text:
    J. L. ALLENDER v. STATE.
    No. A-8711.
    Aug. 17, 1934.
    (35 Pac. [2d] 281.)
    Hughes & Dickson, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, for convenience hereinafter referred to as the defendant, was convicted of having possession of intoxicating liquor with intent to barter, sell, give away, or otherwise dispose, of the same, and was sentenced to pay a fine of $150 and be confined in the county jail for 60 days.

An abstract of the testimony shows that the sheriff of Texas county went to the home of the defendant with a search warrant and searched the premises and found 45 gallons of wine, and some 40 pints of beer. The testimony further shows that when the wine was analyzed it showed to contain 14.63 per cent, alcohol; that the alcoholic contents of the beer and wine ranged from 5.04 to 14.63 per cent. The defendant did not testify.

Ten errors are assigned by the defendant as grounds for reversal. The main argument presented by the defendant is that the state failed to prove by any competent testimony that the defendant possessed the wine and beer with intent to sell, barter, give away, or otherwise dispose of the same. In presenting his argument the defendant admits that the sheriff searched the Allender farm and found the wine and beer as charged in the information, and that it contained more than one-half of 1 per cent, alcohol measured by volume. After making this admission the defendant insists that mere possession of the wine and beer containing alcohol, alone, is not sufficient upon which to base a conviction, and cites many decisions of this court to sustain hid position.

Possession alone is not sufficient to warrant the jury in returning a verdict of guilty against a defendant found in possession of intoxicating liquor. In this case, however, C. A. Sullivan, the sheriff of Texas county, aJ witness for the state, testified complaints had been made to him regarding what was going on at the defendant’s place, and he had driven by there at different times of the day and night, and had seen cars there; some of the parties' he had seen there were parties who were in the habit of drinking intoxicating liquor; that he had seen several cars there at a time.

The witness further stated:

“I have seen several cars there, and the road looked like a public highway in and out. I have seen several cars there that belonged to fellows that bootlegged.”

The instructions of the court correctly advised the jury as to the law applicable to the facts, and especially advised that it must be convinced beyond a reasonable doubt that the intoxicating, liquors found at defendant’s home were possessed by him for the purpose of bartering, selling, giving away, or otherwise furnishing the same to others before it would be warranted in finding the defendant guilty. The jury after having received the instructions of the court found the defendant guilty. This court has repeatedly held that a conviction will not be disturbed on appeal when the evidence adduced reasonably tends to support the verdict and judgment. Cole v. State, 18 Okla. Cr. 430,195 Pac. 901; Adeaholt v. State, 19 Okla. Cr. 122, 198 Pac. 351; Mayse v. State, 38 Okla. Cr. 144, 259 Pac. 277; Wisdom v. State, 56 Okla. Cr. 140, 36 Pac. (2d) 514.

The defendant was accorded a fair and impartial trial. The evidence is sufficient to sustain the judgment.

The case is affirmed.

CHAPPELL, J., concurs. EDWARDS, P. J., not participating.


source: Caselaw Access Project

author: DAVENPORT, J.

license: Public Domain

text:
    Ex parte ALVA MILTON ALLEN.
    No. A-8772.
    Aug. 17, 1934.
    (35 Pac. [2d] 284.)
    Alva Milton Allen, in pro. per.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

This is an original proceeding in habeas corpus brought by petitioner, Alva Milton Allen, in' proper person. The petition alleges that he was convicted in the district court of Creek county, Okla., and sentenced to serve a term of three years in the state penitentiary, and $73.90 costs taxed against him; that he was received at the penitentiary March 12, 1931, and began serving his sentence; that he escaped from the penitentiary July 30, 1931, and was returned to the penitentiary November 21, 1931, and has been in custody of the warden of the penitentiary continuously since that time; at the time he escaped he had served four months and eighteen days on his three-year sentence, and he alleges that from his.return November 21, 1931, until July 18, 1934, he has served two years and eight months, a total of two years eleven months and twelve days. That the time required to serve the three-year sentence is one year nine months and one day, to which must be added six months’ penalty by reason of his escape, and two months and fourteen days by reason of the cost amounting to $73.90, a total of two years five months and fifteen days; and prays for his release on the ground that he has served full time for his sentence imposed upon him of three years by the district court of Creek county, Okla.

The warden in his response admits that the petitioner was received at the penitentiary March 12, 1931, and served on the conviction and sentence from Creek county, from March 12, 1931, until the 31st of July, 1931, when said petitioner escaped.

The warden further in his response states that while the said petitioner was at large, he was convicted in the district court of Tulsa county, Okla., for the crime of forgery, and was sentenced to be confined and imprisoned in the state penitentiary for a term of four years, and to pay the cost of the prosecution taxed! at $46.10. That the petitioner was received in the state penitentiary November 23, 1931, as a prisoner under conviction and sentence from Tulsa county district court, and was held and imprisoned under the sentence imposed by the district court of Tulsa county until April 3, 1934, when he had fully served the sentence imposed by the district court of Tulsa county. That since April 3, 1934, said petitioner has been and is noAv being held in the state penitentiary serving the remainder of the judgment and sentence imposed against him by the district court of Creek county, Okla., on a conviction for bigamy.

It will be noted! that petitioner makes no mention of his conviction while an escaped prisoner from the state penitentiary, in the district court of Tulsa county, Okla., an additional sentence being imposed upon him.

It is further noted that petitioner does not mention the validity of the judgment of thé district court of Creek county, Okla., or the jurisdiction of the court to impose the sentence, and as he has not fully served the sentence imposed by the district court of Creek county, we hold that the petitioner is not entitled to the relief prayed for.

The writ is denied.

CHAPPELL, J., concurs. EDWARDS, P. J., not participating.


text:
    JOHN ALCORN v. STATE.
    No. A-8701.
    Aug. 25, 1934.
    (35 Pac. [2d] 735.)

      Ralph Haynes and J. F. Murray, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Paul W. Cress, Co. Atty., for the State.
   DAVENPORT, J.

The plaintiff in error, for convenience hereinafter referred to as the defendant, was tried on a charge of murder, convicted of manslaughter in the first degree, and sentenced to serve a term of four years’ imprisonment in the state penitentiary.

W. R. Larimer, being called by the state, testified in substance:

“My name is W. R. Larimer, I am commonly called Bob; I have resided in Bressie township, Noble county, Okla., 27 or 28 years; Charlie Larimer, the deceased, was my son; he was 49 years of age; Vernon Larimer is also my son. Vernon was married; his wife’s maiden name was Avis Alcom, a daughter of the defendant. Vernon and his wife were living about a half mile from my place, a little to> the east and south, upon a place Charlie had leased. Vernon Larimer was at my house shortly after noon on July 17,1933, with the sheriff, Mr. Harman, and I think a Mr. Cabot; they were officers of Noble county. The officers and Vernon came directly from his place to my house; he was in custody of the officers. My son Charlie came to my place while Vernon and the officers were there.”

Over the objection of the defendant, the court permitted the witness to state that Vernon Larimer made arrangements with Charlie to take care of his things while he was gone.

Witness further stated the officers and Vernon left between 1 and 2 o’clock in the afternoon.

“Charlie went to Mr Bowens, about a mile and a half north and a little east to get help to make bond for Vernon, and returned to my place shortly after 4 o’clock in the afternoon. Alfred Keres, my grandson, and I went down towards Vernon’s place to the corner west of the house; we saw some parties at Vernon’s place and a truck was being loaded with furniture; we turned around and went back home, and I told Charlie what we had seen. He droye away in a car immediately; Alfred Keres went with him. Shortly thereafter my granddaughter Eva Keres drove me down to Vernon’s home. Before we got to the corner and to the northwest of the house, we heard two shots. We drove'on to the place and stopped back of the car; I thought it was Char-lie’s car.”

Witness was then handed exhibits and asked about them relative to the position of the truck and car when he got to Vernon’s house, and described the relative position of the cars when he arrived at Vernon’s home, and where the car he went down in was parked. Witness stated:

“When we drove up my granddaughter exclaimed, ‘They have killed him.’ I expect Mr. Alcorn could have heard it. I was standing here — in front — probably ten feet of the truck where Charlie lay there on the ground. When I got out of the. car I started to go to him and the defendant was standing near the body and said, ‘Stay back, Bob, stay back.’ He had two guns, one in each hand, pointing them at me. I asked my granddaughter to turn Charlie over; defendant was still standing with the guns, and told her not to touch him. She asked Fat Courtney to help; I don’t think he rendered any service. My granddaughter turned Charlie over so we could see his face; he was in death gasps and foam was running, from his mouth and nose. Eva said, ‘Get a doctor,’ and I said, ‘No, an undertaker is' all that is needed.’ My granddaughter and Fat Courtney put Charlie’s body in the car; we could not crank the car. The defendant, Avis Larimer, and Fat Courtney were there. My grandson came and helped us start the car.”

