text:
    Ex parte ART JOHNSON.
    No. A-10423.
    Sept. 22, 1943.
    (141 P. 2d 599.)

      Mathers & Mathers, of Oklahoma City, for petitioner.
    A. L. Jeffrey, Municipal Counselor, and Granville Seanland, Asst. Municipal Counselor, both of Oklahoma City, for respondent.
   JONES, P. J.

The city of Oklahoma City is operating under a. charter commission form of government. Under the general powers granted to it by its charter, it passed an ordinance pertaining to the barber business as follows.

“8-27. Barber Shop. Closed on Sunday. It shall be unlawful and an offense for any person to keep open any shop or place of business in said city, for the purpose of carrying on the business of barbering, or to engage in such business, on the first day of the week, commonly called Sunday.”

On Sunday, May 30, 1943, the petitioner, Art Johnson, who operates a barbershop with a beauty parlor in the rear, was arrested while shaving a man in his shop: The beauty shop was in a separate room and the beauty operators did not work on Sunday. The facts disclose that petitioner did not observe any day of rest during the week, but was attempting to perform barber work on all seven days with prices increased for Sunday work to 75 cents for a haircut and 40 cents for a shave. Petitioner was charged and convicted in the municipal court of violating the above ordinance. He refused to pay the fine which was imposed and was committed to jail. This original proceeding in habeas corpus, was, instituted in this court asking that he be discharged and attacking the validity of said ordinance, contending as follows:

(1) That said ordinance is class legislation.

(2) That said ordinance is in conflict with and inconsistent with 21 0.:S. 1941 § 908.

(3) That said ordinance denies- petitioner equal protection of the law and takes his property without due process of law and is therefore violative of the Constitution of the United States.

It is provided by statute in Oklahoma, as follows:

“The first day of the week being by very general consent set apart for rest and religious uses, the law forbids to be done on that day certain acts deemed useless and serious interruptions of the repose and religious liberty of the community. Any violation of this prohibition is Sabbath-breaking.” 21 b.S. 1941 § 907.
“The following are the acts forbidden to be done on the first day of the week, the doing of any of which is Sabbath-breaking:
“'First. Servile labor, except works of necessity or charity.
“Second. Trades, manufactures and mechanical employment.
“Third. All shooting, horse racing or gaming-.
“Fourth. All manner of public selling, or offering or exposing for sale publicly, of any commodities, except that meats, bread, and fish may be sold at any time before nine o’clock in the morning, and except that food and drink may be sold to be eaten and drank upon the premises where sold, and drugs, medicines, milk, ice and surgical appliances and burial supplies may be sold at any time of the day.” 21 O.S. 1941 § 908.

In the cases of Ex parte Ferguson, 62 Okla. Cr. 145, 70 P. 2d 1094, and Ex parte Hodges, 65 Okla. Cr. 69, 83 P. 2d 201, this court held ordinances of the cities of Ada and Shawnee were repugnant to the general statute of our state, above quoted, for the reason that under the general statute meats, bread, and fish may be sold before 9 o’clock on Sunday morning, and the municipal ordinances of the above cities prohibiting the selling of these commodities ati any hour on Sunday, being contrary to the general statute, were invalid.

However, an examination of our general statute shows that there is no provision therein conferring the right to operate a barbershop or carry on the business of barbering on Sunday. The Legislature, having failed in the statutes hereinabove quoted, to specifically grant the right to barbers to engage in their business on .Sunday, it was left open to cities, under their general powers of government, to pass ordinances prohibiting this work on Sunday so long as such ordinance applied equally to all within a class. Blackledge v. Jones, 170 Okla. 563, 41 P. 2d 649; Ex parte Johnson, 20 Okla. Cr. 66, 201 P. 533.

The Oklahoma Legislature, in 1937, enacted the “Barbers Unfair Trade Practices Law” (59 O.S. 1941 §§ 91-105). The constitutionality of this statute has been upheld by this court. Ex parte Herrin, 67 Okla. Cr. 104, 93 P. 2d 21, and by the Supreme Court of the state in Herrin v. Arnold, 183 Okla. 392, 82 P. 2d 977, 119 A. L. R. 1471.

In sustaining the validity of this statute, this court held that the public health, safety and welfare was; affected by the barbering business and therefore subject to regulation under the police power of the state.

In 20 A.L.R. 1114 it is stated:

“Special laws prohibiting barbering on Sunday have been sustained by the courts in a majority of the cases.”

Following this quotation are a large number of citations of cases from various states which have sustained ordinances or general statutes prohibiting barbering on Sunday.

The minority view is also set forth in this annotation, but the cases therein cited do not rule the particular ordinance involved in each of them unconstitutional because, the Legislature or municipality was without constitutional authority to designate the Sabbath as a day of rest, but rather these statutes were held invalid because of the constitutional inhibition against class legislation.

One of the best cases in support of the majority view is McClelland v. City of Denver, 86 Colo. 486, 86 P. 126, 10 Ann. Cas. 1014. In the body of the opinion in that case it is stated:

“The experience of centuries has demonstrated the necessity of periodical cessation from secular labor. This rule of conduct with respect to secular pursuits is recognized by the entire civilized world as essential to the physical and moral welfare of society. Sunday ordinances; are therefore, generally sustained as constitutional upon the theory that, for the purpose of promoting the general welfare of the inhabitants of a city, it is necessary that their usual and ordinary avocations, except those of necessity or charity, should be suspended upon the Sabbath Day, and that for this reason such ordinances are within the domain of the police power of the municipality enacting them. [City of] Denver v. Bach, 26 Colo. 530, 58 P. 1089, 46 L.R.A. 848; 27 Enc. of Law, 390; Cooley’s Const. Lim. *588. This is settled by a practically ■unbroken line of decisions. The only question upon which there may be said to be a conflict of authority in so far as constitutional questions are involved with respect to the. ordinance in question, is the one relating to the inhibition against class legislation. * * * Keeping open places of business on Sunday, works of necessity and charity excepted, is a public and serious interference Avith the observance of the day. Such conduct is offensive to the moral sense of the community. It disturbs the peace and good order of society, and invites others to violate the law on the subject. The stability of government, as Avell as the welfare and interest of society, render it necessary that the day of rest should be uniform, and that its observance should be compulsory, not by way of enforcing the conscience of those upon AAdiorn the laAV operates, but by way of protection to those who desire, or are entitled to the day, and who, unless protected by a, law requiring usual secular pursuits to be suspended at regularly recurring intervals, would be deprived of the full benefits which the law contemplates shall result from the observance of Sunday as a day of rest.”

The petitioner contends that the ordinance is discriminatory, and therefore class legislation in that it prohibits the business of barbering Avhile allowing baseball games, honky-tonks, eating places and beauty shops, to operate on Sunday. It is conceded that the business of carrying on a barbershop is in every respect legitimate and respectable. HoAvever, the business is purely secular and cannot, be classed as a work of necessity or charity. The ordinance is general in its terms. It applies to all barbers alike and does not attempt to classify them.

In McDermott v. City of Seattle et al., D.C., 4 F. Supp. 855, 856, McDermott contended that the Seattle ordinance Avas discriminatory because it did not include beauty parlors. This contention was disposed of in the following language:

“The charge that the ordinance is discriminatory in that beauty parlors and hairdressing establishments are not included, fails. The difference between the activity in beauty parlors and the general practice of barbering, as defined by statute (sections 8278-1 to 8278-4, Rem. Rev. Stat. of Washington), is obvious. Any reasonable basis for classification, not purely arbitrary is within the legislative power, and, if a basis can be reasonably conceived, such must, be assumed at the time of enactment, even if not made with mathematical nicety, resulting' in some inequality. Lindsey v. Natural Carbonic Gas Company, 220 U.S. 61, 31 S. Ct. 337, 55 L. Ed. 369, Ann. Cas. 1912C, 160. If a law suppresses an evil where it is. most felt, the prohibition need not be all-embracing. Keokee Consolidated Coke Company v. Taylor, 234 U.S. 224, 227, 34 S. Ct. 856, 58 L. Ed. 1288. Failure to extend the ordinance to beauty parlors, etc.., which have their own conditions and circumstances, does not create an arbitrary discrimination against barber shops. Miller v. Wilson, 236 U.S. 373, 35 S. Ct. 342, 59 L. Ed. 628, L.R.A. 1915F, 829. Strict conformity of an ordinance to express specific legislative grant is no more amenable to judicial review than state law. Roach v. Ephren, 82 Fla. 523, 90 So. 609; State v. Wilson, 101 Kan. 789, 168 P. 679, L.R.A. 1918B, 374.”

