text:
    T. N. FRENCH v. STATE.
    No. A-5877.
    Opinion Filed July 30, 1927.
    (259 Pac. 162.)
    Arrington & Evans, for plaintiff in error.
    J. T. McIntosh, for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the superior court of Pottawatomie county on a charge of receiving deposits in an insolvent bank, with knowledge of its insolvency, and was sentenced to serve a term of 3% years in the state penitentiary and to pay a fine of $1,000.

The charging part of the information is as follows:

“* * * The above-named T. N. French, * * * then and there being, did then and there unlawfully, knowingly, willfully, feloniously, intentionally, and wrongfully commit the crime of receiving deposits in an insolvent bank in the manner and form as follows, to wit: That is to say, the said defendant, T. N. French, being then and there a director and president of the Security State Bank of Wanette, a corporation duly organized and existing under and by virtue of the laws of the state_ of Oklahoma, engaged in transacting a general banking business at Wanette, Pottawatomie county, state of Oklahoma, did then and there, in said county and state, as such officers and directors of said bank, unlawfully, willfully, and feloniously receive and accept on deposit in said bank, * * * the sum of $155.61 in money, bank bills, bank notes, United States treasury notes, gold and silver certificates, currency, bills, checks, and drafts, the personal property of D. P. Kessler, when said bank was insolvent, the said defendant * * * then and there knew said bank was insolvent, contrary,” etc.

Two assignments of error are argued in the briefs: First. That the transaction upon Which the charge is predicated was not a deposit, within the meaning of the law. Second. Error in the admission of testimony prejudicial to defendant.

Considering the first proposition, the record discloses that one W. H. Dunton had made arrangements with the bank to handle cotton purchases and had put in the bank as a margin against possible loss the sum of $1,630. On December 28, 1923, the day the bank closed, he purchased from a Mr. Ford and a Mr. Kessler four bales of cotton, Ford, the tenant, owning three-fourths and Kessler, the landlord, one-fourth. When this cotton was purchased, Dunton, the buyer, received the cotton tickets from Kessler and Ford, indorsed his name thereon and the price of the cotton per pound, which ticket was then taken to the bank, where the cashier figured the amount due for the four bales of cotton and gave Ford a deposit slip for three-fourths of the proceeds and Kessler a deposit slip for one-fourth, and delivered the deposit slips to Ford and Kessler, respectively. The proceeds due Ford was also entered on his passbook, and the individual ledger sheet was credited with the amount of the proceeds due Kessler, and the account of Dunton Was charged with the aggregate amount. Dunton at the time was overdrawn on his cotton account.

The statute, under which the prosecution was had, is section 4128, Comp. St. 1921, and is:

“No bank shall accept or receive on deposit, with or without interest, any money, bank bills or notes, or United States treasury notes, gold or silver certificates, or currency, or other notes, bills, checks or drafts, when such bank is insolvent; and any officer, director, cashier, manager, member, party or managing party of any bank who shall Icnowingly violate the provisions of this section, or be accessory to or permit or connive at the receiving or accepting of any such deposit, shall be guilty of a felony, and upon conviction thereof shall be punished by a fine not exceeding $5,000 or by imprisonment in the penitentiary not exceeding five years, or by both such fine and imprisonment.”

Section 9584, Comp. St. 1921, defines money; section 7854, defines a note; section 7855 defines a check; and section 7796 defines a bill of exchange.

The contention of defendant is that the cotton tickets do not fall within the definition of a note, bill, check, or draft, as designated in section 4128, supra, and that the court cannot extend the terms of a penal statute beyond its clear legal meaning, citing, Rhodes v. State, 30 Okla. Cr., 2, 234 P. 645; Ex parte Twing, 188 Cal. 261, 204 P. 1083; State v. Eberhart, 106 Wash. 222, 179 P. 853; State v. Hoffman, 110 Wash. 82, 188 P. 25; State v. Bartley, 304 Mo. 58, 263 S. W. 95; Preston v. State, 106 Neb. 848, 184 N. W. 925, and other authorities.

The state contends that the cotton tickets in qfiestion, after being signed by the purchaser, were fairly within the terms of the statute, and were in effect and substance a check by Dunton, payable to the owner and holder of the cotton ticket, and chargeable against his account with the bank. The cotton ticket with the name of the purchaser indorsed thereon, if the naked writing itself is considered, does not fall strictly within the definition of a note, check, bill of exchange, or a draft. Is it so, in legal effect, in the manner in which it was treated by Dunton, Ford, Kessler, and the bank? The courts of several of the states have held that, where the allegation in an indictment or information is made of the accepting of a deposit of money in an insolvent bank, it is not a variance to prove a deposit of a check, which is accepted by the bank as money. Cunningham v. State, 115 Ark. 392, 171 S. W. 885; 12 R. C. L. 496; Skarda v. State, 118 Ark. 176, 175 S. W. 4190, Ann. Cas. 1916E, 586; Ellis v. State, 138 Wis. 513, 119 N. W. 1110; 28 L. R. A. (N. S.) 490, 131 Am. St. Rep. 1022; State v. Salmon, 216 Mo. 466, 115 S. W. 1106.

The cotton ticket or tickets were not in the form of a check, but they showed the weight of the cotton, the price per pound, and bore the signature of the buyer. They were accepted by the bank as an order from the buyer, Dunton, to the bank to pay to the holder of the tickets the amount due thereon and to charge the same against the account of the purchaser. The credits were given the holder of the tickets and a debit made against the account of the buyer. What more would have been done by a check in the ordinary form? The bank by accepting it as cash and giving credit created the relation of debtor and creditor between the bank and depositors. Upon the giving of the credit, the amount was subject to the check of the depositors, and they could have demanded the cash instead of the credit given. We fail to see what difference there is between the transaction that took place than if the bank had passed out on the cotton ticket the cash to the holders of the ticket, and they had immediately passed the same back for deposit in the bank and had received credit therefor. After this ticket had been accepted by the bank as cash and the credit given, it cannot be said that this was merely a deposit of cotton tickets and not a deposit of a check or of cash. In the case of State v. Salmon, supra, the Supreme Court of Missouri said: * * *

“We are unable to reach the conclusion that before this money could be treated as a deposit it was essential, first, that the cashier should count him out the entire amount of money called for in the check for the purpose of allowing him to retain what ready money he desired, .and then return the balance for deposit in the bank. This, in our judgment, would be a useless formality, in fact would have been simply playing and trifling with a purely business transaction. This transaction cannot be treated otherwise than a payment of the check in favor of James Paul. He had the right to demand an actual delivery of the amount of money called for in the check, or he could receive part of it and allow the balance to remain on deposit with the bank, and it is manifest, if James Paul accepted such check in payment of a debt due by the drawer, presented the check to the bank for payment, requesting that they pay him in part cash and give him credit for the remainder, the debt of the man who gave him the check was fully satisfied, and he must be treated as having received a part of the money in cash and the balance he deposited with the bank.”

In the case of Cunningham v. State, supra, the Supreme Court of Arkansas held:

“When the cashier in the instant case received the check he charged the account of Norris with the amount of the check and credited Harris with the amount there.of. It is claimed by counsel for the defendant that because no new money came into the bank that there was mo violation of the statute. The money was in the bank, or was supposed to be there, and the transaction was considered and treated as though the cashier had actually paid over the money to Harris, and that Harris •had immediately redeposited it in the same bank. The transaction was not essentially, different from what it would have been had the whole amount of the check been received from other sources and then deposited in the bank (citing authorities).”

The other assignment of error, i. e., the admitting of incompetent and prejudicial evidence, is directed to testimony given by certain witnesses. J. A. Morphew testified that he was a farmer, had known defendant many years; that his son, John Morphew, was in a hospital at Sulphur and had on deposit $2,080 in the failed bank; that the son had given his father a check for the money. In July before the bank failed in December, this check had been deposited in another bank. That John Neal and 0|. A. Nation, officers of the failed bank, came to witness’ home and told him that they could not pay the check; that to do so would break every bank in the country, and that some of the officers in the bank then went to the son and prevailed on him to permit the money to remain in the bank; that later in September defendant said to witness:

“J. A., I come out to tell you that we reorganized and put in $50,000 new capital and taken out this worthless paper. * * * You can tell the boy that we got the cleanest little bank in the country. * * *”

The witness W. D. Brown testified that he had money in the bank at the time it failed, and that he also owed the bank a note of $250 and had made payments amounting to $143.06 to be credited on the note, which credits had not been made; that this payment was made on December 26, and the bank closed on December 28. A. L. Kienzle testified that he owed the bank a note in the sum of $1,000, that on December 27, the day before the bank closed, he gave a check on his account for $400 to be credited on the note; that this was not credited and the cheek was not charged against his account. It appears that the notes owing by these parties to the bank had been rediscounted, or placed as security at a Kansas City bank, and were not in the possession of the failed bank at the time. Apparently these different items of evidence were offered to prove the insolvency of the bank at the time the deposit was received or just prior to that time, and to show that defendant had knowledge of this condition. There is a line of cases holding that in the trial of one charged with receiving deposits in an insolvent bank, the admitting in evidence of the making of deposits by other persons is inadmissible as tending to prejudice the jury against the accused. Such evidence has no relation to the particular deposit, and the mere making of other deposits at about the same time would not be material unless there is some circumstance connected with such other deposit which tends to cast light on the transaction or tends to prove some material matter. People v. Paisley, 288 Ill. 310, 123 N. E. 573; State v. Munroe, 273 Mo. 341, 201 S. W. 100; State v. Burlingame, 146 Mo. 207, 48 S. W. 72; Brown v. State, 68 Tex. Cr. R. 269, 151 S. W. 561.

The state here contends that the testimony of Morphew, Kienzle, and Brown is admissible as tending to show that in July, before the bank closed in December, it was unable to meet the demand of its creditors in the due and ordinary course of business, was unable to pay the check drawh by one of its depositors, and that this condition was known to the defendant.