On cross-examination witness stated*

“At the time I was in as calm state of mind as I am now; my mind was calm enough; I cautioned them not to move anything or change anything. I did not ask Avis to give me Charlie's gun when I first drove up to the house. When I got out of the car I did not advance toward Mr. Alcorn, I started toward Charlie; I did not walk past the body of my son toward Mr. Alcorn. When I stopped my car I was about fifty feet from the truck in which the furniture had been loaded; my car was in the rear of Charlie’s, it might have been ten feet from it; I was not driving the car; I do not drive a car. I was present when the photographer made the pictures that have been presented in this trial.
“Shortly after Charlie came back, about 4' o’clock, I went down near Vernon’s place and saw Mr. Alcorn down there loading the furniture. I immediately drove back and told Charlie the truck was down there loading the furniture. He di dnot say he was going down there and kill the son of a bitch; I did not hear Alfred Keres say •that- if he was going down there to do anything like that— meaning to kill any one — I am not going. In about one to three minutes after Charlie left I asked my granddaughter to drive me down to Vernon’s place; the purpose for which I was going down there was, there was apparently a conspiracy in the minds of each of us that there was something hellish going on, and we wanted to prevent any trouble, if you want to know, that is the reason why I went. We knew something had already happened. I don’t know what was in Charlie’s mind but my own. I did not know that Charlie had the pistol. I did not know that when Alfred Keres declined to go with him he handed a 30-30 gun out of the car and said he did not need that gun to get the son of a bitch.
“In driving down to Vernon’s place where his wife, father, and hired hand were loading the furniture, you had to go to the corner of the fence, and then turn, which made it farther than a direct line would be. We were in a Peerless car. We were probably traveling 20 or 25 miles an hour until we heard the shots; I did not hasten; my granddaughter nearly collapsed, and screamed and says, ‘They have killed Charlie.’ I don’t know how fast we traveled or zigzagged, we kept going until we got there. I was not a bit excited; I don’t get excited in trouble; I don’t know how I felt, suddenly there would be trouble, but, when we heard the shots, the granddaughter says: ‘They have killed Charlie.’ I did not know. Charlie went to Vernon’s home for any trouble; I know there was something connected with whisky. Charlie was authorized to look after Vernon’s stuff. What caused me to feel uneasy was the whisky, and circumstances leading up to it; whoever was representing Vernon’s wife was taking the furniture. Of course, I knew reasonably there would be trouble when I saAV the truck; before I had seen the truck I had not expected anything; I did not talk with Charlie that evening- about 4 o’clock. When he left the house Alfred Keres told him there was a truck there getting the furniture. I just heard the shots and drove on down to the scene of the difficulty. At the house is just a bare ground. — might have been some grass. I did. not recognize either one of the pistols in the hands of John Alcorn as being my son Charlie’s pistol.
“I knew my son Vernon worked the land north of the building on a fraction; I knew he Avas living in the house by an agreement.”

On redirect witness stated he folio wed (.he son doAvn to Vernon’s house; that he did not know how to use a gun. Witness admitted he knew Vernon and his wife were occopying a part of the house where the difficulty took place.

There are a number of pages of the record taken up by questions and answers on the contract under which Vernon Larimer and his wife were occupying the house at the time of the difficulty, which it is not necessary to refer to, as all parties admit Vernon Larimer and his wife, Avis Alcorn Larimer, were rightly in possession and occupied a portion of the home where the difficulty occurred.

The record discloses some time prior to the difficulty the defendant in this case had been turned in on a charge of violating the prohibition law, and he accused Charlie and Vernon Larimer of being responsible for his being arrested.

The record further shows' that on the day of the killing the defendant, accompanied by his daughter, went to a phone.and phoned the sheriff to come out to Vernon Larimer’s home and that! he would find whisky, either in the house or a beehive, and, when the sheriff came, defendant told them where to find the whisky; whisky was found and Vernon Larimer taken into custody by the sheriff, and taken to the county seat, where he was at the time of the trouble.

The record further shows that Vernon Larimer and his wife were not living in harmony, and were about to or had separated. At the time the difficulty occurred, at the request of Vernon Larimer’s wife, the defendant in this case and his hired hand, Fat Courtney, and Avis Alcorn Larimer were at the home of Vernon and Avis Alcorn Larimer loading furniture into a truck. The testimony cleariy shows there was ill feeling existing between Charlie and Vernon Larimer and the defendant, and that Charlie Larimer and the defendant were both armed on the day of the trouble; that before Charlie started to the house á gun was taken out of the car and Charlie went down to the Vernon Larimer place with a pistol.

The testimony of Eva Keres as to what took place the day of the killing, is in substance the same as the witness W. R. Larimer; she being the one who drove the car'from his home to where the killing took place. There are several pages of the record taken up with the examination of the doctor as to where the bullets took effect on the body of Charlie Larimer, and as to the location of the cars at the place where the killing took place, and as to photographs which were made after the killing and after the cars had been removed, and cars placed in the position it was claimed the cars were at the time of the killing. It would serve no useful purpose to incorporate in this record at length all this testimony, as it does not in any way whatever tend to show who was the aggressor or who fired the first shot. Both parties fired shots — which fired the first, according to the record, is a controverted fact according to testimony of eyewitnesses, and circumstances on the positions of the cars, as introduced by the state.

The defendant, testifying in his own behalf, in substance states:

“I am 55 years old; have lived in Noble county about eight years; have been living on the 50-50 Ranch for about one year, which is about four miles east and one mile south from Marland, to the northeast corner. Avis Larimer is my daughter. Avis and her husband had lived on the place where the trouble occurred since their marriage, which was last Augusti a year ago, until they separated. On the morning of the day of the killing my daughter sent word to bring the truck and come down, as she was going to move her furniture home. When I received the request, I told the hired hand to take the truck and go down and get the furniture; the hired hand drove the truck down about 3 o’clock in the afternoon, and I drove down in my car to Vernon and Avis Larimer’s home. When we got there the hired hand backed the truck to the west door, and the girl was getting ready to move her stuff. We went to loading her things in the truck. Vernon Larimer had been taken by the sheriff to Perry on a whisky charge. Alter we got down to the place I saw some one drive to the corner where the road makes a turn and go back north.
“Bob Larimer’s home is about a half mile north of this corner. Shortly thereafter Charlie Larimer drove up in his car, and stopped in about four feet of my car. The back end of the truck was up to the south side of the west door. My car was parked just west of where Charlie parked his car — about seven or eight feet apart; when Charlie drove up he jumped out of his car and as he came out of the car this way, he says: ‘Alcorn, God damn you, unload that furniture.’ His gun was a .38 special; the gun you have handed me is the identical gun; Charlie fired directly at me, and I ducked behind my truck. I got my gun, an automatic, that has been exhibited here, or one just like it; I had an A-380 automatic Bemington. When I pulled my gun I ducked under the truck where I could see Charlie Larimer and fired. While I was under the truck he fired two shots. I was not very calm at the time. When I fired the first shot Charlie Larimer was standing at the front wheel of my automobile; that was about at the left front wheel of his automobile; after Larimer shot at me and I got under the truck I fired as fast as I could; I don’t know where I shot either time; Charlie Larimer fell and kindly whirled and holloed, I did not hear what he said; I don’t know where 1 hit him, but he fell on my automobile and dropped his gun between the hood and the fender, behind the light; he was grabbing for the gun when he went down and kicked up his foot — I don’t know which foot. I continued firing as long, as he continued to try to get his gun; when he slumped to the ground I ceased.'
“I got out from under the truck and Bob Larimer drove up; the girl jumped out of the car and I said: ‘Avis, get. the gun.’ She went up and took the gun by the barrel and handed it to me. Bob Larimer and his granddaughter came up right south of Charlie’s car; Bob Larimer jumped out of his.car, and'said: 'Give me Charlie’s gun.’ My daughter Avis had tiie gun and I told her to give it to me. Bob Larimer was coming after me and .I. stuck this gun up and I says: 'Mr. Larimer, don’t come another foot.’ I never raised the gun, I says: 'Mr. Larimer,, stay back.’ I knew Charlie had been fatally wounded; he was on the ground and was not able to get up and get the gun. I did not shoot him any more. I fired the first shot from under the truck because I had to save my own life or my daughter’from injury. After Bob Larimer drove up, I told Fat Courtney, who was working for me and who had driven the truck to the house, to assist in putting Charlie Larimer in the car, and he did. Bob Larimer at the time was raving like a mad man.”

