text:
    CALVIN MOORE v. STATE.
    No. A-5300.
    Opinion Filed March 6, 1926.
    (243 Pac. 995.)

      Wright & Gill, for plaintiff in error.
    George F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that in Oklahoma county, April 23, 1922, Calvin Moore, “then and there being, did then and there, unlawfully, wilfully, wrongfully and feloniously and without justifiable or excusable cause, quit, leave and abandon his lawful and legitimate children, in destitute and necessitous circumstances, and wholly refused and failed to support or contribute to their support; the said children’s names and ages being as follows: Forrest Moore, age 9 years, Emil Moore, age 7 years, Marvin Moore, 5 years, and Margie Moore, age 14 months — contrary to,” etc. On the trial the jury returned a verdict finding the defendant guilty as charged, and fixed his punishment at confinement in the penitentiary for a ■term of five years.

Motions for new trial and in arrest of judgment were duly filed, overruled, and judgment rendered in accordance with the verdict on the 12th day of April, 1924.

He has appealed from such conviction by filing a petition in error with a certified transcript of the record proper in this court, without a transcript of the testimony taken upon the trial. The overruling of the motion in arrest of judgment is assigned as error. It is claimed that the information does not state facts sufficient to constitute an offense.

The offense of desertion and abandonment is defined in chapter 78, Sess. Laws 1923, p. 143. Section 2 reads:

“Every person who shall without good cause abandon his wife in destitute or necessitous circumstances and neglect and refuse to maintain or provide for her, or who shall abandon his or her minor child or children under the age of fifteen years and wilfully neglect or refuse to maintain or provide for such child or children, shall be deemed guilty of a felony and upon conviction thereof, shall be punished by imprisonment in the state penitentiary for any period of time not less than one year or more than ten years.”

The offense of desertion and abandonment of minor children is sufficiently charged in the information. It follows that the motion in arrest of judgment was properly overruled.

Several assignments of error are predicated upon the instructions given by the court. The position assumed by counsel for the defendant is that, if error is found in the instructions, the judgment of conviction must then be reversed, whether such error operates to the prejudice of the defendant or not. Such is not the law in this jurisdiction. In many cases determined by this court the contrary doctrine is announced. This court has often held that when the instructions, as a whole, taken and considered together, embrace the law of the case, though one of them may be erroneous, still for such error a judgment of conviction will not be reversed, unless it shall appear from the whole record that it was prejudicial to the substantial rights of the defendant, or by reason thereof it seems probable that injustice may have been done. Killough v. State, 6 Okla. Cr. 311, 118 P. 620.

New trials should be granted only where the substantial rights of the defendant have been so violated as to make it reasonably clear that a fair trial was not had. In all cases appealed to this court for review the evidence, when returned on the appeal, should first be looked to for the purpose of determining the guilt or innocence of the defendant. When it appears from the record that, upon the admitted and undisputed facts, the defendant is unquestionably guilty, a new trial will not be granted, unless the error complained of constitutes a substantial violation of a constitutional or statutory right. In this case the instructions, taken as a whole, substantially and fairly present the law of the case.

Finally, it is contended that the court erred in not granting the application of the defendant for a transcript of the testimony without expense to him. It appears that the judgment was rendered April 12; April 22 d additional 10 days’ time given to file supersedeas bond; May 22d notices of appeal were duly served on the county attorney and court clerk; June 6th defendant given 60 days’ additional time within which to make and serve a case-made; August 9th, on application of defendant, 30 days’ additional time to that heretofore allowed was granted in which to make and serve a case-made; August 18th defendant filed motion that the court make an order for a transcript of the testimony had at the trial, including objections, ruling, exceptions, minutes, pleadings, and instructions at the cost of the county, same to be made without expense to him; in support of the same filed his affidavit “that the same is necessary to enable him to prosecute said appeal; that he is a barber by trade and has four minor children which he is endeavoring to support; that he has no property, no means, and no way of paying for said record; that all of defendant’s meager earnings are now being paid weekly into this court under the order of this court for the support of his wife and minor children.”

The minutes of the trial show that under date of August 30, 1924, there, appears the following entry: “Application for record overruled. Exception allowed.” Afterwards, on September 8th, on defendant’s application, 10 days’ additional time was given to make and serve a case-made.

The statute provides:

“The judge may, upon the application of either party in a criminal case, direct the reporter to make out and file with the clerk of the court a transcript of his shorthand notes when the same is needed in such case, and he shall receive as compensation therefor ten cents per folio: Provided, however, that if before a transcript of the notes is ordered on application of the defendant or his attorney, the defendant shall present to the judge his affidavit that he intends in good faith to take an appeal in the case, and that such transcript is necessary to enable him to prosecute the appeal, and that the defendant has not the means to pay for the same, the court may, at its discretion, order the transcript made at the expense of the county.” Section 3067, Comp. Stats. 1921.

Under this section the granting or refusing of an application for a transcript of evidence at the expense of the county rests in the sound judgment and discretion of the trial court, and its ruling will not be reversed unless it appears that there has been an abuse of such discretion.

In Harris v. State, 10 Okla. Cr. 417, 137 P. 365, 139 P. 846, we held:

“Where a defendant is able to employ counsel to represent him, and the trial court refused to enter an order requiring the testimony to be extended without expense to the defendant, such refusal will not constitute ground for reversal, unless it affirmatively appears from the record that the defendant was a pauper, and that such counsel so employed could not have made up a statement of the evidence from memory, and that thereby the trial court had abused its discretion.”

Here it appears the application for the order was. not made until more than 4 months after the judgment was rendered, and the application is insufficient to comply with the requirements of the statute.

Upon the record before us, we are clear that a new trial should not be granted on this ground.

Having failed to discover any prejudicial error in the record, the judgment appealed from is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    JOHN WILSON v. STATE.
    No. A-5330.
    Opinion Filed March 6, 1926.
    (243 Pac. 989.)
    F. L. McPherson, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error, John Wilson, was convicted of the illegal transportation of intoxicating liquor, to wit, “choc” beer, with his punishment assessed at confinement in the county jail for a period of 60 days and a fine of $100.

There was no allegation or proof of the alcoholic content of the beer in controversy, and no proof beyond mere opinion and conjecture that the beer was in fact intoxicating. Choctaw beer, commonly called “choc,” is made in various ways, containing various ingredients, with its alcoholic content varying from no alcohol when it is first brewed, to a very high per cent, of alcohol after fermentation.

The fact that the jar containing the beer was broken as the officers approached might raise an inference that the beer was intoxicating, but it falls short of proof of that fact.

The cause is reversed.


author: EDWARDS, J.

text:
    REX CAMPBELL v. STATE.
    Nos. A-5289, A-5291 (two cases).
    Opinion Filed March 6, 1926.
    (243 Pac. 990.)

      Morris & Tant, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of maintaining a place where intoxicating liquors were kept with the intent to violate the prohibitory liquor law, was sentenced to pay a fine of $250 and to be confined in the county jail for a period of four months.

The material evidence on which the conviction was had was procured by a search warrant issued by the police judge of Oklahoma City. Objection was made to the introduction of this evidence as incompetent and obtained by a search on an invalid and illegal search warrant issued by an officer without authority to issue search warrants in liquor cases. This objection was overruled, and thereafter defendant moved to strike out such evidence, which motion was also overruled. A police judge may issue a search warrant under the general statutes regulating Procedure Criminal, sections 2444 and 2445, Comp. Stat. 1921, but in the enactment of the prohibitory liquor law (Comp. St. 1921, sec. 7002 et seq.), under which this prosecution was conducted, a special provision is made that for violations of such law a search warrant shall be issued only by a judge of a court of record or a justice of the peace (section 7009, Comp. Stat. 1921). It is w0s1l settled that where a statute is enacted for dealing with a particular subject, it supersedes a general statute which does not refer to the particular subject, although it may contain language broad enough to cover the particular subject if the special statute were not in existence. Citizens State Bank of Vici v. Gettig, 77 Okla. 48, 187 Pac. 217; Muskogee Times-Democrat v. Board of Commissioners of Muskogee County, 76 Okla. 188, 184 Pac. 591.

A police judge is without authority to issue a search warrant in aid of the enforcement of the prohibitory liquor law, and an officer is without authority to make a search under such illegal search warrant, and an objection to the introduction of such evidence should have been sustained. Terry v. State, 31 Okla. Cr. 91, 237 P. 465; Reinhart v. State, 32 Okla. Cr. 109, 240 P. 139; Cook v. State, 33 Okla. Cr. 54, 242 P. 277.

The case is reversed and remanded.

BESSEY, P. J., and DOYLE, J., concur.


author: DOYLE, J.

text:
    BUCK BUCHANAN et al. v. STATE.
    No. A-5402.
    Opinion Filed March 6, 1926.
    (243 Pac. 992.)
    Ed Crossland, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charged that in Tulsa county, May 22, 1924, Buck Buchanan and Sam Hart and two others did unlawfully set up, operate, and maintain a still and manufacture intoxicating liquor, to wit, whisky. On the trial the jury returned verdicts finding the plaintiffs in error guilty as charged in the information and assessed the penalty of each at a fine of $500 and confinement in the county jail for six months.

Of the numerous errors assigned, we deem it only necessary to consider those based on the refusal of the trial court to permit counsel for defendants to examine the jurors on their voir dire as a basis for an intelligent exercise of peremptory challenges.

The record shows that the court refused to permit the following question to be asked of each juror; and allowed exceptions.