In State v. Sattley, 131 Mo. 464, 33 S. W. 41, it is held:

“On the trial of a bank officer for receiving deposits knowing that the bank was insolvent, evidence that depositors demanded their money, and of the refusal of the bank employees to pay them, is admissible, whether or not defendant personally heard the demands, to show the failure of the bank to meet its obligations in the ordinary course of business.”

This court in the case of Appelget et al. v. State, 33 Okla. Cr. 125, 243 P. 251, in defining when a bank is insolvent, said:

“A bank is ‘insolvent’ within the meaning of the criminal law: First, when the actual cash market value of its assets is not equal to its debts and liabilities. Second, when it is unable by pledging its assets and credit to raise, within a reasonable time, the money to meet its debts, obligations, and liabilities, and to pay its depositors in the ordinary course of business.”

It is generally held that, on the trial of an officer of a bank for receiving deposits with knowledge of the insolvency of the bank, other transactions touching the solvency of the bank are admissible although such evidence may tend to establish some other offense. State v. Welty, 65 Wash. 244, 118 P. 9. The items of evidence objected to, even if not admissible under the strict rule of evidence, present no such prejudice as Would require a reversal.

. Counsel for defendant have at considerable length and very forcefully argued that it is not shown by the evidence that defendant knew the bank was insolvent, but does show that he believed that it was solvent and that his entire conduct of its affairs was honest and in an endeavor to save it and prevent the loss to the community that would follow the closing of the bank; that what he did was virtually under the direction of the state banking department, and under all the circumstances shown by the record the acts of defendant were not criminal. However, it is not contended that the evidence is not sufficient to sustain the verdict and judgment. This contention is largely a question of fact and to that extent is for the jury. We have examined the record with care and find that the evidence sustains the verdict and judgment. We find no error that prevented defendant from having a fair trial or that would warrant this court in reversing this case.

The case is affirmed.

DOYLE, P. J., concurring.

DAVENPORT, J., absent, not participating.


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    GEORGE KEEN v. STATE.
    No. A-5896.
    Opinion Filed July 30, 1927.
    (258 Pac. 1051.)
    Frye & Frye, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Sequoyah county on a charge of assault with intent to kill and was sentenced to serve a term of 10 years in the state penitentiary.

This case was tried in May, 1925, and the appeal lodged in this court in November following. No briefs have been filed in support of the appeal, nor was there any appearance for oral argument at the time the case was submitted.

Where an appeal is prosecuted to this court upon a conviction for a felony and no briefs in support of the appeal nor argument made, this court will examine the record for jurisdictional or fundamental errors, and, if none appear and the evidence reasonably supports the verdict, the judgment will be affirmed. We have done this in this case and find that the information properly charges the offense of assault with intent to kill. The record discloses that on January 30, 1925, a quarrel took place near the home of defendant at Vrona, in Sequoyah county, in which defendant with a pistol shot May Keen, his daughter-in-law, through the body. The details of this difficulty are rather sordid, and no purpose would be served by reciting any part of it. The trial was fairly conducted and the evidence reasonably supports the verdict.

The case is affirmed.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


text:
    KELSIE MORRISON v. STATE.
    No. A-5909.
    Opinion Filed July 30, 1927.
    (258 Pac. 1050.)

      J. C. Cornett, J. A. Tillotson, and G. B. Sturgell, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Osage county on a charge of shooting at another with intent to kill and was sentenced to serve a term of 9 years in the state penitentiary.

The record shows that on the day charged, W. W. Thomasson, who was a special officer of the United States, had started from Fairfax to Pawhuska with some federal prisoners. Another car collided with the car he was driving and the prisoners were sent in .by another officer, while Thomasson remained with the car until a service car came. He was working on the car when defendant approached from the rear, with a handkerchief tied over his face, covered Thomasson with a pistol and required him to put his hands up, disarmed him, and about this time another car drove up and defendant covered the driver with a pistol, upon which Thomasson leaped for the pistol which had been taken from him and was lying near by on the ground. A fusillade followed, Thomasson firing seven shots and defendant four.

At the time of arraignment defendant had counsel, but for some reason at the final trial he appeared without counsel and conducted his own defense. As a result none of the alleged errors argued have been properly preserved by exceptions or objections. It has been many times held by this court that errors, to which no exceptions are taken, will not be considered on appeal unless they are jurisdictional or of a fundamental character. Where a jurisdictional question is shown, it is not waived and may be raised at any time before or after trial, and even for the first time in the appellate court or by habeas corpus.

Fundamental error is error which goes to the foundation of the case, or which takes from a defendant a right essential to his defense. Where it appears and justice requires, this court will consider it whether or not exceptions are taken in the court below or whether or not it be assigned as error on appeal. There is no jurisdictional or fundamental question presented by the record here. Errors other than those which are jurisdictional or fundamental in character not objected to nor excepted to, nor presented in the motion for a new trial, are considered waived. This rule is so well settled we cite no authorities in support of it. The appellate court indulges a presumption that, if such error had been called to the attention of the lower court by objection at the time and in the motion for a new trial, the lower court would have corrected the error. This rule obtains whether the defense of an accfised is by counsel or he conducts his own defense.

Out of considerable experience, the writer of this opinion is convinced that the most difficult trial for a presiding judge is a criminal case in which an accused conducts his own defense. A defendant in such case generally has no conception of the orderly proceedings of a trial, the rules of evidence, nor the proper manner to interrogate a witness. To prevent a defendant being prejudiced by this lack of knowledge, the trial court must give him a wide latitude or assist him in his defense. The trial judge in this-case was, with a single exception, more than fair to defendant, ffe permitted him in questioning the witnesses to lead and argue with them, and in his argument to the jury to go entirely outside the record and state facts and conclusions which were in their nature the testimony of the defendant, who had not taken the stand as a witness. The trial court, however, committed error at one point in threatening- to send defendant to jail for misconduct in contradicting and arguing with a witness.

Under the undisputed evidence, however, the offense charged was clearly proved, and there is no miscarriage of justice.

The case is affirmed.

DOYLE, P„ J., concurs.

DAVENPORT, J., absent, not participating.


author: DOYLE, P. J.

text:
    CHARLEY BRINKLEY et al. v. STATE.
    No. A-5977.
    Opinion Filed July 30, 1927.
    (258 Pac. 1071.)
    D. W. Tracy, for plaintiffs in error.
    George F. Short, Atty. Gen., and Leverett Edwards, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiffs in error were charged jointly with having stolen “two horse collars, a pair of bridles, and a pair of harness lines,” the property of Guy Littrell. They were found guilty by a jury which failed to agree on the punishment. A motion for new trial was filed, which was overruled, and the plaintiffs in error were each sentenced to pay a fine of $25. From the judgment they appeal.

The errors assigned question the sufficiency of the evidence to support the verdict and judgment of conviction.

The evidence shows that Guy Littrell was a farmer, living 5 miles north of Elk City; on the morning of the 10th day of March, 1924, he discovered that said property had been stolen from his barn and described the track of an automobile through his field and showing the car went north after leaving his place. Two days later the stolen property was found at the home of the mother of the plaintiffs in error, about 30 miles north of Elk City.

It appears that the car owned by one of the plaintiffs in error was driven by the Littrell place that night.

He further testified that Reuben Brinkley said when they found the property:

“Turn it over, I will swear in any court that it is his stuff.”

It appears that the property was taken on Monday night, Reuben was arrested on Tuesday, and Charley on Wednesday, and it was Wednesday morning when the property was recovered at the home of their mother.

The proof on the part of the defense was to the effect that Oder Allen, who at the time of the trial was serving a term in the penitentiary, left the harness at the place it was found.

Whether an explanation respecting possession of property recently stolen is reasonable or not is ordinarily a question for the jury the same as any other question of fact, and a reasonable explanation will not necessarily lead to an acquittal. The truthfulness of an explanation of possession of stolen property, although uncontradicted, must be determined by the jury, Blumhoff v. State, 29 Okla. Cr. 97, 232 P. 862.

Carefully considering the whole testimony in this case, we have no doubt of its sufficiency to justify the verdict. After a careful examination of the record, we find no prejudicial' error.

The judgment of the lower court is accordingly affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    E. M. A. SNELL v. STATE.
    No. A-5730.
    Opinion Filed July 30, 1927.
    (258 Pac. 1075.)
    Nolen, Crawford & Shaw, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Okfuskee county for the crime of manslaughter in the first degree and was sentenced to serve a term of four years in the state penitentiary.

The case was tried in January, 1925, and the appeal lodged in this court August 6, 1925. No briefs have been filed in support of the appeal, nor was there any appearance for oral argument at the time the case was submitted. We have examined the record with care and find that the information properly charges the offense; the evidence amply sustains the verdict and discloses that all the parties are negroes living in and near the town of Boley.

On the date charged the defendant and Walter Btevens, the deceased, had engaged in a crap game for money at the home of deceased out of which a difficulty arose and at the time defendant drew a pistol but was expelled from the place without a difficulty. Later, he procured a warrant which was placed in the hands of the marshal. Stevens, the deceased, then went to a confectionery where the marshal was proceeding to have the warrant read to him in the presence of defendant, in the course of which a quarrel arose between defendant and deceased, and a shooting affray followed in which defendant shot and killed Stevens.

No prejudicial error is apparent.

The case is affirmed.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


text:
    Ex parte BERT POPE.
    No. A-6711.
    Opinion Filed Aug. 1, 1927.
    (269 Pac. 149.)
    Clay Snodgrass, O. A. Cargill, and Stansell White-side, for petitioner.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for respondent.
   EDWARDS, J.

This is an original application by Bert Pope for a writ of habeas corpus to be admitted to bail.

This cause was submitted on a verified petition with the return showing that petitioner is held by respondent in the county jail of Jackson county under commitment of a magistrate. Bail was denied by the magistrate, and it is shown that the district judge of the district in which Jackson county is a part is outside the state of Oklahoma, and for that reason application to the district judge was not made. With the petition is a transcript of the testimony taken at the preliminary.