On cross-examination witness stated he lived on the 50-50 Ranch. Witness was asked with reference to an election on July 11, 1933, as to what took place at the Bressie schoolhouse, and' denied certain remarks he had made about Charlie and Vernon Larimer; admitted he had been turned in for whisky some time before this trouble; and admitted, he told the sheriff where to go to find the whisky at Vernon’s place.

Avis Larimer, testifying on behalf of the defendant, stated:

“Me and my husband had been having trouble the last three or four days prior to the killing, and I tried to get him to give me one-half of the furniture, but was unable to do so. About a week before the trouble my husband said if I left him he would kill my father and myself, op any one who tried to move the furniture out of the house. I told my father what my husband said about two or three days after' he made the threat; I asked my sister to tell father .that Vernon was in jail and I wanted to move home, and to let’s give him a fair deal, and he said all right. My father and Fat Courtney came down with the touch and we were loading the furniture; while' we were loading, I noticed the Larimer car drive down the road to west of the house, and turn back north, and immediately thereafter Charlie Larimer came to the house. Bob Larimer lived north of where the car turned and went back. Charlie came down the same road that I had seen the car come down, and turn back; when he drove into the yard he jumped out of the car and said: ‘By God, Alcorn, unload that furniture,’ and started shooting. I was standing in the west door; my father was standing just on the west side of the truck, right close to the rear of the truck; after Charlie shot my father ran behind the truck and crawled under it and Charlie fired three shots; Fat Courtney was standing by the door of the truck when the second shot was fired; my father at that time was under the truck; as soon as he got under the truck he started firing. I tried to get Charlie to leave; that I did not want any trouble but he said he wouldn’t do it; that it was Vernon’s furniture, and that it was under Merle Harmon’s control and he was going to protect it. I told Charlie we were dividing the furniture, and I was leaving Vernon’s half. My father’s shots struck him; he fired a shot about the time he fell on dad’s car; father shot three shots in rapid succession about the time Charlie fell on the car. I had seen Charlie Larimer three times that day; he was at the house shortly after 11 a. m., the second time between 12 and 1 o’clock, and I. saw him again close to 2 o’clock; I am just approximating the time. He seemed to be drunk. When he left the house he took a rifie I had thrown in the well, after Vernon had threatened my life, with him; it was a 30-30.”

Witness was then asked several questions with reference to the photographs and some property that Charlie Larimer should have had in some of the rooms at the house at the time of the trouble, all of which was immaterial to the issues in this case. Also asked questions along the line as to whether or not Charlie Larimer was down to the house in the morning, and up to 2 o’clock was drinking, and as to the witness’ statements to the county attorney shortly after the killing.

All of the testimony of Avis Larimer and Fat Courtney as to what took place at the time of the killing, and the cause leading up to it, in substance is the same as the defendant John Alcorn’s testimony. Several witnesses were called to testify on behalf of the defendant, who testified that the reputation of Charlie Larimer being a quarrelsome, abusive, and dangerous man was bad.

The above and foregoing testimony is all that is necessary tO' set out in this opinion in order to arrive at a proper conclusion as to' whether or not the defendant was accorded a fair and impartial trial. To set out all the immaterial questions and answers in the record would extend this opinion to an unreasonable length.

The defendant has assigned 13 errors alleged to have been committed by the. court, which errors he insists are sufficient to warrant the court in reversing this case and granting him a new trial.

The first question argued by the defendant is the question of the admission of testimony offered by the state as to a conversation between the deceased and his brother referring to the property of Vernon Larimer, which conversation was in the absence of the defendant, and shed no light upon what took place at the home of Vernon Larimer the day of the killing. However, in view of the testimony of the defendant that deceased had been down to the home of Vernon Larimer on one or more occasions the day of the killing, and in view of the further fact that Mrs. Vernon Larimer knew the deceased claimed to be looking after Vernon’s interest in the household goods, the admission of the testimony is not such an error under the facts and circumstances as would warrant a reversal.

The record in this case is full of testimony immaterial to the issue, hut it seemed that the prosecution was seeking, to prove everything that might have taken place in the lives of the defendant and deceased since the marriage of the brother of the deceased to the daughter of the defendant. It only tended to burden the record and did not assist in any way whatever in arriving at the correct solution of the issue involved.

It is next urged by the defendant that the court erred in its instructions Nos. 22 and 23, which instructions are as follows:

“No. 22. You are further instructed that self-defense under the law is a defensive and not an offensive act, and for a person to avail himself of a plea of self-defense, in order to justify a killing it must reasonably appear to him at the time he fired the fatal shot that the act or acts upon the part of the deceased by which the defendant seeks to justify the killing was such an act or acts as made it reasonably appear to him at the time that he was in danger either of losing his own life or of suffering great bodily harm, and. it is the duty of the person so threatened with danger to his life or great personal injury being done to use at the time all reasonable means apparent to a reasonable person under the circumstances to avoid such danger before taking human life; except that he is not bound to retreat to avoid such necessity or apparent necessity of killing, provided he has done no act on his part to bring about the attack, if any, by the deceased.
“No. 23. You are further instructed, in this connection, that the law of self-defense is given to the citizen for his protection and it cannot be pleaded as a defense by one who himself is the aggressor or who enters voluntarily into a difficulty armed with a deadly weapon, no matter in how much danger he may be placed in the course of the difficulty, nor how imminent his peril may become.”

The defendant in his brief and oral argument relied upon Price v. State, 1 Okla. Cr. 383, 98 Pac. 447, 458, to sustain his argument and contention that instructions Nos. 22 and 23 were erroneous. The defendant further insists that the Price case is the only case that he had been able to find where such an instruction as given in this case had been given, and the holding of this court had apparently been followed since the Price opinion. He argues at length and insists that, when the court told the jury, “And it is the duty of the person so threatened with danger to his life or a great personal injury being done, to use at the time all reasonable means apparent to a reasonable person under the circumstances to avoid such danger before taking human life,” the instruction placed the burden on the defendant to prove that he had so acted; that the instruction took from the defendant the long-established right to act in his own defense upon the reasonable appearance of danger. As argued by the defendant, the question for the jury to determine under proper instructions of the trial court was the question as to whether or not the deceased or defendant was the aggressor, and did the defendant shoot the deceased before he had fired at the defendant? The record shows beyond any question there was hard feeling between the defendant and the deceased, and that the deceased had gone to his brother’s home and the home of the daughter of the defendant for the purpose of interfering with and preventing the defendant, his daughter, and the hired hand from moving certain furniture from the home, in the absence of the brother Vernon Larimer.

In considering the instructions of the court, it is necessary to consider them as a whole, and if, when so construed, they clearly and. correctly state the law, then the instructions are sufficient. This does not mean that an erroneous instruction upon a material issue can be cured by a correct instruction in another paragraph of the court’s instructions. The instructions should be clear, explicit, and free from ambiguities and contradictions, so as to not mislead the minds of the jurors. The language used by the court in its instructon No. 22 was before this court in Turner v. State, 4 Okla. Cr. 164, 111 Pac. 988, 998, and was approved by this court as a correct statement of the law on the question of self-defense. In instruction No. 11, Turner v. State, supra, the court in part instructed the jury:

“That the act upon the part of the deceased by which the defendant seeks to justify the killing was such an act as made it reasonably to appear to him at the time that he was in danger either of losing his life or of great personal injury being done him, and it is the duty of a person so threatened with danger to his life or of great personal injury being done him to use at the time all reasonable means apparent to a reasonable person under the circumstances to avoid such danger before taking human life,” etc.

The language ini the court’s instructions in Turner v. State, supra, was approved by this court in Brantley v. State, 15 Okla. Cr. 6, 175 Pac. 51. In Graham v. State, 25 Okla. Cr. 372, 220 Pac. 967, this court, in construing the instruction, states the instructions here complained of are identical in substance with instructions Nos. 11 and 12, approved by this court in Turner v. State, 4 Okla. Cr. 164, 111 Pac. 988, and have bearing on the issue of self-defense.

Considering the instructions as a whole, we believe the charge to fairly and fully cover the law of the case; that the jury was not misled by said instructions; that, when so considered, they are not open to the objections separately urged against instructions 22 and 23; and that the court did not err in refusing to give certain requested instructions, in view of the fact that the law of the case was sufficiently covered in the general- charge. Under the evidence in this case and the instructions of the court, the jury could have found the defendant guilty of murder, manslaughter in the first degree, or a verdict of not guilty. After hearing the evidence and instructions of the court, the jury found the defendant guilty of manslaughter in the first degree.

The evidence is sufficient to sustain the judgment. No errors appearing in the record to warrant a reversal, the judgment of the trial court is affirmed.

CHAPPELL, J., concurs. EDWARDS, P. J., not participating.


author: EDWARDS, P. J.

text:
    STATE v. O. C. FOSTER.
    No. A-8751.
    Sept. 1, 1934.
    (35 Pac. [2d] 733.)

