text:
    ARTHUR GOAD v. STATE.
    No. A-6472.
    Opinion Filed July 13, 1929.
    (279 Pac. 927.)
    J. G. Ralls, for plaintiff in error.
    H. H. Cook, Co. Atty., and Paul N. Buford, Asst. Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Atoka county on a charge of having possession of intoxi-eating liquor, and was sentenced to pay a fine of $50 and costs taxed at $32.20, and be imprisoned in the county jail for a period of 30 days.

Defendant for his first ground of error alleges: “The court erred in overruling the motion to disqualify the presiding judge in this cause.” When the case was called for trial, the defendant filed the following affidavit:

“Affidavit to Disqualify Judge.
“Comes now the defendant Arthur Goad, and respectfully shows to this Honorable Court that the presiding judge, to wit: Otis H. Presson is a material witness in behalf of this defendant, and shows that the defendant is charged with manufacturing and having in his possession what is commonly called ‘Choctaw beer’, and in truth and in fact the liquid seized by the officers was not Choctaw beer; that it was not fermented and was not intoxicating and did not contain one half of one per cent, of alcohol and in fact did not contain any alcohol at all. This defendant shows that the said Otis H. Presson sampled three of the bottles and knows and will testify that no fermentation had been had and that the same was not intoxicating and contained no alcohol and he is therefore a material witness in this case in behalf of this defendant.
“Arthur Goad.
“Subscribed and sworn to before me this the 8th day of November, 1926. W. H. Parker, Notary Public. My commission expires, August 14th, 1927. Seal. Endorsed. Piled in County Court Atoka County, Oklahoma, at Atoka, November 8, 1926. Ida Sloan, Court Clerk, by Louise Rainey, Deputy Court Clerk.”

This application was overruled and the cause proceeded to trial before the judge sought to be disqualified in the application.

The question before the court is, Does the application set out sufficient facts to enable this court to say as a matter of law that it was prejudicial error for the trial judge to refuse to disqualify? This question has never been passed upon by this court. .

In the case of Johnson v. Wells, County Judge, 5 Okla. Cr. 599, 115 Pac. 375, 376, this court said:

“Where it is sought to disqualify a judge from trying a case upon the ground that such judge is a material witness in behalf of the defendant, the application for such change of judge and the petition for a writ of mandamus must clearly show wherein the testimony of said judge is material in the causa * * *
“The petition further alleges that respondent is a material witness for the petitioner upon the trial of these eases. Even if the petition for a writ of mandamus had been filed in time, we could not disqualify respondent upon the bare allegation that he was a material witness for the petitioner. If so, we would place it within the power of any defendant to disqualify a judge in any case where he was willing to swear that such judge was a material witness in his behalf. If this ground is to be relied upon, the application for a change of judge must, by proper averments, show that such judge, as a matter of fact, is a material witness in said cause.”

In the case of State ex rel. Nowakowski v. Lockridge, 6 Okla. Cr. 216, 221, 118 Pac. 152, 154, (45 L. R. A. [N. S.] 525, Ann. Cas. 1913C, 251), this court said:

“In the case of Johnson v. Wells, 5 Okla. Cr. 599, 115 Pac. 375, an attempt was made to disqualify the county judge of Coal county upon the ground that he was a material witness for the defense; but this court refused to recognize this as being per se a ground of disqualification, and held that where this ground was relied upon the allegations contained in the petition must be such as to enable this court to determine as a matter of fact, that such judge was thereby so disqualified. We now reiterate the statement that the mere fact that a judge may be a witness in a case does not, in and of itself, necessarily disqualify him from presiding in the trial of such case.”

In the case of Powers et al. v. Cook, 48 Okla. 453, 149 Pac. 1121, 1122, L. R. A. 1915F, 766, that court had under consideration the precise question involved in this case and said:

“A trial judge of a court' of record, before whom a cause is tried with a jury, cannot testify for one of the parties thereto, over the objection of the other, as to a material point at issue; and where, when the cause is called for trial, the plaintiff presents a proper application requesting him to disqualify on account of the fact that he will be used by the defendant as a witness on a material point at issue, which motion is overruled, and he then tries the case and testifies for the defendant on a material point at issue, his action in overruling said application is prejudicial error and fundamentally wrong. * * *
“The trial judge refused to disqualify himself, to which the plaintiff saved exceptions. Following this, the case was tried; and during the progress of the trial the trial judge took the witness stand and testified for the defendants on the question as to the alteration of the note sued upon. This testimony was material, and in fact the sole defense relied upon by the defendants in error. Objections were made to certain features of his testimony, and these objections were overruled by him while on the witness stand. In other words, he acted in the capacity of both judge and witness in the trial of this case. Plaintiff in error insists that this was prejudicial error, and that the trial judge should have sustained the motion to disqualify himself. * * * We have no statute authorizing a trial judge to testify in a case tried before him, and, in the absence of such a statute, we think he has no right to do so, over the objection of the parties against whom he testifies, and especially is this true where his testimony is material, as it was in this case. We think this is the general rule. This question is discussed in 44 Cyc. p. 2234, wherein it is said:
“ ‘As a general rule the judge before whom a case is being tried is not a competent witness therein; but under some statutes the presiding judge is a competent witness for either party, and when called to' testify he may, in his discretion, order the trial to be suspended and to take place before another judge, or to proceed before him.’
“And in vol. 17, Am. & Eng. Ency. L. pp. 724-725, it is said:
“ ‘The inclination of the courts has been to hold that when it is. necessary for the conduct of the trial of a cause that one should act as judge, he may not be called from the bench to be examined as a witness.’
“ ‘It is error for a judge who is a member of the court, and necessary to make a, duly constituted court, to become a witness in a case before the court, and if objection be made and exception taken, such error will be fatal to the judgment.’
“Greenleaf on Evidence (16th Ed.) 395, discussing this question, announces the rule to be:
“ ‘It may be proper to take notice of the case, where the facts are personally known by the judge, before whom the cause is tried., and whatever difference of opinion may once have existed on this point, it seems now to be agreed that the same person cannot be both witness and judge in a cause which is on trial before him.’
“See, also, Jones on Evidence (civil cases) 958; 3 Wigmore on Evidence, 25-26; 1 Chamberlain on Evidence, 745; Maitland v. Zanga, 14 Wash. 92, 44 Pac. 117; Rogers v. State, 60 Ark. 76, 29 S. W. 894, 31 L. R. A. 465, 46 Am. St. Rep. 154; People v. Dohring, 59 N. Y. 374, 17 Am. Rep. 349; Gray v. Crockett, 35 Kan. 66, 10 Pac. 452; Estes et al. v. Bridgforth, 114 Ala. 221, 21 So. 512; Shockley v. Morgan, 103 Ga. 156, 29 S. E. 694; Baker v. Thompson, 89 Ga. 486, 15 S. E. 644; Dabney v. Mitchell, 66 Ala. 495; Morss v. Morss, 11 Barb. (N. Y.) 510; McMillen v. Andrews, 10 Ohio St. 112.
“The rule is announced in the Ency. of Evidence, vol. 3, p. 215, as follows:
“ ‘A judge of a court of record or a referee is not at common law a competent witness in a case pending before him on grounds of public policy.’ ”

In Powers v. Cook, supra, the court said:

“The trial judge in this case acted in two capacities, as judge and witness, passed upon objections to certain portions of his testimony, and, after he had finished testifying, returned to the bench and continued to try the case. To our minds, this was prejudicial to the rights of the plaintiff and fundamentally wrong, and, as was stated by Justice Folger, in the case of People v. Dohring, supra, ‘because such practice, if sanctioned, may lead to unseemly and embarrassing results, to the hindering of justice, and to the scandal of the courts.’ It tends to lessen the dignity of the court, and bring it into disrepute. It is well known to every practicing lawyer that the testimony of the trial judge, upon a material point, will outweigh the testimony of the ordinary witness, and to permit him to testify gives an undue advantage to the party for whom he testifies. It is wrong, both in principle and in morals.”

There might arise occasions during the trial of the case when the judge could very properly testify upon some formal matter, such as identifying his signature, or as to some formal order made by him, but, where the defendant seeks to disqualify the trial judge upon the ground that he is a material witness in the case and sets out material facts which he expects to prove by the trial judge, the proper proceeding is for the judge to disqualify and permit a judge to be chosen as provided by law to preside in the case.

The defendant complains and vigorously argues in his brief that the court erred in allowing the sheriff and his deputies to testify to the reputation of the place where the liquor was found, without the state first establishing the fact that such place was a place of public resort. The quantity of liquor found by the officers made a prima facie case, and it was unnecessary for the state to introduce evidence of reputation to establish the intent. The fact that the defendant took the stand and himself testified to the large number of people who came and went to and from his place seeking the purchase of liquor made this evidence competent on rebuttal by the state.

For the reasons stated, the cause is reversed and remanded, with instructions to proceed with the trial of this case in accordance with this opinion.

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


source: Caselaw Access Project

author: CHAPPELL, J.

license: Public Domain

text:
    ALBERT ERVIN v. STATE.
    No. A-6586.
    Opinion Filed July 13, 1929.
    (279 Pac. 710.)
    Warren & Warren, for plaintiff in error.

      Hal Welch, Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Choctaw county on a charge of having possession of a still which was capable of being used for the production, manufacture, and fermentation of distilled spirits, to wit, whis: ky, and was sentenced to pay a fine of $50 and be imprisoned in the county jail for 30 days. The cause is now on appeal in this court.