The evidence offered by the state tends to show that on the night of July 9, 1927, petitioner and one Denzil Chastain attended a dance near the town of Blair; they were drinking and some disturbance was occasioned by their conduct; when they left the dance Les Bellows, a young man of defective mentality, got in the car and left with them. He was found early the next morning beaten and wounded, from the effects of which he died. Neither petitioner nor Chastain testified. Since the case is yet to be tried, we deem it best that the evidence be not set out nor discussed further.

Where an accused is charged with crime, he is entitled to bail except in a capital case where the proof is evident or the presumption theréof great, in which case the offense is not bailable. Section 2921, Comp. Stat. 1921.

Under this statute, it is well settled that, upon application by habeas corpus to be let to bail after commitment or preliminary for a capital offense, the burden is on the petitioner to show that he is illegally restrained of his liberty. Ex parte Smith, 2 Okla. Cr. 24, 99 P. 893; Ex parte Dykes, 6 Okla. Cr. 162, 117 P. 724; Ex parte Lytton, 31 Okla. Cr. 369, 239 P. 270.

Upon such application for bail, the testimony should be viewed as a whole, and the reasonable inferences and deductions therefrom indulged in the light of all the circumstances proved. Then, unless it appears that there is a reasonable doubt of the guilt of the accused of a capital offense, or if there be a reasonable doubt, yet by the terms of the statute if upon a consideration of the entire testimony the presumption is great, bail should be denied. In re Bollin, 3 Okla. Cr. 726, 109 P. 288; Ex parte Lytton, supra.

Under the record before us, petitioner has not made it appear that the proof is not evident nor the presumption great. Such being the case, petitioner is not entitled to bail.

Writ denied.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


text:
    Ex parte DENZIL CHASTAIN.
    No. A-6712.
    Opinion Filed Aug. 1, 1927
    (259 Pac. 150.)
    Clay Snodgrass, Q. A. Cargill, and Stansell Whiteside, for petitioner.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for respondent.
   EDWARDS, J.

This is a companion case to Ex parte Pope, No. A-6711, 37 Okla. Cr. 366, 259 P. 149, just decided. The petitioner here was jointly charged With the petitioner in that case. All the evidence, facts, and circumstances and the conclusion reached in that case are equally applicable here.

Writ denied.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


text:
    HARRY MATHENY v. STATE.
    No. A-5924.
    Opinion Filed Aug. 5, 1927.
    (259 Pac. 175.)
    'Jas. A. Embry, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, P. J.

Appellant, Harry Matheny, was convicted on a charge that he did have the possession of one-half gallon, of Choc beer, containing more than ocfc -half of 1 per cent, of alcohol with the unlawful intent of selling the same, and in accordance with the verdict of the jury he was sentenced to imprisonment in the county jail for 30 days and to pay a fine of $200.

Of the numerous assignments of error we deem it only necessary to consider the one that the verdict and judgment is not sustained by the evidence.

William Maples, city marshal of Chandler, testified that he arrested appellant on the porch of the Bozarth Restaurant, that appellant saw him coming and picked up a jug on the table and threw it back over his shoulder; that the jug was about half full of what he took to be Choc beer; that Walter Reynolds and John Conley were with appellant, and Reynolds ran aw’ay.

The testimony of Charley Williams, night watchman, is substantially that given by the city marshal.

Constance Wolcott testified that she was a graduate pharmacist, and she .analyzed the contents of the jug and found that its alcoholic contents was 6% per cent.

At the close of the state’s testimony the defendant moved for a directed verdict in the form of a demurrer to the evidence. The motion was denied. Exception allowed.

Mrs. Lula Fulford in behalf of the defendant testified that she conducted a hotel in Chandler next door to the place where the officers arrested this boy; that in, her absence her son rented Walter Reynolds a room; that when she returned Reynolds was swinging this jug around, and she told him to get out of there; he asked for his money and abused her, and she gave him his money and told him she would call the law if he did not leave; that he took the jug and went over to the porch of the Bozarth Restaurant, and appellant went with him.

James Hobbs testified that he saw Walter Reynolds on the Bozarth porch, and that appellant did not have the jug.

As a witness in his own behalf appellant testified that he went to Mrs. Fulford’s hotel to meet his brother, who was coming in from Oklahoma City; that Walter Reynolds came there with this jug of Choc beer; that he heard Mrs. Fulford say she w'ould call the law; that he had no interest in the jug of beer; that he did not drink Choc beer; that he had been drinking whisky that day.

Clara Martin testified that she was the daughter of Mrs. Fulford, and Walter Reynolds brought that jug to the hotel; that her mother gave back the money paid for Reynolds’ room and Reynolds left, taking the jug with him over to Bozarth’s porch. On cross-examination, she stated that Reynolds stayed at the hotel about 20 minutes,-and her mother telephoned for City Marshal Maples.

Another witness testified that he saw Walter Reynolds in front of the Fulford Hotel with a jug in his hand.

Under our Procedure Criminal (section 2754, subd. 6, C. S. 1921) a new trial shall be granted “when the verdict is contrary to law or evidence.” Under this provision, the responsibility of determining whether or not there has been adduced before the jury a sufficient amount of legal and competent evidence to render it safe to allow the verdict to stand is imposed upon the trial court in the first instance, and on appeal upon this court.

The performance of this duty on the part of the court is the exercise of legal discretion and judgment as to the sufficiency of the evidence to overcome the legal presumption of innocence to which every one is entitled who is put upon trial for an offense. Benson v. State, 10 Okla. Cr. 16, 133 P. 271; White v. State, 13 Okla. Cr. 76, 162 P. 232.

On a consideration of the evidence we are of opinion, as a matter of law, it was not sufficient to warrant the submission of the case to the jury either as to possession or as to the intent.

It follows that the judgment should be and the same is hereby reversed.

DAVENPORT and EDWARDS', JJ., concur.


text:
    H. E. ROBARDS v. STATE.
    No. A-5803.
    Opinion Filed Aug. 5, 1927.
    (259 Pac. 166.)

      See, also, 29 Okla. Cr. 86, 89, 233 P. 246, 247.
    J. R. Charlton, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted of robbery with firearms and was sentenced to serve a term of 25 years in the state penitentiary.

The charging part of the information is as follows:

“That the said H. E. Robards, on the day and year aforesaid, in the county and state aforesaid, then and there being, did then and there knowingly, willfully, wrongfully, unlawfully, and feloniously make an assault in and upon one Mary Garlinghouse with a certain weapon, to wit, a 38-caliber revolver, then and there and thereby putting the said Mary Garlinghouse in fear of an immediate injury to her life and person' bythreatening to shoot the said Mary Garlinghouse, and did then and there, by use of said force and putting in fear, unlawfully, willfully, wrongfully, and feloniously, and against the will of her, the said Mary Garlinghouse, take, steal, and carry away from the possession and immediate presence of her, the said Mary Garlinghouse, certain personal property, to wit, the sum of $25, with the unlawful, wrongful, and felonious intent then and there on the part of him, the said H. E. Robards to rob and deprive the said Mary Garlinghouse of said property, and to convert the same to the use and benefit of him, the said EL É. Robards, contrary to the form of the statute, in such cases made and provided, and against the peace and dignity of the state.”

The prosecution was predicated on section 1, c. 85, Session Laws 1923, as follows:

“That any person or persons, who, with the use of any firearms, or any other dangerous weapons, attempts to rob or robs any person or persons, or who robs or attempts to rob any place of business, residence, bank, or other place, inhabited or attended by any person or persons at any time, either day or night, shall be deemed guilty of a felony, and upon conviction therefor shall suffer death, or imprisonment at hard labor in the state penitentiary for a time of not less than twenty-five (25) years, at the discretion of the jury.”

The record discloses that on September 16, 1924, Mrs. Mary Garlinghouse was cashier in sole charge of a bank at Vera, Okla. On that morning defendant with one Morris came into the bank, the only other person present being a Mr. Oglesby. Defendant and Morris, for the purpose of robbery, covered these parties with pistols, compelled Oglesby to lie down on the floor and attempted to force Mrs. Garlinghouse to lie down. Showing remarkable courage, she refused to do this, but resisted defendant and Morris to the utmost. While this was going on Morris took about $50 in silver in the till, put it in a sack, and defendant having discovered that he was seen by persons on the outside suggested to Morris that they leave, and he attempted to compel Mrs. Gar-linghouse to go with him, supposedly to act as a shield. She was forced to the bank door and defendant there shot at some one across the street, and about this time he was shot in the shoulder by some one from the outside. Mrs. Garlinghouse then seized him around the neck, and they scuffled out of the door, where the defendant was arrested. Oglesiby was seriously wounded, and Morris was shot and killed. The money was found in a sack near the bank door. The testimony of defendant is, in effect, a plea of guilty. He testified that he and Morris attempted to rob the bank and details the circumstances substantially the same as the witnesses for the state. No claim is made that the evidence is insufficient to support the verdict.

Defendant contends that section 1, c. 85, Session Laws 1923, supra, is unconstitutional for the reason that the punishment fixed therein is excessive. No authorities in support of this contention are cited, and we assume none can be found. Under section 9, art. 2, of the state Constitution, cruel or unusual punishments are forbidden, but robbery by firearms, where resistance of the person sought to be robbed may be expected to result in death or serious bodily injury at the hands of the one engaged in such crime, is of so serious a nature and consequence that we cannot say, as a matter of law, that the punishment fixed by the statute makes it cruel or unusual, within the meaning of the Constitution. It may be well to state, however, that the Legislature of 1925 amended said act to provide a minimum punishment of 5 years for this class of robbery.

