text:
    RICHARD STARKS v. STATE.
    No. A-9577.
    Aug. 11, 1939.
    (93 P. 2d 50.)

      W. L. Steger and R. N. Allen, both of Durant, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Richard Starks, was informed against for the murder of Otis L. Hutton, and upon his trial was convietéd of manslaughter in the first degree. The jury was unable to agree upon the punishment. Motion for new trial was overruled April 22, 1938. The judgment and sentence of the court was that the defendant serve a term of 20 years’ imprisonment in the state penitentiary.

From the judgment and sentence he has appealed to this court.

The first and second assignments of error are the usual ones, that the verdict is contrary to the law and to the evidence.

The only other assignments of error are based upon the rulings of the court in admitting, over the objections of the defendant, evidence showing or tending to show that the defendant had been guilty of offenses other than the one charged in the information.

As this is the only substantial question raised on this appeal, we will state the evidence in some detail.

It appears that the defendant and the deceased were residents of Durant, and both were at the east front of the Greenwade dance hall, on East Main street, about 9 o’clock p. m. October 28, 1937, when the defendant struck Mr. Hutton on the head with a heavy club, resulting in his death about five hours later.

Dr. R. E. Sawyer, the first witness, testified that O. L. Hutton was brought to his hospital in an unconscious condition; he had a wound on the back of his head about four inches long that caused his death four or five hours later; that Mr. Hutton’s clothes were searched; they did not find any weapon, not even a pocketknife.

Ike McCoy testified that he answered a call at 9 p. m., and found 0. L. Hutton in an unconscious condition, and he delivered him to the Evergreen Hospital; five hours later he removed the body to the funeral home.

John E. Williams, sheriff of Bryan county, testified that he made an investigation at the Greenwade dance platform, and found an instrument, “State’s Exhibit 1,” standing up against the dance platform near the northeast corner; that he exhibited it to the defendant and he said that was what he used on Mr. Hutton.

On cross-examination he stated that he was present when the clothes that Mr. Hutton had on were removed; that they searched the pockets, but did not find anything; that the defendant surrendered himself about an hour later.

O. L. Thomas testified:

“I was standing near the east front steps of the dance platform, about 9 o’clock when Mr. Hutton fell beside me, I tried to, but could not lift him up, I stood there until the ambulance came.”

Harry Sparger, Jr., testified:

“I was standing on the fender of a pick-up at the east end of the Greenwade dance platform, I saw the Starks boy come up acting like he was drunk, he stood around a minute, laughing and talking with the boys, then he ran by and picked up a club, Mr. Hutton was standing by the pick-up and the Starks boy sneaked up behind him with this club, raised, I thought he was playing, and hit Mr. Hutton on the head and he fell, somebody started to pick Mr. Hutton up and Stark said, ‘Let him lie there, let him alone,’ and walked off through the crowd.”

Edwin Dunn testified:

“I was standing on a pick-up fender; I saw Mr. Hutton standing there and the Starks boy ran behind the pick-up, I heard something pop, and turned around; Mr. Hutton was falling, Starks was standing there with a club in his hand, a man tried to pick Hutton up and Starks shook the stick at him, and told him to leave him alone, and the man dropped Hutton.”

Homer Hall testified:

“I was standing at the dance hall, Mr. Hutton came up and was standing there about 20 minutes; Starks came up behind him, I heard something pop, and Hutton fell and somebody started to pick up Hutton and Starks told him to leave him alone.”

Dovie Hawkins testified:

“I was standing there at the dance platform with three other girls, and this man Hutton was facing the dance hall, I was about 25 feet from him and Richard walked up from behind and hit him over the head and walked off.”

Mrs. O. L. Hutton, widow of the deceased, testified:

“I have seen the defendant off and on with Bonnie Hallbrook, my husband’s niece. Last September, January, and along in March the defendant visited our home. He came there to see Bonnie. My husband did not want him there and told him to get out; Bonnie had a miscarriage.”

She further testified as follows:

“Q. Without telling what she said or who she named, did she at anytime tell you or Mr. Hutton who the father of that child was? By Mr. Steger: Objected to as incompetent, irrelevant and immaterial. By Mr. Carter: I asked her if she told her? By the Court: That is admissible. Don’t tell who the man was. Q. Did she at any time give the information to you or Mr. Hutton who the father of that child was? A. To me. Q. Did you communicate that to Mr. O. L. Hutton? (Objection overruled. Exception.) A. Yes, he suspected it. By the Court: Did he tell you, or rather did she tell you and did you tell your husband that? A. Yes, sir.”

She further testified:

“Richard Starks came to our home another time and my husband told him to get out that he did not want him there, and he stood there like he was not going to go; my husband told him that he was responsible for her condition, and he did not want him there. He took a few steps towards Richard and told him he was an ex-convict, and then Richard left.” Motion to strike overruled. “That after Bonnie was able to be up she went to the postoffice with her, they met Richard Starks, he stopped and talked to us, and he said it made him so mad to have my husband order him out, that he started home and came back and waited for him to come down and said he was going to pick up something and knock him cold if he did come down; that her husband was an ex-service man, that he was in bad health; that he had an operation and one of his lungs was taken out and that he wore an elastic stocking, furnished by the Veteran’s Bureau.”

At the close of the evidence in chief, the defendant interposed a general demurrer, which was overruled.

On the part of the defense, Bonnie Hughes testified:

“My age is 23 years, I stayed with my folks at Durant, I know Richard Starks, he has had lots of dates with me, he came out to Mr. Hutton’s house where I stayed; one night we went to the show, came back and Uncle Otis was drinking and he asked if I had a drink, I said, ‘No’ and he said, ‘Come on, Bonnie, tell me if you haven’t got a drink,’ and I said, ‘Here is the empty bottle on the table.’ He said, ‘Don’t lie to me.’ He acted like he was going to jump on both of us and said he was going to throw us out of the window. He called Richard a jail bird and called him Starks, and said he didn’t want me to go out with him, because he didn’t think I was in good company, and he didn’t think that Richard was good enough for me. He said he was going to kill Richard not less than half a dozen times, and I told Richard every time. My uncle had a long pocketknife, my uncle was kind of quarrelsome, and was always causing trouble when Richard was around.”

Her cross-examination was in part as follows:

“Q. Wasn’t that trouble at the house when he told Richard thát he was responsible for your condition and told him not to come over there any more, isn’t that the first time he told Richard that he did not want him going with you? A. It might have been. Q. Now, Miss Bonnie, I am reading from your statement that you made over at Sulphur, ‘Who was the father of the child? A. Richard Starks. Q. You are pregnant at this time? A. Yes, sir. Q. Who is the father of that child? A. Richard Starks. Q. Your uncle suspicioned about it at that time? A. Yes, sir. Q. And that is the reason he forbid Richard Starks coming to the house any more? A. I never heard him say much about Richard until then.’ Q. Miss Bonnie, did you make that statement? A. I suppose I did if it is down there.”

R. J. Walters testified that he was running a pop stand at the dance hall that night, also running a filling station on Main street, across from the dance hall, that Mr. Hutton borrowed 10 cents from him at the dance, saying he wanted that dime to go to the dance, that he went to the dance and came back and asked if he could borrow an ice pick, said he might have a little trouble, and he told him he had better go home, and would not let him have it, that about ten minutes later he heard there was a fight over there, and that Hutton had been injured.

On cross-examination he stated that his mother had a petition filed with the county judge to have him declared insane and sent to the asylum and the doctors pronounced him sane and his mother withdrew the petition.

Robert Brown testified that he had known the defendant 15 years, that he was at the dance hall that night and saw Otis Hutton and Richard Starks there, that he was talking to Richard Starks and Hutton walked up towards them and Richard said, “Hello, Otis.” Hutton did not answer him and commenced cursing and calling him all kind of names, son-of-a-bitch, and about everything like that, and acted like he wanted to fight, that Hutton was drunk, that he did not see Richard Starks hit Hutton. That he knows Hootie Sparger, but did not see him in company with some other young man there that night.

Ferry Ferrell testified that she was at the dance there that night, and saw Otis Hutton and Richard Starks there; that Mr. Hutton came on the platform and wanted in on 15 cents, and they would not let him in and he turned and walked off the platform and said something to Richard and a word or two were exchanged. Three or four minutes later she saw Mr. Hutton down; that she could not hear what was said.

Richard Starks, as a witness in his own behalf, testified: “I knew Otis Hutton about a year,” handed exhibit “A,” he said:

“I hit him with that because I was afraid of him. Bonnie Hughes had told me about him threatening to kill me; I was standing on the south side of the dance hall and decided to go home, and went around in front to tell Robert Brown. Otis Hutton was standing on the steps talking to some one and he turned around and said, ‘Hello, you God damn son-of-a-bitch.’ I _ walked up the steps and asked him what was wrong with him, he said nothing was wrong with him, and asked me what was the matter with me, I stepped off from him and he followed me, he began cursing me and said he ought to send me to the penitentiary, and said, ‘If you say two damn words I will,’ I asked him what I had done and he said, ‘You have done damn plenty, and if you say two words I will do it.’ He called me a son-of-a-bitch and kept cursing and threatening me, and ran his hand in his right hand pants pocket and I grabbed this club and hit him, he staggered and fell forward, after I hit him some men came up and picked him up, I said, ‘Don’t bother him.’ I did not intend to kill him at the time I hit him. I was going regularly with Bonnie Hughes, I was convicted of car theft and was sentenced to serve a term of five years, I served 14 months and 14 days and was out on parole when this trouble occurred, Mr. Hutton knew that I was out on parole and he tried to get my parole revoked.”