On the 23rd day of December, 1926, the county attorney filed an information against Lawrence Logan and John Doe charging them with the possession of a still. A warrant was duly issued on such information for John Doe, and the sheriff made the following return of the warrant: “Received this writ on the 23rd day of December, 1926, and executed it by arresting Albert Ervin and now have his body before this court. W. L. Ellis, Sheriff, by C. F. Weddington, Deputy. Indorsements, No. 2601, Warrant, County Court, State of Oklahoma v. John Doe, defendant. Filed: Returned and filed this 25th day of December, 1926. J. H. Crain, Court Clerk, by E. A. Trice, Deputy.”

At page 8 of the case-made tlie following proceedings were had:

“State of Oklahoma, Plaintiff, v. Lawrence Logan and Albert Ervin, Defendants. No. 2601. Arraignment.
“Now on this 3rd day of January, A. D., 1927, the same being a judicial day of the regular January, 1927, Term of this Court, the above entitled cause comes on for the arraignment of the . defendants, and the State of Oklahoma appearing by Hal Welch, County Attorney, and the said defendants appearing by their attorney, J. H. Warren. Thereupon the said defendants having waived time in which to plead to said information, waive arraignment and, by their attorney, J. H. Warren, enter their pleas of not guilty of the offense charged in said information, of the records of Choctaw County, State of Oklahoma in County Court. Court Journal No. 2.”

At page 9 of the case-made the following further proceedings appear to have been had:

“Thereafter: And on, to wit: the 27th day of January, A. D., 1927, both the State of Oklahoma and the defendant, Lawrence Logan announce ready for trial and the defendant, Albert Ervin being absent, his attorney, J. H. Warren announces ready for trial as to Albert Er-vin and agrees that the trial may proceed as to both defendants, whereupon a jury of six good and lawful men of the body of Choctaw county, Oklahoma is duly impaneled and sworn according to law, whereupon the following proceedings were had in this cause and the following testimony adduced in words and figures as follows, to wit:”

The only question raised by the defendant is that it was error for the court to admit any evidence against the defendant designated as “John Doe”, because the officers knew at the time the information was made what the true name of .the defendant was. W. L. Ellis, sheriff, testified as follows:

“Q. The man with this defendant, you didn’t know his name at the time? A. No, sir.
“Q. And at the time the information was filed you didn’t know his name? A. No, sir.”

Where the true name of the defendant is unknown to the county attorney, he may legally proceed against such accused person under the name of “John Doe.” The information may properly designate him as “John Doe,” and the warrant may properly issue commanding the arrest of defendant under the name of John Doe. When the defendant is arraigned the court should ascertain his true name, and thereafter the proceedings should be carried on in such true name. Section 2557, Comp. St. 1921.

In the case at bar the defendant was arraigned, waived time to plead, waived arraignment, and through his attorney, J. H. Warren, entered a plea of not guilty. On the 27th day of January, when the case was called for trial, the defendant under the name of Albert Ervin being absent, his attorney, J. H. Warren, announced ready for trial and consented that the trial might proceed in the absence of the defendant. The trial was had in the absence of the defendant and a verdict of guilty returned by the jury. The case-made reveals the fact that the defendant was prosecuted in his true name as soon as it was known by the officers, and for that reason the cause should be affirmed. ' Counsel for defendant cite no authorities and present no argument to sustain their contention.

The cause is affirmed.

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


text:
    HENRY PRUITT v. STATE.
    No. A-6577.
    Opinion Filed July 13, 1929.
    (279 Pac. 707.)

      Hodge & Schenk, for plaintiff in error.
    F. M. Dudley, Co. Atty., and Marvin Schilling, Asst. Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county on a charge of having possession of intoxicating liquor with intent to barter, sell, give away, or otherwise furnish the same, and was sentenced to pay a fine of $50 and to be imprisoned in the county jail for 30 days. The cause is now on appeal in this court.

The first ground of error alleged by the defendant is that the arrest of the defendant was illegal and unauthorized, which rendered incompetent all the testimony introduced by the state in support of the prosecution. The evidence of the state as to the arrest was that Bob Short and Frank Jackson, deputy sheriffs, were near Pruitt City, in Carter county transporting some prisoners to the county jail, when they saw the defendant standing in the road with his foot on. the running board of a car; that the officers knew Pruitt, and knew he had been handling whisky; that the car slowed down, and officer Jackson jumped off the car, and the defendant started to run and jumped a little ditch, and at that time he saw a half gallon jar of whisky in the hands of the defendant, and ordered him to halt, and fired his revolver in the air to compel him to halt; that the .defendant jumped the fence and ran down into the timber, with officers Long and Jackson both after him,, and that they caught up with him less than 100 yards from the fence; that defendant was trying to break the jar containing the whisky; that the officers saw the whisky before they attempted to make the arrest; that from what the officers saw they believed the defendant was in the act of making a sale of liquor at the time they stopped to make the arrest.

This court has always held that a warrant is unnecessary to make an arrest in a misdemeanor case, where the offense is being committed in the presence of the officers. Section 7014, Comp. St. 1921; McAdams v. State, 30 Okla. Cr. 207, 235 Pac. 241. The arrest of the defendant being legal, the objection of the defendant to the admission of the state’s testimony was properly overruled.

The defendant next complains that the court erred in refusing to give the following requested instruction:

“You are instructed, gentlemen of the jury, that although you may find and believe the defendant, Henry Pruitt at the time of his arrest in this case, actually had: whisky in his possession with the unlawful intent to violate the law, you are not authorized to convict him, unless you further find and believe from the evidence, beyond a reasonable doubt, that the officers, Short and Jackson, did not start to make search or arrest before they saw said whisky in said defendant’s possession.”

This instruction did not correctly state the law of the case and was properly refused. An examination of the instructions given by the court on its own motion discloses that they correctly state the law as applicable to the facts disclosed by the evidence in the case.

Finally the defendant complains of the admission of incompetent and prejudicial testimony.- The officers were permitted to testify to a conversation occurring between the officers and the occupants of the car the defendant was standing near at the time the officers started to make the arrest. The officers testified that the defendant was between them and the two men in the car, and that the men in the car told the officers in the presence of the defendant that they ■ just stopped there to get a little drink. When asked if the defendant heard this conversation, the officers said he must have, because he was between them and the men the officers were talking to.

Section 2822, Comp. St. 1921, provides:

“No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.” Ray v. State, 35 Okla. Cr. 322, 250 Pac. 438; Neuman v. State, 35 Okla. Cr. 296, 250 Pac. 554; Edwards v. State, 9 Okla. Cr. 306, 131 Pac. 956, 44 L. R. A. (N. S.) 701.

This court has many times held that it cannot reverse cases for the admission or rejection of incompetent testimony, unless it affirmatively appears from the record that the admission or rejection of incompetent testimony probably caused a miscarriage of justice, or that the defendant was deprived of a constitutional or statutory right.

The verdict of the jury is supported by sufficient evidence. The defendant was given the minimum punishment. We are unable to see how the defendant could have been in any wise prejudiced by the testimony complained of.

For the reasons stated, the cause is affirmed.

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


author: DAVENPORT, J.

text:
    MORRIS PACK et al. v. STATE.
    No. A-6474.
    Opinion Filed July 13, 1929.
    (279 Pac. 698.)
    Ben. F. Williams and Crawford Cameron, for plaintiffs in error.
    Edwin Dabney, Asst. Atty., for the State.
   DAVENPORT, J.

The plaintiffs in error, who will hereinafter be referred to as the defendants, were convicted of the crime of conveying intoxicating liquor from a point unknown to affiant, to a point on East Main street, in the city of Norman, and each sentenced to pay a fine of $100 and be imprisoned in the county jail for 60 days. The defendants have perfected their record, and appealed to this court.

The defendants filed their" motion to suppress the evidence of the state oh the ground that said defendants were arrested and searched without a search warrant by Bill Greenway, in violation of their constitutional and legal rights, which motion was by the court heard, considered, and overruled, and defendants duly excepted. Defendants then filed a demurrer to the information, which demurrer was heard and overruled by the court, and defendants duly excepted.

The state called Harvey Cobb, who testified in substance that he lived in Cleveland county. He knew Morris Pack and Barney Smolin. The defendants came to his place of business some time between 6 and 7 o’clock in the evening. “I don’t know how they came there; they had their car in my garage when I returned, it was a Chrysler roadster No. 70 model; I did not talk to either of them; Bill Green way was there that evening; about the only thing I remember was Mr. Pack said not to open the car; I went to get a key to open the back end and could not find it; Mr. Pack asked Smolin if he had a key and Mr. Smolin said he did not.” On cross-examination witness stated that the defendants had been to his garage once or twice before. “Their car was standing in the doorway of the garage when I saw it; when Mr. Smolin went back to the car we heard some kind of a noise like something had been thrown and Mr. Greenwav caught hold of Mr. Pack’s arm and took him back with him; be had a six shooter out and told Mr. Smolin to put the grip back in the car, and defendant said he did not have anything; Green way then said, ‘You go get that grip and put it back in the car’ and defendant refused the second time, and Greenway then said, ‘Get it,’ and got his six shooter and says, ‘Get it or I will shoot your legs from under you’; the defendant objected to putting the grip back in the car; I do not know what was in the grip; the defendant put the grip back in the turtle of the car; Green way took Morris Pack and the car away with him.”