      See, also, 55 Okla. Or. 450, 32 Pac. (2d) 750.
    J. Berry King, Atty. Gen., and J. M. Springer, for the State.
    W. L. Coffey and Bruce Potter, for defendant in error.
   EDWARDS, P. J.

O. C. Foster was tried on a charge .of murder, was acquitted, and the state appeals on a reserved question of law. Questions ansAvered in opinion.

This case comes to this court under the third subdivision of section 3191, Okla. Stat. 1931, upon exceptions to the ruling of the trial court excluding evidence offered by the state.

Defendant and one Buddy Jones were jointly indicted, for the murder of one Elmer Payne, as a part of a conspiracy with James Hollis and Lester Swannegan. The state’s theory and the testimony in support is about as follows: Defendant, a negro, conducted a drug store in Tulsa and was engaged in what is known as the “policy racket.” Elmer Payne, a white man, also conducted a “policy racket” in competition with defendant and had. a place of business in the negro section of Tulsa. For the state, Hollis, a negro convict, testified he met defendant and was informed by him that he had several “jobs” he wanted done and would pay $500 for the first job. Hollis agreed to this, and the next day defendant left $100 with Jones, with a note stating he wanted John Smitherman “bumped off” and would pay Hollis and Jones the stipulated price. Smitherman was a negro police officer, who had been arresting defendant’s policy writers and giving him trouble, Avhile allowing Payne to run unmolested. Hollis further testified this $100 was divided between him and Jones; that defendant furnished a pistol and money to buy another to be used in the killings desired by defendant; that later defendant told him there were others interfering with his business whom he also wanted killed, among them Elmer Payne and one Margaret Hilton. That after some delay, however, the killing of Smitherman was abandoned, but defendant demanded that Elmer Payne be killed at once. Hollis and the defendant then went to Kansas City to buy a bomb to be used in killing Payne; there they purchased a bomb from some Italians but were arrested in Kansas City by police officers and required to pay $300 to be liberated. They were arrested again and Hollis put in jail, but defendant was liberated. That a day or two later Hollis was released, told to see Lestem Swannegan, which he did, and he and Swannegan went by freight, train to Tulsa. There defendant, Hollis, and one Birdsong and some other person made an attack on the home of Margaret Hilton, in which they fired several shots at the house and threw an incendiary cloth ball, saturated with gasoline and ignited, upon the house; the purpose being to have her come out of the house so that they could kill her. The state also called Margaret Hilton, who corroborated Hollis as to the attack on her house. She further testified she saw defendant, Birdsong, and one Goodwin in the attacking party; that they threw the gasoline-soaked ball onto the house; that the fire department came and extinguished the fire; and that the fire ball was recovered. Now comes the crucial point presented by this appeal. The state offered to prove the attack on the Hilton house by John Smitherman and to prove the recovery of the incendiary ball by the assistant fire chief, and also offered to prove the same facts by one Larkin Hilton. All this testimony offered as to the attack on the Hilton house was objected to by defendant, the objections sustained, and the testimony excluded; the court assigning as a reason that the offense was an entirely separate and distinct offense from the one charged. The killing of Payne was about a week after the attack on the Hilton house. In the affray at the killing of Payne, Lester Swannegan of the attacking party was also killed.

The rule of law is well settled that evidence of other crimes is competent to prove the specific crime charged when it tends to establish a scheme or plan or as! part of a general conspiracy or is a part of the res gestae or shows intent or motive, or where it is so closely linked to the crime for which accused is on trial as to throw light on it. Starr v. State, 5 Okla Cr. 440, 115 Pac. 356; State v. Rule, 11 Okla. Cr. 237, 144 Pac. 807, and authorities therein cited; Quinn v. State, 54 Okla. Cr. 179, 16 Pac. (2d) 591, and authorities therein cited.

It is competent to prove a crime charged was part of a, general scheme or plan which included other offenses. If, under the state’s evidence, the attack on the Hilton house was a part of a general conspiracy between Hollis, Jones, and others to kill several persons who were troublesome to defendant in the operation of his policy racket, and which conspiracy also included the killing of Payne, which is the basis of the charge in this case, it is competent, although remoyed in point of time by several days, and although it may tend to prove defendant gnilty of a crime other than that charged in the information. The general rule that evidence which shows the accused guilty of a crime different from that for which he is on trial is inadmissible would not apply for the state has the right to put in evidence all relevant facts and circumstances which tend to establish his guilt of the crime charged, even though it may tend to prove he has committed other crimes. Evidence is to be considered as to its relevancy to show guilt of the offense charged, regardless of the fact that it may also tend to show the commission of other crimes. Whether evidence tending to show other crimes is relevant and admissible is a matter of judgment, and courts may differ as to whether particular matters of evidence have a logical connection with the crime charged. When the admissibility of evidence is doubtful, generally the doubt should be resolved in favor of an accused. In the instant case, from a consideration of the facts and circumstances, from the state’s standpoint, we are satisfied there is a logical connection between the attack on the Hilton house and the killing of Payne and that the evidence offered should have been admitted under proper instructions limiting its application and that its exclusion was error. 8 R. C. L. p. 198, § 194F; 16 C. J. p. 586, § 1132F; Hollingshead v. State, 21 Okla. Cr. 306, 207 Pac. 104.

So far as either the state or defendant is concerned, the admissibility of the evidence excluded is of no material importance, since the defendant has been acquitted and so far as we are informed no charge is pending against him. As to his codefendant a different situation exists. The admissibility of the evidence excluded no doubt will arise in the trial of that case. For that reason this court has expressed the opinion that the excluded evidence was admissible and the codefendant, not being a party to this appeal, is not to be precluded from presenting the question of admissibility and having his day in court.

DAVENPORT and CHAPPELL, JJ., concur.


author: CHAPPELL, J.

text:
    HARVE BURR v. STATE.
    No. A-8736.
    Sept. 7, 1934.
    (35 Pac. [2d] 740.)
    N. S. Corn, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (Hester Atherton Gifford, of counsel), for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Dewey county of the crime of receiving stolen property, and his punishment fixed by the jury at imprisonment in the state penitentiary for a term of one year.

The evidence of the state, in substance, was that two sets of harness, five cloth collars, two riding bridles, and a rope were stolen from one Joe Gott, in Ellis county; that about the 1st of April the sheriff of Dewey county, searching the premises of defendant, found one of the collars being used on a horse owned by defendant; that upon defendant’s arrest he at first denied he knew anything about the harness, but later made a proposition to the sheriff about the ease and took him and showed him where the harness was concealed in a canyon, some distance from where he lived; that he received this harness from Willard Peoples and Marion Robertson; that they admitted to him the harness had been stolen, but refused to tell him .where they got them, in order that he might return them; that he never told the sheriff or anybody else about the harness until after his arrest.

Marion Robertson had already pleaded guilty on a charge of stealing the harness in Ellis county, and, testifying for the state, said he helped steal thei harness; that they took them to defendant’s place; that Willard Peoples owed defendant $15, and they turned the harness in to pay that debt and were to receive two gallons of whisky, but only received one gallon.

Defendant, testifying for himself, admitted that he received the property and believed it was what he called “hot,” but denied that he purchased it or intended to make any deal for it. He was corroborated by Willard Peoples. This conflict in the evidence was for the jury. There is sufficient evidence to support their verdict.

Defendant contends the court erred in permitting the state to introduce evidence affecting the character of defendant, without him having first put his character in issue.

On direct examination defendant admitted that four or five years before he had been convicted of selling, a gallon of whisky to an old drunkard, but denied he had sold any liquor since; that he had not sold any whisky or violated any of the liquor lawsl since that time. On cross-examination, the state asked defendant if the sheriff did not find some whisky at his place when he went there to search, and if he did not pour the whisky out before the sheriff could get it. He) answered that he did not.

In rebuttal tbe state was permitted to show by the sheriff that there was whisky in the house when he went there to search, and that defendant’s wife poured it out.

This court has held in numerous cases that, where defendant puts his character in issue, the state in rebuttal may introduce evidence tending to show bad character.

The court- erred in admitting this evidence, but, defendant having put his character in issue and the evidence on this point being upon a collateral issue, the error is not sufficient to require a reversal of the case.

No fundamental error appearing, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    Ex parte FRANCES L. FABER.
    No. A-8801.
    Sept. 11, 1934.
    (35 Pac. [2d] 741.)
    Amos T. Hall, for petitioner.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus. Petitioner alleges she is unlawfully restrained of her liberty by the sheriff of Tulsa county; that she was convicted on her plea of guilty of the fraudulent destruction of insured property and was sentenced to serve a term of one year in the state penitentiary; that she was not afforded an opportunity to advise with counsel prior to her plea of ‘guilty and was induced to plead guilty by the fire marshal by his promise that she would receive a suspended sentence; and for that reason the judgment is void. This court declined to issue the writ of habeas corpus but issued a rule to show cause. The sheriff in his return justified his restraint of petitioner under the judgment and sentence.