It is also argued that the court erred in denying defendant a continuance upon the amendment to the information by the county attorney after the trial had commenced. The extent of this amendment was to allege the offense to have been committed on September 16 instead of on September 13. At the trial defendant testified that the transaction occurred on September 16. It whs not necessafty that the state amend the information as it is not required that an offense be proved at the exact date charged. It is obvious that the defendant was not prejudiced by this amendment. The amendment is a mere matter of form, such as may properly be made after the jury is impaneled.

It is also insisted that the court should have sustained defendant’s demurrer at the close of the state’s evidence for the reason that there is a variance in that the proof showed the money taken to be the property of the bank while the information alleged defendant robbed Mary Garlinghouse.' The ownership of the money taken was of no particular importance. Proof that it was in the possession or custody of Mary Garlinghouse and that it was taken from her person or immediate presence by force or by putting her in fear constitutes robbery. Her custody or control is sufficient to support the allegation of ownership, although the actual ownership of the money might have been in some third person. Ward v. State, 34 Okla. Cr. 296, 246 P. 664, and authorities there cited. None of the assignments have any merit.

The case is affirmed.

DOYLE, P. J., concurring.

DAVENPORT, J., absent, not participating.


text:
    HARRY ADAMS v. STATE.
    No. A-6028.
    Opinion Filed Aug. 5, 1927.
    (259 Pac. 159.)

      John L. Ward and Wash E. Hudson, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, P. J.

Plaintiff in error, Harry Adams, was convicted on a charge that he did, in Tulsa county, April 27, 1925, sell two pints of whisky to one W. D. Olkenden for the sum of $5.50. The jury failed to agree upon the punishment. Motion for new trial was filed and overruled, and the court sentenced him to be confined in the county jail for 60 days and to pay a fine of $100. The judgment and sentence was rendered October 12, 1925. An appeal therefrom Was taken by petition in error with case-made filed in this court January 23, 1926. No briefs have been filed, and no appearance made in behalf of the plaintiff in error in this court.

An examination of the record discloses that the allegations of the information are supported by the testimony of three witnesses, claiming to have witnessed the sale and delivery of the whisky in question. As a witness in his own behalf, the defendant denied the sale, and was corroborated by another witness, who claimed to be present at the time the officers claimed that the sale was made.

In cases of this kind, we do not consider it the duty of this court to examine the record, to determine whether or not the trial court erred in the admission or rejection of testimony. We have examined the information and the instructions of the court, and we have discovered no error which would warrant a reversal of the judgment.

The judgment must therefore be affirmed; and it is so ordered.

EDWARDS and DAVENPORT, JJ., concur.


text:
    J. B. WOODS v. STATE.
    No. A-5921.
    Opinion Filed Aug. 5, 1927.
    (258 Pac. 816.)
    Jessie H. Dunn, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, P. J.

Appellant was convicted on a charge of unlawfully transporting about two gallons of corn whisky, and in accordance with the verdict of the jury was sentenced to jail for 30 days and to pay a fine of $150.

A number of errors are assigned, but one of which is relied upon for a reversal — that is, that the court erred in overruling the defendant’s motion to strike the evidence of J. D. Ramsey, W. S. Bell, and John Slover, for the reason that the same was obtained by an illegal search and seizure.

The undisputed facts are that appellant, driving towards the town of Davis with a team and wagon, stopped within a mile of the city limits and, leaving his team, came into town and was arrested for being drunk. The officers then proceeded to where the team was standing in the road and searched the wagon and found about two gallons of corn whisky.

When the state rested the defendant moved to strike the testimony on the ground that the same had been illegally obtained, by reason of the search of his wagon in violation of his constitutional rights. The motion was overruled.

As a witness in his own behalf defendant testified that he was a farmer and drove to Wynne wood, and one of the tires of the wagon came off, and he stopped at a water tank and was fixing it when a man came up and said he had some packages he wanted him to haul, and they started along and the man pulled out a quart of whisky and asked him to take a drink, saying that he w'as going on to Sulphur with him; that near Davis the coupling pole on his wagon broke and that was the last thing he could remember until he woke up in jail; that he thinks the man’s name is Qldorn, and he said he lived at Sulphur; that he did not know that there was whisky in the packages.

The officers seeing appellant intoxicated in a public place had a right to arrest him without a warrant, and a person lawfully arrested may, as an incident thereto, be searched; his conveyance may also be searched and intoxicating liquors found in his possession may be seized and used as evidence in a prosecution for violating the provisions of the prohibitory liquor laws.

It follows from what has been said that the court properly overruled the motion to suppress the evidence for the state, also the motion to strike the same.

There being no prejudicial error in the record, the judgment of the court below is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    DAVE WRIGHT v. STATE.
    No. A-5710.
    Opinion Filed Aug. 5, 1927.
    (258 Pac. 1072.)
    J. H. Hays, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Love county on a charge of pointing a pistol at another, and his punishment fixed at a fine of $50 and confinement in the county jail for a period of 3 months.

The defendant and all the witnesses were negroes, living near the negro school of Ran, Love county. Defendant conducted a small store nearby. Several young-negroes engaged in a difficulty near the store, and a bystander went there and informed defendant, and requested him to stop the difficulty. Defendant asked some parties present to look after the store for a few minutes, then went to the scene of the trouble, and there took a pistol from Ralph Williams. The charge is that he then pointed the pistol at Williams. Manse House, one of the participants. in the fight, is the only witness who testified positively that defendant pointed the pistol at Williams. Williams testified:

“* * * A. Well, Manse House and Clem Wright had a dispute over some money. And so Manse House called Clem a God damn liar, and Clem hit Manse, and they started to fight, and Manse’s brother grabbed him, and I says, ‘Cap, I would turn Manse loose.’ I was standing there talking to Manse and Cap, when Dave come down the hill, and he hit me and knocked me down, and taken my gun away from me; so I said, ‘Come on, boys, and let’s go back to the house.’ And so we went.
“Q. Did Dave point the pistol at you? A. When he took my gun, he did.
“Q. Why did he take it? A. I don’t know. ^ * *
“Q. You don’t really know at this time — you would-n’t swear positively that he pointed the gun at you? A. I believe he did. * * *
“Q. Do you know why he took your gun? A. No; I don’t know. I don’t have any idea, unless he thought he might be doing something right.
“Q. Where did you have the gun? A. In my front pocket.
“Q. Did he ask you to throw up your hands ? A. No, sir; just took the gun and walked off. * * *”

Defendant testified:

“Q. State to the jury what caused you to go down there where those boys were. A. Mathers Mimms came up to the store and said those boys was having trouble, and asked me to go and see if I could stop them. I went down there, and in about 21 steps I says, ‘You all cut this out,’ and Ralph says, ‘God damn it.’ I says, ‘Cap, go on to the house,’ and Ralph got his gun, and I took his gun and says, ‘Ralph, go on to the house.’ I never pointed a pistol at him at all.
“Q. You took the pistol; what did you do with it? A. Put it in my pocket.
“ Q. Why did you take the pistol? A. I was afraid he would shoot some one.
“Q. What did you go down there for, Dave? A. Well, Mathers Mimms asked me to.
“Q. Did you go down there to make trouble? A. No, sir.
“Q. Did the boys quit fighting? A. When I took the pistol they did. * * *”

The testimony of several other witnesses supports that of defendant. As we read the record, defendant acted more in the capacity of a peacemaker than as one engaged in the difficulty. The evidence does not sustain the judgment.

The case is reversed and remanded, with instructions to dismiss.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


text:
    W. S. MORTON v. STATE.
    No. A-6048.
    Opinion Filed Aug. 3, 1927.
    (258 Pac. 1070.)
    Mounts & Chamberlin, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, P. J.

The information in this case charges that W. S. Morton, in Tillman county, May 15, 1925, did have the possession of “one pint of whisky, with the unlawful intention then and there on the part of him, the said W. S. Morton, of conveying and transporting said liquors from one point in this state to another point in said state to your informant unknown.” Upon the trial the jury returned a verdict of guilty and fixed his punishment at a fine of $100 and imprisonment in the county jail for 60 days. Motion for new' trial was filed and overruled.

From the judgment entered in pursuance of the verdict he appeals.

It appears that when the case was called for trial the copy of the information furnished to the defendant had no witnesses' names indorsed thereon. For which reason the defendant stated that he was not ready for trial. Thereupon the state offered in evidence the recorded copy of the original information, and asked to substitute a carbon copy in place of the original information, to which the defendant objected, and further objected on the ground that the names of the witnesses were not indorsed on the information. Objections overruled.

E. I. May, night policeman, testified he found the defendant sleeping, lying on the steering wheel of his car; that he searched the car and found some whisky in a jar and arrested the defendant. The sheriff produced the jar and testified that it was in the same condition now as when turned over to him by Mr. May, and it contained about a half pint of whisky.

The state rested, and the defendant demurred- to the evidence and moved the court for an instructed verdict of not guilty. Both of which were overruled.

Objection is made to that part of the second paragraph of the instruction given, which states:

"You are instructed that, under the law of this state, it is unlawful for any person to have in his possession any amount of Whisky with the intent of violating the prohibitory liquor laws of Oklahoma, and under the facts and evidence in this case the question of the amount of intoxicating liquor found in the possession of the defendant is not material, and you are to judge from the evidence facts and circumstances as to whether or not the defendant had any intention of violating the prohibitory liquor laws of the state of Oklahoma.
"Excepted to by the defendant before same is given to the jury and exceptions allowed. P. V. Buch, County Judge.”

The specific charge in the information is possession with the unlawful intent to convey from one point to another. Therefore this instruction is erroneous and should not have been given.

Without considering the other assignments of error, it will suffice to say that the evidence is insufficient to show an intent to convey said liquor.

For the reasons stated, the judgment is reversed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    ALL DAVIS et al. v. STATE.
    No. A-5926.
    Opinion Filed Aug. 5, 1927.
    (258 Pac. 1064.)
    Jas. A. Embry, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, P. J.

