author: ARMSTRONG, J.

text:
    BILL BROWDER v. STATE.
    No. A-3158.
    Opinion Filed April 26, 1919.
    (180 Pac. 570.)
    INTOXICATING LIQUORS — Second Violation of Prohibitory Law-Sufficiency of Evidence. The entire record in 'this case carefully read and considered, and the evidence found — though in conflict and somewhat circumstantial — sufficient to reasonably support the verdict of the jury, and that no prejudicial error intervened in the trial of the case.

      Appeal from District Court, Stephens County; Cham Jones, Judge.

    Bill Browder was convicted of a second violation of the prohibitory liquor laws, and he appeals.
    Affirmed.

      J. B. Wilkinson, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Bill Brow-der, hereinafter styled “defendant,” was prosecuted by information for a second violation of the prohibitory liquor laws, convicted, and sentenced to imprisonment in the county jail of Stephens county for 30 days, and to pay a fine of $50 and costs of this prosecution, and to be confined in said jail until said fine and costs are satisfied as required by law. To reverse the judgment rendered, he prosecutes this appeal.

The material evidence in this case is that, at the time averred in the information, an officer saw the defendant go to a wagon standing loaded in the street in the city of Duncan, and take something from the pocket of the overcoat he was wearing and put it in the said wagon, under some bedclothes in said wagon; that the officer watched the defendant from the time he (defendant) went to the wagon and left, and that the officer was about 30 steps from, but on the opposite side of, the wagon, and that immediately after the defendant walked away from said wagon the officer went to the wagon, lifted up the said bedclothes, and found a pint bottle of whisky. There was also evidence by a witness for the defendant that a party connected with said wagon bought said pint of whisky from an unknown bootlegger whom witness had never seen since, that he paid $1.25 for it, and told the bootlegger to put it in the wagon • that he did not buy the whisky from the defendant.

The defendant did not testify in the case, and upon the conclusion of the evidence requested the court to direct the jury to acquit the defendant, which the court refused to do, and the defendant excepted.

It is insisted that the court erred in not directing a verdict for the defendant, and with this insistence we cannot agree. It is true that the evidence was in conflict and to some extent circumstantial; but we think that there was sufficient evidence to reasonably support the verdict of the jury.

The jury are the exclusive judges of the facts, and when there is evidence sufficient, though the evidence is in conflict, to reasonably sustain the verdict rendered, this court — as held by its unbroken line of decisions — will not disturb the verdict.

The court did not err in overruling the motion for a new trial.

The judgment of the trial court is affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    BILL BROWDER v. STATE.
    No. A-3161.
    Opinion Filed April 28, 1919.
    (180 Pac. 571.)
    1. VENUE — Application for Change of Venue — Affidavits. To entitle .the defendant to a change of venue, the affidavits filed in support thereof — when affidavits are alone relied upon — must set forth, facts showing that a fair and impartial trial in the trial county is improbable.
    2. APPEAL AND ERROR — Review— Change of Venue — Discretion of Trial Court. Under the statute in this state, a change of venue rests in the discretion of the court to jvhich such motion is made, and a refusal to grant a change of venue will not work a ' reversal of a case unless it be clearly shown by the defendant that the court abused its discretion in denying said motion.
    3. APPEAL AND ERRORr — Improper Remarks by County Attorney —Review. To entitle a defendant to have reviewed by this court alleged improper remarks made by a county attorney to the jury, such remarks must not only be objected to, but defendant must go further and also move the court to exclude such remarks from the jury, and to instruct the jury not to consider such remarks for any purpose.
    4. INTOXICATING LIQUORS — Possession with Intent to Sell— Second Offense — Sufficiency of Evidence. A careful examination of the entire record in this ease shows that the evidence establishes the guilt of the defendant beyond a reasonable doubt, and that no prejudicial errors occurred in the trial of the cause.

      Appeal from District Court, Stephens County; Cham Jones, Judge.

    Bill Browder was convicted of a second violation of the prohibitory liquor law, and he. appeals.
    Affirmed.

      J. B. Wilkinson and Bond & Kolb, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Bill Browder, hereinafter designated “defendant,” was by information charged with a second violation .of the prohibitory liquor laws, the second violation charged being for having in his possession 98 quarts of beer and seven quarts of whisky with intent to sell the saline, convicted, and sentenced to be confined in the jail of Stephens county for a term of 90 days and to pay a fine of $200 and the costs of this prosecution, $140, and to be further confined in said jail until said fine and costs are paid as required by law. To reverse the judgment rendered, he prosecutes this appeal.

The defendant moved for a change of venue from Stephens county, upon the ground that he could not obtain a fair and impartial trial in said county, and in support of said motion filed affidavits of eight citizens of said county, to which the state did not file opposing affidavits or do anything to meet “said affidavits.”

The court overruled the motion for a change of venue, and the defendant excepted.

The uncontradicted evidence in the case shows that, previous to the filing of the information in this case, the defendant had been convicted and sentenced in the county court of Stephens county for a violation of the prohibitory liquor laws of this state, and that subsequent thereto 98 quarts of -beer and seven quarts of whisky were, at the time averred in the information in this case, found in the north room off the residence of the defendant, which was situated near the city of Duncan, in said Stephens county.

The defendant did not testify or offer any evidence in the case.

The foregoing being all the evidence in the case, the* defendant requested the court to direct the jury to acquit, the defendant, which was overruled and exception saved.

The county attorney in his' argument to the jury said:

“No one denies that this whisky was found down: there.”

“No witness has denied the evidence of the state.”

“What witness has testified that this whisky was kept: there for an unlawful purpose?”

To each of said statements of the county attorney to the jury, the defendant objected. The court overruled said objections, and the defendant severally excepted.

The defendant, within the time provided by law, moved for a new trial, which was overruled, and exception saved.