Petitioner relies mainly on the case of Ex parte Hollins, 54 Okla. Cr. 70, 14 Pac. (2d) 243. The writ was awarded in that case for the reason the entire proceedings were had in the presence of an imminent threat of mob violence and wherein the death penalty was imposed on an ignorant negro, of low mentality and unable to read or write, Avho was not represented' by counsel. The decision in that case is not to be stretched to cover irregularities and errors, no matter how • numerous, gross, and flagrant they may be in the proceedings preliminary thereto, unless they go to the question of jurisdiction. There is no rule better settled than that the writ of habeas corpus cannot be used in place of an appeal and that relief cannot be had in such a proceeding, unless the court Avas without jurisdiction. Ex parte Adams, 42 Okla. Cr. 27, 274 Pac. 485; Ex parte Pike, 50 Okla. Cr. 125, 296 Pac. 529; Ex parte Gardner, 54 Okla. Cr. 294, 19 Pac. (2d) 910. The matters alleged in the petition do not go to tbe jurisdiction of the court and do not render the judgment void.

The Avrit is denied.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    RAY RATH et al. v. STATE.
    No. A-8686.
    Aug. 25, 1934.
    Rehearing Denied Sept. 14, 1934.
    (38 Pac. [2d] 963.)
    Moman Pruiett. and Victor Sniggs, for plaintiffs in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (J. H. Lawson, of counsel), for the State.
   CHAPPELL, J.

This case was prosecuted in the district court of McClain county on an information filed by the county attorney charging plaintiffs in error, hereinafter called defendants, and one Walter Philpot with the crime of grand larceny. At the time of trial, Philpot had not been arrested, but defendants Messic and Rath were tried, found guilty as charged, and the punishment of each fixed by the jury at imprisonment in the state penitentiary for a period of five years.

It is first contended the evidence is insufficient to support the verdict of the jury.

In substance, the evidence of the state was that a set of harness belonging to one Kilgore was stolen in McClain county, taken to the home of defendant Rath and by him removed to the farm of Moman Pruiett, and there secreted. The defense was an alibi.

When all of the facts and circumstances in evidence are considered together, the state’s proof is sufficient to support the verdict of the jury.

It is next contended the court erred in admitting the evidence of the absent witness, Willie Wilson.

It appears from the record this witness testified in the preliminary, but had disappeared shortly before the trial; that the state had a subpoena issued and the sheriff upon investigation learned the witness was in Dallas, Tex. A transcript of the evidence taken at the preliminary and showing opportunity for defendants’ counsel to cross-examine was read to the jury. Under the showing made by the state, this evidence was properly admitted.

It is next contended the court erred in excluding competent testimony.

The particular complaint is that the court erred in refusing to permit defendants to show the witness Willie Wilson had made contradictory statements to that set forth in the transcript of his testimony taken at the preliminary.

Contradictory statements made by any witness are admissible in evidence for the purpose of impeaching him, and it is proper to show statements of the witness made out of court tO' affect his credibility. Sturgis v. State, 2 Okla. Cr. 362, 102 Pac. 57; Smith v. State, 3 Okla. Cr. 629, 108 Pac. 418.

The evidence excluded was not sufficient to cause an acquittal of defendants, but might have influenced the jury in fixing the punishment. For that reason, the judgment will be modified and the punishment of each of the defendants reduced from imprisonment in the state penitentiary for a; period of five years to three years, and, as modified, the cause is affirmed.

DAVENPORT, J., concurs. EDWARDS, P. J., not participating.


text:
    COE THOMPSON v. STATE.
    No. A-8709.
    Sept. 14, 1934.
    (35 Pac. [2d] 971.)
    Robert N. Allen, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (Hester Atherton Gifford, of counsel), for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Bryan county of robbery with firearms and was sentenced to serve a term of 50 years in the state penitentiary.

At the time charged the First State Bank of Bokchito was entered by two persons, and at the point of a pistol the employees of the bank were forced to lie on the floor, the bank- was robbed, and more than $1,400 taken. Defendant was identified by the bank employees and by two customers who entered the bank during the commission of the robbery as the person who held the pistol. Also by one Walters, who on the forenoon of that day, while driving an automobile, was taken into custody by defendant and his companion and held a prisoner. They drove near the town of Bokchito, forced Walters to go under a culvert where they left him, telling, him not to leave or a guard nearby would kill him, and they .then left with his car. Also he was identified by other witnesses who testified they saw defendant leaving the bank with the money immediately after the robbery and by two witnesses as being at a hotel in Durant the night before the robbery, as was his companion in crime, each using a, fictitious name. This is an unusually full and definite identification. The defense is alibi.

The contention is that there is error in admission of testimony for the state. This is directed to several items. In one instance Mrs. Nichols, for the state, testified to seeing defendant at a certain place on the preceding day to the robbery. This tends to contradict the defense of alibi. It appears this witness was an unlearned country woman. Her language is emphatic and somewhat picturesque. When cross-examined she amplified her answers by illustration and remarks, for instance:

“Q. You are Coe Thompson’s enemy, are you not? A. I shore am, and I couldn’t be anything else because he — * * * A. I got a right to be his enemy when my son was murdered in Coe Thompson’s house and was bit and cut all to pieces and turned over to me as bloody as a hog— Q. You are Coe Thompson’s enemy? A. Listen, so help me God, if I had to send him to the penitentiary by swearing a lie to send him there I wouldn’t do it. This is my first time on the stand and .1 wouldn’t swear a lie for anybody— Q. You have never done anything wrong? A. I may have in my life, but I ain’t now, no, sir, I am telling the truth and you can goi down in that country and just get anybody and they will tell you about me — * * * Q. How many children have you had ■ before you were married? A. Not any. I didn’t — •* * * A. No-, sir, I never had any children before I was married and I have lived in that settlement for forty years and have all ways tried to live right and raise my family and you can go down there and find out what I am telling is the truth, if you want to. * * * Q. Is your husband and Coe Thompson friends? A. They should have been. This is the only thing that ever come, between us. My boy getting-killed there in his house. * * * Q. You say that Ben Jennings was with Coe Thompson that morning? A. Yes, sir. * * * Q. About seven o’clock? *•■* * A. I didn’t give the pine-blank time of day. I said it was early in the morning. I didn’t have no time piece down there.”

No- motion was made to strike out any part of this testimony. Some of this testimony was not pertinent, but it is not materially prejudicial.

Another item of which complaint is made is that a witness testified defendant stayed at her hotel at Durant the night before the robbery; that he gave the name of John Farmer and asked her to register him; that she then in his presence wrote his name on the register; that he did not state whether or not he could write. The hotel register showing this was introduced. Defendant contends this is prejudicial, citing DuBois v. State, 22 Okla. Cr. 308, 210 Pac. 1043; Missouri, O. & G. R. Co. v. West, 50 Okla. 521, 151 Pac. 212. It is not claimed the registration was made by defendant. The substance of the objection in the authorities cited is that secondary evidence was introduced. They are not in point here.

Other complaints go to the credibility and the weight •of the testimony of the witnesses. This is within the exclusive province of the jury, and this court will not disturb the judgment where there is ample testimony to support it, although it may conflict with other testimony.

Lastly, it is earnestly urged the punishment assessed is excessive; that a sentence of 50 years amounts to a life sentence and cannot be justified in a case where no person suffered physical injury. The maximum punishment provided for the crime charged is death, section 2543 Okla. .St. 1931, and this court cannot say, as a matter of law, that a punishment fixed at imprisonment of 50 years for a robbery committed under the circumstances here shown is excessive.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    WALTER W. CRAIG v. STATE.
    No. A-8753.
    Sept. 21, 1934.
    (36 Pac. [2d] 60.)

      Walter W. Craig, per se.
    J. Berry King, Atty. Gen., and Smith. C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, filed with this court, on the 5th day of June, 1934, what he styles a petition for appeal. At the time of the filing of the petition, the plaintiff in error was confined in the state penitentiary at McAlester, Okla., and forwarded this paper to the court by mail, and the same was permitted to be filed without a cost deposit. The plaintiff in error was evidently of the opinion that this court could, on the 5th day of June, 1934, grant him an appeal from the judgment and conviction rendered in the district court of Garfield county, on the 21st day of November, 1933, wherein the plaintiff in error was convicted of the crime of passing a bogus check and sentenced to serve a term of five years’ imprisonment, in the state penitentiary.