The information in this case jointly charged All Davis, Lee McNutt, and Walter Gilbert with the unlawful possession of a still and worm, with the unlawful intent to manufacture spirituous liquors. The defendant Walter Gilbert entered.a plea of guilty. On the trial of appellants, the jury returned a verdict finding them guilty, and fixing the punishment of each at a fine of $50 and imprisonment in jail for 30 days. From the judgment rendered in pursuance of the verdict they appeal, and assign as error the insufficiency of the evidence to sustain the verdict and judgment, but no brief has been filed and no appearance made in behalf of appellants in this court.

The testimony of the sheriff and undersheriff show that on the date alleged, in executing a search warrant, they visited the premises occupied by the defendant Gilbert, and there found a still in operation, and the defendants Gilbert and McNutt were running the still. Later the defendant Davis appeared in a Ford car containing four or five jugs and several bottles. For the defense, the defendant Gilbert testified that he was the owner of the still and was operating it; that the other defendants had nothing to do with it. The defendant Davis testified that he had been asked to take those jugs to the defendant Gilbert’s place; that he had nothing to do with the still.

The defendant McNutt testified that he lived a mile north of Gilbert’s place, and rode down to see Mr. Gilbert, tied his horse to the barn door, and walked down to the road to where Gilbert was making whisky in a ravine, and took Gilbert’s flash light and was looking at the still when the officers came there; that he had never seen a still before, and had never been engaged in operating a still, and had never taken a drink of whisky in his life.

Under the Constitution and the laws, no court, either trial or appellate, has a right to constitute itself a trier of facts, and thus invade the province of the jury and pass on the credibility of the witnesses and the weight of the testimony. The officers swore positively that the defendant McNutt was operating the still when they came upon him. The facts and circumstances in evidence as to the defendant Davis’ connection were sufficient to warrant the submission of the case to the jury.

Finding nothing in the record indicating improper motives or prejudice on the part of the jury, the judgment appealed from is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    W. M. HARGROVE et al. v. STATE.
    No. A-5683.
    Opinion Filed Aug. 5, 1927.
    (258 Pac. 1060.)
    M. D. Hartsell, for plaintiffs in error.
    The Attorney General, for the State.
   DOYLE, P. J.

The information in this case charged that W. M. Hargrove and Florence Moore did willfully and unlawfully keep and maintain a place at 113% N. Main street, Muskogee, where malt, spirituous, vinous, and fermented liquors, to wit, whisky, were received, kept, and possessed by them, the said defendants, to sell, barter, and otherwise furnish such liquors in violation of law to the common nuisance of the public.

On their trial the jury found them guilty as charged, but failed to agree on the punishment.

Motion for new trial was duly filed and overruled, and the court sentenced W. M. Hargrove to pay a fine of $150 and imprisonment in the county jail for 90 days, and sentenced his wife, Florence, to pay a fine of $100 and to be imprisoned in the county jail for 60 days. To reverse the judgment they appeal.

The errors assigned and argued are the overruling of the demurrer to the information and the plea of former jeopardy; that the verdict was contrary to law and to the evidence; errors of the court in the admission and exclusion of evidence; and alleged misconduct of the county attorney in his cross-examination of the defendants.

J. D. Patton testified that on November 13, 1923, accompanied by J. P. Murray, and one Satterfield, he went to the defendants’ place, that upon entering a lady met them in the hallway, Mr. Murray asked her if she had anything to drink, and she replied that she had only one drink left; that she left and returned with one drink of whisky and gave it to him, and he drank it; that a minute or two later five or six officers entered the place and began searching for whisky.

J. P. Murray testified that he paid for the drink of whisky that the woman gave to Mr. Patton, and about that time five or six officers entered the place.

H. L. Watts, deputy sheriff, testified that he was acquainted with the defendants; that they were husband and wife; that he was acquainted with the general reputation of the place as to being a place where intoxicating liquors were kept for sale, and it was bad; that when the officers raided the place he did not know whether they had a search warrant or not.

J. W. Ragsdale, policeman, testified that he was acquainted wtih the reputation of the defendant’s place as being a place where intoxicating liquors were sold, and it was bad; that on several occasions defendants told him it was their private home; that he had searched the place for whisky on an average once a week, but had never found any whisky there.

R. A. Payne, deputy sheriff, testified as to the reputation of the place as did the other witnesses; that he had knowp Hargrove for two or three years and never known of him doing any work for a living.

C. E. Jackson, policeman, testified that he was one of the officers who raided the premises on the date of the alleged sale; that they did not find any intoxicating liquor; that he had searched the place as often as once a week during the time the defendants resided there and had never found any whisky.

R. D. Jones, undersheriff, testified that he was one of the officers raiding the place; that he was with Deputy Sheriff Payne another time, and they found two one-half pints of whisky, and defendants pleaded guilty in the federal court for having these two one-half pints of whisky.

The defendant W. M. Hargrove testified that he had been living there for about six months previous to the raid; that he did not at that time or any other time have in his possession or keep on said premises any whisky; that during all times that the officers testified that they had searched the place they had never found any whisky except at one time when they found two one-half pint bottles, which belonged to a man by the name of Jennings, who was rooming there; that he had been engaged in the business of buying and selling secondhand automobiles for about 2V2 years, that his wife rented one or two of the rooms; that he had never been convicted except in the federal court and paid a fine for possession of whisky.

The testimony of his wife, Florence, was in substance to the same effect; that upon one occasion the officers found two one-half pints of whisky, which belonged to a man by the name of Jennings; that she had paid a fine in the federal court for the possession of the same.

It is urged that the court erred in admitting the following testimony of the state’s witness B. D. Payne over the defendant’s objections:

“Q. Do you know what he does for a livii^g?
“The Court: Objection overruled.
“A. Never knew of him doing anything.
“Q. Have you ever seen him have any living gainful occupation? A. Not to my knowledge.
“Q. About how often you come in contact with him or saw him? A. About every other day along about 1923 —two or three times a week.
“Q. As far as you know, he didn’t Work? A. Never saw him.”

This testimony was clearly prejudicial for the reason that it tended to show that the defendant was a vagrant, and for the further reason that it tended to attack the character of the defendant, as a part of the state’s case in chief. It is the settled rule that the state cannot attack the character of the defendant unless he first puts that in issue by introducing evidence of his good character. Jones v. State, 20 Okla. Cr. 154, 201 P. 664; Whitlow v. State, 24 Okla. Cr. 307, 218 P. 162; Jenkins v. State, 28 Okla. Cr. 249, 230 P. 293.

When the defendant W. M. Hargrove was under cross-examination, the assistant county attorney asked him this question:

“Q. I will ask you if you did not openly and notoriously make brags on the streets of Muskogee to various people at different times that you were building that home from money you made of selling whisky? A. I did not.
“Q. Never made that statement, or that in substance to no person? A. No, sir.”

The record shows that' the defendants had just stood trial upon a charge of selling a drink of whisky to Witness J. P. Murray, and when this case was called for trial the jury were deliberating of their verdict. During the course of this trial the jury returned verdicts finding the defendant W. M. Hargrove not guilty, and the defendant Mrs. Hargrove guilty.

When the defendant Mrs. Hargrove was under cross-examination, the following proceedings were had:

“Q. You testified that you were convicted and pleaded guilty in the federal court above a year ago. Will ask you if you have ever been convicted in this court? A. Haven’t been unless I have been convicted to-day — first time I have been in county court.
“Q. Do you know whether or not the jury convicted you in that case ? A. Don’t know.
“Q. What were you tried for? A. Tried for selling a drink of whisky.
“Q. And you don’t know what the jury did in that case?
“The Court: Weren’t you present when the verdict came in? A. Didn’t hear whether they said I was guilty or not guilty.
“The Court. Let the record show that the state requests the court to inform the defendant, Florence Moore, the jury’s decision and to read the verdict.
“Verdict read, being in words and figures as follows:
“In the County Court within and for Muskogee County, State of Oklahoma.
“ ‘State of Oklahoma, Plaintiff, v. Florence Moore, Defendant. No. 3683.
“‘We, the jury in the above-entitled action, duly impaneled and sworn, upon our oaths find the defendant guilty as charged in the information herein, and fail to agree as to the punishment, and ask the court to fix and assess the punishment.
“ ‘ R. W. Paris, Foreman.’
“Mr. Hartsell: The defendant now renews his objection and furthermore renews objection to court reading verdict in presence of the jury.
“The Court: Did you hear me read that? A. I was talking, and didn’t hear what you said.
“The Court. You didn’t hear me read the verdict — talking and not paying any attention— A. I didn’t hear what you said, guilty or not guilty.
“The Court: Will inform you now that the jury returned a verdict: Found guilty, and left the judgment to the court.
“(By Mr. Lockowitz) Q. After being informed by the court the verdict of the jury in case which you say was for sale of whisky, will ask you to tell this jury if you have ever been convicted in the county court for the violation of the liquor laws of the state? A. Guess I have according to that verdict.”

It is well settled that in a criminal case the limits within which either party may cross-examine upon matters not strictly relevant, but which affect the credibility of the witness, is largely within the discretion of the trial court, and it is quite generally held that, when the defendant testifies on his own behalf, he shall be subject to cross-examination as an ordinary witness on matters affecting his credibility. However, it is the duty of the court to keep such examination within reasonable bounds, and it is an abuse of judicial discretion to allow questions to a witness which are manifestly calculated to create prejudice in the minds of the jury against the witness, and, if he be the defendant, it may influence them to find against him because of such prejudice. It is one thing to honestly ask questions on cross-examination for the purpose of discrediting a witness, and quite another to ask questions of a witness testifying on his own behalf for the purpose of injuring his case in the eyes of the jury and leading them to believe that he was likely to have committed the offense charged. Pickrell v. State, 5 Okla. Cr. 391, 116 P. 957; Gabler v. State, 33 Okla. Cr. 317, 243 P. 981.