He further testified:

“Q. Now, you heard this testimony here relative to you and Bonnie Hughes, about that difficulty out in the kitchen, how long was that before you had this difficulty down at the dance hall in which Hutton lost his life? A. I don’t know exactly, I imagine about six months. Q. Were you going with Bonnie? A. Yes, sir, regularly.”

His cross-examination was in part as follows:

“Q. Richard, why was he mad at you? A. Only because I was going with his niece. Q. You are the father of that child she had? (Objected to as improper cross-examination.) By the Court: Sustained. Q. Do you remember the occasion when you were over at the house? A. Yes, sir. Q. Do you remember the testimony of Mrs. Bonnie Hallbrock and Mrs. Otis Hutton? A. Yes, sir. Q. Was that about the way it happened? A. Let me tell it. I was up at Bonnie Hughes’ — we came in from the show and we were sitting in the kitchen by the table. Q. About the time I am talking about when he told you not to come back to his house any more, you know when Bonnie was sick in bed? A. I went in the room and Otis was sitting on that side of the room. (Indicating.) Q. What did you go up there for? A. To take some medicine. Q. Go ahead. A. And he got up and told me to get my God damn ass out of there. Q. Didn’t he tell you he thought you was responsible for Bonnie’s condition? A. No, sir. Q. Had Bonnie told you what he had said before that time? A. Yes, sir. Q. Did Bonnie tell you why he was mad? A. She told me he was always threatening me, and was going to kill . me. Q. You killed him, didn’t you Richard? A. I hit him. Q. And killed him, that is the stick there? A. Yes, sir. Q. How old are you? A. 21 now. Q. You are six feet? A. Yes, sir, about. Q. Did you see any kind of weapon, gun, knife or knucks? A. No, sir. Q. This is your statement that you made in my office, and which was read to you, and you signed your name before Mr. Loper? A. Yes, sir.”

It is contended that the court committed error prejudicial to the defendant in admitting the testimony of the widow of the deceased, wherein she states that the niece of the deceased had a miscarriage and told her that the defendant was the father of that child, and that she communicated that to her husband.

It is a general rule that the charge upon which a defendant is being tried cannot be supported by proof of his having committed other offenses; but evidence which legitimately tends to support the charge is not to be excluded on the ground that it will show other offenses.

Evidence of a crime different from the one charged is never admissible, except for the purpose of showing motive, intent, guilty knowledge or where to make out the crime charged the intent with which the act is done is material.

The evidence fails to show that the defendant was present when this statement was made, and for this reason we think that this testimony was incompetent. The question therefore arises, Was the testimony complained of, in the light of all the evidence in the case, prejudicial to the substantial rights of the defendant? Otherwise stated, Did the admission of this testimony deprive the defendant of a fair and impartial trial? The question can be properly determined by a consideration of all the evidence in the case. This we have done, and our conclusion is, in the light of all the testimony in this case, the testimony objected to, although improper as being hearsay, was not prejudicial to the defendant.

We are also of the opinion that the objection to the testimony in question was waived by the defendant when he afterwards introduced the same evidence himself. It is well settled that if a party objects to the introduction of evidence, which is admitted, and afterwards introduces the same evidence himself, it is not ground for reversing the judgment, although the evidence objected to was incompetent.

It is also contended that the court erred in permitting the prosecution to cross-examine the witness Bonnie Hughes as to her meretricious relations with the defendant.

We think that the cross-examination was properly permitted. The evidence on behalf of the state tends to show that the motive for the killing was malice, resentment and revenge, because the deceased had sought to prevent his niece from associating with the defendant.

The fact that the incidental effect of the cross-examination is to degrade a witness examined does not render it improper.

In Cannon v. Territory, 1 Okla. Cr. 600, 99 P. 622, this court held:

“A witness- for the defendant may be cross-examined as to specific acts tending to discredit her, when such facts are relevant to the issue.”

In Castleberry v. State, 10 Okla. Cr. 504, 139 P. 132, this court held:

“The state has the right, on cross-examination, to show the nature of the relations existing between the witness and the defendant, so far as their relations are such as would create a bias that might reasonably be supposed to affect the credibility of the witness, and this rule cannot be changed by the fact that such evidence would probably prejudice the defendant in the minds of the jury.”

In the opinion it is said:

“The doctrine that a witness may be cross-examined as to matters going to credibility may well be regarded as an exception to the rule that cross-examination is to be confined to matters touched on in the examination in chief, and the limits within which either party may cross-examine upon matters not strictly relevant, but which affect the credibility of the witness, is largely within the discretion of the trial court, but the privilege of degrading a witness by proof of disreputable conduct, not connected with the facts on trial, is one so liable to abuse that it should be closely guarded and allowed only upon the exercise of sound judicial discretion, and then only to affect the credibility of the witness.
“The witness, Ruth Brady, testified on her cross-examination that she was the sweetheart of the defendant. Here we have a very powerful motive for testimony in his behalf. She identified and admitted the photograph which shows that witness, in the presence of a third person, permitted the defendant to take indecent liberties with her person. We think the entire evidence upon the cross-examination, including the photograph, was properly admitted, as showing the nature of the relations existing between the witness and the defendant, and that their relations were such as would create a bias on the part of the witness that might reasonably be supposed to affect her credibility, and the fact that such evidence would probably prejudice the defendant in the minds of the jury did not affect its admissibility.”

In Stogsdill v. State, 24 Okla. Cr. 152, 216 P. 681, this court held:

“Explanatory circumstances and declarations connected with the commission of a homicide, which have a tendency to shed light on the motives of the parties, are admissible in evidence, including antecedent declarations made by the deceased and those acting in concert with him, where they form some link in the chain of circumstances explanatory of their motives or other vital issues involved.”

Having considered the errors assigned, we find no error which would authorize this court in reversing the conviction. There can be no doubt as to the sufficiency of the evidence. That the defendant killed the deceased he did not deny. His defense was that he killed the deceased in his necessary self-defense. It is enough to say that whatever there was of that defense, no one can reasonably claim that it was not properly submitted to the jury, and the jury by their verdict have found that defense untenable. We are satisfied from an examination of the record and upon a consideration of the proceedings of the trial with respect to its fairness, that the defendant had a fair and impartial trial. We find nothing in the record to lead us to believe that the punishment imposed is excessive.

It follows that the judgment rendered upon the verdict must be, and the same is hereby, affirmed.

BAREFOOT and DAVENPORT, JJ., concur.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    CHOICE JACKSON v. STATE.
    No. A-9386.
    Aug. 11, 1939.
    (93 P. 2d 55.)

      Joe Adwon, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Choice Jackson, herein referred to as the defendant, was convicted in the district court of Oklahoma county of the crime of burglary in the second degree, after former conviction of a felony, and his punishment fixed at imprisonment in the state penitentiary for the term of 15 years. Motion for new trial was duly filed, heard and overruled on March 8, 1937; thereupon the court pronounced judgment and sentence in accordance with the verdict of the jury. From which judgment and sentence the defendant appealed by filing in this court on September 8, 1937, a petition in error with case-made.

The information in substance charged that in Oklahoma county on the 24th day of August, 1936, Choice Jackson, alias C. Taylor, alias Charles Jackson, did burglariously and feloniously break into and enter a two-story brick building located at 1510 Wilshire Boulevard, Nichols Hills, owned and in the possession of H. D. Simms, in which certain household furnishing and other personal property was kept, by forcibly entering through the front door of said building by using a pass key, and entering therein with the felonious intent of said defendant to take, steal and carry away, without the consent of the owner, said personal property. And the said defendant at said time did take certain articles, to wit: One platinum watch and chain set with diamonds, one man’s gold ring set with one diamond; one lady’s dinner ring platinum set with diamonds; one lady’s dinner ring platinum set with one large and several small diamonds; four yellow gold bracelets set with pearls; ten silver dolars, and one Schwab safe, six New York Life insurance policies, all of the total value of $2,435.00, the personal property of said H. D. Simms.

The only question worthy of notice, which the record presents, goes to the merits of the case.

It is claimed by the defendant’s counsel, in an elaborate argument, that the court erred in overruling the demurrer to the evidence at the close of the state’s case.

The material and undisputed facts in this case as disclosed by the testimony are as follows:

H. D. Simms, of 1510 Wilshire Boulevard, Nichols Hills, Oklahoma county, was the owner of a two-story brick residence, located at that number; during the month of July, 1936, he employed the defendant as a houseman and chauffeur; about two weeks thereafter he and his wife went to Hot Springs, Ark.; the defendant and the negro maid went with him. Approximately two weeks after they arrived at Hot Springs, he discharged the defendant and the maid, then went with them to the bus station and purchased tickets to Oklahoma City for them.