“Q. Are you a member of an organization known as the Knights of the Ku Klux Klan, or a citizen of what is called the Invisible Empire? .Mr. Kirkpatrick: Object to that as an improper question to be asked a juror on examination for cause. Mr. Crossland: We ask that these jurors be permitted to answer this question as to whether they are members of the Knights of the Ku Klux Klan or citizens of what is known as the Invisible Empire; in order that we may use that information in the exercise of our peremptory challenges. Mr. Kirkpatrick: The court having ruled on the question heretofore asked, we ask that counsel be admonished to refrain from any further questioning along that line. The Court: The court has ruled, and will rule again, that is not a proper question. Exception allowed.”

In Menefee v. State, 30 Okla. Cr. 400, 236 P. 439, we held that:

“Refusal to permit jurors to answer the defendant’s question whether they belonged to the Ku Klux Klan, for the purpose- of laying a foundation for peremptory challenge of jurors, held reversible error.”

In the opinion it is said:

“The Constitution guarantees to every defendant in a criminal case a fair trial by an impartial jury. In order to determine whether the person called as a juror possesses the necessary qualifications, whether he has prejudged the case, whether his mind is free from prejudice or bias, the defendant has the right to ask him questions, the answer to which may tend to show that he may be challenged for cause or disclose a state of facts upon which the defendant may see proper to reject such juror peremptorily.”

In Cummings v. State, 32 Okla. Cr. 274, 240 P. 1078, it was held:

“Refusal to permit the defendant to ask jurors on voir dire examination if they were members of the Knights of the Ku Klux Klan, or what is known as the Invisible Empire, for the purpose of laying a foundation for peremptory challenge, held error.”

And see Raymer v. State, 32 Okla. Cr. 385, 241 Pac. 499.

The statute confers upon one accused of a misdemeanor the right of exercising three peremptory challenges. Section 2671, C. S. 1921.

A peremptory challenge, as defined by the statute, “is an objection to a juror for which no reason need be given, but upon which the court must excuse him.” Section 2670.

The right of challenge comes from the common law with the trial by jury itself and has always been held essential to the fairness of trial by jury. In conferring this right the law gives effect to the natural impulse to eliminate from the jury not only persons who are rendered incompetent for some of the disqualifying causes named in the statute, but persons who by reason of politics,, religion, environment, association, or appearance, or by reason of the want of information with reference to them the defendant may object to their service upon the jury, to which the disposition of his life or liberty is submitted.

The assignment of errors includes other alleged grounds for a reversal of the judgments, none of which, we think, are likely to arise upon another trial.

For the errors indicated, the judgments appealed from are reversed, and the case remanded for further proceedings in accordance with law.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    J. S. LOTT et al. v. STATE.
    No. A-5313.
    Opinion Filed March 6, 1926.
    (243 Pac. 1118.)
    W. L. Chase, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

J. S. Lott, IJ. B. Kilgore, and T. C. Kilgore were jointly charged with the illegal manufacturing of whisky. At the trial T. C. Kilgore was acquitted. By verdict of the jury, J. B. Kilgore and J. S. Lott were found guilty, with the punishment of each assessed at confinement in jail for 30 days and a fine of $50. The judgment of the trial court is reversed, for insufficiency of the evidence, and because the court improperly admitted evidence tending to show that the defendant may have been implicated in another and different offense.


text:
    MRS. J. A. SHADRICK v. STATE.

      No. A-5916.
    Opinion Filed March. 6, 1926.
    (243 Pac. 1119.)
    W. F. Schuermeyer, for plaintiff in error.
   PER CURIAM.

The plaintiff in error was convicted on a charge that in Tulsa county, April 15, 1925, she did have in her possession two pints of whisky with the unlawful intent to sell the same, and was sentenced to pay a fine of $50 and to be confined in the county jail for 30 days. From the judgment rendered September 26, 1925, an appeal was perfected by filing in this court, November 21, 1925, petition in error with case-made. Counsel of record for plaintiff in error has filed a motion to dismiss the appeal. Which motion is allowed, the appeal dismissed, and the case remanded to the trial court, with direction to cause its judgment to be carried into effect. Mandate forthwith.


text:
    RAYMOND GABLER v. STATE.
    No. A-5410.
    Opinion Filed March 6, 1926.
    (243 Pac. 981.)
    Meacham & Meacham, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that on the 11th day of March, 1924, Raymond Gabler did sell to one B. E. Slagle, one quart of whisky, at and for the sum of $5, On the trial the jury returned a verdict finding him guilty and fixing his punishment at a fine of $50 and confinement in the county jail for 30 days. To reverse the judgment rendered on the verdict, he appeals.

The errors assigned question the sufficiency of the evidence to sustain the verdict and rulings of the court in admitting incompetent evidence against defendant’s objections.

B. E. Slagle testified: That his home was in Carmen. That he had been working with the federal authorities, sheriff forces, and police departments in different counties for 7 or 8 months. That he came to Arapaho, on the 11th day of March and talked to the county attorney, and went to work as undercover man, and about 4:30 o’clock that afternoon met defendant, Gabler, in Clinton, and asked him if a man could get any liquor anywhere around there. That shortly after-wards the defendant called him out of a pool hall in Clinton and said he could get that whisky now. That he took defendant, Gabler, and young Sturgis in his car and drove west of town and down a hill, and defendant told him to stop here, and he stopped his car; that defendant got out of the car, walked across the road, and returned to the car with a quart of whisky. That he did not know whether it was $5 or $3 that he paid defendant for the whisky there in the car right in the road. That he then told young Sturgis to take a drink. Sturgis passed it back and witness took a drink, and defendant said he had to go about 16 miles to get his whisky. Pretty soon Sturgis wanted another drink, and witness gave it to him. That he drove back to Clinton and took the whisky to his room in the hotel. The next day he turned over what was left to the sheriff. That he did not remember what hotel he stayed at that night, but thought it was the Coleman. That he had a commission from Tom Potter, chief of police of Clinton. That Mr. La Rue, the county attorney, paid him altogether in the neighborhood of $90 or $100 for his work.

Tom Potter, chief of police, testified that he remembers B. E. Slagle came to his office on the 12th day of March, looking for Mr. Jones, deputy sheriff.

Cross-examination, he was asked:

“Q. Are you the same chief of police that issued this commission?”

The state’s objection that it was improper cross-examination was sustained, and an exception táken.

For the defense, Nova Harrelson testified: That he was night clerk at the Coleman Hotel; assigned a room upstairs to B. E. Slagle. That Slagle was going down the stairs and fell over the banister into a bunch of grips sitting on the floor, and some money and a pistol fell out of his pockets. That he picked up the money and the gun and Slagle went out, and then came back and asked about his gun. That Slagle registered on the 10th and checked out on the 13th of March.

Frank Sturgis testified: That he first met Slagle in a pool hall on the 11th, and later met Slagle and defendant, Gabler, in Dexter’s Restaurant. That Slagle asked him if he wanted a drink, and then Slagle asked Gabler if he wanted a drink. Gabler said, “Yes;” he would take one. That Slagle, took them out to a Ford coupe and drove south on Thirteenth street about a mile, and stopped and got out of the Car and came back with a quart fruit jar about half full of corn whisky, and all three took a drink, and Slagle gave witness another drink, and then drove his car back to town and let. them out at the corner of the Coleman Hotel, and asked them to go up to his room with him, but witness did not go.

Cross-examination, he was asked:

“Q. Don’t you know, Frank, that you went all over the country and took Bert Slagle south of town and took him over west of town looking for some whisky, and that you had been as busy as a hunting dog trying to find whisky for Bert Slagle? (Objected to as incompetent, not binding on this defendant, what these two men did.)
“The Court: Overruled. Exception taken.
“Q. What do you say? A. I went to a crap game with him.
“Q. Then you went out to get some whisky for him? A. No, sir.
“Q. Frank, you used to sell whisky yourself, didn’t you?
“Counsel for Defendant: We ask the court to instruct the jury to disregard that question.
“The Court: Sustained.
“Q. Did you ever deal in any whisky?
“The Court: Objection overruled.
“Counsel for the Defendant: He can ask him if he has ever been convicted.
“The Court: Yes; sustained.”

Joe Redmond testified: That he saw B. E. Slagle in De Luxe Cafe, and he was intoxicated. That Slagle sat down to a table, and witness went to take his order. Slagle was pretty loud, and witness told him, “You have to be a little quieter, Mister,” and the proprietor told Slagle he would have to be quiet. That it was in the evening of the same day that Slagle fell down the stairs at the Coleman Hotel.

Raymond" Gabler, defendant, testified. That he had known B. E. Slagle a long time, and saw him and Frank Sturgis together in the Dexter Cafe, and talked with him a little, and pretty soon Slagle said: “Let’s go and take a drink;” and he said, “All right;” and they went out and got in Slagle’s car, and Slagle drove south across the car tracks, and stopped the car, got out, walked over to the fence, and picked up a quart fruit jar, partly full of whisky, brought it back to the car, opened it up, and they each took a drink. Before they left it was all drunk, and Slagle threw the jar out by the side of the road and drove back to town, stopped at the Coleman Hotel, and invited them up to his room, and said, “I have another drink up to the room.” That they thanked him, but did not go with him. That this was all he knew about it, until his arrest a couple of weeks later.

His cross-examination was in part as follows:

“Q. Raymond, isn’t it a fact that you are a professional bootlegger? A. No, sir; it is not.
“Q. And isn’t it a fact that you sell whisky every week? A. No, sir; it is not.
“Q. How much of the time? A. None of the time.
“Q. Oh, you want this jury to believe that you don’t sell whisky? A. Yes, sir; absolutely.
“The Court: Objections overruled. He can’t be hurt by that now. Exceptions.
“Q. Raymond, don’t you know in the last month that you have been making and selling whisky? A. That is news to me.
“The Court: Well, I don’t think he is going to plead guilty, do you? He has answered in his examination in chief. The objection will be overruled. Exception.”

