence and with the assent of her husband, except where such act is a participation in:
“1. Treason;
“2. Murder;
“3. Manslaughter ;
“4. Maiming;
“5. An attempt to kill;
“6. Rape;
“7. Abduction;
“8. Abuse of children;
“9. Seduction;
“10. Abortion, either upon herself or upon another female;
“11. Concealing the death of an infant, whether her own or that of another;
“12. Fraudulently producing a false child, whether as her own or that of another;
“13. Bigamy;
“14. Incest;
“15. The crime against nature;
“16. Indecent exposure;
“17. Obscene exhibition of books and prints;
“18. Keeping a bawdy or other disorderly house.”

It is also provided by Oklahoma Statutes 1931, sections 1801 and 1804, 21 O.. S. A., §§ 156 and 159:

“The duress which excuses a person from punishment who has committed a prohibited act or omission must be an actual compulsion by use of force or fear.”
“The inference of subjection arising from the fact of coverture may be rebutted by any facts showing that in committing- the act charged the wife acted freely.”

These statutes have been before this court for construction in many cases. Neff v. State, 29 Okla. Cr. 2, 231 P. 898; Winer v. State, 36 Okla. Cr. 316, 253 P. 1025; Sanders v. State, 48 Okla. Cr. 65, 289 P. 798; Zammer v. State, 51 Okla. Cr. 125, 300 P. 325; Davis v. State, 53 Okla. Or. 85, 7 P. 2d 911; Sentell v. State, 61 Okla. Cr. 229, 67 P. 2d 466; Paris v. State, 66 Okla. Cr. 236, 90 P. 2d 1078; Stewart v. State, 71 Okla. Cr. 292, 111 P. 2d 200. See, also, 13 R.C.L. 1238; 71 A.L.R. 1127, Annotation; 19 L.R.A. 357 and 358, Note.

It will be noted that robbery with firearms is not one of the exceptions noted by the statute. These statutes and the rule which they announce are the outgrowth of the rule of the common law that where a crime, with some exceptions, was committed by a married woman conjointly with or in the presence of her husband, prima facie she was not criminally liable, as it was presumed that she acted in obedience to his commands and under his coercion. This doctrine is announced by Blackstone, who says that it is a thousand years old. The cases are not in harmony with reference to the limitations to' be placed on the same for the very good reason that some of the states have enacted statutes clearly repudiating the doctrine. Others have not done so and still adhere to the common-law rule. The majority of the courts under statutes that have enlarged the property rights of married women and removed their common-law disabilities to, contract have not changed the common-law rule as to their liability for acts committed in the presence of their husbands; but many of the decisions are to, the effect that the presumption is slight and may be rebutted by slight circumstances. This is the view adopted by this court in the decisions heretofore cited and sustained by the Oklahoma statutes heretofore quoted.

The question arises, Just what is necessary in each individual case to> rebut this presumption? The answer is that the facts in each individual case must be considered to determine whether there has been proof to overcome the presumption. Therefore, many courts have held that the question of duress by reason of coverture is a question of fact in each individual case, and especially where there is: any doubt in the matter, and that this question should be submitted to the jury upon proper instructions. This we believe is the best rule and in harmony with the decisions heretofore cited in this court. In the instant case no instruction was submitted to. the jury upon this question. We are not unmindful of the rule Avhich requires a defendant to present a written instruction and that when he fails to do> so he cannot complain. We also recall the rule that requires the court to fully instruct the jury upon all the material issues: of the trial Avhich the evidence supports.

The defendants in this case had no lawyer of their own, but represented themselves with the assistance of the public defender of this, county. Under these circumstances we are of the opinion that the failure to. give the same was such a fundamental error as. to require a reversal of this case as to the defendant Florence Nighten-gale O’Donnell. In the case of Sanders v. State, 48 Okla. Or. 65, 289 P. 798, 799, the court says:

“In the state’s brief the Attorney General sums up his conclusions in the following language:
“ ‘Therefore, in the opinion of the Attorney General, ■before the jury should have been permitted to. have convicted Della Sanders in this case they should have been instructed on the law relative to' an inference of duressi arising where the wife participated in a robbery “in the presence and with the assent of her husband.” ’
“In support of this proposition the Attorney General quotes from Collegenia v. State, 9 Okla. Cr. 425, 132 P. 375; Brock v. State, 6 Okla. Cr. [23], 24, 115 P. 1026; McKinney v. State, 20 Okla. Cr. 134, 201 P. 673; Nelson v. State, 34 Okla. Cr. 187, 245 P. 1009. This court agrees with the Attorney General that the evidence of the state clearly raises the issue of duress by reason of coverture and that the trial court should have instructed on this issue, whether requested to> do so or not. Where the issue of duress by reason of coverture is surrounded by doubt and the state’s evidence tends to rebut it rather than support it, it would not be error to fail to instruct thereon, especially in the absence of any request therefor. Whether the issues require such an instruction depends upon the evidence in each particular case, and the failure to give such instruction would not be reversible error in every case where a wife committed a crime jointly with her husband, but only where the evidence is clear that the crime was committed, if at all, in the presence and with the assent of her husband,” and the crime is not included within the exceptions of section 1516, supra. For the reasons stated, the cause will be reversed and remanded as to the defendant Della Sanders for failure to give an instruction upon the inference of duress because of the wife’s participation in the crime £in the presence and with the assent of her husband.’ ”

In McKinney v. State, 20 Okla. Cr. 134, 201 P. 673, 676, the court also said:

“Whether or not Mrs. Gregory, under the testimony here, was an accomplice, and whether or not she was acting under duress, were questions of fact for the jury. The jury may have concluded, under the instructions given by the court, that Mrs. Gregory was or was not an accomplice. If the part taken by Mrs. Gregory in these transactions was done under duress of her husband, there was. no culpable, criminal, intent on her part. In that case she would be neither a principal nor an accomplice. Section 2099, R. L. 1910, 21 Okla. St. Ann. § 157, provides as follows:
“ £A subjection sufficient to excuse from punishment may be inferred in favor of a wife from the fact of cover-ture whenever she committed the act charged in the presence and with the assent of her husband,’ etc., excepting certain crimes among which this is not included.
“The jury, under the provisions of the statutes, would be justified in drawing- an inference that Mrs. Gregory acted under duress of her husband, and was not an accomplice. But this is a rebuttable inference. These issues should have been submitted to the jury under appropriate instructions.”

It is also' doubtful if the evidence in this case, under the decisions of this court, was sufficient to permit the case to g*o to the jury against the defendant Florence Nightengale O’Donnell. There is no* evidence that she •participated in the robbery or that she had any knowledge that a robbery was or had been committed. Her only connection is that she was present in the automobile with her husband and her son and money -was found in her possession after the robbery. Under the presumption as defined by the statute that she acted at the direction of her husband, the presumption would be that in having possession of the money she acted under his influence and coercion. In the case of Caldwell v. State, 193 Ind. 237, 137 N.E. 179, 181, a wife was charged with receiving stolen property from her husband. The court says:

“It may be said that where the wife acts voluntarily she ought to be held liable whether her husband was present or not, or if she acted under compulsion she ought to be exempt from punishment, not because of the marital relation, but like any one else acting under such circumstances. However plausible this argument may seem, still the fact remains- that the Legislature of this state has never seen fit to- change the common law in this respect. Hence, as the common law prevails in this state as to all matters not changed or modified by statute, we hardly think it incumbent upon the court to' legislate, when it appears that the modern, as- well as the older, authorities- sustain the general principle of law that, when a married woman is indicted for a crime (excepting treason or murder) committed in the presence of her husband, the presumption of law arises from the husband’s presence that the wife acted under his coercion, entitling her to a discharge, unless this presumption is rehutted. State v. Harvey, 130 Iowa 394, 106 N.W. 938; State v. O’Neil, 147 Iowa 513, 519, 126 N.W. 454, 33 L.R.A. (N.S.) 788, Ann. Cas. 1912B, 691; State v. Fitzgerald, 49 Iowa, 260, 31 Ann. Rep. 148; Commonwealth v. Daley, 148 Mass. 11, 18 N.E. 579; Commonwealth v. Adams, 186 Mass. 101, 71 N.E. 78; State v. Miller, 162 Mo. 253, 62 S.W. 692, 85 Am. St. Rep. 498; Smith v. Schoene, 67 Mo. App. 604; United States v. Terry (D.C.) 42 F. 317; Davis v. State, 15 Ohio 72, 81, 45 Am. Dec. 559; Uhl v. Commonwealth, 6 Grat. 706 [47 Va. 706]; State v. Nelson, 29 Me. 329; State v. Houston, 29 S.C. 108, 6 S.E. 943; 2 Chamberlayne, Modern Evidence, § 1119; 2 Whart. Ev. (2d Ed.) § 1256; 1 Greanleaf, Ev. (Lewis’ Ed.) § 28; 3 Greanleaf, Ev. (Lewis’ Ed.) § 7; 3 Elliott, Ev. § 2253; 1 Taylor, Ev. (9th Ed.) § 190; Reynolds, Trial Ev. p. 169.

