text:
    HARRIGILL v. STATE.
    No. A-10998.
    Jan. 25, 1950.

      (214 P. 2d 263.)

      Walter C. Henneberry and John A. Cochran, Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

Plaintiff in error, Harry H. Harrigill, defendant below, was charged by information in the district court of Tulsa county, Okla., with the crime of unlawful possession of intoxicating liquor, Title 37, § 31, O. S. A. 1941, and by reason of being a third offender was alleged to be an habitual violator of the prohibitory laws of the State of Oklahoma. The defendant was tried and convicted by a jury and his punishment fixed at a year and a day in the penitentiary under the provisions of section 14, Title 37, O. S. A. 1941, section 18, chapter 70, Session Laws of 1911, page 165, and judgment and sentence entered accordingly. The charging part of the information alleges:

“ * * * that on the 21st day of April, A. D. 1947, in Tulsa County, State of Oklahoma, and within the jurisdiction of this court did unlawfully, wrongfully, wilfully and feloniously, have in his possession certain intoxicating liquor, to-wit: seventy pints and 5 4/5 quarts of assorted tax paid whiskys, with the unlawful intent then and there upon the part of said defendant to barter, sell, give away and otherwise furnish same in violation of the prohibitory liquor laws of the State of Oklahoma; that defendant is an habitual violator of the prohibition latos of this State> in that heretofore, to-wit: On the 19th day of November, 1945, said defendant plead guilty to the crime of unlawful possession of intoxicating liquor in the Court of Common Pleas in and for Tulsa County, Oklahoma, and was given a fine of $75.00 and costs and sentenced to serve a term of 30 days in the County jail of Tulsa County, Oklahoma, by Judge Carter Smith, being Case No. 48417; That heretofore, to-wit: On the 10th day of August, 1946, said defendant plead guilty to the crime of unlawful possession of intoxicating liquor in the Court of Common Pleas in and for Tulsa County, Oklahoma, and was given a fine of $200.00 and costs and sentenced to serve a term of 60 days in the county jail of Tulsa County, Oklahoma, by Judge Carter Smith, being case No. 49714, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the State.”

As to the foregoing charge and conviction the defendant urges six assignments in his brief, none of which are of substantial merit or decisive of the issues herein, except the last one. To discuss any of the other assignments under the conditions herewith presented would constitute nothing more than judicial dicta, would serve no useful purpose, and would unduly lengthen this opinion.

The last assignment urged by the defendant is that Sec. 14, Title 37, O. S. A. 1941, S. L. 1911, page 165, Chapter 70, § 18, was repealed by § 2, Chapter 26, S. L. 1913, page 46, O. S. A. 1941, Title 37, § 12.

The foregoing contention is predicated upon the following statutory enactments. Section 12, O.S.A. 1941, Title 37, was first enacted in substance in the 1911 Session Laws, chapter 70, § 16, and before amendment read as follows, to wit:

“For the second conviction for the violation of any of the provisions of this act, the penalty shall be a fine of not less than five hundred dollars nor more than one thousand dollars, and by imprisonment for not less than six months nor more than twelve months, and it shall be mandatory upon the trial judge, in cases where anyone has been convicted under any of the provisions of this act, to pronounce sentence within 10 days from the date of conviction.”

Section 18 of the Session Laws of 1911, chapter 70, page 165, as the same appears in section 14, Title 37 O. S. A. 1941, reads as follows, to wit:

“Any person violating any provision of the laws of this state enacted for the suppression of the liquor traffic, commonly called the prohibition laws, who has theretofore been twice convicted for the violation of any of the provisions of such laws, shall be guilty of being can habitual violator of the prohibition laws of this state,’ and shall be so charged in the presentment, or indictment, or information, along with the violation of the law, and be tried in the court having jurisdiction of felonies, and upon conviction thereof shall be punished by imprisonment in the penitentiary of this state for not less than one year nor more than five years.”

Thereafter, in Session Laws 1913, chapter 26, § 2, page 46, the foregoing § 16, chapter 70, Session, Laws 1911, page 165, supra, was amended to read as the same now appears in section 12, 37 O. S. A. 1941, as follows, to wit:

“For the second and all subsequent convictions for the violation of any of the provisions of this act, the penalty shall be a fine of not less than fifty ($50.00) dollars, nor more than two thousand ($2,000.00) dollars, and by imprisonment of not less than thirty (30) days in the county jail, nor more than five (5) years in the State Penitentiary, * * *.”

So far as the prohibitory laws of the state were concerned relative to habitual violators, these statutes constitute the whole of the subject matter in relation to habitual violators and the penalties provided therefor. An analysis of the subject matter of the foregoing acts makes it apparent that section 14, Title 37 O. S. A. 1941, S. L. 1911, chapter 70, § 18, page 165, is a special act designed to define a new offense, that of “an habitual violator of the prohibition laws of this state”. To the contrary, Title 37 O. S. A. 1941 § 12, S. L. 1913, chapter 26, § 2, page 46, is a general act designed to apply to the whole subject matter of habitual violators of the liquor prohibition act. It is not single in its classification, but may be applied in cases predicated on convictions involving manufacture, sale, transportation, possession, etc., of intoxicating liquor. Section 12, Title 37 O. S. A. 1941, does not create or define a new offense but has been held merely to enhance the punishment against those charged and convicted of any second or subsequent offenses of the prohibitory laws. Hildebrandt v. State, 19 Okla. Cr. 30, 197 P. 852.

It is interesting to note the reason which gave rise to the amendment to sec. 16, S. L. 1911, page 165, as amended, as the same now appears in Title 37, O. S. A. 1941 § 12. Section 16, S. L. 1911, chapter 165, was enacted and approved on March 11, 1911. As it appeared therein it provided the minimum penalty for violations thereof should not be for less than a $500 fine, and by imprisonment for not less than 6 months. The minimum penalty therefore was in excess of that provided in the Constitution, art. 1, § 7, providing a minimum penalty of a fine of not less than $50 and by imprisonment for not less than 30 days in all offenses involving the (1) manufacture, (2) sale, barter, give away, (3) or otherwise furnishing any intoxicating liquor of any kind, or the (4) advertising for sale of, soliciting the purchase of any liquors, or (5) who shall ship or convey such liquors. It should be remembered also that the foregoing provisions as they appear in the Constitution are almost identical with the provisions of the prohibition ordinance, O. S. A. 1941, page 115. It therefore appears that the provisions of sec. 12, 37 O. S. A. 1941, before being amended, being applicable by way of enhancing the punishment for all the offenses enumerated in the constitutional provision providing a greater minimum penalty than provided in the Constitution was in conflict therewith and void. The situation in regard to the necessity that such acts, as the one under consideration, should contain the minimum penalty provision of the Constitution, was first called to the attention of the Legislature by the case of Nowakowski v. State, 6 Okla. Cr. 123, 116 P. 351. This was a case involving the statute approved March 9, page 164, S. L. 1909, prohibiting the sale of intoxicating liquor to any minor, or person of unsound mind, etc., and fixing the punishment for violation thereof at imprisonment in the penitentiary at not less than one year and no more than five years. Therein this court said:

“The prohibitory provision of the Oklahoma Constitution is self-executing, and declares that the unlawful sale of intoxicating liquor shall be punished by a fine of not less than $50 and imprisonment for not less than 30 days. An act of the Legislature approved March 9, 1909, Session Laws 1909, p. 164, provides that the punishment for selling intoxicating liquor to a minor shall be imprisonment in the penitentiary for a term of not less than one nor more than five years. Held, that the constitutional provision is all-embracing in its terms and includes a sale to a minor; that the Legislature cannot remit the constitutional requirement that the offense shall be punished by a fine of not less than $50; that, while the Legislature may fix the maximum punishment for the offense, it cannot change the minimum punishment which the Constitution has fixed; and that the act is therefore unconstitutional and void.”

And in the body of the opinion:

“The constitutional provision is all-embracing in its terms, * * *.
“The Constitution has fixed the minimum punishment for this offense, and the Legislature, while it may fix the maximum punishment, is nevertheless powerless to change that which the Constitution has fixed.”

The holding that the constitutional provision is all embracing has been followed many times by this court. Ex parte Smith, 24 Okla. Cr. 415, 218 P. 708; Santino v. State, 29 Okla. Cr. 149, 232 P. 859; Trimble v. State, 32 Okla. Cr. 175, 240 P. 329.