B. E. Slagle in rebuttal testified that during his stay in Clinton he was not intoxicated at any time, and was not intoxicated when he slipped and fell down the stairway in the Coleman Hotel.

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

The manifest purpose of the questions asked by the county attorney was to convey to the jury the impression that he knew that the defendant manufactured and sold whisky. Obviously the county attorney had no reason to expect an affirmative answer to the questions asked. In our opinion the questions objected to were improper and well calculated to prejudice the minds of the jury against the defendant.

The only evidence against the defendant was the uncorroborated testimony of the witness Slagle, and numerous discrepancies appear in the testimony of this witness.

In the case of Prochneau v. State, 32 Okla. Cr. 210, 240 P. 1090, we said:

“The only evidence in the case against the defendant was the uncorroborated testimony of B. E. Slagle. He states that he was commissioned as a deputy sheriff of Blaine county, although a resident of Alfalfa county, and that he was employed for the purpose of securing evidence upon which to base prosecutions for violations of the prohibitory law. This witness was flatly contradicted by the defendant and two other witnesses. In addition, he was successfully impeached by three or four other witnesses, and as shown by the record he was guilty of gross misconduct on the trial.”

For the errors indicated, the judgment appealed from is reversed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    ALBERT BROWNELL v. STATE.
    No. A-5338.
    Opinion Filed March 13. 1926.
    (244 Pac. 65.)
    L. T. Cook, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of McClain county on a charge of receiving stolen property and sentenced to serve a term of 60 days in the county jail and to pay a fine of $200.

The record discloses: That just prior to the 1st of March, 1920, the defendant, who is an automobile mechanic, approached one Martin Gamble, also an automobile mechanic and employed by Slead Motor Company, and said to him in substance that if he would steal certain automobile parts and deliver to defendant that he would pay him part of their value, and that Gamble assented. That about the 1st of March, the defendant went to the rear of the Slead Motor Company’s place where Gamble was, who delivered to him certain automobile parts of the value of about $33, and later defendant paid Gamble $12. One of the proprietors of Slead Motor Company on the next day discovered the loss and went to the place where defendant was at work, and found automobile parts of the same kind and description as those missing, a part of which defendant was at the time putting in an automobile. On being questioned about the matter, defendant told Slead he had gotten the parts at Oklahoma City. Later both defendant and Gamble were arrested, charged with the larceny of these parts. Gamble made bond, and soon thereafter defendant .made bond, and the morning following his release from jail he went to the house of Gamble, told him to keep quiet and not say anything further about the stolen property. This is in the main the evidence of the state.

The defendant denied that he had had any conversation with Gamble in reference to stealing the property, denied that he had received it from Gamble, and testified that his father procured the property in Oklahoma City. His father and another witness testified in corroboration,. but their evidence was considerably shaken on cross-examination. They offered no book account nor other proof of the purchase of the automobile parts at Oklahoma City other than their bare statement.

The principal contention relied on for a reversal is that the witness Gamble is an accomplice and that there is no sufficient corroboration of his testimony.

Following the general rule of law, it has been several times held by this court that a thief who steals property is not an accomplice of the person who receives it from him, knowing it to have been stolen, but that the thief and the receiver of the stolen goods are independent criminals. Mayes v. State, 11 Okla. Cr. 61, 142 Pac. 1049; Pringle v. State, 32 Okla. Cr. 187, 239 P. 932. There is, however, an exception to the rule announced to the effect that where the thief and the receiver of the stolen property conspire together to steal property, with a prearranged plan for the one who actually commits the theft to deliver it to the other at an agreed time and place, and pursuant to such plan does steal the property and deliver it to the receiver, the receiver is an accomplice of the thief and the thief is an accomplice of the receiver in the commission of the offense of receiving stolen property. Motsenbocker v. State, 29 Okla. Cr. 305, 233 P. 487; Logan v. State, 23 Okla. Cr. 316, 214 P. 944.

If it be conceded that Gamble is an accomplice of the defendant, a conviction cannot be had on his uncorroborated testimony. Section 2701, Comp. St. 1921. But the corroboration required by the statute need not be such as standing alone to prove the crime charged, but must be only such evidence as tends tp connect the defendant with the commission of the crime. There is, we think, sufficient corroboration to answer the requirement of the statute. On the day immediately following the loss of the property, the defendant is found in possession of property of the same kind and description as that lost, and while such property was standard and the loser unable to identify it, it is, nevertheless, a strong circumstance. Further the defendant admitted that upon being released from jail he immediately, went to the witness here designated as an accomplice and requested him to keep quiet. The fact of this conversation and the defendant’s explanation of it tends to connect him with the commission of the offense as testified to by 'Gamble.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    CLARENCE DAWSON v. STATE.
    No. A-5990.
    Opinion Filed March 13, 1926.
    (244 Pac. 57.)

      J. B. Ogden, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called the defendant, was charged by information in the district court of Carter county with the crime of murder. He was convicted of manslaughter in the first degree and sentenced to serve a term of 10 years in the state penitentiary.

The defendant has filed a brief which does not conform to the rules of this court. No authority is cited in support of the contentions made. Neither the instructions nor the part thereof complained of are set out. The record discloses that the defendant and the deceased are negroes; that on the 30th day of May, 1925, defendant went into a shoe-shining parlor in the city of Ard-more, conducted by deceased, where some colloquy or quarrel took place, and defendant, with a pistol, shot and killed deceased, who was unarmed. According to the evidence of eyewitnesses who appear disinterested, not a word was said by either deceased or defendant before the fatal shot was fired, and deceased was not even looking at defendant at the time. The testimony of defendant tended to raise a question of self-defense and injected some elements of the so-called unwritten law. His testimony on this point is:

“Q. Now, then, on or about the 30th day of May, 1925, this last May, tell the jury there what you did that day. A. What I did that day?
“Q. The day Hilton was killed. A. Well, I was— that evening I was figuring on going out in the country to my cousin's, out here northwest of Springer, and had been down to Wade Shelton to get him to carry me out there, and he told me to meet him up in town; and I met this fellow Teta Ray, and was talking to him, and ‘Hilt’ came to the door, and called me, and I said, T will see you in a minute, as soon as I see what this fellow wants’; and I followed him on back in the back.
“Q. Was that Hilton English, the deceased, ' that called you? A. Yes, sir.
“Q. At that time, did you have your pistol on you? A'. Yes, sir; I had it.
“Q. Now, then, go ahead and tell the jury. A. Well, I was figuring on going out in the country at my cousin’s, and Wade told me to come on up town; that he would be at the drug store there; and I met up with Teta Ray, and he told me to come in, and I went on back in there with him, and he commenced cussing me before I got back there, and he cussed me and wheeled about to go into his pocket.
“Q. When he wheeled and was cursing you, tell the jury what you did? A. When he wheeled I shot him, because I thought he was going to kill me.
“Q. Then what did you do? A. I walked out. * * *
“Q. You followed Hilton English, on back of that shine stand; he was in his shirt sleeves? A. Yes, sir; he had on a vest, just like I have on now.”
“Q. You cpuld see his hip pockets, couldn’t you? You were behind him? A. Yes, sir.
“Q. You knew he didn’t have any gun in those hip pockets? A. No, sir.
“Q. You didn’t know he didn’t have any gun in that hip pocket? A. No, sir.
“Q. As a matter of fact, you know he didn’t reach for his hip pocket in your presence? A. No, sir; I don’t; he reached for his pocket.
“Q. You never did see a gun there? A. No, sir; I didn’t see what he was reaching for at all. * * * ”

The contention is made that the court erred in permitting the state to introduce testimony showing a separation between the defendant and his wife in 1922 and 1923; and evidence tending to show the relation of the defendant with another woman during that time. This was in a sense in rebuttal of the evidence of the defendant in raising the so-called unwritten law. All this evidence, however, was later stricken from the consideration of the jury. It is also urged that at one time the court, in the presence of the jury, threatened to fine counsel for defendant. In the cross-examination of a witness for the state and referring to the place of business of the deceased, defendant’s counsel asked if there was a gambling hall in the rear of the shine parlor. The state objected and the court sustained the objection. Counsel for defendant said:

“I think that is proper. I am going to ask him—
“By the Court: Wait a minute, do not do it any more. If you do, I will impose a fine. That was objected to and the objection sustained.”

This was an improper statement by the court in the presence of the jury, but from the record we perceive that the trial court might readily have viewed the statement of counsel as ignoring his ruling sustaining the objection. The error is not such as to justify a reversal.

Upon an examination of the entire record, and considering the testimony of the defendant, we think the jury could not have done other than find the defendant guilty of manslaughter in the first degree. The defendant is not injured by the errors complained of.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    HUGH MEADOWS v. STATE.
    No. A-5407.
    Opinion Filed March 13. 1926.
    (244 Pac. 58.)
    John W. Tyree and Leslie P. Ross, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error, Hugh Meadows, a boy 20 years old, was convicted on an information charging that in Comanche county, January 3, 1924, he did sell “one pint of whisky to Roy Per-mam-su, a Comanche Indian,” and was by the court sentenced to pay a fine of $50, and be confined in the county jail for 30 days.

To reverse the judgment he appeals and assigns as error that the evidence is insufficient to sustain the verdict and judgment and that the court erred in its rulings in excluding competent evidence.

The complaining witness testified that he did not have any transaction with the defendant, “but some one else did”; that with another white fellow called “Harvey” he followed the defendant across the Frisco Railroad in Lawton, and he saw defendant reach down and pick up a bottle and give it to the other white fellow; that he gave $1 to the white fellow, Harvey; that he saw Harvey give the defendant $3; that he got one pint of whisky from Harvey; that he saw Sly Tip-peoonnic on Third street.

