text:
    C. G. WITTE v. STATE.
    No. A-5340.
    Opinion Filed Oct. 16, 1926.
    (249 Pac. 968.)

      C. Guy Cutlip, Thos. J. Horsley, Kitty C. Sturde-vant and Lydick & McPherren, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Hughes county on a charge of grand larceny in borrowing from a bank while a director and active managing officer, and was sentenced to a term of five years in the state penitentiary.

The information alleges in substance that the defendant was on October 24, 1923, the active managing officer of the Stuart State Bank; that he executed, payable to said bank, his note in the sum of $1,133.84, and did thereby accept, receive and borrow said sum. The charging part of the information is as follows:

“* * * C. G. Witte, being then and there a director and active managing officer of the Stuart State Bank, of Stuart, Okla., a banking corporation, organized and existing under the laws of the state of Oklahoma and engaged in transacting a general banking business at Stuart, Hughes county, Okla., did in Hughes county, state of Oklahoma, on the date above-named, while acting as such active managing officer of said Stuart State Bank, of Stuart, Okla., unlawfully, willfully, fraudulently, stealthily, and feloniously accept, receive, and borrow, from the said Stuart State Bank, of Stuart, Okla., the sum of eleven hundred thirty-three and 84/100 ($1,133.84) dollars, good and lawful money of the United States of America, and of the value of eleven hundred thirty-three and 84/100 ($1,133.84) dollars, the property of the said Stuart State Bank of Stuart, Hughes county, Okla., on one certain note, dated October 24, 1923, due and payable to the order of Stuart State Bank, Stuart, Okla., on the 15th day of November, 1924, in the sum of eleven hundred thirty-three and 84/100 ($1,133.84) dollars, and signed and executed by the said defendant, C. G'. Witte; and said note being so executed by the said C. G. Witte was then and there by the said defendant, C. G. Witte, unlawfully, willfully, feloniously and stealthily placed among the assets of said bank as a part thereof, and on said note and by means thereof the said defendant, C. G. Witte, did, in Hughes county, state of Oklahoma, on or about the 24th day of October, 1923, unlawfully, willfully, fraudulently, stealthily, and feloniously receive, accept, and borrow thereon from the said Stuart State Bank, of Stuart, Okla., of which said bank the defendant, C. G. Witte, was then and there the active managing officer, the said sum of eleven hundred thirty-three and 84/100 ($1,133.84) dollars, good and lawful money of the United States of America, and of the value of $1,133.84, the personal property of the said Stuart State Bank of Stuart, Okla. * * *”

The prosecution is based on section 4127, Comp. Stat. 1921, as amended by section 1, c. 137, Session Laws 1923, which, as amended, reads:

“It shall be unlawful for any active managing officer of any bank organized or existing under the laws of Oklahoma to- borrow, directly or indirectly, money from the bank with which he is connected; and the officer making or authorizing a loan to any person, as well as the person receiving the same, shall be deemed guilty of the larceny of the amount borrowed and shall ■be punished by imprisonment in the penitentiary for not less than five (5) years nor more than fifteen (15) years.”

The record discloses a state of facts about as follows: Prior to October 20, defendant was president and manager of the Stuart State Bank. On that date, as shown by minute book, a directors’ meeting was held, defendant tendered his resignation of the office of president and manager, which was accepted, effective at once. M. L. Smith was at the same time elected president and D. M. Rogers employed as cashier and manager, under the supervision of the president, to assume his duties on October 27. Defendant continued a director and remained in the bank. Rogers, the newly elected cashier and manager, came to the bank on October 24th, and defendant continued there until the 27th to acquaint Rogers with the condition of the bank, and during this time virtually managed its affairs, signed checks and drafts, and received salary.

Prior to this time, J. R. Boyett, vice president of the bank, had purchased a tract of land from C. L. Bell. The defendant had a half interest in this purchase. Boyett and defendant had given their note to Bell in the sum of $2,050, which note had been transferred by Bell to Elwood and Chastain. On the 23d or 24th of October, Elwood and Chastain insisted that Boyett take up the Bell note. Boyett then required defendant to make a note for one-half of the Bell note, with accumulated interest, held by Elwood and Chas-tain, which one-half amounted to $1,133.84. Defendant thereupon made and signed a note payable to the Stuart State Bank in the sum of $1,133.84, representing the half interest owed by him in the Bell note, and, according to his testimony, delivered this note to Boyett. Boyett also executed to the bank his note for one-half the Bell note. On the same afternoon there appeared in the note ease at the bank the said note of defendant. Elwood and Chastain received credit on the books of the bank for the amount of the note.

It is first contended that the information is insufficient in that it fails to allege the general elements of larceny as defined in section 2101, Comp. Stat. 1921, but charges only the elements contained in section 4127, Comp. Stat. 1921, as amended by section 1, c. 137, Session Laws 1923. The offense charged is the special larceny defined by section 4127, as amended, and the elements of the general larceny statute were properly omitted. Appelget v. State, 33 Okla. Cr. 136, 243 P. 255.

Complaint is next made that after the jury had been impaneled and sworn the trial judge went from Hughes county to Seminole county and transacted official business, and that the court thereby lost jurisdiction of the case, citing In re Patswald, 5 Okla. 789, 50 P. 139. The record shows that after the jury was impaneled and sworn, before any evidence was offered, the trial judge, on account of an urgent matter requiring his presence in Seminole county, had the jury held in charge of the bailiff and was gone from Hughes county some two or three hours. The trial was not in progress during the absence of the trial judge. The proceedings were clearly within the law as announced in Cochran v. State, 4 Okla. Cr. 380, 111 P. 974, and Stites v. State, 9 Okla. Cr. 596, 132 P. 822. No proceedings whatever were had during the absence of the judge, the jury were not engaged in deliberating and the case had not finally been submitted to them. Under such state of facts, the contention made is no longer an open question. In Ex parte Mingle, 2 Okla. Cr. 708, 104 P. 68, it was held:

“Upon an agreed statement of facts, showing that during the progress of the trial the trial judge at divers times during adjournments before the final submission of the case to the jury left Oklahoma county and went to Canadian county, but was present the entire time the jury were deliberating of their verdict, held, that the absence of the trial judge during the adjournments could in no way affect the legality of the proceedings, and did not deprive the court of the power or jurisdiction to render judgment and issue process for the imprisonment of the defendant. In re Patswald, 5 Okla. 789, 50 P. 139, distinguished.”

It is next argued that the court erred in giving instruction No. 4, wherein the jury are told that if they find defendant was a director, and in addition stayed in said bank assisting in operating and running it on the 24th of October, that he was an active managing officer within the meaning of the law. It is urged that a director is not an active managing officer of a bank, and that the undisputed evidence is that the defendant had resigned on October 20th and Smith elected president. The record shows that defendant was a director of the bank at the time the note in question was taken into the assets of the bank, and that while his resignation had been filed and accepted, it was in fact in abeyance, and he continued in the bank, assisting actively in conducting its operations until October 27. In the case of Eubank v. Bryan County State Bank, 216 F. 833, 133 C. C. A. 37, wherein section 4127, Comp. Stat. 1921 (section 270, Rev. St. 1910), was under consideration, in syllabus 1 it was held:

“ * * * Held, that a director of a bank is an ‘active managing officer’ within the meaning of section 270, and cannot be relieved from responsibility as such by any action of the other directors, and consequently that a loan of money made by the bank to him is illegal. jfs * 99

On page 838 of said opinion (133 C. C. A. 42), we find the following language:

“ * * * If the duties of Dunlap as one of the managers of the bank depended alone upon the fact that he was its president, it may be that the board of directors might prescribe and limit his duties, a question that need not now be determined, for section 262 of the Oklahoma statute (Rev. Laws 1910) imposes upon the directors of the bank, of which Dunlap was one, the positive duty of its management and control. His duties as one of the managers of the bank arose therefore from the fact that he was one of its directors, and not alofte from the fact that he was its president; and these duties we think cannot be restricted or limited by any action of the board of directors.”’

The Supreme Court of the state, in a case growing out of the same transaction, cited, in Eubank v. Bryan County State Bank, supra, in the case of Bryan County State Bank et al. v. American National Bank, etc., 56 Okla. 529, 156 P. 352, said:

“ * * * It is clear that one of the main purposes of the banking laws in the state of Oklahoma is to impose upon the officers of the bank, such as the president or director, the positive duty of its management and control and to fix upon these officers the duty and responsibility of conducting said bank in accordance with law, and this court should be slow to adopt any construction of law which would relieve these officers from their responsibility. * * * ”

Instruction No. 4 is not erroneous. It follows the language of the information and required defendant must have remained in the bank assisting in its operations and in the transaction of its business in order to constitute him an active managing officer.

Under the general rule that statutes defining crimes and fixing criminal responsibility are not to be enlarged by construction, we believe that section 4127, supra, does not apply to a director, merely. It is true that the board of directors of a bank are the final managing and controlling body. Section 4119, Comp. Stat. 1921. This statute, however, does not make the individual director a managing officer. The directors act not as individuals, but as a board in a supervisory capacity over the officers who manage. The individual director may or may not be an active managing officer. It is difficult to give a strict legal definition to the term “active managing officer.” A director is an officer who with other directors constitutes a board having general control over the officers and affairs of the bank. The statute, however, does not apply to an officer, but a certain class of officer — i. e., active managing officer. A mere director is not an active managing officer as the term is therein used, but in order to bring a director within the terms of the statute he must also be actively conducting and managing in some measure the affairs of the bank. That is, that the term “active managing officer” means what the language clearly expresses— one having control of the detail affairs of the bank, the approving of loans, the extension of credit, and the conducting of its routine business. The liability mentioned in the cases of Eubank v. Bryan 'County State Bank, supra, and Bryan County State Bank et al. v. American National Bank, etc., supra, deals with the civil liability of a director and not with his liability under the criminal statutes. In the case at bar, if the state had proven merely that defendant was a director and had stopped there, the proof would have been insufficient, but the information alleges and the proof shows that, in addition to being a director, the defendant was active in the management of the bank’s affairs and an active managing officer as provided by section 4127, supra.