The purpose of the plaintiff in error filing the petition which he styles a petition for appeal is to procure an order directing the trial court to prepare a transcript of the testimony of the witnesses and to otherwise furnish a complete case-made for the purpose of appeal, at the expense of Garfield county.

Section 3192, O. S. 1931, is as follows:

“In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered: Provided, however, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days. In felony cases the appeal must be taken within six months after the judgment is rendered, and a transcript in both felony and misdemeanor cases must be filed as hereinafter directed.”

This court has repeatedly held that the appeal from a felony conviction must be taken within six months from the date of the conviction, that is, from the date on which the judgment was rendered in the trial court, and that within the six-month period the appellant must serve written. notice upon the court clerk and county attorney, or else serve a summons in error upon the Attorney General, or procure a waiver of the issuance and service of such summons within the six-month period after the rendition of the judgment. Washington v. State, 32 Okla. Cr. 392, 241 Pac. 350.

There is no showing that the notices of appeal were ever served in this case, nor was any waiver of the issuance and service of summons in error procured, nor was the summons in error served upon the Attorney General within six months after the conviction and sentence of this defendant, on the 21st day of November, 1933.

The petition in this case was filed on June 5, 1934, which was more than six months after the date of the conviction and sentence, and this court has repeatedly held that, when the appeal is not filed in this court within the time fixed by the statute, this court does not acquire jurisdiction, and the appeal will be dismissed.- For the reasons stated,- this court is without jurisdiction, and the attempted appeal is dismissed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    Ex parte ARCHIE MOULTON.
    No. A-8754.
    Sept. 28, 1934.
    (36 Pac. [2d] 309.)

      John J. Carney, for petitioner.
    J. Berry King, Atty. Gen., and Jesse L. Ballard, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus. Petitioner alleges he is unlawfully restrained by the warden of the state penitentiary; that he was convicted, in November, 1931, in Oklahoma county, of robbery with firearms; that the verdict returned against petitioner is insufficient on which to base a judgment.

Several contentions are made touching the sufficiency of the verdict. The name of petitioner is Moulton. In the caption of verdict the name is spelled “Moolton.” The verdict then reads:

“We the jury, drawn, empanelled and sworn in the above entitled cause, do upon our oaths find the defendant guilty and fix his punishment at twelve years in the .State Penitentiary at McAlester, Okla.
“F. D. Zeliff, Foreman.”

In a proceeding in habeas corpus it is not enough that the verdict be informal, but it must be so defective and uncertain that it is void for the reason its meaning cannot be determined by reference to the record proper.

The misspelling of the name of defendant in the caption is of no consequence. Whether the name Moulton and Moolton be idem sonans or not, the language of the verdict refers to “the defendant,” and, since he was the only person on trial, there could be no uncertainty or ambiguity.

Section 3095, Okla. Stat. 1931, is in part:

“A general verdict upon a plea of not guilty, is either ‘guilty,’ or ‘not guilty,’ which imports a conviction or acquittal of the offense charged. * * *”

Upon this subject Mr. Bishop says:

“The language of the verdict, being that of ‘lay people’, need not follow the strict rules of pleading, or be otherwise technical. Whatever conveys the idea to the common understanding will suffice and all fair intendments will be made to support it.” 1 Bish. New Cr. Proc. (4th Ed.) §, 1005.

Following the general rule, this court in numerous cases has held that where, from an examination of the verdict and the entire record, the intent and purpose of the jury, as expressed in their verdict, may be clearly ascertained, the verdict will not be held void for uncertainty. Coleman v. State, 16 Okla. Cr. 579, 194 Pac. 282; Walker v. State, 11, Okla. Cr. 339, 127 Pac. 895, 896; Bowlegs v. State, 9 Okla. Cr. 69,130 Pac. 824; Stansell et al. v. State, 30 Okla. Cr. 265, 235 Pac. 937; Nelson v. State, 34 Okla. Cr. 187, 245 Pac. 1009; Jenkins v. State, 44 Okla. Cr. 217, 280 Pac. 477; Horton v. State, 44 Okla. Cr.. 318, 280 Pac. 857.

The writ is denied.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    In re OPINION OF THE JUDGES. In re FRANK CLARK.
    No. A-8712.
    Sept. 28, 1934.
    (36 Pac. [2d] 310.)

      See, also, 55 Okla. Or. 381, 31 Pac. (2d) 159.
   DAVENPORT, J.

The record submitted, to which is attached your request above mentioned, discloses that the said Frank Clark was charged by information in the district court of McCurtain county, Okla., of the crime of murder; that said information was filed in said court on the 28th day of February; that on said, day the defendant entered his plea of guilty, and testimony was taken by the court to ascertain the facts and circumstances of the killing. Under the Constitution and laws of our state, any person convicted of a felony may appeal, within six months from the date the judgment was rendered, to the Criminal Court of Appeals.

From an examination of the records of this court, we find that no appeal has been taken in said case; that the time for defendant to appeal expired September 5, 1934. The record shows that the defendant entered his plea of guilty to' the killing of Mrs. Anna Stiles the 13th day of February, 1934. The testimony in substance shows that defendant for some time had cultivated a piece of land belonging to George Dean, but that for the year 1934 Dean had rented the land to Dan Stiles, the husband of Anna Stiles. On the morning of the killing, Dan Stiles’ boys were plowing in the field, and Dan Stiles and his wife, Anna Stiles, had gone into the field. The first thing that attracted the boys’ attention, they heard a shot and looked and saw their father fall, and immediately started toward him. The defendant then shot Anna Stiles twice. After shooting Mrs. Stiles, he started toward the home of Mr. and Mrs. Stiles. When one of the sons, who was running toward the father and mother, was within about 100 yards! of them, he was fired upon by the defendant, and the defendant then turned and ran.

The record shows that neither Dan nor Anna Stiles had ever had any trouble with the defendant. When the case was) called, the defendant entered his plea. Counsel was appointed by the court and represented the defendant. It has been uniformly held by this court that the statute above quoted contemplates an advisory opinion where the appeal has not been taken in a capital case and where the death penalty has been assessed. The questions presented are, Has there been an observance of all formalities of law essential to the taking of human life? Has the trial, conviction, and sentence of death been in accordance with the laws of our state?

After a careful consideration of the record before us, we find the information sufficiently and correctly charges the crime of murder; that the defendant had the benefit of counsel; that all the formalities of law essential to the infliction of the death penalty have been fully observed. Upon the record before us, we are of the opinion that the defendant, Frank Clark, had been adjudged to suffer the extreme penalty of the law as prescribed by law, and that his conviction and sentence of death has been in accordance with the laws of our state. It was a brutal and deliberate murder, well meriting the extreme penalty assessed by the court.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    FRANK WEATHERMAN v. STATE.
    No. A-8716.
    Sept. 28, 1934.
    (36 Pac. [2d] 306.)
    Anton Koch and L. B. Norton, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. At-ty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the superior court of Okmulgee county of grand larceny, and was sentenced to serve a term of two years and six months in the state penitentiary.

At the time charged there was stolen from the Crowe Coal Company 1,600 pounds of copper wire, value $100. This wire was cut from a line which had been used by the owner as a power line on its leases. After being stolen, it was kept on defendant’s premises for about a week; then defendant, under a fictitious name, sold it to a junk dealer at. Henryetta.

Defendant explains his possession of this wire by testifying he bought it from a man named Smith, about six feet tall, weighed about 175 pounds, who was a stranger to him, and whom he found having car trouble on the highway, driving a model T Ford; that he had not seen him before nor since; that this stranger offered to sell him the wire at a price at which he could make some money; that defendant then borrowed the money from his aunt and bought it. The explanation of possession is in substance one often made by a person suspected of theft when found in possession of stolen property. The description of the mysterious stranger from whom stolen property is claimed to have been acquired, his name, age, appearance, style of dress, mode of travel, and conduct varies with the imagination of the accused. Generally he isi an ordinary looking person, dressed in ordinary clothes; however, at times he is dressed in a dark suit and is wearing a black hat, and! at other times he has on overalls and a cap or dressed in some other manner. His name varies, too. Sometimes it is Brown, sometimes Jones, sometimes, as in the instant case, it is Smith. It is too bad that O. Henry or some other short story writer never made the acquaintance of this perennial figure that for so long has traveled the highways and byways at all times of the day and night. The defendant here being so lacking in imagination that he followed the set formula, we are not surprised the jury did not believe his explanation of possession. Webb et al. v. State, 54 Okla. Cr. 150, 16 Pac. (2d) 261.

It is earnestly contended the evidence is insufficient to' sustain the judgment, for the reason no. one saw defendant take this wire.