The Legislature of this state has delegated to cities the power to legislate by ordinance on the subject of Sunday closing in any way which is not in conflict with the state or Federal. Constitution, or with general statutes! hereinabove quoted. So long as the ordinances enacted are not violative of the powers given, they should not be overruled or nullified by the courts, but their repeal must be by the representatives of the people of the city elected as their councilmen. As was stated in the case of Ex parte Johnson, supra, [20 Okla. Cr. 66, 201 P. 536] :

“The express! and implied powers granted to municipalities in this state, relating to police regulations, cover a multitude of subjects, among those enumerated in the statutes being to enact, ordain, alter, modify, or repeal any and all ordinances, not repugnant to the laws of the United States and the Constitution and laws of this state, as shall be deemed expedient for the good government of the city, the preservation of the peace and good order, the suppression of vice and immorality, and measures affecting the health and general welfare of the community. Section 572, R. L. 1910, et seq., [11 O.S. 1941 § 642 et seq'.]. Where such powers are delegated to municipalities in general terms, the lawmaking power is not limited to the treatment of subjects specifically named, but there is the implied power of determining, within the bounds of reason, when any specific act or omission is deemed to- be inimical to the good order or general welfare of the community.
“It is well recognized in this country that the cessation! from ordinary labor one day in seven is a salutary regulation, calculated to promote the peace, health, and good order of the people. We hold, therefore, that the regulation or prohibition of Sunday amusements: is not unreasonable, and is a necessarily implied power granted to municipalities under the Constitution, statutes, and charter of the city, in the exercise of its police power. 3 Dillon on Municipal Corporations (5th Ed.) § 719.”

In our opinion the ordinance here in question is not class legislation, does not confiscate nor impair the value of the property of the accused in the sense that it deprives him of his property without due process of law, and is not in violation of any constitutional right or privilege granted to him by any general statute. It so happens that the great majority of the citizens desire to observe the Sabbath Day as the day of rest. It is not because of any desire of the Legislature to impose upon the conscience of any individual this so-called religious principle, but rather a declaration by the Legislature that the public health, safety and morals would better be served by the enforcement of one day of rest from all secular activities each week.

For the reasons hereinafter stated, the petition for writ of habeas corpus is denied.

BAREFOOT, J., concurs. DOYLE, J., not participating.


source: Caselaw Access Project

author: JONES, P. J.

license: Public Domain

text:
    W. L. TROTTER v. STATE.
    No. A-10180.
    Sept. 29, 1943.
    (141 P. 2d 812.)

      W. E. Farmer, of Pauls Valley, for plaintiff in error.
    Mae Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, W. L. Trotter, was charged in the county court of Garvin county with the unlawful possession of intoxicating liquor, was tried, convicted, and pursuant to the verdict of the jury was sentenced to serve 90 days in the county jail and pay a fine of |200.

For a reversal of this case the defendant presents the following assignments of error:

(1) Misconduct of the county attorney in making prejudicial remarks to the jury.

(2) Error of the court in admitting in evidence state’s “Exhibit B” which purportedly showed the payment of the special tax required of liquor dealersi 'by the federal government. ¡

(3) Error of the court in the giving* of instruction No. 8, which will be hereinafter set forth.

In connection with the first assignment of error, counsel argues in liis brief that the county attorney made prejudicial remarks in his opening- statement to the jury, and further made improper statements in his closing- argument. The brief of defendant sets out what purportedly were the statements made by the county attorney. Counsel for defendant, however, admits in his brief that the remarks allegedly made by the county attorney were not taken by the court reporter and were not contained in the case-made.

It is well settled by many decisions of this court that when a defendant seeks a reversal of a judgment of conviction on account of error in the proceedings of the trial court the record must show the proceedings upon which the alleged error is based. Ables v. State, 35 Okla. Cr. 26, 247 P. 423; Baker v. State, 65 Okla. Cr. 136, 83 P. 2d 586; Cupp v. State, 76 Okla. Cr. 342, 136 P. 2d 700.

In the absence of any record sustaining this assignment of error, the same may not be considered by this: court.

In connection with the second assignment of error, it is provided by statute in Oklahoma asi follows:

“The payment of the special tax required of liquor dealers by the United States by any person within this State, except local agents appointed as hereinbefore provided, shall constitute prima facie evidence of an intention to violate the provisions of this Chapter.” 37 O.S. 1941 § 81.

Pursuant to this statute this court has sustained the admission in evidence of a federal license stamp found in the possession of the party charged with the violation of the intoxicating liquor law, made out to him and covering the period of time d aring which it is alleged that he violated the intoxicating liquor law. Greenwood v. State, 9 Okla. Cr. 342, 131 P. 940; Cahn v. State, 10 Okla. Cr. 200, 135 P. 1155; Walker v. State, 11 Okla. Cr. 339, 127 P. 895.

The record here discloses that a search of defendant’s premises Avas made by'county officers of Garvin county and about 12 pints of intoxicating liquor seized by the officers. Only tAvo witnesses testified for the state and neither of them testified concerning the finding of a federal liquor license at defendant’s premises. At the close of the testimony of the first AA'itness the record discloses that the county attorney made tire following offer: “We offer in evidence as State’s ‘Exhibit B’ Federal Liquor License.” The defendant objected to the admission of such evidence and the objection Avas overruled and the said exhibit admitted in evidence. It reads as follows:

“Trotter, W. L. ELD
“Gen. Del. 28656
“Pauls Valley, Okla. __ July 40
“Trans: 426 N. Pecan, Pauls Valley, Okla.
“Trans: 503 S. Willow, Pauls Valley, Okla.

There is nothing on the face of this instrument to show that it is a receipt for payment of the special United States liquor tax and without some evidence identifying the exhibit and showing where it was found the objection of the defendant to its admissibility should have been sustained. Furthermore, there is nothing on the face of the exhibit to shoAv that it was in force and effect at the time of the seizure by the officers of the intoxicating liquor in question.

At the close of the evidence the court gave instruction No. 8, Avhich reads a.s follows:

“You are instructed that the defendant, W. L. Trotter, is the holder of a Federal Retail Liquor Dealer’s License covering the date charged in this information, and the holding of sush license shall be deemed prima facie evidence of an intention to violate the prohibition laws, unless rebutted, or the contrary proved. Yet the holding of such license does not make it obligatory upon you to convict, but it is competent and sufficient to justify you finding the defendant guilty, provided you are satisfied from all the other evidence that the defendant is guilty beyond a, reasonable doubt.
“Given and excepted to by the Defendant and exception allowed this 2nd day of Sept. 1941.
“(Seal)
“R. B. Garvin, County Judge.”

The defendant did not testify in this case He did not admit that he Avas the holder of a federal retail liquor dealer’s license and the exhibit hereinabove discussed does not so show. The vice of this instruction is in the fact that it assumes that the defendant isi a holder of a federal retail liquor dealer's license covering the date charged in the information. Even if a -purported license had been found in defendant’s possession it Avould have been a question of fact for the jury as to whether the defendant was the owner of a federal retail liquor dealer’s license. When the court instructed the jury that defendant Avas the holder of such license he AA'as invading the province of the jmy. Where the defendant denies that he .is the holder of such a license and the court determines the instrument is admissible in evidence, it would be proper for him to submit the issue to the jury as to whether they should find that defendant Avas the holder of the retail liquor dealer’s license covering the date charged in the information, and further instructing them that if they should so find that defendant Avas the holder of such federal retail liquor dealer’s license that the same shall be deemed prima facie evidence of an intent to violate the prohibitory liquor laws pursuant to the wording of the statute hereinabove quoted.