The next time Mr. Simms saw the defendant, he was in the county jail at Oklahoma City. Mr. Simms, prior to discharging the defendant and the maid, made a trip-back to his home in Oklahoma City. On arriving home he discovered the absence of his house key which he had placed in the door pocket of the Lincoln car, and gained admittance by using his wife’s key. On returning to Hot Springs, he drove his LaSalle coupe, and left the Lincoln at the Tower Garage to be washed, cleaned and returned to his garage; that during his absence at Hot Springs, his residence at Nichols Hills was burglarized, and personal property of the value of $2,450 stolen, which personal property was stored in a small portable safe; that the safe had been removed from the house, broken open, and the contents removed; that his Lincoln sedan which he had left at the garage at his residence had apparently been used to carry the safe away from the premises.

Austin Andrews testified that he worked at the Tower service station, Nichols Hills, and on or about the 9th of August, 1936, he washed and cleaned the Lincoln sedan for Mr. Simms and returned it to his double garage, then locked the pulldown door.

Dr. J. G. Duncan testified that he was employed by the State Bureau of Criminal Identification as record clerk, and identified an exhibit introduced by the state, being photograph and fingerprints of C. Taylor.

Clinton Woodle testified that he operated the filling station and grocery one mile from Mustang, on State Highway No. 41; that about sundown, August 24, 1936, a negro driving a Lincoln sedan stopped at his place and he sold him cigarettes and put water in the car radiator; about a week afterwards the safe was found near there. He identified the negro who was driving the car.

R. L. Boulware testified that he lived about one-half mile south and three miles west of Mustang; that he found dials, little hinge knobs, a hammer and two screw drivers wrapped in newspapers about 75 yards from his home, and about three-quarters of a mile from where the broken safe was found. The newspapers had name “Simms” on slips. That he reported the finding to officers, and later reported finding of the safe on Friday later in the week.

Ben F. Cole, sworn as fingerprint expert, connected with State Bureau of Criminal Identification during the year 1936, testified that he had examined State’s Exhibit No. 11A and that the same was a later fingerprint of Choice Jackson, taken off of the Lincoln sedan at 1510 Wilshire Boulevard. That State’s Exhibit 11B was a copy of a print taken from the left ring finger of print card of Choice Jackson which was in the files at the State Bureau at the time the investigation was made. State’s Exhibit was also a copy of one of the records of the State Bureau, which was also used as a portion of State’s Exhibit 1. Witness further testified that under favorable conditions fingerprints would probably remain from 30 to 60 days.

Cliff Myers, court clerk of Oklahoma county, identified the judgment and sentence for burglary in the second degree against the defendant in cause No. 6628.

Claud Tyler testified that in a conversation with the defendant, he stated that he was sent to McAlester for two years and had served the term in case No. 6628.

Ernest Walters testified he lived three quarters of a mile west of Mustang with his parents, that he was putting in wheat for a neighbor in the latter part of August, and on his way home that evening on a bicycle, saw a colored man wearing a chauffeur’s uniform, driving a big car which he stopped on a bridge, and witness stopped about 200 feet back from the car; the colored man got out on the right side of the car, which was facing east, and took a box and threw it off of the bridge; a few days later he saw this box, a broken safe, in the gully near the bridge. When the man went around to the other side of the car and raised the hood up and was looking at the motor, he passed by him.

He further stated that he would not be sure that the defendant was the negro he saw on that occasion, but stated that he looked like the same man.

Melvin Tyler testified that he was marshal of Nichols Hills, went to Mustang and made an investigation on the 28th of August, found pieces of iron, hammers, canceled checks, and other articles introduced as state’s exhibits, and stated that the defendant told him that he served a two-year term under the name of Taylor in the penitentiary at McAlester.

At the close of the state’s evidence, the defendant interposed a demurrer to the same, which was overruled. Exception.

Thereupon the defendant moved the court to “instruct the jury to return a verdict of not guilty, for the. reason that the state has wholly failed to support its case with any competent evidence in that it is all based on circumstantial and hearsay evidence,” which was overruled. Exception.

The defendant did not take the witness stand-in his own behalf as was his privilege under the laws of this state, and called only one witness, Mrs. Stella Wagner, who testified that she lives at 1325 North Broadway; that during the month of August, 1936, the defendant, Choice Jackson, worked for her every day in August, from 12 to 5 o’clock in the afternoon.

In support of the argument made that the circumstances in evidence are entirely too weak to rebut the presumption of innocence, counsel cite and quote from the cases of Miller v. State, 57 Okla. Cr. 99, 45 P. 2d 769; Edney v. State, 57 Okla. Cr. 303, 48 P. 2d 340; Sasser v. State, 58 Okla. Cr. 382, 54 P. 2d 401, 403.

In the last case cited it is said:

“The test by which to determine the sufficiency of circumstantial evidence in a criminal prosecution is whether the facts and circumstances tending to connect the defendant with the crime charged are of such conclusive nature as to exclude to a moral certainty every rational hypothesis except that of guilt, and the jury in this case were so instructed by the court. It is the province of the jury to determine the facts and circumstances surrounding the commission of the crime charged, and if, assuming as proved the facts the evidence tends to establish, they can be accounted for upon no rational theory which does not include the guilt of the defendant, the proof cannot be said to have failed.”.

The evidence on the part of the state, was, for the most part, circumstantial, and in our opinion the circumstances shown were consistent with each other and inconsistent with any reasonable hypothesis other than that of the guilt of the defendant.

Obviously, the court did not err in overruling the demurrer to the evidence and in refusing to instruct the jury to return a verdict of not guilty.

It is next contended that the court erred in instructing the jury as to two forms of punishment in instruction No. 8.

Even if there were merit in this assignment, counsel would not be in a position to take advantage of the same, unless fundamental, as no objections or exceptions were made or reserved to any of the instructions.

The instructions were as favorable to the defendant as he could have demanded, and we find there is no merit in this assignment.

Upon a consideration of the entire record, we are satisfied that the defendant has no substantial ground of complaint, either of the rulings of the court or the verdict of the jury. It appears that he had a fair and impartial trial, and under the facts and the law we cannot say that the punishment imposed was excessive.

The judgment of the district court of Oklahoma county herein is therefore affirmed.

BAREFOOT and DAVENPORT, JJ., concur.


author: DAVENPORT, J.

text:
    JOHN H. DANIEL v. STATE.
    No. A-9563.
    Aug. 15, 1939.
    (93 P. 2d 47.)
    Clyde Andrews, of Chandler, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and Jess Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error was by information in the district court of Lincoln county charged with the crime of assault with a dangerous weapon; was tried, convicted, and sentenced to serve ten months in the county jail of Lincoln county. Motion for a new trial was filed, considered, overruled; and the defendant appeals.

The facts in this case are very brief. The prosecuting witness, W. P. Stone, was occupying a portion of a building with a fruit stand in the city of Chandler, and had subleased the building from the sister of the defendant. An uncle of the defendant had been occupying a portion of the building, and died leaving the building unoccupied. It was necessary to move some furniture or fixtures from the building occupied by the uncle of the defendant, who died; in order to do so a portion of the partition between the room occupied by the deceased and the prosecuting witness had to be removed. This was agreeable to all the parties. The defendant, who had recently recovered from a hernia operation, got a Mr. Orr to help him remove a portion of the partition, so as to get the furniture out of the room formerly occupied by the deceased uncle of the defendant. While doing so, the testimony shows that the prosecuting witness Stone came into his place of business, where the defendant and Orr were working to remove the partition, in order to get the furniture out of the room formerly occupied by the defendant’s deceased uncle; and a general conversation took place. The defendant was working with a nail bar in removing some of the boards from the partition. The prosecuting witness approached him and asked him who was going to pay certain telephone bills that had been put in over the telephone in the prosecuting witness’ place of business, and received a reply from the defendant that he was not paying any bills. The defendant says that the prosecuting witness in substance said that some one had to pay them, and that he would see to it.

It is disputed as to what language was used; but it is not disputed that the prosecuting witness advanced towards the defendant, and handed him the bill; and the defendant looked at it, and handed it back to him. Some words passed between them; and the prosecuting witness Stone advanced towards the defendant, and started to grab his arms. Stone was followed by a grown son of his; and when they did so, the defendant struck Stone on the arm with the nail bar, hitting him once or twice.

The proof shows that the defendant was in a weakened condition from the recovery of his hernia operation, and was not physically able to engage in a general free-for-all fight. The prosecuting witness as shown by the record was willing, it seems, to argue with the defendant; and as the defendant testified, Stone advanced on him, followed by his son, and tried to catch defendant by the arms.

The defendant stated he believed that he was then in danger of being beat up by Mr. Stone and his son; and he struck the prosecuting witness in order to protect himself from physical injury by Stone and his son.

The defendant on cross-examination stated:

“The prosecuting witness said, ‘God damn you, I will knock hell out of you.’ Both the prosecuting witness and his son threatened me, and he grabbed at me with his hands. The son was nearby at the time.”