On cross-examination he stated that William Bear, an Indian boy, about 4 days later told him that Hugh Meadows was the man with him, and on January 13th, he swore to the information in this case; that he was in Lawton on Januarj’’ 26th, and made an affidavit as to the facts. On the state’s objection as not proper cross-examination this statement was withdrawn from the jury. He was then handed the affidavit and asked if that was his signature thereto. He answered it was, and stated that it was read to him before he signed it. He was then asked:

“You swore one time that you did bnv it from him, and you swore at another time that you didn’t even know him, and had not bought anything from him — which is true? A. The first one I signed.
“Q. Do you always have as much regard for your oath as you had last January? (State’s objection as improper cross-examination sustained.)”

E. A. Jones testified that on January 3rd he was driving a service car, stationed on Third street, Law-ton, was acquainted with Roy Per-mam-su, and on that day took him and another Indian boy down to a pasture south of town, and at that time Per-mam-su was under the influence of liquor.

At the close of the state’s evidence the defendant moved the court to instruct or advise the jury to return a verdict of acquittal on the ground that the evidence was insufficient to connect him with the offense charged, which the court refused to do.

We understand the rule to be that the credibility of a witness may be impeached if he has made statements relevant to the issue out of court contrary to what he has testified at the trial, and for this reason the trial court erred in sustaining the state’s objections to the questions asked on the cross-examination of the complaining witness.

We also think that the testimony of the complaining witness was so inconsistent and contradictory as to be insufficient to sustain the verdict, and for this reason the motion for a directed verdict should have been sustained.

For the reasons stated, the conviction is reversed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    GEORGE GRAHAM v. STATE.
    No. A-5437.
    Opinion Filed March 13, 1926.
    (244 Pac. 59.)
    Sigler & Jackson, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

George Graham was convicted of manufacturing corn whisky, and in accordance with the verdict of the jury was sentenced to pay a fine of $50 and be confined in the county jail for 90 days.

The errors assigned are that the court erred in overruling defendant’s demurrer to the information, and that the evidence is not sufficient to support the verdict and judgment of conviction.

The state’s evidence shows that Carl Holden, a deputy sheriff, and W. R. Hignight, found a still in operation on the Russell place and three barrels of mash and three gallons of whisky in a ravine five or six miles from Ard-more. George Graham, the defendant, and three other men, were standing around the still. The officers testified that defendant, Graham, was partly intoxicated.

As a witness in his own behalf, defendant, Graham, testified that he was buying cattle from Russell and heard some one run off in the brush, and they came upon a still, and that he thought that the fellow that owned the outfit would come back to it, and in about 15 or 20 minutes Lee Barksdale and a colored fellow came there, and the next thing came the two officers. He denied any connection with the still.

The information is sufficient, and the demurrer thereto was properly overruled. There is sufficient evidence to sustain the verdict, and the conflicts in the evidence were for the jury to reconcile.

Finding no material error, the judgment is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


author: BESSEY, P. J.

text:
    V. M. COATES v. STATE.
    No. A-5411.
    Opinion Filed March 13, 1926.
    (244 Pac. 62.)

      W. D. Cope and Grace Arnold, for plaintiff in error,
    The Attorney' General and Houston B. Teehee, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The Attorney General has filed a motion to dismiss this appeal because it was not lodged in this court within six months from the date of the rendition of the judgment of conviction in the court below. The plaintiff in error contends that, by reason of the death of the court reporter and the loss of some of the records in the district court, he was unable to prepare his case-made for appeal within the time allowed by the court or within the statutory period for taking the appeal.

The judgment of conviction was rendered on the 20th day of March, 1924. At that time, time was given to make and prepare a case-made, which time was by the court from time to time extended. On the 23d day of October, 1924, more than six months from the date of the rendition of the judgment, the plaintiff in error filed a motion for a new trial in the lower court, on the ground that he had been unable to make and prepare his case-made for appeal, because of the death of the court reporter, who had reported the trial, and the loss of some of the files in the case, including the stenographic notes of the testimony. This motion for a new trial was by the court overruled.

An appeal to this court lies from any judgment against the accused. Section 2805, Comp. Stat. 1921. This court has construed the meaning of “any judgment” to be a final judgment of conviction, as distinguished from orders denying motions, or orders made subsequent to the rendition of the judgment of conviction. I-Iickman v. State, 3'3 Okla. Cr. Ill, 242 P. 270; McLellan v. State, 2 Okla. Cr. 633, 103' P. 876. An appeal, therefore, cannot be taken from an order overruling a motion for a new trial on the ground of inability to prepare a case-made for the appeal, as above outlined.

The statute authorizes two methods by which an appeal may be taken to this court: (1) After due notice, by filing in this court a case-made, with a petition in error attached; (2) by filing a transcript of the record, with a petition in error attached. Sections 2813, 2814, Comp. Stat. 1921.

With either method, in a felony case, the appeal must be lodged here within six months from the date of the rendition of the judgment of conviction. Section 2808, Comp. Stat. 1921; Heath v. State, 22 Okla. Cr. 122, 210 P. 560; Dodson v. State, 24 Okla. Cr. 280, 217 P. 899; Primrose v. State, 26 Okla. Cr. 138, 222 P. 702.

If, for any reason, the person convicted cannot procure the case-made for the purpose of perfecting his appeal within the statutory period, he should take the other method, ‘and appeal by transcript. Then, if he later desires to amplify the record by supplying omissions or desires to incorporate a transcript of the testimony, this court may make appropriate orders permitting him to reform the record already on file. Lambe v. State, 27 Okla. Cr. 156, 225 P. 572. But whichever method of appeal is taken in a felony case, the doors to an appeal automatically close six months after the rendition of the judgment of conviction.

The motion of the Attorney General is sustained, and the appeal dismissed, with instructions to the trial court to order the execution of the judgment rendered below.

DOYLE and EDWARDS, JJ., concur.


text:
    CHARLES SAUNDERS v. STATE.
    No. A-5319.
    Opinion Filed March 13, 1926.
    (244 Pac. 55.)

      W. R. Withington, for plaintiff in error.
    Geo. F. Short, Átty. Gen., and Houston B. Teehee, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, with two others, was informed against in the district court of Canadian county for the larceny of domestic fowls in the nighttime. A severance was had; the defendant tried alone; the jury returned its verdict finding him guilty, and fixing hi's punishment at 4 years in the state penitentiary.

Several assignments of error are presented in the brief, and such as are deemed material will be considered. It is first argued that the court erred in permitting the county attorney to amend- the information after the jury had been impaneled. It appears that the offense was committed about the 25th day of February. The information alleges that a preliminary trial was had on the 4th day of March, and then charges the offense to have been committed on the 27th day of March. When evidence was offered, defendant’s counsel objected, for the reason that the information charged an impossible date. The county attorney suggested to the court that by error the information alleged the offense to have been committed in March instead of February, and asked leave to correct it, which was granted. The trial proceeded over the objection of defendant. Under the provisions of section 2512, Comp. Stat. 1921, the objection is merely technical, and the amendment to correct the date was properly allowed. He was thoroughly cognizant with the record of the case, knew that he had been arrested on the charge in February, that a preliminary had been had thereon in the early days of March, and could not have been prejudiced thereby. Little v. State, 21 Okla. Cr. 1, 204 P. 305; Johnson v. State, 21 Okla. Cr. 17, 204 P. 311; Elkins v. State, 29 Okla. Cr. 175, 233 P. 491; Leyerle v. State, 31 Okla. Cr. 179, 237 P. 871.

It is further urged that the trial court erred in admitting testimony of accusations made by an officer to the defendant after his arrest, which he did not answer. It is well settled that an accused in custody has a right to remain silent, and his silence may not be used as evidence against him as a tacit admission of guilt. An accused does not have to deny an accusation made to him or contradict a statement made in his presence, and in such case the statement or accusation and his silence are not admissible against him. Ellis v. State, 8 Okla. Cr. 522, 128 P. 1095, 43 L. R. A. (N. S.) 811; Vaughan v. State, 7 Okla. Cr. 685, 127 P. 264, 42 L. R. A. (N. S.) 889; Towery v. State, 13 Okla. Cr. 216, 163 P. 331, L. R. A. 1917D, 491; Ellington v. State, 24 Okla. Cr. 67, 215 P. 964; Patton v. State, 29 Okla. Cr. 66, 232 P. 454; Mackey v. State, 30 Okla. Cr. 31, 234 P. 782.

Finally it is contended that the court erred in admitting testimony tending to show that the codefendants had at other times sold other domestic fowls which were probably stolen. This evidence would have been admissible against the codefendant, but, since there was no evidence connecting the defendant with his codefendants on the occasions testified to, it’ was not admissible against him. Slight evidence is all that is required to render the acts or statements of a conspirator admissible, but there must be some evidence. The evidence of acting together is confined to the offense charged in the information. The law: is well settled that, where the guilt of one of several defendants jointly charged with a felony is sought to be established by evidence of conspiracy between him and the others, evidence as to acts and statements of the others must be confined to such acts and statements done and made at times when the proof permits a finding that a conspiracy existed. Declarations or acts made or done prior to the formation of a conspiracy or after its termination, and not in furtherance of any plan between the parties, is not admissible in evidence in the separate trial of one of the parties. The admission of acts of the co-defendants at a time prior .to any connection of the defendant, under the proof, with codefendants, was erroneous.

For the reasons assigned, the case is reversed and remanded.

BESSEY, P. J., and DOYLE, J., concur.


text:
    WARD PROCK v. STATE.
    No. A-5540.
    Opinion Filed March 13, 1926.
    (244 Pac. 54.)
    R. D. Miller, for plaintiff in error.
    George F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment rendered on the verdict of a jury finding appellant, Ward Prock, guilty of having possession of intoxicating liquor with the unlawful intent to sell the same, and fixing his punishment at a fine of $50 and confinement in the county jail for 30 days. To reverse the judgment it is assigned as error that the evidence is insufficient to support the verdict.