The first contention of the defendant is that the court erred in overruling the motion for a change of venue, and' this contention we think without merit. On an application • for a change of venue, the affidavits filed in support there- • of must set forth the facts rendering a fair and impartial trial improbable. Starr v. State, 5 Okla. Cr. 440, 115 Pac. 856; Peters v. U. S., 2 Okla. 116, 33 Pac. 1031.

The affidavits filed in the instant case, tested by the rule of the above-cited cases, are not sufficient. Section 5811, Revised Laws 1910, makes the granting of a change of venue discretionary with the trial court, and this court will not reverse on account of a denial of a change of venue, unless it is made to appear clearly that there has been such abuse' of discretion as to amount practically to a denial of justice. Turner v. State, 4 Okla. Cr. 164, 111 Pac. 988; Smith v. State, 14 Okla. Cr. 348, 171 Pac. 341.

It is difficult to see how denying a change of venue ' in this case amounts to a denial of justice, as certainly no jury in any court in the state would have acquitted the defendant under the undenied evidence in this case, or been more lenient in awarding his punishment than was the jury .which tried this case. If there was any prejudice in the atmosphere surrounding the trial of the instant case, it was certainly not prejudice against the defendánt.

The guilt of the defendant being clearly shown by uncontradicted evidence beyond all reasonable doubt, and the defendant not interposing any defense to the crime charged, relying alone upon alleged technicalities to escape punishment for his wrongdoing, the court did not err in refusing to direct the jury to acquit the defendant.

As the defendant confesses that he did not make a motion to exclude the remarks of which he complains made by the county attorney to the jury, and we are unable to see that said remarks could not have been cured by excluding said remarks and instructing the jury not to consider the same for any purpose, we think the action of the court in overruling objections to said remarks — even if said remarks were improper, which we do not hold— was not prejudicial error.

“Counsel for a defendant must not only object to improper statements of the county attorney in his argument to the jury, but he must go further and move the court to ■■exclude such remarks from the jury.” Sturgis v. State, 2 Okla. Cr. 362, 102 Pac. 57.

The motion for a new trial was properly overruled. The judgment of the trial court is affirmed.

DOYLE, P. J., and MATSON, J., concur.


text:
    W. L. HARDING v. STATE.
    No. A-3009.
    Opinion Filed April 26, 1919.
    (180 Pac. 391.)
    JURY — Additional Jurors — Summons. It is not prejudicial error, when it is necessary to secure additional jurors for the trial of causes which are on call, for the court to order such additional jurors as he thinks proper to he drawn by the clerk and sheriff from the regular jury box of the county, and the jurors so drawn to be summoned by the sheriff.
    TRIAL — Requested Instructions — Given Instructions. Where the instructions as a whole correctly state the law of a case, it is not prejudicial error to refuse requested instructions which are covered by the general instructions given.
    WITNESSES — Cross-Examination — Discrediting Prior Statement — Motive. Cross-examination • of defendant which tends to discredit his statements on direct examination, and which tends also to deevlop a motive on his part for the killing with which lie is charged, is proper.
    4. Record — Error. The entire record in this case fully considered, and found free from error.

      Appeal from Superior Court, Pottawatomie County; Leander G. Pitman, Judge.

    W. L. Harding was convicted of murdér, and he appeals.
    Affirmed.

      Moman Pruiett, W. N. Maben, and Park Wyatt, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, W. L. Harding, hereinafter called defendant, was informed against for the murder of Mont Ballard, convicted, and sentenced to imprisonment in the penitentiarv at MeAlester, in the state of Oklahoma, for the term of his natural life. To reverse the judgment rendered, he prosecutes this appeal.

The material evidence in this case is:

That on Saturday evening of the 24th day of June, 1916, there was a faker vending his wares in the town of Maud, in Pottawatomie county, with the usual crowd of onlookers around him; that the deceased was seen running “tolerably peart” about ten feet in advance of the defendant into the crowd, the defendant pursuing him “at a pretty fast gait” with a six-shooter in his-hand; that the only thing said by the defendant was just before the defendant shot the deceased, which was “Look out!” and the only thing said by the deceased was “Oh!” as he fell shot to death by the defendant, “he has killed me;” that the deceased was in his shirt sleeves with his shirt buttoned up, and that no weapon was found upon his person or about where he fell; that, as soon as the shooting was over, some one in the crowd made an inquiry, as to who did the shooting, and the defendant said, “I am the man that done it;” that some one of the crowd asked who the man was that was shot, and the defendant said, “That is ■the man I was after;” that when running from the defendant the deceased had nothing in his hands; that the deceased was shot in the back, and expired instantly.

There was evidence that the deceased and the defendant lived near each other; that the defendant was a widower; that up to a short time before the deceased was killed the deceased and defendant had been ifriends; and that they had fallen out, and had some difficulties, which mutual friends had tried to adjust, -but failed.

The evidence was in conflict as to what occurred when the deceased and the defendant met in the town of Maud just before the. fatal difficulty, the evidence on the part of the state showing that the defendant with a pistol in his hand asked the deceased what in the hell he was doing there, to which the deceased did not reply; while on the part of defendant there was evidence that the deceased approached the defendant and asked what in hell he was doing there, and the defendant asked him, “Are you going to do what you said you would do?” and that the deceased replied, “You damn son of a bitch, I am going to kill you,” and started off sideways with his hand on his pocket. There was also evidence that the general reputation of the deceased was that he was on overbearing man of violent temper, and that the general reputation of defendant was that he was a law-abiding citizen.

The defendant testified that on the 14th day of June preceding the killing the deceased shot at him in the road, and told him, “You God damn son of a 'bitch, I am going to kill you;” that the defendant endeavored, without success, to appease him, and that the deceased tried to cock his pistol, and could not, and that he said, “I can’t kill you now; but, you damn son of a bitch,.I will to-morrow, or the first time I see you,” and rode off; that he (defend, ant) had known deceased ,eight years, and knew of his various acts of violence on others; that defendant believed, from what he knew of deceased’s character,* that he would carry out any threats he would make; that the deceased went in the direction of the crowd with his hand in his bosom; that defendant thought deceased was going into the crowd for protection to get a chance to kill him; and that he then shot the deceased in the honest belief that it was necessary to do so in his own defense.