The defendant admitted that he struck the old man two licks.

On further cross-examination the state attempted to lay the predicate for impeaching the defendant by asking him the following question:

“Q. At the time you were brought to the county jail here, didn’t you say to Arthur Williams words to this effect that: ‘I ought to have finished him while I had him down’? A. No, sir.”

Arthur Williams was asked while on the stand for the state the following question:

“Q. I will ask you to state if he didn’t, in a conversation with you regarding the altercation he had down the street, say: ‘I ought to have finished the old man while I had him down’? A. He didn’t say, ‘While I had him down.’ He said, ‘I ought to have finished him.’ ”

The defendant in his motion for a new trial attached the affidavits of R. A. Powers, Denny Williams, and Gernie Green, in which affidavits they stated that they were in the county jail at the time John Daniel was incarcerated there; and the defendant, John Daniel, did not make the following statement: “I should have finished the old man while I had him down,” or any words to that effect or any other statement in substantially the same form; that they were present all the time the defendant talked with Arthur Williams.

These affidavits were in support of the defendant’s motion for a new trial; and it was shown that the defendant had no knowledge of these witnesses until after the trial; and the question had been propounded to Arthur Williams; and he gave the answer that he did, while his answer is not responsive to the question propounded to him, because Arthur Williams stated that defendant did not say that the defendant said he should have finished the prosecuting witness, while he had him down.

The foregoing is the substance of all the testimony.

The defendant in his petition in error has assigned seven errors alleged to have been committed in the trial of his case.

It is only necessary to consider the sixth assignment:

“That the court erred in overruling the defendant’s motion for new trial upon the general grounds therein stated.”

The record discloses that the defendant in this case was at a place where he had a right to be; and the prosecuting witness raised no objections to the defendant being where he was, in removing a part of the partition in order to get some property belonging to an uncle of the defendant, who had recently died, out of a room in a portion of the building not occupied by the prosecuting witness.

No question is raised that the defendant was unlawfully trespassing upon any property of the prosecuting witness. All of the testimony shows that the defendant was working to remove a portion of the partition when the prosecuting witness presented a telephone bill to the defendant, and wanted to know who was going to pay it; and the defendant told him that he was not paying any bills. The prosecuting witness replied that some one had to pay it.

There was a controversy as to what language was used, but it is undisputed that the prosecuting witness, W. P. Stone, and his son, who was just behind W. P. Stone, advanced on the defendant; and that W. P. Stone got close enough to try to catch or did get hold of the defendant’s arm; and it was then that the defendant protected himself by hitting the prosecuting witness, W. P. Stone, with a nail bar that he had in his hand, working in removing that portion of the partition that was deemed necessary to remove in order to get the furniture out.

The defendant in his brief insists that, as the undisputed testimony of the defendant shows, when he struck the prosecuting witness he did so in his necessary self-defense, in order to prevent him from receiving injury from the prosecuting witness and his son.

Under section 3079, O. S. 1931, 22 Okla. St. Ann. § 856, it is mandatory that the court must inform the jury on matters of law which he thinks necessary for their information in rendering their verdict.

In charging the jury as to the law applicable to the facts in the case, it is a fundamental duty of the court to instruct on all of the phases of the defense as shown by the evidence of defendant; and when the court fails to do so, he has deprived the defendant of a fair and impartial trial.

In Collegenia v. State, 9 Okla. Cr. 425, 132 P. 375, 376, in the sixth paragraph of the syllabus, the court said:

“In a prosecution for murder, the court should instruct upon the law applicable to the case, whether requested to do so or not. The law applicable is determined by the accusation and the evidence introduced upon the trial, and, when the evidence tends to show justification in self-defense and in defense of habitation, it is the duty of the court to submit instructions properly embracing the law of self-defense.”

In Hopkins et al. v. State, 28 Okla. Cr. 405, 231 P. 97, in the second paragraph of the syllabus the court stated:

“It is the duty of the trial judge to instruct the jury on the salient features of law raised by the evidence without a request from defendants. * * *”

In Courtney v. State, 10 Okla. Cr. 589, 140 P. 163, in the first paragraph of the syllabus, this court stated:

“The accused, in a criminal case, is entitled to instructions defining the law applicable to his theory and covering his defense, if there is competent evidence tending reasonably to substantiate such theory.”

No one can examine this record and doubt that there is ample testimony ip this case that the defendant’s testimony is ample and sufficient on the question of self-defense to make it the duty of the trial court to give a specific charge, defining self-defense, and the right of the defendant to defend himself under such conditions.

In Scott v. State, 40 Okla. Cr. 296, 268 P. 312, in the second paragraph of the syllabus, the court stated:

“A defendant in a criminal case has a right to have an instruction applicable to his testimony based upon the hypothesis that it is true, where such testimony is upon a material issue. Where, however, in a homicide case his testimony clearly excludes the theory of self-defense he is not entitled to an instruction on the law of self-defense.”

In this case the testimony of the defendant clearly shows that when he struck the prosecuting witness, he was acting in self-defense, and that he believed at the time he struck the prosecuting witness it was necessary for him to do so in order to prevent him from receiving great bodily injury or harm at the hands of the prosecuting witness and his son, who was following his father, upon the defendant at the time the defendant struck the prosecuting witness with the nail bar.

In Nelson v. State, 34 Okla. Cr. 187, 245 P. 1009, this court, in the third paragraph of the syllabus, stated:

“In a prosecution for assault with intent to kill, where the evidence tends to show justification in defense of habitation and in self-defense, it is the duty of the court to submit instructions covering the law of the case, and, where that has not been done, this court on appeal will reverse the judgment.”

It is evident from the record that the defendant did not have a fair and impartial trial, and that the failure of the court to instruct the jury upon the law of self-defense was prejudicial to his case. For the errors indicated, the judgment of the lower court is reversed.

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


text:
    Ex parte ROY MASSENGALE.
    No. A-9667.
    Aug. 15, 1939.
    (93 P. 2d 41.)

      C. E. B. Cutler, of Okmulgee, for petitioner.

      Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   DOYLE, P. J.

Petitioner, Koy Massengale, is now confined in the state penitentiary under a judgment of conviction, rendered by the superior court of Okmulgee county, Okmulgee division, in conformity to the verdict of a jury finding him guilty of murder, alleged to have been committed in said county on May 16, 1921, and fixing his punishment at imprisonment for life.

Petitioner seeks his release from the imprisonment imposed thereby upon an assumption that as it conclusively appears from the record, the March term, 1922, had adjourned by operation of law on the 8th day of March, 1922, and the proceedings had after the lapse of the term must be regarded as coram non judice and void, therefore, his imprisonment is in contravention of the due process of law clause of the Fifth Amendment, and section 1 of the Fourteenth Amendment of the Federal Constitution, U. S. C. A., also of section 7, article 2, of the State Constitution, Okla. St. Ann.

The act creating the superior court of Okmulgee county, chapter 131, Sess. Laws 1917, sec. 3890 et seq., Sts. 1931, 20 Okla. St. Ann. § 241 et seq., provides for terms of said superior court at Okmulgee, the county seat, and at Henryetta, as follows:

“There shall be held, in each calendar year, at least six terms of said court, in said county. The terms of said court shall be held at Okmulgee on the first Monday in March, June and November, and at Henryetta on the first Monday of February, May and October; and the judge of said court shall have authority to order entered of record, fixing additional terms of said court at Okmulgee and Henryetta.”

The Statute, sec. 69, O. S. 1931, 12 Okla. St. Ann. § 55, provides:

“If the judge of a court fail to attend at the time and place appointed for holding his court, the sheriff shall have power to adjourn the court, from day to day, until the regular or assigned judge attend or a judge pro tempore be selected; but if the judge be not present in his court, nor a judge be assigned or a judge pro tempore be selected, within two days after the first day of the term, then the court shall stand adjourned for the term.”

As this section, in effect, undoubtedly provides that if the judge of any court of record, whether of the county court, superior court or a district court, fail to attend at the time and place of holding his court, as provided by law; or a judge assigned, or a judge pro tern be not selected within two days after the first day of the term, then the court shall stand adjourned for the term.

The opening, holding, and adjournment of court are the exercise of judicial powers to be performed by the court. To perform the functions of court, the presence of the officers constituting the court is necessary, and they must be present at the time and place appointed by law.

Whether a court of record was in session at a particular time is a question to be determined by the records of such court, and the orders of a court of record, which appear to have been properly entered, cannot be impeached by evidence aliunde the record. Its sessions, proceedings, and adjournments can be proved only by its records.

The record shows that petitioner’s motion for a new trial was overruled, and the judgment of conviction was rendered after the March, 1922, term had lapsed.

In the case of In re James, 4 Okla. Cr. 94, 111 P. 947, 948, this court held:

“An assemblage of the proper officers at the proper place, but at a time not authorized by law, does not constitute a court; and any judicial proceedings then had, which under the law can be had only in term time, are null and void.”