Lastly, it is contended by the defendant that the punishment assessed is excessive. We shall consider this assignment in connection with what has been heretofore stated with reference to the admissibility of state’s “Exhibit B” and the giving of instruction No. 8. In connection with this assignment of error we quote the following from defendant’s brief:

“In the case at Bar we are not seeking to free a man charged with a crime nor trying to intimate to this court that he is not guilty. The factsi themselves show that the defendant might have had some liquor on his premises at the time of the search and seizure by the officers * *

22 O. S. 1911 § 1068 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.”

It is our conclusion, pursuant to this statute, that the admission of state’s “Exhibit B” in evidence, and the assumption by the court in his instructions to the jury that said state’s “Exhibit B” shows that defendant was the holder of a federal retail liquor dealer’s license, was error, but not such an error as would require a reversal of the case in view of the fact that there is no dispute as to defendant’s guilt of the crime charged. No contention is made that the search and seizure was unlawful.

It is contended that the county attorney laid great stress on the fact that defendant was the holder of the federal license in his closing argument to the jury. As heretofore stated, the record does not support this statement. However, we can readily perceive that the admission of this evidence, although not sufficient to justify a reversal of the case, might have been deemed of sufficient importance by the jury as. to cause them to give the defendant more punishment than they would have given had such evidence been rejected.

We conclude, after a consideration of the whole record, that justice requires a modification of the punishment assessed to thirty days in the county jail and a fine of $200.

It is therefore ordered that the judgment of the county court of Garvin county he modified by reducing the sentence from 90 days in the county jail and a fine of $200 to 30 days in the county jail and-a fine of $200, and the judgment and sentence, as thus modified, is affirmed.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    DAVID ZIMMERMAN v. STATE.
    No. A-10218.
    Sept. 29, 1943.
    (141 P. 2d 809.)

      Geo. T. Arnett, of Idabel, I. O. Correll, of Atoka, and Hayden C. Covington, of Brooklyn, N. Y., for plaintiff in •error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, David Zimmerman, and his brother,. Frank Zimmerman, were jointly charged by information filed in the county court of McCurtain county with the crime of grossly disturbing the public peace. At the close of the state’s evidence the court sustained a motion for an instructed verdict of not guilty as to Frank Zjmmerman. Upon submission of the case to the jury, as to defendant David Zimmerman, he was found guilty and sentenced to serve 30 days in the county jail and to pay a fine of $100.

An elaborate brief lias been filed on behalf of defendant setting up several assignments of error and exhausting the authorities upon the issues involved. No brief has been filed upon behalf of the state and no attempt made to sustain the conviction. Although several propositions of law are presented in defendant’s brief, it is only necessary in the disposition of this case to consider the contention that the evidence is wholly insufficient to support the verdict of guilty.

The conviction rests entirely upon the testimony of one witness. Mrs. Olive, supervisor of the NYA project in Idabel, testified that on Sunday, June 12, 1941, she was living next door to the NYA home. That one of her children notified her that there were some Jehovah’s Witnesses in the NYA home and that she went into the NYA house to investigate. That the defendant and another man were there with the other man playing a phonograph. That she told them they could not play it there, as it was a government project. That neither man made a move to leave; that she then said, “Men are not supposed to come in this way,” and the man playing the phonograph stated if they had known this, they would not have come in, and he stopped the record. That defendant then asked to leave some literature and she told them that it could not be left in the home. That the men left. That the NYA home is a private home where about 25 girls between the age of 17 and 24 were living. That she was the supervisor and worked with other ladies at the home teaching the girls how to do certain things that are beneficial. That the project is supported by the United States Government. That she understood that Vannie May Fennell, one of the girls on the project, had opened the door when the men knocked and allowed them to enter. That there were just three girls in the room where the men were playing the phonograph. When asked to detail what was said by the defendant in her presence the witness answered :

“A, He did not say a word. He just looked at me. He did not make any move to- go, until he started, then he asked me if the girls can read, Q. Did he have literature with him? A. He did. He had quite a, bundle. Q. And he asked vour permission to give the girls who were working there some of this literature? A. He asked me if they could read. I said yes. Then he asked me if he could give them some of this literature. ‘N!o,’ I said, ‘They could not on the project. They could take it home but not on the project.’ ”

When the witness was asked by the prosecutor whether the acts of defendant disturbed her, she replied:

“It disturbed me afterwards, it, excited me, because I did not think we would be allowed to- have that kind of music or records in the home.”

This prosecution is instituted charging a violation of 21 O. S. 1941 § 22, which provides.:

“Every person who wilfully and wrongfully commits any act which grossly injures the person or property of another, or which grossly disturbs the public peace or health, or which openly outrages public decency, and is' injurious to public morals, although no punishment is expressly prescribed therefor by this Code, is guilty of a misdemeanor.”

It is not a. prosecution under what is ordinarily termed the breach of peace- statutes (21 O. S. 1941 §§ 1362 and 1363) which are triable before a justice of the peace.

The punishment under the statute upon which the information herein is based is by. imprisonment in the county jail not exceeding one year, or by a fine not exceeding |500 or by both such fine and imprisonment. 21 O. S. 1941 § 10.

Before a conviction may be upheld herein the acts complained of must be such as “grossly disturbs the public peace.” The trial court correctly instructed the jury that if a person entered a private home and committed acts which disturbed the occupants that he would be guilty of a breach-of the peace, but would not be guilty under the statute herein charged, but that before he would be' guilty under the statute herein charged, it should be a public place, that is, “a place where the public generally are permitted to assemble.”

Although this instruction is a correct statement of the law, the error of the court arose from the fact that there are no facts in the record which justify submission of this case to the jury. In the first place, the testimony of the complainant shows that the house in which the defendant and his companion had entered was a private home where several girls- lived with their teachers. It was not a public place and people were not allowed in the home except upon invitation by one of the occupants. Furthermore, the acts complained of were not such as grossly disturbs the public. There was no- testimony from any witness that the acts of defendant were provocative or that he spoke in any way except in an ordinary tone of voice. There was no noise or disorder. The supervisor was more disturbed over the fact that Jehovah’s Witnesses had been allowed in the home than she was over any particular act of the defendant. The companion of defendant who was playing the phonograph record was a resident of McCurtain county and was not charged with any crime, although he was the person who carried the phonograph and started the music.

If the conduct of defendant had been disorderly, or if he had used reprehensible language directed at the supervisor, he would have been guilty of a breach of the peace as defined by 21 O. S. 1941 § 1363, supra, but in such case, since the acts were in a private home and were not disturbing the public generally, lie. could not be prosecuted under the statute upon which this prosecution is based.

The defendant was held in jail for seven days before any charges were filed. There is no justification for such action. Although the members of this sect at times do things which are extremely irritating to those who. do not share their religious beliefs., and their visits, to. private homes are sometimes most untimely and unwelcome, it is absolutely contrary to all principles of right and justice to arrest a person for such alleged misconduct and hold him in jail for seven days without filing any charges and without affording him an opportunity to malee bond.

The language used by Judge Barefoot in Miller v. State, 75 Okla. Cr. 428, 133 P. 2d 223, 230, in disposing of a charge of breach of the peace against a member of this same sect, applies with equal force to this case, wherein he stated:

“This defendant may be wrong * * * in the principles for which he stands, and his manner of strict construction of certain verses of the Bible, but the principles which are applied by the dictator nations of the world should not be applied here.”

From what has been said, it is clear that there is not sufficient evidence in the record to sustain the conviction and for that reason the judgment of the county court of McCurtain county is reversed and remanded with instructions to discharge the defendant.

BAREFOOT, J., concurs. DOYLE J., absent.


author: BAREFOOT, J.

text:
    MRS. LAZO SEVETGOFF v. STATE.
    No. A-10164.
    Sept. 29, 1943.
    (141 P. 2d 815.)
    J. P. Boettcher and Laynie W. ITarrod, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis R. Morris, Co. Atty., of Oklahoma City, for defendant in error.
   BAREFOOT, J.

The defendant, Mrs. Lazo Sevetgoff, was charged in the court of common pleas of Oklahoma county with the unlawful possession of intoxicating liquor, to wit: Eleven half-gallons of corn whisky, was tried, found guilty by a jury and the court assessed her punishment at a fine of $50, and 30 days- in the county jail, from which judgment and sentence she has appealed.

For a reversal of this case, it is contended by the defendant:

First: That the court erred in permitting the state to prove the reputation of defendant’s home, over the objection of the defendant.

Second: That the court erred in refusing to give an instruction offered by the defendant.

We have carefully examined the record in this case, and find that the errors complained of are wholly without merit.