On the cross-examination of the defendant it was asked if the deceased did not accuse him of having improper relations with Mrs. Ballard at the time deceased shot at him, down in the road, and if he had not been down there with Mrs. Ballard in the pasture out towards the deceased’s home, and if he did not overtake Mrs. Ballard there at night in company with S. D. White, and say to White, “ ‘'Get to hell away from here; you see that road there, you hit it;’ and you then yourself took Mrs. Ballard on through the woods?” To each of said questions the court sustained an objection.

In the petition in error 27 errors are assigned, but in the brief of defendant it is said:

“Of the many assignments of error set forth in the petition in error filed in this court on behalf of the appellant, we desire to urge in this brief only about six.”

But in his brief he only argues the four following assignments of error:

(1) “That the court erred in summoning and impaneling a special venire by ordering and directing the court clerk and the sheriff to draw from the box a list of jurors to be known as a special venire to complete the regular panel which had, been exhausted, over the protest and objections of the defendants, and after the defendant by his counsel in open court had requested the court to issue an open venire from the county, which request was denied and refused by the court, and to which action of the court in all matters was duly excepted to by the defendant at the time; that the court erred in overruling plaintiff in error’s motion to quash the special panel ordered and drawn by the court from the jury box after the commencement of the trial for the purpose of finishing the panel of jurors to try said cause, to which action of the court the plaintiff in error duly excepted at the time.”

(2) “For misconduct on the part of the county attorney and his assistant and special counsel in interrogating witnesses on incompetent, irrelevant, and immaterial matters which were highly prejudicial to the rights of the defendant, and which did prejudice the defendant in the minds and estimation of the jury, and which influenced the jury in their ultimate determination of this, cause, and particularly any questions and interrogations with reference to any pretended relationship between the plaintiff in error and the wife of the deceased.”

(3) “Refusing to give requested instructions 1, 2, and 3.”

(4) “The court erred in overruling the defendant’s motion for a new trial.”

It is insisted by the defendant that the only legal way to obtain additional jurors required for the trial of this cause was by an open venire, and that the court committed prejudicial error in ordering such additional jurors to be drawn from the jury box by the clerk and sheriff, and to be summoned by the sheriff, and with this insistence we cannot agree.

Section 3692, Revised Laws 1910, in part provides:

“* * * Additional and other drawing of as many names as the court may order may be had at any such time as the court or judge may order for the completion of a grand or petit jury panel, or for the impaneling of a new grand or petit jury, during any term of court, if, in the judgment of the court, the same shall be necessary, or, if, for any cause, the court, in its discretion, shall deem other jurors necessary. The court may excuse or discharge any person drawn and summoned as a grand or petit juror, whenever, in its discretion, such action shall be deemed expedient. * * *”

The court did not commit prejudicial error in the order made to secure the additional jurors required.

We concede that it would have been legal for the court to order the additional jurors required secured by .an open venire, as requested by the defendant, as an “open venire” is. only another legal way of securing additional jurors to that provided by section 3692, supra.

It is also ¡contended by the defendant that the only way jurors can be legally summoned is as provided by chapter 73, Session Laws 1913, p. 113, which provides for service by registered mail, and we are of the opinion that such contention should not be sustained, for the reason that said session law does not repeal the law authorizing the summoning of jurors by legal personal service. To hold to the contrary would in effect destroy the practical operation of securing additional jurors by open venire, and thus would delay trial and unreasonably and unnecessarily impede the trial courts. We are of the opinion that the mode of summoning jurors provided by said session law applies before a court convenes, and not when the court is in session and engaged in the trial of causes.

We are unable to see that the defendant’s motion to-quash the special panel of jurors in the case was founded “on a material departure from the forms prescribed by law, in respect to the drawing and -the return of the jury, or on the intentional omission of the sheriff to summon one or more of the jurors drawn, from which the defendant has suffered material prejudice,” and therefore the court did not err in overruling said motion. Section 5482, Rev. Laws 1910. “When an objection to the panel is purely technical and does not-affect the substantial rights of the defendant, such challenge should be overruled.” Malignon v. Territory, 8 Okla. 439, 58 Pac. 505.

The defendant complains of alleged improper conduct on the part of the county attorney in the cross-examination of the defendant’s witness Flusher, but, as no objection was made or exception saved in regard to said cross-examination of said witness, we will not review the same.

The defendant also complains of further alleged improper conduct of the county attorney in the cross-examination of the defendant by asking the defendant questions alleged not to be germane to' his direct- examination, and because said questions tended to show a motive for the commission of the crime charged, which had not been shown by the evidence for the state — illicit relations of the wife of the deceased and the defendant — and to thus wrongfully prejudice the jury against the defendant, notwithstanding the court sustained objections to said cross-examination complained of.

We think that said cross-examination was proper, as the answers thereto might have tended to prove a motive for the crime, and also to discredit the defendant, and the court would not have erred had he overruled the objections to said questions and required the same to be answered.

The defendant in support of his contention of said alleged improper conduct on the part of the county attorney cites and relies upon Hager v. State, 10 Okla. Cr. 9, 133 Pac. 263, and Watson v. State, 7 Okla. Cr. 590, 124 Pac. 1101, which said cases, under the evidence in this case, are not in point. The county attorney was not guilty of improper conduct in his said cross-examination of the defendant.

We have carefully examined the requested instructions which were refused by the court, but modified and given, and think that the instructions given, including the modified requested instructions, fairly state the law of the case, and if we eliminate the requested instructions as modified and given, the general instructions of the court practically cover the instructions requested, and that, therefore the court did not err in refusing to give said requested instructions.

We are of the opinion that the motion in arrest of judgment and the motion for new trial were each without merit, and properly overruled.