In Wilson v. State, 3 Okla. Cr. 714, 109 P. 289, 290, this court held:

“The terms of courts of record begin on the day fixed by law; and if the judge be not present in his court, or a judge pro tem selected, within two days from the first day of the term, then the term lapses, and cannot thereafter be revived by the judge or any other officer of the court, and any attemped proceedings had in such court after the lapse of the term is coram non judice and void.”

In Collins v. State, 5 Okla. Cr. 254, 114 P. 1127, this court held:

“Where the regular term of the court is permitted to lapse, no proceedings can be had until the next regular term, or until a term is called in the manner provided by law. Any judgments rendered by a court out of term time and after the term has lapsed are void.”

In the opinion it is said:

“In the case of Andy Baker v. State, [5 Okla. Cr. 186], 113 P. 991, decided at the last term of this court, * * * this court held .that it is necessary for the record when the same is complete to affirmatively show that the court convened on the regular date fixed by law and adjourned to some subsequent date in order to validate its judgment had at such subsequent term. The record in the case we are now considering plainly shows that the court failed to convene on the date fixed as the law provides, and was not convened within two days thereafter by the regular judge, no judge pro tempore was selected, nor was the term adjourned to any subsequent date. The term lapsed at the end of two days from the date provided for convening it.”

The failure of the judge of the superior court of Okmulgee county to attend and open court upon the day fixed by the statute, or on the following day for opening court in the Okmulgee division of said court operated to adjourn the March, 1922, term of said court, and no further session of the court in the Okmulgee division could be held until the next regular term or until a special term was legally called.

It follows that if there was no legal power to render the judgment or to issue the commitment, there was no competent court, and consequently no judgment or process. All is coram non judice and void.

Although no substantial objection to the granting of the writ is or can be urged, it is suggested that petitioner having been tried at a time when the court was legally in session, the decision and judgment of this court should not operate as an unqualified discharge.

With this suggestion we cannot agree. In the case of Collins v. State, 24 Okla. Cr. 117, 217 P. 896, this court held:

“In the absence of a statute to the contrary, judgment need not necessarily be pronounced at the same term of court at which the verdict or plea of guilty was had, and if the court’s purpose in postponing judgment and sentence is incident to the administration of justice within its conceded, powers, and its orders postponing judgment and sentence are unconditional and to definite periods, the jurisdiction of the court to pronounce judgment and sentence at a term after the trial term is not affected.”

Held further:

“While the court may delay pronouncing judgment for the purpose of hearing and determining motions for new trial or in arrest of judgment, or for other proper causes, it cannot indefinitely suspend pronouncing judgment and sentence.”

It appears that seventeen March terms of said court, Okmulgee division, have passed since the jury rendered its verdict, and no unconditional or other order postponing judgment and sentence was made at any succeeding term. This we think a practical abandonment of the prosecution.

In the recent case of Bowen v. Johnston, Warden, 306 U. S. 19, 59 S. Ct. 442, 444, 83 L. Ed. 455, Mr. Chief Justice Hughes, delivering the opinion of the Supreme Court of the United States, said:

“The scope of review on habeas corpus is limited to the examination of the jurisdiction of the court whose judgment of conviction is challenged. * * *
“But if it be found that the court had no jurisdiction to try the petitioner, or that in its proceedings his constitutional rights have been denied, the remedy of habeas corpus is available. * * *
“It must never be forgotten that the writ of habeas corpus is the precious safeguard of personal liberty and there is no higher duty than to maintain it unimpaired. Ex parte Lange [18 Wall. 163, 21 L. Ed. 872], supra.”

In Ex parte Davis, 66 Okla. Cr. 271, 91 P. 2d 799, 800, this court held:

“Where one is held in custody under void order of commitment or is imprisoned without due process of law under sentence of any court of the state, the Criminal Court of Appeals has the duty on habeas corpus to inquire into the illegality of the commitment.”

In Ex parte Grant, 32 Okla. Cr. 217, 240 P. 759, 760, we said:

“The office of the writ of habeas corpus is to afford the citizen a speedy and effective method of securing his release when illegally restrained of his liberty. 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 render the particular judgment.” Ex parte Owens, 37 Okla. Cr. 118, 258 P. 758; Ex parte Wagner, 58 Okla. Cr. 161, 50 P. 2d 1135, 1137.

It follows from the foregoing review that petitioner is unlawfully imprisoned and restrained of his liberty, and that he is entitled to be discharged from the imprisonment of which he complains. He is therefore by the judgment of this court discharged therefrom.

The Clerk of this court will forthwith forward to Jess F. Dunn, warden of the penitentiary at McAlester, a duly certified copy of this opinion, and upon receipt of the same, said warden is directed to release the petitioner, Roy Massengale.

DAVENPORT, J., concurs. BAREFOOT, J., absent.


text:
    DAVE WILLARD v. STATE.
    No. A-9544.
    Aug. 18, 1939.
    (94 P. 2d 13.)

      Clay Snodgrass, of Altus, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The information in this case filed in the county court of Greer county April 7, 1933, charged that in said county on or about the 6th day of April, 1933, defendant did then and there have in his possession six gallons of beer and half gallon of whisky, with the unlawful intent to sell the same. On the same day he was duly arraigned and entered a plea of not guilty. Thereafter, on January 20, 1936, defendant withdrew his plea of not guilty, and pleaded guilty. Thereafter, on the 25th day of February, 1938, defendant filed a motion for permission to withdraw his plea of guilty, entered on the 20th day of January, 1936, on the ground, among others:

“That the court was and is without authority to suspend indefinitely and for a period of years, the pronouncing of the sentence herein after the plea of guilty, or to suspend the execution of the judgment; and that by reason of the lapse of time since the conviction of the defendant and the application' of the state for a sentence and judgment of conviction, this court has lost jurisdiction to enter judgment upon said plea of guilty.”

That on the same day a hearing was had, and the defendant as a witness in his own behalf testified, in substance, as follows: That when he entered his plea of guilty on January 20, 1936, it was his understanding with the court and county attorney, at that time, that he was to report on the 1st day of May that year to begin his sentence of 30 days and pay a $50 fine; that in accordance with his understanding he reported to the sheriff’s office on that day, and was placed in the jail by the sheriff; that on the second day after he was placed in jail, he was riding in the county truck going out to work, and a car hit the county truck, and overturned the same, at which time he lost one finger and later lost another, and suffered other injuries to his back, for which he was taken to the hospital by the sheriff. That he spent 36 days in the hospital; that when he was released he was told by the sheriff to go home and forget all about it, which he did. That there was no other action taken in the matter after his injury until this hearing was held.

Thereupon the court made the following order:

“1. On April 7, 1933, an information was filed in the case charging the defendant with the unlawful possession of intoxicating liquors.
“2. The defendant plead not guilty, but after various continuances, and on the 20th day of January, 1936, the defendant withdrew his plea of not guilty and instead plead guilty, and at that time the court fixed May 1, 1936, as the time for passing formal sentence.
“It appears to the court that the defendant has never been formally sentenced, but on May 1, 1936, the defendant surrendered himself to the sheriff of Greer county, Okla., for the purpose of serving any sentence the court might impose upon him. It is true the sheriff made an error in accepting the defendant until formal sentence had been passed. It is true the defendant made error that time.
“It appears that immediately after the sheriff took custody of the defendant that he was put on a road gang and through some kind of car accident or collision, the car in which the defendant was riding was turned over, and the defendant suffered severe personal injuries. That, as a result thereof, defendant spent 36 days in the hospital. That the sheriff made no further attempt to restrain the defendant. It appears that from that time on until February 18, 1938, the matter has been allowed to rest as far as the records of this court show.
“The state now insists it is the mandatory duty of this court to pass sentence upon the plea of guilty entered in 1936. The defendant claims by reason of the lapse of time and by reason of the fact that he suffered a severe personal injury while theoretically in the custody of the sheriff, that it would be a great injustice to sentence him now.
“The argument has been interesting, but it appears to the court there is only one question involved: Whether or not this court has lost jurisdiction. There is no question but that the court once had jurisdiction. The question now is whether or not it has lost it. The defendant has cited the case of People v. Berry, 202 Ill. 287, 67 N. E. 23, 63 L.R.A. 82, 95 Am. St. Rep. page 230, in which the court says: ‘To allow such a power would place the criminal at the caprice of the judge.’ The state cites the case of Stuckey v. State, 47 Okla. Cr. 423, 288 P. 394, wherein the court declared passing sentence for eleven months and eleven days.
“This court has discretion to impose a minimum punishment on the defendant, but, otherwise, any matter of mercy or leniency should be presented to the executive branch of government, not the judicial. For the reason that the plea of guilty has foreclosed the question of guilt, no appeal will lie from that. The defendant simply plead guilty and has never been sentenced. Notwithstanding the delay and misfortune suffered by the defendant, this court rules that it still has jurisdiction and it is the duty of the court to pass sentence on the defendant.
“However, the court appreciates that if this is a void judgment habeas corpus will lie, 'but for habeas corpus to be available, the defendant must first be imprisoned. The court would hate to cause a man to be imprisoned under a void judgment, however, if, on the facts as given, this court now has no jurisdiction, the Criminal Court of Appeals will issue a writ of prohibition, prohibiting this court from proceeding further, and now the court insists it has jurisdiction, and unless restrained by an order of the Criminal Court of Appeals, this court proposes and will on Monday, the 21st day of March, 1938, at ten o’clock a. m. pass a formal sentence on the defendant.
“In the meantime, let the defendant remain at liberty on his original appearance bond.
“Said motion to withdraw plea of guilty and plead not guilty at this time is overruled.
“Mr. Snodgrass: Give us an exception.
“The Court: Exception allowed.”