The evidence in this case so overwhelmingly reveals the guilt of the defendant, and the instructions, given by the court so fully covered the law and the facts in the case, that it is unnecessary to quote at length therefrom.

The evidence revealed that the defendant was the owner of a house located in Oklahoma City, where she lived. On the rear of her property there was another house, which she rented to one Lee Massey, but retained the possession and control of one room of such house, and to which a door opened from the outside. This room was from two to four feet wide, and about, eight feet long. The defendant had complete control and possession of this room, and it was there the 11 half-gallons of corn whisky were found by the officers whoi made the search on April 4, 1941. The officers testified that on the date of the search they found a great number of whisky bottles in her house, from which they could detect the odor of whisky.

The evidence disclosed, not only the possession of the whisky as alleged in the information, but also numerous sales by the defendant to- various persons some time prior to the date the liquor was found. Several witnesses who were neighbors of defendant testified that a great number of people were seen going tó and coming from her house, many of them intoxicated; ■ and the evidence also revealed that defendant had been seen upon many occasions going to the room of the Massey house and returning to her own home with a sack, but the contents of such sacks being concealed, tbe witnesses could not testify vyhat it was.

Under the above statement, it will be seen that a predicate was laid for proving* the general reputation of defendant’s premises. Many witnesses testified that it was a place of public resort, where people went for the purpose of buying liquor by the drink and by the bottle. They also testified that the general reputation of the place prior to the time the liquor was found therein was that it was 'a place where intoxicating liquor could be purchased.

When the information was filed in this case, Lee Massey was made a party defendant. A severance was taken, and Lee Massey was used as a Avitness for the state. Complaint is made that he was an accomplice, and being such his testimony was not corroborated. If it was necessary to corroborate his testimony, there was sufficient evidence to corroborate the same, as herein-before outlined. Many of the witnesses AAho testified were disinterested neighbors, .and many were officers who had searched her premises several times prior to the raid in question.

The instructions of the court fully covered the facts and the law of the case, and the court did not err in refusing to give the requested instruction offered by the defendant.

Finding no error in the record, the judgment of the court of common pleas of Oklahoma, county is affirmed.

JONES, P. J., and DOYLE, J., concur.


text:
    KENNETH LEFAVOUR v. STATE.
    No. A-10183.
    Oct. 6, 1943.
    (142 P. 2d 132.)

      Tom Wallace, of Sapulpa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty, Gen., and Everett S. Collins, Co. Atty., of 'Sapulpa, for defendant in error.
   BAREFOOT, J.

Defendant, Kenneth LeFavour, was charged in the district court of Creek county with the crime of sodomy, was tried, convicted and by the court sentenced to serve a term of two years in the. State Reformatory at Granite, and has appealed.

Defendant’s first assignment of error is:

“The information in this case charged no offense against the laws of the State of Oklahoma; and the Court erred in overruling the demurrer and subsequent proceedings in opposition to the same.”

The statute under which defendant was charged, sections 2553 and 2554, O. S. 1931, Tit. 21, O. S. A. 1941, §§ 886 and 887, is as follows:

“Every person who is guilty of the detestable and abominable crime against nature, committed with mankind or with a beast, is punishable by imprisonment in the penitentiary not exceeding ten years.
“Any sexual penetration, however slight, is sufficient to complete the crime against nature.”

The charging part of the information was:

“* * * did, in Creek County, State of Oklahoma, on or about the 20th day of January, 1941, commit the crime of sodomy in the manner and form as follows, to-wit: That Kenneth LeFavour in said county and state aforesaid, on the d'ay and year aforesaid, did, knowingly, wil-fully, unlawfully, wrongfully, wickedly and feloniously commit the detestable and abominable crime against nature with a certain child, to wit: Charles Dodson, and did then and there wickedly and unlawfully and feloniously have carnal knowledge of the body of said child, Charles Dodson; contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

It is contended by defendant that the allegation a-hove set forth does not comply with section 2883, O. S. 1931, Tit. 22, O. S. A. 1941 § 401, subd. 2, which is as follows:

“A statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.”

Defendant admits, that the allegation is in the words of the statute, but contends that the defendant “may have done everything substantially charged therein,” yet “have been guiltless of any violation of the laws of Oklahoma on such subject.” We have found some authorities that tend to bear out the contention of defendant. People v. Allison, 25 Cal. App. 746, 145 P. 539; People v. Carroll, 1 Cal. App. 2, 81 P. 680, 681; People v. Hopwood, 130 Cal. App. 168, 19 P. 2d 824. But we find that the great weight of authority and the best reasoned cases are in accord in holding that the allegations of an indictment or information, in the same or substantial language of the statute is. sufficient. Among these decisions 'are several from this court. See, also, 58 C. J. p. 790, § 11; State v. Douglass, 66 Wash. 71, 118 P. 915; People v. Dong Pok Yip, 164 Cal. 143, 127 P. 1031; State v. Morasco, 42 Utah, 5, 128 P. 571; Honselman v. People, 168 Ill. 172, 48 N. E. 304; Kelly v. People, 192 Ill. 119, 61 N. E. 425, 85 Am. St. Rep. 323; Commonwealth v. Dill, 160 Mass. 536, 36 N. E. 472; State v. McAllister, 67 Or. 480, 136 P. 354; Ex parte Benites, 37 Nev. 145, 140 P. 436.

In the early case of Ex parte De Ford, 14 Okla. Cr. 133, 168 P. 58, this court in an opinion by Judge Matson gave a history of this statute, and of the crime of sodomy, and reviews some of the leading decisions on this question. It is unnecessary to quote at length from this case. It may be read by those who desire. The court comes, to the conclusion that under our statute, which was taken from the 'South Dakota statute, and in conformity with the opinions from many courts of this country, the terms of the statute include copulation between human beings per os, as well as per anum. This decision is contrary to the rule announced in the case of Koontz v. People, 82 Colo. 598, 263 P. 19, cited by defendant, which seems to be based upon the peculiar wording of the statute of that state. Note 45 L. R. A., N. S., 473; Glover v. State, 179 Ind. 459, 101 N. E. 629, 45 L. R. A., N. S., 473; State v. Start, 65 Or. 178, 132 P. 512, 46 L. R. A., N. S., 266; State v. Whitmarsh, 26 S. D. 426, 128 N. W. 580; State v. Long, 133 La. 580, 63 So. 180; Herring v. State, 119 Ga. 709, 46 S. E. 876; White v. State, 136 Ga. 158, 71 S. E. 135.

In the case of Borden v. State, 36 Okla. Cr. 69, 252 P. 446, this court had under consideration one charged with haying committed the detestable and abominable crime against nature upon a boy 13 years of age. It was contended a,s in the instant case that the information did not state facts sufficient to constitute an offense and was) “uncertain and insufficient, in not alleging the particular circumstances of the offense.” The allegations of the information in that case were: “the defendant did then and there willfully, unlawfully, and feloniously make an assault upon one Fred Freeman, a male person 13 years of age, and did unlawfully, intentionally, forcibly, and against the order of nature have a venereal affair with the said Fred Freeman, and did commit the abominable and detestable crime against nature.”

After quoting the statute, Judge Doyle, who wrote the opinion of the court, said s

“The statute gives no definition of the crime which the law with due regard to the sentiments of decent humanity has always treated as one not fit to be named. It was never the practice to describe the particular manner or the details of the commission of the act. Even in the time of Blackstone this rule was applied to the common-law crime of sodomy. 4 Bl. Comm. 215.
“In the following cases it is held that an indictment or information, charging the commission of the crime against nature, in the language of the statute, is sufficient. Honselman v. People, 168 Ill. 172, 48 N. E. 304; Kelly v. People, 192 Ill. 119, 61 N. E. 425, 85 Am. St. Rep. 323; State v. Whitmarsh, 26 S. D. 426, 128 N. W. 580; Herring v. State, 119 Ga. 709, 46 S. E. 876. * * *
“It follows from what has been said that the demurrer to the information was properly overruled.”

In the case of Roberts v. State, 57 Okla. Cr. 244, 47 P. 2d 607, 610, the court again had before it a case of this kind. The witnesses were two small girls, nine and eight years of age. The charging words in the information Avere that the defendant: “did ‘unlawfully and feloniously and against the order of nature have a Amnereal affair Avith the said Dora McNeil and did commit the abominable and detestable crime against nature.’ ”

The court said:

“The information is sufficient and the demurrer thereto was properly overruled.”