The judgment of the trial court is therefore affirmed.

DOYLE, P. J., and MATSON, J„ concur.


author: MATSON, J.

text:
    WALTER WILLIAMS v. STATE.
    No. A-2793.
    Opinion Filed May 3, 1919.
    (180 Pac. 559.)
    1 INDICTMENT AND INFORMATION — Single Offense. The indictment or information must charge the defendant with but one’ offense. In this state, 1ho defendant may not be placed upon trial for two offenses at the same time.
    2. APPEAL AND ERROR — Trial on Two Distinct Offenses — Reversal — Fair and Impartial Trial. Where it is clear from the information, tine evidence, the verdict, and judgment that the defendant was called upon to defend against two separate and distinct. offenses charged against him, over his repeated objections and exceptions, this court will not permit a conviction under such circumstances to stand unreversed, for the reason that such a conviction does not afford the defendant that fair and impartial trial according to the forms of law guaranteed to him by the Constitution and statutes of ibis state.

      Appeal from District Court, Seminole County; Tom D. McKeown, Judge.

    Walter Williams was convicted of a felony, and sentenced to serve a term of confinement in the state penitentiary for the term oif one year and one day, and he appeals.
    Reversed and remanded.

      k. C. Roland, George Outeelt, and J. L. Emerick, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

Walter Williams was convicted in the district court of Seminole County under an information based on the provisions of section 2336, Revised Laws 1910, and was sentenced to serve a term of one year and one day in the state penitentiary. From this judgment of conviction, he has appealed to this court, and asks that the same be reversed for numerous reasons, among which is that he was compelled to defend himself against two separate and distinct crimes charged in the information, in violation of both his constitutional and statutory rights.

The information charged the defendant with having feloniously assaulted, struck, beat, bruised with force likely to cause death, and also that he shot, shot at, and wounded one M. I. Huddleston with a pistol, with the felonious intent to wrongfully, purposely, unlawfully, and feloniously murder the said M. I. Huddleston.

Section 2336, Revised Laws 1910, provides as follows:

“Any person who intentionally and wrongfully shoots, shoots at, or attempts to shoot at another, with any kind of firearm, airgun or other means whatever, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death or in resisting the execution of any legal process, is punishable by imprisonment in the penitentiary not exceeding ten years.”

The defendant interposed a demurrer to the foregoing information based, among other grounds, on the ground that it was duplicitous, in that it charged the defendant with the crime of assault and battery upon the said Huddleston by striking, beating, and wounding the said Huddleston with a pistol with such force as was likely to produce death, and also in that it charged that the defendant shot, shot at, and wounded the said Hud-dleston with a pistol with the wrongful and felonious intent to murder the said Huddleston. The demurrer was overruled by the court, to which ruling the. defendant excepted.

The defendant objected to the introduction of evidence against him on the ground that he was being tried for more than one offense. This motion was also overruled 'by the court, and the defendants excepted.

It is a well-settled- principle of law that the indictment or information must charge the defendant with but one offense. In this state, the defendant may not be placed upon trial for two offenses at the same time. Bonitzer v. State, 4 Okla. Cr. 354; 111 Pac. 980; Tunnard v. State, 5 Okla. Cr. 529, 115 Pac. 603; Wells v. Terr., 1 Okla. Cr. 469, 98 Pac. 483; Cochran v. State, 4 Okla. Cr. 379, 111 Pac. 974.

In this case it cannot be successfully contended that the assault and battery charged in the information and the shooting were but one and the same transaction. The evidence conclusively shows the contrary. If the defendant was guilty of the assault and battery by means of force likely to produce death as charged in the information, the evidence shows that such occurrence took place, if at all, some several minutes before the shooting, and that there was an entire cessation of hostilities between the defendant and the prosecuting witness; that they had been parted and retired to different places, where they remained separated for quite a period of time until the prosecuting wit ness, together with two other persons, all armed with deadly weapons, returned to the place where the defendant then was, and hostilities were then renewed between the defendant and the prosecuting witness in which the alleged shooting took place.

Evidence of both transactions was permitted to go to the jury, and upon which this conviction is based; the jury returning a verdict in the following form:

“We, the jury, drawn, impaneled and sworn in the above-entitled action, do upon our oaths, find the defendant guilty as charged in the information and request the court to assess the punishment.”

It cannot be determined from the form of the verdict whether the jury convicted defendant oif the assault and battery with force likely to produce death as charged in the information, or with shooting the prosecuting witness with intent to kill him as charged in the information.

The defendant called the trial court’s attention to the fact by a demurrer to the information and by his motion to exclude evidence that it was his belief that the allegations of said information were based upon two separate and distinct transactions. While this fact perhaps was not apparent from the face of the information, it did clearly appear before the trial was concluded that there were two distinct offenses, committed at separate and distinct'times alleged in the information. To try the defendant for both of these alleged offenses at one time was clearly in violation of his constitutional and statutory-rights: (1) To be informed of the nature and cause of the accusation against him (section 20, art. 2, Constitution) ; (2) to have the information to be direct and certain as to the offense charged (section 5739, Revised Laws 1910) ; (3) to have the information charge but one offense (section 5741, Revised Laws 1910). In the case of Gracy v. State, 13 Okla. Cr. 643. 166 Pac. 422, this court held that “The defendant may only be required to defend against one offense at a time.”

It is clear from the information, the evidence, and the verdict and judgment, that the defendant in this case was called upon to defend against two separate and dis- . tinct offenses charged against him; that a conviction under such circumstances does not afford the defendant that fair and impartial trial according to the forms of law guaranteed to him by the Constitution of this state.

The court believes that to permit this conviction to stand under the circumstances would be a clear miscarriage of justice, and would require of defendants charged with crime in this state a burden of defense not contemplated by the lawmakers. 'Substantial justice requires that this judgment be reversed, and that the cause be remanded for further proceedings in accordance herewith, to the end that the defendant be not accused and tried of more than one offense by the same accusation and at the same time.