The evidence shows that the city marshal of Hollis searched the defendant’s car, about 9 o’clock at night, which was parked along with a dozen or more other cars on the street in Hollis. He testified:

“The door was open when I walked up to the car and found something like a half-gallon fruit jar, almost full of whisky. It was dark, and I saw the bottle sitting in the front of the ear right under the steering wheel. I took the lid off and smelled to make sure it was whisky and left it there, then went back on the street and stayed around there. Mr. Fail came up. I told him what I had discovered. Shortly afterwards Mr. Ward Prock came up. He said, ‘This is my car.’ I said. ‘Whose whisky is it?’ And he said: T don’t know; somebody put it in my car.’ And I took Mr. Prock and Mr. Fail took the car, and we came on down to the courthouse.”

On cross-examination he testified as follows:

“Q. Did you take any whisky off Mr. Prock? A. No, sir.
“Q. Did you see Mr. Prock have any whisky at any time? A. No, sir.
“Q. As a matter of fact, Mr. Barefoot, you would not tell the jury this whisky was Mr. Prock’s whisky, would you? A. No, sir; I don’t know that it was his.
“Q. Was the key in .the car? A. It was.”

Louis Fail testified:

“I am night watchman for the city of Hollis. Mr. Barefoot and I went down to the car, and Mr. Prock came right on down with me. He said if there was anything in that car he didn’t put it in there, and if there was any whisky in the car it was not his. We had found a half-gallon jar about two-thirds full of whisky in the car.”

At the close of the state’s evidence, the defendant asked the court to advise the jury to return a verdict of acquittal, because the state introduced no proof that there was any intoxicating liquor in the possession of the defendant, or offered any exhibit or testimony to show that any law was violated by said defendant, which the court refused to do.

As a witness in his own behalf, the defendant denied possession of any liquor, denied ownership of any whisky found in his car, and denied having any knowledge that it was in the car.

Glenn Pendergraft testified that defendant came into his restaurant that evening and asked him if he was going to lodge, and he told him he would go with him if he would wait until after the rush.

Defendant produced five or six witnesses, business men in the city of Hollis, who testified to his good character; that they were acquainted with him from 10 to 20 years in that community; and that his reputation as a law-abiding citizen was always good.

The evidence of defendant’s guilt, relied on by the prosecution, was wholly circumstantial. In such cases, the facts proven must be such as to exclude every reasonable hypothesis inconsistent with the guilt of defendant. As against the circumstantial evidence in this case, we have the facts that the car door was left open; that the key of the car was in the door; that the car was standing among a dozen other cars, a dark night. Any person could have placed the jar in defendant’s car without his knowledge. This circumstantial evidence is offset by the positive denial of the defendant which is supplemented by the testimony of five or six witnesses as to his good character. When we recall the presumption that the law always indulges in as to the innocence of one accused, the necessity of establishing guilt beyond a reasonable doubt, and the force and effect which in cases of this kind should be given to evidence of good character, we think it would have been a proper exercise of the power vested in the trial court to have advised an acquittal of defendant upon the ground that the evidence was insufficient to support a convictibn. Assuming that defendant was innocent, we fail to see how he could have met the charge in any other way than by the evidence that was presented. In our opinion, it would be destroying the presumption which arises in favor of the innocence of the accused, and permitting a subversion of the rule which requires the establishment of guilt beyond a reasonable doubt, to allow this conviction to stand.

The judgment appealed from is therefore reversed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    OSCOR WINGFIELD v. STATE.
    No. A-5350.
    Opinion Filed March 13, 1926.
    (244 Pac. 53.)

      John P. Hickam, for plaintiff in error.
    George F. Short, Atty Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Lincoln county for petit larceny, sentenced to confinement in the county jail for a period of 30 days, and to pay a fine of $50.

The record discloses that W. P. Goble had stolen from his premises some property, consisting of a five-gallon can of gasoline, some cans of lubricating oil, the cushions of a Ford car, and other property of the value of $18. Soon thereafter property answering this description was found in Payne county at the premises where defendant resided with his mother. Before making a search of the premises for the property, an officer of Lincoln county, without filing any affidavit or any showing of probable cause, procured from a justice of the peace a search warrant, went to the home of the mother of defendant, informed her that he had such search warrant, and she thereupon consented that a search might be made, which search resulted in finding the property.

Before entering upon the trial, the defendant filed a motion to suppress evidence of the property found so having been procured by an illegal search, which was overruled. At the trial he objected to the introduction of the evidence for the same reason.

The constitutional protection against unreasonable search and seizure may be invoked only by the person whose private rights have been or may be disturbed. If the owner of premises searched consents to a search, a stranger is not in a position to complain. But here the premises are the residence of the defendant as well as the residence of the mother. Further, when the owner or occupant of premises is advised by an officer that he has a search warrant for the premises, such owner or occupant is not required to resist and challenge the sufficiency of the search warrant proceedings, but has a right to presume that the search warrant and the acts of the officer are legal, and his assent to a search under a warrant is' not a waiver of his constitutional rights. Under the evidence of this case the search warrant was a nullity, the officer acting under it was without authority, and the evidence procured by it was procured by illegal search.

The case is reversed and remanded.

BESSEY, P. J., and DOYLE, J., concur.


text:
    ROY SMITH et al. v. STATE.
    No. A-5324.
    Opinion Filed March 13, 1926.
    (244 Pac. 52.)
    R. D. Miller, for plaintiffs in error.

      The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The plaintiffs in error, here designated the defendants, were convicted of the offense of gaming by playing a game of poker. By verdict of a jury the punishment of each was assessed at a fine of $25.

The sheriff, while in the village of Gould one Saturday afternoon, heard that certain farmers who lived near there were planning to have a social game of poker that night at the farm home of defendant Smith. The sheriff thereupon organized a posse comitatus, the members of which armed themselves, and at about 8 o’clock that night concealed themselves about the premises of defendant Smith, in the stock pens, and behind buildings and other obstructions on the place. At about midnight one of these men in the posse discovered a small knot hole of about the diameter of a silver dime in one of the walls of a shed room, through which a ray of light shone forth. Quietly each one of the party in turn peeped through this knot hole, and saw human hands manipulating cards on a blanket on the floor; saw some coins on the blanket; heard the metallic clink of coins, and the sound of shuffling cards. The members of the posse then surrounded the house, forced an entrance into it, and captured these four defendants and one deck of playing cards. The money, if there was any, could not be found.

The officers had no warrant of arrest and no search warrant. At the beginning of the introduction of evidence by the state the defendants objected to the introduction of the state’s evidence on the ground that it was in effect procured illegally, by means of a arrest in the nighttime for a misdemeanor without a warrant, contrary to the provisions of section 2464, Comp. Stat. 1921. The defendants also urged as ah objection that the evidence about to be offered was obtained by means of an unreasonable search and seizure, contrary to the provisions of section 3(j of the Bill of Rights.

Section 2464, supra, is as follows:

“If the offense charged is a felony, the arrest may be made on any day, and at any time of the day or night. If it is a misdemeanor, the arrest cannot be made at night, unless upon the direction of the magistrate indorsed upon the warrant.”

Arrests for misdemeanors in the nighttime, except when the offense is committed in the presence of the officer in due course, are not favored in this state. Such was not the case with this arrest. The officers themselves were trespassers upon the premises of one of the defendants. The commission of a minor petit offense may militate against the good order of a community, but the invasion of the privacy of a home in the manner here shown, in the nighttime, for the purpose of discovering such offense, is of itself a more grievous offense, having a tendency to create disorder, breaches of the peace, and physical violence. The discovery of petit offenses in private homes, made by peeping through knot holes or apertures, through window shades, and by other like methods, does more harm than it can possibly do good. Of the two evils, the law condones the lesser.

Now, if these officers had had good cause to believe that these defendants were secretly making counterfeit money, or dividing the loot from a robbery, or had committed, or were committing, some other felony, the right to make an arrest in the nighttime without a warrant would be upheld and the making of the arrest commended. Sections 2471 and 2472, Comp. Stat. 1921.

But these last named sections, considered in connection with section 2464, supra, do not warrant a breaking of doors to make an arrest for a misdemeanor, unless the misdemeanor is perpetrated in the presence of the officer while in due and lawful course of his official duties as a peace officer. For instance, if one assaults another in the presence of the officer (a misdemeanor), and then takes refuge in his home, the officer may use force to enter the home to make an arrest. On the other hand, an officer must refrain from becoming a trespasser with the object of discovering the commission of a misdemeanor, and then, after its discovery, seek to justify the arrest, and a search and seizure incident thereto, on the ground that the offense was committed in his presence.

The arrests in this case were illegal, and the seizure of the deck of cards was “unreasonable,” within the meaning of both the federal and state Constitutions. On the timely request of the defendants, the evidence so procured should have been excluded. We hold, further, that the demand for its exclusion was timely and sufficiently definite to apprise the court of the nature of the defendants’ objection.

The cause is reversed, with instructions to dismiss.

DOYLE and EDWARDS, JJ., concur.


text:
    WALTER MATHEWS v. STATE.
    No. A-5305.
    Opinion Filed March 13, 1926.
    (244 Pac. 56.)

