text:
    GLENN ADRIAN CARR v. STATE.
    No. A-10886.
    Jan. 7, 1948.
    (188 P. 2d 705.)

      Judd L. Black, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Glenn Adrian Carr, was charged in the district court of Oklahoma county with the crime of burglary in the second degree, was tried, convicted by a jury with sentence left to the court. The trial court thereupon sentenced the defendant to serve a term of seven years imprisonment in the State Penitentiary, and he has appealed.

The proof of the state showed that on the night of August 5,1946, the Poole Drug Store, located at 219 North Western avenue, in Oklahoma City, was entered through a window and several cartons of Camel cigarettes, a ham, and about $120 in cash were taken from a cash box and out of a vending machine. The owner of the drugstore testified that when he accumulated any small change, he placed it in a wrapper and instead of taking the small change to the bank, he retained the wrappers full of coins for use when he needed some small change. These wrappers had the name Poole Drug Store, 219 North Western Avenue, Oklahoma City 1, Oklahoma, stamped on them.

An employee of the Farmers Union Produce testified that on the morning of August 6, 1946, between 8:00 and 8:30 a. m., the defendant entered the produce company. Another groceryman had just bought some produce and gave her a $20 bill; that she did not have the change for the bill, but that the defendant gave her some half dollars, quarters, and dimes for the $20 bill. At the same time the defendant bought a case of eggs for the Samara grocery and paid, her in change. That part of the change consisted of a roll of dimes in a paper wrapper upon which Avas stamped the name, Poole Drug Store, 219 North Western AArenue, Oklahoma City 1, Oklahoma. She then identified State’s Exhibit No. I as being the coin wrapper in which the roll of dimes was Avrapped. She testified that she threw the wrapper in the Avaste paper basket and later turned it over to the police.

Tavo policemen of Oklahoma City testified that they made an investigation of the burglary of the Poole Drug Store. That they found that a ladder had been placed against the north side of the building and a screen had been torn loose from a window, and that marks showed that some one had entered the building through the AvindoAV. That on Friday after the burglary on Tuesday, the defendant was arrested and taken to the police headquarters. That after the arrest of the defendant, they Avent to his apartment in company with the defendant’s Avife and made a search. That they found several cartons of Camel cigarettes and concealed behind some drawers in a cabinet they found tAVO brown paper bags with quite a little money in them, consisting chiefly of coins, and that they found half of a ham in the icebox. That after they had found these articles in the apartment of defendant, they talked Avith him about the burglary and defendant readily admitted that he had committed the burglary. That a stenographer was called and the confession was dictated to her by the defendant. That later, after the confession had been typed, the defendant signed the same. Objection was interposed on behalf of the defendant to the admissibility of the confession in evidence and in the absence of the jury the court heard evidence on the question as to whether the confession had been voluntarily given. The objection of the defendant to the admission in evidence of the confession was overruled. The jury was recalled and much of the evidence, consisting of cross-examination of the of leers, was again repeated in the presence of the jury, relating to the alleged promises made by the officers to the defendant to induce signing of the confession. In the written confession which the defendant signed he said he was employed by the Samara grocery on August 6, 1946; he detailed the circumstances of the burglary and further related that Mr. Samara gave him approximately $11 in bills to buy a case of eggs from the produce house and he kept the currency which had been given to him, but paid for the eggs in dimes which were rolled in a wrapper taken in the burglary. At the close of the evidence of the state, the defendant moved for a directed verdict of not guilty which was overruled and the defendant rested without offering any evidence in his own behalf.

The first proposition presented by defendant is that the court erred in admitting hearsay evidence against the defendant. This assignment is directed to notations made upon the paper wrapper, State’s Exhibit No. I, in which were wrapped some dimes which had been taken from the Poole Drug Store. At the time the policemen were given the wrapper, one of them made a notation of the date on the wrapper and the girl’s name at the produce house avIio delivered it to them. Also written on the wrapper Avas the name of the Samara grocery and its address. H. L. Poole, OAvner of the drugstore, positively identified the exhibit as being one used in his place of business for the purpose of Avrapping coins to be later used by the store in making change. The employee of the Farmers Produce testified positively that the defendant gave her a roll of dimes enclosed in the coin wrapper the next morning after the burglary Avas committed. At the time the exhibit Avas offered in evidence, counsel for the defendant made the objection on the ground that the exhibit Avas “incompetent, irrelevant and immaterial”. No reference Avas made to any of the notations on the wrapper and no objection was interposed to the exhibit on the ground that any part of it Avould constitute hearsay evidence.