Thereafter in Session Laws 1913, Chapter 26, § 3, page 46, 37 O. S. 1941 § 5, the Legislature amended the hereinbefore referred to act of March 9, S. L. 1909, page 164, and fixed the penalty for the sale or furnishing of liquor to minors, lunatics or drunkards at the minimum provided in the Constitution of a fine of not less than $50 and by imprisonment at not less than 30 days. This was in keeping with the constitutional provision as to minimum punishment. As applied to the case at bar this matter was called to the attention of the Legislature that all acts looking toward the enforcement of the constitutional prohibition act should contain the minimum penalties as provided in the Constitution. Hence, the act of March 8, S. L. 1913, page 46, chapter 26, sec. 2, amending sec. 16, chapter 70, S. L. 1911, page 64, providing the minimum penalty to conform with the constitutional provision. The Legislature reasoned that since sec. 2, chapter 26, page 46, Session Laws 1913, section 12, Title 37 O. S. A. 1941, is applicable to and designed to enhance the punishment of second violations of the provisions of the prohibition act, it must of necessity have contained the minimum penalty of a fine of not less than $50 and by imprisonment for not less than 30 days as provided in the Constitution. But the Legislature did not stop there. They further amended the provisions of sec. 16, chapter 70, S. L. 1911, page 165, section 12, Title 37 O. S. A. 1941, by making the section applicable not only to second convictions but inclusive of “all subsequent convictions”. Moreover, it extended the limits of the penalty to include the minimum of a fine, of not less than $50 and imprisonment at not less than 30 days in jail as provided in the Constitution and extended the maximum to the limit of five years included in the third offender statute as the same appears in Session Laws 1911, chapter 70, § 18, page 165, Title 37 O. S. A. 1941 § 14. Section 12 as amended in 1913 in its scope contained all that section 14, supra, contained, and in addition thereto provided the minimum penalty required under the Constitution. It contained all, except the dry bone of definition “an habitual violator of the prohibition laws of this state”. The language of section 12, Title 37 O. S. A. 1941, in effect, is to encompass all that was contained in section 14. It conclusively appears that section 12, Title 37, O. S. A. 1941, is all embracing as to second and all subsequent violations of the liquor prohibition act. Hence the defendant’s contention that section 14, of Title 37 O. S. A. 1941, as enacted in Session Laws of 1911, chapter 70, page 165, § 18, was repealed by implication by the terms of Title 37 O. S. A. 1941 § 12, S. L. 1913, chapter 26, § 2, page 46, is meritorious. We think it conclusively appears the Legislature sought by section 2, chapter 26, Session Laws 1913, page 46, Section 12, Title 37 O. S. A. 1941, to amend the provisions of section 16, chapter 70, S. L. of 1911, page 165, section 12, Title 37 O. S. A. 1941, and repeal section 18 in relation to persistent, continuous and habitual offenders, so as to bring second and “all subsequent offenders” within its provisions and to make the penalties for enhanced punishment therein contained, not only conform to the constitutional minimum, but extend to the five year maximum provided in section 18, chapter 70, Session Laws 1911, page 165, section 14, Title 37 O. S. A. 1941. The legislative intent is clear that a repeal of Session Laws 1911, chapter 70, § 18, page 165, section 14, Title 37 O. S. A. 1941, was intended. There remains but one further consideration. Will the law sustain such repeal? The amendment to section 16, chapter 70, S. L. 1913, § 2, page 46, contains no clause expressly repealing section 18, Session Laws 1911, page 165, supra, or all laws in conflict with said section 2, Session Laws 1913, page 46, chapter 70, § 2. Hence, if the said section 18, Session Laws 1911, page 165, section 14, Title 37 O. S. A. 1941, was repealed by the amendment to section 16, Session Laws 1913, page 46, chapter 26, § 2, such repeal was by implication. We are not unmindful that repeals by implication are not favored in the law. Lovejoy v. State, 18 Okla. Cr. 335, 194 P. 1087; Hudson v. State, 37 Okla. Cr. 290, 258 P. 352, 354; Waters v. State, 75 Okla. Cr. 185, 129 P. 2d 863; Ex parte Sweeden, 84 Okla. Cr. 127, at page 132, 179 P. 2d 695, at page 697, wherein this court said:

“We are familiar with the oft announced rule that repeals of statutes by implication are not favored but it is also well settled that the Legislature may, within constitutional limitations, express its will in any form which it sees fit and a repeal is effected where the intent to repeal is clearly evidenced; and where two statutes cover the same subject and the statute last adopted is repugnant to and irreconcilable with the provisions covering the same subject in the first statute, the latest expression of the Legislature will govern. City of Pawhuska v. Pawhuska Oil & Gas Company, 64 Okla. 214, 166 P. 1058; James v. Board of Commissioners of McCurtain County, 103 Okla. 141, 229 P. 554; Hines et al. v. Harmon, 178 Okla. 1, 61 P. 2d 641.”

In Rich v. State, 61 Okla. Cr. 148, 66 P. 2d 950, 953, this court said:

“In re James, 4 Okla. Cr. 94, 111 P. 947, 949, this court says:
“ 'The rule that a later statute, general in its terms and broad enough to include matters provided for by a former special act, will ordinarily not affect the special provisions of such former act, is not a provision of substantive law, but is merely one rule for determining the legislative intent; and when it is apparent that the Legislature intended to make the later act exclusive, designed it to cover the whole subject-matter to which it relates, and to embrace the entire law on the subject, it will repeal the repugnant provisions of all former acts, general or special. “When an earlier statute is special only in the sense that it applies to a single case, of which there are many in the state, and the later statute is general in its operation and applies to all such cases, then the earlier one is repealed by the later.” 26 Am. & Eng. Enc. L. 743.
“ ‘See, also, Southport v. Ogden, 23 Conn. 128; Coe v. Meriden, 45 Conn. 155; Nusser v. Com., 25 Pa. 126. Thus it is said in 1 Lewis’ Sutherland on Statutory Construction, § 276:
“ ‘The question is one of intent. There is no rule of law which prohibits the repeal of a special act by a general one, nor is there any principle forbidding such repeal without the use of words declarative of that intent. The question is always one of the intention, and the purpose to abrogate the particular enactment by a later general statute is sufficiently manifested when the provisions of. both cannot stand together. * * *’ ”.

The foregoing rule is clearly applicable to the situation confronting the court in relation to the repeal of section 18, chapter 70, Session Laws 1911, page 165, section 14, Title 37 O. S. A. 1941. The aforesaid section 12, the later act as amended, was passed and approved March 8, 1913, while section 14 was passed and approved on March 11, 1911. We believe that the later act was intended by the Legislature to be exclusive, and designed it to cover the whole subject matter in relation to the habitual violators of the liquor prohibition act. Had this not been true the Legislature would not have employed the language “for the second and all subsequent convictions for the violation of auy of the provisions of this act”. That language is general in its application to all violations of the act whether it be a second conviction, a third conviction or convictions in any number beyond the second conviction. No one can rightly contend that the Legislature intended to single out third offenders for special treatment as distinguished from fourth or fifth offenders. Such an analysis shows the untenable nature of the contention advanced by the state that because section 18, chapter 70, Session Laws 1911, page 165, section 14, Title 37 O. S. A. 1941, defines a new offense it should be permitted to stand. To so hold would be to ignore the plain intent of the all embracing character of section 12, Title 37 O. S. A. 1941, relative to habitual violations of the prohibition act. Moreover, the minimum penalty provided in section 18, chapter 70, Session Laws 1911, page 165, section 14, Title 37 O. S. A. 1941, is in irreconcilable conflict with the minimum provided in both the Constitution, art. 1, § 7, and in section 2, chapter 26, Session Laws 1913, page 46, sec. 12, Title 37 O. S. A. 1941. There can be no doubt that it was clearly the intention of the Legislature to repeal section 18, chapter 70, Session Laws 1911, page 165, section 14, Title 37 O. S. A. 1941, by amending section 16, supra, in section 2, chapter 26, Session Laws 1913, page 46, section 12, Title 37 O. S. A. 1941. The only remaining question, then, is one of authority so to do. In Phinney v. State, 90 Okla. Cr. 21, 210 P. 2d 205, 206, it was said:

“In construing two statutes relating to same subject, later statute purporting to revise entire subject matter and containing additional provisions for carrying into effect same objects, will be construed to repeal by implication the former statute although no reference is made thereto.”

See, also, Ex parte Olden, 88 Okla. Cr. 56, 199 P. 2d 228.

As was said in Re James, supra, the question is one of intent, and since there is no rule of law which prohibits the repeal of a special act by a general one, nor any principle forbidding such repeal without the use of words declarative of that intent, and that intent having been manifested in such way as to indicate the purpose of the Legislature was to make the later act a substitute for the former act, there is nothing for the court to do but to sustain the repeal of the former act by implication as contained in the later act. We therefore hold that section 12, Title 37 O. S. A. 1941, S. L. 1913, page 46, chapter 26, § 2, was intended to and did repeal section 14, Title 37 O. S. A. 1941, S. L. 1911, page 165, chapter 70, § 18, even though no express reference was made thereto in the Act of 1913. It was within the power of the Legislature so to do. The trial court instructed the jury under the provisions of section 14, Title 37 O. S. A. 1941, to the effect that the minimum penalty that could be imposed was not less than one year. Therefore, under the conditions hereinbefore set forth, it was error so to do, said section 14, Title 37 O. S. A. 1941, so providing having been repealed as hereinbefore set forth.

The prosecuting officer indicated, at the time of oral argument, that the reason this case was alleged under the third offender statute, section 14, Title 37, O. S. A. 1941, was because of the validating act of 1943, page 252, 75 O. S. Supp. § 114, validating all acts contained in the 1941 statutes. Section 14, Title 37 O. S. A. 1941, was therein contained; he operated under the belief that the statute became a valid act. Such is not the case, however, as was said in Ex parte Olden, supra, in the body of the opinion, 199 P. 2d at page 237, as follows:

“In the case of Thomas v. State, supra [83 Okla. Cr. 25, 172 P. 2d 651], this court laid down the following rules of law as shown by the syllabus :
“ ‘3. Sec. 2, chap. 4, Tit. 75, p. 457, Oklahoma Session Laws of 1941, 75 O. S. 1941 § 102, instructs the codifiers of the 1941 statutes to not include in their compilation “laws held unconstitutional by the highest courts,” and to “eliminate” all repealed laws.
‘5. Where one was authorized to codify existing laws but the authority was expressly withheld to include any statute which had been “repealed” or “held unconstitutional by the highest courts,” and such a statute was inadvertently included, adoption of the statutes did not have effect of validating the statute inadvertently included.’ ”

This however, ivill not end this prosecution. The evidence of the defendant’s guilt herein is clear and conclusive, and the information is entirely sufficient to allege second and subsequent offenses. A new trial is hereby ordered to be granted the defendant, and the issues submitted to the jury under the provisions of section 12, Title 37 O.S.A. 1941, covering second and all subsequent violations of any of the provisions of the prohibition act. The case is accordingly reversed, with directions to retry the defendant under the same information, and to instruct the jury under the provision of said section 12.

JONES, P. J., and POWELL, J., concur.


source: Caselaw Access Project

author: POWELL, J.

license: Public Domain

text:
    STOUT v. STATE.
    No. A-11043.
    Jan. 25, 1950.
    (214 P. 2d 271.)

      Irvine E. Ungerman and Charles A. Whitebook, Tulsa, for plaintiff in error.
    Mae Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   POWELL, J.