      Walter Mathews, in pro. per.
    Geo. F. Short, Atty. Gen., for the State. ■
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Payne county on a charge of carrying a concealed weapon, sentenced to confinement in the county jail for a period of 30 days, and to pay a fine of $50. The evidence is brief, and is, in substance, that the defendant is a practicing attorney of Payne county; that at the time the offense is charged the defendant appeared before a justice of the peace at Stillwater as attorney for some persons in that court, and at the time had in his right-hand coat pocket a revolver, the barrel of which protruded through the pocket and was exposed. The defendant admitted that he carried the pistol as alleged, and in justification testified that some time previous to the occasion he had become active in a fight against the Ku Klux Klan; that shortly before that time he had been attacked, taken two miles east, there suspended by a rope around his neck until breathless, and had been severely whipped; that numerous threats had been made against him; and that he carried the pistol for his protection. The contention is advanced that, under section 26 of the Bill of Rights of the state Constitution, he had a right to carry the pistol for his protection. This section of the Constitution is as follows:

“The right of a citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power, when thereunto legally summoned, shall never be prohibited; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons.”

The prosecution was conducted under section 1991, Comp. Stat. 1921, which is:

“It shall be unlawful for any person in the state of Oklahoma to carry concealed on or about his person, saddle or saddle bags, any pistol, revolver, bowie-knife, dirk, dí'gger, slungshot, sword-cane, spear, metal knuckles or any other kind of knife or instrument manufactured or sold for the purpose of defense, except as in this article provided.”

The Supreme Court had occasion to construe this statute in the case of Ex parte Thomas, 1 Okla. Cr. 210, 97 P. 260, 20 L. R. A. (N. S.) 1007, in which case it was held that the right to bear arms, as provided by section 26 of the Constitution, supra, has reference to arms of a military character, such arms as are used for purposes of war, and does not prevent the Legislature from prohibiting the carrying of weapons such as may be concealed about the person and used in private quarrels, and which do not contribute to the common defense; that the Legislature, in the exercise of the police power of the state, without any infringement of the constitutional rights of the citizens, may prohibit and punish the promiscuous carrying of arms. That case was approved and followed by this court in the case of Beard v. State, 7 Okla. Cr. 154, 122 P. 941. We adhere to the principles of law announced in those cases.

Under the record, however, as made in this case, we think that there are mitigating circumstances, and that the punishment imposed is too severe, and that the ends of justice will be subserved by remitting entirely the jail sentence, and by reducing the fine imposed to the sum of $25, and, as so modified, the case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    ALVA JONES v. STATE.
    No. A-5409.
    Opinion Filed March 13, 1926.
    (244 Pac. 57.)
    Meacham & Meacham, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

, Plaintiff in error, Alva Jones, was convicted on an information which charged that in Custer county, February 15, 1924, he did transport about a quart of whisky from a place unknown in said county to the Haw*k Hotel, in the city of Clinton, and, in accordance with the verdict of the jury, he was sentenced to pay a fine of $50 and to be confined in the county jail for 30 days. He has appealed from the judgment, and assigns as error that the verdict is not sustained by sufficient evidence, but no brief has been filed and no appearance made in his behalf in this court.

We have examined the record and find ample evidence to support the verdict. The defendant did not testify.

Finding no prejudicial error, the judgment is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    BESSIE BOWEN v. STATE.
    No. A-5459.
    Opinion Filed March 13, 1926.
    (244 Pac. 49.)
    S. E. Dunn and John M. Jordan, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

Appellant, Bessie Bowen, was convicted on an information charging that in Tulsa county, September 8, 1923, she did have in her possession 51^ gallons of corn whisky with intent to sell the same, and in accordance with the verdict of the jury she was sentenced to pay a fine of $500 and be confined in the county jail for six months.

To reverse the judgment, appellant assigns as error the admission of evidence procured under a search warrant alleged to be illegal because of the insufficiency of the affidavit upon which it was issued, and upon which all the evidence offered by the state, tending to prove the guilt of appellant, was obtained.

The evidence shows that a search warrant was issued by G. E. Warren, judge of the municipal court of the city of Tulsa, which affidavit, omitting caption and prayer, recites:

“Ned Gritts, being duly sworn, upon oath deposes and says: That certain intoxicating liquor is being manufactured, sold, bartered, given away, and otherwise furnished, and is being kept for the purpose of being sold, bartered, given away, and otherwise furnished, in violation of the prohibitory law of the state of Oklahoma; the kind and description of said liquor being as follows, to wit: Wine, beer, whisky, and other intoxicating liquor. The said liquor is being disposed of and kept in the manner aforesaid by one John Doe, whose real name is unknown to informant, on the following described premises situate in the city of Tulsa, Tulsa county, Okla., within said county and state, to wit, certain ‘ building located at 332 North Hartford covering all rooms. That said building is a private residence.”

An examination of the record discloses that the warrant issued in violation of the statutes providing:

“‘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.? Section 7012, C. S. 1921.
“No warrant shall be issued to search a private residence, occupied as such, unless it, or some part of it, is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort.” Section 7013, C. S. 1921.

The evidence shows that affiant, Ned Gritts, captain of the raiding squad, with three or four police officers, went to the home of appellant and found about 5 gallons of corn whisky concealed in the house.

As a witness in her own behalf, Bessie Bowen denied that any search warrant was served upon her, and denied any knowledge of the whisky that was found in the place. It appears that the evidence for the state was all admitted against defendant’s objection and exception.

In Duncan v. State, 11 Okla. Cr. 217, 144 P. 629, we held that under the statutes above quoted no officer has authority to search a private residence, occupied as such, or any portion thereof, unless it or some part of it be used as a store, shop, hotel, boarding house, or place of storage, or unless such residence is a place of public resort, and that no magistrate in this state has the power to issue a search warrant to search a private residence occupied as such, unless it is made clearly to appear that such private residence comes within the exceptions stated in said section.

In Williams v. State, 30 Okla. Cr. 39, 234 P. 781, we held that search of private residence, not coming within exceptions in section 7013, was illegal.

In Coatney v. State, 30 Okla. Cr. 270, 235 P. 942, we held that:

“A search warrant to search a private residence for the discovery of intoxicating liquors, issued on an affidavit, wherein affiant fails to state that such residence is a place of public resort, held, improvidently issued.,”

And see Committi v. State, 28 Okla. Cr. 380, 231 P. 316, and cases collated.

It follows that all the evidence on the part of the state should have been excluded on defendant’s objection.

The judgment of the lower court is therefore reversed.

RESSEY, P. J., and EDWARDS, J., concur.


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    In re OPINION OF THE JUDGES. In re RAY A. JOHNSON.
    No. A-6113.
    Opinion Filed March 13, 1926.
    (244 Pac. 50.)
   To His Excellency, Governor of the State of Oklahoma — Sir: In response to your official communication of March 4, 1926, asking for an opinion as provided in section 2786, Comp. Stat. 1921, in the matter of the conviction of Ray A. Johnson upon a charge of the crime of murder in the district court of Grant county on the 26th day of January, 1926, and who was by the judgment of said court on said date sentenced to be put to death by electrocution on the 22 d day of April, 1926, we hereby submit the following opinion of tne judges:

EDWARDS, J.

The record submitted, and to which is attached your request above mentioned, discloses that the said Ray A. Johnson was charged with murder by information in the district court of Grant county, and that said information was filed in said court on the 25th day of July, 1925. Under the Constitution and laws of this state, any person convicted of a felony may appeal within six months from the time judgment is rendered. Section 2808, Comp. Stat. 1921. By the provisions of this section of the statute, the defendant, if he takes proper steps, may perfect an appeal to this court. It has been the uniform holding of this court that the provision of section 2786 of the statute of this state contemplates an advisory opinion where an appeal has not been taken from the judgment and sentence of death. To render an advisory opinion where an appeal has been taken, or where the time given for appeal has not expired and appeal might be perfected, would be to prejudge a case upon an ex parte proceeding, which might later be brought before the court upon an appeal. We cannot assume that the defendant will not appeal until the time for such appeal shall have expired or the right to appeal shall have been expressly waived. In order that the defendant shall not be deprived of his right to appeal within six months, the execution of the sentence of death should be postponed to some date after July 26, 1926. If, in the meantime, the appeal is perfected and filed in this court, such appeal will automatically give the accused the right to a further suspension of the execution of , sentence until the appeal shall be determined upon its merits.

BESSEY, P. J., and DOYLE, J., concur.


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    V. W. COMBS v. STATE.
    No. A-5328.
    Opinion Filed March 13, 1926.
    (243 Pac. 1118.)

      J. S. Harris, John L. Gilson, and I. E. Hill, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error was convicted of harboring, feeding, aiding, concealing, and assisting to escape a fugitive from justice, with his punishment fixed at imprisonment for six months in the state penitentiary. No briefs have been filed in support of this appeal, and the time for briefing has long since passed. An examination of the record shows that the information is sufficient, that there is sufficient evidence to sustain the conviction, and that the instructions of the court fafrly and correctly stated the law of the case. The defendant otherwise had a fair trial. . The judgment of the trial court is affirmed.


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    ABE GILLILAND v. STATE.
    No. A-5453.
    Opinion Filed March 15, 1926.
    (244 Pac. 60.)
    Jno. L. Ward and George Paschal, for plaintiff in error.

      The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

Appellant, Abe Gilliland, was convicted on an information charging that on July 29, 1924, he did have in his possession 614 gallons of whisky with the intent to sell the same, and, in accordance with the verdict of the jury, he was sentenced to pay a fine of $500 and to be confined in the county jail for 6 months. From the judgment he appeals, and assigns as error that the verdict is not supported by sufficient evidence, and that the penalty assessed by the verdict is excessive.

The uncontradicted evidence shows that under authority of a search warrant three police officers searched the premises known as the Catherine Hotel, at 1321 West Eighteenth street in West Tulsa; that they found in the garage back of the hotel 614 gallons of com whisky in gallon jugs, and several pint bottles; that before they finished searching the premises appellant appeared and in a conversation with the officers said that the whisky was his, and there was no use looking for any more, that that was all there was there; that after his arrest the defendant made the voluntary statement to the officers that, if they would make it a city charge, he would pay it. The defendant did not testify.

