text:
    HERBERT CARR v. STATE.
    No. A-9452.
    Nov. 3, 1938.
    (84 P. 2d 42.)

      Milton Keen, of Clinton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

On information charging that Herbert Carr did drive an automobile on a public highway, in Custer county, while under the influence of intoxicating liquor, he was tried, found guilty, and, in accordance with the verdict of the jury, was sentenced to pay a fine of $100 and to imprisonment in the state penitentiary for a term of six months. From the judgment he appeals.

Among other assignments of error, it is alleged that the court erred in overruling the defendant’s motion for a new trial. This motion was based principally on the ground of the disqualification of one of the jurors, by reason of the fact that he was a deputy sheriff.

In support of the motion for new trial, the defendant, Herbert Carr, filed his affidavit as follows:

“That one of the jurors in the trial of this cause to wit: Grover Leonard, is now, and was on the 6th day of April, 1936, the day of said trial, and has been for more than 20 years, a duly appointed and commissioned and legally acting deputy sheriff, and was thereby disqualified from serving as a juror in the trial of this action; that immediately prior to the trial of this cause the court thoroughly examined said Grover Leonard along with the other jurors, upon those subjects touching qualifications, and said Grover Leonard then and there concealed his said disqualification; that this defendant caused said Grover Leonard, along with the other jurors, to be examined generally as to competency, but said Grover Leonard did not disclose the fact that he was and had been a deputy sheriff; that neither this defendant nor defendant’s attorney, Milton Keen, had any knowledge whatsoever of the fact that said Grover Leonard was a deputy sheriff; that this defendant and his said attorney did not learn of the disqualification of juror, Grover Leonard, until the day after said jury rendered its verdict of guilty as to this defendant; defendant further states to the court as a grounds for a new trial that said Grover Leonard was also duly appointed and commissioned deputy sheriff by G. G. Simpson, the present sheriff of Custer county and other deputy sheriffs of Custer county were witnesses for the state in the trial of this action; that the juror Grover Leonard voted ‘guilty’ on the first ballot taken by said jury, and said Grover Leonard continued to vote ‘guilty’ on all ballots taken by said jury, thus prejudicing defendant’s constitutional, statutory and substantial rights.”

The proceedings had upon the motion for a new trial are set forth in the record by the following stipulation:

“It is hereby stipulated by and between counsel for the state and counsel for the defendant, that in addition to the proceedings heretofore shown in this case-made to have been had upon the motion for new trial filed herein by the defendant, another and different hearing was had upon said motion, at which hearing oral testimony was introduced, which testimony was in substance as follows:
“Garnett G. Simpson, sheriff of Custer county, Okla., under oath certified in substance that, immediately after he became the sheriff of Custer county in 1933, he deputized one Grover Leonard as a deputy sheriff, and gave a written commission to the said Grover Leonard therefor. That this was the same Grover Leonard who served as a juror in the trial of this cause. That this deputy’s commission had not been revoked nor cancelled in any manner, and was in full force and effect at the time of the trial of this cause. That a few days after the trial of this cause, that is the 6th day of April, 1936, the said Grover Leonard approached this witness, Garnett G. Simpson, and told this witness that he, Leonard, had torn up the said deputy’s commission the day after the said trial. And that about two weeks after the said trial, this witness did issue another and similar deputy’s commission to the said Grover Leonard, which is now in full force and effect. That at no time, did the said Grover Leonard surrender or turn back his said deputy’s commission to this witness. That this witness did not see the said Grover Leonard tear up the said commission at any time.
“Grover Leonard, the juror in question, testified under oath in substance that he had been commissioned as a deputy sheriff by Garnett G. Simpson, the sheriff of Custer county, Okla., early in 1933. That he had been a deputy sheriff in said county for more than 20 years. That in 1933, Garnett G. Simpson had administered an oath to him, and given him a written commission as such deputy sheriff. That he was one of the jurors in the trial of this cause on the 6th day of April, 1936, that before said trial commenced, he heard the Honorable W. P. Keen, judge of the said district court, and the presiding judge of said trial, read from the Oklahoma statutes about the disqualification of all deputy sheriffs. That he, Grover Leonard, did not make known to anybody the fact that he was a deputy sheriff. That during all the 20 years he had been a deputy sheriff, he had kept the matter as much a secret as possible, because he believed that he could do better work as an officer if the public did not know of his authority. That he did not want it known at this time. That on the day of the said trial, he was a deputy sheriff; and that the next day he tore up his written commission. That the sheriff, Simpson, had never at any time asked him to surrender his said commission, and had never discussed with him the advisability of a cancellation of said commission. That on the trial of this cause, the said sheriff Simpson, and several of his deputies, were called as witnesses for the state. That when the jury retired for deliberation, this witness advised the other jurors to vote for a conviction; that on the first ballot taken by said jury, this witness voted ‘guilty’; and continued to vote in that manner, and continued to advise the other jurors to vote ‘guilty’, until on the last ballot, all twelve jurors voted ‘guilty’. That the day after the said trial, and after the verdict had been brought into court, Milton Keen, who was attorney for the defendant, Herbert Carr, approached this witness and asked if witness was not a deputy sheriff ; that this witness then admitted to Milton Keen that he was a deputy sheriff, but requested Milton Keen to not mention it. Then he told Milton Keen that he had his commission in his pocket during the trial.
. “Herbert Carr, the defendant, testified under oath in substance, that at the time of his trial, he was not acquainted with the juror, Grover Leonard, had never heard of him, nor his name, and did not know that Grover Leonard was a deputy sheriff. That this witness did not learn that Grover Leonard was a deputy sheriff until the day after the trial, that is, the 7th day of April, 1936, when so told by his attorney, Milton Keen.
“Milton Keen, the attorney for the defendant, testified under oath in substance that at the time of the trial, he was and had been for several years acquainted with the juror Grover Leonard, but did not then know, and had never known, that Grover Leonard was or had ever been a deputy sheriff. That the judge of the court, W. P. Keen, examined all jurors on their competency, and read to them the statute covering the qualifications and disqualifications, immediately prior to the commencement of this trial; that Grover Leonard was present when this was read, and did not say anything about any disqualification, and did not mention being a deputy sheriff. That this witness examined all the jurors generally as to their competency, and Grover Leonard did not then say anything about being an officer. That had he known of this fact he would have challenged said juror, Grover Leonard. That the day after the jury reached and returned its verdict, this witness learned that Grover Leonard was a deputy sheriff, and immediately contacted said Grover Leonard to verify the truth of same.
“That Grover Leonard admitted that he was, and had been for 20 years, a commissioned deputy sheriff, and had a commission as such an officer in his pocket at the time of the said trial; and said juror asked this witness to not reveal the fact of his being an officer as he did not want the public to learn of it, as he had been doing considerable under-cover work for the sheriff, Garnett G. Simpson. That immediately, this witness, Milton Keen, contacted Garnett G. Simpson, the sheriff of Custer county and asked him whether or not Grover Leonard had been a deputy sheriff on the day of the trial. And Garnett G. Simpson told this witness that Grover Leonard had been commissioned by him as a deputy sheriff in February, 1933, and had continued to act as such officer ever since.
“On cross-examination of Grover Leonard and Gar-nett G. Simpson, the county attorney brought out that Grover Leonard was not a salaried deputy and was not under bond, and had no authority to serve civil process.”

It appears from the record that the verdict of the jury was returned April 6, 1936, and that on September 21, 1937, said motion for a new trial was overruled. Thereupon the court rendered judgment in conformity with the verdict.

The statute, section 805, St. 1931, 38 Okla. St. Ann. § 10, disqualifies sheriffs, deputy sheriffs, constables and jailers from performing jury service.

A review of the record shows that the juror, Leonard, was a deputy sheriff within the meaning of the statutory disqualification.

Whether or not the ruling of the court was error, prejudicial to the substantial rights of the defendant, is the question presented.

The rule is well settled that a known ground of disqualification to a juror before or during the progress of the trial, is waived by withholding it, or refusing or declining to raise the objection until after verdict. Queenan v. Territory, 11 Okla. 261, 71 P. 218, 61 L.R.A. 324, affirmed 190 U. S. 548, 23 S. Ct. 762, 47 L. Ed. 1175; David v. State, 14 Okla. Cr. 535, 179 P. 48; Tinney v. State, 19 Okla. Cr. 126, 201 P. 819.

In Thompson on Trials, sec. 114, the rule is stated as follows:

“A known cause of challenge is always waived by withholding it, and raising it as an objection after verdict, since such a practice is incompatible with the good faith and fair dealing which should characterize the administration of justice.”

This was the rule followed by this court in the case of David v. State and Tinney v. State, supra.

In the case at bar the record shows that the juror, Leonard, on his voir dire qualified as a juror by his answers to questions by the court and by counsel.

In the case of Reeson v. State, 41 Okla. Cr. 297, 272 P. 1033, this court held that:

“A defendant in a criminal case is entitled to a new trial, where one of the jurors called as a talesman was a deputy sheriff, which fact was not known to the defendant or his attorneys until after the return of the verdict.”

In the recent case of Tripp v. State, 63 Okla. Cr. 41, 72 P. 2d 529, this court held:

“The statute disqualifying sheriffs from performing jury service applies to deputy sheriffs as well, and a deputy sheriff when challenged on such ground is not eligible to sit on jury in criminal case. (38 Okla. St. Ann. § 10, St. 1931, § 805; 19 Okla. St. Ann. § 547, St. 1931, § 7630.)”