The defendant, Charles Stout, was charged in the county court of Nowata county with the crime of unlawful possession of intoxicating liquor, but following this the information was amended and the charge was changed to that of transporting intoxicating liquor. Thereafter, the defendant was arraigned on the amended information and subsequently he filed a motion to suppress the evidence, and asked to be heard without a jury, and hearing was had on February 18, 1948.

The defendant testified and he also called as a witness in support of his motion G. A. Martin, justice of the peace. The state called the two officers making the arrest, and also the sheriff. At the conclusion of the evidence, the court overruled the motion to suppress. The parties then stipulated that the evidence theretofore interposed and introduced in connection with the motion to suppress be considered as the evidence of the case in chief. A jury was by the parties waived and the court rendered judgment finding the defendant guilty as charged and assessed his punishment at 30 days in the county jail and to pay a fine of $250. The defendant has duly perfected his appeal.

The defendant testified that on December 19, 1947, he was in possession of a 1946 Dodge coupe automobile, Oklahoma license No. 2-61022; that he was driving said car on U. S. Highway No. 60 toward Nowata, coming from Vinita; that seven or eight miles out from Nowata a car came from behind and commenced flashing a spotlight on his car; that he concluded he should pull over to the shoulder of the highway and stop, and he did; that a man got out of the car to his rear and came to the side of defendant’s car and said he was a deputy sheriff and asked defendant what he had in his car; that he told the deputy he had some records, material, and music boxes, and the officers told him he was supposed to have a commercial tag; that the deputy and his partner asked him to get out of his car and he did; that they went to the back of his car and he gave the officers some keys to the trunk, but they could not get the trunk open, and one deputy said: “We can’t get the trunk open. There is nothing we can do.” That he then asked the officers about a place in Nowata where he might eat, and they directed him to the Ideal Cafe; that he got in his car and proceeded to Rowata; that he noticed the officers following him and on reaching town he parked one block from the cafe, but walked back to the cafe and it was about to be closed, so that defendant drank a cup of coffee and returned to his car, and he found the Indian deputy, Sequichie, there, and he told defendant the sheriff wanted to see him, and the deputy got in defendant’s car and directed him to drive to the courthouse. Defendant further testified that the sheriff questioned him and that the sheriff got on the radio and verified the information and defendant’s identity with Tulsa. That the sheriff then began to prepare a search warrant. He stated that the sheriff asked his deputies: “The sheriff asked, he says, 'What did you stop this boy for’ and, they said, ‘Well he was speeding’ ”.

On cross-examination defendant claimed that the first thing the officers asked him when they first stopped him was: “Have you got whisky in this car?” He stated that on entering the Nowata city limits he saw a sign giving the speed limit in one zone as 20 miles an hour, and in another as 15 miles an hour. He denied driving as fast as the officers claimed, but was not asked and did not answer as to whether he exceeded the speed limits prescribed.

G. A. Martin, witness called by defendant, testified that he was the justice of the peace who issued the search warrant for search of defendant’s car on the night of December 19, 1947, and he identified the affidavit for search warrant, the search warrant, and return on the warrant.

Arch Sequichie testified on behalf of the state, stating that he was a deputy sheriff of Nowata county on December 19, 1947, and was on U. S. Highway No. 60 seven miles east of Nowata. He said:

“To begin with, we had stopped another car and told them to watch their speed and this car shot by, and the other deputy spoke to me about it and we drove on and cut him and stopped him and told him to watch his speed or he would kill somebody.”

Sequichie claimed he and Deputy Johnson had to drive 80 miles an hour, or better, to stop defendant. He testified :

“Q. Now, when you stopped him, what did you say to him? A. I told him to watch his speed. Q. Did you ask him about anything he had in the car? A. I asked him what he was hauling, and he said he had nickelodeons, and he said, ‘I got a bunch of records,’ and showed me a string of keys, he had the nickelodeons in the back. Q. What did you say to him then? A. Well, I don’t remember the exact conversation that come up but I told him to go ahead. He showed me some keys to the back and said he hadn’t been in there for two or three months. I told him to go ahead. Q. Did you try any of his keys to open the back end? A. He handed me the keys and said to open it and I just handed them back to him.”

Witness testified that defendant got in his car and was over the hill before he could get started and he had to drive 70 miles an hour to keep him- in sight; that defendant after entering the city limits of Nowata drove about 50 to 60 miles an hour through a 20 mile per hour speed zone and about 40 miles an hour through a 15 mile per hour zone. He claimed that he thereafter in Nowata arrested defendant and that he arrested him for “speeding.”

On cross-examination by Mr. Ungerman witness denied that he was searching other cars on the highway the night defendant was arrested, declared that he was slowing down speeders, stated that he gave the facts to the county attorney the night of the arrest and also the next day, and that the county attorney prepared the charges against defendant. Witness reiterated that when he first stopped defendant he told him to watch his speed, and did not arrest defendant at that time, but told him to drive on, and directed him, after inquiry by defendant, to the Ideal Cafe in Nowata as a place where he might get something to eat. He further stated that he followed defendant on in to Nowata and he estimated that defendant was driving between 80 and 90 miles per hour; that they were suspicious of defendant and wanted to observe him; that defendant drove through a 20 mile speed zone in Nowata at about 50 or 60 miles an hour, and through a 15 mile zone at around 40 miles an hour, and that on reaching Nowata drove a block past the Ideal Cafe and parked his car in front of a funeral home and left on foot; that witness waited for defendant to return to arrest him for speeding and reckless driving; that witness communicated with Sheriff Arthur Turner by radio and the sheriff directed him to bring the defendant to the courthouse for questioning; and that he was taking down the number on defendant’s car license when defendant returned. That defendant accompanied witness in defendant’s car to the . sheriff’s office.

Arthur Johnson, deputy sheriff, testified for the state, corroborating the material points of Deputy Sequichie’s testimony. He stated that he and Sequichie followed the defendant on into Nowata due to the fact that defendant did not have a proper tag for hauling nickelodeons, and so forth, and did not know whether he was really going to Nowata.

Mr. Ungerman, counsel for defendant, was permitted to recross-examine state’s witness Sequichie concerning the facts of searching cars on U. S. Highway 60 on October 17, November 25, December 1 and 5, 1947. Defendant sought by the questioning to show that Deputy Sequichie made it a practice and custom of stopping cars on said highway east of Nowata and searching them without a search warrant. The court sustained objections to such questions. No witnesses were actually offered to swear to the matters implied by this line of questioning on cross-examination. There was no substantive evidence offered in this connection.

The sheriff, Arthur Turner, testified that on the night of December 19, 1947, Deputies Johnson and Sequichie brought defendant to his office for questioning; that he directed Sequichie to go get a search warrant to search defendant’s car; that after Deputy Sequichie left, the defendant tossed him a bunch of keys and told him to search the car and that he would find 18% cases of whisky in the car, and stated that it was not necessary to get a search warrant.

The court, at the conclusion of the evidence, stated: “The case hinges on whether or not there was a legal arrest” and on consideration, found the defendant guilty of unlawful transportation of intoxicating liquors as charged, and as has been recited.

For reversal defendant sets out ten assignments of error. We shall not detail the assignments, but will consider the propositions in order presented.

Counsel for defendant has filed an exhaustive, interesting and provocative brief. But as the trial court stated, this case “hinges on whether or not there was a legal arrest.”

There is evidence showing that Deputies Sequichie and Johnson were, on the night of December 19, 1947, patrolling the highway east of Nowata in Nowata county, and had been slowing down and cautioning speeders, and did stop the defendant and warn him to watch his speed, and question him about his load and advise him that he needed a commercial tag to haul nickelodeons and other merchandise. Defendant informed them he had, yet they did not arrest him for not having such license. They let him go and directed him to a cafe in Nowata in reply to inquiry of defendant as to where he might get something to eat. But defendant’s version is that the officers asked him if he had a load of Avhisky and one of the officers tried to open the trunk of his car by trying the handle and by using some keys defendant voluntarily gave him (apparently knowing that they would be unable to open the trunk), but gave up and let him go only after they were unable to get the trunk open. Nevertheless, from defendant’s own testimony no search was actually made.

According to the testimony of the officers he proceeded on towards NoAvata at such a terrific rate of speed that they had to drive 70 miles per hour to even keep him in sight. The fact that the officers followed the defendant after the incident on the road was natural, and is not of itself to be condemned. If the defendant did eat at the cafe in Nowata they would have an opportunity to check up on him by radio and might obtain sufficient facts in connection Avith their own observations to form the basis for a search warrant. He had stated he was servicing nickelodeons, but had also stated it had been about three months since he had opened the back Avhere he kept his records and other equipment, — an unusual fact, if true, in view of his alleged business. .

Up to this point nothing had happened that would have justified the arrest and search of defendant, except that he did not have a commercial license; that is, a class C tag, on his car, which Avas necessary under the statement by defendant to the officers. Tit. 47 O. S. 1941 §§ 22.4; 22.5(7); 161(b) (3) and 172. The fact that the officers did not there and then arrest the defendant on such charge bears out their contention that they were slowing down speeders and reckless drivers.

And whereas defendant denied that he drove recklessly on his way into Nowata, he admitted that he did see a sign fixing 20 miles an hour for one zone in Nowata and 15 miles for another, and whereas he denied driving 50 to 60 miles an hour through the 20 mile zone, and 40 miles an hour through the 15 mile zone, all as testified to by Deputy Sequichie, he never did testify that he drove within the speed limits prescribed, so that the testimony of the officers stands unrefuted.

Concerning their next contact with the defendant after he reached Nowata, Deputy Sequichie testified:

“We pulled in there to get a parking place and I was out taking the numbers of the car when he come back and said the place was closed up. Q. Where did you go with him after you told him he had broken the speed limit, the 15 mile speed limit? A. He said at that rate you had to creep through town, and I told him that was the speed limit. Q. Did you arrest him for violating the speed limit? A. Yes, sir.”