Obviously the prosecuting attorney had no reason to expect affirmative answers to the questions asked the defendant W. M. Hargrove. No offer was made to show that said defendant had made such statements against interest, and for this reason the questions objected to were improper, as being well calculated to prejudice the minds of the jury against the defendants.

Under our statute, former conviction may be shown by cross-examination of a witness. However, the proceedings had on cross-examination of the witness Mrs. Hargrove were uncalled for, and the expression of the court, taken in connection with reading the verdict in the presence of the jury, was prejudicial error.

Jurors are easily influenced by the remarks of a trial judge, and the greatest care should be observed that nothing is said that can by any possibility be construed as an expression of the trial judge’s views respecting the merits of a criminal case. Courts cannot be too circumspect in this regard. Pilgrim v. State, 3 Okla. Cr. 49, 104 P. 383.

Mr. Thompson, in his work on Trials, says:

“Sec. 218: Undoubtedly any remark of the presiding judge made in the presence of the jury, which have a tendency to prejudice their minds against the unsuccessful party, will afford ground for a reversal of the judgment.”

We are of opinion for the reasons herein expressed the defendants did not have a fair trial. This conclusion makes unnecessary a discussion of the other errors assigned.

For the reasons stated, the judgments of the lower court herein are reversed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    JOHN FISHER v. STATE.
    No. A-5586.
    Opinion Filed Aug. 8, 1927.
    (259 Pac. 153.)

      Huser & Huser, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, P. J.

The plaintiff in error, John Fisher, was convicted on a charge that he did have in his possession a certain still and still worm, and in accordance with the verdict of the jury was sentenced to pay a fine of $300 and serve a term of 90 days in the county jail. To reverse the judgment he appeals.

The following statement of the material facts will answer the purpose of our consideration of the appeal.

The evidence shows that John Fisher was driving an automobile towards Okemah, and that W. A. Parsons, sheriff, and J. A. Roberts, deputy sheriff, meeting the defendant, searched his car and searched his person; they found a boiler in the back of the car, which was covered by a wagon sheet, and found a jar containing a pint of whisky on his person.

The sheriff testified:

“I told him I was sheriff of Okfuskee county, and if he had no objections I would like to look his car over; he said, ‘All right’ ; that they had no search warrant and no warrant of arrest for him; that he did not remove his pistol from his scabbard on his hip.”
J. A. Roberts testified and identified the boiler and a pipe found in the defendant’s car, and testified, “That is what I think is a w'hisky still.”

Before the impaneling of the jury the defendant moved to suppress the evidence on the ground that the same was obtained by an unlawful search and seizure, which motion was overruled. At the close of the state’s case the defendant moved for a directed verdict of acquittal on the ground that there was no competent testimony offered by the state, which motion was overruled.

Upon the examination of the jurors for qualification, the following question was asked of the juror Miller:

“Mr. Miller, if the evidence in this case should disclose that the officers came up to the defendant and, after disclosing their identity, stated to the defendant that they desired to look over the defendant’s property, and that the defendant replied, ‘All right, go ahead,’ would you consider that evidence as one of the facts to be considered in arriving at whether or not there had been a waiver of the defendant’s constitutional privilege and immunity from unreasonable search and seizure? A. i would consider that a waiver.”

On cross-examination, his answer to a similar question was:

“I would consider it a w'aiver of his constitutional rights.” , ,j

Whereupon the juror was challenged for cause, which challenge was by the court overruled.

Our Constitution guarantees every person accused of crime the right to be tried before a fair and impartial jury. The question as to whether or not the defendant waived his constitutional right was a question of fact to be determined by the jury, and for this reason the juror Miller was clearly incompetent to sit as a juror in the case. It follows that the challenge should have been sustained.

The other questions presented for determination are essentially the same as those considered and determined in the case of Smith v. State, 34 Okla. Cr. 434, 246 P. 1109, and it is argued that, in view of the fact that the sheriff was armed, as the testimony discloses he was, it is the contention of plaintiff in error that he only intended to submit peaceably to the will of the sheriff and not by his actions, directly or indirectly, waive any of his constitutional rights.

We deem it sufficient to say that on the authority of the decision in the Smith Case, the court erred in overruling defendant’s motion for a directed verdict of acquittal.

The judgment is therefore reversed with direction to dismiss.

DAVENPORT, J., concurs.

EDWARDS, J., absent, not participating.


text:
    BILL DEAN et al. v. STATE.
    No. A-5976.
    Opinion Filed Aug. 8, 1927.
    (258 Pac. 812.)

      J. EL Hays, and Matson & Mathers, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiffs in error, Bill Dean and Oscar Jones, were jointly charged, tried, and convicted on an information charging that they did unlawfully transport one-half pint of corn whisky from a place in Love county unknown to a place on Main street in the city of Marietta, and in accordance with the verdict of the jury they were each sentenced to pay a fine of $50 and be confined in the county jail for 30 days. To reverse the judgment they appeal and assign as error that the verdict is contrary to law and the evidence and that the court erred in admitting evidence obtained by an unlawful search of one Ford roadster.

The evidence on the part of the state is to the effect that on the evening of the day alleged a Ford roadster with these two defendants in it was parked on Main street in Marietta; that defendants got out of the car and went into Kelley’s Drug Store; that when they came out of the drug store they were arrested on a warrant and taken to jail. The cause for their arrest does not appear to be connected with this prosecution or other alleged violations of the prohibitory liquor laws.

After they were placed in jail the defendant Dean gave the arresting officer the key to the Ford roadster and asked him to give the key to his brother, Fred Dean. The officer took the key, and some time subsequent to their arrest, while the defendants were in jail, and without a search warrant, searched the car and found a small bottle containing about a half pint of whisky concealed in the back part of the car. Over the defendant’s objections the same was offered in evidence.

The undisputed evidence is that the car belonged to Ed Dean, the father of Bill Dean, and that Ed Dean had the car at Burneyville where he was working on a schoolhouse that day, and that four or five other persons named had all been driving this Ford roadster that day; that at the time of their arrest the defendants were sober.

At the close of the evidence for the state the defendants each moved the court to instruct the jury to find him not guilty. The court overruled the motions.

It appears that the defendant Oscar Jones is a school teacher, and with Dean and others w'as working on a school building at Burneyville that day and rode home to Marietta in the Ford roadster with Bill Dean. He testified that he knew nothing about the bottle, and that if it was in the car he did not know it; that Fred Dean and Raz Barnes parked the car where it was at the time of his arrest.

The defendant Dean testified that he was sitting on the running board of another car when his brother Fred parked the car, and he said to his brother, “Just leave the car here; I want to go and get some ice;” that he took the key from his brother and went into the drug store; that he did not own the bottle or its contents and knew nothing about it; that he gave the key of the car to the officer to give to his brother Fred.

Fred Dean testified that he parked his father’s car in front of the Kelley’s Drug Store; that Raz Barnes was with him; that his brother said he wanted the car and he gave him the key.

Raz Barnes testified that he lived next door to the Deans and was in the car with Fred Dean when it was parked in front of the Kelley’s Drug Store; that Bill Dean and Oscar Jones were there and said they wanted the ear to go and get some ice.

Ed Dean, father of the defendant Dean, testified that he was the owner of the Ford roadster, and he named five persons that had driven the car that day, hauling Water to where they and others were working for him at Burneyville that day.

The evidence tending to show the defendants’ guilt was wholly circumstantial. In such cases the facts proven beyond a reasonable doubt must be such as to exclude every reasonable hypothesis inconsistent with the guilt of the defendants. Carney v. State, 29 Okla. Cr. 83, 232 P. 451; Bass v. State, 29 Okla. Cr. 92, 232 P. 955; England v. State, 29 Okla. Cr. 38, 231 P. 1087. Obviously the evidence in this case does not meet this requirement as to the defendant Jones. He had no ownership or control of the car.

It is also contended that the court improperly admitted, over the objection and exception of the defendant Dean, the beer bottle and contents. Without the testimony of the officers as to the search of the car and without the introduction in evidence of the bottle and contents there was no proof of the corpus delicti.

The right without a search warrant contemporaneously to search persons lawfully arrested, and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, is not to be doubted. The legality of the arrest of the defendants is not questioned, but it is insisted that the search of the car w'as illegal and unauthorized as not made in connection with the charge upon which the warrant of arrest issued, and cannot be justified on the ground that it was a search made incidental to a lawful arrest. In our opinion the evidence was improperly received.

A search which is unlawful when it begins is not made lawful by the discovery that an offense has been committed. Assuming that the defendant Dean did transport the bottle in his car, that fact not being discoverable without a search of the car, the offense of transporting it was not committed in the presence of the officer, and he had no authority to search the car without a search warrant, and such search and seizure cannot be sustained as an incident of the arrest.

It follows that all the evidence in the case was illegally obtained. The judgment of the lower court is therefore reversed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    ED PUGH v. STATE.
    No. A-5917.
    Opinion Filed Aug. 8, 1927.
    (258 Pac. 1051.)
    Hamilton & Hamilton, for plaintiff in error.
    The Attorney General, and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

On information charging that in Hughes county, February 20, 1925, Ed Pugh did sell whisky to one Arch Roberts, he was tried and convicted and was sentenced to pay a fine of $150 and to be confined in jail for 30 days. From the judgment rendered September 26th, an appeal was perfected by petition in error and transcript of the record proper.

No brief has been filed and no appearance made in behalf of plaintiff in error in this court.

An examination of the record fails to disclose any material error. The judgment appealed from is therefore affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    PEARL SMITH v. STATE.
    No. A-5911.
    Opinion Filed Aug. 8, 1927.
    (258 Pac. 1055.)
    O. G. Rollins, for plaintiff in error.
    The Attorney General and Smith €. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

On information charging that in Hughes county, on March 30, 1925, Pearl Smith did sell whisky to one Asa Townsend, she was convicted' and was sentenced to pay a fine of $50 and to confinement in the county jail for 30 days. From the judgment rendered on the verdict an appeal was perfected by filing in this court on November 18, 1925, petition in error with case-made.