William Green way testified he was an officer; that he knew Barney Smolin and Morris Pack; that he did not know them until June 24,1926, when he arrested them in front of the Norman Hotel on East Main street, in Norman, Oklahoma.

“I went out and said I wanted to look into the car, and he said, ‘Are you an officer?’ and he said he didn’t have any key, and I said, ‘We will go down to the Cobb garage and get one,’ and we drove down to the Cobb Motor Company; we waited about ten or fifteen minutes and' could not find a key; Mr. Pack said I could go to the city with him and get another key and I said I didn’t have time to go to the city; he then said I could not look into the car; just about that time another gentleman came up; he opened the rear end of the car and got out a suit case and threw it there in the garage; Greenway then took hold of Mr. Pack and said, ‘Let’s go back there,’ and said, ‘You put that suit case back where you got it,’ and Smolin said he did not have to, and I said, ‘The best thing you can do is to put it back,’ and he refused to do it the third time; Pack was telling him not to put it in there, it was not his, and he said he would not put it back; I then took my gun out like this, and said, ‘You had better put it back in there or I will shoot your legs out from under you’; he sáid, ‘If you feel like that about it, I wilt have to put it back’; I then took Mr. Pack and drove away down to the county jail; I opened up the grip and found three quarts of whisky in it; I had not examined the grip before that time; I had no warrant for the arrest of either of the defendants when I arrested them in front of the Norman Hotel; I did not see them commit any offense, but I thought they had whisky in the car, and I drove down to the garage to get a key to open the car, and, when Mr. Smolin took the suit case out of the turtle of the car, I did not know what it contained, and did not know until after I had placed them under arrest and had driven the car down to the county jail.”

This is in substance all the testimony we deem necessary to set out for the purpose of deciding this case.

The defendants moved the court to strike the testimony of the witness Greenway, on the ground that there was no foundation laid for its introduction, and for the further reason that he had no warrant for the arrest of the defendants, or either of them, or a search warrant to search the defendants’ car, which motion was overruled and defendants duly excepted. The defendants then demurred to the evidence on the ground that the proof offered by the state is wholly insufficient to warrant or sustain a conviction in this case, which demurrer was overruled, and defendants duly excepted. The defendants then offered the testimony of the county clerk to show that the appointment of Greenway as deputy sheriff had not been approved by the county commissioners, and therefore he could not be a deputy sheriff.

The-defendants assign several errors committed in the trial of the case upon which they rely for a reversal. The only errors we deem necessary to consider are assignments 10 and 11; No. 10 being:

“Error of the court in admitting, over the objection of the defendants, testimony of the witness Bill Green-way for the reason that the said Bill Greenway arrested the said defendants and seized the grip and contents thereof without a search warrant.”
“No. 11. ErroT of the court in overruling the defendants’ motion for a new trial.”

These two assignments may be considered together, as they relate to the same question. It is denied by the defendants that Greenway had been legally appointed deputy sheriff, but, for the sake of this opinion, we think it is immaterial whether he was a legally appointed deputy sheriff or not. Greenway himself admits that, when he placed the defendant Morris Pack under arrest in front of the Norman Hotel, he did not have a warrant for the arrest of defendant, or either of them, nor did he have a search warrant to search their person or the car, but he took Morris Pack into custody, and, when advised by Pack that he did not have a key to unlock the turtle of the car, he drove some distance in the car with him to the Cobb Motor Company, where he attempted to borrow a key. In the garage the other defendant went into the back of the car and took out a grip, and, when discovered, the said witness Greenway demanded of him to put the grip back, and defendant Smolin refused to put the suit case in the car; Green way again told him to put it back, and he again refused, and witness Green-way says he then took out his pistol and said, “You had better put it back in there or I will shoot your legs out from under you,” and he said, “If you feel like that I will have to put it back.” The record further shows that without further search or investigation witness Green-way got into the car and took Morris Pack and drove to the county jail, and, after he got down to the jail, he examined the grip, and claims to have found whisky in the grip.

The defendants urge that the evidence in this case was inadmissible, for the reason that it was unlawfully obtained by the witness Greenway placing them under arrest and searching the car without a search warrant or without a warrant for their arrest. This court has no desire to criticize an officer when in the proper discharge of his duty, but we feel constrained to suggest that it is most unusual, if the testimony is to be believed, that an officer in the discharge of his duty would without authority of law approach parties on the street, who were not committing an offense or disturbing the peace and demand of them that he wanted to search their car. If officers of the law are permitted when they are on the streets or public highways and see some one driving, or sitting in their car, to act on mere suspicion that they might have committed an offense, and demand of the occupants that they be permitted to search the car or place the parties under arrest, without any warrant to search the car or a warrant of arrest, then the guaranties of the Constitution amount to nothing. These defendants had a right to be upon the streets of Norman, and, as long as they were peaceable and not disturbing any one or committing any offense in the presence of the officer, the officer was without authority to place them under arrest.

In Klein v. State, 26 Okla. Cr. 173, 223 Pac. 201, in the third paragraph of the syllabus, the court said:

“In a prosecution for transportation Of intoxicating liquor, evidence obtained by search of defendant’s automobile without a search warrant held inadmissible, in view of Const., Art. 2, § 30.” "

In Taylor v. State, 36 Okla. Cr. 431, 255 Pac. 157, this court said:

“At the time charged in the information certain officers intercepted the defendants in an auotmobile upon the public highway and attempted to stop them. When they did not promptly stop, they fired into the car in which they were driving and then arrested defendants •and searched the car and found in it a jug of whisky. They had no warrant for the arrest of defendants nor any search warrant, and the apprehension and search was based on suspicion only. This was in violation of the constitutional and statutory rights of defendants and was seasonably objected to. The conviction cannot be sustained.”

The evidence in this case is challenged on the ground that it was unlawfully procured, and on the further ground that it was insufficient to sustain a conviction. We hold that the evidence in this case was obtained by Greenway by an unlawful search and seizure, and contrary to section 30, art. 2, Bill of Rights, and was improperly received in evidence in violation of the defendants’ rights.

There are other errors assigned, but in the view we take of the record, it is not necessary to consider them. The defendants’ motion to suppress and demurrer to the evidence should have been sustained. There, being no competent evidence to sustain the judgment, the judgment appealed from herein is reversed, and the cause remanded.

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


text:
    BEN DAVIES v. STATE.
    No. A-6596.
    Opinion Filed July 13, 1929.
    (279 Pac. 696.)

      Drennan & Drennan, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of maintaining a public nuisance, and was sentenced to pay a fine of $50 and be imprisoned in the county jail for 30 days. Motion for new trial was filed and overruled, and the case appealed to this court.

The testimony on behalf of the state in substance is as follows: Prank Hamilton testified he was sheriff of Grant county; he answered a call, and went to.the home of Ben Davies; when he got there, Ben was cleaning the house after a party, where some of them had gotten a little full; defendant told him he had had a little trouble with Fred Ernest, that Fred made a lunge at him with a knife, and he shot him in the knee with a little 22 pistol. “I did not find any whisky there. I found some Rexall bath alcohol and placed the defendant under arrest for shooting Fred Ernest.” On cross-examination he stated he never knew of any one drinking bath alcohol. “I made a trip out there because I had been advised Fred Ernest had been shot. I did not go out there for the purpose of searching the Davies home.”

W. M. Schultz stated he lived less than one-half mile from defendant’s home; the reputation of defendant’s home was fairly good in some ways and in some ways not so good. “I have seen a number of people there at his house and a number of ears; never did hear any unusual noise or disturbance at the place.” On cross-examination witness stated he lived in one-half mile.of defendant’s home, and that Mr. Snyder and Mr. Bluebaugh lived nearer the defendant’s place than he did; that cars went back and forth, and that cars went back and forth to other places in the community.

Dr. H. P. Rutherford was called, and testified he treated Fred Ernest for his wound where he had been shot; he picked a number of shots out of Fred’s leg. This was objected to by the defendant on the ground that it was incompetent, irrelevant, and. immaterial, which objection was overruled, and defendant duly excepted.

J. H. Snyder was called for the state, and testified he lived just across the road from the defendant; witness was asked as to the reputation of- defendant’s place before the time mentioned in the affidavit, and answered, as far as he was concerned, on oath, “I could not say.” On cross-examination he was asked if he had seen any one drunk or heard any unusual noise, which was objected to by the defendant, the objection overruled, and defendant saved an exception. The witness answered he had never seen anybody drink anything but water. He had never seen any one drinking there.

This is in substance the testimony on behalf of the state. The defendant demurred to the evidence offered by the state, on the ground that same wholly fails to show that defendant has maintained any public nuisance, in this, that no witness testified that he was annoyed or vexed in any way by what occurred at defendant’s home, which demurrer was overruled, and defendant duly excepted.

The defendant in his own behalf testified that he lived on his mother’s farm, and that the neighbors came in to listen to the radio.

“On the night of May 11,1926, I had been to a dance and several parties came to my house in my car; Fred Ernest went out to my house with me; there was no whisky there excepting what Fred Ernest had; the bath alcohol found by the officers I used for bathing my leg that had been amputated; the parties stayed at my house practically all night.”

On cross-examination he stated he had had the radio for four years.

“I saw Fred Ernest have a pint of whisky, I saw it as we passed the Osage bridge on the way out to my house; we cooked something to eat about daylight. When the sheriff and county attorney came out to my house I told them I had shot Fred Ernest, that he had a knife in his hand, and I said he was drinking; there was no disturbance there other than the little trouble Fred Ernest and I had.”