Thereupon the defendant filed a motion for a new trial, on the following grounds: That the court erred in refusing to permit the defendant to withdraw his plea of guilty; that the court erred in overruling the defendant’s plea to the jurisdiction and right of this court to enter judgment upon said plea of guilty; that the court was and is without jurisdiction by reason of lapse of time to enter judgment upon said plea of guilty.

On March 29, 1938, motion for new trial was overruled. Thereupon the court rendered judgment and sentenced the defendant to confinement in the county jail for 30 days and to pay a fine of $50 and the costs.

It is urged by counsel for appellant that upon the record in this case, showing that the long interval of two years and one month intervened between the entering of his plea of guilty and the rendition of the judgment thereon, was tantamount to an abandonment of the action, and that the court thereby lost jurisdiction to enter a judgment on the plea of guilty.

The Code of Criminal Procedure provides that after a plea or verdict of guilty, if the judgment is not arrested or a new trial granted, the court must appoint a time for pronouncing judgment. The time appointed must be at least two days after the verdict, if the court intends to remain in session so long; if not, at as remote a time as can reasonably be allowed. For the purpose of judgment, if the conviction is for misdemeanor, judgment may be pronounced in the defendant’s absence. Sections 3125, 3126 and 3127, Sts. 1931, 22 Okla. St. Ann. §§ 961, 962 and 963.

It further provides that if no sufficient cause be alleged or appear to the court why judgment should not be pronounced, it must thereupon be rendered. Section 3136, Sts. 1931, 22 Okla. St. Ann. § 972.

In the case of Collins v. State, 24 Okla. Cr. 117, 217 P. 896, 897, it is said:

“Under the foregoing provisions it is the duty of the court, on a conviction or plea of guilty, to impose sentence within a reasonable time. However, there can be no doubt that a court has the right to delay the pronouncement of judgment for the purpose of hearing and determining motions for a new trial or in arrest of judgment, or for other proper causes; but to suspend indefinitely the pronouncing of judgment and sentence after conviction is not within the power of the court. Grundel v. People, 33 Colo. 191, 79 P. 1022, 108 Am. St. Rep. 75; People ex rel. Smith v. Allen, 155 Ill. 61, 89 N. E. 568, 41 L.R.A. 473; Smith v. State, 188 Ind. 64, 121 N. E. 829, 3 A.L.R. 999; Com. v. Maloney, 145 Mass. 205, 13 N. E. 482; People v. Kennedy, 58 Mich. 372, 25 N. W. 318; State v. Hockett, 129 Mo. App. 639, 108 S. W. 599; State ex rel. Dawson v. Sapp, 87 Kan. 740, 125 P. 78, 42 L.R.A., N. S., 249; U. S. v. Wilson (C. C.) 46 F. 748. [In re Flint, 25 Utah 338, 71 P. 531, 95 Am. St. Rep. 853; People v. Reilly, 53 Mich. 260, 18 N. W. 849].”

In People v. Barrett, 202 Ill. 287, 67 N. E. 23, 24, 63 L.R.A. 82, 95 Am. St. Rep. 230, it is said:

“There can be no doubt that a court has the right, in a criminal cause, to delay pronouncing judgment for a reasonable time, for the purpose of hearing and determining motions for a new trial or in arrest of judgment, or to give the defendant time to perfect an appeal or writ of error, or for other proper causes; but to suspend indefinitely the pronouncing of the sentence after conviction, or to suspend indefinitely the execution of the judgment after sentence pronounced, is not within the power of the court. To allow such a power would place the criminal at the caprice of the judge. If the judge can delay the sentence one year, he could delay it for 15 years, or any length of time. * * * in * * * People v. Reilly, 53 Mich. 260, 18 N. W. 849. * * * Champlin, J., said: T do not think it is competent for a circuit judge or other judicial officer to suspend indefinitely the sentence which the law makes it his duty to impose upon a person duly convicted or who may plead guilty in his court. The effect of suspending sentence operates as a quasi pardon. It relieves the offender for the time being from the punishment which the law has prescribed shall be inflicted. The pardoning power, under our Constitution, is reposed in the Governor, and not in the judges. * * * The Constitution having vested this in the Governor, it cannot be exercised by the circuit judge indirectly by letting the prisoner to bail on recognizance to appear when required, to receive sentence. A stay of sentence may be granted when a certiorari is sued out or when a writ of error is obtained for the purpose of review by the higher courts. Temporary stay may also be granted where steps are taken for a new trial. But all these are steps in the progress of the case, taken for the purpose of bringing about a change in the result. * * * It appears that over a year elapsed after Reilly was convicted of the crime of larceny from the person before he was sentenced. During a large portion of the time he had been suffered to go at large upon his own recognizance. If the judge entertained serious doubts of his guilt, he should have recommended the Governor to pardon the respondent, and, if he entertained no serious doubts of his guilt, he should have pronounced judgment, instead of setting the criminal at large on his own recognizance. If such power can be exercised by a judge, it incorporates into our administration of the criminal law the ticket of leave system of the English judicature, without its surveillance and checks, and places the criminal at the caprice of the judge, subject to be called up for sentence at any time. If the judge can delay sentence one year, I do not see why he may not 15 years. An exercise of such power in this age would be no less revolting to our sense of justice than was the exercise of such power in the reign of James I, when he sent Sir Walter Raleigh to the block 15 years after his conviction.’ * * *
“The foregoing cases are quoted with approval by the Supreme Court of Georgia in Neal v. State, 104 Ga. 509, 30 S. E. 858, 42 L.R.A. 190, 69 Am. St. Rep. 175, where the court says: ‘The power to indefinitely postpone the punishment prescribed by the law, whether exercised by suspending the imposition or by suspending the execution of a sentence, is the power to perpetually prevent punishment — a power which, under such provisions as are found in the Constitution of this state, does not exist in the courts.’ * * * In People ex rel. Smith v. Allen, 155 Ill. 61, 39 N. E. 568, 41 L.R.A. 473. * * * It was held, after a review of the authorities, that it was the duty of the courts, in criminal cases, ‘upon a conviction or plea of guilty, to pronounce judgment at that time, unless, upon motion for new trial, in arrest of judgment, or for other cause, the case is continued for further adjudication, and the defendant, by recognizance or being held in custody, required to continue to answer the charge, and if they fail to perform that duty, but discharge the prisoner or permit him to go indefinitely, their power and jurisdiction over him cease, and a subsequent sentence is without judicial authority.’ * * *
“Long and unreasonable delays in passing upon motions for new trials or in arrest of judgment are calculated to obstruct the administration of public justice, and to operate as a denial of the right of the citizen to a speedy trial. It is said, however, in this case, that all the delay was with the consent of the relator, and that he cannot now be heard to complain. It cannot, of course, be contended that the doctrine of estoppel has any application here; nor can it be held that the relator could waive any requirement respecting the jurisdiction of the court to enter judgment and pronounce the sentence. If the court had no power thus indirectly to suspend sentence and to permit the relator to go at large upon his own recognizance or upon parole, such power could not be conferred by his consent, nor by his express request. Harris v. People, 128 Ill. 585, 21 N. E. 563, 15 Am. St. Rep. 153; Morgan v. People, 136 Ill. 161, 26 N. E. 651. The rendering of judgment and the final sentencing of the defendant cannot be made a mere matter of discretion with the judge or the public prosecutor, nor to depend upon the subsequent conduct of the convicted person. If it were so, what subsequent conduct would demand or justify the pronouncing or the withholding of the sentence? And who would determine its character? Such conduct might be innocent in itself, yet offensive to those in whom the power to apprehend or to punish resided. The liberty of the citizen cannot, in a free country, be made to depend for its security on the arbitrary will of any public officer. It can be taken from him by due process of law only.”

In the case of Mintie v. Biddle, 15 F. 2d 931, the Circuit Court of Appeals, Eighth Circuit, held:

“If court’s jurisdiction to impose sentence is lost because of indefinite postponement without any order of continuance for some four terms, question of prisoner’s consent thereto is immaterial.”

In White v. State, 45 Okla. Cr. 289, 283 P. 581, 582, it is said:

“The objection of the defendant to the court in passing sentence upon him at the time it did was well taken. Following the rule laid down in Collins v. State, 24 Okla. Cr. 117, 217 P. 896 we hold that, in view of the length of time elapsing between the plea of guilty entered by the defendant, which was more than two years, and the failure of the court to enter judgment at the time appointed or at any succeeding term and as no definite time was fixed in which the defendant should appear for sentence, the prosecution was abandoned and the court was without jurisdiction to pronounce the judgment and sentence.”