Certainly it is essential that the larceny by accused must be proven, but it is not essential that this proof be by testimony of an eyewitness to the taking, for, if such were the law, generally it would be impossible for the state to supply any such proof. As a usual thing, larceny is committed at a, time when the thief believes no one is watching; if he believed he were being observed, certainly he would not commit the larceny. The state, perforce, must rely on circumstantial evidence. The most common circumstance and the most convincing is to find one in the possession of recently stolen property. Such possession creates an inference of fact which, with other incriminating circumstances, is sufficient to sustain a conviction. Luther Worley v. State, 31 Okla. Cr. 253, 238 Pac. 225.

In the instant case, the disposing of the property under a fictitious name and the unreasonable explanation of possession are further circumstances pointing to guilt. When found in the possession of stolen property, the burden is on the possessor to explain. Blumhoff v. State, 29 Okla. Cr. 97, 232 Pac. 862; Buford v. State, 27 Okla Cr. 138, 225 Pac. 568; Whitten v. State, 25 Okla. Cr. 447, 221 Pac. 115.

We find no material error.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    ODELL PERRY v. STATE.
    No. A-8726.
    Sept. 28, 1934.
    (36 Pac. [2d] 308.)

      W. Shearer Brown, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter referred to as defendant, was convicted in the district court of Muskogee county of the crime of robbery with firearms in the robbery of Marion Gaddy and Ruth Farmer, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of 50 years.

The evidence of the state was that Gaddy was manager and Ruth Farmer bookkeeper for the Puritan Drug Company, which company had five or six drug stores in Mus-, kogee; that the week-end receipts of sales were brought to the company’s office above drug store No.. 1; that Gaddy and Farmer received the receipts, amounting to' about $3,-500, and started into the office .to prepare the same for deposit in the bank, when defendant appeared, brandishing a pistol, compelled them to put the money in a pillow slip which defendant carried, and, driving them into a. back room, disappeared; that as he went down the alley he dropped several packages of the money, stopping to pick them up, hurried to an automobile parked nearby, and fled. Gaddy, Farmer, and Ed Terrell, porter in a barber shop nearby, positively identified defendant as the robber. The defense was an alibi.

Defendant, testifying for himself, admitted he had previously been convicted in Oklahoma of five felonies, the first in 1919, and that he was at the time of the trial only 32 years of age. In addition to testimony tending to establish an alibi, defendant produced certain witnesses who testified that they saw a man pass the building at about the time of the robbery; two of them saying they could not identify defendant, and the third saying that he was not the man who passed.

The state in rebuttal established that the reputation for truth and veracity of most of the alibi witnesses was bad.

The main ground relied upon for a reversal of the] judgment is that this evidence is insufficient to sustain the conviction.

There is a direct conflict in the evidence. This court in numerous cases has held that where the evidence is conflicting and there is a basis of fact upon! which' the jury could conclude that defendant was, guilty, it will not substitute its judgment for that of the jury. Ostendorf v. State, 8 Okla. Cr. 362, 128 Pac. 143; Horn v. State, 13 Okla. Cr. 354, 164 Pac. 683; Parks v. State, 18 Okla. Cr., 277, 194 Pac. 281; Birdwell v. State, 22 Okla. Cr. 184, 210 Pac. 558; Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352, 353; Cain v. State, 37 Okla. Cr. 282, 257 Pac. 1114; Keesee v. State, 46 Okla. Cr. 405, 287 Pac. 813.

The state’s evidence is sufficient to support the verdict of the jury.

It is next contended the judgment should be reversed because of prejudicial remarks, by the assistant county attorney.

It is sufficient to state that the argument is not incorporated in the record. The case-made does not contain the verbatim remarks made by any of counsel. The record discloses that during- the argument of the assistant county attorney, counsel for defendant interposed certain objections, most of which were sustained, but one or two of which were overruled, but in no instance did counsel take an exception to the ruling of the trial court.- It is evident counsel was satisfied the court had ruled correctly,- and therefore reserved no question for review as to improper argument. Counsel, having waived the question by failure to except in the lower court, is in no position to. urge such a ground in this court. This court has held that counsel must not only object to- the argument but must save an exception thereto. Irvine v. State, 10 Okla. Cr. 4, 133 Pac. 259; Ellis v. State, 46 Okla. Cr. 251, 287 Pac. 1067; Walters v. State, 55 Okla. Cr. 454, 32 Pac. (2d) 335.

Other assignments of error are mentioned in the brief of counsel for defendant, but in no instance, in presenting these particular assignments, does counsel cite any authorities which hold that the trial court might have erred in any such instance.

Under rule 7, p. vii, 44 Okla. Cr., defendant is required to support his contentions both by argument and citation of authorities.

After a careful examination of the record, the court has reached the conclusion that the evidence, although conflicting, is amply sufficient to support the verdict and judgment, and that there is no substantial merit in any of the alleged errors relied upon as ground for reversal.

The cause is therefore affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    GEORGE E. BATH v. STATE.
    No. A-8780.
    Sept. 28, 1934.
    Rehearing Denied Oct. 19, 1934.
    (38 Pac. [2d] 964.)
    G. H. Giddings, Jr., for plaintiff in error.
    Thé Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter referred to as defendant, was convicted in the county court of Oklahoma county of transportation of intoxicating liquor, and his punishment fixed by the jury at a fine of $50 and imprisonment in the county jail for a period of 30 days.

It appears from the record that certain members of the highway patrol were on duty on Lincoln Highway near the town of Edmond; that defendant was driving the automobile at an excessive rate of speed; that he was accompanied by Bay Burleson, who was drunk and creating a disturbance; that the officers stopped them, and one of them started to make out a ticket of arrest, taking the automobile number and other information; that Burleson jumped out of the car with a pistol in his hand, cursing and threatening the officers, and told them they could not look in the car because they had no search warrant. While one of the officers took Burleson into custody and took his gun away from him, the other officer looked in the back of the car and found a five-gallon keg of whisky.

Timely motion was made to suppress the evidence on the ground that these facts disclosed an unlawful search of defendant’s car. Counsel for defendant in his brief says:

“There is no doubt that this defendant and his companion were arrested, but it takes a wide stretch of imagination to hold that they were under lawful arrest when the search was made.”

It being admitted by defendant that he was under arrest, there can be no doubt that the circumstances disclosed by the evidence were sufficient to authorize the officers to make the arrest, and it was therefore lawful.

No reversible error appearing, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    ROBERT MEEHAN et al. v. STATE.
    No. A-8768.
    Sept. 28, 1934.
    (36 Pac. [2d] 305.)
    E. H. Lookabaugh, for plaintiffs in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Ted R. Fisher, Co. Atty., of Watonga, for the State.
   DAVENPORT, J.

The plaintiffs in error, for convenience hereinafter referred to as the defendants, were convicted of transporting intoxicating liquor, and each sentenced to pay a fine of $100 and to be imprisoned in the county jail for 60 days.

The testimony in this case is conflicting. Several officers were on the road near the town of Hitchcock, and claim to have seen a car stopped by the side of the road near where another car was parked; the officers were driving fast and had passed the car in which the defendants were; they stopped and backed up, and when near the .car one of the officers claim one of the defendants broke a half-gallon jar containing some kind of a fluid; one of the officers got out of the car with a drawn pistol and approached the defendants, and they claim the car which the defendants were in was then searched, and on the running board and on the inside of the car there was broken glass. The officers claim one of the defendants broke the half-gallon jar over the door of the car and that he had cut his hand with the broken glass. It is contended by the officers that the contents of the jar was whisky, as they state they smelled the odor of whisky when then went to defendants’ car.

The defendants, testifying in their own behalf, state the contents of the jar was water. .The defendant Robert Meehan testified he had been plowing that day and had a jug, wrapped with a gnnny sack that he had taken water to the field, and, when he went to get his noon meal, he had taken to the field a half-gallon jar of water; that he plowed until about 3 o’clock in the afternoon, and got in his automobile and drove to Watonga, to Hales Wrecking Shop, as he wanted to get a ring gear for a model T truck; shortly before the officers came along, he picked up Charley Marshall, who was walking up the road. Marshall in his testimony states that he was walking along the -road as testified to by the defendant Meehan, and tells where he had been prior to getting in the car with the defendant. The defendant Marshall states positively there was no whisky in the car as far as he knew, but there was a quart jar in the car which contained water, and that he drank some, of the water from the half-gallon jar.

The defendant Robert Meehan testified there was no whisky in the car, and the quart jar was broken by falling from the seat against the gear shift in the car when he suddenly stopped, and was not broken by Charley Marshall or any one intentionally. This is in substance the testimony.

It is urged by the defendants that the testimony introduced by the state was secured by an illegal search and seizure, and therefore not admissible, citing Hamner v. State, 44 Okla. Cr. 209, 280 Pac. 475; Welch v. State, 41 Okla. Cr. 207, 271 Pac. 172; Taylor v. State, 36 Okla. Cr. 431, 255 Pac. 157; and many other decisions in support of the defendants’ contention that the evidence was procured by an unlawful search and seizure.