Complaint is made of other of the court’s instructions and of other errors, but none of them are prejudi-cially erroneous or require discussion.

The case is therefore affirmed.

BESSEY, P. J., and DOYLE, J., concur.


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    RAY A. JOHNSON v. STATE.
    No. A-6231.
    Opinion Filed Oct. 16, 1926.
    (249 Pac. 971.)
    J. E. Falkenberg, for plaintiff in error.

      Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff-in error, hereinafter called defendant, was convicted in the district court of Grant county on a charge of murder, and his punish..ment fixed at death.

From the record it appears that defendant, at the time of the offense charged, was just under the age of 21 years, and he and one Albert E. Greer, an older man, stole an automobile in the state of Kansas and drove it into the state of Oklahoma. Near the town of Med-ford they entered a farmhouse and stole some firearms, and then went to the town of Medford, where they intended to break into a store. They drove the car into the alley near the rear of the store and Greer with a shotgun stood on watch, while defendant attempted to take the glass out of the rear window. While so engaged, Stephen Mann, night policeman, came into the alley. The approach of Mann was discovered by Greer, who communicated the fact to defendant. Greer left the shotgun, got into the automobile, and started the engine. Defendant got possession of the shotgun, and a shooting affray between him and Mann took place, in which Mann was killed. Defendant fired two shots with a shotgun, and Mann' fired four shots with a pistol. Defendant claims deceased fired first. The evidence of other witnesses is that the report of the shotgun was heard first. The shots from the pistol of deceased cut-the ignition wires, and the car could not be operated. Defendant and Greer then fled on foot. They were arrested some 20 miles away. A severance was taken. Defendant was tried, and the verdict finding defendant guilty and fixing the punishment at death was returned 'January 21, 1926. It is out of the record but stated in the briefs, and was also stated to the court-in the oral argument, that, on the day following the return of the verdict, the codefendant Greer was by agreement permitted to plead guilty to manslaughter in the first degree and was sentenced to 40 years in the state penitentiary.

It is first argued that the court erred in refusing defendant’s application for a change of venue. In the application for a change, it was set out defendant could not have a fair and impartial trial in Grant county because of the prejudice of the citizens of that county against defendant, due to the wide publicity given the case by prejudicial accounts through the press and otherwise. A strong showing upon this application was presented, which was contested by the state by numerous counter affidavits, in effect, stating that there was no widespread prejudice against the defendant in Grant county, and that defendant could have a fair trial by eligible, unprejudiced jurors. Under the rule frequently announced by this court that an application for a change of venue is addressed to the sound discretion of the trial court, and, unless an abuse of discretion is shown, this court will not reverse a judgment on ac-' count of the refusal of the trial court to grant a change, this contention cannot be sustained. Gentry v. State, 11 Okla. Cr. 355, 146 P. 719; Smith v. State, 14 Okla. Cr. 348, 171 P. 341; Allen v. State, 16 Okla. Cr. 136, 180 P. 564.

Complaint is next made that the court erred in permitting evidence of other crimes to be introduced in evidence. This assignment is directed to the admission of evidence that the automobile in which- defendant and Greer were traveling was stolen, that they had entered a-farmhouse and had stolen firearms from it, and planned to' and were engaged in the burglary of the store at the time of the homicide.

It is, of course, fundamental that when a defendant is upon trial for an offense he is to be convicted, if at all, for the particular offense charged, and evidence of other offenses is not admissible for the purpose of showing him guilty of the particular offense for which he is on trial. There are, however, several well-settled exceptions. Evidence that tends directly to prove a defendant guilty of the offense for which he is on trial or that tends to prove some element of the offense charged or to show guilty knowledge, intent, motive, or is so closely linked or connected with the crime charged as to throw light upon it, is admissible, although such evidence may tend to show the commission of some separate offense and does in a measure apparently work injury to the accused. Tudor v. State, 14 Okla. Cr. 67, 167 P. 341; Cross v. State, 11 Okla. Cr. 117, 143 P. 202; State v. Rule, 11 Okla. Cr. 237, 144 P. 807; Holmes v. State, 6 Okla. Cr. 541, 119 P. 430, 120 P. 300.

Under the exceptions in these various cases and others determined by this court, all the evidence tending to prove the larceny of the automobile, the theft of the firearms in the possession of defendant and Greer at the time of the homicide, and the attempted burglary was clearly admissible and competent as tending to show motive or intent and to shed light upon the crime charged.

It 'is next claimed that the court erred in permitting private counsel employed to assist in the prosecution to supersede the county attorney. ■ Under this contention it is argued at some length that the county attorney did not read the information nor make the opening statement to the jury, nor in any manner participate in the examination of witnesses, and did not argue the case to the jury, citing' section 5741, Comp. Stat. 1921, Hartgraves v. State, 5 Okla. Cr. 274, 114 P. 346. No objection, however, was made during the course of the trial, and the first time any objection upon this point was called to the attention of the court was in the motion for a new trial. The journal entry of judgment recites that the county attorney appeared at the trial, and it is not made to appear that the county attorney at any time lost control of the case. The contention cannot be sustained. None of the assignments of error argued can be sustained.

It is lastly urged that, under the entire record, the penalty assessed is too severe; that, in the event the court should not sustain the contentions made, it should modify the judgment by reducing the punishment from death to life imprisonment. The penalty of death as a punishment for crime is to be inflicted only in the most extreme cases. This court has on numerous occasions upheld the death penalty and has on numerous occasions reduced the sentence of death to life imprisonment. In the case of Westbrook v. State, 14 Okla. Cr. 423, 172 P. 464, where two defendants were guilty of a murder while engaged in the commission of a felony, a severance was taken, and one of the defendants sentenced to suffer the death penalty and the other upon a plea of guilty given life imprisonment, this court reduced the sentence to life imprisonment, saying:

“For the reasons stated, and taking into consideration the fact that the defendant MIcKennon, who it appears was the arch-conspirator, was, upon the recommendation of the prosecuting attorney, sentenced to life imprisonment upon his plea of guilty, we are of the opinion that in the furtherance of justice the judgment and sentence in this case should be modified to imprisonment for life at hard labor.”

The fact that one of two defendants, guilty of murder, is sentenced to punishment other than death and the other sentenced to death does not of itself afford any legal reason for reducing the punishment. There may be sufficient reasons why a difference should be made. A difference in culpability may exist. One of the defendants' may have furnished information to the state, or other reasons may be present. But where, as here, no reasons appear and both are equally guilty, and where such wide difference of punishment is imposed between a defendant and his codefendant, we believe that the penalty of death should not be inflicted and that justice requires that we modify the sentence of defendant by reducing it from the death penalty to imprisonment in the state penitentiary at hard labor for life, and, as thus modified, the judgment is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


author: PER CURIAM.

text:
    G. W. BEATY v. STATE.
    No. A-5785.
    Opinion Filed Oct. 16, 1926.
    (249 Pac. 973.)
    Wright & Gill, for plaintiff in error
    Geo. F. Short, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of maintaining a public nuisance, and was sentenced to pay a fine of $750 and to imprisonment in the county jail for a term of 90 days.

The record discloses that certain county and federal officers, without a search warrant, went to the premises of defendant and upon a search discovered' some mash and whisky and a still made out of a wash boiler. The still was in a cellar near the dwelling house, the mash in the chicken house, and a part of the whisky in the dwelling house. Before beginning the trial, defendant made a motion to suppress the evidence, as having been obtained by an illegal search. This motion was overruled. It should have been sustained. The evidence does not disclose, nor is it claimed, that defendant waived his constitutional right. There is no reason why the officers might not have procured a search warrant for the premises.

The case is reversed and remanded.


author: DOYLE, J.

text:
    E. B. HIBBETS v. STATE.
    No. A-5767.
    Opinion Filed Oct. 16, 1926.
    (249 Pac. 973.)
    E. V. Rakestraw, for plaintiff in error.

      George F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

Appellant, E. B. Hibbets, was convicted on an information charging that in Kiowa county, December 11, 1924, he did “unlawfully and intentionally ferment and possess mash, wort, or wash fit for distillation” of whisky, and was sentenced to pay a fine of $50 and to be confined in the county jail for 30 days. He has appealed, contending that there was not sufficient evidence introduced by the state to justify the court in submitting the case to the jury, and that the court erred in overruling the motion for a directed verdict.

The evidence shows that appellant is a physician, engaged in the general practice in and around Roosevelt for 16 years; that he had a farm about a mile and a half west of Roosevelt leased; that the house was located about the center of the farm, and the barn was in the pasture, about 45 yards from the house; that the cultivated land was in cotton, and the pasture land, including the barn, had been subrented to Dr. Reichert; that the house was vacant for some time prior to the date alleged; that defendant on said date had no livestock on said farm except a few chickens; that he was in the habit of driving out to the farm every few days and of stopping there when passing on professional business to feed and water the chickens.

Monroe Webb testified that he finished picking cotton on the place on Tuesday, December 9th, and weighed the cotton and put it in the house, and was at the barn that evening and there was no mash in the granary at that time.

W. J. Howard testified that he went to the place for a cultivator December 10th, and found some wire in the granary to fasten the cultivator to his wagon, and there was no mash in the granary at that time.

Sam Cole testified that he had a half interest in the cotton crop, and was at the barn and granary two or three days before the raid, and there was no mash, oil stove, or anything of that kind there.