For the reasons stated, the judgment is reversed, and the cause remanded.

DOYLE, P. J., and ARMSTRONG, J., concur.


author: MAT'SON, J.

text:
    WEBB HIGH v. STATE.
    No. A-3152.
    Opinion Filed May 3, 1919.
    (180 Pac. 572.)
    1. TRIAL — Order of Admission of Evidence — Discretion of Trial Court. The order in which evidence is admitted is within the discretion of tlie trial court. Where ,the defendant is charged with the unlawful possession of intoxicating liquors, and certain exhibits of bottles of beer and whisky are offered in evidence by the state, which beer and whisky had been found and seized on premises at a time when nobody was in possession of said premises, it was discretionary with the trial court to permit such exhibits to be introduced, and 'to permit the state to subsequently connect the defendant with the possession of the same.
    2. INTOXICATING LIQUORS — Evidence—Corpus Delicti. Where there is evidence that whisky and beer in unlawful (juautities were found on certain premises searched by officers, and the defendant admitted tlia>fc such premises were his and that the liquor seized was his. and interposed no defense to the prosecution for the unlawful possession of the same, a judgment of conviction will not be disturbed on the ground that there was no sufficient proof of the corpus delicti.

      Appeal from Cotinty Court, Oklahoma County; Wm. H. Zwick, Judge.

    Webb High was convicted of the crime of unlawful possession of intoxicating liquors, and sentenced to pay a fine of $150 and to serve 90 days’ imprisonment in the county jail, and he appeals.
    Judgment affirmed.

      Twyford, Smith & Crowe, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and R. McMillan,. Asst. Atty. Gen., for the State.
   MAT'SON, J.

This is an appeal from the county court of Oklahoma county wherein the defendant, We'bb High, was convicted oif the crime of unlawful possession of intoxicating liquors, and his punishment fixed at a fine of $150- and imprisonment in the county jail for a period of 90 days.

The facts show that two deputy sheriifs on April 4, 1917, searched certain premises at 805 Pennsylvania street in Oklahoma City, located about 100 yards south of the crossing of the Pennsylvania street Joridge over the North Canadian river. At these premises, six bottles of beer were found in the house, some on ice and others in a kitchen cabinet. In an outhouse about 50 feet from the house and on the same premises, 17 quart bottles of whisky and 27 half-pint bottles were discovered concealed in sacks, and the door to the outhouses was securely fastened and propped.

There were also found on the premises certain hiding places ór plants, which had evidently been prepared as storing places for intoxicating liquors, but at the time of the raid these plants were empty. Nobody was at home at the time the officers made the raid, but the defendant and one Joe Murray and Mrs. Allie Smith were all arrested and jointly charged with the offense. The trial resulted in the discharge of Mrs. Smith, and the conviction of both Murray and this defendant.

Upon the trial the court permitted to be introduced, over the objection and exception of this defendant, the bottles of whisky and beer found on the premises; it being contended by defendant that a sufficient predicate had not been laid to permit the introduction of this evidence. At the time the exhibits were admitted, the officers had identified them positively as the bottles of beer and whisky found on the premises at 805 Pennsylvania street on April 4, 1917, and that the exhibits were in the same condition, at the time they were admitted as evidence that they were in at the time they were found upon the- premises, and that said exhibits had been in the exclusive possession and under the control of these officers under lock and key during the entire time between the date of the search and the date of the trial. It was contended, however, that there was no evidence at- the time that these exhibits were admitted to connect the defendant with them, but such objection goes merely to the order in which the court permitted the evidence to be introduced. The matter was discretionary to permit the exhibits to be introduced at that time provided the state subsequently, during the progress of' the trial, connected the defendant with the possession of the same. We see no abuse of discretion in permitting these exhibits to be admitted, as subsequently evidence was supplied tending to connect defendant with the possession thereof at the time of their seizure.

It is further - contended that there is no sufficient proof of the corpus delicti of the offense. This contention is without merit, as there is proof positive that whisky and beer in unlawful quantities were found on the premises at.- 805 Pennsylvania street, Oklahoma City, and the defendant admitted that such premises were his, and that the liquor seized was his liquor. No defense was interposed by the defendant that would- justify his acquittal.

The judgment is affirmed.

DOYLE, P. J., and ARMSTRONG, J., concur.


author: DOYLE, P. J.

text:
    S. H. PATE v. STATE.
    No. A-3185.
    Opinion Filed May 3, 1919.
    (180 Pac. 559.)
    INTOXICATING LIQUORS — Possession With Intent to Sell — Sufficiency of Evidence. In a prosecution for possession of intoxicating liquor, the evidence held to sustain the verdict, and that no material error was committed on the trial.

      Appeal from Superior Court, Muskogee County; H. C. Thurman, Judge.

    S.- H. Pate was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.

      W. J. Crump, M. (f. Bailey, and Don M. Crump, for plaintiff in error.
    The Attorney General and R. McMillan, Asst'. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, S. H. Pate, was convicted on a charge that he did have in his possession 85 half-pints of whisky with the intention of selling the came. In accordance with the verdict of the jury, he was sentenced to be confined in the county jail for 60 days and pay a fine of $150. Oh the appeal from the judgment, the only question presented is t'he sufficiency of the evidence to support the verdict.

The evidence shows that defendant was a druggist in the town of Haskell, and lived upstairs over. the drug store; that Officers Hughes, Ledbetter, and Maloney, in serving a search warrant, found the whisky alleged in sacks concealed in some sand in the yard behind the drug store. There were also two or three bushels of empty bottles found near the rear door of the drug store. The rear lot was fenced in by a tight-board fence about eight feet high. The defendant was present when the officers made the search and stated it was not his whisky and that he knew nothing about it.

The officers also testified that the defendant’s drug store had the general reputation of being a place where whisky was sold.