“In Commonwealth v. Daley, supra, 148 Mass. 13, 18 N.E. 579, it is said:

“ ‘No exact rule applicable to all cases can be laid down as to what degree o-f proximity will constitute such presence, because this may vary with the varying circumstances of particular cases. And where the wife did not act in the direct presence of her husband or under hid eye, it must usually be left to the jury to determine incidentally whether his presence was sufficiently immediate o-r direct to raise the presumption. But the ultimate question, after all, is whether she acted under his coercion or control, or of her own free will independently of any coercion or control by him; and this is to be determined in view of the presumption arising from his presence, and of the testimony or circumstances tending to rebut it, if any such exist.’
“Taylor on Evidence, supra, asserts that—
“ ‘It seems that a married woman cannot be convicted under any circumstances as a receiver of stolen goods, when the property has been taken by her husband and given to- her by him.’ ”

The facts in this case are somewhat similar to the facts in the instant case. However, we are going to reverse and remand this case as to the defendant Florence Nightengale. O’Donnell, with directions to the county attorney of Oklahoma county to take such action as he deems advisable as to- the further disposition of the same.

As to the contention that the judgment and sentence of 35 years in the penitentiary assessed against the defendant Peter Joseph O’Donnell is excessive, we have carefully examined the record, and find no reason for the modification of this sentence. The defendant’s conduct in the trial of this case showed much familiarity with courtroom procedure. He not only committed a daylight robbery in the business district of a large city, but he did so at the point of a gun, and with the assistance of his young stepson, whom he had no doubt influenced to participate therein. After the robbery had been committed, he evidently induced his wife and young stepson to go upon the witness stand and testify falsely that he did not participate in the robbery. Under this statement of facts, and in view of the statute, under which defendant was charged, which provided for a punishment of death by electrocution or by a punishment of life imprisonment, we cannot say that the court was not justified in sentencing this defendant to a period of 35 years in the penitentiary.

It is therefore ordered that the judgment and sentence of the district court of Oklahoma county be reversed) and remanded as to' the defendant Florence Nightengale O’Donnell, with directions to' the warden of the penitentiary at McAlester to immediately deliver said defendant to the sheriff of Oklahoma county, with directions to the county attorney to take such action as he deems advisable, and that the judgment and sentence of the district court of Oklahoma county, as to the defendant Peter Joseph O’Donnell be affirmed.

JONES, J., concurs. DOYLE, J., absent.


text:
    ED BAKER v. STATE.
    No. A-9854.
    Sept. 17, 1941.
    (117 P. 2d 174.)
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Douglas Garrett, Co'. Atty., of Muskogee, for the State.
    J. F. Beavers, of Muskogee, for defendant.
   BAREFOOT, P. J.

Defendant, Ed Baker, was charged by information filed in the district court of Muskogee county with the crime of “larceny from a boxcar”; was tried, convicted and sentenced to serve a term of six months in the penitentiary, and has appealed.

The only contention of defendant for reversal of this case is that he was' not guilty of any criminal intent, and that therefore the verdict and judgment and sentence is contrary to the law and the evidence. The defendant was charged with the violation of article 7, ch. 15, of the Session Laws of 1937, sections 1 and 2, O, S. A., Title 21, §§ 1723 and 1724, which are as follows:

(1) “Any person entering and stealing any money or other thing of value from any house, railroad car, tent, booth or temporary building shall be guilty of larceny from the house. Larceny from the house is declared to be a felony.”
(2) “Any person convicted of larceny from the house shall be punished by imprisonment in the State Penitentiary for a period of time not to exceed five (5) years.”

The record reveals that defendant resided near the railway tracks of the Missouri, Kansas & Texas Railway Company in the city of Muskogee. That on the 28th day of July, 1939, he was seen by various parties and officers on top of a railroad refrigerator car in the Missouri, Kansas & Texas yards. He was engaged in throwing “chunks” of ice from the car. Several other parties were there assisting- him, among them was his wife. About 2'50 pounds of ice ivas found near the track behind a fence, and about 200 or 250 pounds more was on the ground where it had been thrown from the top of the car by defendant.

The evidence revealed that the car from which t¡he ice was taken Avas an empty refrigerator car that was being transported to Fort Worth, Tex., for the purpose of being loaded for shipment. It had been iced at either Kansas City or Parsons, Kan. It was customary, when ordered, to ice refrigerator cars so they would be cold Avhen loaded. The ice was placed in the cars from the top and there was a door in the car which closed and kept the ice from melting. It was from these doors that the ice was being taken by defendant and throAvn to the ground from the top of the car. The evidence also revealed that the refrigerator car from which the ice was taken was a part of a through train which had arrived in Muskogee just a short time before the defendant was arrested. The engine had been detached from the train for the reason that the crews were being changed, and the car was taken to Fort Worth soon after the defendant was arrested. The evidence revealed that the other parties were not detained by the officers. Defendant was charged alone and was tried and convicted.

It was also developed that in recent times the railroad company had lost considerable personal property, consisting of ice, coal and other personal property, from its cars in the Muskogee yards.

Defendant, testifying in his own behalf, admitted the taking of the ice, but as an excuse testified that it was customary to take ice from empty cars in the yard, and that he and others had done so many times before and at times with the consent of employees of the railroad company. He admitted that no one gave him authority to take the ice on the occasion of his arrest and that he had asked the others to go with him and help him get it. The defendant also admitted that he had served a term of three years in the penitentiary of this state “for shooting a man.”

The state in this case contends that the appeal should be dismissed for the reason that the record does not show that notice of appeal was served upon the court clerk of Muskogee county, as provided by statute. Okla. Sts. 1931, section 3193, O. S. A. Title 22, § 1055.

We have examined the record and find that this is true. There is authority for dismissing the appeal for this reason. Burgess v. State, 18 Okla. Cr. 574, 197 P. 173; Robinson v. State, 17 Okla. Cr. 717, 189 P. 763. But inasmuch as the recent 1941 Session of the Legislature passed a law that no summons in error shall be required and the party desiring to appeal shall only give notice in open court, either at the time the judgment is rendered or within ten days thereafter, of his intention to appeal to the Criminal Court of Appeals, Session Laws 1941, p. 89, 22 Okla. St. Ann. § 1055, we have decided to examine the record and pass upon the merits of this1 appeal.

The statute under which defendant was charged was passed by the Legislature of this state in 1937. We have had occasion in two' cases to refer to this statute. Gransbury v. State, 64 Okla. Cr. 408, 81 P. 2d 874; Potts v. State, 72 Okla. Cr. 91, 113 P. 2d 839. The questions there involved do not touch upon the question here involved, but they do give the intention and purpose of the Legislature in enacting this statute. It should be noted that the penalty prescribed by the statute is “imprisonment in the State Penitentiary for a period of time not to' exceed five (5) years,” It does not provide for a jail sentence or the payment of a fine. When this1 case was orally argued before this court at the time of its submission, the court suggested to the attorney for defendant that he brief the question as to> whether or not we had the right, under the statute, to modify this judgment and sentence to a jail sentence or a fine. Counsel in his brief s¡ays:

“Pursuant to the directions of this court at the time of oral argument, we have searched the law and the authorities in an effort toi ascertain whether or not this court could reduce his punishment to' a term in the county jail. We confess that we are unable to find such authority if it exists.”

We had not read the record at the time of the oral argument and if we had the authority under the statute we might deem it wise to' modify the judgment and sentence in this case by reason of the fact that the amount of property taken was only of the value of f>2.50 or less, yet there are facts and circumstances in this case which might cause us to hesitate to modify this judgment and sentence had we the power to do* so.