In the case at bar all the record shows is that after defendant pleaded guilty no further order was made in the case for some twenty-five months and in the meantime four terms of court had passed before judgment was rendered.

It is suggested that the delay which occurred between the plea and the judgment must be deemed to have occurred with the consent of the defendant, and that he may not complain.

We think that when judgment is postponed indefinitely, without any order of continuance, for some four terms, then no question of consent can be of aid in the case even if it be conceded that what took place was tantamount to defendant’s consent to the initial deferment of judgment and sentence.

When it appears that judgment and sentence was not deferred to a day certain or to a term certain, it was in effect deferred indefinitely, because the trial court omitted to make any order deferring judgment and sentence.

It follows from the foregoing review and what is said, that the judgment must be reversed and the cause remanded to the county court of Greer county with direction to dismiss, and so it is ordered.

DAVENPORT, J., concurs. BAREFOOT, J., absent.


author: PER CURIAM.

text:
    CLELL HARDCASTLE v. STATE.
    No. A-9614.
    Aug. 18, 1939.
    (93 P. 2d 547.)
    Billingsley & Kennerly, of Wewoka, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was tried in the superior court of Seminole county upon an information charging that in said county, on or about the 25th day of December, 1936, he did kill and murder one Paul Coffey, by shooting him with a pistol. The jury by their verdict found him guilty of manslaughter in the first degree, and assessed his punishment at imprisonment in the state penitentiary for the term of seven years. From the judgment rendered on the 27th day of September, 1938, an appeal was perfected by filing in this court on March 27, 1939, a petition in error with case-made.

Since the appeal was taken, and before the final submission of the case, plaintiff in error departed this life as shown by the motion of his counsel of record, filed in this court August 14, 1939, averring that on the 28th day of July, 1939, the said Clell Hardcastle, plaintiff in error, departed this life in Clay county, 111., and in support thereof presents herewith the affidavit of H. D. Fehrenbacker, a duly licensed and practicing physician and surgeon within the state of Illinois, wherein affiant states “That he is a regularly licensed and practicing physician and surgeon within the state of Illinois. Affiant further states that A. C., or Clell, Hardcastle was critically injured in an automobile-truck collision and as a result of the injuries received thereby, died in Clay county, 111., on July 26, 1939. Affiant further states that he was in attendance upon the said A. C., or Clell, Hardcastle at the time of his death.

In a criminal prosecution, the purpose of the proceeding being to punish the accused, the action must necessarily abate upon his death, and, where it is made to appear that the plaintiff in error died pending the determination of his appeal, the cause will be abated. Deweese v. State, 62 Okla. Cr. 6, 69 P. 2d 404; Yota v. State, 10 Okla. Cr. 26, 133 P. 257; Martin v. State, 38 Okla. Cr. 309, 260 P. 780.

It is therefore considered, adjudged, and ordered that the proceedings in the above entitled cause be abated ¿ cause remanded, with direction to the trial court to enter its appropriate order to that effect.


text:
    REX MATTHEWS v. STATE.
    No. A-9571.
    Aug. 25, 1939.
    (93 P. 2d 549.)

      Harry C. Kirkendall, of Enid, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is prosecuted to reverse a judgment of conviction and sentence of confinement in the penitentiary for a term of one year and to pay a fine of $500 and the costs, rendered in pursuance of the verdict of a jury finding appellant guilty of unlawful possession of intoxicating liquors, third offense.

The information in substance charges that on the 10th day of January, 1938, in said county, Rex Matthews did unlawfully and feloniously have possession of twenty-four pints of whisky and six pints of gin, with the unlawful intent to sell the same, and charges three previous convictions in the county court of Garfield county for unlawful possession of intoxicating liquors. The judgment was rendered April 6, 1938.

The conviction was had under that provision of the prohibition enforcement act making the offense a felony where the conviction is for a third or subsequent violation of the provisions of said act, and providing that such defendant “shall be guilty of being ‘an habitual violator of the prohibition laws of this state.’ ” Sec. 2631, St. 1931, 37 Okla. St. Ann. § 14.

The evidence on the part of the state, which is undisputed, shows, or tends to show, that by custom, police patrolmen checked all cars parked on the streets of Enid between the hours of 10 and 11 each night to see if they were locked and to see if there were articles of value in them that might be stolen. In making this check on the date alleged a patrolman found a car parked at 121 East Broadway, in front of the Palace Theater; the car was locked, the officer saw a carton on the floor of the car, labeled “Paul Jones Whisky” and two or three other cartons beside it, and saw a bottle in the car, this officer called another officer and they called two other officers. They each saw the cartons on the floor between the seats of the automobile; a truck was called and the automobile was towed to the police station; there by manipulating a wire they managed to open the car and found four cartons containing liquor. An hour or two later the defendant appeared at the station and claimed the car, but disclaimed ownership of the whisky. He gave the officers the keys to the car; when the trunk was unlocked five or six bottles of “Crab Orchard Whisky” were found, which the defendant stated was his liquor.

Upon the trial, Patrolman O. S. Plummer testified that, with Patrolman Huffman, he was checking the doors to business places and checking cars on East Broadway to see if articles of value had been left in unlocked cars; if there was they would lock them. About 10:45 that night, a Plymouth car was parked facing the curb, in front of 121 East Broadway, and it was locked; that he looked in and saw behind the front seat, on the floor, three whisky cartons, one labeled, “Paul Jones”; a fourth carton was partly covered by a blanket; that he' called Officer Huffman on the other side of the street, then they called Officer Roberts. The car was towed to the station; there with a wire they opened the car.

Patrolman Huffman testified that he was making the north side of East Broadway when Officer Plummer signaled him with a flashlight to come across the street; that he looked in the car and saw three silver colored whisky cartons and the corner of another one, they called Officer Roberts, then they took charge of the car and it was towed to the police station.

Patrolman Ted Roberts testified that on the night of January 9, 1938, he was on duty and was called by Officers Plummer and Huffman from his beat to a Plymouth sedan parked at 121 East Broadway, that he looked in and saw three cartons, one labeled “Paul Jones Whisky,” and a broken carton, one bottle exposed, labeled “Crab Orchard.”

Melvin Smith testified that he was desk sergeant at the police station on night of January 9th, this year; that an automobile was brought there; that he saw some cartons in the car without the aid of a flashlight; that he put a wire through the front ventilator, lifted the handle and unlocked the car door, and found in the car four pints of Paul Jones whisky, three pints of Four Roses and twelve pints of Crab Orchard whisky. The defendant Rex Matthews came to the station shortly after and said that it was his car, but said he did not know there was any whisky in the car. Asked for the keys, he said he would just wait and give them to the chief. After sitting there a while he handed him the keys. Witness then asked him if there was any whisky in the car trunk; first, he said he did not know; then he said, “I will tell you, you will find five or six pints of whisky in the back.” That witness could not make the key work to unlock the trunk, Officer Crawford asked him if he could make it work, and Mr. Matthews said he could unlock it. In the trunk they found five pints of Crab Orchard whisky, and six pints of gin, altogether they found 30 pints of liquor in the car.

Page Belcher, court clerk, called as a witness, produced the records proper, including the informations and judgments rendered on three previous convictions for unlawful possession of intoxicating liquor in the county court of Garfield county, Jere G. Crowley, judge.

At the close of the state’s evidence, counsel for defendant moved to strike all the evidence on the ground that the same was procured by an illegal and unreasonable search without a warrant, in violation of defendant’s constitutional rights, which was overruled. And interposed a demurrer thereto, and moved the court to direct the jury to' return a verdict of not guilty, which was overruled.

The defendant did not take the, witness stand in his own behalf and no witness was called on the part of the defense.

Before commencement of the trial, defendant’s counsel filed a motion to suppress the evidence for the reason that the same was obtained by an illegal and unreasonable search of the defendant’s automobile without a warrant, in violation of his constitutional and statutory rights.

In support of the motion to suppress, three witnesses testified that at request of counsel for defendant they went to 121 East Broadway a few nights back; a Plymouth sedan was there, and they were asked to look into the car to see if they could read the words on a carton on the floor between the seats, which they did. In answer to the question repeated, each said they could not.

The testimony of these witnesses was admitted over the state’s objections that the same was incompetent.

Two patrolmen, Roberts and Plummer, who after-wards testified on the trial as witnesses for the state, were also called by defendant.

Ted Roberts testified:

“I was called there by Officers Huffman and Plummer. I do not know whether or not there was a search warrant for that car; after we looked in the windows, it was taken to the station; I was not there when it was opened. I looked through the car windows and saw these cartons there, I knew there was whisky in them, I could see one bottle back behind the cartons, I could read the words, ‘Paul Jones’ on one of the cartons.”

Patrolman Plummer testified:

“A Plymouth sedan was parked in front of 121 East Broadway around 11 to 11:15 that night, I did not have a search warrant when I looked into the car. We had the car pulled to the station with a wrecker. There we opened the car with a piece of wire, and found some packages on the floor between the seats, and they contained whisky. When I saw the packages there I called the other officers. I could not tell whether they were full or empty packages.”