This court has held that it was error to admit in evidence a bottle of intoxicating liquor containing a label on Avhich had been written certain damaging statements against the defendant by the arresting officer. Bindrum v. State, 27 Okla. Cr. 372, 228 P. 168.

Also, in a prosecution for embezzlement, it has been held as error to admit in evidence a letter written by a Deputy State Examiner which recites conclusions of the Examiner. Krause v. State, 75 Okla. Cr. 381, 132 P. 2d 179.

A photostatic copy of the coin wrapper in question is included in the case-made and we have carefully examined it. The notations Avritten on it by the officer constituted hearsay, but they were absolutely immaterial and could not possibly have had any bearing on the outcome of the case. The wrapper was positively identified as having come from the drug store and the defendant was identified as being the person who had the possession of the wrapper the morning after the. burglary was committed. The wrapper was correctly admitted in evidence and the notations would probably have been erased if objection had been made to them, but since there was nothing in any of the penciled statements to involve or prejudice the defendant, the admission of such evidence was certainly harmless.

It is next contended that the court erred in admitting the confession of defendant in evidence for the reason that the proof showed that the confession was not voluntarily made. The defendant testified on this question and admitted making the confession, but stated that he signed the confession because of threats on the part of the police officer to prosecute his wife if he did not sign the confession, and further stated that the officers promised him that they would not file a second offense burglary charge against him. Both officers positively denied the statement of the defendant that they threatened to prosecute his wife if he did not sign the confession. The officers did admit that there was some discussion between them and the defendant about the filing of second ’’agree burglary charges after former conviction and that one of them told the defendant that if he would co-operate with him in straightening out the burglary charge, they would co-operate with him. The proof showed that they did recommend to the county attorney that he file a straight burglary charge instead of a burglary charge after a former conviction of a felony which would have carried a much more severe penalty than that which would be imposed for a burglary charge.

The record discloses that after the articles were found in the apartment of defendant, he made an oral confession of Ms guilt. The alleged threats and promises of benefit which the defendant says were made had nothing to do with the making of the confession, but related to the signing of the confession after it had been typed by the stenographer. The oral confession was admissible and there was never any testimony that any threats or promises were made prior to the oral confession.

In Pressley v. State, 71 Okla. Cr. 436, 112 P. 2d 809, it is stated:

“Where the competency of a confession is challenged on the ground that, if made, it was not voluntary, its admissibility is primarily a question for the court. In the absence of the jury, the court should hear the evidence offered respecting the facts and circumstances attending such alleged confession, and the burden is on the defendant to show that it was procured by such means or under such circumstances as to render it inadmissible, unless the evidence on the part of the state tends to show that fact. If it is held competent, and proof of the same admissible, the defendant is entitled to have the evidence in regard to the facts and circumstances under which it was made given anew to the jury, not that the jury may pass upon its competency or admissibility, but for the purpose of enabling them to judge what weight and value should be given to it as evidence, and the jury may disregard it if they are not satisfied that it was voluntarily made.”

After the trial court in the instant case had heard the evidence pertaining to the confession, he overruled the objection interposed by the counsel for defendant. However, in conformity to the law, he again allowed the officers to be cross-examined concerning the confession which whs made and correctly instructed the jury that if they should find that the statement was not voluntarily made, that they might disregard it. Neither the defendant nor his wife testified before the jury, and in the defendant’s testimony before the court in the absence of the jury, he made no contention that he was not guilty of the crime charged against him, but stated to the court that if he committed the crime it was because he was drunk. On his cross-examination, it was brought out that he had served seven different terms in the State Penitentiary.