The defendant himself, as heretofore recited, testifying concerning this last contact with the officers after they took him to the sheriff’s office, said: “The sheriff asked, he says, ‘What did you stop this boy for’, and they said, ‘Well, he was speeding.’ ”

This confirms the testimony of the officers, and supports the judgment of the trial court, that the officers did in fact arrest the defendant for speeding or reckless driving, a misdemeanor having been committed in their presence, Tit. 47 O. S. A. 1941 § 92, and did take him to the sheriff’s office for questioning concerning this charge and the fact that he was hauling commercial equipment without a proper tag. The evidence shows that this information was given the county attorney that night and also the next day.

While the fact that neither the charge for which defendant was taken into custody, or even the charge for not having a proper tag, was filed against the defendant, supports the argument of counsel for the defendant that the officers were from the beginning actually seeking whisky, nevertheless, the important facts just recited showing that the officers liad grounds for arresting the defendant when he returned to his car in Nowata and was taken into custody, and the arresting officer minutes afterwards stating to the sheriff that the defendant had been taken into custody for speeding, which we conclude to mean reckless driving, and soon after the same night disclosing the facts in the case to the county attorney, whose duty it was to decide on the charge or charges to be filed, demonstrates in this case good faith on the part of the officers. Certainly the defendant should be the last person to complain because the county attorney may have overlooked filing every charge he might have. See Wilson v. State, 89 Okla. Cr. 421, 209 P. 2d 512.

No doubt if the county attorney had filed a charge of reckless driving in the state court, or of speeding in the city court of Nowata, or a charge in the state court based on defendant’s failure to have a truck tag, in addition to the charge of unlawful transportation of intoxicating liquor, the defendant would have complained bitterly that he was being persecuted, or “punched.” In this case the record indicates that the county attorney decided what charges'to file. We conclude that there was a lawful arrest. Having determined that a lawful arrest was made, it follows under a long line of cases decided by this court that it was thereafter lawful that the defendant’s car be searched. In Skinner v. State, 65 Okla. Cr. 371, 87 P. 2d 341, this court said:

“An officer may search the person arrested, and seize anything found upon him, or in his immediate control; the possession of which is unlawful. In order to justify the search of the person, and the immediate surroundings of the person arrested, the arrest must be in good faith, and not as an excuse or subterfuge for the purpose of making an unlawful search.
“Where a defendant is lawfully arrested, and as a result thereof his person, or immediate surroundings are searched, it is the best practice for the officer to file a charge against the defendant for the crime for which he was arrested. If it is found as a result of the search that other crimes have been committed, the county attorney may, in his discretion, file charges for the commission of that crime.”

See, also, Smith v. State, 52 Okla. Cr. 315, 4 P. 2d 1076, and cases cited.

The defendant argues that the officer Sequichie had on October 17, November 25, and December 1 and 5, 1947, stopped and searched other cars on U. S. Highway 60 without search warrants and had found whisky. Counsel for defendant attempted to bring out such by cross-examination of Deputy Sequichie, but the court sustained objections of the county attorney to such questions, and we think properly so. The presumption is that the searches were legal. 22 C.J.S., Criminal Law, 589; Lewis v. State, 49 Okla. Cr. 160, 292 P. 888. There was no indication that a court had determined that the alleged searches in question were illegal, and in the absence of such showing we do not find that the trial court abused its discretion in excluding objections to such questions. Whether or not such searches, if made, were reasonable were in each instance judicial questions to he determined in view of all the circumstances under which made. Hoppes v. State, 70 Okla. Cr. 179, 105 P. 2d 133. If in the alleged cases the witness Sequichie had been determined by court decrees to have made illegal searches, then in each such case the fact could have been brought out for the purpose of affecting the credibility of the evidence of the witness in the instant case. Tit. 12 O. S. A. § 381.

The other specifications of error, and particularly the questions as to whether or not the search warrant involved herein was legal or void, or whether or not the defendant had waived the necessity for obtaining a search warrant by voluntarily informing the sheriff that he had 18% cases of liquor in his car and giving him the keys and advising him that a search warrant was unnecessary, are immaterial and not necessary of determination by reason of our conclusion that there was a legal arrest.

For the reasons recited, the judgment of the county court of Nowata county is affirmed.

JONES, P. J., and BRETT, J., concur.


author: JONES, P. J.

text:
    HEMBREE v. HOWELL, District Judge.
    No. A-11321.
    Jan. 25, 1950.
    (214 P. 2d 458.)

      George Hill and Kirksey Nix, McAlester, for petitioner.
    Jack Scott,. Co. Atty., and Buck Cartwright, Asst. Co. Atty., Wewoka, for respondent.
   JONES, P. J.

This is an original action instituted by the petitioner, A. Y. Hembree, in which he seeks a writ of mandamus directed to the respondent, Bob Howell, district judge of Seminole county, ordering the said respondent to dismiss a criminal action filed against the petitioner in the district court of Seminole county, for the reason that the petitioner hasi been incarcerated in the county jail of Seminole county, and in the State Penitentiary for alleged safe-keeping since the 12th day of May, 1948, and has never been brought to trial, and for that reason petitioner has been denied his right to a speedy trial as guaranteed by the Constitution and statutes of the State of Oklahoma.

The cause was submitted upon a written stipulation signed by counsel for the petitioner and counsel for the respondent.

The facts as set forth in the stipulation are as follows: Defendant was arrested for the alleged crime of larceny of an automobile on June 10, in Seminole county, Okla., and was duly arraigned before a committing magistrate on said charge on June 14, 1948. A preliminary examination was held on July 17, 1948, at which time defendant was ordered held to await trial in the superior court of Seminole county, and his bond was fixed at the sum of $6,000, and defendant was recommitted to the county jail. On July 19, 1948, an information was filed in the superior court of Seminole county charging the defendant with larceny of an automobile after former conviction of a felony. On August 18, 1948, petitioner was arraigned in the superior court of Seminole county, entered a plea of not guilty and his bond was reduced to $5,000, and defendant was recommitted to the county jail. On September 13, 1948, defendant presented an appearance bond which was duly approved by the court clerk on that day, and defendant was released from jail. The following day, after investigation, the court clerk concluded that the bond executed by the accused was insufficient and the sheriff of Seminole county was thereupon ordered by the superior court judge to rearrest and take petitioner into custody. At that time, the sheriff went to the home of petitioner for the purpose of taking him into custody, and found defendant sick and unable to leave his bed. A doctor was summoned who reported to the court that the accused had pneumonia. About two weeks later, after the accused had recovered from his illness, he was again placed in the county jail. During the time defendant was in jail, an order setting a court term commencing on October 11, was made by the superior court. On November 16, 1948, certain attorneys in a civil action filed a motion to quash the jury panel, Avhieh motion was sustained, and all cases set for trial were stricken. The defendant being in jail thereupon made a demand that his case be tried; whereupon the judge of the superior court on November 22, 1948, made an order transferring said case to the district court of Seminole county, and on November 26, 1948, a transcript from the superior court was filed of record in the office of the court clerk of the district court of Seminole county, and given case No. 6478 in said district court. A docket was set in the district court of Seminole county, and the case against petitioner was assigned for trial on December 13, 1948. On the date of trial, defendant appeared in court without counsel and the court appointed counsel to represent him and continued the case to December 15,1948; and on December 15,1948, said case was continued to December 17, 1948. On December 17, 1948, about 8:30 a.m., the defendant made an attempt to either take his own life, or do himself great bodily harm, and his condition was such that it was determined that he was not able to attend court, and an order was made at that time striking the case from the trial assignment. Thereafter, on December 21, 1948, the accused was taken by the sheriff of Seminole county to the State Penitentiary at McAlester for proper hospitalization and safe-keeping. At the State Penitentiary, he was kept in solitary confinement until September 30, 1949, at which time he was returned to the custody of the sheriff of Seminole county upon the order of the district court of Pittsburg county, after a habeas corpus action was brought in petitioner’s behalf in that court.

On October 21, 1949, the defendant filed his motion to dismiss the case pending against him for the reason he had been denied his right to a speedy trial, which motion was denied, and this action was then instituted.

In the case of Brummitt v. Higgins, 80 Okla. Cr. 183, 157 P. 2d 922, 925, this court stated:

“The Bill of Bights of the Oklahonxa Constitution provides: ‘Bight and justice shall be adxxxinistered without sale, denial, delay, or prejudice,’ Art. 2, Sec. 6; and, further, ‘in all criminal prosecxxtioxxs the accused shall have the right to a speedy and public trial by an impartial jui*y of the couxxty in which the crime shall have been committed.’ Art. 2, Sec. 20.
“Title 22 O. S. 1941 § 812, provides: ‘If a defendant, prosecuted for a public offense, whose trial has not been postponed upon Ms application, is not brought to trial at the next term of court in which the indictment or information is triable after it is filed, the court must order the prosecution to be dismissed unless good cause to the contrary be shown.’
“In the case of Ex parte Meadows, 71 Okla. Cr. 353, 112 P. 2d 419, 427, it is stated:
“ ‘The term “speedy,” as employed in the constitutional provisions under consideration, being a word of indeterminate meaning, permits legislative definition to some extent; and the authorities generally hold that statutes providing for a discharge of accused unless trial is had within a stated time after indictment, information, or commitment, or which require an indictment or information within a stated time, are enacted for the purpose of enforcing the constitutional right, and that they constitute a legislative construction or definition of the constitutional provision, and must be construed fairly to the accomplishment of that end. 22 C.J.S., Criminal Law, § 467, p. 716.
“ ‘See, also, Ex parte Leathers, 66 Okla. Cr. 172, 90 P. 2d 450; Ex parte Menner, 35 Okla. Cr. 252, 250 P. 541; Ex parte Hunger, 29 Okla. Cr. 407, 234 P. 219.’
“And, also: ‘As there is no hard and fast rule for determining the question as to what is meant by the term “unless good cause to the contrary be shown,” § 2872, supra, it becomes, a matter for judicial determination under the facts and circumstances in each particular case.’
“In Harrell v. State, 41 Okla. Cr. 305, 272 P. 1038, it is stated: ‘Accused, applying for dismissal for unnecessary delay, need only show expiration of statutory time and lack of postponement on his application; on accused’s application to dismiss for delay, prosecution must show cause for continuing him over statutory time.’ Comp. St. 1921 § 2913 (22 O. S. 1941 § 812).
“To the same effect, see Parker v. State, 7 Okla. Cr. 238, 122 P. 1116, 124 P. 80; Clinkenbeard v. State, 40 Okla. Cr. 113, 267 P. 485; Culver v. State, 11 Okla. Cr. 4, 141 P. 26; Smith v. State, 27 Okla. Cr. 294, 227 P. 901.
“It has been held that where the defendant is on bail the presumption is that the delay was caused by or with the consent of the defendant and the record must affirmatively show that he demanded a trial or resisted the continuance of the case. However, if the defendant is not on bail, the law makes the demand for him and the prosecution has the burden of showing that the trial was delayed for some lawful cause. State ex rel. Davis v. Bayless, 38 Okla. Cr. 129, 259 P. 606; Francis v. State, 26 Okla. Cr. 82, 221 P. 785; Bowes v. State, 7 Okla. Cr. 316, 126 P. 580.”