In Robinson v. Territory of Oklahoma, 148 F. 830, in error to the Supreme Court of the Territory of Oklahoma (16 Okla. 241, 85 P. 451), the Circuit Court of Appeals, Eighth Circuit, said [page 831] :

“Counsel for the territory now contend that the testimony does not show that McCracken was in fact a deputy sheriff; that the holding of a commission by him does not establish that he had qualified under it. There is no merit in this refinement. The evidence was properly treated as prima facie proof that he was a deputy sheriff, and if it was susceptible of any doubtful meaning counsel for the territory and the trial court obviously did not so treat it.”

The opinion of the court concludes as follows:

“Every reason of public policy which disqualifies a sheriff for jury service appertains to a deputy sheriff, and the latter falls, not only within the reason of the rule disqualifying the former, but within the letter of the statute disqualifying ‘sheriffs’. Within the purview of this statute a deputy is no less a ‘sheriff’ because he is not chief. We think the district court erred in overruling defendant’s challenge to Juror McCracken, and that the Supreme Court of the territory erred in not reversing the judgment for that reason.”

In 16 C. J. 1152, it is said:

“If the objection relates to the moral capacity or impartiality of the juror, or to any matter which goes to impeach the fairness or impartiality of the verdict, if not discovered until after the verdict, it would, no doubt be as good a ground for a new trial as a cause of challenge before. But when the objection rests on technical grounds, such as the want of property, alienage, or the like, not at all affecting the moral capacity or impartiality of the triers or the justice of the verdict, the rule usually does not apply.”

While the rule is definitely settled that where the defendant had knowledge of the disqualification of a juror he is bound to make his objection by way of challenge before the jury is sworn; otherwise he will be deemed to have waived it. This doctrine of waiver is extended to all criminal cases. Starr v. State, 5 Okla. Cr. 440, 115 P. 356, 369. A waiver involves the idea of assent and assent is primarily an act of the understanding. It presupposes that the person to be affected has knowledge of his rights, but does not wish to enforce them. He cannot properly be said to waive that of which he had no knowledge. It must appear that the defendant had knowledge of the disqualification of a juror before it can be held that he waived the objection.

However, it is the duty of the defendant to ascertain, by proper examination on their voir dire, the competency of jurors, and if he fails to do so, he waives his challenge even though the disqualification is unknown to him until after the rendition of the verdict. The granting of a new trial, in such case, is a matter of judicial discretion. Cooper v. State, 27 Okla. Cr. 278, 226 P. 1066; 16 Corpus Juris, 1158.

The constitutional guaranty of an impartial jury is as follows:

“In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed.” Const, art. 2, § 20, Okla. St. Ann. Const, art. 2, § 20.

Under this provision the defendant in a criminal case has a constitutional right to the deliberation and determination of an impartial, unbiased and qualified juror, and not only of one such juror, nor eleven, but twelve men of that class. To deprive him of the legal right to an unbiased and impartial finding on the evidence, which may be in his favor, is to inflict upon him an injustice of the rankest kind, if he has not in some manner waived the departure from the legal course of procedure.

In the case of Spradlin v. State, 13 Okla. Cr. 376, 164 P. 990, it is said:

“The impartiality of the jury goes to the very foundation of the accused’s liberty, and where evidence is introduced such as is disclosed by this record of a convincing character to show that there is a strong probability that the accused was not accorded that fair and impartial trial guaranteed to him by the Constitution and laws of this state, and the rebuttal evidence is of a very unsatisfactory character, the verdict should be set aside and a new trial granted. It requires the unanimous consent of the jury to convict, and a fair and impartial jury is not had by 11 impartial men and one man shown to be prejudiced, within the definition of actual bias.”

Every person charged with crime is entitled to a fair trial in conformity to the laws of the state, and it is a duty resting upon the courts to see that this guaranty conferred by the laws upon every citizen is upheld and sustained. And it is the duty of courts to see that the constitutional rights of a defendant in a criminal case shall not be violated, however negligent he may be in raising his objection.

It follows from the foregoing review that the defendant did not have a fair and impartial trial, in that his constitutional right to a trial by an impartial jury was denied.

It is also contended that the verdict is contrary to law and to the evidence, and that the court erred in overruling defendant’s motion at the close of all the evidence to direct the jury to return a verdict of not guilty.

It appears that on the date alleged, the defendant, a colored man, was driving an automobile on State Highway No. 14, about two miles south of the city of Clinton; with him was riding another colored man, when a collision occurred with an automobile occupied by four white people. Both cars were damaged to the extent that neither could be driven under its own power, but nobody was seriously injured.

As to the sufficiency of the evidence it is sufficient to say that the testimony was in sharp conflict Whether or not the defendant was under the influence of intoxicating liquor when the collision occurred, ánd that issue was a question of fact for the jury to determine. We think the court very properly overruled the motion for a directed verdict of acquittal.

For the reasons stated, the judgment of the lower court is reversed and the case remanded for a retrial.

DAVENPORT, P. J., and BAREFOOT, J., concur.


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    BUD PECK v. STATE.
    No. A-9514.
    Nov. 15, 1938.
    (84 P. 2d 447.)
    Haskell Pugh, of Anadarko, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Amos Stovall, Co. Atty., and James F. Hanger, Asst. Co. Atty., both of Anadarko, for the State.
   BAREFOOT, J.

The defendant was charged by information in the district court of Caddo county, with the crime of murder, was tried, convicted of manslaughter in the first degree, and his punishment assessed by the court at a period of eight years in the penitentiary, and he appeals.

A motion was made to dismiss the appeal for the reason that the same was not filed in this court within six months from the date of judgment and sentence. We have examined the record and find that judgment and sentence was entered on the 22nd day of November, 1987. Several extensions of time were granted, and the case-made was filed in this court on May 16, 1938. This was within the six months period allowed by law, for the filing of appeals in this court in felony cases. The motion to dismiss states that the appeal was filed May 26, 1938. This is an error. The record shows that the case was filed in this court on May 16, 1938.

The record reveals that when the case was called for trial the defendant appeared without counsel. The court interrogated him and found that he had property and means to employ counsel, but refused to do so for the reason as he stated that they wanted to charge him too much. After due consideration by the court, and upon the recommendation of the county attorney, counsel was appointed to defend him, and the court gave him time to prepare his case. After his conviction the court ordered a transcript to be prepared at the expense of Caddo county, and his case was duly appealed to this court. Counsel withdrew from the case, and when the same was set for oral argument defendant appeared in person and informed the court that he desired to have his case submitted. No brief has been filed on behalf of the defendant or the state.

We have carefully read and examined the record. It reveals that defendant and deceased both lived in the town of Bridgeport, Caddo county. That they had been friends for a long time. That on the 4th day of April, 1937, the deceased came to the home of the defendant late in the afternoon. He was drinking and had with him a pint bottle of whisky a little over half full. Two other parties were present at the home of defendant, Charlie Huey, and his son, Willie Huey. They all drank from the bottle of deceased, Walter Arthurs. Deceased wanted defendant to go with him to his home and defendant refused to do so for the reason that one Joe Bird owned the house in which deceased lived and lived in the basement, and that defendant and Joe Bird were not on good terms. Deceased struck at defendant and missed him. They scuffled and were separated by the Hueys. In the scuffle a table was broken and the stove was knocked over. Defendant requested all of them to leave and they did so, Charlie Huey going first, his son Willie Huey second, and the deceased, Walter Arthurs, a step or so behind Willie Huey.' Just as deceased was starting to leave, he and the defendant were quarreling, and Willie Huey heard defendant say: “I will kill you.” His testimony with reference to the shooting was as follows:

“Q. Then what did he do? A. Well, he went back in the house a second and then he came back with the gun. Walt had done walked up the side of the porch, on the northwest corner, turned around and was facing the house, facing Bud. Q. Did Walt have anything in his hand? A. I didn’t see nothing. Q. Did he make any advance or threat toward Bud? A. I never noticed him. Q. Bud was going after a gun was he? A. Yes, sir. Mr. Pugh: I object to him leading his witness. The Court: You are leading the witness, Mr. County Attorney; objection sustained. Q. Did Bud come back when he got the gun? A. When he got the gun? Q. Yes. A. Yes. Q. Then what did he do? A. He raised the gun. Q. Did you see him raising the gun? A. Yes, sir. Q. When Bud raised the gun, what was Walt doing? A. Just standing, is all I know. Q. Did he raise his hands ? A. I never seen him. Q. You saw Bud standing there with a gun in his hand? A. Yes, sir. Q. And you saw Walt standing how many feet from him? A. I guess about 10 or 12, something like that. Q. And at that time did Walt say a word? A. I never heard him. Q. Did he move a hand or advance in any way? A. If he did, I didn’t notice him. Q. What did Bud do? A. He shot him. Q. How long was that after you had heard Bud say T am going to kill you’? A. I guess it was about — just a few minutes — just a little while. Q. And that happened in Bridgeport, Caddo county, Oklahoma. A. Yes, sir.”

Charlie Huey’s testimony corroborated that of his son.

Several witnesses who were either present or close to the scene of the difficulty testified to many facts which corroborated the testimony of the Hueys.