As to the proposition of defendant’s intent to commit a crime, we think that the proof is amply sufficient under the laws and facts to show that defendant intended to steal the property and appropriate the same to his own use. The fact that he had taken about 500 pounds of ice from the car, that a part of it had been taken from the tracks before he was apprehended, that it was necessary for him to go on top of the car and for someone to go through the door and into the car to' procure the ice, and the further fact that the car was part of a through train and was not an empty car standing on the siding, were all facts for the consideration of the jury upon the question of intent. We think the jury did not err in finding the defendant guilty and that the property was taken with the intent to deprive the owner thereof and to appropriate the same to' his own use and benefit. 36 Corpus Juris 767, § 109; Taylor v. State, 65 Okla. Cr. 432, 88 P. 2d 665; Drossos v. United States, 8 Cir., 16 F. 2d 833; Wilson v. State, 50 Okla. Cr. 310, 297 P. 826; Lawrence v. State, 20 Tex. App. 536, 540; Lancaster v. State, 3 Cold. (Tenn.) 339, 91 Am. Dec. 288; Vick v. State (Tex. Cr. App.) 69 S.W. 156; Crockford v. State, 73 Neb. 1, 102 N.W. 70, 119 Am. St. Rep. 876; State v. Welch, 73 Mo. 284, 39 Am. Rep. 515.

Under the law and the evidence we are of the opinion that the judgment and sentence of the district court of Muskogee county should be affirmed, and it is so ordered.

JONES, J., concurs. DOYLE, J., absent.


author: JONES, J.

text:
    ROBERT TODD v. STATE.
    No. A-9781.
    Sept. 17, 1941.
    (117 P. 2d 170.)
    Morton Perry, 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, Robert Todd, was charged in the district court of Oklahoma county with the crime of burglary in the second degree; was tried, convicted and sentenced to serve two years in the State Penitentiary, and has. appealed.

The only contention presented by the defendant is that the evidence of the state is insufficient to support the verdict.

The proof on behalf of the state showed that the defendant, a young man about 22 years of age, had worked for the Paas Hardware Store in Edmond for about a year and a half, but bad quit about nine months before the alleged burglary occurred.

About midnight on February 22, 1939, a burglar alarm sounded in the police station at Edmond, indicating a burglary in the Paas Hardware building. Officers Green and Burks proceeded separately to the building. Green remained at the rear of the building, while Burks went to an adjacent building to telephone the owner of the store.

Officer Green testified that while he was at the rear of the building, watching the store, the defendant ran out of the rear door and started across the alley towards a hedge; that he yelled for the defendant to halt, but that he continued to run, whereupon the officer shot him in the leg with a load of buckshot. The defendant fell in the middle of the alley, where his wound was bleeding profusely. An ambulance was summoned, and the defendant was; taken to a hospital in Oklahoma Oity where he later recovered from his: wound.

Officer Green further testified that while talking to the defendant in the alley before the ambulance arrived, the defendant confessed to entering the building through the sky well, and further admitted entering the building three or four times and securing about $70 in cash altogether.

Officer Burks testified concerning the ringing of the burglar alarm, his proceeding to the store building, leaving Officer Green at the rear of the building, to watch the store while he proceeded to a telephone to call the owner of the store, and of hearing a shot in the alley; that after he heard the shot, he hurried to the alley and found the defendant and Officer Green together, and defendant suffering from a gunshot wound in the leg.

Mr. Pass, the . owner of the store, testified that the defendant had worked for him and knew the layout in tbe store. His further testimony showed that he had had nine burglaries there at other times, and had installed the burglar alarm in an endeavor to thwart further burglaries. He described the skylight and the placing of the wires so that an entry would set off the alarm.

Officer Rurbs and Officer Green, each, testified to another conversation had with the defendant while he was in the hospital, in which the defendant again stated that he had broken into the store three or four times and had taken about $70 altogether.

It was the contention of the defendant that Officer Green had shot him by mistake; that he was testifying falsely as to the facts about defendant running down the rear of the building to escape prosecution for unlawfully shooting him. The defendant testified that he was working his way through college at Edmond; that he had been to see some friends at a bakery that night; and: owing to the extreme cold, he started down the alley-way to his car, and was walking close to the building to. stay out of the wind. That the officer yelled at him to stop, and that he didn’t know who it was and commenced to< run, and was shot.

On cross-examination, some discrepancies in his testimony are brought out by the county attorney.

■Several witnesses testified as to the good reputation of the defendant.

At the close of the evidence, the trial court correctly and fairly presented the issues to. the jury for their determination. There is no contention made here that the instructions did not fairly and accurately present all questions to. the jury.

We feel sympathetic towards the defendant because of bis age and uu doubt the jury felt likewise, as they made a notation on their verdict, “We recommend leniency.” The minimum penalty was assessed by the jury, but the question of leniency was a matter addressed to the discretion of the trial court as to whether, under the circumstances, he might see fit to suspend the sentence which he imposed upon the defendant.

The proof on the part of the state was that this defendant entered the store building with intent to steal. 'The skylight on the building showed that it had been entered. The most that can be said for the defendant is that his story presented a question of fact for the determination of the jury; and the jury has held against him. Under the uniform decisions of this court, we shall not interfere with the verdict of the jury where there is competent evidence in the record, such as here, to support the verdict.

The judgment of the district court of Oklahoma county is accordingly affirmed.

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


text:
    Ex parte WOODY VANDERBURG.
    No. A-10044.
    Sept. 17, 1941.
    (117 P. 2d 550.)

      Looney, Watts & Fenton, of Oklahoma City, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   JONES, J.

This is an original proceeding in habeas corpus, wherein the petitioner, Woody Vanderbnrg, seeks his release from imprisonment in the State Penitentiary.

The verified petition filed herein alleges in substance that the petitioner has been committed to the State Penitentiary by reason of a certain judgment and sentence pronounced by the district court of Oklahoma county, in case No. 13136. That said restraint is illegal, and petitioner’s conviction was procured without due process of law by reason of the following facts:

That the petitioner was charged on April 27, 1939, with the offense of burglary in the second degree, after a former conviction of felony; that the case was set for trial on May 10, 1939, at which time the petitioner’s attorney, Wayne E. Wheeling, was ill, which fact was properly brought to' the attention of the trial judge by written certificate; that the petitioner stated in open court that one Glen Morris was his attorney; that the said Glen Morris was present in the courtroom, denied being the defendant’s attorney, and refused to aid and assist in his defense; that petitioner was then without proper counsel or representation, and the court did not appoint counsel to aid petitioner in his defense, and did not grant petitioner a continuance as requested by him; that the court ordered the case to' trial and proceeded to select a, jury for that purpose; that the petitioner thereupon, at the suggestion of certain bystanders, and without the benefit of counsel, and being ignorant of his rights, withdrew his former plea of not guilty and entered a plea of guilty .to the charges alleged in the indictment.

That thereafter, and before being sentenced by the court on the 3 9th of May, 1939, application was made for leave to withdraw said plea of guilty, which was by the court denied, and the petitioner was thereupon sentenced to’ serve a term of 15 years in the State Penitentiary at McAlester, and was subsequently delivered to the warden pursuant to' said commitment.

The rule to' show cause was issued, and a response filed by the warden of the State Penitentiary, in which he attaches a photostatic copy of the judgment and sentence pronounced against the petitioner.

The response further alleges that after the petitioner entered his plea of guilty on May 10, 1939, that sentence was set for May 19, 1939, at which time the petitioner was duly represented by counsel, and presented his motion for leave to' withdraw his plea of guilty, and introduced evidence in support of such motion; that after a hearing before the court on said motion, the motion was overruled, and petitioner was sentenced; that the petitioner, through his counsel, at that time gave notice of his intention to appeal to the Criminal Court of Appeals, and was given an extension of time to’ mate and serve case-made; that thereafter petitioner filed his motion for a new trial in said cause, which was heard and overruled, and that petitioner again procured an order1 granting time to make and serve case-made; that thereafter several orders extending the time to make and serve case-made were filed, but no appeal was ever perfected; that ¡petitioner’s proper remedy was by appeal, and having abandoned his appeal, he is not entitled to substitute therefor this application for habeas corpus.