We see no reason to doubt that this convection was justified by the evidence. There were no objections made or exceptions taken to the admission of the state’s evidence. However, it is urged in the argument that the affidavit upon which the search warrant was issued was not valid, and that the search warrant was illegal, because it was a John Doe warrant and not sufficiently definite. No exceptions having been taken the question argued is not presented by the record, and is not reviewable here. We may here remark that counsel for appellant were not his attorneys in the court below and had nothing to do with the trial of the case.

The only remaining question is that in regard to the penalty imposed. Upon the record before us we can find no legal ground upon which to base a modification of the judgment and sentence.

No substantial error appearing in the record, the judgment appealed from is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


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    R. E. DOWNEY v. STATE.
    No. A-5441.
    Opinion Filed March 16, 1926.
    (244 Pac. 60.)
    Bicking & Wilson, for plaintiff in error.
    George F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charged that in Tulsa county, January 8, 1924, R. E. Downey “did on said day have in his possession intoxicating liquor, namely whisky, in the amount of five pints, with the intention” of selling the same. On the trial the jury returned a verdict finding him guilty as charged in the information and fixed his penalty at a fine of $500 and imprisonment in the county jail for 6 months. Prom the judgment rendered on the verdict he appeals. Several questions are presented for determination. It is not the purpose of this opinion to review all jthese questions.

The undisputed facts are that on the night of the day alleged several police officers of the city of Tulsa made a raid on a house located at 10 North Lawton street, city of Tulsa, and searched all the rooms in the house, and also searched the garage; three or four pints of whisky were found concealed in a trunk in the garage, some empty bottles were found in a public bathroom; Officer J. A. Brown testified that a pint bottle partly full of liquor was found in the room occupied by the defendant and his wife and baby.

When the case was called for trial, the affidavit for a search warrant could not be found; counsel for defendant demanded and was denied an opportunity of examining the same. The state called Jas. A. Brown, who testified that he was a city detective and helped search the premises No. 10 North Lawton street; that he had a search warrant for these premises, made a return on the warrant, and returned it to the captain's office.

J. L. Martin testified that he was deputy court clerk; that his office has the custody of search, warrants after the return is made; that he had made an effort to find the affidavit and search warrant used in this case, but has been unable to find the same; that he did not think that any of the 1924 search warrants could be found.

Raymond Hoagland testified that he was court clerk of the municipal criminal court; that as a general rule the search warrants with return thereon are filed in the captain’s office, but he has been unable to find any affidavit or search warrant in this case; that he does not know whether or not a search warrant issued in this case.

Thereupon the trial proceeded. J. A. Brown, recalled, testified:

“We went to 10 North. Lawton about midnight, myself and Woody Wilson at the front door, Officers Boyd and Duncan at the back door. We knocked, and heard somebody say", ‘Wait a minute.’ We went into the bathroom and found several empty bottles. We could see where liquor had been poured out. We came back to defendant’s room and there found a pint bottle partly full. We went out to the garage in the rear, and one of the boys went back and got a key from Roy and came back to the garage; then we went in and found four or five pints in an old steamer trunk.”

On cross-examination he stated: The search warrant was directed to 10 North Lawton, all rooms and outhouses; that the place is a private residence, but he thinks they keep roomers; that he could not say whose property it was; that defendant’s wife and baby were there at the time, and another man and his wife occupied one of the rooms.

H. R. Boyd testified that he was with Officers Brown, Wilson, and Duncan and assisted in the arrest of Downey; it was probably 12 o’clock at night; that he, with Officer Duncan, went around to the back and knocked on the door, and Pewee Morrison came to the door, and he and Duncan came around and went in the front door, and they all went through the house and found one pint of whisky in the house and several empty bottles in the bathroom with about half a teaspoonful of whisky in them; then went to the garage and found four pints in a trunk in the garage; that they had a search warrant and he thought it was a John Doe search warrant, with just the street and house number, and they arrested Morrison and defendant Downey, who with his wife and baby occupied the south front room; that defendant Downey was in bed when he first saw him that night; that Officer Duncan is now in Sand Springs; and that Officer Wilson is now in K. C. on his vacation.

The state rested, and defendant asked for a directed verdict in the form of a demurrer to the ¡evidence, which the court refused to do.

As a witness in his own behalf, R. E. Downey testified that, with his wife and baby, he occupied the front room at 10 North Lawton street, and was in bed when the officers made the raid; that W. U. Morrison, Mr. Weeks, Mr. Mitchell and his daughter, and others lived there at that time; that when the officers found the whisky Morrision said that it was his whisky; that he had lived there about two months, and the officers arrested him and Morrison; that he did not know any liquor was kept there.

J. A. Brown, recalled in rebuttal, testified:

“I don’t think I had any conversation with Pewee Morrison that night.”

H. R. Boyd, recalled in rebuttal, testified:

“I had a conversation with Pewee Morrison; at that time the other officers were talking to Downey; Morrison claimed the pint of whisky that was found in the house, and said he didn’t know anything about the whisky found in the trunk in the garage.”

The overruling of defendant’s motion for a new trial is assigned as error.

One of the grounds of the motion for new trial was newly discovered evidence, which defendant with due diligence was unable to procure at the time of the trial. Another ground was surprise which ordinary prudence could not guard against, wherein Officer Brown in his testimony tried to connect defendant with possession or some interest in the garage on said premises, and the liquor found therein, in stating, “We went out to the gagage in the rear, and it had a lock on it, and one of the boys went back and got a key from Roy and came back to this garage” — this being the only testimony which would in any manner tend to show that the defendant had anything to do with said garage, and the testimony of Officer Boyd that Morrison stated' to him that he did not know anything about the whisky found in the garage.

The motion is supported by the affidavit of J. L. Wilson, member of the Tulsa police department, that he was present at the time and place when the raid was made and the arrest of defendant, Downey, took place; that at the time defendant, Downey, was tried in this cause, this affiant was on his vacation and was not in the state of Oklahoma. This affiant further states that if he had been present at the time of the trial, he would have testified to the circumstances of the arrest as he observed them at the time, which are as follows:

“That upon conducting the raid, Roy Downey, his wife and baby were found in the house; that they occupied one room of the building; that Roy Downey owned an automobile which was sitting in the yard; that some one else’s car was in the garage.
"Affiant further states that at the time of the raid Pewee Morrison was in the house and known to this affiant as a bootlegger; that this affiant knew said Pewee Morrison had a conversation, wherein Morrison stated to this affiant that he owned the whisky found in the house, and that he also owned the trunk and whisky that was found in the same in the garage, and asked me not to take Roy down to the station.”

The rule is well settled that an application for a new trial on the ground of newly discovered evidence is addressed to the sound discretion of the court. It is a well settled general rule that, where reasonable diligence has been used, if the testimony is such that if introduced at the trial, it would not only tend to impeach or discredit the prosecuting witness, but would be such as would reasonably and probably change the result, a new trial should be granted. Lynn v. State, 5 Okla. Cr. 115, 113 P. 989; Cantrell v. State, 12 Okla. Cr. 534, 159 P. 1092.

It will be observed that in this case the testimony of the two witnesses for the state is in direct conflict as to several material facts; that the affidavit of Officer Wilson corroborates the testimony of defendant, and further adds new testimony that was not in evidence and not known to the defendant at the time of the trial.

Considering the inconsistent and contradictory statements of the state’s witnesses, we are of opinion that the trial court abused its discretion in overruling the motion for a new trial.

The judgment of the lower court is therefore reversed and a new trial awarded.

BESSEY, P. J., and EDWARDS, J., concur.


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    JOE HARRELL et al. v. STATE.
    No. A-5426.
    Opinion Filed March 17, 1926.
    (244 Pac. 457.)
    Matson & Mathers and Sigler & Jackson, for plaintiffs in error.
    George F. Short, Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that in Carter county, May 27, 1924, Joe Harrell, Ed Hutchinson, and W. T. Maulden did have in their possession about one-half barrel of corn whisky with the unlawful intent to sell the same. Ojn the trial the jury returned separate verdicts against each defendant. The verdict against defendant Harrell fixed his punishment at a fine of $500 and confinement in the county jail for 30 days; the verdicts against defendants Hutchinson and Maulden fixed their penalties each at a fine of $500 and confinement in the county jail for 6 months. They have appealed from the judgments rendered on the verdicts.

The assigned grounds for a reversal are the admission of incompetent testimony, secured without a search warrant and admitted in violation of the defendants’ rights under the Constitution, and that the evidence is not sufficient to support the verdicts and judgments.

To properly determine the questions presented, consideration of the evidence will be necessary.

Bob Short, deputy sheriff, testified that, accompanied by Mr. Jackson, he visited defendant Joe Harrell’s place about 3y2 miles southwest of Pooleville; that Harrell’s ranch consists of a section or two; that they walked 2 miles up a ravine running north and south about 300 yards west of Harrell’s house, and did not find anything; that they saw defendants Hutchinson and Maulden and another man chopping corn; that they went north through Harrell’s pasture and came south down a ravine and ran into a still with a gasoline burner under it, also a half barrel of single run whisky and 17 barrels of mash, all in a little T-shaped place surrounded by high Johnson grass, higher underbrush, elms, and cedars; that he left Jackson there and went south to a trail that led around the edge of the bank, then followed the trail up to Harrell’s house; all three defendants were there; that he arrested them and went with them back to the still; that he and Mr. Jackson took the defendants to Scott City; that the defendants Hutchinson and Maulden each stated that the cornfield where they were working belonged to defendant Harrell.