The defendant testified that with the assistance of the Hueys he put the deceased out of his house and that old man Huey hollered “Look out, Bud, he is coming back in,” and further testified:

“Arthurs says, ‘You God-damned right, I am going to come in, I am going to get you, you son-of-a-bitch/ I says, ‘No, stay out.’ Q. Did you tell him you would kill him? A. Yes, sir, told him to stay out or I would shoot him. Q. What did he say about that? A. He kept advancing. Q. What did he call you? A. A son-of-a-bitch, and a coward, afraid to go down to his place. Q. You say he started advancing toward you ? A. He was advancing toward the house; I couldn’t see from where I was standing. Q. Did you see him? A. No, not from where I was getting this fire, at the time I heard that. Q. Did he say he would kill you? A. Yes, sir. Q. Where was he when he said that? A. He was about the west end of the porch, from the way it sounded. Q. Was he away from the house or up close to the house? A. Well, I judge he was maybe five or six steps from the porch, from the sound of his voice. Q. Do you know whether or not he was close to the main part of the house? A. Well, I judge he was ten or fifteen feet; Mr. Huey was west of the house, going west, when he was hollering, telling me to watch out. Q. When you saw him, where was he, if you know? A. He was on the porch, or close to the porch — I think on the porch. Q. Did you shoot him? A. Yes, sir. Q. Bud, at that time, were you afraid of him? A. Yes, sir. Q. Were you afraid he was going to kill you? A. Yes, sir, I knew he would if he got hold of me, or beat me up terrible. Q. Now, did you shoot him by reason of your fear of him there and him rushing you ? A. Yes, sir; I didn’t know what had happened outside; Mr. Huey, much of a man, had hollered for me to watch out, he was coming at me. In behind the door, right east of where I was gathering this fire, the bedroom, a curtain hung up, I had a shotgun sitting right again the door facing. I reached back and got that. The instant I saw Arthurs, as near as from here to that man there (indicating) the shotgun fired, either from my hands or from my shoulder, I couldn’t say which. The jar of the gun moved me back around; I turned back; my face to the east, and went back in the house. Mr. Huey, at that time, had come in from the south side of the house, through the kitchen, in his shirt sleeves, and says, ‘Did you kill him’. I says T don’t know’. He went to the door, come back, says ‘You killed him deader than hell’. He says, ‘He is much of a man, the best man I ever had hold of’.”

This testimony was denied both by Charlie and Willie Huey, both testifying that they did not come back to the house after the killing, and that Charlie Huey made no such statement. It will be seen that the jury had an opportunity to see and hear the witnesses and observe their demeanor upon the witness stand and were best able to judge where the truth lay. This court will not set aside the verdict of a jury where there is competent evidence to support its findings. All of the witnesses testified that deceased was unarmed. There is no reason for this court to interfere with the judgment and sentence in this case.

In the petition in error, it is urged, that the court erred in certain remarks made in the presence of the jury when they returned into court after considering their verdict, and that the court erred in permitting the court reporter to read to them from the evidence of certain witnesses. We have read the record very carefully, and while We think the court should be careful in comments to the jury where they have retired to deliberate, we find nothing said by the court to justify a reversal of this case.

The defendant had a fair and impartial trial. The jury found the defendant guilty and left his punishment to be assessed by the court which was assessed at eight years in the penitentiary. The evidence reveals that the defendant had served a previous term in the penitentiary upon a charge the same as in this case. Under the circumstances it does not occur to us the judgment and sentence was excessive. The judgment of the district court of Caddo county is therefore affirmed.

DAVENPORT, P. J., and DOYLE, J., concur.


author: DAVENPORT, P. J.

text:
    A. L. THURMOND v. STATE.
    No. A-9361.
    Nov. 15, 1938.
    (84 P. 2d 446.)
    David Tant, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, P. J.

The defendant was by information charged with murder, was tried and convicted of manslaughter in the second degree, and sentenced to serve, a term of two years in the state penitentiary, and has by transcript appealed to this court.

Section 3146, O. S. 1931, 22 Okla. St. Ann. § 977, defines what shall constitute the record in a case and makes it the duty of the clerk of the court to annex together and file in the clerk’s office:

“(1) The indictment and a copy of the minutes of the plea or demurrer.
“(2) A copy of the minutes of the trial.
“(3) The charges given or refused, and the.indorse-ments, if any, thereon; and,
“(4) A copy of the judgment.”

When the defendant attempts to appeal by transcript it is his duty to have a complete record of the pleadings up to and including a copy of the judgment filed in this court.

The purported transcript filed by the defendant does not show a complete transcript and record as it does not include a complete copy of the clerk’s minutes as required by the statute. The transcript has been carefully examined, and the court finds the information is sufficient to advise the defendant of the charge against him, and to enable him to prepare properly to meet the charge.

This case was filed in this court on July 15, 1937, and was assigned for oral argument on March 29, 1938, plaintiff’s brief to be filed by March 29, 1938. On March 29, 1938, the case was submitted on the record. No brief has been filed by the defendant in support of his assignment of errors. The court therefore assumes the appeal has been abandoned or that counsel representing the defendant has reached the conclusion there are no errors in the transcript sufficient to warrant a reversal. Tucker v. State, 8 Okla. Cr. 392, 127 P. 882; Poole v. State, 37 Okla. Cr. 59, 256 P. 67.

The transcript has been carefully examined and an examination fails to disclose any prejudicial or fundamental errors. The case is affirmed.

DOYLE and BAREFOOT, JJ., concur.


author: PER CURIAM.

text:
    TOMMY ZANDERS v. STATE.
    No. A-9399.
    Nov. 15, 1938.
    (84 P. 2d 444.)

      0. A. Brewer, of Hugo, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   PER CURIAM.

The defendant was by information charged with the crime of murder; was tried, and convicted of manslaughter in the first degree and his punishment fixed at 25 years in the penitentiary. From the judgment and sentence the defendant has appealed.

Several errors have been assigned by the defendant. The record was filed in this court on October 15, 1937. The case was submitted on the record April 26, 1938, and the plaintiff in error was given 10 days to file brief.

No brief has been filed by the defendant in support of his assignment of errors. The court therefore assumed that the appeal has been abandoned, or that counsel representing the defendant has reached the conclusion there are no errors in the record sufficient to warrant a reversal.

The record has been carefully examined and the examination fails to disclose any prejudicial or fundamental errors. The evidence is sufficient to sustain the verdict of the jury.

The case is therefore affirmed.


text:
    H. P. MORRIS v. STATE.
    No. A-9528.
    May 5, 1939.
    (90 P. 2d 452.)
    Person E. Woodall and Justin Hinshaw, both of Norman, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   PER CURIAM.

The plaintiff in error was convicted of possession of intoxicating liquor and sentenced to pay a fine of $100 and to be imprisoned in the county jail for 30 days, and appeals.

The record in this case was filed in this court on May 31, 1938. The case was submitted on the record September 25, 1938. No brief has been filed in support of the plaintiff in error’s assignments of error. The court therefore assumes that the appeal has been abandoned, or that counsel representing the plaintiff in error has reached the conclusion there are no errors in the record sufficient to warrant reversal.

The record has been carefully examined, and the examination fails to disclose any fundamental error.

The evidence is sufficient to sustain the verdict of the jury.

The case is therefore affirmed.


author: DOYLE, J.

text:
    ERNEST POWELL v. STATE.
    No. A-9511.
    Nov. 15, 1938.
    (84 P. 2d 442.)

      Champion, Champion & Fischl, of Ardmore, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

Appellant, Ernest Powell, was convicted on a charge of unlawful possession of intoxicating liquor, and was by the court sentenced to pay a fine of $50 and to confinement in the county jail for 30 days.

A new trial having been denied he appeals and assigns as error the overruling of his motion to suppress the evidence; the admission of evidence obtained by an unlawful search of his home; and that the verdict is contrary to law and to the evidence.

Before the trial appellant moved to suppress the evidence and supported this motion by testimony. The motion was overruled.

The record shows that E. R. Wrinkle, a police officer, made affidavit before Ulis Barnett, justice of the peace, reciting that in Carter county on the 10th day of July, 1937, “Ernest Powell, at number 17 F. Street, N. E. Ard-more, Oklahoma, in a certain building, described as follows: One-story frame building occupied as residence.” Then follows the usual form as to unlawful possession. On the same day a search warrant issued to E. R. Wrinkle, which authorized the officer to search “a certain building described as one-story frame building, at number 17 F. Street, N. E. occupied as a residence by Ernest Powell, in Ardmore, Carter county.” The return thereon is signed: “E. R. Wrinkle, Deputy.”

In support of the motion to suppress, the affidavit and search warrant were offered in evidence.

The defendant, a citizen of African descent, testified that he lives with his family at 17% F. Street, N. E., and has lived there for the past 17 years; that his house is in the rear of 17 F. Street, N. E.; that E. R. Spignor lives in a one-story frame house at number 17 F. Street, N. E.; that several years ago he sold to E. R. Spignor the house and front part of the lots.

“By the Court: Q. If. I understand correctly this lot faces a certain F. Street. You sold the front and retained the back, and your house is on the back end ? A. Yes, sir.”

The motion is overruled. Exceptions.

Ott Welch, the only witness on the trial, testified that he was with E. R. Wrinkle when he searched Ernest Powell’s place on F. Street; that the house sets back quite a bit from the street; that he could not recall the number just now, that in the search they found three and one-half pints of whisky. He identified a pint bottle of whisky as one found in thé search, which was offered and admitted in evidence.

The complaining witness, E. R. Wrinkle, was not called as a witness.

The objection made to the search and seizure is that the defendant’s place was not the one described in the affidavit and search warrant.

The undisputed evidence is that the place described in the affidavit and search warrant Was not the defendant’s place.

It is elementary that a complaint or affidavit for a search warrant must particularly describe the place to be searched for intoxicating liquor. The statute provides that the warrant shall command a search of the premises described, and designated in such complaint or affidavit and warrant. Section 2635, St. 1931, 37 Okla. St. Ann. § 84.