It will he noted that the charge in this case is very similar to the charge in the instant case, only that the act was with a girl, and not a boy. The case ivas reversed, but it was because of other errors. It has been held that the word “mankind” as used in our statute includes a female and that it is not necessary to. allege in the indictment or information the sex of the person on whom the offense was committed, this being immaterial. Lewis v. State, 36 Tex. Cr. R. 37, 35 S. W. 372, 61 Am. St. Rep. 831; Adams v. State, 48 Tex. Cr. R. 90, 86 S. W. 334, 122 Am. St. Rep. 733.

We are, therefore, of the. opinion that the court did not err in overruling the demurrer to the information filed in this case.'

It is next contended that the court erred in permitting two young boys, to testify, one: being nine and the other ten years of age. We have had occasion to quote and discuss the statute (272, O. S. 1931, Tit. 12, O. S. A. 1941 § 385) which specifies ivhat witnesses may testify, in the case of Daves v. State, 77 Okla. Cr. 343, 141 P. 2d 603. It is not necessary to further discuss it, only to say that the courts are almost, unanimous in construing statutes like and similar to. this. The question of whether a child possesses the necessary qualifications: to testify is for the determination of the trial court in the exercise of a sound discretion, and unless the. appellate court is of the opinion that this discretion has been abused, his ruling in this regard will not be set aside.

This rule is based upon the sound reason that the trial court, having the witness before it, is in better position to judge of the capability or incapability of the witness than is the appellate court, who must rely upon the record. The true test of the competency of an infant to testify is intelligence, and not age.

Counsel for defendant seems: to realize that the witness was capable to testify, as the record reveals this statement by him:

“Mr. Wallace: I believe the court will agree with me that he is, a,n unusual bright witness. The Court: I agree with you that he is an unusually bright witness for his age, certainly. Don’t lead the witness.”

The record does not reveal that the court questioned the witness as to his knowledge of right and wrong, and as to whether he knew that he would be punished if he testified falsely. We think it is the better practice for this to be done and let the record so show. Evidently the court had sufficient reason for coming to the conclusion that the witness was of such intelligence that he was competent to testify, and for this reason he was not examined,. The evidence given by these two witnesses is not.such as would cause one to believe that they were not qualified to> testify. Under cross-examination, and being confronted with prior statements, they, like any child, made some contradictory statements, but we think their evidence should be examined as a whole in view of all the facts and circumstances, in the case, and thus come to a conclusion as to whether their statements are such that they are not to be believed because of their contradictions,. No motive to falsely accuse the defendant was sufficiently established. The parents of these boys were anxious that the guilty party be punished, but there is nothing in the evidence from which we can discern a motive to falsely charge this defendant.

We also call attention to the fact that while we consider it the best practice for the court to give a preliminary examination of the witness when objection is made thereto, yet in the instant case, when the witness: Charles Dodson was placed upon the witness stand and objection made to his testifying by the defendant on account of his age, the witness was turned over to counsel for defendant for examination as to his qualifications. Counsel then asked the witness:

“Mr. Wallace: Q. What is your age? A. What? The Court: Q. How old are you? A. Eight. Mr. Wallace:-At this time we object to the testimony of the witness unless he is further shown to be qualified. The Court: Well, I understand it is within the sound discretion of the court to pass on it. It is not a question of age, but a question of the intelligence of the child, and I think this boy can tell the jury all he knows about it. Overruled.”

No further questions were asked. Evidently counsel was relying upon the fact that the witness Was under ten years of age and was therefore disqualified by reason of sec. 272, O. S. 1931, Tit. 12, O. S. A. 1941 § 385.

By the cases heretofore cited, it will be noted that in construing this statute, it has been held that intelligence, and not age, is the proper rule, and unless it is shown by the record that the discretion of the trial court in permitting the witness to testify has been abused, this court will not overrule the same.

The general rule was announced in the case of State v. Newman, 66 Mont. 180, 213 P. 805, 806, where the court says:

“Before any testimony was given in the case, upon Agnes Plannigan being called and sworn, the defendant interposed an objection to her being permitted to testify in the case on the ground that she was the wife of the defendant. The court ruled: ‘We wil] presume that she is not. The objection will be overruled.’ The court’s preliminary remark was highly objectionable, but the ruling was correct. The defendant could not place a seal upon the lips of the witness by merely asserting incom- ' potency by reason of the alleged relationship. There is no presumption that a witness is incompetent; and upon this preliminary matter the party insisting on the disability to' testify must prove that the relationship of husband and wife exists. Jones on Evidence § 744; Green-leaf on Evidence, § 339; Wharton, Cr. Ev. (10th Ed.) § 390.
“ ‘The orthodox division of function between judge and jury allots, without question, to the judge the determination of all matters of fact on which the admissibility of evidence depends; and therefore of the facts of a witness’ capacity to testify.’ Sections 10698, 10699, Rev. Codes 1921; Wigmore on Evidence, § 487.
“ ‘There are two modes by which the competency of a witness may be determined; and the party who objects to a witness may, of right, adopt either. He may examine the witness upon his voir dire, or he may prove the alleged incompetencv by evidence aliunde.’ People v. Anderson, 26 Cal. [129], 130.
“At the conclusion of the voir dire examination, or from the evidence aliunde, the court determines whether or not the witness is competent. State v. Hancock, 28 Nev. 300, 82 P. 95, 6 Ann. Cas. 1020; Flanagin v. State, 25 Ark. 92, 95; Rickerstricker v. State, 31 Ark. 207, 209. The defendant did not avail himself of either of the means open to him for testing the competency of the witness. He did not ask to examine the witness on voir dire, nor ask the court to do' SO'. Neither did he request the right to produce evidence aliunde to prove the alleged relationship. It is not error for a trial court to permit a witness to testify, without voir dire examination, over an objection as to her competency, if it appears from all of the evidence given at the trial that she was competent. State v. Simes, 12 Idaho 310, 85 P. 914, 9 Ann. Cas. 1216.”

No case cited by the defendant holds that it is absolutely necessary for the court to examine the witness prior to Ms determination of his competency.

The jury returned, a verdict finding the defendant guilty, as charged in the' information, “hut failed to agree upon his punishment therefor, because of our inability to agree upon such punishment, after using all possible efforts to so agree.” When the court entered judgment and sentence against the defendant, it contained this statement: “and said jury having returned into open court a verdict of guilty and fixed the punishment of said defendant at two years in the state reformatory at Granite, Oklahoma.”

It is contended by defendant that by reason of this statement in the judgment and sentence that the jury assessed his punishment at “two years in the state reformatory,” he was prejudiced thereby, that this is a sufficient reason for reversing this case. We do not think so. The adding of these words to the judgment is merely surplusage, and was evidently a mistake of the clerk in preparing the judgment, which was signed by the court. Under the statute, as instructed by the court, punishment could have been assessed not to exceed ten years in the penitentiary, and the court had the right to assess the punishment for a period of two years, as was done. We fail to see where the defendant was prejudiced. No authorities are cited by defendant to sustain this contention.

The facts in this case are such that we do not care to place them in print. The evidence of the two witnesses who’ were small boys, when taken as a whole, is not unreasonable, although revolting. One of the boys testified to three different occasions, and the other corroborated this evidence as to one occasion when he was present in person and witnessed the act. The jury had an opportunity to see and hear these witnesses, and after so doing, found the defendant guilty of the crime charged. This finding was approved by the trial court, it is not for this court to interfere. The evidence of neither of the boys was such as to make him an accomplice, under the laws; and the evidence of Charles Dodson was corroborated, if it had been necessary to do soi. This defendant is a young! boy, 16 years of age. The crime with which he is charged is one of the most revolting known to the law. We have carefully examined the record, and from such examination we have found m> error that justifies the setting aside of the verdict of the jury, rendered in this case. The defendant had a fair and impartial trial, and while it is hard for this court to think of a young boy of this age being sent to the penitentiary, yet the law is so written that everyone must answer for the crime which he has committed. Under the Constitution and laws of this state,, the pardon and parole power is vested in the Governor of the State. He may act as to him is deemed advisable.