The response further states that the said Woody Vanderburg- is not inexperienced in court and unfamiliar with his legal rights, but alleges that he has been arrested nearly 40 times for past offenses in various counties of Oklahoma and in Wichita Palls, Tex.; that he has served time for convictions obtained upon felony charges at least three times in the Oklahoma state prison.

Upon the issues thus being joined, a hearing was had before this court. In addition to the oral evidence introduced upon said hearing, a transcript of the proceedings had before the Honorable Clarence Mills, district judge of Oklahoma county, in connection with the plea of guilty, was introduced in evidence.

The evidence shows that the petitioner is a young man, about 25 years of age, who has been having trouble with the officers for the past ten years, it being shown that he has been arrested for various felonies and misdemeanors approximately 40 times since 1931. Included in the list are convictions for many misdemeanors; and his record further shows four felony convictions for forgery, robbery, and burglary.

The transcript of the record taken at the hearing before the district court shows that a motion to withdraw-' the plea of guilty entered by the petitioner on May 10, 1939, was filed and a hearing had upon said motion on May 19, 1939, before sentence was1 passed.

After the court had heard the evidence, the application was denied and sentence was pronounced against the petitioner. Notice of appeal was given, but no appeal from the action of the court was ever lodged in this court.

The record shows that the petitioner had the aid! and assistance of able counsel when the application to withdraw the plea of guilty was presented, and a record was made which properly raised the questions for review in this court; but no appeal was taken.

The question as to whether the trial court abused its discretion in refusing to allow a defendant to withdraw a plea of guilty is properly a matter which should be brought to this court by appeal. It is well settled that .the writ of habeas corpus may not be used as a substitute for an appeal. Ex parte Tollison, 73 Okla. Cr. 38, 117 P. 2d 549; Ex parte Thomas, 56 Okla. Cr. 258, 37 P. 2d 829; Ex parte Barnette, 29 Okla. Cr. 80, 232 P. 456.

In addition to this, however, the record does not show that the petitioner has been committed without due process of law. When the case was called for trial, the petitioner announced that his attorney was G-len O. Morris. Mr. Morris, being present in the courtroom, advised the court that he had discussed the matter with! the petitioner and was prepared to represent him, but that final arrangements had not been made for the payment of his fee, and that he did not wish to. go to trial until his fee was paid, and asked the court to continue the case for one week. This application for a continuance was denied by the court, who> stated:

“Let the record show Case No. 13136, State v. Woody Yandewburg wag regularly set for trial at 9 o’clock this date, he being charged with burglary after conviction, the State appears by Assistant County Attorney, Walter Marlin, and Wayne Wheeling is noted on the trial docket as attorney for the defendant. Attorney Bob Howe appears and files in the case a statement from one W. D. Baird, a doctor, which is ordered filed.
“The defendant Vandewburg” in open court states that his attorney is Glen Morris and not Mr. Wayne Wheeling. Mr. Morris asks for a continuance. The Court announces that the case is regularly set for trial and will be continued unless by agreement of the attorneys, or upon making the proper statutory showing. The State announces ready for trial, and the Court orders the clerk to call a jury.”

After the court made the above remark, Mr. Morris had himself sworn as a witness and dictated a long statement into the record concerning his connection with the case, and ended his statement with the assertion that if the case could be continued for a short time that, “A plea will be entered that will satisfy the defendant and satisfy the officers and the state.”

After considerable colloquy between Mr. Morris and the court, during which the petitioner was sworn and: questioned by Mr. Morris as to what arrangement he had made to pay Mr. Morris a fee, the court again stated that the proposition presented by counsel was not sufficient to make a statutory showing, entitling the petitioner to a continuance, and that he was going, to' try the case if the county attorney insisted. The county attorney insisted upon a trial, and the court again directed the clerk to call a jury, at which time the following occurred:

“Mr. Yandeaburg: Your honor, I think we can get something worked out here SO' we won’t have a trial. I have tried to make some arrangements, but have not completed them. If the court forces me I will have to plead guilty. The Court: I am not going to' force you to do anything, except talk to these 12 men we are going to call in the box. That is the only thing you are going to have to do. I mean by that, you or your witnesses. I don’t care whether you take the stand or not. The case is going to' go to trial this morning. Mr. Vandewburg: We are trying to> work out some kind of an arrangement over here. The attorney has almost agreed. I know I am trying to make some arrangements. I want to' enter’ a plea of guilty now.”

After the petitioner had entered his plea of guilty, the court asked him considerable questions about the alleged offense and his prior convictions. The petitioner admitted breaking and entering the building in question, with the intent to steal some merchandise contained therein, and told the court about bis former convictions for felonies. Some of the questions and answers are as follows :

“Q. Did you break into' the building? A. Yes, sir. Q. What did you intend to do> after you broke in? A. I was arrested soon afterwards in my automobile. Q. What did you break in there for? What were you going to do after you broke in there? A. I intended to take some merchandise from the store.”

After the court had finished the questioning of the petitioner, the following occurred:

“The Court: Is there anything you want to ask him, Mr. Morris? Mr. Morris: No; I don’t consider I am representing the boy at this hearing. The Court: You may not consider it that, but the record pretty well shows you have been.”

After the above statements, the court questioned the petitioner further concerning his prior convictions, and the following questions were asked:

“Q. (By the Court) You want to go on with Mr. Morris after this? A. I don’t know. I absolutely don’t know. Q. That is up to you entirely. That is your business. I haven’t got anything to do with that. I just want to know, because I am going to' set this over so you can have a little time to make what arrangements you can and see whether the thing can be worked out or not, and' X will give you a little time. I am not going to.crowd you into' that. If you want to go on with him, that is all right. A. Yes, sir; I do. Thank you. Q. All we want you to' do- is just be fair with us and we will be fair with you. We will go more than halfway with you if you just show a proper disposition. I will set this over until 9 o’clock a. m. May 19. That is 12 days. No; that is 9 days. Mr. Marlin: Does the record show that he entered a plea of guilty? The Court: Yes. Q. (By the Court) If it does not, that is a fact isn’t it? A. Yes, sir. Q. You told me you were guilty of the entrance charge there? A. Yes.”

We think the above excerpts taken from the record are sufficient to show that this petitioner and his counsel never at any time contemplated doing other than, entering his plea of guilty to the charge which was filed against him. His only interest apparently being in the hope that he might, with the assistance of counsel, he able to bargain with the county attorney and secure the filing of an amended information charging the offense of second degree burglary and omitting any reference to a former conviction. In such case, the maximum penalty would; have been seven years in the State Penitentiary. In fact, it was stated in the hearing before the district court upon the application to* withdraw the plea of guilty that petitioner was trying to raise $200 to pay his counsel in the hope that his counsel, through the assistance of certain police officers, could induce the prosecution to reduce the charge to a plain burglary charge.

In considering the background of the petitioner, his past experience and conduct with the officers, it is apparent that instead of being inexperienced, as alleged in his petition, that he was fully acquainted with all of the things that Avere transpiring in the courtroom. It can hardly be said that a person who has been haled before the courts of this land 40 times for violations of the law is inexperienced in court matters and ignorant of his rights. The petitioner’s questions addressed to the trial court and answers he made to questions directed to him by the court convince us that he thoroughly knew his legal rights in connection with the prosecution against him.

In the case of Ex parte Grant, 32 Okla, Cr. 217, 240 P. 759, 760, in speaking of the writ of habeas corpus, this court said:

“Its scope, when directed to an. inquiry into the cause of imprisonment in judicial proceedings, extends to questions affecting the jurisdiction of the court and the sufficiency in point of law of the proceedings. Mere errors or irregularities in a judgment or proceeding of a court under and by virtue of which a, person is imprisoned, which are not of such a character as to render the proceedings void, cannot be reviewed on an application for a writ of habeas corpus. Where a prisoner in custody under sentence of conviction seeks to be discharged on habeas corpus, the inquiry is limited to the questions whether the court in which the prisoner was convicted had jurisdiction of the person of the defendant and of the crime charged, and did the court have jurisdiction to render1 the particular judgment.”

In Ex parte Owens, 37 Okla. Cr. 118, 258 P. 758, 760, this court held:

“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 not only within the authority of this court, but it is its duty upon habeas corpus to inquire into the illegality of the commitment when the matter is properly brought before it by petition, 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 in order to preserve the constitutional right of all persons not to be deprived of liberty without due process of law.”