Lee Bluebaugh, testifying for the defendant, stated' that he worked the farm just south of Mr. Davies; there had never been any disturbance at the Davies place that bothered him in any way whatever; he had lived there about 28 years and had known the defendant during that time. Witness was asked on cross-examination as to the reputation of the defendant, and stated he had known the defendant for years, and had never heard anything against him; to his knowledge the reputation of the place was not very good. “As far as I have seen everything went along all right, I lived there by him and there was never anything that occurred that disturbed or bothered me.”

At the close of all the testimony the defendant moved the court to peremptorily instruct the jury to return a verdict of not guilty in favor of the defendant, which motion was overruled, and defendant excepted.

The defendant assigned nine errors alleged to have been committed by the court in the trial of the case. The first assignment is that the court erred in not sustaining the demurrer of the defendant filed in said cause. After an examination of the information, we hold that the information could not be classed as a model, but there are sufficient facts stated in the information to advise the defendant of the charge against him, and the demurrer of the defendant to the information was properly overruled.

The second assignment of error is that the court erred in not sustaining the demurrer of the defendant to the evidence as offered by the state, for the reason that no competent testimony was before the jury at the conclusion of the evidence offered by the state, and that no crime had been proven.

Section 7870, Comp. St. 1921, defines a nuisance as follows :

“A nuisance consists in unlawfully doing an act or omitting to perform a duty, which act or omission either:
“First. Annoys, injures or endangers the comfort, repose, health, or safety of others; or,
“Second. Offends decency; or
“Third. Unlawfully interferes with, obstructs or tends to obstruct, or renders dangerous for passage, any lake or navigable river, stream, canal or basin, or any public park, square, street or highway; or,
“Fourth. In any way renders other persons insecure in life, or in the use of property.”

Section 7871, Comp. St. 1921, defines a nuisance as follows:

“A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon the individuals may be unequal.”

Section 7872, Comp. St. 1921, is as follows:

“Every nuisance not included in the definition of the last section is private.”

From’ an examination of the record we hold that there is no competent testimony to show that an offense had been committed by the defendant. No one testifies as to being disturbed, or that any act done by the defendant or any one at defendant’s home in any way whatever disturbed their peace or quietude, or that it injured their property. Nor is there any testimony in the record showing any act by any one at the defendant’s home of an indecent or improper character. The only testimony in the record is a statement of the defendant that he had some little trouble with Fred Ernest, and that Fred had been drinking, and tells where he saw Fred with a pint of whisky before reaching defendant’s home.

There is no testimony whatever showing that there was any drinking or dancing, or any loud or boisterous language used, or that the place was frequented by any persons other than in the ordinary course of visiting. Neither of the witnesses testified that they were affected by the conduct or lack of conduct, or use of premises of the defendant, and those who testified as near neighbors testified nothing occurred at defendant’s home that disturbed or bothered them.

This court has often held that, where there was any competent testimony to go to the jury, it would not disturb the verdict of the jury, but where, as in this case, there is no competent testimony to sustain a conviction, it would reverse the case. The testimony is wholly insufficient to sustain the judgment, and the demurrer of the defendant to the evidence was well taken, and should have been sustained.

The case is reversed.

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


author: EDWARDS, P. J.

text:
    E. D. PATTON v. STATE.
    No. A-6882.
    Opinion Filed July 13, 1929.
    (279 Pac. 694.)

      H. A. Johnson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Noble county on a charge of burglary in the first degree, and his punishment fixed at 15 years in the state penitentiary.

Defendant was charged with the burglary of the dwelling house of W. M. Bowles in the city of Perry. The evidence in support of the charge is that in the nighttime the residence of Bowles was burglarized and some small items of property stolen. It was shown that one of the windows had been tampered with. Holes had been made in the screen, apparently for the purpose of unhooking the screen on the inside, and there was mud and indications that some one had entered through this window. Some four months later there was an attempted entry at another residence in the city of Perry. Defendant was seen about to enter this place but inade his escape. Officers were called there and found a notebook and receipt for lodge dues belonging to defendant. They then went to the small house where defendant resided with his father but did not apprehend defendant. They returned later, and one officer went to the front door and one to the rear and found defendant concealed in the shrubbery about 20 feet from the rear door. They then searched the house and found some of the small items of property stolen from the Bowles residence. Later defendant broke jail and fled to the state of Michigan, where he was apprehended and returned to this state. Defendant did not testify.

The first assignment is that tbe court erred in admitting evidence obtained by tbe search of tbe bouse where defendant lived without a search warrant. His counsel admitted! during tbe trial that there was sufficient grounds to believe a felony bad been committed and to warrant tbe arrest of defendant, but contends tbe arrest did not authorize tbe search of bis place of residence. See section 2471, Comp. St. 1921. This contention is based on tbe fact that he was not arrested in tbe house. Where a person is lawfully arrested, tbe arresting officer may search tbe person and immediate surroundings of tbe arrested person and seize any tools, implements, papers, and instrumentalities which have been or manifestly may be used to commit tbe crime or to effect an escape. Davis v. State, 30 Okla. Cr. 61, 234 Pac. 787; Soderberg v. State, 31 Okla. Cr. 88, 237 Pac. 467; Rambo v. State, 38 Okla. Cr. 192, 259 Pac. 602.

There are limits, however, in the case of a lawful arrest, to this right of search. In Wallace v. State, 42 Okla. Cr. 143, 275 Pac. 354, it was held:

“Where a person is lawfully arrested while engaged in the commission of a crime the arresting officer may search the person and immediate surroundings where the arrest is made in order to find and seize things connected with the crime or the means by which it was committed or weapons and things which might be used to effect an escape. This right incidental to the arrest does not extend to the search of a dwelling where the arrest is not made therein, and the commission of the crime for which the arrest is made is not connected therewith.”

In that case certain officers attempted to buy whisky from defendant, who was in the street near his house. Defendant went 300 or 400 yards away, procured the whisky, and when he returned they arrested him and then searched the house. In the instant case, the officers were attempting to arrest defendant in the house, he went out of the back door, and was arrested about 20 feet away. Under these circumstances, the arrest of defendant was so connected with the dwelling house that the right of search existed. See Cornelius on Search and Seizure, § 38.

It is next argued that the evidence is insufficient to sustain the judgment. It is particularly stressed that there is no evidence of a breaking. While the evidence of a breaking is circumstantial, from what we have said above, we think the proof upon this point is sufficient. While the allegation of the information is that the breaking was by lifting a latch on an outer door and the circumstances indicate that it was the unhooking of the latch of a screen on a window, this would not constitute a fatal variance.

Lastly, the contention is made that several of the instructions are erroneous. We have examined the instructions with care, and while the instructions are not models, there is in none of them any such substantial error as requires a reversal.

Upon a consideration of the whole record, we are convinced that defendant was fairly tried and his guilt clearly established. No' reason for reversal is made to appear. The punishment of 15 years assessed, under the entire record, is excessive. The judgment is modified by reducing the punishment to 7 years in the state penitentiary, and as so modified the judgment is affirmed.

DAVENPORT and CHAPPELL. JJ.. concur.


text:
    A. S. BAYNE v. STATE.

      No. A-6591.
    Opinion Filed July 13, 1929.
    (279 Pac. 695.)
    Walter Mathews, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the county of Payne county, Oklahoma, upon a charge of selling one-half gallon of spirituous liquors, and was sentenced to pay a fine of $500 and be imprisoned in the county jail for a period of 6 months. Motion for new trial was filed and overruled. Defendant excepted, and has appealed to this court.

The record in this case shows that the. information was filed the 3d day of June, 1926, and prior to the convening of the July term of the county court of Payne county, and that on the 11th day of October, 1926, the defendant filed his written demand for trial, demanding that he be placed on trial at the October term of the county court, beginning the 11th day of October, 1926. The case was not tried, and on the 24th day of February, 1927, the defendant filed his verified motion to dismiss the cause on the following grounds:

“Comes now the defendant and shows to the court that the cause was triable at, and was set for the trial at the July term, 1926, of this court, at which time this defendant filed in this cause, and caused the court’s attention to be called thereto, a written demand for trial, which is now on file in said case. That said trial has been postponed from term to term ever since upon application of the State of Oklahoma, and over his objection, and the same was not postponed on his application.”

Which motion of the defendant to dismiss was overruled and defendant duly excepted. On the 24th day of February, 1927, after the defendant’s motion to dismiss was overruled, the case was called for trial, and the trial proceeded and resulted in the conviction of the defendant.

It is urged by the defendant that the court erred in overruling the motion to dismiss the case, for the reason that more than two terms of court had elapsed since the information had been filed against him, and the continuing of the case from term to term was made over his objection and without his consent. The state did not controvert the motion of the defendant, and did not show any reason why the case had not been called for trial. The question this court has to consider is the question, Should the motion of the defendant to dismiss have been sustained?

•Section 2913, Comp. St. 1921, is as follows:

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

The section above quoted is plain, and we see no reason why the court should, not be able to interpret the same in line with the decision of this court. Clinkenbeard v. State, 40 Okla. Cr. 113, 267 Pac. 485. If there was any cause for holding the defendant for a longer time without a trial, the state should have shown it. In this case the motion of the defendant to dismiss shows the day of the filing of the information and the number of terms of court that had passed since the filing of the information and before the case was called for trial. Upon the failure of the state to controvert the allegations of the defendant’s motion to dismiss or make any effort to do so, it was error for the court to deny the defendant’s motion to dismiss.