The act of the defendant in attempting to take his own life in December, 1948, was good cause for not trying the defendant during that term. However, the accused was taken to the State Penitentiary and kept in solitary confinement for over nine months, and during all this period of time his ease was not assigned for trial. There was no attempt to justify the failure to bring the defendant to trial in the January, 1949, term of court which ended June 30, 1949. The county attorney contends that when they offered the defendant a trial in December, 1948, and were prevented from trying defendant because of his willful act, that they were then under no obligation, statutory or otherwise, to afford the defendant a trial during the following term of court. We do not agree with this contention. The case should have been set for trial during the January, 1949, term. The petitioner has now been incarcerated in the county jail of Seminole county, or the State Penitentiary for over 18 months, and has never been tried. The only time it was set for trial was December 13, 1948, at which time the defendant had been in jail over seven months and was demanding a trial. The constitutional and statutory provisions above quoted certainly will apply to such a factual situation.

As to whether mandamus is the appropriate remedy, where the defendant has been denied his right to a speedy trial, see McLeod v. Graham, 6 Okla. Cr. 197, 118 P. 160; State ex rel. Eubanks v. Cole, 4 Okla. Cr. 25, 109 P. 736; State ex rel. Sims v. Caruthers, 1 Okla. Cr. 428, 98 P. 474, and Brummitt v. Higgins, supra.

In McLeod v. Graham, supra, it is held:

“Where a defendant is prosecuted, either by information or by indictment, and is not brought to trial at the next regular term of the court in which said case is triable after the prosecution is begun therein, the court must order the prosecution to be dismissed, unless good cause to the contrary is shown, or unless the trial of said cause has been postponed upon the application of the defendant, or with his consent; and if the trial court, upon application of the defendant, refuses to make this order, mandamus proceedings will lie in behalf of the defendant to compel the dismissal of said cause.”

At the time said cause came on for hearing in this court on November 23, 1949, an order was made directing the district court of Seminole county to dismiss case No. 6478 in the district court of Seminole county for the failure to grant the defendant a speedy trial without prejudice to the right of state to commence a new prosecution against the accused at anytime within three years after the alleged crime was committed.

This formal opinion is rendered in conformity to that order.

BRETT and POWELL, JJ., concur.


text:
    LANTZ v. STATE.
    No. A-11053.
    Feb. 1, 1950.

    (214 P. 2d 451.)
    John B. Doolin, Alva, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Richard Lantz, was convicted in the district court of Woods county of the crime of burglary in the second degree, and sentenced to serve two years in the State Penitentiary.

The Attorney General has called our attention to the fact that no appeal bond was made, and that on November 26, 1947, the defendant was delivered to the State Penitentiary to begin the serving of his two year term; that thereafter said sentence was completely served, and by the allowance of time off for good behavior, the defendant was discharged and released by the warden of the State Penitentiary on February 19, 1949.

This court has held that where an appeal is lodged, but no appeal bond is made and the defendant is committed to the custody of the sheriff or warden of the penitentiary to begin the service of a sentence, and the said judgment and sentence becomes satisfied, that the legal questions involved in the appeal are moot, and that the appeal should be dismissed. Tropp v. State, 17 Okla. Cr. 702, 186 P. 737; Carey v. State, 24 Okla. Cr. 273, 217 P. 895.

If counsel for defendant had lodged an early appeal and had called our attention to the fact that the accused had been unable to make an appeal bond, we would have advanced the case for an early decision and an opinion would have been rendered long before the defendant had completed serving his sentence.

For the reason that any legal question raised by the appeal is now moot, it is ordered that the appeal be and the same is hereby dismissed.

BRETT and POWELL, JJ., concur.


text:
    GATES v. STATE.
    No. A-11244.
    Feb. 1, 1950.
    (214 P. 2d 451.)

      Wm. H. Lewis, Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace. Asst. Atty. Gen., for defendant in error.
   POWELL, J.

The defendant, Arnely Gates, was charged in the district court of Oklahoma county with the crime of robbery by force or fear, found guilty by a jury who could not agree on his punishment, and was sentenced by the court to serve seven yeans in the State Penitentiary.

It is charged that defendant, a negro boy 19 years of age, by the use of force and threats of death, did feloniously take and steal from Mrs. Myra Ellen Yell, a leather purse, containing $37 in money.

The state used three witnesses. Mrs. Yell testified that she lived at 814 North Geary, in Oklahoma City. About 12 midnight or 12:30 on Sunday morning, August 22, 1948, she left her home in response to a telephone call from her husband, and started walking to Tommy’s Tap Room in the 200 block on Harrison Avenue. As she went out of her house she noticed someone coming, but did not pay much attention — did not look at him, and crossed the street. She saw the party go down the other side of the street, and turned and saw him crossing the street, right under the light, about half a block away. She went about a block and a half further, and in the 300 block East Seventh street, someone came up behind her and said, “I will kill you,” and grabbed her purse, but made no attempt to do her any harm. She testified that she gave the police a description of the party who had taken her purse; that he wore a dark hat, dark trousers, a “T” shirt with brown and yellow stripes, and that, “I know he didn’t have on light shoes, because I seen him under the lights there, and they were dark.” Mrs. Yell had identification papers in her purse, and recovered the purse and papers the following day, but the money, $38 or $40, was gone. She left town on Monday, and was away a week, and the following Monday she was called to the police station, and positively identified the defendant. He was dressed identically the same as when he snatched her purse, and she identified him by his voice and his looks. On cross-examination she was asked if she noticed what kind of shoes he wore, and she answered : “No, I didn’t look down that far.”

Police Officer Fred L. Ramsey merely testified that he answered a call at 814 North Geary on the date in question, talked with Mrs. Yell, and got a description of the party who had allegedly committed the crime.

Police Officer E. E. Jones testified that he arrested the defendant in the 300 block East Second street on Monday, and that defendant made a statement of his whereabouts on the night the crime was alleged to have been committed; that he checked that statement and that it was not true. On cross-examination he testified that defendant had been arrested for fighting, larceny, and loitering, and fined in the police court on each charge.

Wayne Harbolt, also a police officer, testified that he conducted the “show-up” at the time defendant was identified by Mrs. Yell, and that she was positive in her identification. This concluded the testimony in chief of the state.

The defendant testified in his own behalf that he quit school in the ninth grade, had been working at restaurants, admitted the¡ arrests testified to by the officer, and paying fines therefor; and positively denied that he snatched the purse of the prosecuting witness, or that he had ever seen her until the preliminary hearing. He testified that he went to the Iris Theatre in the 300 block East Seventh street at 11:30 Saturday night, left there about 2 a. m., went to the Chicken Shack “out on Eastern” with one George Diggs, stayed about 30 minutes, then went home Avith George and spent the remainder of the night, and Avas arrested Monday evening. He testified that he was wearing a Avhite shirt on Saturday night and Sunday morning, brown trousers and hat, and black and Avhite shoes. He Avas wearing a brown and yellow striped “T” shirt when arrested. Defendant offered no other testimony.

On rebuttal Wayne Harbolt denied that in his presence Officer Baker had told defendant that he would get him a suspended sentence if he would plead guilty to this charge, as testified by defendant. E. E. Jones testified that in checking defendant’s story of his Avhereabouts the night the crime was committed, he “checked the Chicken Shack” and talked with George Diggs.

In his petition in error defendant sets out 13 assignments of error, but in his argument groups them under two assignments.

Defendant first contends that the court should have sustained a demurrer to the evidence, and, overruling the same, should have directed the jury to return a verdict of not guilty, arguing that the state’s case rests entirely upon the identification of the defendant by the complaining witness; and cites two cases in support of his contention: Clark v. State, 65 Okla. Cr. 56, 82 P. 2d 844, and Jackson v. State, 12 Okla. Cr. 446, 158 P. 292.

In the Clark case the state’s witnesses disagreed as to the facts, and the court held that the trial court should have advised the jury to acquit the defendant when the state rested; but further held that the information was not sufficient, and the demurrer to the same should have been sustained. The case of Jackson v. State, supra, is quoted with approval in the Clark case. There the state used only two witnesses, and in commenting on the testimony of the second witness, the court said: “In fact, he contradicted the first witness in toto.”

This court has consistently held to the rule stated in the case of Sheehan v. State, 83 Okla. Cr. 41, 172 P. 2d 809, 810, cited by the state, that:

“Before Criminal Court of Appeals will interfere with verdict of jury on ground that evidence was insufficient to sustain conviction, there must be no competent evidence in the record upon which the verdict could be based.”

The evidence here, although not free from doubt as to identification of defendant, was sufficient to warrant submission of the case to the jury, and the jury found the defendant guilty.

Defendant’s second contention is that remarks of the assistant county attorney in his closing argument, and the remarks of the trial judge were prejudicial to the defendant.