Finding no error, the judgment of the district court of Creek county is affirmed.

•JONES, P. J., and DQYLE, J., concur.


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    RAYMOND K. WRIGHT v. STATE.
    No. A-10182.
    Oct. 6, 1943.
    (142 P. 2d 128.)

      Homer Cowan, of Norman, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Raymond K. Wright, was charged by information filed in the district court of Cleveland county with the crime of burglary in the second degree, was tried, convicted and sentenced to serve three years in the State Penitentiary, and has appealed.

The chief contention of the defendant is that the evidence is insufficient to sustain the verdict of guilty. The case against the defendant was wholly circumstantial.

Mr. and Mrs. D. R. Stogner and their 16 year old daughter lived a.t 303 East Frank street in Norman. Mr. Stogner, in the year 1940, was a highway patrolman stationed at Kingfisher, Oklahoma. In the latter part of November, 1940, Mrs. Stogner went to Illinois to see a sister who was seriously ill, leaving the 16-year-old daughter living with one of their neighbors.

The daughter testified that she was at her home practicing the piano between the hours of 4 and 5 p. m. on December 3, 1940. That she left about 5 p. m. and went over to the neighbor’s house where she was living while her mother was away from town. That when she left all of the doors and windows to the house were closed. That she returned shortly after 7 p. m. and found the front door open. Upon entering the house she saw that a large amount of clothing, bed linens, radio, and other personal property had been taken. She immediately notified the chief of police.

Gerald Holman, principal of the Windsor school, testified that shortly after dark on December 3, 1940, he was working at the school building when one of his boys entered and told'him he had seen a suspicious looking character carrying a bundle across his back in the rear of the Windsor school, Avhich is by the Stogner house on Frank street. That he and the boy ran out of the school building and got into the principal’s car and drove around in front of the house. That just as they got there the car started up and they followed it for tAVO or three blocks. That it Avas an old model car with a Texas tag. That he gave the chief of police the license number.

W. W. Jennings, chief of police, testified that he was notified about 7:30 p. m. by Doris Stogner of the burglary at the Stogner home. That shortly thereafter Mr. Holman reported seeing the suspicious looking car with a Texas license near the Stogner home and gave him the license number. That he called the police department in Dallas, Tex., and gave them the tag number Avhich Mr. Holman hud given him. That three or four days later he was notified by the police department that they had arrested the owner of the automobile and were holding him in the Dallas jail. That he went to Dallas after the defendant, who was the person Avho had been arrested 'by the Texas policemen. That he brought the defendant and a large quantity of clothes, which were in the defendant’s automobile at the time of his arrest, back to Norman with him. That some of the clothes belonged to the defendant and his wife and some of them were identified by Mrs. Stogner after her return from llinois as part of the personal belongings of the Stogners. When he was called by the police department in Dallas he received information that the defendant had stated he secured the clothing from the codefendant, James Johnson, Avho lived near Bethany, Okla,. That before he Avent to' Dallas after the defendant he AA'ent.to Bethany to Johnson’s house and there recovered the radio and some other personal property which was identified as belonging to the Stogners.

Tavo police officers from Dallas, Tex., testified to substantially the same facts. They testified that they received information from the chief of police at Norman concerning an automobile with Texas license number 313 — 228. That they made a check to' see who the license had been issued to and they learned it was issued to Raymond K. Wright, 3523 Kenthvorth street. That a. pick-up Avas broadcast two or three days later at the home of his mother-in-law. That the care with the Texas license number given them by the Norman police chief was parked in the driveway and Avas full of clothing and other personal belonging's which were seized by the officers a.nd transported to the jail at Dallas along Avlth the defendant. That the defendant said that he had gotten the merchandise from Jim Johnson, his brother-in-law, at Oklahoma City and they relayed this information to the chief of police at Norman.

There was other testimony offered by the state, but it was cumulative to the testimony hereinabove outlined.

The defense offered was in the nature of an alibi. The Avife of the defendant and several other parties testified that for a few weeks prior to December 3, 1940, the defendant had been working at some tourist courts near Bethany in Oklahoma county. His brother-in-law and co-defendant, James Johnson, also lived near there. That on the evening of December 3, 1940, the defendant, his co-defendant and another boy went possum hunting*. That they came back early in the evening* with one possum and showed it around to several people in the neighborhood and then left for a second hunt, returning- a few hours! later with two possums and one skunk. That on December 4th, the following morning, they paid up their rent and left for Dallas:, where defendant’s mother-in-law lived and where defendant and his wife formerly resided.

The defendant did not testify. His wife: testified that the dresses in their possession, which the officers claimed were stolen, had been given to her by Mrs. Johnson, who was her sister, before they left Oklahoma City.

Mrs. Johnson, Avife of the codefendant, testified concerning the possum hunt. She further testified that a hitchhiker by the name of Trammel came by their place on the morning of December 4th and sold her husband the dresses, a radio and some other personal property. That the dresses which she gave to Mrs. Wright were obtained by her husband from Trammel.

In determining* the sufficiency of the evidence to sustain the conviction, we have the folloAving established circumstances :

(1) A burglary of the Stogner home was committed between the hours of 5 and 7 p. m. on December 3, 1940.

(2) A car Avith a Texas license number, AAdiich was later identified as belonging to defendant, was seen in front of the house and a man Avith a bundle on his back Avas seen going* to the car* shortly after dark, which Avas ¡about ti o’clock p. m. on December 3, 1940.

(3) The defendant was arrested in Dallas, Tex., three days after the burglary, having just driven from Oklahoma City. He was in possession of the car with the identical Texas license number of the car used in the burglary.

(4) He had possession of some of the property which was taken in the burglary.

(5) I-Iis explanation as to where he had received the property led to a search of the Johnson premises where a great deal of the remaining property was recovered.

(6) For several days prior to the burglary the defendant had lived near Oklahoma City, about 25 miles from the Stogner home. He paid his rent and left there the day following the burglary.

We think the facts shown by the state were sufficient to make a prima facie case against the defendant. His proof of the alibi raised an issue which required submission to the jury. We feel bound by the findings of the jury on this question.

In the case of Herren v. State, 69 Okla. Cr. 57, 97 P. 2d 96, 100 P. 2d. 286, it is stated:

“In a prosecution for burglary, where it is shown that there was a burglarious entry and that property was. stolen, evidence of possession by defendant of the stolen property is admissible as a circumstance tending, to prove that defendant was guilty of the burglary.
“Evidence of possession of the stolen property by defendant soon after the burglary was committed, when supplemented with other facts inconsistent with the idea that the possession was honest, is sufficient to sustain a conviction for burglary.
“Where the evidence is circumstantial, if there is substantial evidence which if believed by the jury preclude every reasonable hypothesis of the innocence of the defendant, a verdict of guilty will not be disturbed.”

In the body of the opinion, on rehearing, it is stated:

“It is only where there is a total failure of substantial evidence of the elements or some one element of an offense that this court on appeal is permitted to reverse a conviction on the ground that the evidence is insufficient to sustain it.”

. The facts in that case were not as strong as the facts in the instant case. The defendant was found in possession of an automobile, with two of the automobile casings stolen in the burglary on the rear wheels. With him at the time of his arrest was his brother, Earl Herren, and the shoes, worn by Earl Herren were identified as having made the same peculiar tracks, as were found at the scene of the burglary. The defendant claimed that he had bought the casings from a man in Oklahoma City. In disposing of the defendant’s contention.that the evidence was insufficient to support the verdict, Judge Doyle stated:

“In the case of Hart v. State, 57 Okla. Cr. 372, 48 P. 2d 337, 338, we said:
“ ‘It has been held by this court, following the rule recognized by the courts generally, that mere possession of property recently stolen is not sufficient to convict the possessor of a larceny of it. Shaw v. State, 13 Okla. Cr. 511, 165 P. 617; Graham v. State, 12 Okla. Cr. 84, 152 P. 136. When, however, this fact is supplemented by other facts inconsistent with the idea that the possession is honest, it then becomes a question of fact for the jury to determine.
“ ‘Where the charge is burglary, if property taken from the owner is soon thereafter found in possession of the person charged with the burglarious entry, proof of this fact, together with circumstances showing guilty conduct, is presumptive evidence, not only of the larceny, but also that he made use of the means by ivhich the property was taken from the owner. * * *
“ ‘In order to establish defendant’s guilt, it was not necessary that any of the -witnesses should have seen him, or his codefendants in the vicinity of the warehouse about the time the -burglary was committed. It rarely happens that perpetrators of an offense, committed in the manner here proven, can he shown by witnesses who saw and recognized the defendants in the act, and resort must therefore ordinarily be had to circumstantial evidence.’ ”

See, also, Spann v. State, 69 Okla. Cr. 369, 103 P. 2d 389; Chesser v. State, 63 Okla. Cr. 84, 73 P. 2d 191; Shields v. State, 32 Okla. Cr. 344, 240 P. 661.