At the close of the testimony for the state, defendant moved the court to advise the jury to return a verdict of acquittal, for the reason that the testimony was insufficient to warrant a conviction. The motion was overruled and exception allowed.

For the defense J. F. Blackman testified that he was familiar with what was known as the Pate drug store, and was there at the time the liquor was found; that there was also a restaurant in the same building, first door north of said drug store, conducted by F. K. Wieser. This was all the testimony on the part of the defense.

Thus it appears that the defendant’s contention that the evidence is insufficient to support the verdict is without merit.

A careful examination of the evidence discloses that defendant had a fair trial and was properly convicted.

The judgment is therefore affirmed.

ARMSTRONG and MATSON, JJ., concur.


author: PER CURIAM.

text:
    J. A. ROSS v. STATE.
    No. A-3062.
    Opinion Filed May 10, 1919.
    (180 Pac. 573.)
    INTOXICATING LIQUORS — Unlawful Transportation — Sufficiency of Evidence. In a prosecution for unlawfully conveying intoxicating liquor, tlie evidence lield sufficient to sustain verdict and judgment of conviction.

      Appeal from County Court, Oklahoma County; W. H. Zwich, Judge.

    J. A. Ross was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.

      S. A. Byers, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst; Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, J. A. Ross, was convicted upon an information charging him with conveying four quarts of whisky from a barn located in the rear of No. 329 West California avenue to the intersection of Grand avenue and Hudson street, Oklahoma City, and in accordance with the verdict of the jury was sentenced to be confined in the county jail for 60 days and to pay a fine of $200.

The evidence, briefly stated, is as follows:

Roy Cogswell testified: That he was a police officer, and, about 4 o’clock in the morning of the 14th day of December, he, with Officer Heep, was standing on the corner of Grand and Hudson, and saw the defendant, Ross, driving along the alley on California. That when he reached the corner of Grand and Hudson, they stopped him, and found four quarts of Nelson whisky. That it was snowing, and the ground was covered with snow to the depth of two or three inches. That they followed the-tracks back to the barn, and there found four more packages of whisky.

The testimony of J. H. Heep, police officer, was substantially the same. This was all the testimony in the case.

Upon an examination of the record, it appears that no exception was taken upon the trial. In defendant’s brief it is urged that the evidence is insufficient to sustain the verdict.

The foregoing statement of the evidence is sufficient to show that the appeal in this case is without merit.

The judgment of-the trial court is therefore affirmed.


text:
    WILL DORSETT v. STATE.
    No. A-3214.
    Opinion Filed May 10, 1919.
    (180 Pac. 557.)
    TRIAL — Argument—Defendant’s Failure to Testify — Mandatory Statute —New Trial. Tbe Code of Criminal Procedure (section 5881, Rey. Laws 1910), i>ro vides: “The person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request, shall not create any presumption against him nor be mentioned on the trial; if commented upon by counsel, it shall be ground for a new trial.”
    ' Held, that this provision is mandatory, and leaves no discretion in the trial court to refuse to grant a new trial upon the application of the defendant, where the prosecuting attorney in his argument violates the terms of the statute.

      Appeal from County Court, Jefferson County; E. L. Dillard, Judge.

    Will Dorsett was convicted of a violation oif the prohibitory liquor law, and he appeals.
    Affirmed.

      Bridges & Vertrees, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall,. Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Will Dorsett, was convicted in the county court of Jefferson County on an information charging that he did have in his possession intoxicating liquor with intent to sell the same, and his punishment fixed at confinement in the county jail for 30 days and a fine of $50. He has appealed from the judgment rendered upon the verdict.

The only assignment of error ’is improper conduct of the county attorney in his closing argument to the jury, wherein he referred to the fact that the defendant had failed to take the witness stand in his own behalf, and error of the court in referring to the fact that the defendant did hot take the witness stand in his own behalf.

The Attorney General has filed a confession of error in part as follows:

“We agree that the assignment of error, under our law, must be well taken. We do not concede that there are no circumstances which could be invoked 'by the defendant’s counsel which would warrant mentioning the fact of the defendant failing to take the witness stand, but such are not the facts in this case.

“The defendant having been charged with the unlawful possession of intoxicating liquors, the unlawful - intent on his part was one of the essential ingredients of the ■offense. In establishing this intent, the county attorney was at liberty to introduce evidence of sales of intoxicating liquors prior to the time of the commission of the oifense for which defendant was being1 tried. This court has expressly held that such evidence is admissible -as tending to • show intent. Rice v. State, 5 Okla. Cr. 70, 113 Pac. 203;, Hill v. State, 3 Okla. Cr. 686, 109 Pac. 291.

“This evidence perhaps was not necessary in order to obtain a conviction; but the defendant’s counsel had a-, right to refer to that fact in his argument, restricting the jury to the consideration only of the evidence of the.unlawful intent involved in that particular transaction.

“The county attorney and the court evidently had confused this class of cases with the rule which excludes evidence of other sales in a trial of a person for selling intoxicating liquors.

“The learned judge was not justified in stating to the jury that the reputation of the defendant could be assailed only by him first' taking the witness stand. This was. manifest error.

If the argument on the part of the. defendant’s counsel was improper and misleading to the jury, it was the duty of the court to stop him and admonish the jury tó disregard the improper statements. If the matter involved the issue of general reputation, the jury could have been told that the state could not attack a defendant’s character unless it be first put in issue by the defendant. In this case the court told the jury that the defendant could not offer evidence of his character except by going on the witness stand himself.

“In view of section 5881, Rev. Laws 1910, and Holmes v. State, 13 Okla. Cr. 113, 162 Pac. 446, the authorities therein cited, we concede, that the judgment in this case will have to be reversed. In the Holmes Case, supra, this court decided that: Section 5881, Rev. Laws 1910, contains two inhibitions. The first is that the failure of the defendant to take the stand in his own behalf shall not ‘be mentioned on the trial.’ The second, that this fact shall not be commented on by the counsel for the state. Held: First, that if counsel comments on the failure of the defendant to take the stand in his behalf, it is mandatory that a new trial be granted; and, second, that the court is not excepted from the inhibition to the effect that the failure of the defendant to take the stand in his behalf shall not ‘be mentioned on the trial,’ and that it is error for the court to refer to such fact in his instructions or otherwise.”