Ordinarily, error cannot be predicated upon mere unexplained excerpts from the remarks of counsel to the jury. Enough must appear of record to advise the appellate court of what preceded the alleged objectional remarks and their meaning to be deduced from the context, and whether or not they were invited or provoked by remarks made by the opposing counsel.

The argument of counsel to the jury is not shown in the record. There appears in the record the following:

“During the argument of the assistant county attorney, the following occurred:
“Mr. Lewis: Comes now the defendant and objects to Mr. Mounger, the assistant county attorney, in his closing argument to the jury in the trial before this court, wherein he has used substantially the following language: ‘If you turn this defendant loose, Bill Lewis will be down in my office tomorrow morning and tell me “I have fooled another jury” ’, that the same is highly prejudicial, not proper, and ask this court to declare a mistrial by reason of such highly prejudicial remarks.
“The Court: Let the record show the statement was made in counsel’s argument wherein he told the jury about clearing a man who had robbed a bank at Britton, Oklahoma.
“Mr. Lewis: That is true, and in that connection I stated that the defendant was positively identified by a witness, but notwithstanding that positive identification, the jury cleared him.
The Court: Application for mistrial is denied, with exceptions.
“Mr. Lewis: Comes now the defendant and moves the court to admonish the jury not to consider * * * the remarks just made by the county attorney in connection .with W. H. Lewis coming in his office in the morning and making the statement, 'Well I fooled the jury again’, or words to that effect being highly improper, prejudicial, and does not constitute proper argument.
"The Court: Now I am going to rule on that now. I don’t find any fault with Mr. Mounger’s argument, but I am going to, in spite of that fact, instruct the jury to disregard the remarks about what Mr. Lewis might do. I say that, you understand, gentlemen, without any sense of criticism of the county attorney. You understand you wall disregard those remarks, please.”

We have repeatedly stated that absolute fairness should characterize every Avord and action of a judge, and if this court were doubtful as to whether this action of the trial court in this instance was prejudicial to the defendant, that doubt would be resolved in favor of the accused. But, after reviewing the entire record, and the circumstances surrounding the incident in question, it appears that the assistant county attorney was merely answering the argument of counsel for defendant, and the trial court certainly took that view of the matter. Great latitude should be given to both counsel for the state and the defendant and a wide freedom of expression is authorized in presenting their arguments. ■

In our opinion the record does not support defendant’s second assignment Of error. Wilson v. State, 24 Okla. Cr. 332, 217 P. 885; McDonald v. State, 59 Okla. Cr. 318, 58 P. 2d 345; Trotter v. State, 77 Okla. Cr. 368, 141 P. 2d 812.

Our conclusion is that the punishment assessed by the court is excessive, and that owing to the close question as to the sufficiency of the evidence, and the age and background of the defendant, justice requires a modification of the judgment and sentence of seven years to a term of five years in the State Penitentiary. The judgment of the district court of Oklahoma county is so modified, and as thus modified, is affirmed.

JONES, P. J., and BRETT, J., concur.


author: BRETT, J.

text:
    FORD v. STATE.
    No. A-11094.
    Feb. 1, 1950.
    (214 P. 2d 462.)
    Everett Collins, Sapulpa, for Ford.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., and K. D. Bailey, Co. Atty., Okmulgee, for the State.
   BRETT, J.

The defendant below, Frank Ford, was charged in the superior court of Okmulgee county, Henryetta division, with the crime of murder; was tried, convicted of first degree manslaughter and sentenced to serve a term of 25 years in the State Penitentiary, and he appeals.

The petition in error with case-made attached was filed herein on July 9, 1948. The defendant had 60 days within which to file a brief. The defendant filed no brief in his behalf. The case was set for oral argument on October 26, 1949. No one appeared for the defendant, and the case was submitted on the record on that date. No briefs have been filed nor appearances made subsequent thereto. Under Rule No. 9 of this court it is provided:

“When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court, and the exceptions taken thereto, and the judgment and sentence and if no prejudicial error appears will affirm the judgment.” See Bell v. State, 85 Okla. Cr. 150, 186 P. 2d 344.

We have carefully examined the record in this case and do not find any error which would in any way prejudice the rights of the defendant.

It appears in the state’s case from the record that on July 27, 1947, the same day but preceding the killing herein involved that James Ruff and Allan Ford, the son of the defendant, had an altercation in which Ruff cut Allan Ford with a knife. It further appears that Hubert Porter feared that Ruff might suffer violence at the hands of Frank Ford and that he armed him with a pistol. This fact was discovered by Frank Ford and a man by the name of J. D. Miles who accompanied him to the scene of the cutting altercation. Some words were had between Hubert Porter and Frank Ford at that time relative to his having armed Ruff. After words were exchanged between them, Porter retrieved his pistol from Ruff. Ford and Miles left the scene of this altercation and about dark Porter likewise left with a carload of boys and girls. The record further shows that Hubert Porter had been having trouble with his lights and he was driving without lights. While on the way home with his passengers on July 27, 1947, at 7 p, m., he had a collision with Ford and Miles, and another party in the Frank Ford automobile, as they approached one another topping a little rise in the road, traveling in opposite directions. Immediately followng the automobile collision in which the defendant was riding with the one being driven by Hubert Porter, the said defendant, in the heat of passion left his automobile and went to the automobile of Hubert Porter, opened the door and after some words shot the said Hubert Porter in the elbow, the shoulder, in the right chest and the forehead from which wounds he died.

The defendant’s evidence was to the effect that the collision was a deliberate attempt on the part of Hubert Porter to kill all of the people riding in the defendant’s automobile, and that when he approached him immediately following the accident, that he had a .38 caliber automatic Colts pistol down between his legs which he threatened to use on the defendant, and the defendant shot the decedent Hubert Porter in self-defense.

The jury resolved these issues against the defendant, and found him guilty as hereinbefore set forth. The evidence is entirely sufficient to support the conviction of the defendant. We have examined the pleadings, the instructions of the court and exceptions taken thereto, and the judgment and sentence and find no prejudicial error in the record. The record so appearing, the judgment and sentence of the superior court of Okmulgee county, Henryetta division, is accordingly affirmed.

JONES, P. J., and POWELL, J., concur.


text:
    FLOWERS v. STATE. Ex parte FLOWERS.
    No. A-11110.
    Feb. 1, 1950.
    (214 P. 2d 728.)
    Donald M. Flowers, pro set
    Mac Q. Williamson, Atty. Gen.,, and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
    Cornish & Baumert, McAlester, amicus curiae.
   JONES, P. J.

On January 30, 1948, Donald M. Flowers entered a plea of guilty in the district court of Kay county to the crime of burglary and was sentenced to serve a term of five years’ imprisonment, in the State Penitentiary; at the same time and place, the said Donald Flowers entered his plea of guilty to a charge of kidnapping and was sentenced by the court to serve a term of 20 years imprisonment in the State Penitentiary, the said terms of imprisonment to run consecutively and not concurrently.

Thereafter, the petitioner instituted an orignial action in habeas corpus in this court seeking to secure his release from confinement in the State Penitentiary and alleged that the judgments and sentences pronounced in the cases hereinabove named, in the district court of Kay county, were void for the reason that the defendant was without counsel and that the pleas of guilty were not voluntarily entered but said pleas were made because of coercion, threats and severe beatings administered to the accused by the officers of Kay county. The petitioner further alleged that during the 18 or 19 days he spent in jail in Kay county, he was whipped daily by Harold J. Mead, the undersheriff of Kay county; that he was bruised and beaten, and on the day he was taken before the district court for arraignment, he was told by the said Harold Mead to inform the court that he did not ■want the services of a lawyer, and when the defendant said that he would not do so, the said Harold Mead struck him with the butt end of a pistol, knocking him to the floor; that the said Mead told him that unless he entered his plea of guilty, he, the said undersheriff, would kill him when he got him back in jail.

Thereafter, and within the time authorized by law, the defendant took an appeal from the judgments and sentences rendered against him hereinabove described, and said appeals were consolidated with the habeas corpus action for the purpose of hearing and disposition.

At the time of the hearing before this court, there was filed on behalf of the accused two affidavits. One of these was from Doctor Richard A. Harkins, the prison physician, who swore that he examined the petitioner on February 2, 1948, at the prison hospital. He further swore:

“My physical examination of this inmate disclosed him to be suffering from many bruises about the chest, ribs and bach, which apparently were inflicted by some kind of blows to the body, caused by stomping with the feet, or striking with a club or blackjack.
“At the time of my examination of the above named inmate, we did not have X-ray film available with which to secure pictures of the chest, of which might have been fractures of ribs numbers 4, 5, 6 and 7 right, and 7, 8, 9 and 10 left. This condition was severe enough to keep this inmate under treatment with heat massage and immobilization for ten (10) days. Both of this inmates eyes were blackened, caused from some kind of blows and all anterior upper teeth were loose, as also were many on both upper and lower jaws, both right and left. From ail appearances, this inmate suffered a severe beating, or beatings, before entering this Institution, which records show to have been on the night of January 31, 1948. Hospitalization was required from February 2, 1948 until February 12, 1948.”

Buster Higgins, a prison inmate and physician’s assistant, swore:

“In fifteen (15) years of Dental experience in this Institution, I have yet to find or examine any inmate whose teeth and jaws were in as bad a condition, due to what certainly appeared to me to be caused from some kind of unmerciful beating, or beatings, as I found the above mentioned prisoner (Donald M. Flowers) in. Upon examining this inmates teeth I found them to be broken loose at the jaw bones on both the right and left sides of the jaws, some upper and some lower, and the upper anterior. I have almost continually treated this inmates teeth in an attempt to save them. It was apparent that he had received many severe blows in the mouth and both jaws, and there were also many bruises about his face. I also taped this inmates chest and ribs for severe injuries on both sides which from all appearances showed him to be suffering. A lack of X-ray film here in the Prison Hospital at the time, prevented the confirmation of this condition by picture. His eyes were both blackened also, with many other bruises and lacerations about the head and face.”