In Spann v. State, supra [69 Okla Cr. 369, 103 P. 2d 390], it is stated:

“If there is a. conflict in the evidence or different inferences may be drawn therefrom, it is the province of the jury to weigh the evidence and determine the facts; and their determination should not be interfered with unless it appears that such determination was not sustained by sufficient evidence or was influenced in some way by passion or prejudice.”

After a consideration of this record, it is our conclusion that the evidence is such as to require submission to a jury, and its finding on such disputed questions of fact will not be disturbed.

Although the brief of the defendant is devoted to the-contention that the evidence is insufficient to' sustain the verdict, he made the further assignment of error that the court erred in admitting hearsay evidence by the officers that they made a check of the records to' determine who was the owner of the automobile bearing the license number given them by the Norman police chief. Counsel’s contention that this evidence was hearsay is correct. But the error in allowing the admission of this evidence was cured by counsel’s cross-examination of the witness in which counsel admitted the car belonged to defendant and by the further testimony of the wife of the defendant that the car belonged to the defendant.

We find no material error in the record and the judgment of the district court of Cleveland county is accordingly affirmed.

BAREFOOT, J., concurs. DOYLE, J., absent.


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    FLOY EDISON et al. v. STATE.
    No. A-10230.
    Oct. 13, 1943.
    (142 P. 2d 141.)

      Bascom Coker, of Iclabel, for plaintiffs in error.
    Randell >S. Cobb, Atty. Gen., and L. E. Mifflin, Go<. Atty. of Idabel, for defendant in error.
   BAREFOOT, J.

Defendants, Floy Edison and Curtis Sargent, were charged jointly in the county court of Mc-Curtain county, with the crime of unlawful possession of intoxicating liquor, ivere tried and convicted; the defendant Floy Edison was sentenced to pay a fine of $250 and serve 90 days in the county jail, and the defendant Curtis Sargent was sentenced to pay a fine of $50, and serve a term of 30 days in the county jail. Both defendants have appealed to- this court from such judgments and sentences.

All of the assignments of error may be considered together.

A search warrant was obtained by the sheriff of Mc-Curtain county for the purpose of searching the following described premises:

“Filling station, residence and outbuildings used in connection with said filling station and dwelling situated upon lots 9, 10, 11, and 12, of block 6, Herndon Addition to the city of Idabel.” It was stated that the above premises were in the possession of the defendants Floy Edison and Curtis. Sargent.

Motions were made by each of the defendants to suppress the evidence obtained by reason of the search. These motions were overruled by the court, and from an examina,tion of the record, we find that the court did not err in overruling the same.

In the brief filed by counsel for defendant, it is contended that the evidence was insufficient to sustain the judgment and sentence against the defendant Floy Edison, for the reason that it does not show that he was: in possession of, or that he had control of the liquor found by reason of the search.

The evidence against the defendant Eloy Edison was weak, but there were circumstances from which the jury could have come to the conclusion that he was interested in and had possession of the liquor found. He did not take the witness stand, and he had a right not to do so, but when he did not, he can not claim that the jury should not consider the circumstances against him.

The sheriff of McCurtain county, Joe Hough, testified that he procured a search warrant on September 20, 1941, to go to the place of Flóy Edison and Curtis Sargent, on the south edge of town. He gave a minute description of the premises, and testified that he and one of his deputies, and the chief of police searched the same. There was a residence on the premises, and a filling station in which was kept oil and a small stock of groceries. A door opened from the filling, station into two rooms that were occupied as living quarters by the defendant Curtis Sargent. There was: a bed in one of these rooms. In a secret panel in the door facing between the two rooms, the officers found ten and a half pints of tax-paid whisky, and two pints of gin. The defendant Floy Edison lived in the residence. One of the officers testified that there was a sign above the door of the filling station which read: “Edison’s Service Station and Grocery.” The witness who testified as to this sign was asked on cross-examination:

“Q. But, Sam, Curtis Sargent was. running the filling* station and living in that part of the house, wasn’t he? A. He was working there.”

There were other circumstances which the jury had the right to consider, and we cannot say that the jury was not justified in finding that the defendant Edison was interested in the operation of the filling station and grocery store, where the liquor was found. The jury evidently came to the conclusion from all the facts and circumstances that the liquor hidden in the door' facing of the living quarter's of the defendant Ourtis: Sargent was there for the purpose of sale in the filling station.

It is the contention of the defendant Floy Edison that because the liquor was found in that part of the building in which the defendant Curtis Sargent was; living, and that no liquor was; found in his residence, which was situated on the same premises hut not connected with the filling station, the evidence ivas insufficient to support the judgment and sentence against the defendant Floy Edison. As above stated, the evidence against this defendant is weak, and is principally circumstantial, but we have often held that a conviction may be sustained on circumstantial evidence alone. The court instructed the jury upon the question of circumstantial evidence, as requested by the defendant.

The record does not reveal that either of these defendants has heretofore been convicted. From an examination of the record we think that justice demands that the punishment, assessed against the defendant Floy Edison should be reduced from a fine of $250 and 90 days in jail to a fine of $50 and 30 days in jail, the same as the jury assessed against his codefendant, Curtis. Sargent.

As so modified, the judgment and sentence of the county court of McOurtain county is affirmed.

JONES, P. J., concurs. DOYLE, J., dissents.


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    CHARLES ROY v. STATE.
    No. A-10301.
    Oct. 13, 1943.
    (142 P. 2d 139.)
    W. C. Henneberry, Elmore A. Page, and Paul L. Olney, all of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. G-en., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Charles Boy, was charged by indictment presented and filed in the district court of Tulsa county with the crime of forgery in the second degree, was tried, convicted and sentenced to-serve three year's in the State Penitentiary, and has appealed.

At the time of the argument and submission of this case, the Attorney General, in open court, confessed that the trial court had committed reversible error in admitting in evidence testimony by a police officer tas to' statements made by a third party in the,, presence of the defendant, concerning the defendant’s connection with the alleged crime then under investigation and for which the defendant was being tried.

The evidence of the state consisted of testimony from three witnesses. Mrs. Banfield testified that Theodore Harris, on July 12, 1941, bought 35 cents worth of meat in her store and gave her a check for $13.95, purportedly signed by one J. N. Phillips. That she deposited the check to her account in the Tulsa bank and that it was returned with the notation “No Account.” She did not see the defendant.

Riley Stuart, a Tulsa policeman, testified that he was present when the defendant and Theodore Harris] were arrested and confined in jail on the instant charge. This occurred in November, 1941, about five months after the alleged crime was committed. Over' the objection and exception of the defendant, the policeman was allowed to detail a conversation which he had with Theodore Harris, in the presence of the defendant, concerning the check in controversy, in which conversation he asked Harris-, “Theodore, who wrote this check?”, and Harris answered, “Mr. Charles Roy wrote the check sitting out in the truck, in the cab.” He further related details told him at that time by Harris concerning the defendant’s, connection with that check and other’s which Harris is alleged to- have passed in the city of Tulsa. When the policeman was asked what the defendant said when Harris made this statement, he replied that the defendant stated to Harris;, “You’re just a--■ liar.”

The third witness for the state was a policeman connected with the identification bureau in Tulsa who testified that in his judgment the letter “J” made by the defendant in certain specimen handwritings given by Mm Avas identical Avith the “J” on the check in controversy.

A similar question to that here involved hasi been before this court many times. A feAV trial courts have been inclined to admit testimony as to statements made by a third person in the presence of the accused, tending to connect the accused Avith the offense charged, Avhere the accused remains silent as to such conversation, upon the ground that the silence on the part of the accused to the charges made by the third person had the effect of an admission by the accused of the truthfulness of the charges made.