While it is a rule approved by this court that, where there is any evidence to support a conviction, or where the evidence is conflicting, this court will not review the record for the purpose of ascertaining or determining the weight or sufficiency of the evidence, and, ordinarily the verdict approved by the trial court will be allowed to stand, the evidence relied on by the state was wholly circumstantial. In such cases the facts proven beyond a reasonable doubt must be such as to exclude every reasonable hypothesis inconsistent with the guilt of the defendant. Obviously, the evidence in this case does not meet this requirement. In our opinion, the evidence tending to show possession was insufficient to take to the jury the question of the defendant’s possession of the mash found in the granary.

It follows that the court erred in overruling the defendant’s motion for a directed verdict. Because the verdict is not sustained by the evidence, the judgment appealed from is reversed.

BESSEY, P. J., and EDWARDS, J., concur.


author: BESSEY, P. J.

text:
    LEROY MANWAURIN v. STATE.
    No. A-6108.
    Opinion Filed Oct. 16, 1926.
    (249 Pac. 966.)

      Kittie C. Sturdevant and Lydick & McPherren, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Leverett Edwards, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The evidence indicates that this homicide grew out of an attempt to rob Raymond Heb-ble, by the use of firearms. Raymond Hebble, a young man employed at Cleveland, Okla., on May 20, 1925, drove from his home in Cleveland to Shawnee, where he visited the prosecuting witness, Leona Sims, a teacher in the public schools. After dark they went driving about town in a Ford coupe, and after stopping at different places, at about 10 o’clock p. m., they drove out in the suburbs, on the street known as Independence avenue. There the car was stopped near the edge of the graded highway, and a moment later a man, said to be the defendant, Leroy Manwaurin, appeared from the rear, with a flashlight, which he focused upon the occupants of the car. Presently he exclaimed, “Hey!” and thrust a pistol in through the door of the coupe from the side occupied by Miiss Sims, which he pointed at one or both of the occupants. After some hesitation, Raymond Hebble reached across in front of Miss Sims and seized the gun, or attempted to seize it. Instantly this man fired the pistol, and ran away. The shot penetrated the vital organs of Hebble in the region of the heart, from which he presently expired where he sat in the seat of the coupe. Miss Sims then drove the car to a nearby house, where she apprised the people residing there, and others passing in automobiles, of the tragedy. Some one of these immediately summoned the peace officers, who promptly came and made such investigation as they could. At daybreak human tracks were found and traced from the scene of the tragedy to the home of the defendant. Later the defendant was arrested and placed in jail. The defendant’s house, then being occupied by the defendant alone, was searched by the officers. They found a revolving pistol in the bathroom of the defendant’s home, with one chamber empty. There a flash light was also found. It was demonstrated that a shoe worn by the defendant exactly fitted the tracks that led away from the place where the homicide took place, as shown by tests made in the presence of numerous persons, along the course shown by the tracks, from the place where the automobile stood, to near the back door of the defendant’s home.

The defendant did not take the stand in his own behalf, but introduced certain witnesses whose testimony tended to impeach the identification of the defendant, as shown by the testimony of the prosecuting witness, Miss Sims, and challenging the correctness of some other portions of the state’s evidence.

Without reciting details, we find that the evidence as a whole is amply sufficient to support a verdict of guilty. The plaintiff in error complains, first, that he was deprived of his constitutional and statutory right of being.served, two' days before the trial, with a list of the witnesses to be used against him by the state, and, second, that certain expert testimony of two physicians introduced and admitted by the court, over the objections of plaintiff in, error, was erroneous! and prejudicial.

Concerning the service of the list of witnesses, the record discloses the following:

“The Court: Is the state ready for trial?
“Mr. Pitman: The state is ready.
“The Court: Is the defendant ready?
“Mr. Adams: The defendant is not ready, and before announcing requests in advance that he be served with a list of the witnesses the state expects to call in chief, together with their post office addresses, two days before he is forced to trial, or forced to announce in this case, and now offers to prove that neither the defendant nor his counsel have been served with any such notice.
“The Court: What does the state say?
“Mr. Pitman: All the names of the witnesses, with their post office addresses, are on the information, and a copy of the information has been delivered to the defendant or his counsel. There are one or two other names that have been indorsed on the information as witnesses since the information was filed, and these names have been indorsed after notice was served on counsel for defendant, and all of the names and all of the witnesses, with their post office addresses, have in this manner been served.”

Upon this point the prosecuting attorney was examined under oath, and made the following statement:

“A. We served on the defendant a copy of the information containing the names of all of the witnesses, with their post office addresses, given to the defendant in open court. Since that time the names of two additional witnesses, probably the names of the witnesses, England and Racki, have been indorsed upon the information by leave of the court, after notices served and acknowledged by counsel for defendant. The names of those witnesses have been indorsed on the information, and were probably not on the copy that was delivered to the defendant. That is the only list that has been served. * * * ”

The plaintiff in error offered no evidence in support of his objection, so that the statement above made evidently discloses the extent of the foundation for this objection, except that the record elsewhere discloses that the copy of the information, with the indorse-ments thereon, had been served some weeks previous to the trial. It also appears that the witnesses England and Racki were not called to testify.

In determining the scope and extent of this and other constitutional rights, it is proper to consider the purpose for which they were established. It was the manifest intent of the people to safeguard an accused against surprise, and give him an opportunity to know the personnel of the witnesses that might be used against him, and their whereabouts, to enable him to inquire into their credibility, and to enable him to prepare his defense. It appears from the record that the accused in this case was apprised of these things by the indorsement of the names and post office addresses of the state’s witnesses upon the indictment, a true copy of which had been previously delivered to him. The accused had also been informed that one or two other witnesses might be used. We think that this constitutes a substantial compliance with the constitutional provision that he should be served with the names and post office addresses of the witnesses for the state more than two days before the case is called for trial. It would have been better if.the prosecuting attorney had served the accused with a separate list of the witnesses, but a substantial compliance having the same force and effect is sufficient. Franklin v. State, 9 Okla. Cr. 178, 131 P. 183; Tallon v. State, 22 Okla. Cr. 89, 210 P. 309; Manning v. State, 7 Okla. Cr. 367, 123 P. 1029; 14 R. C. L. 168.

In the Tallón Case the names of the witnesses were not indorsed on the indictment, but the accused was apprised of their identity by separate list served upon him. We see no reason why the converse of the rule should not apply.

In the Manning Casé it was said:

“The law does not prescribe the manner in which the names of witnesses in a capital case shall be furnished the defendant. If it. be made to appear to the satisfaction of the trial court that such names were furnished the appellant at least two days before the case was called for trial, the manner in which the names were so furnished becomes immaterial.”

The appellant next contends that the court committed reversible error in allowing the state to call two physicians, who, over the objection of the accused, were permitted to give their expert opinion as to the probable position of the body of the man slain, ait the time he was shot. The opinion given by these physicians was mathematical or physical in its nature, as distinguished from expert surgical opinions. Any person having an extended experience in the use of pistols or small firearms might be as competent, or more competent, to testify to the position of a body or the course of a bullet, and the jurors were probably as well qualified to determine that fact, from the evidence of the non-expert witness who had previously testified. However, the course of the bullet was not a vital issue in this case, where there was no element of self-defense or justifiable homicide. There was but one shot fired with fatal result, and the course of the bullet, or the position of the body at the time the shot was fired, is immaterial, and the reception of this so-called “expert testimony” was harmless. Manning v. State, supra; Byers v. Territory, 1 Okla. Cr. 699, 100 P. 261, 103 P. 532.

The surviving eyewitness to this tragedy did not definitely fix the position of the body of her companion, nor the position of the pistol from which the fatal shot was fired, and the testimony of the physicians went no further than to demonstrate to the jury that it was possible for a bullet to pass through a man’s body and pass out through the top of the coupe, as shown by the physical facts in evidence. The court may take judicial notice of the fact that the course of bullets fired from small firearms, in passing through substances, takes devious and unusual courses, and where, as in this case, the course of a bullet affects no issue or theory of the case raised by the defendant, expert testimony upon that point will be deemed harmless. Byers v. Territory, supra; Coyle v. State, 31 Tex. Cr. R. 604, 21 S. W. 765.

A physical examination of the body showed that the bullet passed through his vital organs. The physician testified that such a wound would necessarily result in almost instant death. The perforations and powder marks on his clothes further tended to emphasize that fact, so that expert testimony upon that point had little tendency to add to or detract from the character and course of the wound,, as shown by the physical facts in evidence.

The evidence was, in part, circumstantial. Miss Leona Sims, the survivor, was the only eyewitness who, in positive terms, identified the accused. Her identification was corroborated by proof of human tracks leading from the place of the tragedy to the home of the accused, by showing made that one of his shoes made a track similar in all its details. The finding of a pistol and the flash light at the home of the accused, in some measure, corroborated her story. Without these corroborating circumstances, the jury might have not assessed the extreme penalty of death, as was done in this case. We are therefore constrained to hold that the circumstantial evidence concerning the tracks, and the finding of the pistol and the flash light, were not of such high probative force as to justify the death penalty.

The judgment of the trial court is therefore modified from death by electrocution to life imprisonment, and the judgment as so modified is affirmed.

EDWARDS and DOYLE, JJ., concur.


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    STATE v. JIM CORDRAY.
    No. A-5454.
    Opinion Filed Oct. 16, 1926.
    (249 Pac. 965.)
    The Attorney General and W. W. Miller, Co. Atty., for the State.
   PER CURIAM.