The variance in the description of the place searched: A one-story building, at number 17 F. Street, N. E., is insufficient authority for the search of the defendant’s residence at number 17% F. Street, N. E. Allen v. State, 39 Okla. Cr. 236, 264 P. 217.

In the case of Young v. State, 63 Okla. Cr. 196, 74 P. 2d 392, it is said [page 393] :

“It is urged that the search warrant was insufficient in that it does not describe the place where the officers searched, and did not conform to the provisions of section 2638, St. 1931, 37 Okla. St. Ann. § 87, which reads: ‘No such warrant shall issue but upon- probable cause, supported by oath or affirmation describing as particularly as may be the place to be searched, and the person or thing to be seized’.
“In conformity to this statute and to the authorities, generally, it has been many times held by this court that a search Warrant must so particularly describe the place to be searched that the officer to whom it is directed may determine it from the warrant, and that no discretion, as to the place to be searched is left to the officer. Bryson v. State, 59 Okla. Cr. 130, 56 P. 2d 1198; Clanton v. State, 59 Okla. Cr. 365, 60 P. 2d 415; Smith v. State, 40 Okla. Cr. 366, 269 P. 376; Shanafelt v. State, 38 Okla. Cr. 345, 261 P. 380; Mayberry v. State, 62 Okla. Cr. 183, 70 P. 2d 1106; Stouse v. State, 62 Okla. Cr. 46, 70 P. 2d 145.” And see Mason v. State, 63 Okla. Cr. 153, 73 P. 2d 468.

In Balch v. State, 115 S. W. 2d 676, the Court of Criminal Appeals of Texas held that a warrant describing the premises as “302 E. Robbins Street,” did not authorize a search of the premises located at “304 Robbins Street.” In the body of the opinion the court quotes from Cornelius on Search and Seizure, p. 320, as follows [page 677] :

“Where the premises sought to be searched are described by a certain street number, obviously such a description will not authorize a search of some other street number.”

It follows from what has been said that the officers who invaded the defendant’s home and made the search were trespassers, and that the evidence procured thereby was inadmissible, and was improperly admitted over appellant’s objections in violation of his constitutional and statutory rights.

There are several other errors discussed in the brief, but they may be covered by the general observation that the requirements of section 2635 of the Enforcement Act, 37 Okla. St. Ann. § 84, prescribing the duties of officers in executing a search warrant, were not complied with, as shown by the record.

For the reasons stated, the judgment of the lower court is reversed and the case remanded with direction to dismiss.

DAVENPORT, P. J., concurs. BAREFOOT, J., dissents.


text:
    J. D. YEARGAIN v. VENABLE, Judge.
    No. A-9578.
    Nov. 18, 1938.
    (84 P. 2d 812.)
    John H. Venable, of Miami, pro se.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The petitioner herein, J. D. Year-gain, Sr., filed in this court, on October 14, 1938, his original application praying for writ of mandamus, requiring Judge John H. Venable, county judge of Ottawa county, tó certify his disqualifications in a certain case pending against petitioner in the county court of Ottawa county.

As grounds for said application, it was alleged that said judge of Ottawa county had made certain statements which it was contended disqualified him to try said case, and that the said judge was biased and prejudiced against the defendant.

By agreement by all parties an order was made that a hearing should be had upon the above application on the 19th day of November, 1938. A response was filed by Judge John H. Venable, in which he denied making the statements alleged in the application, and denied that he was in any way biased or prejudiced against the defendant.

When the matter came on for hearing, neither the petitioner nor his attorney, who had previously withdrawn from the case, made an appearance. The respondent appeared in person and made a statement of the facts in open court.

After a careful consideration of the record, we find that the application for writ of mandamus should be denied, and it is so ordered.


author: PEE CURIAM.

text:
    J. D. YEARGAIN v. VENABLE, Judge.
    No. A-9579.
    Nov. 18, 1938.
    (84 P. 2d 813.)
    John H. Venable, of Miami, pro se.

      Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for respondent.
   PEE CURIAM.

The application for writ of mandamus in this case is identical with the application of J. D. Yeargrain, Sr., this date decided by this court. 65 Okla. Cr. 225, 84 P. 2d 812. The only difference being that the writ in this case was asked in reference to a case pending against the defendant in the county court.

For the reasons stated in the opinion in the case of J. D. Yeargain, Sr., the application for writ of mandamus in this case is denied.


text:
    ROY STALEY et al. v. STATE.
    No. A-9282.
    Nov. 25, 1938.
    (84 P. 2d 813.)

      W. C. Henneberry and Ed Crossland, both of Tulsa, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., and Holly L. Anderson, Co. Atty., of Tulsa, for the State.
   PER CURIAM.

On rehearing, the petition for rehearing of defendants is sustained, and the law and facts reconsidered.

The defendants were charged with opening and conducting gambling games in Tulsa county, Okla., on the 3d day of September, 1935; were tried, convicted, and each defendant sentenced to pay a fine of $1,000 and serve a sentence of five years in the penitentiary, and have appealed.

The defendants have assigned 18 errors .alleged to have been committed by the trial court. The view we take of this record it is only deemed necessary to consider assignments 6th and 7th, which are as follows:

“6. For the reason that the court erred in refusing the plaintiffs in error’s motion to withdraw the waiver of jury entered at a former term of court; and, in overruling their demand for a trial by jury.
“7. For the reason that the court erred in denying these plaintiffs in error a postponement of the trial for one week.”

Under these assignments of error it is contended that the court erred in refusing to permit the defendants to have a jury trial, and the trying of the defendants without impaneling of a jury, and denying the defendants a postponement of one week.

In order to properly consider this case it is necessary to recite the action of the courts leading up to the trial of the case. The defendants were jointly informed against on the 29th day of December, 1935; they were arraigned on the 3rd day of January, 1936, and entered their pleas of not guilty. On the 21st day of February, 1936, the case was by order of the court set for March 11, 1936. It was then stricken from the assignment on several occasions and finally set for trial on the 2d day of May, 1936.

On this date it appears from the record an agreement was entered into in open court by the state, who was represented by the county attorney and an Assistant Attorney General, and the defendants in person, and by their counsel, whereupon each of the defendants, in consideration of a continuance of said case until September 15, 1936, agreed to waive their right of severance; and also waive their right to trial by jury, and agreed their case might be tried by the court without intervention of a jury. On the 10th day of September, 1936, the case was set for trial on the 23d day of September, 1936.

It is further shown by the record that on the 22d day of September, 1936, counsel who had represented the defendants from the date they were first arraigned up until the 22nd day of September, 1936, one day prior to the day the case was assigned for trial, were permitted to withdraw as counsel for the defendants. On the 23rd day of September, 1936, an order was entered setting the case for trial on the following day, September 24, 1936.

The record further shows that when counsel that had heretofore represented defendants withdrew on the 22d of September, 1936, it became necessary for the defendants to locate and employ other counsel to defend them. On September 24, 1936, the counsel employed by the defendants appeared in open court, and the defendants were permitted to withdraw their former pleas of not guilty, and counsel filed a demurrer to the information, which was by the trial court then presiding overruled.

Up until September 22, 1936, the day that original counsel withdrew from the case, the orders entered in the case, and the alleged agreement to waive the jury and to try the same by the court was entered by Bradford J. Williams, one of the district judges of Tulsa county, Okla.

The said order of Judge Williams being entered on May 11, 1936, setting the case for trial on Tuesday, September 15, 1936. This is the last order, as shown by the record, that was entered by Judge Bradford J. Williams in the case.

The next order as shown by the record was entered by Judge Leslie Webb, on September 10, 1936, setting the case for trial September 23, 1936. This was the first order entered by Judge Leslie Webb.

The record further shows that on September 22, 1936, the county attorney was permitted by an order of Judge Leslie Webb, to endorse several witnesses on the information, the 22d day of September, 1936, being one day before the case was assigned for trial, and the same day that Moss, Young & Yeager, who had been the attorneys for all of the defendants from the time the case was called in court up to the said 22d day of September, 1936, were permitted to withdraw from the case, leaving the defendants on the 22d day of September, 1936, without an attorney to defend them. On September 23, 1936, the record shows the case was passed to September 24, 1936, by order of Judge Leslie Webb.

It is further shown that on September 24, 1936, the defendants appeared in open court and were by the court permitted to withdraw their former plea of not guilty, and file a demurrer to the information, which demurrer was by the court overruled, exceptions saved, and the defendants then entered their pleas of not guilty.

The defendants then filed a motion to withdraw their waiver of trial by jury, and requested a jury trial, which motion was by the court overruled, exceptions saved, and the court overruled the request of the defendants for a postponement of the case for a week. Defendants excepted, and the court proceeded to the trial of the case, after the defendants had been denied a trial by jury, and denied a continuance for one week.

The orders of the court denying the motion to withdraw the waiver of trial by jury, and the demand for a jury trial, and continuance for one week, omitting the captions and signatures, are in words and figures as follows.

“This cause coming on regularly for trial on the 24th day of September, 1936, one of the regular judicial days of the July, 1936, term of the district court of Tulsa county, Oklahoma, and the defendants, Roy Staley, George L. McCullough, A. C. Vandeventer and Cecil Byrd, and each of them having filed a motion for a postponement of the trial of this case for one week, the court being fully advised overruled the motion of these defendants and each of them for a postponement of the trial of the case for one week, to which overruling of said motion the defendants and each of them then and there excepted, which exceptions were allowed by the court.”
“This cause coming on regularly to be heard, on this, the 24th day of September, 1936, one of the regular judicial days of the July, 1936, term of the district court of Tulsa county, Oklahoma, upon the motion of the defendants, Roy Staley, George L. McCullough, A. C. Vandeven-ter, and Cecil Byrd, and each of them to withdraw waiver of trial by jury and be granted a jury trial, the court after being fully advised, notwithstanding the fact that a jury is now in regular attendance upon this court, overrules the said motion of the said defendants and each of them, overrules the motion to withdraw the waiver of trial by jury, and refuses to grant the defendants or either of them a trial by jury, to which ruling of the court, the defendants and each of them then and there excepted, which exceptions were by the court allowed.”