The' record shows that the county attorney asked to have his closing argument taken by the court reporter. The county attorney in his closing argument to the jury said:

“John Vertrees says I had not shown that this de< fendant had not been convicted, that I had not shown that he had a reputation of a bootlegger, when he knows that the only way, and I assume that the county attorney can show those facts, is when the defendant takes the stand himself.”

This was objected to by the defendant’s counsel as in violation of section 5881, Rev. Laws.

The objection was sustained, and the court gave the following instructions:

“Gentlemen of the jury, you are instructed that you are to disregard any reference the county attorney might have made, "because the defendant did not take the stand. It is not evidence and should not be considered.” — Defendant excepts.

The county attorney then moved the court to instruct the jury that the state cannot attack or put in issue the reputation of the defendant, nor show a prior conviction until the defendant first puts his reputation in issue. Whereupon the court gave the following instruction:

“Gentlemen of the jury, the reputation of the defendant cannot be put in issue by the state. The only way it can be put in issue before the jury is by the defendant taking the stand himself” — to which the defendant excepts.

Our Code of Criminal Procedure (section 5881, Rev. Laws) provides:

“In the trial of all indictments, informations, complaints and other proceedings against persons, charged with the commission of a crime, offense or misdemeanor before any court or committing magistrate in this state, the person charged shall at his own request, hut not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trial; if commented upon by counsel, it shall be ground for a new trial.”

In the case of Weinberger v. State, 8 Okla. Cr. 441, 128 Pac. 160, it is said:

“The statute is in accordance with the constitutional guaranty that ‘no person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided.’ The clear intent of the statute is that the jury in determining their verdict shall entirely exclude from their consideration the fact that the defendant did not elect to testify, and any reference by the prosecuting attorney in his address to the jury to the fact that the defendant did not testify, constitutes misconduct, and under the terms of the statute, the trial court has no discretion, but must grant a new trial.”

And see Sturgis v. State, 2 Okla. Cr. 363, 102 Pac. 57; Nowlin v. State, 7 Okla. Cr. 27, 115 Pac. 625, 121 Pac. 791.

It follows that the confession of error is well founded and should be sustained.

The judgment of the lower court is therefore reversed.

ARMSTRONG and MATSON, 33., concur.


text:
    Arthur McAlester v. State.
    No. A-3103.
    Opinion Filed May 10, 1919.
    (180 Pac. 718.)
    1. CRIMINAL LAW — Second Violation of Prohibitory Liquor Law— Former Conviction — Evidence. Pending an appeal to this court from a conviction, where judgment of conviction is suspended, such conviction, until affirmed by this court, is not legal evidence, upon a trial for a second violation of the prohibitory liquor laws, of a former conviction.
    2. SAME. Upon a trial for a second violation of the prohibitory laws, it is prejudicial error to admit in evidence proof of a prior conviction when judgment of such conviction has been appealed to this court, and the execution of the judgment of the conviction legally suspended, and the said appeal is undetermined.
    3. SAME — Sufficiency of Evidence. In a trial for a second violation of the prohibitory liquor laws, where the only evidence of the former violation charged was the conviction of the defendant from which an appeal to this court was taken, the judgment and conviction suspended, and the appeal undetermined, the evidence is insufficient to sustain a conviction, and if is reversible error to overrule a motion for a new trial.
    4. APPEAL AND ERROR — Second Conviction — Reversal. A judgment inflicting additional punishment upon a subsequent conviction will be reversed, where the prior judgment of conviction upon which it. was based has been reversed.

      Appeal from District Court, Stephens County; Cham Jones, Judge.

    Arthur McAlester was convicted of a second violation of the habitual criminal act, and he appeals.
    Reversed and remanded, with instructions.

      J. B. Wilkinson, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error. Arthur McAlester, hereinafter styled defendant, was informed against for a second violation of the prohibitory liquor laws, convicted, and sentenced to imprisonment in the county jail of Stephens county for a period of 30 days, and to pay a fine of $100 and costs of this prosecution. To reverse the judgment rendered, he prosecutes this appeal. *

The uncontradicted evidence is that the defendant was on the 20th day of October, 1916, convicted in the county court of Stephens county for the unlawful possession of intoxicating liquor with the intent to sell the same, and sentenced, and from said judgment and conviction perfected an appeal to this court, and suspended execution of said judgment by execution of a supersedeas bond, and that the said appeal was pending and undetermined in this court at the time of the trial of the instant case; that the defendant objected to- the introduction of the evidence of said former conviction in the county court on the ground that said conviction had not became final, which objection was overruled and excepted to; that the state relied alone on the evidence of said conviction of the said defendant in the said county court for evidence of a former conviction of the prohibitory liquor laws; and that on the 7th day of November, and after the defendant’s conviction in the said county court of Stephens county, the defendant unlawfully sold one quart of alcohol in Stephens county, at the time charged in the information in this case.

The defendant timely moved for a new trial upon the following, together with other, grounds:

“That the verdict is not supported by sufficient evidence; that the court erred in submitting the case to the jury, for the reason that the undisputed proof by the state shows that the defendant has not been finally convicted of the offense of violating the prohibitory liquor laws of this state prior to the unlawful sale alleged in the infortmation-in this case.”

The court overruled the motion for a new trial, and the defendant excepted.

The Attorney General has filed in this case a confession of error on the ground:

“That this court is without jurisdiction to affirm the conviction, for the reason that the former conviction relied upon in the trial of this case has been reversed and ordered dismissed by the Criminal Court oif Appeals in the case of Arthur McAlester, Plaintiff in Error, v. State of Oklahoma, Defendant in Error (No. A-2927) — 15 Okla. Cr. 78, 174 Pac. 1106.”