The defendant has assigned other errors, but the view we take of the record we do not deem it necessary to consider them.

It follows that the judgment should be reversed, with directions to discharge the defendant.

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


text:
    CLAUDE McDUFFY v. STATE.
    No. A-6580.
    Opinion Filed July 13, 1929.
    (279 Pac. 692.)

      Warren & Warren, for plaintiff in error.
    Hal Welch, Co. Atty., and Choice D. Holden, Asst. Co. Atty,, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Choctaw county on a charge of manufacturing whisky, and. his punishment fixed at a fine of $125 and costs of prosecution, taxed at $43.65, and to be imprisoned in the county jail for 30 days. The cause is now on appeal in this court.

The only question presented is, Can the defendant suppress the evidence taken in the case upon a void search warrant issued against the premises of another person? The warrant was issued to search the premises of one Woolsey. He was not on trial in this case, and any objection he might make would not avail this defendant.

In the case of Vale v. State, 43 Okla. Cr. 158, 277 Pac. 608, this court said:

“The defendant further complains that the search was illegal because the liquor was not found in the room of the defendant, but in the room of another person who had rented the room in which the whisky was found. This court has repeatedly held that the immunity guaranteed by the Constitution against unreasonable searches is personal and that the defendant cannot be heard to complain of an unreasonable search or seizure as against another person. Klaber v. State, 35 Okla. Cr. 238, 250 Pac. 142; Williams v. State, 35 Okla. Cr. 171, 249 Pac. 433; Penrod v. State, 38 Okla. Cr. 46, 258 Pac. 1052.”

The defendant not being in a position to raise the question of the illegality of the search and seizure, the evidence against him was properly admitted. The officers found the defendant operating a still. They found several barrels of mash and 30 gallons of whisky.

The evidence being sufficient to support the verdict, and the error of law complained of being unavailing to defendant, the cause is affirmed.

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


text:
    ISAIAH CARTER et al. v. STATE.
    No. A-6576.
    Opinion Filed July 13, 1929.
    (279 Pac. 690.)
    W. B. Toney, for plaintiffs in error.
    Tom H. Fancher, Co. Atty., and Lynn Adams, Asst. Co. Atty., for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Hughes county on a charge of having possession of whisky with intent to barter, sell, give away, and otherwise furnish the same, and were each sentenced to pay a fine of $100 and to each be imprisoned in the county jail for 90 days. The case is now on appeal in this court.

O. E. Martin, a witness for the state, testified that he was a special deputy sheriff; that he saw a Ford roadster going south meet a Chevrolet car, and that they stopped when they met; that he thought the parties were stealing gas, and slipped up on them, and found Calvin Wheat and Arthur Smith pouring whisky from a half-gallon fruit jar into a half-pint bottle; that he took the whisky from them and searched Wheat and Smith and the. defendants, Carter and Martin; that he found two one-half gallon jars of whisky in a sack near the car. Calvin Wheat and Arthur Smith testified that they met the defendants in the road and had purchased some whisky from them and were in the act of transferring the whisky from the possession of the defendants to' themselves at the time the deputy sheriff arrested them. The defendants denied that they were selling any whisky, and claimed that the whisky belonged to Wheat and Smith.

The defendants, Martin and Carter, were charged jointly with Wheat and Smith with the possession of the liquor in controversy. The first error complained of is that the court erred in permitting the county attorney to endorse on the information the names of Arthur Smith and Calvin Wheat as witnesses to be used against the defendant. It appears from the record that the defendants Calvin Wheat and Arthur Smith requested a severance, that the county attorney agreed to this request, and that a severance was granted. The defendants contended that the endorsement of these witnesses on the information and. the granting of the severance was prejudicial error. It appears from the case-made that the following proceedings were had:

“By the Court: The names of the witnesses mentioned in defendants’ motion with the exception of Arthur Smith and Calvin Wheat are already endorsed on the complaint, and the court will now ask the defendants to show cause as to how he would be prejudiced by the endorsement of these witnesses on the information.
“By Mr. Toney: To which ruling of the court the defendant excepts.
“By the Court: Mr. Toney have you any evidence to offer as to how you would be prejudiced by the endorsement of these witnesses on the information?
“By Mr. Toney: We have had no opportunity to prepare a defense and be prepared in court since their endorsement.
“By the Court: Let the record show that the county attorney is given permission to endorse the names of Arthur Smith and Calvin Wheat on the information as witnesses, and that the defendants are given an opportunity to show cause as to how they would be prejudiced thereby, and on failure of defendants to make any showing his objection is overruled, and his motion for continuance is overruled.”
In the case of Cloud v. State, 41 Okla. Cr. 395, 273 Pac. 1012, this court said:
“Every defendant jointly indicted or informed against is charged, under the statute, with notice that the state may, if it so desires, use a codefendant as a witness against him. The appearance of the name of a witness, on the face of the information as a codefendant, answers every requirement of the statute, that the name of the witness be endorsed on the information before trial.”

The trial court did not err in permitting a severance. •It being necessary to endorse the names of the joint defendants on the information, the motion for continuance was properly overruled.

The defendant next complains that the court erred in refusing to give certain requested instructions. An examination of the record discloses that the instructions given by the court correctly stated the law, and the court did not err in refusing to give the requested instructions.

In the case of Guerin v. State, 43 Okla. Cr. 172, 277 Pac. 601, this court said:

“The instructions must be considered as a whole, and when considered all together, if they fairly and correctly state the law applicable to the case, they will be sufficient.”

The evidence being sufficient to support the verdict of the jury and the errors of law complained of not being fundamental, the cause is affirmed.

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


author: PER CURIAM.

text:
    JUNE MARTIN v. STATE.
    No. A-6771.
    Opinion Filed May 25, 1929.
    Rehearing Denied July 20, 1929.
    (279 Pac. 1119.)
    Bristow & Johnson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Caddo county on a charge of the unlawful transporting of whisky, and was sentenced to pay a fine of $100 and serve 30 days in the county jail.

Sentence was passed on August 8, 1927, and the appeal was lodged in this court in October, 1927. No briefs in support of the appeal have been filed, and examination of the record discloses that the evidence reasonably sustains the verdict and judgment, and no jurisdictional or fundamental error appears.

The case is affirmed.


text:
    BILL BURNS v. STATE.
    No. A-6635.
    Opinion Filed July 20, 1929.
    (279 Pac. 932.)
    Massingale & Duff and J. T. Bailey, for plaintiff in error.

      J. G. Springer, Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Washita county on a charge of unlawful transportation of intoxicating liquors, and was sentenced to pay a fine of $250 and he imprisoned in the county jail for 60 days.

At the beginning of the term of court, and before the jury had been impaneled, the court read to the jury the statement or admonition contained in the case of Pate v. State, 15 Okla. Cr. 92, 93, 175 Pac. 122. The defendant complains that the delivery of this admonition to the jury panel was highly prejudicial to the rights of this defendant; that it intimidated the jury, and unduly singled out and stressed the violation of the prohibitory liquor laws, the crime which the defendant was charged with committing.

In the case of Pate v. State, supra, this court said:

“Remarks of the trial judge to the panel of jurors summoned at the beginning of the term at which defendant was convicted, examined, and held not to be prejudicial to this defendant, but properly within the scope of the trial court’s duties.”

It is the usual practice for trial courts to advise prospective jurors of the importance of their duty and the need of good men to serve as jurors, but the court should not single out particular classes of crime, or violation of particular laws, and place undue stress upon such offenses. The better practice is for the trial court in his statement to generally set before the jurors their qualifications and duties and then hear excuses. While the admonition of the court in the case at bar is not a model one, yet we are of the opinion that the substantial rights of the defendant were not prejudiced thereby. The giving of such admonition by the court is not a statutory ground for challenge of the panel. This court will not reverse a case for the grounds set up in defendant’s petition in error, unless it affirmatively appears that the rights of the defendant were prejudiced thereby. There being nothing in the record to indicate prejudice on the part of the jurors, the motion to quash the panel and the motion for new trial on such ground was properly overruled.

The evidence being sufficient to support the verdict of the jury, and the errors of law complained of not being fundamental, the cause is affirmed.

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


text:
    GUS KEY v. STATE.
    No. A-6589.
    Opinion Filed July 20, 1929.
    (279 Pac. 931.)
    Sigler & Jackson, for plaintiff in error.

      F. M. Dudley, Co. Atty., and M. Shilling, Asst. Co. Atty.,'for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county on a charge of having possession of intoxicating liquor, and his punishment fixed at a fine of $50 and to be imprisoned in the county jail for 30 days.

On the 7th day of December, 1925, C. C. Keirsey filed an affidavit for a search warrant; the charging part of the affidavit is as follows:

“The State of Oklahoma, Carter County — ss.
“In the Name of the State of Oklahoma.
“The State of Oklahoma, Plaintiff, vs. Gus Key, Defendant.
“Application for Search Warrant.
“C. C. Keirsey, of lawful age, being duly sworn, on oath deposes and says: That in Carter County, State of Oklahoma, on the 7th day of December, 1925, the above named defendant, C. C. Keirsey at number 125 East Main street, being on the corner of Main & A st., N. E. in the City of Ardmore, Oklahoma, Street, known as ‘Western Pharmacy’ Drug Store. A brick building, on First Floor on Lot 15, Block 323 City of Ardmore, Oklahoma in Carter County, did, then and there unlawfully have in their possession and under their control, and do now keep for the purpose of selling, bartering, giving away and otherwise furnishing certain intoxicating liquors, described as follows, to wit: Whisky, beer, and wine, and other compounds, the same being intoxicating, and which are capable of being used as a beverage, in violation of law, contrary to the form of the statutes in such cases made and provided against the peace and dignity of the state of Oklahoma.”