If we were to attempt in this proceeding to pass upon all of the questions raised by counsel, it would be an innovation in criminal procedure and would simply mean an end to appeals being taken from convictions for crime, and henceforth prisoners would seek their release from imprisonment by an original proceeding in habeas corpus filed in this court. Under the uniform decisions of this court, the only question we may determine in this proceeding is whether the trial court lost jurisdiction to pronounce judgment against the petitioner upon his plea of guilty, for the reason that the petitioner in the proceedings in the lower court was denied his right to counsel.

Under the record as we view it, this contention must be held against the petitioner. The trial court took .the view that petitioner had counsel in the proceedings, before him, evidently forming this opinion upon the statements made by petitioner and Mr. Morris during said; proceedings. It is true that an accused is entitled to the assistance of counsel in his defense; and if he is unable to employ counsel, the court should assign counsel to represent him.

It is apparent from the record that the petitioner and Mr. Morris had many whispered consultations during the proceedings leading up to the plea of guilty by the petitioner, and we are firmly convinced that, although Mr. Morris stated that he had not received his fee and accordingly the contract of employment was not completed, he had advised with the petitioner concerning the possible and probable consequences of a trial to á jury and of a plea of guilty made to the court.

The other questions, as to whether the court abused its discretion in refusing the petitioner the right to withdraw his plea of guilty and of the excessiveness of the punishment, cannot be determined in habeas corpus proceeding, but should have been raised by an appeal, taken in the proper manner and in the time allowed by law.

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

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


author: PER CURIAM.

text:
    Ex parte GLEN WILKERSON.
    No. A-10135.
    Sept. 17, 1941.
    (117 P. 2d 172.)

      W. N. Redwine, of McAlester, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   PER CURIAM.

This is an original application for writ of habeas corpus wherein the petitioner, Glen Wilkerson, alleges that he is unlawfully restrained of his liberty in the county jail of Comanche county at Lawton, Okla/

It has been stipulated between counsel for petitioner and respondent that this case should be governed by the opinion of this court in the case of Ex parte Meadow’s, 71 Okla. Cr. 353, 112 P. 2d 419.

This is a companion case to the Meadows case, supra, as the said Clyde Meadows and the petitioner herein were jointly charged with robbery, were arrested at the same time, and all proceedings were had against them jointly.

This court in the case of Ex parte Wilkerson, 72 Okla. Cr. 301, 115 P. 2d 923, followed the decision which was rendered in the case of Ex parte Meadows, 70 Okla. Cr. 304, 106 P. 2d 139, and vacated the proceedings of the district court of Comanche county and remanded the petitioner to the custody of the sheriff of Comanche county to< be held by him pending further proceedings! against him. Subsequent to that opinion, this proceeding was instituted by the petitioner, who contends that he has been denied his right to> a speedy trial and makes the same contention as was made by the petitioner, Clyde Meadows, in the case of Ex parte Meadows, 71 Okla. Cr. 353, 112 P. 2d 419.

This case, therefore, is governed by the opinion rendered by this court in Ex parte Meadows, 71 Okla. Cr. 353, 112 P. 2d 419.

It is therefore ordered that the petition for habeas' corpus be denied.


text:
    Ex parte CARL A. DOLL.
    No. A-10114.
    Sept. 24, 1941.
    (117 P. 2d 547.)

      Mac Q. Williamson,, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   BAREFOOT, P. J.

The petitioner, Carl A. Doll, has filed his petition in this court for a writ of habeas corpus, alleging, that he is now confined in the State Penitentiary at McAlester; that said confinement is by reason of two commitments issued out of the district court of Muskogee county and two commitments issued out of the district court of Wagoner county.

Petitioner first complains that he was brought from the State of Arkansas to Muskogee county, Okla., when no warrant had been issued for his arrest. The response filed by the warden of the penitentiary in this cause denies all the allegations of the petition, and no proof appears in the record to support this allegation. We therefore presume that this contention has been abandoned.

It is further alleged that petitioner was delivered to the Muskogee county jail and taken before a justice of the peace on October 3, 1938, and that he was bound over to the district court; that he demanded his legal rights be preserved, but they were refused by the justice of the peace; that petitioner was returned to the Muskogee county jail, and on October 4, 1938, he was taken to the county attorney’s office, where it was agreed between the petitioner1 and the county attorney that he be allowed to plead guilty and receive a sentence of five years. This agreement was carried out, and petitioner Avas on the 4th1 day of October, 1938, sentenced to serve a term of five years in the penitentiary at McAlester on his plea of guilty.

It is further alleged that petitioner Avas immediately surrendered to the sheriff of Wagoner county, in violation of his rights, and that he remained in the county jail of Wagoner county from the 4th day of October, 1938; to the 13th day of October, 1938, without any charges1 being filed against him; that on the 13th day of October, 1938, he was returned by the sheriff of Wagoner county to the sheriff of Muskogee county, where he was1 taken before a justice of the peace and waived preliminary hearing; that after having' waived preliminary hearing, an information was filed against him in Muskogee county in case No. 6906; that this plea of guilty was given by reason of a “guarantee” of the county attorney of Muskogee county that his sentence would run concurrently with the sentence theretofore given on October 4, 1938, in case No. 6902; that immediately after sentence was received in each of the above cases, the petitioner was surrendered to the sheriff of Wagoner county, where on the 15th day of October, 1938, he was taken before the district judge of Wagoner county, and on his plea of: guilty, two five-year sentences, to run concurrently, in cases Nos. 1958 and 1959, were entered. It is contended by petitioner that the judgments and sentences in 1958 and 1959 in Wagoner county are illegal and void for the reason that the record fails to show that any complaint was ever1 filed in the justice of the peace court of Wagoner county, that any preliminary complaint was ever filed or that any preliminary examination was ever had, but that the informations in these cases were originally filed in Wagoner county without any preliminary complaint being filed or any preliminary examination ever had.

It is finally contended that the judgments and sentences from Muskogee county having run concurrently and having been served in full, and that the judgments and sentences from Wagoner county being illegal and void, the petitioner is entitled to his release.

The contention of petitioner that the judgments and sentences in cases Nos. 6902 and 6906 from Muskogee county, the first of which was rendered on October' 4, 1938, and the second on October 13, 1938, respectively, should run concurrently, has been denied by this court in the case of In re Flowers, 71 Okla. Cr. 330, 111 P. 2d 509, 512. In that case Judge Jones discusses this question and reviews the authorities. It is there said:

“Before the court has jurisdiction to provide that the sentences shall run concurrently, the convictions must have been sustained in both cases before sentence has been pronounced in either. The only authority for concurrent sentences under our law must be derived from sections 3144 and 3145, supra, 22 Okla. St. Ann. § 976, 21 Okla. St. Ann. § 61. The power is granted to trial courts on the conditions there named. In all other cases', the sentences are consecutive.
“See Ex parte Bell, 34 Okla. Cr. 354, 246 P. 893; Ex parte Hudson, 44 Okla. Cr. 14, 279 P. 711; Ex parte Strader, 37 Okla. Cr. 285, 257 P. 1112; Ex parte Halbert, 45 Okla. Cr. 167, 282 P. 478; Ex parte Gilbert, 52 Okla. Cr. 260, 4 P. 2d 695; In re Johnson, 58 Okla. Cr. 209, 52 P. 2d 107.”

The judgments and sentences in the two Muskogee county cases, Nos. 6902 and 6906, respectively, not running concurrently, petitioner has not served the judgment and sentence in those cases and is therefore not entitled to be released by writ of habeas corpus. As was stated in the Flowers Case, this is properly a question for the consideration of the Governor under the Constitution and statutes of this state. The judgment and sentence in case No. 6906 provides that “the sentence to' run concurrent with sentence imposed in case No. 6902,” showing that it was the intention and understanding of the county attorney and district judge that the judgments and sentences should run concurrently. Under the law as announced in the preceding cases cited, the court did not have authority to- enter this order. The question of righting this wrong is a matter that may be presented to the Governor under the Constitution and statutes of this state.

From what has heretofore been stated, it is unnecessary to' discuss or pass upon the question of the legality of the judgments and sentences from Wagoner county. It is clear that the writ of habeas corpus should be denied. It is so ordered.

JONES and DOYLE, JJ., concur.


text:
    Ex parte J. H. TOLLISON.
    No. A-10089.
    Sept. 24, 1941.
    (117 P. 2d 549.)

      Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   JONES, J.

The petitioner, J. H. Tollison, is incarcerated in the penitentiary upon conviction in the district court of Pontotoc county upon four felony charges. The convictions were obtained in trials before the court sitting without a jury, and in the judgments it is provided that the sentences against the petitioner shall each run concurrently with the sentence pronounced in case Na 3288.

The petitioner has filed his verified petition in this court, seeking his release from imprisonment. The petitioner in filing his petition evidently has acted without benefit of an attorney to advise with him in the preparation of his petition, as it is poorly prepared and does not allege sufficient facts upon its face to show that the petitioner is entitled to his discharge. Accordingly, the Attorney General has interposed his demurrer to said petition and has asked this court to deny the writ of ha-beas corpus upon the facts set forth in said petition.

Many prisoners in state institutions are constantly writing this court concerning their imprisonment. Many of them, as is done in the instant case, mail to us what is styled a petition in habeas corpus, in which they complain of the illegality of their imprisonment, but do not set up in their petitions sufficient facts to enable the court to thoroughly understand the proceedings by which the prisoner stands committed to the state institution.

In the particular case now under discussion, the petitioner complains of his commitment in one case, and alleges that the court tried him without a jury, and that he at noi time waived a jury. However, the record of conviction attached to the petition, which was not certified to by the court clerk of Pontotoc county, but which petitioner alleges is a true record, shows convictions and commitments on four charges. 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 he 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.

This court is very liberal in construing petitions filed by inmates of state institutions which are prepared without the advice and help of an attorney, as we realize that there will be many cases where prisoners may have good grounds for petitioning this court for relief, but are unable to secure the assistance of an attorney because of their financial condition or otherwise; and in those instances we give every reasonable inference that we can to their petitions to see whether the same are sufficient on their face to justify a hearing upon the issues thus raised.

The petitioner herein attaches what he alleges to be four true and correct copies of judgments and sentences pronounced against him in four felony cases. These instruments appear to be regular upon their face, and no facts are alleged in the petition which would justify this court in setting aside these judgments of conviction rendered by a court of competent jurisdiction.

We again call attention to the fact that this court on habeas corpus will not look beyond the judgment and sentence of any court of competent jurisdiction as to mere irregularities of procedure or errors, of law on questions over which the court has jurisdiction. The writ of ha-beas corpus cannot be used to perform the office of a writ of error on appeal, but will be limited to cases in which' the judgment and sentence of the court attacked is clearly void. See Ex parte Dunn, 33 Okla. Cr. 190, 242 P. 574; Ex parte Grant, 32 Okla. Cr. 217, 240 P. 759; Ex parte Hollingshead, 24 Okla. Cr. 131, 216 P. 486.

The petitioner herein had counsel of his own choosing at the time of his trial, and his remedy, if any of his rights were denied in the proceedings, or if the evidence was insufficient in his opinion to support the conviction, should have been by bringing his case to this court in the proper manner by appeal.

For the reasons hereinabove stated, the demurrer of1 the Attorney General to the petition filed herein should be sustained, and the petition for habeas corpus denied.

It is so ordered.

BABEFOOT, P. J., and DOYLE, J., concur.


text:
    A. C. DONALDSON v. STATE.
    No. A-9842.
    Sept. 24, 1941.
    (117 P. 2d 555.)

      H. P. Hosey and I. C. Sprague, both of Idabel, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and Jess L. Pnllen, Asst. Atty. Gen., fon defendant in error.
   JONES, J.

The defendant, A. C. Donaldson, was charged in the district court of McCurtain county with the crime of rape in the first degree; was tried, found guilty, and sentenced to serve 15 years in the State Penitentiary, and has1 appealed.

The defendant in his brief presents four assignments of error as follows:

(1) Error of.the court in overruling defendant’s motion for a continuance.
(2) Error of the court in overruling defendant’s motion to- suppress the evidence.
(3) Error of the court in denying defendant’s challenge to* the special venire of jurors.
(4) Error of the court in refusing to instruct the jury on assault with intent to commit rape.

The first two assignments of error are without merit. This case will have to he retried, and it is not necessary to discuss these two assignments of error other than to-state that in connection with the second assignment of error the court ruled properly in admitting in evidence the rag found by the officers at the scene of the alleged attack upon the little girl named in the information.

The defendant has extensively briefed the proposition urged in his third assignment of error. The Attorney General in his answer brief has wholly omitted any reference to- this question. The authorities cited by counsel for the defendant fully support the contention of the defendant, and the failure of the Attorney General to brief this question is taken by this court as a confession ■by that office that the defendant’s contention in this regard is correct. However, despite the lack of a brief on this; point by the state, this court has closely examined the record and the various authorities, pro and con, upon the proposition urged, and has come to the conclusion that the court erred in not sustaining the challenge of the defendant to the special venire on account of the implied bias of the sheriff, Joe Hough.

It is disclosed by the record that when this case was called for trial, a jury from the regular panel was called into the jury box, and proceedings; towards a selection of a jury to try said case were begun. By reason of a number of jurors being excused, the court during the examination issued an order directed to the sheriff in summon a special venire of 20 talesmen, and recessed the court until the following day at 9 a.m.

The following morning at the convening of court, and before any additional jurors were called to' the box, the defendant filed a written challenge to the open and special venire, alleging that Joe Hough, sheriff of Mc-Curtain county, had summoned said special venire; that he had been active on behalf of the prosecution in this! case; that he had talked with witnesses, and had formed and expressed an opinion as to> the guilt of the defendant, and had taken the prosecuting witness away and.' secreted her SO' that counsel for the defendant could not interview her, and had brought her back to the county seat just before the commencement of the trial; that two of the deputies of said sheriff are material witnesses for the state and are endorsed on the information as such; that by reason of the bias and prejudice of said sheriff against the defendant, any special venire summoned by said sheriff would be biased and prejudiced against the defendant.

After this challenge in writing was filed, the defendant called the sheriff and had him sworn and examined concerning said matter. The sheriff testified in substance that he knew in general about the case, but had not spent any special time on it; that two of his deputies, Mr. Butler and Mr. Tinsley, had assisted in the investigation of the facts leading up to the charges being filed against the defendant, and were material witnesses for the state. That at the direction of the county attorney he called the superintendent of the girls’ school at Tecumseh to arrange to take the prosecuting, witness to' that institution; that he directed one of his deputies to take the girl to Tecumseh, but that he went after her at the direction of the county attorney on Sunday before the commencement of the trial of the case on Monday. That he did not have a commitment to> the institution for the girl, but took her there at the request of the county attorney.

Among other questions and answers given by the sheriff are the following:

“Q. I will ask you, Mr. Hough, if you haven’t helped! the prosecution in this case to select the jurors, gave them information as to what jurors would make good jurors and what would not? A. Well, I just can’t hardly say about that. That I have helped these two men to select these twelve men they have up here? Q. Yes, gave them information? A. I have expressed an opinion about some of them, yes, sir. * * * Q. I will ask you if you did not talk to Ed Shipp in the county judge’s office yesterday in a conversation about some of the jurors on this case, whether or not they should be kept or discharged? A. I haven’t. I don’t recall having a conversation with Ed Shipp at all. Q. Or Tom Finney? A. Tom and I have .talked about them, but promiscuously talked about them. Q. Just talked about the jurors who were on the panel and the ones that were in the box, you were talking about them? A. We didn’t go into detail about them. Q. I am not asking, if you went into detail, but tallied about the jurors in the box? A. We expressed an opinion about them, talked about some of the men would make good jurors and some might not. Q. And some might not? A. Yes, sir.”

On cross-examination the sheriff stated that he was not a witness to any of the facts in the case, had not been subpoenaed by either side, and did not have any bias or prejudice against the defendant. That he did not talk to any member of his special venire when he summoned them about the facts of the case or suggest to them whether the defendant was guilty or innocent.

On redirect examination the sheriff admitted summoning K. S. Tinsley, whoi is the father of his deputy sheriff, Clyde Tinsley, who- was a material witness for the state in the case.