To refute the claim of the accused that he was mistreated, the state introduced affidavits of Raymond O. Craig, county attorney of Kay county, Walter Biewer, deputy state examiner and inspector, who was present in the sheriff’s office at the time the said Flowers was taken to the State Penitentiary to commence the serving of his said sentences, of Roy Welch, sheriff of Kay county, of Ralph C. Haynes, county judge of Kay county, and of Harry Bain, chief of police of Newkirk. Each of these affiants swore that at the time Flowers was committed to the penitentiary there were no marks on the said Flowers of any kind, and no outward evidence of any mistreatment.

Judge Haynes swore:

“On the 2nd morning after said defendant Flowers had broken out of jail and had been apprehended at Perry, Oklahoma, that said Flowers was brought back to the Kay county jail at Newkirk, Oklahoma; that a certain officer informed this affiant that said Flowers had been beaten, whipped and threatened. That I went to the sheriff’s office and contacted Undersheriff Harold Mead and told him 1 wanted to see the said Flowers. I was informed by said Mead that he would rather I not see the said Flowers. I wish to state, under oath, that some words were had with said Undersheriff Mead and I left the sheriff’s office. Soon thereafter, and within 30 minutes, the sheriff and Mead came to my office and informed me to go talk to and see the said Flowers. I called the county attorney, Raymond O. Craig, and informed him what the rumor was and to go with me to the jail.
“I did go to the jail with said county attorney and contacted said Flowers. I informed him that I was the county judge and that the rumor was out that he had been whipped and beat-up by some officer and that such practice would not be tolerated in this county and I would see that he was protected if I had to stay there with him until Judge Carver returned to the county.
“Flowers advised me, in the presence of the county attorney, that no one had threatened him or whipped him and that if I did not believe it to examine him. I looked in his mouth, examined his head, looked under his shirt, and went over his head completely and could find no evidence of his having been hit or mistreated. He had no black , eye or any other evidence of rough treatment, and he denied it even when I guaranteed him safety.
“After that, I called upon him daily and never did I see. any evidence of mistreatment. I was in court when he pleaded guilty and I could see nothing wrong with him. I had expected to find Flowers all beat-up and expected to do something about it, but I am fully convinced that he was not mistreated in any manner. I, personally, don’t like Undersheriff Mead and that is common knowledge, but I am convinced he did not hit, whip or mistreat in any manner this said Flowers.”

Raymond O. Craig, county attorney, swore:

“That in January 1948, Donald Flowers was confined in the county jail of said Kay county, held on the charge of second degree burglary in Kay county, and also held upon a warrant issued out of Washington, county, Oklahoma, charging armed robbery. That on or about January 13, 1949, affiant interviewed Flowers concerning jail break from the Kay county jail and the kidnapping of a farmer, one Donald Dorf. That previous to seeing Flowers on that date, affiant in making investigation of such matters had interviewed said Donald Dorf and other witnesses.
“That Flowers was fully advised of his rights and warned that any statement made by him in that connection could be used against him in the prosecution of the offenses alleged. Flowers thereupon stated that he wished to make a full statement. He was questioned by affiant and such questions and the answers, were taken in shorthand by Miss Mary Norris, secretary in the county attorney’s office. Said statement after transcription, was read over by Flowers, and subscribed and sworn to before Mr. H. L. Smiley, Court Clerk.
“Affiant further states, that between the 13th of January, 1948 and the date that Flowers was sentenced, he talked with him three or four times, both alone and in the presence of others, and that the last time he saw Flowers was in the district court when he was arraigned and sentenced. That on none of these occasions was there any evidence of mis-treatment, bruises, black eyes, or otherwise.
“Affiant further states that both before taking Flowers before the county judge, sitting as committing magistrate for arraignment, and before taking him before the district judge for arraignment, he was advised by affiant in the county attorney’s office, of his right to counsel, and all other rights to which he was entitled; and was offered the use of the office telephone to call an attorney, and further advised that the court would appoint a lawyer for him if he could not obtain one for himself. That Flowers was against advised of all his rights by both Hon. Ralph C. Haynes, county judge, and Hon. Roy R. Carver, district judge, when arraigned before each of them, and that in each of said instances, Flowers stated that he waived all those rights, and desired to plead guilty and get started on his time. Judge Carver, after pronouncing sentence upon Flowers, advised him that he would be permitted to withdraw his plea if he so desired, to which the defendant replied that he did not wish to withdraw his plea of guilty.
“That in all of the instances herein mentioned, the defendant Flowers, acted without force, threat or duress.”

Walter E. Biewer swore:

“That he is duly appointed and acting deputy examiner and inspector, under Hon. Chas. Morris, and that his station is at Newkirk, Oklahoma.
“Affiant says that on the 31st day of January, 1948, he was in the sheriff's office when Donald Flowers was brought down and made ready to depart to McAlester, Oklahoma.
“Affiant says that said Flowers was in the sheriff’s office for some 20 minutes and that there was no marks upon the said Flowers. That he had no black eyes and he appeared to be in very good spirits and told everyone good bye. Affiant feels sure that said prisoner had no marks of violence upon his face or person. That none were visible and the said Flowers was in good spirits.”

The other evidence of the state was similar to these herein quoted. They were full and complete statements, and were at absolute variance with the claims of the accused that he was mistreated.

In addition Warden C. P. Burford swore that the petitioner was not confined to the hospital between February 2, and February 12, 1948, as sworn by the prison physician and that after an investigation he had found no one who could recall having observed any outward evidence of bruises or anything to indicate Flowers had been mistreated before entering the penitentiary.

The prisoner, about six months after he was sentenced on July 12, 1948, filed a motion for new trial and a motion to withdraw a plea of guilty and enter a plea of not guilty, which was denied.

Based on the above facts, this court, on September 7 1949, rendered an opinion affirming the judgment of-the district court of Kay county, and denying petitioner’s release by habeas corpus. Subsequent thereto, a petition for rehearing was filed on behalf of the petitioner, to which additional evidence in the form of affidavits bearing on the question at issue was submitted. Also, permission was granted to Cornish and Baumert, attorneys of McAlester, to appear amicus curiae and present certain exhibits in the form of photostatic copies of instruments on file in the State Penitentiary, and to submit a report of their investigation which they alleged supported the conclusions stated in the affidavit of Doctor Harkins. The Attorney General has filed an additional response to the brief of amicus curiae, and has detailed the results of his personal examination of the records in the State Penitentiary concerning this inmate. We have given all of these instruments full consideration.

Counsel for Doctor Harkins have furnished to the court photostatic copies of certain instruments which they alleged were part of the medical file of the petitioner, Flowers, and available to the warden at the time the Attorney General requested the warden for a statement as to anything within his knowledge or obtainable from the penitentiary files which might have a bearing, upon the contentions of Flowers, or the authenticity of the statements set forth in the affidavit of the prison physician. Counsel for the prison physician have attached these photostatic exhibits to their pleading, and have stated that they form the basis for the statements set forth in the affidavit of Doctor Harkins, but were not before the court when the former opinion was rendered. They do not assert that these photostatic copies speak the truth as to Flowers’ physical condition, and admitted the possibility that they may have been tampered with by prison inmates who worked as assistants to the prison physician and to the prison dentist. However, it is contended in justification of the Doctor’s position that these medical cards were in existence and furnished to the Doctor at the time he made his affidavit, and that the affidavit was made in good faith in reliance upon the statements shown on the medical record.

The first of these instruments is a so-called medical card which was allegedly prepared at the time Flowers was received at the penitentiary. This card gave the age, birth place, parentage, education, and other information not particularly pertinent to the issue here involved. At the printed portion of the card under the heading “Serious Illness” there is witten in ink “Injured left side-beat while in jail @ Newkirk.” Then in a different writing under the same heading appears the following: “Chest, pictures-lite duty, R.A.H.” Under the heading “Hospitalized” appears the following: “Admitted 2-2-48 Observ., Discharged 2-12-48.” Then there is written, apparently in pencil, the following: “Bruises, head, back, and chest, possible rib fractures 4-5-G-7 right; 7-8-9-10 left”

There also appeared in the penitentiary files a letter from Warden Burford dated February 5, 1948, which reads:

“February 5, 1948
“Dr. Richard A. Harkins,
“Institution
“Please examine Donald Flowers, No. 48750, tomorrow, February 6, and advise this office of your findings.
“C. P. Burford,
“Warden”

Also, in the prison file is a letter from Doctor Harkins dated February 13, 1948, in answer to the letter* of the warden which states:

“February 13, 1948
“Mr. Lee Ford
“Warden’s Secretary
“Institution
“Re: Flowers, Donald
“4875-W
“Dear Sir:
“Pursuant to your recent request, I have this date examined the above captioned inmate physically and wish to submit the following report:
“He is a 38-year old white male of athletic build 5' 8" tall and weighing 165 pounds. Temperature and pulse were within the normal limits, and blood pressure was 120/90. Nose, throat, eyes, and ears were normal. Tonsils were removed in 1933. Lungs were clear and resonant with expansion free and equal. There is some evidence of external violence which is superficial since flouroseopic studies show no evidence of fracture.
“He advises that he has been hospitalized during his life only for the removal of his tonsils in 1933 and for an appendectomy which was performed in 1932. He advises that he has never had any serious injury. Other than for the above noted items, the physical examination was negative grossly.
“He has been placed on light duty pending study of the rib condition and the extent of the injury. (Italics ours.)
“Very truly yours,
“Richard A. Harkins, M. D.
“Chief Medical Officer”

There further appears a letter of February 24, 1948, from the physician addressed to the Warden’s secretary which states:

“February 24, 1948
“Mr. Lee Ford
“Warden’s Secretary
“Institution
“Re: Flowers, Donald
“48750-W
“Dear Mr. Ford:
“Referring to my memo dated February 13th, with reference to a possible rib injury in the case of the above captioned inmate.
“X-ray studies this date reveals no X-ray demonstrable pathology of the rib cage, and no evidence of X-ray visible tuberculosis.
“Respectfully,
“Richard A. Harkins, M. D.
“Chief Medical Officer”

There is further attached a photostatic copy of an instrument styled “Entrance Classification Report” which is dated February 3, 1948, and signed by the prison physician Avith his initials, R.A.H. In this instrument in response to the question, “Is the prisoner in need of medical or surgical attention?” there was inserted the answer “No” with the notation “Injured left side — was beat up while in jail in Newkirk.” Some of the other questions and ansAvers are as follows : “Condition of eyes? OK. Condition of teeth? Good. Does prisoner need glasses or dental care? No. Has the prisoner been hospitalized in the last thirty days? ' No.”