We think this confession of error is well taken, for the reason that:

“A judgment inflicting additional punishment upon a subsequent conviction will be reversed, when the prior conviction upon which it is based has also been reversed.” 16 Corpus Juris, sec. 3158, p. 1342, and authority there cited.

There are also, in addition to the error confessed by the Attorney General, other equally potent legal reasons why the conviction in this case cannot be allowed to stand —admission of illegal evidence, and overruling the motion for a new trial.

The trial court, against the objection and exception of the defendant, admitted in evidence the record of the former conviction of the defendant in the county court, which was at .the time pending on appeal in this court, and undetermined. Pending the appeal in this court from the judgment of the county court, and which judgment was suspended by the execution of a supersedeas bond, the said conviction was not legal evidence of a prior conviction of the defendant, and the court committed, reversible error in admitting in evidence the record of such conviction, as the judgment had not become final.

In State v. Volmer, 6 Kan. 379 (which was a conviction for a second offense of selling intoxicating liquors), it is said:

"The defendant had been convicted of the first offense in the justice’s court before the second was committed, and therefore was, and continues to be, liable to the increased penalty attached to the commission óf a second offense, provided said conviction shall not finally be found to be erroneous.

“But said conviction had been appealed from, and therefore suspended at the time of the trial in this case. The admission of the same in evidence was erroneous; and for that reason the judgment in this case must be reversed, and the cause remanded for a new trial.”

“Since the word ‘conviction,’ when made the ground of some disability or special penalty, means a final adjudication by judgment, in the jurisdiction where it is necessary for a conviction to precede the commission of the second or subsequent offense, in order to inflict the enhanced penalty for a second conviction, it has been held that sentence must be pronounced on former conviction, and the judgment thereon must become final.” Corpus Juris, vol. 16, sec. 3155, p. 1341.

“When conviction is made the ground of some disability or special penalty, a final adjudication by judgment is essential.” Com. v. Miller, 6 Pa. Super. Ct. 35.

In Commonwealth v. McDermott, 224 Pa. 363, 73 Atl. 427, 24 L. R. A. (N. S.) 431, it is said:

“The word ‘conviction’ has a popular and legal meaning. In common parlance a verdict of' guilty is said to be. a conviction (Smith v. Com., 14 S. & R. 69; Wilmoth v. Hensel, 151 Pa. 200 [25 Atl. 86, 31 Am. St. Rep. 738] ; and this popular meaning has been given to it when rights other than those of the one who has. been found guilty have been before the courts. * * *' But a very different situation is presented when one is confronted with * * * a statute” which “makes his alleged reputatio-n” of the offense “a distinct crime, for which, upon conviction of it, severer penalties are to be imposed. In such -a case the word ‘conviction’ must be given its strict legal meaning of judgment on a plea or verdict of guilty. The severer penalty is imposed by the Legislature because that imposed for the first offense was ineffectual. The second offense, carrying with it severer penalties, is therefore not committed in law until there has been judgment for the first. ‘When a statute makes a second offense felony, or subject to a greater punishment than the first, it is always implied that such second offense ought to be committed after a conviction for the first; for the gentler method shall first be tried, which, perhaps, may prove effectual.’ Hawkins’ Pleas of the Crown, c. 40, sec. 3.”

In White v. Commonwealth, 79 Va. 611, it is said:

“Probably, in a prosecution alleging, as in this case, a former conviction, and where the statute imposes an increased penalty for each succeeding offense, and when the alleged prior conviction and judgment thereon is held for review on writ of error in the court of last resort, it would be safer and more in consonance with a liberal and just view of the rights of the citizen to hold * * * that pending the alleged former conviction in the appellate tribunal there is wanting that final judicial sentence essential to constitute conviction. In such case it is apparent that, if the judgment of the appellate court snould be one of reversal, nothing would be left as the basis of a second prosecution alleging a former .conviction.

“Quaere — In a prosecution alleging a former conviction do not the words ‘former conviction’ denote ‘final judgment’; and can they be predicated on a suspended judgment?”

The wisdom of the reasoning of the -learned judge writing the opinion in the case of White v. Commonwealth, supra, is well illustrated by the instant case, as the onlv evidence that the state offered to show a former conviction of the defendant was the record of the county court of a case against him, which case was then on appeal to this court and which said case was subsequent to the trial in this case, reversed and dismissed (15 Okla. Cr. 78, 175 Pac. 1106), and therefore, as said in White v. Commonwealth, supra, “nothing was left as the basis of a second prosecution alleging a former conviction,” thus presenting in fact a condition which was suggested by the learned judge in said cited case as might arise, and that therefore it would be safer and more in consonance with a liberal and just view of the rights of the citizen that pending the alleged former conviction in the appellate tribunal there is wanting that final judicial sentence essential to constitute conviction.

In short, the trial court admitted evidence as evidence of a former conviction which this court subsequently held not a legal conviction. 15 Okla. Cr. 78, 174 Pac. 1106.

We are of the opinion that there was no legal evidence of a former conviction of the defendant for a violation of the prohibitory liquor laws, and hence the verdict of the jury was not supported by legal evidence, and that the court committed reversible error in overruling the motion for a new trial. Benson v. State, 10 Okla. Cr. 16, 133 Pac. 271.

On September 28, 1918, after the trial in this case, this court reversed the conviction of the defendant by said county court, the former conviction upon which this prosecution was founded, and dismissed the case. McAlester v. State, 15 Okla. Cr. 78, 174 Pac. 1106. It therefore logically follows that the defendant cannot on another trial be legally convicted of a second violation of the intoxicating liquor laws as charged in the information in this case.

The judgment of the trial court is reversed, and the cause remanded, with instructions to proceed in accordance with the views expressed in this opinion.

DOYLE, P. J., and MATSON, J, concur.