The defendants argue at length that as disclosed by the record the court abused its discretion in not permitting them to have a jury trial; and, also, that the court abused its discretion in denying the defendants a postponement of one week. The record shows that at the time the case was called for trial the attorneys representing the defendants had been employed for a little more than 24 hours, and on the 22nd day of September, 1936, the lawyers that had been representing them had been permitted to withdraw, and the court had granted the application of the county attorney permitting him to endorse several witnesses on the information to be used on behalf of the state.

It will also be noted that Judge Webb, a district judge who presided over division No. 1 of Tulsa county, had on a prior occasion sat as a trial judge in the trial of one of these defendants on a charge of murder, in which case many of the facts brought out in the trial of Cecil Byrd were brought out in the trial of these defendants without the intervention of a jury.

The question to be decided is: Did the court abuse its discretion in refusing to postpone the trial of the defendants for a week in order to give the attorneys defending them at the time the case was called for trial an opportunity to examine the witnesses, and especially those witnesses who had been ordered by the court to be placed on the information on September 22, 1936, less than 48 hours prior to the time the case was called for trial?

Parties charged with crime are entitled to have a reasonable time to prepare their case for trial, and when as disclosed by the record in this case counsel who had been representing them withdrew 48 hours before the case was called for trial, the defendants were entitled to a postponement of the case for a reasonable time in order to secure an attorney, and to give the attorney an opportunity to examine the witnesses and inquire into the facts, and be prepared to properly defend the defendants when the trial began.

The record shows that the first order entered in this case was entered in the division of Judge Bradford Williams, and later when the case was called for trial it was taken up in the court of Judge Webb, who had presided in the trial of Cecil Byrd on a trial for murder, Cecil Byrd being one of the defendants in this case.

On September 24, 1936, the day the case was called for trial, and preceding the trial the court permitted the said defendants to withdraw their former pleas of not guilty, and to file a demurrer to the information; which demurrer was by the court overruled, and exceptions by each of the defendants reserved. The order does not make any special reservation but is a general order permitting the defendants to withdraw their former plea of not guilty and file their demurrer. The order of the court, omitting the caption and signature, is as follows:

“This cause coming on regularly for trial on this the 24th day of September, 1936, one of the judicial days of the July, 1936, term of the district court of Tulsa county, Oklahoma, the defendants, Roy Staley, George L. McCullough, A. C. Vandeventer and Cecil Byrd, and each of them, having been given leave to withdraw their plea of not guilty and file their demurrers to the information herein. The said demurrers having been filed and considered by the court, and the court being fully advised do hereby overrule the demurrers to the information herein; to which order and ruling of the court, the defendants, and each of them then and there excepted, which exceptions was by the court allowed.”

The defendants in presenting their argument urge when the court permitted them to withdraw their pleas of not guilty without imposing any limitation or restrictions upon the defendants they were in the same position as though no pleas had been entered. The order of the court clearly shows that when the defendants were permitted to withdraw their pleas of not guilty and file their demurrers to the information, the court did not place upon the defendants any limitation or restrictions.

In Gibbons v. Territory, 5 Okla. Cr. 212, 115 P. 129, the court in the body of the opinion, in discussing what had gone before prior to the calling of the cases for trial, stated:

“On the first trial of this case the appellant raised no objection to the sufficiency or regularity of the indictment. On the second trial, however, he was given permission to withdraw his plea of not guilty and file a motion to set aside the indictment. When the court permitted the appellant to withdraw his plea of not guilty, he then stood in the same attitude as if no plea had been entered, and the motion to set aside was in time.”

In 16 C.J. 400, paragraph 733, it is stated:

“The withdrawal of a plea does not affect the arraignment, the accused merely stands in the same attitude as if no plea had been entered, and a new plea, if offered by him, must be received if sufficient. For the purpose of pleading anew defendant is entitled to such time as the court in its discretion may seem just.”

In Jenkins v. State, 11 Okla. Cr. 168, 145 P. 500, in the fourth paragraph of the syllabus the court said:

“When a person charged with crime is arraigned and enters a plea of not guilty, the court, in its discretion, may allow the plea to be withdrawn in order to grant the accused an opportunity to file a plea to the jurisdiction of the court or attack the information by demurrer.”

In People v. Monaghan, 102 Cal. 229, 36 P. 511, in discussing the question of pleas, in the body of the opinion the court said [page 512] :

“It is said that, as the plea of not guilty was withdrawn to enable the defendant to demur to the indictment, it was naturally understood that when the defendant had had the benefit of his demurrer, and that had proven unavailing, the plea of not guilty would then stand as the defendant’s plea.” Further in the opinion, the court said: “It is not claimed that any such understanding was expressed at the time by any one, but it is claimed that such understanding naturally results from the situation. But, unfortunately for this argument, the record conclusively rebuts such presumption, if it could otherwise have been indulged, for it shows that, upon the overruling of the demurrer time was given to defendant to plead.”

In State ex rel. Warner et al. v. Fullerton, Judge, 76 Okla. 35, 183 P. 979, 980, Chief Justice Owen says:

“Courts should scrupulously maintain the right of every litigant to an impartial and disinterested tribunal for the determination of his rights. All are interested in the integrity, independence and impartiality of the judiciary, the most important and powerful branch of our government. Judges presiding over the courts should be unbiased, impartial and disinterested in the subject-matter in litigation, and it is of the utmost importance that all doubt or suspicion to the contrary be jealously guarded against, and, if possible, completely eliminated, to the end that we may maintain and give full force and effect to the high ideals and salutary safeguards written in the organic law of the state.”

In Fisk v. Venable, 61 Okla. Cr. 360, 68 P. 2d 425, the duties of the courts to litigants are fully discussed by Judge Doyle, who wrote the opinion, in which opinion Judge Doyle cited with approval the quotation in State ex rel. Warner et. al. v. Fullerton, supra.

In Ex parte Owens, 37 Okla. Cr. 118, 258 P. 758-803, the court stated:

“Under the declaration of article 2, § 6, Bill of Rights, Okla. St. Ann. Const, art. 2, § 6, that ‘Right and justice may be administered without sale, denial, delay, or prejudice,’ as well as by the unwritten dictates of natural justice, the courts of this state are commanded to administer justice without prejudice.”

In People v. Klein, 139 Misc. 353, 248 N.Y.S. 478, the court stated:

“On withdrawal by accused of plea of guilty with court’s consent, case stands as if no such plea had ever been entered.”

The state in support of its contention that the defendants were not entitled to a trial by jury cites 35 C.J. 22, section 140, which in part reads as follows:

“In cases where a jury trial may be waived in a criminal case, a waiver once voluntarily made cannot after-wards be withdrawn on the trial except in the discretion of the court. Nor can defendant, after conviction, insist that he had no right to consent to such waiver. This rule applies, however, only to the particular trial at which the waiver is made, and on a new trial the waiver made may be withdrawn and a jury trial demanded, provided the application therefor is seasonably made.”

The state urges that these defendants could not withdraw their waiver, excepting in the discretion of the court, citing Logan v. State, 86 Ga. 266, 12 S.E. 406, and several other cases, but an examination and study of each of these cases clearly shows that where the record discloses the court had permitted the defendants to withdraw their plea of not guilty, for the purpose of raising the question of the sufficiency of the information, that it was in the discretion of the court as to whether or not he should permit the defendants to withdraw their plea of not guilty for the purpose of filing a demurrer or motion to the information. The state does not cite any decision of Oklahoma courts sustaining its position, that when the defendants were permitted by the trial court to withdraw their former pleas of not guilty and file a demurrer to the information that the case when the demurrer was overruled and plea of not guilty entered the waiver made prior to that time was binding on the defendants. The state cites no authority sustaining its contention where the record discloses that the former plea of not guilty was permitted to be withdrawn by the court, and the demurrer filed without any restrictions.

This court has strictly adhered to its holding in the case of Gibbons v. Territory, supra, wherein the court said:

“When the [trial] court permitted appellant to withdraw his plea of not guilty, he then stood in the same attitude as if no plea had been entered, and the motion to set aside was in time.”

When the trial court granted the defendants permission to withdraw their pleas of not guilty and file a demurrer neither the defendant nor the state could tell what disposition the court would make of the demurrer. When the demurrer was overruled there was no issue to be tried by the jury, and could be none until pleas of not guilty were entered.

When the demurrer was overruled and exceptions reserved, and the defendants entered their pleas of not guilty, any action or agreement entered into before another trial court with reference to waiving a jury was a nullity and was not binding upon the defendants.

The record further shows that the defendants, after their demurrer was overruled and they had entered their pleas of not guilty, demanded a trial by jury, that a regular panel of jurors were in attendance on the court at the time.

Section 19, art. 2, of the Bill of Rights, Okla. St. Ann. Const, art. 2, § 19, in part reads as follows:

“The right of trial by jury shall be and remain inviolate, and a jury for the trial of civil and criminal cases in the courts of record, other than the county courts, shall consist of twelve men.”