In this case the information, in substance, charges that in Cherokee county, May 7th, the defendant, Jim Cordray, did ravish and have sexual intercourse, accomplished by force and violence, overcoming the resistance of one Minnie Sells, a female not the wife of the said defendant. To this information the defendant entered a plea of not guilty, and, upon the trial, the record shows that after the evidence had been introduced, the defendant asked leave to withdraw his plea of not guilty and enter a plea of guilty of rape in the second degree, at which time the court granted the motion. Said plea of guilty having been entered, the court discharged the jury from further consideration of the case, over and against the objection of the county attorney. Thereupon the court sentenced the defendant to serve a term of three years in the reformatory at Granite, Okla. From the ruling and judgment, the state appeals.

The errors assigned question the power of the court to permit the defendant to withdraw his plea of not guilty, and permit the defendant to plead guilty to rape in the second degree. No brief has been filed in support of the errors assigned, or the legal question reserved by the state’s objection to the proceeding had. However, we think the question here presented has been decided by this court in the case of State v. McDonald, 10 Okla. Cr. 413, 137 P. 362, adversely to counsel for the state’s contention. In the opinion by Judge Furman, it is said:

“The effect of this statute (sec. 2916, C. S. 1921) is to abolish the common-law right of the prosecuting attorney to nolle prosequi an indictment or information, except with the consent of the court. It goes further, and, under certain conditions, vests the trial judge with the power, whenever in his. judgment the interest of justice may require it, to order the dismissal of an indictment or information, with or without the consent of the county attorney. This is the law of Oklahoma, and by it we are bound. Independently of this statute, we are of the opinion that the trial court could rightfully exercise this power.”

The judgment of the lower court is accordingly affirmed.


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    LUKE TERRY v. STATE.
    No. A-5263.
    Opinion Filed Oct. 23, 1926.
    (249 Pac. 1113.)
    Sam A. Neely, W. D. Wooley, and W. C. Peters, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   BESSEY, P. J.

The plaintiff in error, Luke Terry, was convicted of manslaughter in the first degree, with his punishment fixed by a jury at confinement in the state penitentiary for a term of ten years.

No briefs have been filed in support of this appeal, and from this the court may assume that the appeal is without merit, or that the same has been abandoned. This being a homicide case, the court has examined the record with care, and finds that the information sufficiently charged the crime of murder, and that the evidence amply supports a conviction for manslaughter and included offense. The instructions of the court fairly stated the law of the case, and that the plaintiff in error in all respects was accorded a fair trial.

The evidence shows that Hal Evans, the man slain, was one among many others who had left the employment of the railway company on a strike; that the plaintiff in error, Luke Terry, was posse comitatus under the United States marshal for the Eastern district of Oklahoma; that the deceased, Evans, and others engaged in the strike had been enjoined by the United States court of the Eastern district from in any manner interfering with the operation of the railroad or its employees, and that there may have been a hostile feeling between the former employees then on strike and the officers, whose duty it was to see that the provisions of the injunction should not be violated. Other than this, the evidence shows that there had been no personal controversy or animosity existing between the plaintiff in error and the deceased.

The tragedy took place at a railway station in the presence of many witnesses, several of whom testified that the plaintiff in error assaulted the deceased without just cause or provocation, and, in the course of the altercation, fired the fatal shot. The evidence wmuld have sustained a verdict for murder. The verdict for manslaughter will therefore not be disturbed.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


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    GEORGE HOWELL v. STATE.
    No. A-5237.
    Opinion Filed Oct. 23, 1926.
    (249 Pac. 1112.)
    John P. Hickam and C. C. Suman, for plaintiff in error.
    George F. Short, Atty. Gen., and Leon S. Hirsh, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

This charge, which is predicated upon section 1999, Compiled Statutes of 1921, mak-r ing it unlawful for. any person, or persons, to point any pistol or any other deadly weapon, whether loaded or not, at any person, or persons, either in anger or otherwise:

This prosecution grew out of ill feeling between the prosecuting witness and his family and the plaintiff in error and his family. The two families resided about a quarter of a mile apart, one in Lincoln county and the other in Payne county. The residence of each was near the county line, but not exactly opposite to one another. It seems that the accused was a deputy sheriff, and that this ill feeling grew out of his activities in attempting to discover an illicit still.

From the reading of this record, it is hard to ascertain who or which one was most at fault. It seems that, preceding the alleged offense, the women, and perhaps other members, of the respective families, had a long-distance wordy controversy, in which some epithets and insulting remarks were passed, by shouting from the vicinity of one home to the ■ other. This was continued by some of the male members of the respective families. At about this: time, ■ the prosecuting witness and two brothers, were engaged in hauling fodder near their home, and claimed that the accused and two neighbor boys, and possibly another, approached a bridge at, or near, the county line, all armed with hunting arms of some character or other, and that the plaintiff in error pointed a .22 rifle at the prosecuting witness, who was then in the vicinity of his home, variously estimated at from 200 yards to a quarter of a mile away. The testimony of the witness for the state was in many particulars indefinite and conflicting.

The accused and his companions admit that they were in possession ■ of rifles of a small caliber, which they had for the purpose of hunting rabbits, but denied that they, or any of them, at any time, pointed a gun at the prosecuting witness, or any member of his family. This claim was corroborated by several seemingly disinterested witnesses. The testimony on the part of the state would indicate that, if the gun was pointed at the prosecuting witness, the character of the:,gun and the position of the parties was probably such that there was little danger imminent or apparent, such as was contemplated by the statute.

We hold, therefore, that the character of the evidence adduced by the state and its probative value is insufficient to support the charge.

The judgment of conviction is reversed, with instructions to dismiss the action.

DOYLE and EDWARDS, JJ., concur.


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    CLYDE STULTZ v. STATE.
    No. A-5667.
    Opinion Filed Oct. 23, 1926.
    (249 Pac. 1117.)
    Bond & Bond, for plaintiff in error.
    George F. Short, Atty. .Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Clyde Stultz, plaintiff in error, in the county court of Stephens county, was convicted of the offense of the unlawful transportation of intoxicating liquors, with his punishment fixed by a jury at a fine of $50 and 30 days in jail. The attorneys for plaintiff in error have filed a motion to dismiss the appeal and abate the action, upon a showing made that the plaintiff in error is deceased. Upon consideration of the motion and proofs produced in support thereof, the motion is allowed, the appeal dismissed, and the cause abated, and it is ordered that the obligators on the appeal bond be released and exonerated.


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    HUGHIE REYNOLDS v. STATE.
    No. A-6022.
    Opinion Filed Oct. 30, 1926.
    (249 Pac. 1117.)
    L. M. G'ensman, for plaintiff in error.
   PER CURIAM.

Hughie Reynolds was convicted of an assault and battery, and he appeals. The plaintiff in error has filed his motion to dismiss the appeal, and upon consideration thereof the motion is allowed, and the appeal dismissed, and a mandate order issued, with instructions to execute the judgment rendered in the trial court, in accordance with its terms.


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    STILES RELF v. STATE.
    No. A-5776.
    Opinion Filed Oct. 23, 1926.
    (250 Pac. 141.)
    W. R. Withington, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of having illegal possession of intoxicating liquor, and his punishment fixed at a fine of $100 and imprisonment in the county jail for a period of 30 days.

The only assignment of error in the brief of defendant is that the trial court permitted the introduction of evidence obtained by an illegal search. This objection was presented by a motion to' suppress evidence before the trial and the objection made in the course of the trial. It is not contested by the state by any brief.

The evidence is that certain officers searched the residence of the defendant, occupied with his family, and found two quarts of whisky. They were acting upon a search warrant based upon an affidavit made on. information and belief, and which fails to conform to the requirements of section 7013, Comp. Stat. 1921, which provides no warrant shall be issued to search a private residence occupied as such unless it or some part of it is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort. An affidavit wholly failing to conform to the requirements of the law affords no sufficient basis for the issuing of a search warrant. The motion to suppress evidence should have been sustained.

The ease is reversed and remanded.


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    LEONARD BLASSINGAME v. STATE.
    No. A-5751.
    Opinion Filed Oct. 26, 1926.
    (250 Pac. 144.)
    Rummons & Hughes, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The plaintiff in error was convicted, and, in accordance with the verdict of the jury, he was sentenced to pay a fine of $250 and be confined in the county jail for 30 days, on a charge of the unlawful possession of intoxicating liquor.

Of the various errors assigned, it is only necessary to consider the one that the verdict is not sustained by sufficient evidence.

The conviction is based on the testimony of two deputy sheriffs, who, in executing a search warrant, found some jars of whisky in a ditch near the road upon the place which the defendant had occupied as a tenant.

Sam Standerfer testified:

“Mr. Blassingame was not at home. Mrs. Blassin-game and three or four small children were there, and we searched around considerably. We went to the barn and a rock fence there. Mr. Lewis went north and I went east, and we noticed a little girl running up the road from just south of the house, in a fast run, bareheaded. I saw a wagon coming around the corner of the place and thought it was Mr. Blassingame and she was meeting him. I searched around there for a while and looked to see whether she stopped the wagon or not, but when this wagon got to the house it kept on going on to the west. I just turned and went out toward the east and there was quite a ditch grown up in high grass; when I got there, this little girl had gone back to the southeast corner of the land, going back towards the house; I walked on and found four half-gallons of whisky in a gunny sack in this ditch, three half-gallons broken all to pieces and poured out on the ground, and a little toy pistol broken in four or five pieces laying on the top of the sack.”

R. W. Lewis testified:

“A. Well we just went down there that evening and searched around the place; did not find anything right around the place, went north to the barn; searched around the north fence, and found some glass jars which made us a little more anxious; and Sam went east and I went north about that time; just before we separated this little girl went through the orchard, and Sam said, T will go east around the mountain and see what they were doing over there,’ and I went on north and searched around a straw stack, and he told me to come back that he had found some stuff.”