The affidavit then recites sufficient grounds for the issuance of a search warrant. It will be noted that C. C. Keirsey swears that C. C. Keirsey has in his possession intoxicating liquors. Upon this affidavit the county court issued a search warrant, the caption of which is as follows:

“Search Warrant.
“The State of Oklahoma, Carter County — ss.
“In the Name of the State of Oklahoma.
“To Gus Key.”

It will be noted that the search warrant is directed to the defendant, Gus Key. Section 2876, Comp. St. 1921, provides:

“A search warrant is an order in writing in the name of the state, signed by a magistrate, directed to a peace officer, commanding him to search for personal property and bring it before the magistrate.”

Section 2880, Comp. St. 1921, provides:

“If the magistrate be thereupon satisfied of the existence of grounds of the application, or that there is probable cause to believe their existence, he must issue a search warrant signed by him, with his name of office, to a peace officer in his county, commanding him forthwith to search the person or place named, for the property specified, and to bring it before the magistrate, and also to arrest the person in whose possession the same may be found, to be dealt with according to law.”

Section 2881, Comp St. 1921, provides :

“County, of-
“In the Name of the State of Oklahoma To any sheriff, constable, marshal, or policeman in the county q'J _ * « «»

Section 2882, Comp. St. 1921, provides:

“A search warrant may in all cases be served by any of the officers mentioned in its direction, but by no other person except in aid of the officer, on his requiring it, he being present, and acting in its execution.”

Under the sections above quoted, the search warrant must be directed to a peace officer, he may be any sheriff, constable, marshal, or policeman, and the warrant can only be served by the officer mentioned in its direction, and by no other person except in aid of the officer, on his requiring it, he being present and acting in its execution. This section forbids the service of a search warrant by a private citizen.

In the case at bar there are inexcusable errors. In the first place, Keirsey swears that Keirsey has possession of the intoxicating liquors, while the caption of the affidavit states that Gus Key is the defendant. The warrant is not directed to any peace officer, but is addressed to Gus Key, and he is directed to search himself. We are unable to understand how any public official should be so careless or incompetent in so important a matter as this. Neither the affidavit nor the warrant comply with the simple requirements of the sections of the statute quoted, and the issuance conferred on Keirsey no authority to make the search and seizure under the same.

The objections of the defendant should have been sustained and the evidence obtained under the search warrant not admitted. For the reasons stated, the cause is reversed.

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


text:
    WILLIE FISH v. STATE.
    No. A-7300.
    Opinion Filed July 20, 1929.
    (279 Pac. 930.)
    Buell & Rodgers and R. L. Busey, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Hughes county of murder, and sentenced to life imprisonment in the state penitentiary.

From the judgment of conviction, defendant appealed to this court. Since the appeal was lodged in this court, and before the final submission of the case, defendant departed this life at the state penitentiary, as satisfactorily appears from a motion on file in this case.

In a criminal prosecution, the purpose of the proceeding being to punish the accused, the action must necessarily abate upon his death, and, where it is made to appear that the plaintiff in error has died pending the determination of his appeal, the case will be abated. It is therefore adjudged and ordered that the. proceedings in the above-entitled cause do abate, with directions to the trial court to enter its appropriate order to that effect.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    HUGH RUSSELL v. STATE.
    No. A-6445.
    Opinion Filed July 20, 1929.
    (279 Pac. 929.)
    C. H. Madden and A. H. Watson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error., hereinafter called the defendant, was tried on an information charging him with selling intoxicating liquor, and on July 9, 1926, the jury returned a verdict of guilty, leaving the punishment to be assessed by the court. On August 30, 1926, the court imposed the following sentence:

“It.is therefore ordered, considered and adjudged by the court and it is the judgment and sentence of the court that the defendant Hugh Russell, be confined in the common jail of Harmon County, Oklahoma, for a period of -days from this date, and pay a fine of-Dollars and costs of this cause.”

Motion in arrest of judgment and new trial was filed, considered, and overruled, and defendant duly excepted, and the case appealed to this court.

In this case the record shows that the jury returned a verdict finding the defendant guilty and leaving the punishment to the court. The purported judgment and sentence of the court shows that the court did not fix the amount of the fine or the term of imprisonment. This sentence and judgment is not in accordance with the law. The case is therefore remanded, with directions to the trial court to forthwith enter a judgment in accordance with the verdict of the jury and the law.

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


text:
    CARL BRADLEY v. STATE.
    No. A-7208.
    Opinion Filed July 20, 1929.
    (279 Pac. 920.)
    Allen & Grigsby, Ben F. Williams, and Sam S. Harlan, for plaintiff in error.

      Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Cleveland county of the crime of larceny of chickens in the nighttime, and his punishment fixed at imprisonment in the state penitentiary for four years. Motion for new trial was filed, overruled, and exceptions saved, and the cause is now on appeal in this court.

The defendant complains, that the court erred in refusing to sustain the demurrer of the defendant to the state’s evidence. There is really no such thing as a demurrer to the evidence in a criminal case in Oklahoma. When the state rests, if the defendant thinks the evidence is insufficient to sustain a conviction, he should request the court to advise the jury to return a verdict of not guilty. When there is any competent evidence tending to prove that the defendant committed the offense charged, it is not error for the court to overrule such motion. Caido v. State, 7 Okla. Cr. 139, 122 Pac. 734; Teague v. State, 13 Okla. Cr. 270, 163 Pac. 954; Nail v. State, 18 Okla. Cr. 40, 192 Pac. 592.

The defendant next urges that there was not sufficient corroboration of the evidence of the accomplice, Alma Haggy. Section 2701, Oomp. St. 1921, provides:

“A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.”

In the case of Moody v. State, 13 Okla. Cr. 327, 164 Pac. 676, pars. 1, 2, and 3 of the syllabus, this court said:

“Evidence corroborative of an accomplice need not directly connect the defendant with the commission of the crime; it is sufficient if it tends to connect him with its commission.
“Evidence corroborating an accomplice and. tending to connect the defendant with the commission of the crime need not be direct, but may be circumstantial only.
“It is not essential that the corroborating evidence shall cover every material point testified to by the accomplice, or be sufficient alone to warrant a verdict of guilty. If the accomplice is corroborated as to some material fact or facts by independent evidence tending to connect the defendant with the commission of the crime, the jury may from that infer that he speaks the truth as to all. Such corroborating evidence, however, must show more than the mere commission of the offense or the circumstances thereof.”

There being sufficient evidence in the record corroborating the testimony of the accomplice, the cause was properly submitted to the jury. An examination of the entire record leads the court to believe that the punishment is excessive under all the circumstances, and that the ends of justice will be served by reducing the punishment from four years in the penitentiary to two years in the penitentiary.

The judgment is therefore modified, and the punishment fixed at imprisonment for two years in the state penitentiary, and, as modified, the cause is affirmed.

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


text:
    STATE v. E. E. HUDSON et al.
    No. A-7105.
    Opinion Filed July 20, 1929.
    (279 Pac. 921.)

      W. F. Pardoe, Co. Atty., and E. B. Hughes, Special Counsel, for the State.
    Wallace & Wallace, R. K. Robertson, and Johnson & Jones, for defendants in error.
   EDWARDS, P. J.

Upon a question reserved by the state upon a judgment of the district court of Creek county, quashing and setting aside an indictment against defendants in error, the state appeals.

A brief history of the proceedings is as follows:. In April, 1928, a grand jury in the district court of Creek county returned an indictment against defendants in error, charging them with conspiracy to defraud the state of Oklahoma and school district 16 of Creek county. The defendants in error were arraigned and filed a motion to quash and set aside the.indictment. Prior to the indictment, in February, 1928, by order of the Governor in writing, attested by the secretary of state and under the great seal of the state, E. B. Hughes was appointed to conduct an examination in Creek county as follows:

“State of Oklahoma, Office of Governor.
“[Seal.]
“Oklahoma City, February 17, 1928.
“To whom it may concern:
“I hereby constitute and appoint E. B. Hughes, of Sapulpa, Oklahoma, as representative to conduct an investigation in Creek county, Oklahoma, relative to the official record and conduct of Oliver H. Akin, county superintendent of public instruction for said county, and to all allied or kindred matters growing out of or therefrom.
“I hereby authorize said E. B. Hughes to act as attorney for the state of Oklahoma to the full extent authorized by law in such cases.
“Henry S. Johnston, Governor.
“Attest: Graves Leeper, Secretary of State, by Una Lee Boberts, Assistant Secretary of State.”

In March following a further order appointing E. B. Hughes to investigate the official action of all county officers of Greek county was made. The investigation was made, and the grand jury returned the indictment in this case against defendants in error here and various other indictments, which were signed by the county attorney and also by “E. B. Hughes, Special Counsel to the Governor.”

The motion to quash challenges the sufficiency of the indictment on several grounds, among them that section 6, Comp. St. 1921, is unconstitutional, and that, the special counsel having failed to take the oath prescribed, his appearance before the grand jury was unauthorized, and the proceedings illegal and void.