The prosecution admitted that the search was made without a search warrant and without a warrant for the arrest of the defendant.

The motion to suppress was overruled.

In support of the contention that the state’s evidence was inadmissible, the constitutional provisions relied on are as follows:

“No person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided.” Const. art. 2, sec. 21, Okla. St. Ann.
“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated.” Const. art. 2, sec. 30.

Section 21 corresponds in substance with article V, and sec. 30 is identical with article IV, respectively, of the Amendments to the Constitution of the United States, U.S.C.A.

Provisions substantially the same as the quoted provisions of our Constitution are found in the Constitutions of all the states. The state courts, generally, construe the provisions of section 30, as forbidding search without a warrant, except when made as an incident to a lawful arrest. A person lawfully arrested may as an incident thereto be searched, and articles found in his possession, which are the subject of crime, or the means of committing it, or which may be of use as evidence at the trial, or which may be used in committing violence or in effecting an escape, may be seized. 2 R.C.L. 467; 5 C. J. 434. Keith v. State, 30 Okla. Cr. 168, 235 P. 631.

The Code of Criminal Procedure provides:

“A peace officer may, without a warrant, arrest a person:
“1. For a public offense, committed or attempted in his presence.” Sec. 2780, Sts. 1931, 22 Okla. St. Ann. § 196.

Section 2640 of the Prohibition Enforcement Act, 37 Okla. St. Ann. § 89, provides in part:

“When a violation of any provision of this chapter, shall occur in the presence of any sheriff, constable, marshal, or other officer having power to serve criminal process, it shall be the duty of such officer, without warrant, to arrest the offender and seize the liquor, bars, furniture, fixtures, vessels, and appurtenances thereunto belonging, so unlawfully used. * * *”

Provision is also made for the seizure of all evidence of the commission of such violation, including automobiles and other vehicles.

Counsel for defendant in the brief says:

“It is evident that the court erred in overruling the motion to suppress, that in the case of Strategier v. State, 56 Okla. Cr. 11, 32 P. 2d 1054, the facts were that the officer pulled up to the side of the car, and the defendant was out of the car and the door was open, and the officer could see a jar on the floor of the car.
“In the case at bar the officers testified they did not know there was whisky in the car until the car was opened at the police station.”

In the Strategier Case this court held:

“A peace officer without a warrant may arrest a person for any violation of the prohibitory laws committed in his presence, and may seize any intoxicating liquor in the possession or immediate presence of the person arrested.”

In the opinion it is said:

“In Sands v. State, 36 Okla. Cr. 55, 252 P. 72, the identical question involved in this case was considered by this court, and in the second paragraph of the syllabus the court said: ‘The mere looking into an automobile and there seeing intoxicating liquor, which is not concealed, and which requires no search to discover, is not an illegal search within the meaning of the law and Constitution making illegal a search without a valid search warrant.’ Miles v. State, 31 Okla. Cr. 4, 236 P. 907; Sprinkle v. State, 34 Okla. Cr. 161, 245 P. 901; Collins v. State, 31 Okla. Cr. 187, 237 P. 865; Stansell v. State, 30 Okla. Cr. 265, 235 P. 937.
“In Bullington v. State, 38 Okla. Cr. 214, 259 P. 876, 877, this court said: ‘A peace officer, without a warrant, may arrest a person for any violation of the prohibitory liquor law committed in his presence and may seize any intoxicating liquor in the possession or immediate presence of the person arrested.”

In the case of Miles v. State, 31 Okla. Cr. 4, 236 P. 907, this court held:

“An offense is committed or attempted ‘in the presence of an officer,’ within the meaning of the law, where such officer is apprised by any of his senses that a misdemeanor is being committed or attempted, or by information of such fact communicated by the person arrested prior to his arrest.”

In the case of Washington v. State, 37 Okla. Cr. 415, 259 P. 150, this court held:

“A search for intoxicating liquors without a search warrant is not ‘unreasonable,’ within the meaning of the Constitution, where it is made by officers, who, before entering the premises, could smell mash cooking, which they knew by their sense of smell was whisky mash, and where they observed a person moving around with a flash light where a still was in operation.”

In the case of Husty v. United States, 282 U. S. 694, 51 S. Ct. 240, 75 L. Ed. 629, 74 A.L.R. 1407, the Supreme Court of the United States held:

“Search of an automobile without warrant for liquor illegally transported or possessed is not prohibited by the 4th Amendment to the Federal Constitution if the search is upon probable cause; and arrest for the transportation or possession need not precede the search.”

In the case of People v. Case, 220 Mich. 379, 190 N. W. 289, 27 A.L.R. 686, the Supreme Court of Michigan held:

“There is no violation of the constitutional provision against search and seizure by the search, without warrant, of an automobile standing on a public fairground, and seizure of contraband goods in it evidencing that a crime is being committed.”

In the opinion it is said:

“Our Constitution contains both a provision against intoxicating liquor and against unreasonable search and seizure. Every constitutional provision, as well as statutory, should be construed where possible to give effect to every other constitutional provision in the instrument. Neither our state nor the federal Constitution directly prohibits search and seizure without a warrant, as is sometimes asserted. Only ‘unreasonable’ search and seizure is forbidden. They are substantially the same upon that subject. * * *
“The generally recognized rule is fairly stated in the following annotation to 11 Fed. Stat. Ann. 354: ‘The question whether a seizure or a search is unreasonable in the language of the Constitution is a judicial and not a legislative question; but in determining whether a seizure is or is not unreasonable, all of the circumstances under which it is made must be looked to.’
“The automobile is a swift and powerful vehicle of recent development, which has multiplied by quantity production and taken possession of our highways in battalions, until the slower, animal-drawn vehicles, with their easily noted individuality, are rare. Constructed as covered vehicles to standard form in immense quantities, and with a capacity for speed rivaling express trains, they furnish for successful commission of crime a disguising means of silent approach and swift escape unknown in the history of the world before their advent. The question of their police control and reasonable search on highways or other public places is a serious, question far deeper and broader than their use in so-called ‘bootlegging’ or ‘rum running,’ which in itself is no small matter. While a possession in the sense of private ownership, they are but a vehicle constructed for travel and transportation on highways. Their active use is not in homes nor on private premises, the privacy of which the law especially guards from search and seizure without process. The baffling extent to which they are successfully utilized to facilitate commission of crime of all degrees, from those against morality, chastity, and decency to robbery, rape, burglary, and murder, is a matter of common knowledge. Upon that problem a condition and not a theory confronts proper administration of our criminal laws. Whether search of and seizure from an automobile upon a highway or other public place without a search warrant is unreasonable is in its final analysis to be determined as a judicial question in view of all the circumstances under which it is made.”

In the case at bar, the undisputed facts and circumstances as testified to by the officers were sufficient to warrant them in believing that intoxicating liquor was in the cartons and bottle lying on the floor of the automobile, and this was a sufficient showing of an offense committed in the presence of the officers, and the defendant admitted, while their investigation was in progress, that the trunk on the' car contained whisky that belonged to him. The admissions against interest made by the defendant were conclusive as to his guilt of the offense charged.

In view of the time, place, and all the circumstances under which this seizure was made, we are of the opinion there was no violation of the constitutional provision forbidding unreasonable searches and seizures.

The trial was exceptionally free from error. The instructions correctly covered the law of the case, and from all the record discloses, the defendant had a fair trial and was properly convicted.

It follows from what has been said that the judgment and sentence of the trial court should be affirmed. It is so ordered.

BAREFOOT and DAVENPORT, JJ., concur.


text:
    JAY PROTHERO v. CITY OF TULSA.
    No. A-9584.
    Aug. 25, 1939.
    (93 P. 2d 548.)
    Hudson & Hudson, of Tulsa, for plaintiff in error.
    H. 0. Bland, City Atty., and Maurice Williams, Asst. City Atty., both of Tulsa, for defendant in error.
   PER CURIAM.

Plaintiff in error, Jay Prothero, was tried and convicted in the municipal court of the city of Tulsa upon an information charging that on the 30th day of August, 1938, he did then and there unlawfully continue to live on real estate belonging to the city of Tulsa, known as the Convention Hall, and on September 10, 1938, was sentenced to pay a fine to the city of Tulsa, in the sum of $10 and the costs, as punishment for said offense.

An appeal was duly filed in this court on November 3, 1938. On August 25, 1939, he filed his motion to dismiss the appeal, which, omitting title, is as follows:

“Comes now Jay Prothero, plaintiff in error, and hereby dismisses his appeal in the above entitled cause at the cost of the plaintiff in error, because and for the reason that the questions involved in said appeal have become moot.”

An appeal may be taken to this court by a defendant as a matter of constitutional right from any judgment rendered against him in a court of record. It is a privilege granted by the law to persons convicted of crime which they may exercise at their option. Hancock v. State, 57 Okla. Cr. 329, 48 P. 2d 348.

In the instant case, there is no reason made to appear why the dismissal should not be ordered in compliance with the motion of the plaintiff in error.

It is therefore adjudged and ordered that the appeal be dismissed.