No briefs have been filed, and no appearance made in behalf of plaintiff in error in this court.

Asa Townsend testified that on the date alleged he visited appellant’s place of business in Wetumka and there bought a pint of whisky from her, paying therefor $3, and then went before the court of inquiry and testified to the transaction; that his business was conducting a gasoline filling station.

As a witness in her own behalf, Pearl Smith testified that she lived at Wetumka, and that she had never met Asa Townsend until after he had filed this charge against her, and that she did not sell him any whisky.

On cross-examination she admitted her place had been raided lots of times, but nothing had ever been found.

The credibility of the witnesses and the weight and value to be given their testimony is for the determination of the jury, and a verdict sustained by substantial evidence will not be disturbed by this court, unless it appears that the same was given under the influence of passion or prejudice.

Finding no error in the record, the judgment appealed from is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    BURT BUXTON v. STATE.
    No. A-5925.
    Opinion Filed Aug. 8, 1927.
    (258 Pac. 814.)

      Jas. A. Embry, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, P. J.

On information charging that he did have possession of one quart of whisky with the unlawful intent of selling the same, Burt Buxton was tried and convicted, and in accordance with the verdict of the jury was sentenced to imprisonment in the county jail for 30 days and to pay a fine of $200. He prosecutes this appeal for a reversal of the judgment on the ground that the court erred in admitting evidence that was illegally obtained by an unlawful search of his home. When arraigned defendant made a motion to suppress the evidence on the ground that the pretended search warrant did not contain his name or a description of the premises occupied by him as his home. Thereupon the county attorney conceded that the search warrant was void. However, the motion was denied.

The evidence on the part of the state showed that appellant and his family occupied an unfinished house in the town of Davenport; that on the 5th day of July while engaged in shingling his house, two officers came there and searched the house, finding a quart of liquor.

Yes Messer, deputy sheriff and city marshal, testified:

“I and Mr. Caruthers and his boy visited the place. He (appellant) came off the roof with a hammer in his hand. He threw up his hammer and we pulled our guns. We searched the house and found a quart of whisky and a jug containing whisky. I emptied the quart bottle. In a way I considered I had a search warrant, and I arrested him.”

Here the bottle and jug were offered in evidence.

The testimony of John Caruthers, chief of police, is substantially that given by the witness Messer.

All of the evidence w’as admitted over appellant’s objections, and when the state rested there were motions to strike and for a directed verdict, which were overruled.

As a witness in his own behalf appellant testified: That he lived in Bella’s addition to Davenport. That he was shingling his house when the officers came. That one came in the east door and one the west door with guns in their hands. Mr. Caruthers said: “If you move I will kill you.” Two others pulled their pistols, and he begged them not to shoot him. That they searched the trunk, ice box, and everything, and took his quart of whisky.

The testimony of Mrs. Burt Buxton was substantially that as given by her husband.

In Jones v. State, 36 Okla. Cr. 180, 253 P. 310, we said:

“The admitted acts of the officers show that they acted without authority of law, and that all the state’s evidence was procured by an invasion of rights guaranteed by section 30 of the Bill of Rights, and that the same was admitted over the defendant’s objection in violation of section 21 of the Bill of Rights. These sections are guaranties of American liberty and justice, which come to us from the same source as did those equally, but not more greatly, prized, whereby we are guaranteed religious liberty, trial by jury, the right to peaceably assemble, free speech, liberty of the press, and other constitutional safeguards. If the security of the person and the home are not protected by the Constitution, if unreasonable searches and seizures are to be permitted, trial by jury may be denied. If officers may upon suspicion search the persons and the homes of the citizens of our state, the right of the people .to peaceably assemble, to freely speak, write, and publish are in danger.
“It was the boast of Lord Chatham that, though the wind and rain might enter the cottage of the English peasant, the king could not enter.
“In Smith v. State, 34 Okla. Cr. 434, 246 P. 1109, we said': ‘The right of the citizen to occupy and enjoy his home, however mean or humble, free from arbitrary invasion and search, has for centuries been protected by every court in the English speaking world, from Magna Charta down to the present, and is embodied'in every bill of rights defining the limits of governmental power in our own republic. The mere fact that a man is an officer, whether of high or low degree, gives him no more right than is possessed by the ordinary private citizen to enter and search the private premises of another for evidence of crime without a legal warrant procured for that purpose.’ ”

And see Howell v. State, 33 Okla. Cr. 292, 243 P. 997; McClary v. State, 34 Okla. Cr. 403, 246 P. 891.

In Agnello v. United States, 289 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145, the Supreme Court of the United States held:

“When properly invoked, the Fifth Amendment to the Constitution protects every person from incrimination by the use of evidence obtained through search and seizure made in violation of his rights under the Fourth Amendment to the Constitution.”

Mr. Justice Butler, delivering the opinion of the court, said:

“The search of a private dwelling without a warrant is, in itself, unreasonable and abhorrent to our laws. Congress has never passed an act purporting to authorize the search of a house without a warrant. On the other hand, special limitations have been set about the obtaining of search warrants for that purpose. Thus, the National Prohibition Act, approved October 28, 1919 (chapter 85, tit. 2, § 25; 41 Stat. at L. 305, 315; Comp. Stat. § 10138½m, Fed. Stat. Ann. Supp. 1919, p. 215), provides that no search warrant shall issue to search any private dwelling occupied as such unless it is being used for the unlawful sale of intoxicating liquor, or is in part used for business purposes such as store, shop, saloon, restaurant, hotel, or boarding house. And later, to the end that government employees without a warrant shall not invade the homes of the people and violate the privacies of life, Congress made it a criminal offense, punishable by heavy penalties, for any officer, agent or employee of the United States engaged in the enforcement of any law, to search a private dwelling house without a warrant directing such search. Act of November 23, 1921, c. 134, par. 6; 42 Stat. at L. 222, 223; Comp. Stat. § 10184a; Fed. Stat. Ann. Supp. 1921, p. 230. Safeguards similar to the Fourth Amendment are deemed necessary and have been provided in the Constitution or laws of every state of the Union. We think there is no state statute authorizing the search of a house without a warrant; and, in a number of state laws recently enacted for the enforcement of prohibition ir) respect tel intoxicating liquors, there are provisions similar to those in paragraph 25 of the National Prohibition Act. Save in certain cases as incident to arrest, there is no sanction in the decisions of the courts, federal or state, for the search of a private dwelling house without a warrant. Absence of any judicial approval is persuasive authority that it is unlawful. See Entick v. Carrington, 19 How. St. Tr. 1030, 1066. Belief, however well founded that an article sought is concealed in a dwelling house, furnishes no justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause. See Temperani v. United States (C. C. A. 9th) 299 F. 365; United States v. Rembert (D. C.) 284 F. 996, 1000; Connelly v. United States (D. C.) 275 F. 509; McClurg v. Brenton, 123 Iowa 368, 372, 98 N. W. 881, 65 L. R. A. 519, 101 Am. St. Rep. 323; People v. Margolis, 220 Mich. 431, 190 N. W. 306; Childers v. Com., 198 Ky. 848, 250 S. W. 106; State v. Warfield, 184 Wis. 56, 198 N. W. 854.”

It is well settled that the Fourth and Fifth Amendments to the Constitution of the United States apply only to officers and agents of the United States in proceedings under the federal laws, and that they do not apply to the states, nor to proceedings under the laws of the state. However, this court has followed the decisions of the Supreme Court of the United States in construing sections 21 and 30 of the Bill of Rights.

This court has many times held that search of private residence, not coming Within exceptions in Comp. Stat. 1921, § 7013, is illegal. Cosby v. State, 30 Okla. Cr. 405, 236 P. 906; McClure v. State, 31 Okla. Cr. 60, 237 P. 145.

It is a well-settled doctrine in this state that under such circumstances it is not necessary for a person whose premises are being illegally searched to make or express objections thereto to avoid a waiver of his constitutional right. Smith v. State, 34 Okla. Cr. 434, 246 P. 1109; Whitford v. State, 35 Okla. Cr. 187, 249 P. 430; Shockley v. State, 35 Okla. Cr. 437, 251 P. 514.

Because all the evidence offered by the state was obtained illegally, the judgment is reversed, with direction to dismiss.

EDWARDS and DAVENPORT, JJ., concur.


text:
    DUCK POLLARD v. STATE.
    No. A-5918.
    Opinion Filed Aug. 8, 1927.
    (258 Pac. 1049.)
    Hamilton & Hamilton, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gten., for the State.
   DOYLE, P. J.

On information charging that in Hughes county, January 20, 1924, Duck Pollard did sell whisky to Price Hamilton, he was tried and convicted and sentenced to confinement in jail for 45 days and to pay a fine of $300.

No briefs have been filed, nor appearance made in behalf of appellant in this court.

We have examined the record and reach the conclusion that appellant was accorded a fair trial, and that the verdict is amply supported by the evidence.

Finding no material error, the judgment appealed from is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    ANNA CANNARD v. STATE.
    No. A-5919.
    Opinion Filed Aug. 10, 1927.
    (259 Pac. 149.)
    H. T. Church, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, P. J.

Plaintiff in error, Anna Cannard, was tried upon an information charging that she did have in her possession certain intoxicating liquor, to wit, 20 gallons of Choctaw beer, containing- more than one-half of 1 per cent, of alcohol, measured by volume, with the unlawful intent to sell the same. She was found guilty by the jury and her punishment fixed at a fine of $250 and confinement in the county jail for 30 days. From the judgment rendered on the verdict she appealed by filing in this court November 24, 1925, petition in error with case-made.

The errors assigned question the sufficiency of the affidavit and the search warrant issued thereon by which the evidence was secured and the sufficiency of the evidence to sustain a conviction.