It is clear from the record that when the demurrer of the defendants was overruled, and they entered their pleas of not guilty and asked for a jury trial, which was denied by the court, that the action of the court in refusing the defendants a jury trial was an abuse of discretion and deprived the defendants of a fair and impartial trial as guaranteed to them by the Constitution and the laws of this state.

The defendants in their argument insist that the court committed reversible error in refusing to grant them a postponement of a week in order that their attorneys could properly prepare their case for trial, and invite the attention of the court to the fact that the attorneys that had been representing them while the case was pending before Judge Williams, and until the 22nd day of September, 1936, were permitted by the court to withdraw from the case, and it then became necessary for the defendants to secure other counsel, which they did, and the counsel representing them then came into court and asked for a postponement of the trial for a week in order to enable them to prepare properly to defend the defendants; which request was by the court refused, and defendants excepted.

The record shows that only one day prior to the day the case was set for trial the county attorney was granted permission to endorse the names of several witnesses on the information, and counsel for the defendants had not had time to make any preparation for trial, or to consult the witnesses and investigate the character of the witnesses added to the list on September 22, 1936.

The request of the defendants under the facts disclosed by the record in this case was not unreasonable, and the refusal of the court to grant the request was an abuse of discretion.

The view this court takes of this case it is not deemed necessary to discuss the other errors assigned.

For the reasons stated, the case is reversed as to each of the defendants, with directions to grant them a new trial in accordance with this opinion.

DAVENPORT, P. J., and DOYLE, J., concur. BAREFOOT, J., dissents.


text:
    NED VANDEVENTER v. STATE.
    No. A-9283.
    Nov. 25, 1938.
    (84 P. 2d 819.)
    W. C. Henneberry and Ed Crossland, both of Tulsa, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., and Holly L. Anderson, Co. Atty., of Tulsa, for the State.
   PER CURIAM.

The defendant, Ned Vandeventer, was charged by indictment returned by a grand jury of Tulsa county, with the crime of opening and conducting gambling games; was tried, convicted and sentenced to pay a fine of $1,000, and to serve a term of five years in the penitentiary.

This is a companion case to Roy Staley et al. v. State, 65 Okla. Cr. 227, 84 P. 2d 818, this day decided by this court. The questions of law presented are identical with the questions presented in that case and it becomes unnecessary to again review them.

For the reasons stated in the case of Roy Staley et al. v. State, 65 Okla. Cr. 227, 84 P. 2d 813, the case is reversed with directions to the lower court to grant a new trial in accordance with the opinion in Staley et al. v. State, supra.

DAVENPORT, P. J., and DOYLE and BAREFOOT, JJ., concur.


text:
    MONROE CHATHAM v. STATE.
    No. A-9360.
    Nov. 25, 1938.
    (84 P. 2d 804.)

      J. N. Fortner, of Idabel, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Howard Phillips, Co. Atty., of Idabel, for the State.
   BAREFOOT, J.

The defendant was charged in the county court of McCurtain county with the crime of selling whisky to Irwin Bohanan, was tried, convicted, and sentenced to pay a fine of $50 and serve 30 days in the county jail.

For a reversal of this case it is urged. First: That the court erred in permitting the county attorney to ask leading and suggestive questions. Second: That the county attorney, over objection of defendant, was permitted to prove the general reputation of Newt Hancock, a material witness for defendant, as being that of “a notorious bootlegger.”

We have examined the record and find that the county attorney asked the prosecuting witness and other witnesses leading questions. It is insisted that this was necessary because of the fact that the witnesses were full-blood Indians, and at least one of them was somewhat an unwilling witness. While it is improper for counsel to ask leading and suggestive questions, we do not think this error alone would be sufficient to reverse this case.

The second error is based upon the fact that the state was permitted to prove that the reputation of the witness, Newt Hancock, was that of “a notorious bootlegger. The most notorious bootlegger in McCurtain county.” The information in this case charged the defendant, Monroe Chatham, with selling whisky to Irwin Bohanan, on the 9th day of January, 1937. It seems that the prosecuting witness had been arrested by defendant for disturbing public worship at Smithville, McCurtain county, on the night of December 26, 1936, and that while being taken to jail he escaped and was on the scout until he was arrested, as shown by the record, on January 14, 1937. While on the witness stand, Irwin Bohanan, the prosecuting witness, testified that when he went to the Holiness Church and was arrested that it was after he had bought the whisky. His testimony was as follows:

“Q. As a matter of fact, Irwin, at that time, on the 9th day of January, you were scouting over in LeFlore county to keep these officers at Smithville from arresting you, weren’t you? A. When I went to the Holiness, that was after I bought the whisky. Q. That was after you bought the whisky? A. Yes, sir.”

This cannot be true, for the reason that it was on December 26, 1936, and he claimed that he purchased the whisky on the 9th day of January, 1937. He also testified that he told his cousin, Nicholas Bohanan, that defendant had caused him to be arrested and that he was going to fix him, and that he bought whisky from him. He later in his testimony said that he did not tell him that. The prosecuting witness was placed in jail on January 14th, 1937, charged with disturbing religious worship. He testified as follows:

“Q. Do you know whether or not they dismissed the case against you for disturbing religious worship? A. I didn’t understand what you said. Q. You don’t know whether the county attorney dismissed the case they had against you that they put you in jail for? A. Yes, sir. Q. He dismissed that and you were never tried? A. Yes, sir. Q. And you told him if he dismissed the case you would come here and testify against Monroe Chatham, didn’t you? A. Yes, sir. Q. And testify that Monroe Chatham sold you the pint of whisky? A. Yes, sir.”

On re-direct examination he testified that he bought the whisky from the defendant before he went to the church and was arrested. This would have been on the 26th day of December, 1936. The charge in the information was January 9, 1937.

It will thus be seen there is quite a conflict in the testimony of the prosecuting witness as to what date he claimed the whisky was purchased from defendant. However, this was a matter for the jury to pass upon, and if this was the only error this case would not be reversed, but the record discloses that defendant offered in evidence to corroborate his testimony the evidence of one Newt Hancock. He testified he had been with defendant on the date prosecuting witness testified he had bought whisky from defendant in Westville. That they had gone to Idabel early in the morning and did not return until late in the afternoon. This was the night defendant was called to the religious meeting to arrest prosecuting witness for disturbing public worship. The state was permitted by the court to place three witnesses on the witness stand, and by each of them proved that Newt Hancock was “the most notorious bootlegger in that part of McCurtain county.” The character of this witness was not impeached as to truth and veracity, but he was asked the question above indicated. The court has held many times that such evidence was inadmissible. Kirk v. State, 11 Okla. Cr. 203, 145 P. 307; Whitlow v. State, 24 Okla. Cr. 307, 218 P. 162; Cantrell v. State, 12 Okla. Cr. 534, 159 P. 1092; Sims v. State, 11 Okla. Cr. 382, 146 P. 914; Pickrell v. State, 5 Okla. Cr. 391, 116 P. 957; Munson v. State, 23 Okla. Cr. 64, 212 P. 438.

The impeachment of a witness is proper but it should be to his credibility, his reputation for truth and veracity rather than of his moral character. This is the general rule and is supported by the great weight of authority. Welch v. State, 16 Okla. Cr. 513, 185 P. 119; Litchfield v. State, 8 Okla. Cr. 164, 126 P. 707, 45 L.R.A., N.S., 153; State v. Scott, 332 Mo. 255, 58 S. W. 2d 275, 90 A.L.R. 860; 70 C. J. 826; Tarling v. People, 69 Colo. 477, 194 P. 939. These cases generally refer to the evidence of the defendant himself, and it is universally held that where defendant is charged with a specific crime, such as a sale or illegal conveyance of liquor, it is not permissible to prove the reputation of defendant as being that of a bootlegger. This is also true where one is charged with the crime of unlawful possession of intoxicating liquor.

However, the general rule is announced that where a person is charged with the maintenance of a nuisance, it is permissible to prove that the place has the reputation of being a place where intoxicating liquor is sold. That is, if it is a place of public resort. This is so by reason of the nature of the crime. It is also held that where a defendant goes upon the witness stand and puts his character in issue, that he may be asked on cross-examination as to specific charges against him. But in the case at bar the question of defendant’s character, or that of his witness, was not put in issue. The state was permitted, over objection of defendant, to prove on redirect examination that the reputation of the witness, Newt Hancock, was that of being the “most notorious bootlegger in that part of McCurtain county.” It would have been perfectly admissible for the state to have proved witness’ reputation for truth and veracity was bad, but not evidence of his general reputation. As was said in the case of Tarling v. People, 69 Colo. 477, 194 P. 939:

“While the authorities are not in entire accord upon the question, the better rule seems to be that in impeaching a witness the inquiry ought to be as to his credibility, his reputation for truth and veracity, rather than as to his moral character. The great weight of authority supports this rule. * * *
“This involves the necessity for sanctioning the drawing of an inference from an inference. A witness having been shown to be dishonest or immoral, it is inferred from that trait of character that he is untruthful; then upon the inference that he is untruthful generally it may be inferred that he is untruthful in the testimony which he has given. This violates the rule that an inference shall not be based upon an inference. It follows, therefore, that the impeachment should go to his general character or reputation for veracity.” Kirk v. State, 11 Okla. Cr. 203, 145 P. 307.

The evidence revealed that defendant associated with the witness Newt Hancock, and that they were friends. Under these circumstances it can not be doubted that the proof of his reputation as a “notorious bootlegger” of McCurtain county would have a tendency to prejudice the jury against defendant, and no doubt was a strong factor in causing them to convict him.

We do not think that under the authorities above cited, that such evidence was admissible in this case, and for that reason the judgment of the county court of McCurtain county is reversed.