In the recent case of Kizer v. State, 64 Okla. Cr. 222; 78 P. 2d 831, 832, this question was discussed at length by Judge Barefoot. In that case it was held:

“Under the provisions of section 2987, Oklahoma Statutes 1931, Okla. St. Ann. tit. 22, § 639, when a panel is formed, or in part formed, from jurors whose names arei not drawn from the jury box, a challenge may be taken to the panel on account of any bias of the officer who summoned them, which would be good ground of challenge to a juror.
“It is essential to1 the fair and impartial administration of justice that talesmen, or a special venire, should be summoned by an officer wlm is not disqualified by reason of interest, bias, or prejudice.
“The trial court in the exercise of a sound discretion has the right to issue an order commanding the sheriff, or other suitable person, to- summon jurors from the body of the county, or from such portion of the county as the court may order.”

In the body of the opinion it is stated:

“There is no more important feature in the trial of a case, both from the standpoint of the state and the defendant, than the selection of a fair and impartial jury. Our Legislature has written into the laws of this state just how jurors may be selected and has placed around it every precaution to the end that a fair and impartial jury may be had to protect both the rights of the state and the defendant. A jury commission is appointed by the district judge, and after taking an oath to faithfully perform their duty, they select the names1 of citizens from the body of the county all of whom are tax payers of the county. 38 Okla. St. Ann. § 1 et seq. These names are placed in a, box which is securely locked and from which, at the proper1 time, certain county officials draw the names for the purpose of securing the jury for a term of court. The law also provides that under certain circumstances, the district judge shall have the discretionary power to issue an order directing the sheriff ‘or some other suitable person’ to summon talesmen or a special venire when certain conditions demand it. It should, however*, be kept in mind that the real purpose of the law, and especially in the trial of criminal cases, is that all trials shall be by jurors whose names have been selected by the jury commission, and drawn in the regular manner from the jury box, and that the other mode of selection is an exception to the general rule, and only to- be used when the facts warrant it, in the discretion of the district judge.1 This discretion should not be abused, for it will readily be seen that it may be used to the advantage or disadvantage either of the state or the defendant. Oklahoma Statutes, 1931, § 2987, Okla. St. Ann. tit. 22, § 639, p. 356, provides:
“ ‘When the panel is formed from persons whose names are not drawn as jurors, a challenge may be taken to the panel on account of any bias of the officer who summoned them, which would be good ground of challenge to a juror. Such challenge must be made in the same form, and determined in the same manner as if made to a juror.’ ”

In Koontz v. State, 10 Okla. Cr. 553, 139 P. 842, 844, Ann. Cas. 1916A, 689, it is stated:

“The language of the statute is so plain that no room is left for interpretation. It authorizes a challenge to tbe panel, on account of tbe bias of tbe officer Avho summons a jury on an open or special venire, upon what would be good ground of challenge to a juror for bias. If, then, a challenge for cause would have been sustained against a person called as a juror because be was a material witness for tbe state, a challenge would also liei upon tbe same ground to a panel summoned by him. If be would not be qualified as a juror because of actual or implied bias, as defined by sections 5858 and 5859, Rev. Laws 1910; §§ 2997 and 2998, O. S, 1931, 22 Obla. St. Ann. §§ 659 and 660, be would also be disqualified for tbe same reason to summon a jury, in whole or in part, whose names are not drawn as jurors from tbe jury box.”

Tbe above rule has bad tbe support of this court in many cases. See Harjo v. United States, 1 Okla. Cr. 590, 98 P. 1021, 20 L.R.A., N.S., 1013; Liddell v. State, 18 Okla. Cr. 87, 193 P. 52, 16 A.L.R. 405; Leigh v. State, 34 Okla. Cr. 338, 246 P. 667; Shepherd v. State, 35 Okla. Cr. 405, 192 P. 235; Welch v. State, 36 Okla. Cr. 298, 254 P. 503; Hammock v. State, 52 Okla. Cr. 429, 6 P. 2d 16.

In tbe instant case it can hardly be said that a sheriff who bad two deputies who were very material witnesses, for tbe state, and who. bad transported tbe prosecuting’witness over1 200 miles; to keep her away from tbe scene of tbe trial until tbe day before the trial commenced, and who bad consulted with tbe special prosecutor concerning: tbe names of those men on tbe regular jury panel who would make good jurors1 in said case, is not disqualified under tbe statute.

Tbe record further discloses that tbe defendant exhausted all of his nine peremptory challenges, and that be was forced to accept three of tbe talesmen from tbe special venire on tbe jury which heard this case.

Where it becomes necessary to secure additional jurors for service, it would be a very easy matter to draw tbeir names from the jury box in the manner prescribed by law; then the jurors, thus selected, in this: modern age of telephones and automobiles could be summoned in a short time without any serious delay of the trial by the sheriff or some other suitable person designated by the court in case of disqualification of the sheriff to act. Section 800, O. S. 1931, 38 Okla. St. Ann. § 5.

The fact that the sheriff summoned the father of one of his deputies, who was a state witness, indicates the length a sheriff can go to assist in getting jurors who would be favorable to the state’s case.

In civil cases, the sheriff very seldom has any interest in the litigation, and a special venire summoned by him would probably be above suspicion; but it would be hard to find a criminal case where the sheriff is. not prejudiced against the defendant. This statement is not made to be critical of the sheriffs for their attitude, as 'generally they are in possession of information which convinces them of the defendant’s guilt. But regardless of the guilt or innocence of a person charged with crime, he is entitled to be tried to a jury that is fair and impartial and which has not prejudged the case. For that reason the trial courts who feel that an open venire should be issued should be very careful to see that the sheriff is qualified to summon the jurors; and, if there is any taint of suspicion as to' the qualification of the sheriff to thus summon the prospective jurors, the court should designate some other suitable person to act.

The statute, section 2987, O. S. 1931, 22 Okla. St. Ann. § 639, fixing the qualification of the person summoning the special venire, is very strict; and we give full force to it. to the end that every person on trial for his life shall he tried by a fair and impartial jury.

As to- the fourth assignment of error, this court is of the opinion, in view of the necessity of a retrial of this case, that the court should instruct the jury on the question of an assault with intent to commit rape. The defendant presented a requested instruction to this effect, but the same was denied.

This assignment of error presents a difficult question. The evidence probably sustains the court’s ruling ; and, if this were the only assignment of error, we would not reverse the case on this assignment' alone. But in view of the fact that the prosecuting witness, when first asked concerning this alleged offense, stated in writing, “He tried once,” might indicate that the defendant tried to commit rape, but did not accomplish his purpose. Such statement is probably sufficient to require an instruction on assault with intent to commit rape when the same is considered with the testimony of the doctors that the female organ of the prosecuting witness had been penetrated, but that the condition they found could have been caused otherwise than by sexual intercourse. We are making this statement for the reason that the law has thrown many safeguards around a person charged with' crime for his protection, and he is entitled to have the jury instructed upon the issues raised by the evidence. Where a serious question arises as to- whether an instruction requested by defendant should be given, the doubt should be resolved in defendant’s favor.

No- complaint is made in the- brief of the defendant concerning the sufficiency of the evidence to- sustain the conviction, and it is not necessary in this opinion for us to discuss the evidence. The evidence introduced by the state, if believed by the jury, shows that the defendant committed a diabolical act, and is amply sufficient to support a conviction; however, in view of what we have heretofore said, this cause is reversed and remanded with instructions to the district court of McCurtain county to grant defendant a new trial.

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


text:
    LAWRENCE YATES v. STATE.
    No. A-9837.
    Oct. 1, 1941.
    (117 P. 2d 811.)
    E. W. Snoddy and A. J. Stevens, both of Alva, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Lawrence Yates, was charged in the district court of Woods county with the crime of assault with a dangerous weapon, was tried, convicted of assault and battery, and sentenced to serve 30 days in the county jail and pay a fine of $75 and costs; and he has appealed to this court.

Counsel for defendant have set forth • several assignments of error in their petition in error filed herein, but have consolidated them for the purpose of argument and briefing, and have submitted them to this court as a whole under the proposition that the evidence is insufficient to sustain the judgment.

The defendant was employed as a worker upon the Earley Ranch near Hardtner, Kan. On November 19, 1939, the defendant was in a cafe in the city of Alva with his employer, Pauline Parley, and two men by the name of Moore and Lyons. After the meal had been eaten in the cafe, the defendant and Moore walked out of the cafe towards the Parley car. Two- night policemen of the city of Alva saw the defendant as he emerged from the cafe, and accosted the defendant and told him that they had a “pick up” for him, and started to take him to jail. The defendant asked the officers to allow him to' go into the cafe and leave the car keys with the owner, which was done.