These cases have been carefully examined by the court, and we find this distinction, and that is, in the cases relied upon by the defendants, the officers made an attempt to stop the cars in which the defendants were riding, and did not see anything in the car leading them to believe the defendant had whisky. In this case the officers testify that, when they came in sight of the defendants’ car, there was another car standing close to it, and they saw some kind of a vessel pass from one of the parties to another, and, when they backed their car up and got near the car of the defendants, the defendant Charley Marshall broke the half-gallon fruit jar on the door, of the car, and they found glass on the running board of the car and inside the car, and on the door of the car, and the liquid smelled like whisky. The officers further testify that the defendant Marshall’s hand was cut and was bleeding. All of this testimony was contradicted by the defendants.

Following the ruling of this court in McAdams v. State, 30 Okla. Cr. 207, 235 Pac. 241, Ave hold that the testimony in this case was legally secured and was admissible against the defendants.

There is a direct conflict in the testimony, and this court has held so many times that it is not necessary to cite, authorities, that a conflict in the testimony was a question for the jury, and, when the jury had arrived at a verdict where the testimony Avas conflicting, this court Avould not disturb the verdict.

. After carefully considering all the testimony and the circumstances surrounding the arrest and conviction, we believe that the minimum punishment provided by the law is sufficient punishment for these defendants. The judgment of the trial court is modified to a fine of $50 and costs, and confinement in the county jail for a period of 30 days in each case, and, as so modified, the judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    Ex parte OMA GILMORE.
    No. A-8758.
    Sept. 28, 1934.
    (36 Pac. [2d] 304.)

      J. M. Roberts, for petitioner.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus. Petitioner alleges she is unlawfully restrained by the warden of the state penitentiary. That she was convicted in the district court of Craig county of robbery and her punishment fixed at a term of six years in the state penitentiary. That before trial she was held in the jail of Craig county for a period of more than eight months and that she is entitled to credit on her sentence for said period. That the costs assessed in her trial amounted to $172.92, which petitioner was ordered to pay, and that the judgment does not provide for imprisonment in the event of her failure to pay. That she has served the term of six years’ imprisonment if given credit for jail time as set out and if the costs assessed against her be eliminated.

There is no provision of law by which this court, in a proceeding of this kind, may reduce a sentence of imprisonment by a credit of time served in jail before trial. With reference to the costs, section 3166, Okla. Stat. 1931, provides that in the prosecution of criminal actions, in case of conviction,, the costs become a part of the penalty and shall be enforced by imprisonment. It is immaterial that the judgment does not specifically declare that the costs, if not paid, shall be satisfied by imprisonment. It is a part of the judgment, whether expressed therein or not.

The writ is denied.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    OSCAR STACY v. STATE.
    No. A-8735.
    Sept. 28, 1934.
    (36 Pac. [2d] 303.)
    J. A. Rinehart, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, Oscar Stacy, hereinafter called defendant, was convicted in the county court of Canadian county of the offense of unlawful possession of mash fit for distillation into whisky, and the jury being unable to agree upon his punishment left the same to the court, which fixed the punishment at a fine of $50 and 30 days’ imprisonment in the county jail.

This judgment is asked to be reversed on the principal ground that the trial court erred in admitting certain incompetent, irrelevant, and immaterial testimony, the particular complaint being that the trial court permitted the state to introduce, over the objection of defendant, evidence of the finding of whisky, fruit jars smelling of whisky, kegs, and stone jugs on the premises of defendant at the same time his premises were searched by the officers, under a search warrant, which search resulted in the discovery of two barrels of whisky mash, for the possession of which defendant was prosecuted in this case.

It is contended the admission of this evidence was an error prejudicial to the rights of the defendant and deprived Mm of that fair and impartial trial that is guaranteed to him under the Constitution and laws of this state. In support of this contention counsel for defendant cites two cases decided by this court, both of which were appealed from the county court of Canadan county..

The first case relied on is that of Robinson v. State, 36 Okla. Cr. 396, 254 Pac. 986, 987. In that case M. S. Robinson was jointly charged for the unlawful possession of mash with his son, James Robinson. James Robinson was acquitted and M. S. Robinson convicted. He appealed to this court and the judgment was reversed because the trial court permitted, over the objection and exception of defendant’s counsel, the state to prove that James Robinson had sold A. J. McLaren a quart of whisky at about that time. Of course, this testimony was of another transaction. This court said:

“The state’s evidence in rebuttal was not pertinent to any issue and had no connection with the offense charged and was calculated to prejudice the jury against this defendant.”

That record further shows the court refused to admonish the jury that this testimony was not admissible against defendant. Such is not the condition in the case at bar. There was no evidence introduced here of a separate sale of whisky by this defendant which would have been proof of another crime, but that introduced was evidence discovered by a search of the premises at the very time this whisky mash was found. It was a part of the res gestae of. that particular search. One element of this offense is that the mash must be fit for distillation. Certainly evidence that the defendant had a large quantity of half-gallon fruit jars, which had evidently been used as whisky containers, with kegs and jugs on his premises at that time, was some evidence that the mash was fit for distillation. The state had a right to introduce any evidence which bore upon the question, although it might have been circumstantial. The weight of it was for the jury. Here the trial court instructed on circumstantial evidence and even went so far as to withdraw, this particular evidence from the consideration of the jury, which action on the part of the trial court, if prejudicial at all, was against the state, because it was no proof of a separate offense.

The other case relied upon in support of defendant’s contention that this evidence is inadmissible is Borcher v. State, 47 Okla. Cr. 203, 287 Pac. 727.

Since the trial court did instruct on circumstantial evidence in the case at bar, the law contained in the Borcher case cannot be applicable to this case, except as it approves the action of the trial court in instructing on the law' of circumstantial evidence. However, counsel for defendant calls our attention to certain language contained in the body of the opinion in the Borcher case which tends to support his contention in the case at bar. The Borcher case was reversed solely upon the ground the court erred in refusing to give an instruction on circumstantial evidence, where all of the state’s evidence was circumstantial. The language which tends to support defendant’s contention in the case at bar was dictum. Upon the question being briefed and upon more mature deliberation, this court is of the opinion the evidence condemned in the Borcher case was admissible; that it had no tendency to prove a separate offense, but was merely circumstantial evidence tending to support the state’s proof upon the charge of possession of mash.

The admission of the evidence complained of was not prejudicial to defendant, but the action of the trial court in instructing the jury not to consider it was an act favorable to the defendant and prejudicial to the state.

Finding no error in the record requiring a reversal, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    Ex parte JIM SCOTT.
    No. A-8782.
    Sept. 28, 1934.
    (36 Pac. [2d] 302.)
    J. M. Roberts, for petitioner.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. A tty. Gen., for the State.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus. Petitioner alleges he is unlawfully restrained by the warden of the state penitentiary, at Mc-Alester; that he was charged with murder in the district court of Marshall county; that he entered a plea of not guilty, but later withdrew this plea and entered a plea of guilty to manslaughter in the first degree, and was sentenced to serve a term of 100 years in the state penitentiary. He alleges that he had no preliminary on the charge of manslaughter, but does not allege' that he did not have a preliminary on the charge of murder, or that he did not waive a preliminary, nor that he made any motions to quash because he had not had a preliminary. The burden is on him. Robbins v. State, 12 Okla. Cr. 294, 155 Pac. 491.

He further alleges the punishment assessed is excessive. Section 2227, Okla. Stat. 1931, fixes the punishment for manslaughter in the first degree at imprisonment in the state penitentiary for any term not less than four years. Defendant is attempting to use the proceedings by habeas corpus in place of an appeal. This cannot be done.

The writ is denied.

DAVENPORT and CHAPPELL, JJ., concur.


author: PER CURIAM.

text:
    BILL McGREW v. STATE.
    No. A-8769.
    Sept. 28, 1934.
    (36 Pac. [2d] 302.)
    Cook & Bingaman, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of McClain county of transporting intoxicating liquor and was sentenced to pay a fine of $50 and to serve 30 days in the county jail. At the time charged, defendant, in the town of Blanchard, drove an automobile to the front of the post office, stopped and made some insulting remark to the city marshal, who was standing near, who thereupon went to' the car and discovered defendant was intoxicated and abusive. He arrested defendant and ordered him to get out of the car. This defendant refused to do and the marshal attempted to take him from the car and, in doing so, discovered a quart jar partially filled with whisky. The charge in this case resulted. Counsel for defendant do not question the sufficiency of the evidence, blit contend there were prejudicial remarks in the closing argument of the county attorney. Upon' an examination of the entire case, we find no material error. The case is affirmed.