E. C. London, sheriff, testified that he met Mr. Short with the defendants at Scott City and went to where he was directed, and found the still about 250 yards from defendant Harrell’s barn, on the east side of the branch in a little shut-off place, timber there and Johnson grass also, 17 barrels of mash and a barrel containing what he would call “pickings” or first run whisky.

The record shows that this testimony was admitted over the defendant’s objections that the same was incompetent, because it was secured without authority of law, and in violation of their constitutional rights.

At the close of the evidence for the state, the defendants asked for a directed verdict in the form of a demurrer to the evidence, which was overruled and exceptions taken.

As a witness in his own behalf, Ed Hutchinson testified that his age was 52 years; that he had lived in Carter county 17 years, doing farm work by the month; that on the day the officers found the still he worked all day with Mr. Maulden and Andy Hobson, hoeing corn for Mr. Harrell; that the cornfield was about a quarter of a mile from where the still was found; that about 6 o’clock they quit work and with Mr. Maulden he went to Mr. Harrell’s house and were there arrested by Mr. Short; that he went to work for Mr. Harrell, January 24th; that it was about sundown when they were taken to the still, and that was the first time he ever saw it; that he knew nothing about the still or anything connected with it; that he had never been convicted of a crime.

Defendant Maulden testified that he saw the officers twice that afternoon; that they passed where he and others were hoeing corn; that he quit work at the usual time and went to the house, where he was arrested; that he had worked for Mr. Harrell off and on for a year or two, but did not know anything about the still or the mash found near it; that there is timber between where the still was found and the house; that he never observed a light near there at night; that he had never seen or been to that still before the officers took him there; that Mr. Harrell had four sons that did not live with him, but occasionally they came there to visit their father.

Andy Hobson testified that he was working for Mr. Harrell that day, hoeing corn, and had worked from about sunup with the two defendants until about 6 o’clock, only stopping for dinner; that he had been working for Harrell about a week, but knew nothing about the still or the whisky that was found on Harrell’s place.

As a witness in his own behalf, Joe Harrell testified that his age was 70 years; that he lived in Carter county 25 years; that he was a farmer and stock raiser, and had about 300 head of cattle on his ranch; that on the day the officers found the still he was at home; that he had trouble with his feet and ankles, and his feet would swell so that for several months he could not put on his shoes; that in May his feet commenced to get better; that last year he had ordered hunters off of his place; that he did not have any interest whatever in the still and whisky or the mash, and did not know it was there until the officers told him about it; that the trail the officers talked about is 150 yards from the still; that he did not have possession of or any interest whatever in the whisky or the still.

It is the well-settled doctrine in this state that a search for liquor or appliances for making whisky in woods, thickets, unfrequented ravines or pastures, not near a place of abode, where the search would in no way invade or disturb the privacy of the home or the legitimate business of the suspected violator of the law, is not an unlawful search within the meaning of our Constitution. Ratzell v. State, 27 Okla. Cr. 340, 228 P. 166; Rogers v. State, 28 Okla. Cr. 195, 230 P. 279; Reutlinger v. State, 29 Okla. Cr. 290, 234 P. 224. It follows that the defendants’ objections to the evidence for the state were properly overruled.

The evidence for the state was purely circumstantial. In such cases the facts proven must be such as to exclude every reasonable hypothesis other than the guilt of the defendant of the offense charged in order to sustain a conviction. As to the defendants Hutchinson and Maulden, the evidence in this case does not meet this requirement, and for this reason we think it would have been a proper exercise of the power vested in the trial court to have advised an acquittal of these defendants upon the ground that the evidence was insufficient to connect them with the offense charged.

As to the defendant Harrell, there was, we think, sufficient evidence to connect him with the commission of the offense charged. The half barrel of liquor as charged was found on his farm, within 250 yards of his bam. It was therefore constructively at least in his possession. It was found within the inclosure of his farm with a trail leading from the barn, apparently to the place where the still was found. These incriminating circumstances go far to satisfy the mind that the only reasonable hypothesis upon which they can be explained is that of the guilt of this defendant. Jurors are properly governed in weighing the probative: effect of such testimony by the common experience of everyday life, and, while the circumstances may have been susceptible of explanation, consistent with the innocence of the defendant Harrell, the fact that the testimony was met with a mere denial, and not with an explanation, was evidently considered.

In our opinion the evidence was sufficient to warrant the submission of the case to the jury, both as to possession and the intent of the defendant Harrell.

It follows from what has been said that the judgments of conviction against the defendants Hutchinson and Maulden should be and are hereby reversed; the judgment of conviction against the defendant Harrell should be and is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


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    BILL JONES v. STATE.
    No. A-5430.
    Opinion Filed March 20, 1926.
    (244 Pac. 456.)
    R. C. Roland, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

No briefs have been filed in support of this appeal, and the cause has been regularly submitted on the record, which discloses that the information sufficiently charges the illegal possession of whisky; that the instructions fairly state the law applicable to the evidence. The possession was proved beyond all doubt, and the illegal intent may be fairly inferred from all the surrounding circumstances.

The evidence was obtained by means of a search and seizure in defendant’s home and premises, but there was evidence to the effect that when the officers told the defendant that they had come to make a search, the defendant said, “All right. Just go ahead; you won’t find anything.” This, if true, constituted a waiver of defendant’s right to object to the search.

If, at the trial, the defendant desired to dispute such waiver, he should have offered some proof controverting the showing of waiver by the state. If the facts, as shown, do not remove the doubt, that issue may be submitted to the jury by appropriate instructions, along with other issues involved. Cornelius on Search and Seizure, p. 79; People v. Foreman, 188 N. W. 375, 218 Mich. 591; State v. Kanellos, 117 S. E. 640, 124 S. C. 514.

The judgment of the trial court is affirmed.


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    C. T. LEE v. STATE.
    No. A-5448.
    Opinion Filed March 23, 1926.
    (244 Pac. 455.)

      H. L. Adkins, W. H. Mouser, A. G. T. Vaughn, and Sylvester Grim, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

Appellant, C. T. Lee, was prosecuted by information in the district court of Roger Mills county for the murder of J. N. Jackson, alleged to have been committed June 29, 1923, by shooting him with a Winchester rifle. The cause came on for trial September 2, 1924, and resulted i!n a conviction of manslaughter in the first degree; the jury fixing the punishment at imprisonment in the penitentiary for a term of four years. He has appealed from the judgment rendered on the verdict, but there has been no appearance in his behalf on his appeal. When the case was called for final submission, it was submitted on the record. The errors assigned are that the verdict is contrary to the law and the evidence; that the court erred in admitting incompetent testimony; that the court erred in refusing to give certain instructions requested by appellant.

It appears that defendant and deceased were neighbors for four or five years in the town of Ham-mon. On the day of the tragedy defendant found a cow in his alfalfa and took her up. Deceased and his brother, John, went to defendant’s house and noticed the cow tied to a wagon on a lot adjoining defendant’s house. Deceased opened the gate, went in, unfastened the cow, and was leading her out the gate, when defendant came out of his house, with a Winchester rifle, and shot deceased. The bullet went through the hand of the deceased and through his body, from the effects of which he died the following day.

John Jackson testified that his brother’s cow strayed and he went with him to find the cow; that they looked around the cotton gin and then went past defendant’s place, and there saw the cow tied to a wagon; that his brother opened the gate, went in, unfastened the cow, and was leading her with a rope five or six feet long; that, as he passed through the gate, defendant came out of his house, and said, “I am going to shoot,” and fired the fatal shot.

As a witness in his own behalf, defendant testified: That he had been acquainted with deceased about six years, during which time they lived there in the same community. That he found Jackson’s cow in his alfalfa patch and tied her to a wagon standing in his corral. That evening a couple of little boys, sons of deceased, came to his place, and said they wanted the cow, and he told them there was a dollar herd law charge against the cow and soon after the deceased and his brother John came to the lot gate. That he was carrying water and went in the house. That it was then about sundown. That when deceased walked into the lot he said to him, “There is a dollar herd law charge against, that cow.” The deceased said, “A dollar hell,” and walked towards the cow. John Jackson said, “A dollar nothing; God damn you! get yourself in the house, or we will take you out.” That he went into the house and got his gun and came out. Deceased was leading the cow through the gate and John Jackson was holding the gate open. That he started to say, “Don’t take that cow until you pay the herd law,” and deceased said, “Of course, I will take her,” and he put the rope in his left hand and threw his right hand hack, then he shot him. John Jackson threw up his hands and deceased took two or three steps forward and sank down. That he fired the shot in his self-defense, believing that deceased was reaching back to get a gun.

The record is voluminous, containing more than 400 pages. However, the foregoing statement we think sufficient.

Our Penal Code provides that homicide is justifiable when committed by any person in resisting any attempt to murder such person or to commit any felony upon him or when committed in the lawful defense of such person, when there is a reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished. Section 1754, C. S. 1921.

In order to justify the assault and to slay an assailant, within the meaning of this section, there must be an apparent design on the part of such assailant to either take the life of the person assaulted or the infliction of some great personal injury, and, in addition thereto, there must be reasonable ground for believing that there is imminent' danger of such design being accomplished. The use of a deadly weapon is justifiable for the purpose only of preventing an unlawful and violent attack- on one’s person of such a nature as to produce a reasonable expectation or fear of death or great bodily injury about to be inflicted.

The right to take another’s life in self-defense is not to be tested by the honesty or good faith of defendant’s belief in the necessity of the killing, but by the fact whether he has reasonable grounds for sueh belief. While appellant is not represented in this court, we have carefully gone through the record and find it free from substantial error. Under the evidence and according to his- own statement on the witness stand, he might well have been convicted of murder, and we think he ought to be thankful that the jury dealt so leniently with him.

The judgment appealed from is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.