As a witness in his own behalf, the defendant testified:

“I had been there four years; my family consists of three boys and two girls; the oldest girl is three years old, the oldest boy is eight years old; I only had my household goods and my horses there at that time. The owner had asked me to let him move his stuff there, and he had about half a ton of cotton seed, and he and his son had been on the place; there is a drainage ditch cut to carry the water off the mountain around the foot of the mountain; the ditch runs about parallel with the fence; they say they found the whisky about 30 steps from the section line in the drainage ditch that is about 250 yards from the house; on that day I was hauling oats over to the place I live and had taken the second load when I heard the officers had been there; I went to Mt. Park and the officers arrested me, I did not put that liquor there, I did not know it was there, and I had no interest in that liquor.”

In its facts, this case is similar to that, of Youngblood v. State, 32 Okla. Cr. 106, 240 P. 140. The only circumstance in this case pointing to the guilt of the defendant was the fact that the liquor was found on the farm occupied by him. The court failed to instruct the jury on the law of circumstantial evidence and refused to instruct the jury that:

“The mere finding of whisky upon the farm occupied by the defendant will not warrant the conviction, unless you find beyond a reasonable doubt that the defendant had knowledge that such whisky was upon the farm, and, unless you should so find, your verdict should be not guilty.”

In our opinion, it would be destroying the presumption which arises in favor of the innocence of the accused and permitting the subversion of the rule which requires establishment of a guilt beyond a reasonable doubt to allow this conviction to stand.

The judgment is accordingly reversed.

BESSEY, P. J., and EDWARDS, J., concur.


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    FRANK KLABER et al. v. STATE.
    No. A-5662.
    Opinion Filed Oct. 30, 1926.
    (250 Pac. 142.)
    Carter & Carter, for plaintiffs in error.

      Geo. F. Short, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The plaintiffs in error, here designated the defendants, were convicted of the illegal possession of whisky, with punishment of each fixed by jury at confinement in jail for six months; and payment of a fine of $500.

This conviction rests upon evidence obtained by means of a search and seizure, based upon an affidavit reciting that the affiant “has probable cause to believe, and does believe, that intoxicating liquors are kept for the purpose of sale * * * by Frank Klaber, in the Orpheum Theater Building Cook Confectionery.”

The Cook Confectionery was operated in a front corner room of the Orpheum Theater building by the defendants jointly. The operation of the confectionery business, including the basement room underneath the confectionery portion of the building or adjacent thereto, was used as a place to store syrups and soda fountain products. The theater proper had been closed for some weeks. The officers found the defendant Klaber in the confectionery dispensing drinks, and apprising him that they were there with a search warrant to search the place. The defendant offered no resistance and told the officers to go ahead. No intoxicating liquor was found in the confectionery or basement. The officers then went through an open side door of the theater, located near the rear part of the confectionery, leading off from a narrow passageway between the theater and an adjoining building. At the rear or stage end of the theater the officers found several bottles of red whisky and also found more whisky under the rear steps. The officers say they had previously seen the defendants passing in and out of the side door of the theater, and recited some other facts that might indicate that the defendants were licensees in the theater part of the building. The defendants denied ownership in the liquor or any knowledge of its existence there.

The record indicates that this prosecution may not have been entirely free from passion or prejudice. A prosecution for the same offense was commenced by the former county attorney, and later by him dismissed. The new information in this case was filed by a succeeding county attorney. At one time the feeling growing out of this case was such that certain officers of the court, came to blows.

Where peace officers enter upon the premises of another and apprise the owner that they have a search warrant and are there to search the premises, the fact that the owner interposes no resistance, or tells the officers to go ahead, or uses some expression of like import, does not constitute a waiver of the owner’s right to immunity from the consequences of an illegal search or seizure. The warrant, in this instance, constituted no authority to search because it was based purely upon information and belief. The defendant, however, had no grounds to object to the liquor found for the reason that it was found and taken from the premises of another. The right to immunity from the consequences of an illegal search and seizure belongs to the person, effects, and premises of the accused, and he has no right to complain of the officers’ trespass upon the premises of a stranger. Williams v. State, 35 Okla. Cr. 171, 249 P. 433.

This conviction rests wholly upon circumstantial evidence tending to show that, because the defendants had access to this unused theater, and they passed in and out through the side door at will, the liquor found probably belonged to them. The court gave no instruction on the law of circumstantial evidence, and no instruction on this phase of the evidence was requested.

The court, over the exceptions of the defendant, gave the following instruction:

“You are instructed that, under the law of this state, the possession of more than one quart of whisky is prima facie evidence that the possessor thereof intends to barter, sell, give away, or otherwise furnish the same in violation of law. That is, when the possession of more than one quart of whisky has been proved to your satisfaction beyond a reasonable doubt, it is then incumbent upon the part of the possessor to introduce evidence sufficient to create a reasonable doubt in the mind of the jury of the intention of the possessor to barter, sell, give away, or otherwise furnish the same in violation of law.”

This instruction was erroneous, amounting to the shifting of the burden of proof to the defendants. Assuming that possession of the whisky by the defendants was proved, there were two presumptions for the consideration of the jury, the presumption of innocence, and a contrary statutory presumption or inference arising from the possession of an excessive quantity. In the case of Sellers v. State, 11 Okla. Cr. 588, 149 P. 1071, it was held that an instruction like this was reversible error. The evidence in its entirety, including all of the presumptions, should, as a whole, be submitted to the jury. The Sellers Case, supra, contains an exhaustive review of authorities from various sources on this question, and the principle there axi-nounced has since been followed by this court in a long unbroken line of decisions, the more recent of which are here noted: Committi v. State, 28 Okla. Cr. 380, 231 P. 316; Williams v. State, 25 Okla. Cr. 284, 220 P. 667; Phipps v. State, 29 Okla. Cr. 51, 232 P. 125.

The judgment of the trial court as to both defendants is reversed and the cause remanded.

DOYLE and EDWARDS, JJ., concur.


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    GRADY JOHNSON v. STATE.
    No. A-5555.
    Opinion Filed Nov. 6, 1926.
    (250 Pac. 141.)
    J. H. Foster and Womack, Brown & Cund, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   BESSEY, P. J.

The plaintiff in error, here designated the defendant, was convicted of the illegal possession of about five quarts of whisky found at his home by certain peace officers, who went there under authority of a search warrant. The defendant at this time was an oil well driller, in charge of the drilling operations of an oil well some distance from Duncan. It was shown that he commenced work at 12 o’clock midnight each day, and continued until 12 o’clock noon following; that, at and prior to the time of the alleged offense, his wife was away from home visiting relatives, and that the defendant ate his meals 'at a cafe, but slept at the residence; that during the absence of his wife he was making certain repairs about the premises; that, at the time of the seizure, there was a man there painting the house; that workmen were about there, unloading lumber and materials to make cement, preparatory to building a garage; that a neighbor woman came each day into the kitchen to get chicken feed to feed the chickens, and to water the plants and shrubbery; that, preparatory to the return of the wife of defendant, two women came there to clean up the house, and were operating a vacuum sweeper at the time of the search by the officers who found the whisky in the kitchen. There was an unmarried man who lodged there at and prior to this time.

The proof is conclusive that the officers found about a gallon of whisky in the kitchen and about a quart of whisky elsewhere on the premises. After the defendant returned to his home, the officers apprised him that they had searched his residence and seized the whisky. He informed these officers that he would presently appear at the courthouse. It is claimed by the state that, when he did appear at the courthouse, the county judge informed him of the accusation and asked him whether or not he was guilty, to which he replied: “The stuff was over there. I guess I just as well plead guilty.” The defendant claims that he said: “It was there. I guess I am the fall guy. I just as well make bond for it.” Bill Mbllvain, a deputy sheriff, said: “You misunderstood him, Judge; he wants to make bond.” The officers permitted the defendant to leave the courthouse unattended, to make bond, which he afterwards executed to the approval of the court.

After a careful examination of the record, this court is satisfied that the affidavit and search warrant were sufficient, that the instructions of the court, touching upon the presumption of intent to violate the law, and upon circumstantial evidence, fairly submitted the case to the jury, and that the defendant was otherwise accorded a fair trial.

The main issue involved in this appeal is whether the evidence is sufficient to support the verdict. Under the instructions of the court, the jury were admonished that they must find, beyond every reasonable doubt, that the defendant had this whisky with intent to violate the prohibitory law, and that the same had not been placed there by another person without his consent. It is a close case upon the facts; but, considering all the evidences before cited, together with other details not mentioned, we conclude that the evidence adduced by the state was sufficient to go' to the jury, and that the evidence, construed in connection with the statutory presumption of an intent to violate the law, was sufficient to support the verdict.

The statute making possession of more than one quart of whisky presumptive evidence of an intent to violate the prohibitory laws may, in certain instances, work a hardship on innocent persons; but that is a matter for the consideration of the Legislature, and should not be disturbed by judicial construction.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


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    JOHN QUITMAN v. STATE.
    No. A-5669.
    Opinion Filed Nov. 6, 1926.
    (250 Pac. 441.)
    Barefoot & Carmichael, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charged that in Lincoln county, on the 6th day of January, 1925, Hugh McCartier and John Quitman did feloniously take, steal, and carry away, and against the will of one R. P. Adkins, the owner, one Ford roadster of the value of $200. Hugh McCartier pleaded guilty and was sentenced to serve a term of 5 years. Upon his trial John Quitman was found guilty and his punishment was fixed at imprisonment in the penitentiary for the term of 10 years. He has appealed from the judgment rendered on the verdict.