The evidence shows that in executing a search warrant officers visited the home of the defendant, about 3 miles east of Tulsa, and found 3 or 4 gallons of Choctaw beer in the house and found a 16-gallon keg full of Choctaw beer in the yard, about 15 feet from the house. The analysis as shown by the testimony of a chemist disclosed that the same contained 4.1 per cent, of alcohol, measured by volume.

As a witness in her own behalf the defendant testified that she owned a tract of land there of about 30 acres, a part of her allotment; that she only made up about 3 gallons of Choctaw beer for her own use, and did not have it there to sell; that she did not know anything about the keg of Choctaw beer that was found in the yard, that she did not put it there.

On cross-examination, she said she did not remember how many times she had been convicted for violating the prohibitory law.

An examination of the affidavit and the search warrant issued thereon and offered in evidence discloses that the affidavit was sufficient and the search warrant properly issued.

Obviously the question of intent was one for the determination of the jury on the issues of fact.

The instructions fairly stated the law applicable to the case. Finding no prejudicial error, the judgment of the lower court is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    RUFF BIRDWELL v. STATE.
    No. A-5898.
    Opinion Filed Aug. 12, 1927.
    (259 Pac. 152.)

      Anglin & Stevenson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

The appellant w!as convicted under an information charging that on February 25, 1924, he unlawfully transported intoxicating liquor from some point unknown to Dilday’s Cafe, on East Main street, in the city of Holdenville, and his punishment fixed at a fine of $50 and confinement in the county jail for 30 days. To reverse the judgment rendered on the verdict he appeals, and he alleges that the verdict is contrary to both the law and the evidence, and that the court erred in overruling his motions to suppress the evidence and to strike the same for the reason that such evidence was obtained by an unlawful search of his person in violation of his constitutional rights.

The state relied for this conviction upon the testimony of the complaining witness, Sunday Narcomy, constable of Yeager township, who testified:

“I saw the defendant go into the cafe; I meant to search him, he ga/ve me a shove, and I grabbed my gun, and he gave me a bottle of whisky, something near one-half pint, it was on his person; that was in Hughes county.”

Cross-examination:

“Q. Did you have any warrant to arrest him? A. No, sir.
“Q. You did not know he had whisky until you searched him? A. No, sir.
“Q. You hit him on the head — cut a gash across his head and it bled quite a bit, didn’t it? A. I don’t think so.
“Q. Staggered him, didn’t it? A. Yes, sir.”

The defendant moved to strike on the ground that the evidence had been obtained by means of an unlawful search of his person. The motion was overruled, and; defendant moved the court on the same ground to direct a verdict of acquittal, in the form of a demurrer to the evidence. This was also overruled.

It is fundamental that a citizen may not be arrested and have his person searched by force and without process in order to secure testimony against him. No search of the person or seizure of any article found thereon can be made on mere suspicion that the person is violating the prohibitory liquor laws by having intoxicating liquor in his possession, or without a search warrant, unless and until the alleged offender is in custody under a warrant of arrest, or shall be lawfully arrested without a warrant as authorized by law. Where the officer does not know of the act constituting the offense, it is not committed in his presence. In a prosecution for unlawful transporting intoxicating liquor, the defendant cannot be convicted upon evidence obtained by an unlawful search of his person without a warrant for his arrest, and neither the liquor so- seized nor evidence of the possession thereof so acquired is admissible against him. Keith v. State, 30 Okla, Cr. 168, 235 P. 631; Logan v. State, 31 Okla. Cr. 46, 236 P. 920.

It follows that the motion to direct an acquittal when the state rested its case should have been sustained.

The defendant’s conviction, having no sufficient foundation to support it without the use of evidence which had been unlawfully obtained, is reversed and the cause remanded, with direction to dismiss.

DAVENPORT, J., concurs.

EDWARDS, J., absent, not participating.


text:
    GEORGE PARNELL v. STATE.
    No. A-5900.
    Opinion Filed Aug. 12, 1927.
    (259 Pac. 151.)
    Anglin & Stevenson and Forrest M. Darrough, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

Appellant, George Parnell, was convicted of unlawful possession of intoxicating liquor, and in accordance with the verdict of the jury was sentenced to pay a fine of $100 and be imprisoned in the county jail for 6 months. To reverse the judgment he appeals and assigns as error certain rulings of the court in admitting incompetent and prejudicial evidence and that the verdict wlas contrary to law and is not sustained by sufficient evidence.

It appears that on or about the 29th day of November, 1924, appellant lived'in Holdenville, in the negro part of town, just west of the Frisco tracks, his house facing said railroad right of way, and between his house and the railroad there was a ditch 4 or 5 feet deep. On the date above mentioned two deputy sheriffs found 2% gallons of whisky between the ties of the railway, about 40 feet in front of appellant’s premises. They arrested appellant, and one of them testified that appellant admitted that it was his whisky; the other testified that he did not hear appellant make that statement.

Against appellant’s objections and exception two of the state’s witnesses were permitted to testify that they knew the reputation of the appellant’s place as being a place where intoxicating liquors are sold, and that reputation was bad.

The general rule as to evidence of the general reputation of the premises in a trial for unlawful possession of intoxicating liquor is stated in Thompson v. State, 9 Okla. Cr. 525, 132 P. 695, as follows:

“Upon a trial under an information charging that the defendant did have possession of intoxicating liquors with the intention of violating provisions of the prohibitory [liquor] law, evidence of the general reputation of his home or barn is incompetent to prove the charge.”

By numerous decisions of this court it is held that before evidence of general reputation of the premises will be held to be admisible in prosecutions of this kind, there must be specific evidence that the place itself was a place of public resort, not merely that it bore such reputation. Williams v. State, 25 Okla. Cr. 284, 220 P. 667.

In Severns v. State, 31 Okla. Cr. 281, 238 P. 217, it is held that:

“In a prosecution for unlawful possession of intoxicating liquors, evidence of the general reputation of defendant’s home as a place where intoxicating liquors are kept for sale is incompetent to prove the charge.”

The evidence here complained of was inadmissible and was obviously prejudicial.

To justify or sustain a conviction for having possession of intoxicating liquor with intent to violate provisions of the prohibitory liquor laws, there must be evidence sufficient to prove the possession of the same.

Where the verdict is manifestly contrary to the evidence, or the conviction is based upon entirely insufficient evidence, the judgment of conviction will be reversed.

It follows from what has been said that the court erred in overruling the motion for a directed verdict of acquittal.

For the errors indicated, the judgment of the lower court is reversed.

DAVENPORT, J., concurs.

EDWARDS, J., absent, not participating.


text:
    S. E. WASHINGTON et al. v. STATE.
    No. A-5831.
    Opinion Filed Aug. 12, 1927.
    (259 Pac. 150.)

      M. D. Hartsell and W. W. Momyer, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the state.
   DOYLE, P. J.

The information in this case charges that in Muskogee county, February 9, 1924, S. E. Washington and Joe Walker did have in their possession 33 gallons of whisky with the unlawful intent to sell the same. On the trial the jury returned separate verdicts against each defendant. The verdict against defendant Washington fixed his punishment at a fine of $100 and confinement in the county jail for 60 days; the verdict against the defendant Walker fixed his punishment at a fine of $500 and confinement in the county jail for 6 months. They have appealed from the judgments so rendered.

The assigned grounds for reversal are the admission of incompetent testimony, secured without a search warrant, and that the court erred in refusing to give requested instructions and in giving certain instructions.

The first question presented is whether the search was lawful.

It appears that the defendant Walker owned and occupied a house and 2 acres of land around the same. That an officer, riding by on the day alleged, smelled the odor of whisky mash, and with four other officers returned that evening to the place and in a shed found the defendant Washington running a still and 15 or 20 barrels of mash near by, also quantities of sugar, chops, bran, malt, and 33 gallons of whisky.

H. L. Watts, deputy sheriff, testified that with four other officers he visited the place that evening; that before they reached the place they could smell mash cooking and noticed a flash light playing around in the shed; that they got out of the car and went to the shed and found a 75-gallon still in full operation with whisky running from the coils and 33 gallons of whisky in 5-gallon jugs, and about 20 barrels of mash; that the defendant Washington was operating the still and told them how much whisky he got out of a barrel of mash, and how long it took to make it.

The testimony of the witnesses England and Payne is substantially that given by the witness Watts. They each testified that they could smell the mash cooking, and that they knew it was whisky mash; that they had a conversation with the defendant Walker in which he said he had rented the shed to Washington to make whisky; that neither the still nor the whisky belonged to him.

At the close of the state’s evidence the defendants made a motion to strike all the evidence, whether by way of exhibit or by testimony obtained by reason of the search, on the ground that the evidence was procured by an unreasonable and illegal search without a search warrant, in violation of their constitutional rights. The motion was denied. The defendant Walker then moved the court to direct the jury to return a verdict of not guilty, which was overruled.

As a witness in his own behalf, Joe Walker testified that he did not have any interest in the whisky, still, or other appurtenances in connection therewith found by the officers that might; that he did not tell the officers that he had rented this place to the other defendant for the'purpose of making whisky; that he told the defendant Washington he could not make whisky out there; and that Washington said he could because he had rented the place from him.

The defendant Washington did not testify. We deem it sufficient to say that only unreasonable searches and seizures are prohibited. The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime, and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, or which may be of use as evidence at the trial, is not to be doubted.

The undisputed facts and circumstances as testified to by the officers within their knowledge before entering the place, were sufficient to warrant them in believing that intoxicating liquor was being manufactured in the shed where they observed the flash light. The admissions against interest made by the defendant Washington were conclusive as to his guilt of the offense charged.

As to the defendant Walker, he did not claim to be in possession of the shed. However, there was, we think, sufficient evidence to connect him with the commission of the offense charged, and the same was sufficient to warrant the submission of the case to the jury.

The instructions given fully and fairly covered the law of the case, and for this reason the instructions requested were properly refused.

The judgments of conviction appealed from herein are therefore affirmed.

EDWARDS and DAVENPORT, JJ., concur.