We gather from the record that the reason of the court for quashing was on the theory that the statute under which the appointment of special counsel was made lis unconstitutional. We are reasonably familiar with the Constitution of this state, and know of no provision which would preclude the Legislature from enacting the law under which the Governor acted. This statute is section 6, Comp. St. 1921, as follows:

“The Governor shall have power to employ counsel to protect the rights or interests of the state in any action or proceeding, civil or criminal, which has been, or is about to be commenced, and the counsel so employed by him may, under the direction of the governor plead in any cause, matter or proceeding in which the state is interested or a party, may prosecute offenses against the law of the state, and may institute and conduct proceedings before grand juries: Provided, that nothing herein contained shall limit the power of courts of record to appoint an attorney to prosecute criminal actions in such courts when the county attorney is disqualified or unable to act.”

This statute was referred to in Viers v. State, 10 Okla. Cr. 28, 40, 134 Pac. 80, 86, where it was said:

“There are other provisions of our statute which may be invoked whenever required by the necessities of public justice. Under section 8056, Rev. Laws 1910 [section 6, C. O. S. 1921], the Governor is given the power to employ counsel to protect the rights or interests of the state in any action, civil or criminal, and the counsel so employed under the direction of the Governor may prosecute offenses against the laws of the state, and may institute and conduct proceedings before grand juries. Under section 8057, the Attorney General, when requested by the Governor or either branch of the Legislature, may appear for the state in the nisi prius courts and prosecute offenses against the laws of the state, but no such question arises in this case.”
E. B. Hughes, under the authority of the order of the Governor, above set out, appeared before the grand jury and examined witnesses and assisted the grand jury in making its investigation. Before entering upon these duties, he did not take and file the constitutional oath. He did not supersede the county attorney, and so far as the record discloses the county attorney did not relinquish control of these cases, and the prosecution was carried on in the name and by the authority of the state. It is undisputed that the only compensation received by E. B. Hughes was from the state of Oklahoma, and that no private persons employed or paid him any compensation. This is not a case where an attorney appeared before the grand jury in examining witnesses, assuming to act as assistant county attorney without authority, as in the case of Hartgraves v. State, 5 Okla. Cr. 266, 114 Pac. 343, 33 L. R. A. (N. S.) 568, Ann. Cas. 1912D, 180, and Viers v. State, supra. Nor is it a case in which an attorney under limited authority to appear before the grand jury assumes to act in a matter beyond the scope of his authority, as in the case of State v. Maben, 5 Okla. Cr. 581, 114 Pac. 1122, and in the case of Childs v. State, 4 Okla. Cr. 474, 113 Pac. 545, 33 L. R. A. (N. S.) 563. The fact that the special counsel named in the order of the Governor did not take the constitutional oath, we think, is of no importance. Under the statute the designation by the Governor of an attorney to conduct the investigation is in the nature of the employment of counsel, and not appointment to an office; but, even if it should be held that counsel so employed should take the constitutional oath, the failure to do so would not be fatal, and the person named would be a de facto officer.

The Governor is the highest executive authority of the state, and the Legislature by the section of the statute referred to has delegated to him the power specified in the statute as a means of carrying out his executive functions conferred by section 8, art. 6, of the Constitution. The office of county attorney not being a constitutional office, and the Legislature having power to enlarge or diminish the powers of the office, we know of no reason why the power conferred by section 6, Comp. St. 1921, supra, is unconstitutional. Childs v. State, supra. We do not pass upon the sufficiency of the indictment upon any ground which may be raised by demurrer under section 2608, Comp. St. 1921.

Upon a consideration of the record and the statute applicable, we are of the opinion that the action of the trial court in sustaining the motion to quash was erroneous. The death of the defendant Oliver H. Atin is shown; the case is abated as to him. As to the other defendants, the case is reversed and remanded, with instructions to the trial court to1 set aside its order sustaining the motion to quash, and for further proceedings in conformity to this opinion.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    STATE v. J. A. GIDDENS et al.
    No. A-7106.
    Opinion Filed July 20, 1929.
    (279 Pac. 922.)
    W. F. Pardoe, Co. Atty., and E. B. Hughes, Special Counsel, for the State.
    Wallace & Wallace, R. K. Robertson, and Johnson & Jones, for defendants in error.
   PER CURIAM.

The facts in this case are similar to those set out in No. A-7105. State v. Hudson, 44 Okla. Cr. 1, 279 Pac. 921, just decided. The case is abated as to Oliver H. Akin, deceased, and reversed and remanded as to the other defendants with instructions to the trial court to set aside its order sustaining the motion to quash, and for further proceedings in conformity to this opinion.


author: PEE CUEIAM.

text:
    STATE v. A. E. BARNES.
    No. A-7112.
    Opinion Filed July 20, 1929.
    (279 Pac. 923.)
    W. E. Pardoe, Co. Atty., and E. B. Hughes, Special Counsel, for the State.
    Chas. Webster, Finis M. Walker, Johnson & Jones, E. K. Eobertson, and Wallace & Wallace, for defendant in error.
   PEE CUEIAM.

Upon a question reserved by the state upon a judgment of the district court of Creek county, quashing and setting aside an indictment against defendant in error, the state appeals.

The question presented by the record in this case is similar to that in case No. A-7105. State v. Hudson, 44 Okla. Cr. 1, 279 Pac. 921, just decided. Upon the authority of that case, this case is reversed and remanded, with directions to the trial court to set aside its order sustaining the motion to quash, and for further proceedings in conformity to this opinion.


text:
    H. A. DORSEY v. STATE.
    No. A-6598.
    Opinion Filed July 20, 1929.
    (279 Pac. 917.)

      Mac Q. Williamson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the county court of Garvin county of possession of intoxicating liquor with the unlawful and willful intent to barter, sell, give away or otherwise furnish the same to others, and his punishment fixed at imprisonment in the county jail for 30 days and to pay a fine of $50. The record was perfected, and the case appealed to this court.

The state called as witnesses in this case R. D. Blan-ton, E. C. Park, and J. R. Law, who testified they went to the place where the defendant and another man were living, and in the chicken yard they found about two gallons and a half of corn whisky; they had no warrant for the arrest of the defendant or to search the premises. On cross-examination the state witnesses testified this other man had been living in and occupying a part of the house and premises for several days prior to the day of the search; they did not see either the defendant or the other man living on the premises with his family in possession of this whisky, and stated they usually arrested the man that was the owner of the property. One of the state witnesses, Mr. R. D. Blanton, testified that he understood the place belonged to the defendant, and that was all he knew about the ownership.

The defendant testified in his own behalf that he and Wesley Bird were occupying the improvements and buildings; that Bird had a wife, and had started in to make a crop on the place; the defendant denied any knowledge of the whisky, and. denied any knowledge of the whisky being where it was found by the officers, and stated he had lived in Garvin county 20 years, had never been arrested before this charge, had never paid a fine, and had never been a witness in court, and had only served on the jury one time.

Several pages of the record are taken up with questions and answers which are not material to the charge in this case; the charge in this case being possession with the unlawful and willful intent to barter, sell, give away, or otherwise furnish to other persons to the informant unknown.

Several errors are assigned by the defendant as grounds for reversal of this case: First, the court erred in overruling motion of plaintiff in error for a new trial; second, the court erred in sustaining the objection of the state to the question propounded by counsel for defense inquiring whether certain raiding officers had a search warrant for the premises of the defendant; and, fourth, the court erred in giving the following instruction to the jury over the defendant’s objection thereto:

“You are further instructed that the keeping in excess of more than one quart of any spirituous, vinous, fermented or malt liquor, or imitation thereof or substitute therefor, is prima facie evidence of an intent to convey, sell, or otherwise dispose of the same; that is, so that there is a presumption of guilt, but that it can be overcome by the defendant by proof that he did have lawful possession.”

A careful examination of the record fails to disclose that defendant had in his possession the whisky alleged to have been found by the officers under the chicken coops on the premises occupied by the defendant and Wesley Bird. There is no testimony showing who was the owner of the whisky or who was in possession of it. The premises, as shown by the uncontradicted proof, were occupied by the defendant and Wesley Bird and family jointly, and from the proof in this case the presumption is as strong against Wesley Bird, who jointly occupied the premises with the defendant, as against the defendant in this case.

In view of the fact that the defendant took the stand and denied any knowledge of the whisky being where it was found, denied any ownership in it, and stated he bad never been charged with an offense before, had never been arrested, and had never been a witness in court, only having served once on the jury, where premises are occupied by two families jointly, the proof should be sufficient to show that the party charged with the possession had exercised some control over the whisky before the jury would be warranted in finding a verdict against the defendant.

It is further urged by the defendant in his fourth assignment of error that the instruction was misleading, and placed the responsibility and burden upon the defendant to clear himself by the introduction of affirmative proof. It is further urged by the defendant that under this instruction the presumption would be unqualified, in the absence of a showing that he did not have lawful possession.

In Rose v. State, 36 Okla. Cr. 333, 254 Pac. 509, 510, this court, in considering an instruction similar to this, said:

“With what intent a person keeps intoxicating liquors is always a question of fact for the jury, to be determined upon a consideration of the evidence. In the determination of that question they are required by the Statute (Section 6999, C. S. 1921 * * *) to consider the keeping of a certain amount of intoxicating liquors as prima facie evidence of an unlawful intent. But that evidence may be rebutted by other evidence in the case, whether shown by evidence on the part of the defense, or by the State in connection with the evidence proving the possession. With such evidence, the jury must also take into consideration the presumption of the innocence of the accused until the contrary is proved beyond a reasonable doubt.”