After a lapse of a few minutes, the defendant not returning, the officers went into the cafe, and Officer Arnold approached the table where the defendant and the other people were conversing. The officer asked the defendant to come on and go to jail. The defendant asked the officer if he had a warrant, and the officer said, “No,” but that the sheriff had given him orders to> pick him up because of a misdemeanor warrant issued for the defendant as a result of a fist fight with one Whitey Mantz some time prior. It was then about 10 o’clock on Sunday night. The defendant then asked the policeman if he had a county commission, and the policeman said he did. (The policeman on the witness stand admits making this statement, and that the statement was false). The defendant asked Arnold to' allow him to go until Monday morning, that being- Sunday night, as he could not make bond until nest morning; and Arnold replied that he could not do that, and for the defendant to come along.

The defendant told the officer that he should have a warrant in a case of that kind, and Arnold told him that he did not need any papers to pick him up, and for him to come along. The defendant said that he would not go.

Up to this point in the evidence, there is no substantial dispute between the testimony of the state and that of the defendant.

The testimony of the state was that when the officer insisted that the defendant go1 along with him to jail, that the defendant reached for a beer bottle and raised it to strike the officer, and that the officer lunged against him, causing the beer bottle to slip out of his hand and fall without striking the officer.

The testimony of the defendant was that the officer demanded that he go along with him to jail; and when the defendant refused to go that the officer drew his •blackjack from his pocket and started to strike the defendant, and the defendant reached for the beer bottle. That the neck of the beer bottle was slick, and when the defendant started to raise the beer bottle that it slipped out of his hand.

The testimony of both the state and the defendant was that the policeman was not struck by the beer bottle. When the beer bottle slipped from the defendant’s hand without striking- the policeman, the testimony of both the state’s and the defendant’s witnesses was that the defendant turned and fled from the cafe through the rear door; that the officers started in pursuit, and Officer Cunningham slipped and fell close to- the rear door; that Officer Arnold emerged from the rear of the cafe and fired his pistol three times. (The officer swore that he was not trying to hit the defendant.) After the third shot was fired, Officer Arnold yelled for the defendant to stop or he would kill him, and the defendant stopped. Officer Arnold then got hold of the defendant by the arm, and started marching him to the jail; Officer Cunningham approached and took hold of the other arm of the defendant, and defendant jerked his arm loose from Cunningham, whereupon Cunningham pulled out his revolver and struck the defendant over the head, causing a severe scalp wound which bled profusely.

After the defendant was taken to the jail, charges of assault with a. dangerous weapon, to wit, a beer bottle, upon the person of Officer Arnold were filed against the defendant.

The policeman testified that at the time they approached the defendant he was not committing any offense in their presence, and that they did not have a warrant for his arrest; but stated that they had seen the warrant in the sheriff’s hands. The warrant for the arrest of the defendant for assault and battery upon' Whitey Mantz was admitted in evidence, but it discloses that there was no- endorsement on the warrant authorizing the officers to serve the same at night.

The defendant presented the following requested instructions at the close of the evidence:

“Instruction No. —
“The jury are instructed that under the laws of this state that an arrest for the commission of a misdemeanor cannot be made under a. warrant, at night, unless by the direction of the magistrate issuing the warrant, indorsed upon the warrant by the magistrate issuing the same, section 2773, Okla. Stats. 1931.
“So that in this case the warrant issued for the defendant by the justice of the peace, Frank Houts, could not be served upon the defendant in the nighttime unless it was indorsed by the said Frank Houts, justice of the peace, authorizing the Avarrant to be served at night.
“So that if you find that the warrant Avas not so indorsed by the magistrate; then the officers had no- legal right to- arrest the defendant under said warrant.
“Offered by the Defendant,
“Refused by the Court,
“Exceptions allowed Defendant.
“J. W. Bird, Judge.”
“Instruction No. ■—
“The jury are instructed that under the laws of this state no officer may arrest a person, without a warrant, for a misdemeanor, unless the misdemeanor is committed in the presence of the officer at the time of making the arrest, and any officer making an arrest for a misdemeanor not committed in his presence is a trespasser, and the person sought to- be arrested is- not obliged to submit to- the arrest, and such an arrest is an illegal one.
“Offered by the Defendant,
“Refused by the Court,
“Exceptions allowed Defendant.
“J. W. Bird, Judge.”
“Instruction No. —
“The jury are instructed that a peace officer making an arrest Avithout authority to do- so- occupies the same relations to- the party arrested that any other private citizen would. He is a trespasser who has no right to detain the person, and has no- right to prevent an escape, and in preventing an escape he is still a. trespasser.
“Offered by the Defendant,
“Refused by the. Court,
“Exceptions allowed Defendant.
“J. W. Bird, Judge.”
“Instruction No. —
“The jury are instructed that under the laws of this state no officer may arrest a person for a misdemeanor unless the officer making the arrest has a warrant for the person arrested, or attempted to be arrested, for the ■commission of such misdemeanor, unless the misdemeanor has been committed in the presence of such officer.
“Offered by the Defendant,
“Refused by the Court,
“Exceptions allowed Defendant.
“J. W. Bird, Judge.”

There is some repetition in these instructions, but they substantially. state the law. No doubt, the learned trial judge thought that he was giving* a sufficient statement of the law in instruction No. 4, when he instructed the jury that the officer in attempting to arrest the defendant was acting without the scope of his: authority as an officer, and had no right or authority to make the arrest. That part of the instruction is proper as far as it goes ; but under the facts herein, in order to> fairly present the contentions of the defendant, the requested instructions, with the elimination of the repetitious statements, should have been given.

These officers were trespassers under the law, when' they tried to> arrest the defendant, without a warrant, for a misdemeanor not committed in their presence, and of which they had no knowledge, except by the hearsay statement of the sheriff. Collegenia v. State, 9 Okla. Cr. 425, 132 P. 375.

Even if they had had manual possession of the warrant for the arrest of the defendant, they could not have served it at night, as it lacked the endorsement of the justice of the peace, which would have authorized its service at night. Section 2773, O. S. 1931, 22 Okla. St. Ann. § 189.

The officer testified that he told the defendant that he “did not have to show him anything,” when defendant asked to see a warrant or his deputy sheriff’s commission. The officer1 was mistaken, as the defendant was perfectly within his rights' when he demanded to see the authority by which the officer was seeking to arrest him, as it is agreed that the defendant at that time was committing! no act which would have required or justified his arrest by the officer without a warrant.

The defendant may be a bad man and anxious to fight. It is evident that he had had a fist fight a few days before in Alva with one Whitey Mantz, as the record shows he entered a plea of guilty later to the charge of assault and battery upon Mantz.

But the fact that the defendant may have been wanted for this assault upon Mantz does not give the officers authority to violate with impunity the statutes of Oklahoma.

There was no assault with a dangerous weapon nor battery in this case, as it is conceded that the defendant never touched the officer. Under certain circumstances the defendant could have been guilty of simple assault, which is defined under the statute, section 1865, O. S. 1931, 21 Okla. St. Ann. § 641:

“An assault is any wilful and unlawful attempt or offer with force or violence to do a corporal hurt to another.”

Under the undisputed evidence, the officers were trespassers. The defendant had a right to use whatever reasonable means were necessary to resist this unlawful trespass against his person. The striking of the defendant over the head with a pistol by Officer Cunningham was wholly uncalled for under any view of the evidence, and was such an attack as should have been condemned by the county attorney. It is1 proper for county attorneys to uphold officers in their vigorous and prompt enforcement of the criminal laws; but it is not their duty to condone their acts, when they purposely commit some act not in line with their duty as officers. The defendant was peaceably proceeding to jail with Officer Arnold, when Cunhingham hit him over the head with his gun.

It would seem from the record that this prosecution against the defendant was instituted in an effort to try to justify the unlawful action taken by these officers.

If we were to uphold a conviction in this case under the record, it would result in submitting all persons to any indignity or assault that an arresting officer might see fit to- heap upon them. People chosen to enforce the law should obey the law themselves.

For the reasons hereinabove stated, it is apparent that no conviction of the defendant should have been sustained; acordingly, the judgment of the district court of Woods county is reversed, and the defendant ordered discharged.

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