It appears that appellant was represented by counsel appointed by the court to defend him and being unable to give bond was committed and is now in the penitentiary. The grounds of the motion for new trial and assigned as error are that said verdict appears to have been given under the influence of passion and prejudice; that said verdict is not sustained by sufficient evidence; and alleged improper remarks of the county attorney in arguing the case to the jury.

The alleged improper remarks are not incorporated in the case-made by recital, or by bill of exceptions, but only appear to be presented by a recital in the motion for a new trial, and for this reason cannot be reviewed.

By numerous decisions of this court the rule is well settled that misconduct of the county attorney in his argument to the jury can only be shown by being properly incorporated in the case-made, or by bill of exceptions duly allowed, and, when not so preserved in the record, cannot be shown by mere recitals in a motion for new trial. Tucker v. State, 9 Okla. Cr. 587, 132 P. 825.

The owner of the car testified that it was stolen from in front of his house in Chandler on the night of the day alleged; that he notified the sheriff’s office; that he next saw it about a week afterwards at Mc-Loud, where he went on notice from the sheriff’s office.

Will Roberts testified that he lives at Newalla, six miles west of McCloud; that just before daylight he heard a car turn over and lit a lantern and went to the car and found two negro boys there, and they asked him to help to turn it over, and they tried several times, but could not turn it back; then they left and went down towards the depot, saying they would come back after the car. On cross-examination he testified as follows:

“Q. You are not positive that he is the boy? A. Well, I would not swear positively he w!as because it was not light when I went out there, only by the car, and the way he was cut, all, and the other boy he was with.”

The two defendants were arrested, together at Shawnee that day. McCartier, who had pleaded guilty and had been sentenced, testified that he and another man, not the defendant Quitman, stole the car, and the other man was driving it when it turned over. Appellant, as a witness in his own behalf, denied any connection with the taking of the car, and further testified in support of his alibi defense.

We have read the record with care and find it free from substantial error. As to the sufficiency of the evidence, we think there can be little doubt.

Finally, it is contended for appellant that the punishment imposed is excessive and too severe, and the Attorney General declines to oppose a modification of the sentence.

We are inclined to think that the ends of justice would be fully met by a modification of the judgment and sentence, and the same is hereby modified to a term of 5 years’ imprisonment in the penitentiary, and as thus modified the judgment is affirmed.

The clerk of this court is directed to furnish a copy of the opinion to the warden of the penitentiary, who shall acknowledge receipt of the same.

BESSEY, P. J., and EDWARDS, J., concur.


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    JIMMIE MARTIN v. STATE.
    No. A-5884.
    Opinion Filed Nov. 13, 1926.
    (250 Pac. 552.)
    S. B. Garrett, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Leverett Edwards, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Jackson county on a charge of stealing an automobile, and he was sentenced to serve a term of five years in the state penitentiary.

The record discloses that in the latter part of March, 1925, the defendant left his home, in Garvin county, and with one Zack Short went to Vernon, Tex., where he stayed for a few days and then went with Short to Altus, Jackson county. He was without money and unable to procure employment and at Vernon, and also at Altus, stayed with Short, who furnished him. On April 6, a Ford car belonging to J. A. Tucker was stolen from the street at Altus, and the next, or the second, day it was discovered near the home of an uncle of defendant in Garvin county. The batteries had been removed from the car, and they were found at the home of the uncle. Defendant was arrested and returned to Jackson county. On the road and after his return there, he made statements amounting practically to admissions of the larceny of the car. At the trial, defendant testified in his own behalf and stated that he had ridden from Altus to Pauls Valley in a Ford car on the day of the larceny, but that he rode with a stranger on his invitation and did not know the car in which he traveled was stolen. He admitted that, in returning with the officers to Jackson county, he told them where they had stopped as they left Altus and pulled off the tags pjlaced on the car by the insurance company, but said he made the statement because one of the officers told him, if he would tell, that he would turn him loose. In explanation of his statement that he drove the car out near his uncle’s where it was found, he testified he did so on the request of one of the officers that, if he would make such an admission, he would turn him loose. The circumstances surrounding the larceny of the car, its being found as it was, and the statements of defendant are sufficient proof of the larceny by defendant. His explanations are highly unreasonable.

Upon calling the case for trial, defendant applied for a continuance based on the absence of witnesses, setting out that subpoenas had been issued for Brit Jayne, who resided in Jackson county, who would testify that he knew the defendant and saw him at Altus on the day the car was stolen and heard defendant say that he was going to ride from Altus to Pauls Valley with some man, and that, while talking with him, a man came along in a Ford car and defendant got into the car with him and then drove away; that on May 15 subpoena was issued for Jayne for his attendance on May 27, and placed in the hands of the sheriff, which subpoena was not served for the reason that Jayne was temporarily absent from the county. Defendant further said that one Cecil Plumlee was standing near and heard part of the conversation. The state contested the application by an affidavit from the deputy sheriff stating that he had received, subpoena for Hugh Underwood, Cecil Plumlee, and Brit Jayne, as witnesses for defendant, and upon inquiry he learned Hugh Underwood had left Altus some three years before and had not been heard from since; that he was not able to find any person who knew Plumlee or knew where he was, and, to the best of his belief, that he was not a resident of Jackson county; that he served Jayne by leaving a subpoena at his place of residence with his brother who stated that Jayne was aw'ay from home, but would return by the Monday preceding the trial. No attachment for the witness was asked. The application further sets out the absence of some witnesses in Garvin county, but it is shown that when the subpoenas were issued on praecipe filed May 19, they were sent to the district judge to be indorsed with an order requiring attendance; that the district judge was then holding a term of court in Seminole county and the subpoenas were indorsed and forwarded for service to Garvin county, but did not reach there until the day of trial. Defendant at the time was at liberty on bail. One of the persons referred to who resided in Garvin county was seen the day preceding the trial in the city of Altus, where the trial was held. There was sufficient diligence to obtain the attendance of Jayne, and his absence at the trial is not explained. We do not understand why an attachment for this witness was not asked for. We think there was not sufficient diligence in procuring the witnesses in Garvin county. Nor do we think that, if present, their evidence would have changed the result of the trial. The granting or refusing a continuance in a criminal case is largely a matter within the discretion of the trial court, and, unless an abuse of such discretion is shown, this court ordinarily will not reverse a judgment for the overruling of an application for continuance. It is the duty of a defendant, in making preparation for his trial, to procure subpoenas in time, and, where an order for the attendance of a witness outside of the county of his residence is required, to see that the order for attendance is made and indorsed on the subpoena in time for it to reach the county of the witness’ residence sufficiently long before the trial to enable the witness to be served in time to1 attend; if his attendance cannot be had, that his deposition may be taken. There was no error in the overruling of the motion for a continuance.

It is next insisted that the information is fatally defective. The information charges, in substance, that defendant “did take, steal, and carry away one Ford touring car, engine number 10582576, license number 106F316, the personal property, etc.” The argument is that the description of the property stolen is not sufficient; that section 2120, 'Comp. Stat. 1921, under which the prosecution is had, designates the offense as the stealing of an “automobile, or automotive vehicle”; and that the information does not sufficiently describe the property to bring the offense sought to be charged within the terms of the statute. That is, that to charge the stealing of a Ford touring car is not a charge of stealing an automobile or automotive vehicle. It is not necessary that the exact language of the statute be used in charging an offense, but words of similar import may be used. Certainly, in the vernacular, the description of property as a Ford touring car, describing it by engine number and license number, is sufficiently definite that a person of common understanding would know what is intended. Section 2563, Comp. Stat. 1921 (sixth subdivision); Kolar v. State, 29 Okla. Cr. 76, 232 P. 449; Bard v. State, 23 Okla. Cr. 309, 214 P. 939.

No demurrer was lodged against the information and it was first challenged by objection to the introduction of testimony; in such case, every intendment and presumption is indulged in in favor of the information. It sufficiently charges the offense, and there was no error in overruling the objection to the introduction of evidence.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


author: DOiYLE, J.

text:
    Ex parte JOHN MENNER.
    No. A-6434.
    Opinion Filed Nov. 13, 1926.
    (250 Pac. 541.)

      Warren & Warren, for petitioner.
    George F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOiYLE, J.

This is an application by John Men-ner to this court for a writ of habeas corpus directed to the sheriff of Choctaw county, in which it is averred that respondent, illegally and without authority so to do, imprisoned petitioner in the county jail of Choctaw county and continues to so confine him.

As showing the illegality of such confinement, it is averred:

“That on the 26th day of February, 1926, he was held to await prosecution at the next term of the district court of Choctaw county for the crime of assault with intent to kill; that the next term of the district court convened Monday, March 1st, and adjourned on the — day of March, and the jury was discharged at that time; that no information was filed against him before the beginning of the March term, nor was any filed against him during that term, and no proceedings were commenced against him until the 21st day of September, 1926, when the county attorney filed an information against him: that on March 4, 1926, the opening day of the October term of said court, he was called upon for arraignment and to plead; that before the trial of said cause, he filed his motion to dismiss said cause, because of the delay in the prosecution * * * (a copy of which motion is hereto attached and made a part hereof) ; that the facts stated in the motion to dismiss were by the court and county attorney admitted to1 be true.”

Thereupon the court overruled his motion to dismiss, and, upon trial, he was convicted of the crime of assault with intent to kill.

The verified motion sets forth the facts as above stated, and it concludes as follows:

“That thereby the defendant has been deprived of a speedy trial; that the defendant has had no opportunity to demand a trial at the March, 1926, term, for the reason that no information was filed during that term of court or before that term of court, and no opportunity given this defendant to demand a trial.”

It appears that, upon the return of a verdict of guilty, he surrendered to the sheriff and is held in custody pending judgment on the verdict.