Tbe court, in giving tbe instruction complained of by tbe defendant, placed tbe burden upon tbe defendant, and required tbe defendant to show by proof that be did bave lawful possession of tbe whisky. In this case the possession of tbe whisky is a disputed fact; tbe defendant denying that be bad possession or any knowledge that tbe whisky was on the premises.

We bold that tbe instructions complained of did not correctly state tbe law, and tbe giving of the same over tbe objection of tbe defendant was prejudicial error. With what intent a person keeps intoxicating liquor is always a question for the jury, to be determined upon a consideration of tbe evidence. In tbe determination of that question, tbe jury is required by tbe statute to consider tbe keeping of a certain amount of intoxicating liquor as prima facie evidence of an unlawful intent, but that evidence may be rebutted by other evidence in the case, whether shown by evidence on tbe part of the defense or by tbe state in connection with the evidence proving tbe possession. In connection with such evidence, tbe jury must also take into consideration tbe presumption of tbe innocence of tbe accused until tbe contrary is proven beyond a reasonable doubt. It does not change tbe rule in criminal cases that “before a conviction can be bad the jury must be satisfied from the evidence beyond a reasonable doubt of tbe affirmative of tbe issue presented in the accusation that tbe defendant is guilty in tbe manner and form as charged in the indictment or information.” Whitehead v. State, 28 Okla. Cr. 193, 230 Pac. 291; Jenkins v. State, 28 Okla. Cr. 249, 230 Pac. 293; Richardson v. State, 29 Okla. Cr. 286, 233 Pac. 508.

The last part of tbe instructions complained of placed the burden of proof upon the defendant.

Other errors are assigned, but, for the reasons stated herein, the judgment of the lower court is reversed.

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


text:
    STATE v. OLIVER H. AKIN (five cases).
    Nos. A-7107 to A-7111.
    Opinion Filed July 20, 1929.
    (279 Pac. 910.)
    W. F. Pardoe, Co. Atty., and E. B. Hughes, Special Counsel, for the State.
    R. K. Robertson, Chas. E. Webster,, Wallace & Wallace, Finis M. Walker, and Johnson &. Jones, for defendant in error.
   PER CURIAM.

The defendant in error was indicted by a grand jury of Creek county on a charge of felony. Upon motion, the court quashed and set aside the indictment, and the state appealed. Since the appeal by the state was taken, it is made to appear that the defendant in error departed this life in Creek county.

The purpose of a criminal prosecution is to punish the accused. Upon his death the action must necessarily abate, whether the appeal be prosecuted by the state or by the accused. It being made to appear that the accused has died pending determination of the appeal, it is ordered that the proceedings in the above-entitled cause do abate, with directions to the trial court to enter its appropriate order to that effect.


text:
    Ex parte HAROLD HUDSON.
    No. A-7454.
    Opinion Filed July 20, 1929.
    (279 Pac. 711.)
    John W. Whipple, for petitioner.
    Edwin Dabney, Atty. Gen., for respondent.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus. Petitioner alleges: That he is unlawfully restrained of his liberty by the warden of the state penitentiary at McAlester. That in February, 1924, he was convicted in the superior court of Creek county on a charge of, grand larceny and was sentenced to serve three years in the state penitentiary at Granite, Oklahoma, and that said sentence was suspended by the trial court. Thereafter on April 10, 1926, on a charge pending in said superior court petitioner entered a plea of guilty to burglary and was sentenced to serve a term of four years in the state penitentiary at McAlester. At the same time the judge of the superior court made a finding that the parole granted to petitioner upon his conviction of grand larceny had been violated, and it was ordered revoked. The judge at the time proceeded to sentence Mm upon both convictions, ordering that they run concurrently. Petitioner further alleges that with allowance for good time he has now served said concurrent sentences and is entitled to be discharged.

The trial judge may suspend a sentence, in the nature 'of a judicial parole, under certain conditions for offenders under 21 years of age except for certain specified crimes. The suspension, however, is after judgment and sentence has been imposed. Section 2803, Comp. St. 1921. In case of the violation of the parole during the term for which the offender is sentenced, the parole may be revoked and the offender required to serve the sentence. Ex parte Eaton, 29 Okla. Cr. 275, 233 Pac. 781. When this is done, no additional nor further sentence is necessary. 16 C. J. § 3141. The authority of a trial court in the matter of sentences is found in sections 2303 and 2774, Comp. St. 1921, as follows:

“2303. * * * When any person is convicted of two or more crimes, before sentence has been pronounced upon him for either, the imprisonment to which he is sentenced upon the second or other subsequent conviction must commence at the termination of the first term of imprisonment to which he shall be adjudged, or at the termination of the second or other subsequent term of imprisonment, as the case may be.”
“2774. * * * If the defendant (shall) have been convicted of two or more offenses, before judgment on either, the judgment may be that the imprisonment upon any one may commence at the expiration of the imprisonment upon any other of the offenses.”

In those states where there is no statute expressly authorizing cumulative sentences, there appears to have been some confusion as to the authority of the trial court to impose such sentences. It is possibly for this reason that the statutes of many of the states have expressly conferred authority to impose cumulative sentences as is done in the sections of our statute, just cited. See 16 C. J. §§ 3082 and 3224 ; 8 R. C. L., p. 240 et seq.

In Ex parte Bell, 34 Okla. Cr. 354, 246 Pac. 893, it was held:

“Under sections 2303 and 2774, Comp. St. 1921, where a defendant is convicted of two or more crimes before sentence has been pronounced for either, if the judgment and sentence does not designate when the second or other subsequent conviction shall commence, or if it does so designate, it shall commence at the termination of the first term of imprisonment, or at the termination of the other or subsequent terms, as the case may be. If the judgment and sentence for the second or subsequent conviction shall specifically designate that it run concurrently with the judgment and sentence of the first or prior conviction, it shall so run concurrently.”

It is clear that the trial court did not have authority to provide that a sentence to the penitentiary at Granite imposed in 1924 could run concurrently with a sentence to the penitentiary at McAlester imposed in 1926. Tnat part of the judgment which attempts to order that the sentences run concurrently is a nullity.

The writ is denied.

DAVENPORT and CHAPPELL, JJ., concur


text:
    WYLIE DIFFIE v. STATE.
    No. A-6585.
    Opinion Filed July 20, 1929.
    (279 Pac. 709.)

      Warren & Warren, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted on a charge that he did then and there willfully, wrongfully, and knowingly have and keep in his possession a still which was capable of being used to manufacture, ferment, and distill intoxicating liquor, to wit, whisky, without having properly registered the same with the United States officers and 'filing a certificate of registration, or a certified copy thereof, with the county clerk of Choctaw county, and was sentenced to pay a fine of $50 and be imprisoned in the county jail for 30 days. From the judgment and sentence the defendant has appealed to this court.

The testimony on behalf of the state shows that the officers went down to where the defendant and his wife were planting cotton near the river, and about 11 o’clock the defendant came down to a little thicket that was not in cultivation, and picked up a stick and stirred something that was in a barrel, and then picked up a cup and drank from the mash. The officers went to where Diffie was and found a still setting on the bank right close to where the barrels of mash were; Mr. Diffie and: his wife had been planting cotton near where the still was found. On cross-examination the witness stated that defendant lived about two miles and a half from where they found the still; “defendant told us lie had possession of the land where the still was found.”

The defendant testified in his own behalf, and stated he and his wife were planting cotton, and his wife told him she had seen someone there and he went down to see what it was.; “that was the first time I liad seen the still or barrels of mash; I did not have anything to do with them; I did not stir the mash, but I did drink from the barrel; it was not my mash.” On cross-examination witness stated he and his wife were working in the field close to where the still was found; “I was working up north and south of where the still was found about 150 yards away, there was about an acre and a half laying out, and the still was located on that: I had bedded the land and was planting cotton;” the defendant denied he stirred the barrel of mash, and had never seen the still until the officers caught him; he stated that after he found the mash he intended to tell the law.

The wife of defendant testified she told her husband that she had seen something in the brush, and he said he would go and see what it was, and while there he was arrested; they lived two miles and a half from where the still was found; they were over there planting cotton. On cross-examination she stated they had been working in the .field practically all year, off and on, bedding, and cleaning up the ground, working pretty regular, and that she helped her husband all the time.

The defendant was then recalled, and stated he had learned after his arrest that John Murray was the owner of the still, and that Murray had been killed in Texas a short time after his arrest and prior to the time he was 'testifying. Defendant stated he told Officer Hopson that he had learned to whom the still belonged. The officer was called and denied that defendant told Mm who owned tbe still, but stated that defendant had repeatedly stated to him that the still did not belong to him. This is in substance all of the testimony.

The testimony is conflicting: The state’s testimony showing that defendant was found at the still drinking out of the mash barrels when the officers came upon him. The defendant admitted the possession of the land where the still and mash were located, but denies that he was the owner of the still or had anything to do with it, and states that after lie was arrested he learned the still belonged to John Murray, who had been killed in Texas between the time of his arrest and the date of his trial.

The court properly instructed the law. This court has repeatedly held that where there was any competent testimony to sustain a conviction, though conflicting, it would not disturb the verdict of the jury. The evidence is sufficient to sustain the conviction. The defendant was accorded a fair and impartial trial.

There being no errors in the record prejudicial to the rights of the defendant, the judgment is affirmed.

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