The Attorney General has filed a response to the statements contained in the brief filed amicus curiae. In this response, attention is called to the fact that the medical card referred to is partially made out in ink with penciled notations, and calls attention to the fact that the statement on the card that the prisoner was admitted to the hospital on February 2, 1948, and remained until February 12, 1948, is in pencil and is eAddently incorrect for the reason that the first medical examination Avas made by the prison physician as shown by his report on February 3, 1948, and that under the prison rules, the prisoner could not have been admitted to the hospital until after examination by the physician. The Assistant Attorney General further stated that because of the allegations and statements made in the brief amicus curiae, he went to the penitentiary on September 19, 1949, and made a personal examination of the prison records. He then states:

“I examined another record which is conclusive upon the matter, but Avhich is not mentioned by counsel. If Flowers had been in the hospital for even one day his name must necessarily have appeared upon the hospital count record where all patients in the hospital are listed each day. I examined this record for every day during the period of time it was claimed that Flowers was in the hospital. At no time did his name appear in the lists of patients. The names of all the other prisoners who were in the hospital appear, hut Flowers’ name was not among them. If he had been in the hospital but his name omitted from the record, such omission would have resulted in an immediate investigation, as the prisoners are counted every day and the omission of Flowers’ name would have resulted in a shortage in the count. There can be no other conclusion than that Flowers was never in the hospital but was in his cell where he belonged.”

The response again calls attention to the photograph of the petitioner made on February 2, 1948, which shows no trace of black eyes or bruises or lacerations on the face. Thereafter, permission was granted to file an additional report on behalf of petitioner in answer to the report of the Attorney General, which pleading considers paragraph by paragraph the contentions of the Attorney General. In answer to that part which mentions penciled notations appearing on Flowers card, it is stated that out of 200 medical cards examined at about the time the Flowers card was prepared, over 100 of them contained penciled notations similar to those on the Flowers card. As to the “hospital count record” stressed by the Attorney General, counsel state that the daily sick report referred to is prepared in an original form with two copies; that the originals are signed but the copies are not; that no originals can be found for the entire year of 1948, but that the report referred to by the Attorney General is an unidentified, unsigned carbon.

We have purposely made an extended statement of all the evidence before us. One of the things which particularly attracted the attention of this court was the letter of February 5, 1948, from the warden directing an examination of the prisoner by the prison physician. This is one of the most unusual cases ever presented to the Criminal Court of Appeals because of the apparent conflict in the evidence for the petitioner and that of the state. Neither the Attorney General nor the warden were able to shed any light upon the letter written by the warden on February 5th. In an effort to ascertain the exact truth of all the charges' and countercharges, this court made inquiry of the Honorable Buck Cook, Commissioner of Charities and Corrections, as to whether any investigation had been made by his department of alleged beating of Flowers, and we there learned that on February 5, 1948, Mr. Cook received a letter which was forwarded to him by the mother of the petitioner, Flowers, which letter was purportedly written by Flowers to his mother from the penitentiary on February 3, 1948. In this letter, among other things, it stated:

“Meade came to my cell with his blackjack and paid me another visit — well as a result my ribs and left side are stomped in and beat in and in a bad shape. I’ll get alright now though since I got away from up there. I had one month of solid beatings and I do not believe I would have got away alive if I didn’t plead guilty * * *

Immediately, upon receipt of this letter on February 5, 1948, the Commissioner of Charities and Corrections called the warden and asked him to have a medical examination made of the petitioner. This apparently was the motivating force which caused the warden to write the letter of February 5, 1948, to the prison physician. The complete report of the Commissioner of Charities and Corrections has been furnished to the court. The Commissioner assigned Mr. Hawkins, one of his investigators, to go to the penitentiary immediately and made an investigation on the basis of the copy of the letter which had been furnished to the Commissioner written by Flowers to his mother. The investigator made an extensive investigation, not only at the penitentiary but also in Nowata and Kay counties, and concluded that the charges by Flowers were unfounded.

It is the rule that the trial court should be liberal in permitting a guilty plea to be withdrawn, a plea of not guilty substituted, and where there is any substantial evidence that a plea of guilty was entered through inadvertence, ignorance, coercion, or without deliberation, the trial court should allow such plea to be withdrawn and a plea of not guilty substituted so that a jury could determine the guilt or innocence of the defendant upon its merits. Wilson v. State, 82 Okla. Cr. 272, 168 P. 2d 898; Sloan v. State, 54 Okla. Cr. 324, 20 P. 2d 917.

This is not a case where a prisoner in the penitentiary has waited several years after his incarceration and then attempted through habeas corpus to secure his release on the ground that his plea of guilty was entered through ignorance, or because of force or threats exerted upon him. In the instant case, the petition for habeas corpus was filed shortly after the petitioner entered the penitentiary. Also, before the six months period had elapsed from which an appeal from the judgment and sentence pronounced against him could be taken, an appeal was lodged in this court. Both actions were consolidated for the purpose of this opinion.

There is no support in the record for the statement in the petition, nor in the physician’s affidavit that “both of this inmate’s eyes were blackened, caused from some kind of blows, and all anterior upper teeth were loose, as also were many on both upper and lower jaws, both right and left.” So far as the black eyes and damaged teeth were concerned, all of the evidence of injuries is to the contrary. The signed doctor’s report furnished by his counsel states that the condition of teeth was good and that the prisoner did not need dental care. However, one thing stands out throughout all this confused maze of evidence, there apparently was an injury to the prisoner’s side, and even if the Attorney General’s contention that there was collusion between the physician and prisoner to effect the prisoner’s release from prison is correct, yet in the letter of February 13, 1948, which is in the Warden’s file, hereinabove quoted, and written at a time months before any alleged collusion would have occurred, the Doctor stated:

“There is some evidence of external violence,” and “He has been placed on light duty pending study of the rib condition and the extent of the injury.”

Amidst all of the evidence offered to refute the contention of petitioner, there is an absence of any affidavit or testimony of Harold Mead, undersheriff of Kay county, who was the man alleged by the petitioner to have administered the beatings to him which caused him to enter the plea of guilty.

It is a regrettable condition that all of the penitentiary records and other evidence bearing on petitioner’s case were not presented prior to the rendition of the former opinion. This court has no way of knowing the facts in any case except by the record that is brought before us. We have a large number of habeas corpus actions filed each year by inmates of the penitentiary who do not have counsel. We have been liberal in the construction of their pleadings, and in the manner of the introduction of evidence in the hearing on such petitions.

In order to vacate a judgment and sentence by habeas corpus because of the alleged denial of fundamental constitutional rights, where the judgment is regular on its face, the proof of the petitioner must be clear, convincing, and without doubt. It has been our experience that most inmates of the penitentiary will swear to anything to secure their release from confinement. Their testimony alone, or even when supported by another inmate’s statement, is not entitled to much weight. The instant case, while started as a habeas corpus case, is also an appealed case, and in a case which is appealed, in order to vacate a judgment rendered on a plea of guilty, the rule is less stringent, and where there is any substantial evidence to show that a plea’ of guilty was entered through inadvertence, ignorance, or because of threats, coercion or duress, the judgment should be vacated because trial of a case on its merits is favored.

The petitioner has falsely exaggerated his physical condition, and we believe that with the possible exception of an injured left side, there were no other injuries; but because of the apparent bruised side, there is sufficient element of truth in his contention that he was beaten while in the Kay county jail (which is uncontradicted by the man who is alleged to have done the beatings) that we-have come to the conclusion that the pleas of guilty should be vacated and the petitioner remanded to the custody of the sheriff of Kay county for further arraignment on the charges there pending against him.

Before concluding this opinion, we feel constrained to comment upon one statement in our former opinion which read:

“It is apparent there was some connivance between the prisoner and the prison physician to attempt to effect petitioner’s release from prison.”

Under the record as presented to the court at that time, we felt impelled in order to uphold and maintain the integrity and purity of our court to make such statement. It seemed to us that such flagrant falsehoods should not be allowed to pass unnoticed and thus encourage a repetition of such conduct. The statement was fully justified under the record as then presented. The evidence of the petitioner, including the doctor’s affidavit, was in irreconcilable conflict with that of the state and contrary to certain physical facts as shown by the petitioner’s photograph and other evidence. However, if the complete record as presented on rehearing had been before the court at the time the first opinion was written, the above statement would not have been made. There are some gross inaccuracies in the physician’s affidavit, but after learning more about the looseness with which the penal records were kept, and the fact that a large part of the records were prepared by inmates of the prison, we can perceive how the doctor might have signed an affidavit prepared by Higgins, the inmate who was the doctor’s assistant, upon the representation by Higgins that the affidavit spoke the truth, and in such a case there would have been no intent to mislead or deceive this court. We have attempted fairly to present all of the evidence, and if the Attorney General is still convinced there was collusion between the doctor and the petitioner to commit perjury in order to effect petitioner’s release from prison, he is vested, under the law, with authority to take appropriate action.

It is therefore ordered that the judgment and sentence in criminal cases number 3489 and 3490 in the district court of Kay county, and all proceedings in said cases subsequent to the filing of the information against the accused, be and the same are hereby vacated and set aside.

It is further ordered that the warden of the penitentiary deliver the petitioner, Donald Flowers, to the custody of the sheriff of Kay county, and that he be held in the Kay county jail in accordance with law, pending his arraignment on the charges pending against him.

BRETT and POWELL, JJ., concur.