DAVENPORT, P. J., and DOYLE, J., concur.


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    Ex parte WESLEY D. MURPHY.
    No. A-9367.
    Nov. 25, 1938.
    (84 P. 2d 806.)
    L. E. Roseboom, of Enid, and Charles Swindall, of Oklahoma City, for petitioner.
   BAREFOOT, J.

The petitioner, Wesley D. Murphy, filed his petition for writ of habeas corpus in this court on July 21, 1937, alleging that he was unlawfully imprisoned and restrained by the sheriff of Garfield county, and that such illegal restraint and imprisonment is in default of the payment of costs in a certain criminal action pending in said county, in which said defendant was found guilty of assault with a dangerous weapon, and his punishment assessed at one year in the county jail, and that an appeal was had to the Criminal Court of Appeals of this state, and the judgment and sentence was by this court reduced to 30 days in the county jail of Garfield county. See Murphy v. State, 61 Okla. Cr. 284, 67 P. 2d 978. That the mandate of this court has issued to the district court of Garfield county, and that defendant has served his full judgment and sentence in accordance with said mandate. Upon the filing of this petition an order was entered and served directing the sheriff of Garfield county to appear before this court on the 7th day of September, 1937, and show cause, and the manner of custody of said petitioner. It was ordered that petitioner be admitted to bail in the sum of §500. No return thereto has ever been made.

It is-provided by Oklahoma Statutes 1931, section 689, Okla. St. Ann. tit. 12, § 1338, as follows:

“The sheriff or other person to whom the writ is directed shall make immediate return thereof, and if he neglect or refuse, after due service, to make return, or shall refuse or neglect to obey the writ by producing the party named therein, and no sufficient excuse be shown for such neglect or refusal, the court shall enforce obedience by attachment.”

The sections of the statute following the above provide for the procedure to be followed in making the response, and the hearing to be had by the court. In construing the above statutes, this court has universally held that where the officer fails to make a return or response, and offers no excuse for failure so to do, the petitioner should be discharged. Although the court has ample power to enforce its order by writ of attachment, and require the sheriff to make return to its writ, we are not required to do so, but may proceed in a summary way to determine the cause upon the application. Ex parte E. A. Pruitt, 31 Okla. Cr. 294, 238 P. 501; Ex parte Robert Lewis, 52 Okla. Cr. 124, 3 P. 2d 242; Ex parte Bass, 139 Okla. 31, 280 P. 824; Ex parte Self, 29 Okla. Cr. 345, 233 P. 783; Ex parte Wood, 58 Okla. 278, 159 P. 483.

Upon due consideration of the petition our conclusion is that petitioner was on the date complained of unlawfully restrained of his liberty, and should be discharged ; and it is so ordered.

DAVENPORT, P. J., and DOYLE, J., concur.


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    JOE KIZER v. STATE.
    No. A-9400.
    Dec. 2, 1938.
    (85 P. 2d 330.)
    O. A. Brewer, of Hugo, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, P. J.

The defendant was by information jointly charged with John Kizer with the crime of murder; was tried separately, found ■ guilty, and sentenced to serve a term of 50 years in the state penitentiary. Motion for a new trial was filed, considered, overruled, and exceptions saved and the defendant has appealed to this court.

The charge against the defendant was that the defendant and John Kizer, acting together, did prémedi-tatively design and effect the death of Jordan Swink without authority of law, willfully, wrongfully, unlawfully and feloniously making an assault upon Jordan Swink with an automatic pistol and sawed-off shotgun, and inflicting mortal wounds upon the body of Jordan Swink that caused his death.

The record in this case shows that Jordan Swink and this defendant were manufacturing and selling whisky. That on the day previous to the killing in the evening the deceased had gone to Paris, Tex., returning home, and driving to Idabel and back by the way of Valliant to his home where the defendant in this case admits by his own statement he was making whisky in the barn of the deceased, a short distance from the house. The defendant says he remained there until almost dark and when he went by the house of the deceased he told his wife he was going home but would be back soon. Later on the defendant says he and his brother came back to the Swink home and went to the barn with their car and loaded a number of cases, and two jars of whisky in their car and started to drive down toward the house of the deceased, when the deceased with two children with him drove up.

Up until this time the defendant says he had never had any trouble with the deceased, and the wife of the deceased states she" did not hear anything after her husband drove up and stopped, and the defendant and his brother walked up to the car of the deceased, and she did not know what was said by either of the parties, but the first thing she knew the shooting started and that the defendant and his brother shot and killed her husband. The children got out of the car and her son started running toward the house and defendant started to follow him and she rushed out and holloed not to shoot the boy. The defendant contradicted in substance a large part of the evidence of the state’s witnesses, and insists that the deceased made such moves and by his actions he believed he was fixing to shoot him. The controversy leading up to the shooting seems to have grown out of a dispute between the Kizer boys and the deceased with reference to the whisky, or quantity of whisky loaded in their car. The defendant admits he was with his brother at the house of the deceased, and after they had loaded up the whisky and drove down to the home of the deceased, the deceased drove up in front of his home, stopped his car and began talking to the defendant and his brother, and the shooting took place in which the deceased lost his life.

There is very little conflict in the testimony as to what took place at the time of the shooting. The defendant insists the deceased had a pistol, and the wife of the deceased and the family say he did not. The jury had an opportunity of hearing the witnesses testify and judging their demeanor on the witness stand, and where there is a conflict in the testimony that conflict is for the jury and if there is any competent testimony in the record to sustain the verdict, this court will not reverse a case on the insufficiency of the testimony. Carr v. State, 21 Okla. Cr. 377, 208 P. 275; Pickett v. State, 35 Okla. Cr. 60, 248 P. 352; Humberd v. State, 56 Okla. Cr. 23, 32 P. 2d 954; Clemmer v. State, 56 Okla. Cr. 354, 40 P. 2d 37; Houston v. State, 63 Okla. Cr. 49, 72 P. 2d 526; Goodnight v. State, 62 Okla. Cr. 382, 71 P. 2d 789.

Several errors have been assigned by the defendant. The record was filed in this court on October 15, 1937. The case was submitted on the record April 26, 1938, and defendant given 10 days to file brief. No brief has been filed in support of his assignment of errors, nor has any oral argument been presented. The failure of the defendant to file brief in support of his assigned errors leads the court to assume that the appeal has been abandoned or that counsel representing the defendant has reached the conclusion there are no errors in the record sufficient to warrant a reversal.

In cases of this character the court carefully reads and examines the record and if it fails to disclose any prejudicial or fundamental errors, and the evidence is sufficient to sustain the verdict, the verdict of the jury will be affirmed.

In this case the court correctly advised the jury as to the law applicable to the facts, and no prejudicial or fundamental errors appear in the record.

The case is affirmed.

DOYLE and BAREFOOT, JJ., concur.


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    HARVE POWELL v. STATE.
    No. A-9469.
    Dec. 2, 1938.
    (85 P. 2d 326.)

      James Hays, Jr., Tom Payne, and James S. Eaton, all of Okmulgee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty Gen., for the State.
   PER CURIAM.

The defendant in the trial court was by information charged with the unlawful possession of intoxicating liquors; was tried, convicted and sentenced to pay a fine of $500 and be imprisoned in the county jail for six months, and has appealed.

A motion has been filed by the Attorney General to dismiss the appeal on the ground that the appeal was not filed within the statutory time, and this court is without jurisdiction to hear and determine the appeal.

Section 3192, O. S. 1931, 22 Okla. St. Ann. ch. 18, § 1054, in part is as follows:

“In misdemeanor cases the appeal must be taken within 60 days after the judgment is rendered: Provided, However, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding 60 days.”

The record in this case shows that the defendant was sentenced on the 24th day of September, 1937, and that the case was not filed in this court until March 15, 1938, which is more than 120 days after the judgment was rendered by the trial court. An appeal filed in this court after the expiration of 120 days from the date of the judgment is not filed within the statutory time and this court is without jurisdiction to hear and determine the case. Section 3192, O. S. 1931, supra; Howard v. State, 50 Okla. Cr. 223, 297 P. 309; Logan v. State, 51 Okla. Cr. 448, 3 P. 2d 748; Miller v. State, 41 Okla. Cr. 367, 273 P. 374.

For the reasons herein stated, this court is without jurisdiction to hear and determine the appeal, and the motion to dismiss is sustained, and the case dismissed.


text:
    HARVE POWELL v. STATE.
    No. A-9470.
    Dec. 2, 1938.
    (85 P. 2d 326.)
    James Hays, Jr., and Tom Payne, and James S. Eaton, all of Okmulgee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   PER CURIAM.

The defendant in the trial court was by information charged with the unlawful possession of intoxicating liquors; was tried, convicted and sentenced to pay a fine of $50 and be imprisoned in the county jail for 30 days, and has appealed.

A motion has been filed by the Attorney General to dismiss the appeal on the ground that the appeal was not filed within the statutory time, and this court is without jurisdiction to hear and determine the appeal.

Section 3192, O. S. 1931, 22 Okla. St. Ann. ch. 18, § 1054, in part is as follows:

“In misdemeanor cases the appeal must be taken within 60 days after the judgment is rendered: Provided, however, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding 60 days.”

The record in this case shows that the defendant was sentenced on the 24th day of September, 1937, and that the case was not filed in this court until March 15, 1938, which is more than 120 days after the judgment was rendered by the trial court. An appeal filed in this court after the expiration of 120 days from the date of the judgment is not filed within the statutory time and this court is without jurisdiction to hear and determine the case. Section 3192, O. S. 1931, supra; Howard v. State, 50 Okla. Cr. 223, 297 P. 309; Logan v. State, 51 Okla. Cr. 448, 3 P. 2d 748; Miller v. State, 41 Okla. Cr. 367, 273 P. 374.