The Attorney General filed a demurrer to said petition on the ground that the same does not state facts sufficient to authorize respondent to release said petitioner, or to entitle said petitioner to a discharge from the imprisonment of which he complains.

The petition does not state the time the committing magistrate filed his transcript of the preliminary with the court clerk, nor does it state just when petitioner was convicted in said district court, nor does it state the date which has been set for judgment and sentence upon the verdict returned in said cause; it is contended that petitioner’s restraint is illegal for the reason that he had a preliminary examination on the 26th day of February, 1926, and was held to answer at that time, and petitioner contends that because he was not tried at the March term, 1926, of the district court of Choctaw county, he is entitled to his discharge, under section 2912, C. S. 1921, which provides :

“When a person has been held to answer for a public offense, if an indictment or information is not filed against him at the next term of court at which he is held to answer, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.”

This court will take judicial notice that the time of convening of the regular terms of court in Choctaw county shall be on the first Mondays of March and October each year. Comp. St. 1921, § 3072, District No. 27.

This court will also take judicial notice that the 26th day of February, 1926, fell upon Friday, so that there was only one court day intervening between the date upon which petitioner was held to answer and the first day of the March term of said district court.

Section 2497 provides, in substance, that if it appears from the examination that any public offense has been committed, and that there is sufficient cause to believe defendant guilty thereof, the magistrate shall order the defendant held to answer the same.

Section 2509 provides that Whenever the defendant is held to answer, the magistrate “must return immediately to the clerk of the district court of the county the warrant, if any, the complaint, the depositions, if any have been taken, of all the witnesses examined before him, the statement of the defendant, if he has made one, and all undertakings of bail or for the appearance of witnesses taken by him, together with a certified record of the proceedings as they appear on his docket.”

The statute does not attempt to1 define the word “immediately”. Ordinarily, as used in this connection, the word would mean “within a reasonable time, with due diligence, under the circumstances of the particular case, and without unnecessary delay.”

It is not shown in the petition or the motion to dismiss that there was any unnecessary or unreasonable delay on the part of the magistrate in the filing of the transcript of the proceedings. It affirmatively appears therein that the county attorney filed an information in the district court on the 21st day of September, 1926, which was before the beginning of the October term and was during the March term, 1926, the same being the next term of court following. It also appears that the jury for said March term had been discharged before the information was filed.

Our Code of Criminal Procedure (section 2913, Comp. St. 1921) further provides:

“If a defendant, prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment or information is triable after it is filed, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.”

The Constitution guarantees a speedy and public trial to the accused in all criminal prosecutions. Section 20, Bill of Rights, Const. The statutes above quoted constitute a legislative construction or definition of the constitutional provision. State ex rel. Eubanks v. Cole, 4 Okla. Cr. 25, 109 P. 736, and Culver v. State, 11 Okla. Cr. 4, 141 P. 26.

It may be well for us to say here that, under section 2915, Comp. St. 1921, the only effect of a dismissal, as provided for in the sections quoted, is that the defendant must, if in custody, be discharged therefrom, or, if admitted to bail, his bail is exonerated. It is expressly provided by section 2918 that an order for the dismissal of the action in such cases is not a bar to any other prosecution for the same offense.

Upon the record before us, it affirmatively appears that sections 2912 and 2913 were complied with and that petitioner is not entitled to be discharged, nor to have the prosecution dismissed.

The demurrer to the petition is therefore sustained, and the writ denied.

BESSEY, P. J., and EDWARDS, J., concur.


author: DQYLE, J.

text:
    BUCK MOORE v. STATE.
    No. A-5882.
    Opinion Filed Nov. 13, 1926.
    (250 Pac. 538.)

      Phillips & Phillips, for plaintiff in error.
    The Attorney General, for the State.
   DQYLE, J.

The information in this case charges that on February 26, 1925, Jeff Kennedy and Buck Moore did unlawfully “make and manufacture certain spirituous liquors, to wit, one gallon of moonshine whisky from certain ingredients, containing alcohol as a by-product, by means and use of a distill and distilling apparatus, contrary to,” etc.

Upon arraignment the defendant Kennedy pleaded guilty. On his trial the defendant Moore was found guilty and his punishment fixed at a fine of $50 and confinement in the county jail for 30 days. From the judgment entered on the verdict, he appeals.

The errors assigned and argued in the brief are that the verdict is not sustained by sufficient evidence and that the court erred in refusing to instruct on the law applicable to the theory of the defense.

It appears from the evidence that the sheriff with one of his deputies, together with Jake Sims, United States enforcement officer, and R. L. Pierce, United States Deputy Marshal, visited the home of Jeff Kennedy, about 14 miles southeast of Durant, to arrest Kennedy on a warrant and to endeavor to catch him making whisky. They came upon the defendant Buck Moore in a¡ wagon drawn by a team of mules on Kennedy’s place, and in the wagon they found a steel tank and some iron pipe. Kennedy was near by.

The defendant Moore, a boy 18 years old, lived with his parents about two miles from the Kennedy’s place. As a witness in his own behalf he testified that he was plowing that day, and after dinner his father sent him after a load of hay to a barn on a place near Kennedy's; that he stopped at Kennedy’s house and Kennedy wanted to borrow the wagon and team for a few minutes, and they drove down to the creek. There Kennedy got out, went off a piece, and returned with an oil tank on his shoulder and put it in the wagon, then he made another trip and brought back some pipe; thajt they started back to the house and met the officers; that he did not know that the oil tank was used as a still and did not know where Kennedy was going to place it; that he never did manufacture whisky.

The father of the defendant testified that his son plowed until dinner; and then he sent him after a load of hay, which they hauled as they needed it from the rented place.

Counsel for the defendant requested the following instruction, which was refused, and an exception to the action of the court was taken:

"You are instructed that the defendant Buck Moore claims that if Jeff Kennedy made the whisky as alleged in the information that he knew nothing of the same, had nothing to do, directly or indirectly, with the making of said whisky, if any was made; that on the day that the officers arrested him that his father had sent him after hay, and that Jeff Kennedy asked to borrow the team and wagon, and that he went with him, and that Kennedy loaded a pipe of some kind and an oil can on his wagon; if you believe this to be true or have a reasonable doubt, then it would be your duty to acquit the defendant, for, even if you should believe that he was assisting in the hauling of a portion or part of a distill, which had been used by Jeff Kennedy in the making of whisky, but that the defendant Buck Moore had nothing to do with the making of the whisky, if any was made, or was not interested in the same, he would not be guilty as charged in the information.”

The trial court did not give any instruction in any way covering the defense relied upon.

This court has repeatedly held that it is error for the trial court to' fail and refuse to instruct on the law applicable to a theory of the defense which ' the evidence tends to support, when the defendant requests it and when such evidence affects a material issue in the case. McIntosh v. State, 8 Okla. Cr. 469, 128 P. 735; Crittenden v. State, 13 Okla. Cr. 351, 164 P. 675; Golpi v. State, 14 Okla. Cr. 564, 174 P. 288; Tubby v. State, 15 Okla. Cr. 496, 178 P. 491; Peyton v. State, 16 Okla. Cr. 410, 183 P. 639.

We are of the opinion that in this ease the refusal of the court to give the requested instruction," or one affirmatively covering the defense interposed, was reversible error.

The general rule in criminal cases is where evidence is circumstantial the facts shown must not only be consistent with and point to the guilt of the defendant, but must be inconsistent with his innocence. The mere fact that an oil tank which may have been used as a still was found in the defendant’s wagon is insufficient to sustain the verdict finding the defendant guilty on a charge of manufacturing whisky.

The defendant was not charged with the unlawful possession of a still, and we are inclined to think that the evidence was insufficient to show that this defendant used the still or aided in its use to manufacture whisky as charged in the information.

For the reasons stated, the judgment appealed from is reversed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    J. F. PORTER v. STATE.
    No. A-5247.
    Opinion Filed Nov. 13, 1926.
    (250 Pac. 437.)
    Bristow & McFadyen, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   BESSEY, P. J.

The plaintiff in error, here designated the defendant, was charged with the illegal transportation of whisky “from a point between the gin building and the seedhouse of the Johnston gin, located in the town of 'Carnegie, Okla., into the said seedhouse, a distance of approximately 40 feet.” Upon conviction, the punishment was assessed at a fine of $100 and 30 days in jail.

The evidence shows the Johnston gin comprised a rectangular building 50 or 60 feet in length; that adjacent thereto was a long building containing bins or compartments for the storage of cotton and cotton seed; that between the two was a drive or passageway; and that the two buildings were connected by a roof covering the bins and driveway. The defendant drove his car into the entrance of this driveway, alighted, and took from the car, or its immediate vicinity, a toesack, containing a bulky substance about the size of a gallon jug. This he carried along the driveway a distance of 40 feet, where he entered a bin in which was stored a large quantity of cotton seed. A peace officer followed him into the bin, and found the defendant with a toesack in his hand, in which was a gallon jug containing corn whisky. The defendant admits that he was found in possession of the sack and jug of whisky, but claims that he knew that it was hidden in this cotton seed, and that he went there with a toesack containing a half-gallon glass jar, for the purpose of obtaining a portion of the whisky contained in the jug.

There was evidence tending to show that the defendant and another were operating a fish camp nearby, and that he frequently made trips to and fro from the camp to this gin. There was also evidence tending to show that on this occasion the defendant was more or less intoxicated.

The testimony of the foreman at the gin and of the peace officer indicates that the defendant’s story was not true, and that the defendant carried the jug of whisky from the car, or its vicinity, to the place where it was recovered in the cotton seed bin. On these facts the jury were justified in adopting the evidence on the part of the state rather than that of the defendant.