In the early case of Vaughan v. State, 7 Okla. Cr. 685, 127 P. 264, 42 L. R. A., N. S., 889, this court gave an extended discussion of the admissibility of this character of testimony. The law of that case is stated in the syllabus as MIoavs:

“It is error in the trial of a criminal case for the court to admit testimony as to declarations between an officer who had accused under arrest and the state’s witnesses, or other persons, in the presence of the accused, tending to connect him Avith the offense charged, and that the accused remained silent as to’ such conversation; and, Avhen a conviction results with such testimony before the jury, a neAV trial should be granted.”

This.decision has been followed in many other cases since that date. See Ellis v. State, 8 Okla. Cr. 522, 128 P. 1095, 43 L. R. A., N. S., 811; Towery v. State, 13 Okla. Cr. 216, 163 P. 331, L.R.A. 1917D, 491; Ellington v. State, 24 Okla. Cr. 67, 215 P. 964; Patton v. State, 29 Okla. Cr. 66, 232 P. 454.

In Towery v. State, supra, it is stated:

“Where a party charged with' the commission of a crime is under arrest, and a third party in his presence make® a statement to the officers, which tends to connect the accused with the commission of the crime, and the accused remains silent, such statement, and the fact that the accused remained silent is not admissible in evidence against him, for the Constitution clothes the accused with the right of silence, and it would be absurd to say in one breath lie has the right of silence, and in the next to hold that he could be forced to testify against himself, by the very act of exercising this right.”

In Patton v. State, supra, it is held:

“Declarations of a defendant, made after the offense was committed, in the presence of a codefendant, are admissible against himself, but inadmissible against the other defendant.
“A defendant in custody is not called upon to- contradict statements prejudicial to him, made in his presence, and, though they are not contradicted, they are not admissible in evidence.”

In the body of the opinion, it is stated:

“The declarations of a coconspirator or accomplice are receivable against his fellows when they accompany and explain acts done in pursuance of a concerted criminal purpose, if made during the pendency of the common criminal enterprise; if made at a subsequent period and merely narrative of past occurrences, they must be rejected. Bohannan v. State, 24 Okla. Cr. 103, 215 P. 1078.”

In the instant case there, is abundant argument for sustaining an objection of the defendant to the admissibility of the declarations made by his codefendant in his presence, for the reason that the defendant did not remain silent. He very vehemently denied the accusations of his codefendant. It cannot, therefore, be assumed that the statements of the codefendant are receivable in evidence against him as an admission against interest because of his silent acquiescence therein. The record discloses tliat tlie codefendant was present in the courtroom at the time of the trial of this defendant, although a severance was granted and the accused were being tried separately. If the state had seen fit they could have used the codefendant as a witness against this defendant and his testimony would have been admissible, but the declarations of the codefendant to an officer, tending to connect the accused with the offense charged, are hearsay as to the accused though admissible against the party who made them.

For the reasons hereinabove stated, the judgment of the district court, of Tulsa county is reversed and remanded for further proceedings.

BAREFOOT, J., concurs. DOYLE, J., absent.


text:
    SWANIE FITZGERALD v. STATE.
    No. A-10203.
    Oct. 13, 1943.
    (142 P. 2d 131.)
    See, also, 75 Okla. Cr. 192, 129 P. 2d 867.
    Zink & Cunningham, of Hobart, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, P. J.

Tbe defendant, Swanie Fitzgerald, was charged by information in the county court of Kiowa county with the crime of unlawful possession of intoxicating liquor, was tried, convicted and sentenced to serve 30 days in the county jail and to' pay a fine of $50.

This case was assigned for oral argument and submission on July 17, 1942. No' brief has been filed in this case and no appearance on behalf of the defendant made at the time said cause was set for hearing.

Where the defendant appeals from a judgment of conviction, and neither any brief is filed nor appearance for oral argument made, we do not consider it the duty of this court to go into a careful examination of the evidence to determine Avhether or not the trial court erred in the admission or rejection of testimony. This court will examine the record for jurisdictional errors. If no fundamental error appears, the judgment will be affirmed.

We have examined the record and find that the information is sufficient to charge the offense of unlawful possession of intoxicating liquor. Two officers of Kiowa county, armed with a search warrant, made a search of defendant’s premises. They found three pints and five half pints of whisky in a stew pan suspended by a rope in the well of the defendant. No evidence was offered on behalf of defendant. The instructions appear to be applicable to the law and facts. On the record before us we have discovered no error which Avould warrant a reversal of the judgment of conviction and it appears that defendant was accorded a fair and impartial trial.

The judgment of the county court of Kiowa county •is accordingly affirmed.

BAREFOOT, J., concurs. DOYLE, J., absent.


author: BABEFOOT, J.

text:
    In re BURL JONES.
    No. A-10447.
    Oct. 13, 1943.
    (142 P. 2d 137.)
    See, also, 77 Okla. Cr. 285, 141 P. 2d 109.
    Streeter Speakm.au and Moraul Bosonetto, both of Sapulpa, for petitioner.
    Bandell S. Cobb, Atty. Gen., Sam H. Baltimore, Asst. Atty. Gen., and O. M. Gordon, Asst. Co>. Atty., Okmulgee County, of Okmulgee, for respondent.
   BABEFOOT, J.

Petitioner, Burl Jones, has filed a petition for habeas corpus, alleging that he is in custody of Jolin Lennox, sheriff of Okmulgee county, Okla., being charged with the crime of murder, and that an order has been made by the judge of the superior court of Okmulgee county, denying him bail upon a petition for habeas corpus heard in said court.

A rule to' show cause was issued by this court, and a hearing was set for October 11, 1943. At the hearing the allegations of the petition were admitted as true.

It was alleged therein that the defendant, on January 31, 1941, was charged by information in the superior court of Okmulgee county with the crime of murder; that he was tried on such charge on February 19, 1941, resulting-in a disagreement of the jurors; that defendant wasi thereafter admitted to bail; that he was again tried on November 17, 1941, and was convicted and sentenced to serve a term of life imprisonment in the State Penitentiary a.t ■McAlester; that his case was appealed to* the Criminal Court of Appeals of this state, and on September 8, 1943, the judgment and sentence of the superior court of Ok-mulgee county was reversed and remanded, and the -warden of the. penitentiary was directed to deliver petitioner to the custody of the sheriff of Okmulgee county. That after said petitioner was delivered to the sheriff of Okmul-gee county, application was made for writ of habeas corpus, asking that he be allowed bail, which said application was denied by the judge of the superior court of Okmulgee county, and as a result thereof, this application was filed in this court.

The statute, with reference to the granting of bail in capital cases is section 2814, O. S. 1931, 22 O. S. A. 1941, section 1102, and is as follows:

“Bail, by sufficient sureties,' may be admitted upon all arrests in criminal cases where the punishment may be death, unless the proof is evident or the presumption great; and in such cases it shall be taken only by the Criminal Court of Appeals or a district or superior court, or by a justice or judge thereof, who shall exercise their discretion therein, having regard to the nature and circumstances of the offense, and of the evidence and to the usages of law; but if the case has been tried by jury, and the jury have, disagreed on their verdict, then the above presumption is removed, and the defendant shall thereupon be entitled to bail, unless it shall appear to the court or judge thereof, by due proof, that such disagreement was occasioned by the misconduct of the jury.”

This case having been before this court, we are very familiar with the facts, as shown by the record, and for the reason that the case is to be retried, we refrain from a discussion of the evidence. This defendant having been first tried in the superior court which resulted in a hung jury, and then being admitted to bail, thereafter was tried and convicted of murder' and given a life sentence, which judgment and sentence was reversed by this court, we are of the opinion that petitioner is entitled to bail pending a retrial of this case.

It lias been held by this court that when a case has been reversed by this court the defendant is then placed in the same position that he was in prior to the trial of his case in the lower court. Watson v. State, 26 Okla. Cr. 377, 224 P. 368; Clapp v. State, 74 Okla. Cr. 144, 124 P. 2d 267.

On the date of the hearing on the order to show cause, an order was made admitting defendant to be discharged on bail in the sum of $15,600, said bail to be approved by the court clerk of Okmulgee county. That order is now confirmed.

JONES, P. J., concurs. DOYLE, J., not participating.