For the reasons herein stated, this court is without jurisdiction to hear and determine the appeal, and the motion to dismiss is sustained, and the case dismissed.


text:
    H. W. SPIKES v. STATE.
    No. A-9370.
    Dec. 2, 1938.
    (85 P. 2d 327.)
    Clyde G. Pitman and Randall Pitman, both of Shawnee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Thos. C. Wyatt, Co. Atty., of Shawnee, for the State.
   BAREFOOT, J.

The defendant was charged in the county court of Pottawatomie county with the unlawful possession of intoxicating liquor, was tried, convicted, and sentenced to pay a fine of $300, and serve 90 days in jail, and has appealed.

Two propositions are urged for reversal of this case, and we deem it necessary to consider but one of these. It is contended that the affidavit upon which the search warrant was based was insufficient, for the reason that:

“The affidavit for search warrant was insufficient upon which to base the issuance of the search warrant for the reason that the same stated no facts tending to establish probable cause; the affidavit being a stock form used in making all kinds and character of searches and nowhere contained a statement of any facts that would justify the search of an automobile.”

While we do not desire to unduly lengthen the opinion in this case, we desire to set out in full the affidavit upon which the search warrant was based. We are doing this so the attorneys and sheriffs of this state may be more considerate in the preparation of search warrants, which are to be used for the purpose of searching the property of the citizens of this state. The statutes, and the decisions of this court in construing the same, have gone a long way in permitting the search of the home, the automobile, and the private premises of the citizens of this state. To uphold the affidavit and search warrant in this case, would be setting the precedence for the search of automobiles of the citizens of this state without giving any reason, and upon mere suspicion and the statement of conclusions. If carried to a logical conclusion would cause the embarrassment of many honest citizens who never at any time violated the law. Oklahoma Statutes, 1931, sections 2635, 2639, and 2640; Oklahoma Statutes Annotated, Title 37, sections 84, 88, and 89; McHenry v. State, 61 Okla. Cr. 450, 69 P. 2d 90; Denton v. State, 62 Okla. Cr. 8, 70 P. 2d 135. But certainly there are fundamental rights which should be safeguarded, and the officers of the law should be first to properly guard those rights. The law requires that search warrants should be strictly construed. This, of course, does not mean that there should be a technical construction which would defeat the ends of justice, and permit the guilty to escape, but it does mean that every citizen should be protected in the use of his property so long as he does not use the same for a violation of the law. It follows, therefore, that the officers of the law should follow the law, and the decisions of this court, in construing the same, before being permitted to search the premises and property of the citizens of this state. If the terms of the statute are followed there would be fewer reversals, and the rights of the citizenship of this state would be more fully protected. The decision in any individual case is not the law for that case alone but applies to all cases where the facts may be the same. The affidavit in this case was as follows:

“Before me, W. F. Durham, Justice of the Peace, in and for Pottawatomie County, Oklahoma.
“In re: Application of Elza Evans, Sheriff for Search Warrant.
“State of Oklahoma, Pottawatomie County, ss.
“Elza Evans, being first duly sworn, on oath, states that there is kept and possessed a still worm, and a still, without the same first being registered with the proper United States officer and a certificate of such registration filed with the County Clerk of the above named County and State, in violation of the law of the State of Oklahoma; and,
“That a distillery is had and possessed, set up and used, for the purpose of manufacturing by some process of fermentation and distillation distilled spirits, including whisky, beer, ale and wine, and imitations thereof and substitutes therefor which contain as much as one-half of one per cent alcohol, measured by volume, and capable of being used as a beverage, the sale, barter and giving away of which is in violation of the laws of the State of Oklahoma; and,
“That there is had and possessed compound mixtures fit for distillation, to wit: mash, wort, and wash, for the manufacture of intoxicating liquors, including whisky, beer, ale and wine and imitations thereof and substitutes therefor, which contain as much as one-half of one per cent alcohol, measured by volume and capable of being used as a beverage, the sale, barter, giving away and otherwise disposing of same is prohibited by laws of the state of Oklahoma; and,
“That spirituous, vinous, fermented, and malt liquors, including whisky, beer, ale, and wine, and imitations thereof and substitutes therefor, which contain as much as one-half of one per cent alcohol, measured by volume, and capable of being used as a beverage, is being manufactured by some process of fermentation and distillation, in violation of the laws of the State of Oklahoma; and,
“That spirituous, vinous, fermented, and malt liquors, including whisky, beer, ale, and wine, and imitations thereof and substitutes therefor which contain as much as one-half of one per cent alcohol, measured by volume, and capable of being used as a beverage, is had and kept for the purpose of sale, barter, giving away and otherwise furnishing the same; and that same is being sold, bartered, given away, and otherwise furnished, in violation of the laws of the state of Oklahoma, in the above named county and state, in and upon the following described premises, to wit:
“A certain 1937 Plymouth Coop Okla. License Year 1937 Tag No. 102-672 Pottawatomie County State of Okla.
_ “Affiant further states that the basis of this complaint and the facts upon which it is founded are as follows: That said premises, so described aforesaid bear the general reputation of being a place where intoxicating liquors, to wit: whisky, wine and beer are had, possessed, kept, and received for the purpose of sale and are sold; that numerous persons whose true and correct names are to this affiant unknown have been seen to enter said premises in a sober condition and later stagger forth from said place under the influence of intoxicating liquors, that numerous persons whose true and correct names are unknown to this affiant congregate in and resort to said premises at all hours of the day and night for the purpose of buying, selling and drinking said intoxicating liquors; that numerous persons whose true and correct names • are to this affiant unknown have been seen to leave said premises at all hours of the day and night carrying bottles from which they have been seen to drink the contents and the bottles after having been cast aside were examined and bore the odor of intoxicating liquor to wit: alcohol and whisky; that different individuals have been seen on said premises drinking from bottles and immediately after drinking have been seen to stagger from intoxication and heard .to talk in a thick toned manner; that said premises are frequented by habitual drunkards and constitute a public nuisance, and that said premises are used as a public resort.”

Based upon the above affidavit a search warrant was issued by a justice of the peace, and defendant’s car was searched on the streets of Maud, Pottawatomie county. Defendant was not in the car at the time but he was found upon the streets, and was arrested and the keys to his car taken from his person prior to the search. There was found in the car 105 pints of whisky. The sheriff at the hearing on the motion to quash the search warrant, and at the trial of the case, testified that he had seen the defendant in the town of St. Louis about 5 o’clock in the afternoon before he was arrested; that he saw him go in the car to a certain house, and return; that he left and went to Shawnee and got the search warrant and returned to Maud and executed it about 8:15 p. m. With all of the above knowledge on the part of the sheriff, how easy it would have been for him to put the facts in the affidavit he made to secure the search warrant. No doubt the sheriff was in possession of other facts which he could have easily set up and which would have been a basis for the court to have legally issued the warrant. If he had seen the defendant enter the car with a package which the sheriff believed was intoxicating liquor, or if defendant had prior to that time been charged or convicted of a violation of the liquor laws, or if his general reputation was that of a bootlegger, or that defendant was conveying liquor, these facts could have been set up in the affidavit. But this was not done. An old stock form of affidavit was procured, which set up facts that could not possibly be true, and no facts were stated which gave information to the justice of the peace, that defendant was using the automobile for the purpose of illegally conveying intoxicating liquor, or in violation of any law. The name of defendant was not even mentioned in the search warrant. The wife of defendant could have been in possession of the car upon the streets of Maud, and under the search warrant it could have been searched, even though she be ever so innocent. Certainly it is a proper safeguard for the courts to hold that before a search warrant shall issue the facts shall be stated in the affidavit upon which it is based, which gives the court a right to issue the same. The party making the affidavit in this case, when placed upon the witness stand, could not testify whether he signed the affidavit at the sheriff’s office and sent one of his deputies to the office of the justice of the peace to procure the same, or whether he went himself. The affidavit and search warrant both used the terms “beer * * * which contained as much as one-half of one per cent, of alcohol,” while the statute of this state now provides for the legal possession of malt liquors containing as much as 3.2 per cent, of alcohol. This only goes to show that in the making of the affidavit in this case there was an utter disregard of the law and of the decisions of this court. We do not undertake to hold that there might not be allegations in a search warrant which could be considered as redundant or as cumulative, but to hold that the affidavit in this case was sufficient would be a travesty on justice. The allegation that the automobile was being used as a place “for distilling and manufacturing liquor,” and that “numerous persons, whose true and correct names to this affiant are unknown, have been seen to enter said premises in a sober condition and later stagger forth from said place under the influence of intoxicating liquors,” and other similar allegations, shows clearly that the affidavit was not made upon any foundation of fact, but was simply made as a subterfuge, for the purpose of searching the automobile in question. It is not a question here as to the guilt or innocence of this defendant and the amount of liquor secured under the search warrant, but the fundamental question is that the law recognizes that the officers of this state should follow the law before seizing and searching the property of the citizens of this state. It is for this reason that the Constitution of this state, article 2, sec. 30, Okla. St. Ann. Const, art. 2, § 30, provides:

“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.”

For the reasons above stated, we are of the opinion that the motion to suppress the evidence should have been sustained, and it is so ordered, and this case is reversed with directions to dismiss, unless in the judgment of the county attorney he has sufficient competent evidence upon which to secure a conviction of defendant.

DAVENPORT, P. J., and DOYLE, J., concur.