The defendant contends, assuming that the evidence on the part of the state was true, that there was no illegal transportation within the meaning of section 7002, Comp. Stat. 1921. Where the removal of intoxicating liquor from one place to another is for an illegal purpose, the space or distance over which it is removed would make no difference. Thomas v. State, 27 Okla. Cr. 264, 226 P. 600.

While some decisions indicate that an unlawful transportation is not accomplished, unless there is a removal from the premises, or at least the curtilage of their origin or point of departure, this is not always the test; e. g., in Kentucky, the removal by a farmer of liquor made in an illicit still on his farm from one part of the farm to another was held unlawful. Scaggs v. Com., 196 Ky. 399, 244 S. W. 799.

Where liquor was carried a short distance from the owner’s house to evade detection, and there dropped with intent to destroy it, it was held an illegal transportation. Caudill v. Com., 200 Ky. 251, 254 S. W. 745; section 306, Thorpe on Prohibition.

The evidence in this case indicates that the defendant was a trespasser upon the premises, and that he was endeavoring to take advantage of the open bins for the purpose of concealing liquor for illegal purposes; that it was his intention, ultimately, to convey it, or a portion of it, to some other place. The facts in this case are quite different from the case of DeGraff v. State, 2 Okla. Cr. 519, 103 P. 538, where it was held that the removal of liquor from one room in a house to another room in the same house was not an offense within the meaning of the law.

The judgment of the trial court is affirmed.

DOYLE, J., and EDWARDS, J., concur.


text:
    FARMON SUTTON v. STATE.
    No. A-6287.
    Opinion Filed Nov. 16, 1926.
    (250 Pac. 930.)

      Anglin & Stevenson, for plaintiff in error.
    The Attorney General and Tom H. Fancher, Co. Atty., for the State.
   DOYLE, J.

(after stating the facts as above). This appeal is from a judgment of conviction of murder and sentence of death, pronounced upon a plea of guilty, entered by appellant, Farmon Sutton, upon his arraignment on an information charging him with the murder of J. H. Byerly, alleged to have been committed December 30, 1925.

It appears from the record that appellant was arrested January 4, 1926, on suspicion, and was held in jail until February 4th, when he was taken to the office of the county attorney and there signed a written confession; immediately complaint was filed before a justice of the peace who was called to the office of the county attorney, and there before him appellant waived preliminary examination and an hour later was taken before the district court. In the meantime an information was filed in the district court and appellant was there served with a copy of the same, together with a list of the state’s witnesses. He was then formally arraigned and the court recessed until 1 p. m., at which time appellant pleaded guilty to the charge, and was, by the judgment of the court, sentenced to suffer death by electrocution on the 9th day of April, 1926. During these proceedings the defendant was not represented by council, nor was he informed by the court of his right to be represented by counsel. Immediately after the judgment was rendered appellant was placed in a car and taken to the penitentiary.

The motion to vacate and set aside the judgment and for leave to withdraw the plea of guilty and enter a plea of not guilty was filed February 6th, the second day after the judgment was pronounced. On the hearing this motion was by the court overruled. Exception reserved.

To reverse the conviction, appellant assigns as grounds that the judgment of conviction is void for want of due process of law, as secured to him by the Constitution of the state (article 2, § 7). which reads:

“No person shall be deprived of life, liberty, or property, without due process of law.”

The principle that no person shall be deprived of life, liberty, or property, except by due process of law, is older than written 'Constitutions. The phrase “due process of law” as used in the Bill of Rights is synonymous with the phrase “law of the land” as found in Magna Charta. A definition of the meaning of the words “law of the land” and “due process of law” which has received the sanction of the courts is Mr. Webster’s familiar definition. By the law of the land is clearly intended the general law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial. It means that every citizen shall hold his life, liberty, and property under the protection of the general rules which govern society.

Every person charged with crime, whether guilty or innocent, is entitled to a fair and impartial trial — < that is, a trial in accordance with the rules of law and the principles of justice; and it is a duty resting upon the courts to see that this guaranty conferred by the Constitution upon every citizen is upheld and sustained. Goben v. State, 20 Okla. Cr. 220, 201 P. 812.

In cases of this kind, where the defendant is charged with a capital offense, he should have the advantage of every right which the law secures to him upon his trial. The Bill of Rights provides that in all criminal prosecutions the accused—

“shall have the right to be heard by himself and counsel; and in capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief, to prove the allegations of the indictment or information, together with their post office addresses.” Const, art. 2, sec. 20.

The right of the accused to the assistance of counsel in making his defense has long been regarded in this country as essential to the due administration of justice in criminal cases.

Says Mr. Cooley:

“With us it is a universal principle of constitutional law that the prisoner shall be allowed a defense by counsel.” Const. Lim. 334.

In order that the accused may have the full benefit of this constitutional right, the Code of Criminal . Procedure provides:

“If the defendant appear for arraignment, without counsel, he must be informed by the court that it is his right to have counsel before being arraigned, and must be asked if he desire the aid of counsel. If he desires, and is unable to employ counsel, the court must assign counsel to defend him.” Section 2590, C. S. 1921.

In Polk v. State, 26 Okla. Cr. 283, 224 P. 194, it was held:

“Under our laws every person accused of felony is entitled to aid of counsel at every stage of the proceedings, whether imprisoned or admitted to bail, and refusal of opportunity to procure such counsel amounts to a deprivation of a right essential to1 his safety.”

And see Tipton v. State, 30 Okla. Cr., 56, 235 P. 259.

Construing the second provision of section 20 of the Bill of Rights, above quoted, the uniform holding of this court is that, in a capital case, the defendant does not have to demand a list of the witnesses, together with their post office addresses; that the Constitution makes that demand for him, and, unless he waives it, he cannot be legally put upon trial until that demand has been complied with. Spess v. State, 13 Okla. Cr. 277, 164 P. 131; Goben v. State, 20 Okla. Cr. 220, 201 P. 812; Polk v. State, 26 Okla. Cr. 283, 224 P. 194.

The uniform holding of the courts is that, in a capital case, a plea of guilty can only be entered after the defendant has been fully advised by the court of his rights and the consequences of his plea; and, where it appears on appeal from a judgment of conviction that the defendant has been denied a right guaranteed by the Constitution, such showing requires a reversal, unless the record clearly shows that the right was waived, or that no injury could have resulted to the accused by reason of such denial. Howington v. State, 30 Okla. Cr. 243, 235 P. 931; Mullen v. State, 28 Okla. Cr. 218, 230 P. 285.

In the instant case, it appears that upon his arraignment there was no attempt whatever on the part of the court to inform the defendant of his constitutional and statutory rights. The record shows the following colloquy occurred between him and the court:

“Court: Do you wish to enter your plea at this time?
“Defendant: Who, me?
“Court: Yes.
“Defendant: I don’t know,, sir.
“Court: Do you want to plead guilty or not guilty?
“Defendant: Plead guilty, judge.
“Court: Now, before you definitely decide to plead guilty, there is only two punishments that may be inflicted for murder, one death, and one life imprisonment in the penitentiary at hard labor. Now, I want you to think well before you enter your plea of guilty?
“Defendant: Well, I pleads guilty.
“Court: Let the record show that it will be the judgment of the law as pronounced by the court that the defendant will be adjudged to be guilty of murder and shall suffer death by electrocution, and that the 9th day of April, 1926, is the day appointed by the court for the carrying into execution the judg-men and sentence of death as herein pronounced.
“Defendant: I can’t understand you, judge.
“Court: So you may appeal from the judgment and sentence to the Criminal Court of Appeals. Do you hear it now? A. Yes, sir.
“Q. Did you hear what I said, and understand it? A. No, sir; I didn’t understand.”

In a criminal action a defendant has the right to plead guilty, and the effect of such a plea is to authorize a judgment of conviction and imposition of punishment as prescribed by law. The plea should be freely and voluntarily made by one competent to know the consequences, and should not be induced by fear, persuasion, promises, or ignorance. In some states pleas of guilty to the charge of murder are not received; in others on a plea of guilty the case must stand continued for judgment and sentence. In still others a jury must be impaneled in capital cases to' assess the punishment. Polk v. State, supra. Here there was no attempt whatever on the part of the court to inform the defendant of his rights, or to state the effect of the plea of guilty.

It is true that many constitutional guaranties may be waived by an accused person who comes into court represented by counsel and being fully advised of all his rights, and in such cases it might be said that he waives a right for which he does not ask. However, the record in this case shows that appellant did not waive any constitutional or statutory right, except insofar as his plea of guilty waived his right to be tried by a jury. In our opinion the constitutional right to be represented by counsel and the right in capital cases, at least two days before the case is called for trial, to be furnished with a list of the witnesses, together with their post office addresses, are essential to due process of law guaranteed to the citizen by section 7, Bill of Rights. We are inclined to think that a conviction had by a denial of these constitutional rights simply amounts to judicial lynch law.

As, in the view we take, the case must be submitted to a jury, we refrain from a discussion as to whether or not the purported confession was or was not free and voluntary, further than to say it is as much the duty of prosecuting attorneys to see that a person accused of crime is not deprived of any of his constitutional and statutory rights as it is to prosecute him for the crime with which he is charged.

While promptness in the apprehension and trial of persons accused of crime is commendable, the law has provided how trials should be had, and the enforcement of law is to1 be arrived at only by adhering to legal requirements and principles of justice and fair trials as provided by constitutional provisions, legislative enactment, and well-established rules of law.

It has been well said that the law is not designed to be a swift engine of oppression and vengeance, but it was and is designed to try and convict men only after due hearing and a fair trial.

For the reasons stated, we are of the opinion that the judgment of conviction is void for want of due process of law.

The judgment is accordingly reversed; the cause remanded to the court below for further proceedings in conformity with law.

BESSEY, P, J., and EDWARDS, J., concur.