In Oklahoma it is well established that:

“Prima facie any confession is admissible in evidence; and, where its admissibility is challenged by the defendant, the burden is on him to show that it was procured by such means or under such circumstances as to render it inadmissible, unless the evidence on the part of the state tends to show that fact. Berry v. State, 4 Okla. Cr. 202, 111 P. 676, 31 L. R. A., N. S., 849; Guthery v. State, 24 Okla. Cr, 183, 216 P 948; Thornton v. State, 49 Okla. Cr. 380, 293 P. 583, 295 P. 803; Schrack v. State, 84 Okla. Cr. 260, 181 P. 2d 270.”

The case of Schrack v. State, supra, was similar in many aspects to the present case. The confession in that case was attacked on the ground that it was made because of a promise by the arresting officers that if defendant would plead guilty they would recommend seven years in the penitentiary.

In the syllabus of the case the law is stated as follows [181 P. 2d 272] :

“The object with which the law admits a confession in evidence is to obtain truth. The only ground on which a confession is rejected is that the circumstances under which it is obtained have a tendency to falsehood; and therefore the object with which it is admitted, instead of being secured, is likely to be frustrated.
“Confession made to policemen will not be held inadmissible as involuntarily made where policemen prior to confession told counsel for defendant they would recommend seven years imprisonment in penitentiary if defendant plead guilty; since defendant having previously served term of imprisonment in penitentiary, was experienced in court proceedings, had advice of counsel of his own choosing before confession was made and failure of policemen to carry out promise of recommendation made to counsel was because defendant employed other attorneys and refused to enter a plea of guilty.”

It is our conclusion that the trial court correctly admitted the confession in evidence against the accused.

Counsel for the defendant stated that a receipt which was identified as State’s Exhibit No. 3, which was a statement signed by the defendant, acknowledging that certain money found in his apartment had been taken from the drugstore in the burglary and authorizing the officers to return it to the drugstore amounted to a confession of guilt. Counsel contend that when they objected to the admissibility of this exhibit, the court committed fundamental error in not excusing the jury and hearing the evidence as to the facts surrounding said confession in order to determine its competency before admitting it in evidence.

When Exhibit No. 3 was offered in evidence, counsel for the defendant questioned the witness and brought forth the fact that the receipt was secured by the officers at the time the confession was signed. Counsel then objected to the admissibility of the exhibit for the reason that same was obtained by the promise “as more fully set out in defendant’s objection to State’s Exhibit No. 2.” Counsel did not indicate that he had any desire for a hearing on the competency of this alleged confession, but in making his objection he refers back to the facts which had already been brought out in the hearing before the court upon his objection to Exhibit No. 2, which was the signed confession of the defendant. The facts and circumstances surrounding the making of that confession were already before the court, and without a request from counsel for the defendant and especially in view of the fact that his objection was based upon the evidence which had been introduced in connection with the alleged incompetency of the confession which had been given, it is apparent that the court did not err in failing to excuse the jury and having a hearing in the absence of the jury in order to determine the admissibility of this alleged writing as a question of law.

The proof shows that this defendant is a hardened and confirmed criminal. His guilt has been overwhelmingly established. His past record shows he has an utter disregard for our. laws. It is his evident purpose to pillage and prowl through the property of others whenever he is not confined in a penal institution where he cannot do so. ITis conduct, including the seven sentences which he has served in the penitentiary, shows that he is a menace to society and it is regrettable that under the information that was filed against him, the trial court was limited in the amount of punishment that could be assessed to a term of seven years imprisonment in the State Penitentiary.

The judgment and sentence of the district court of Oklahoma county is affirmed.

BAREFOOT, P. J., and BRETT, J., concur.


source: Caselaw Access Project

author: BRETT, J.

license: Public Domain

text:
    WALTER FIELDS v. STATE.
    No. A-10699.
    Oct. 29, 1947.
    Rehearing Denied Jan. 7, 1948.
    (188 P. 2d 231.)

      G-uy P. Horton, of Altus, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The defendant,, Walter Fields, was charged with the crime of murder of one Jerry Miller. He was tried, convicted of first degree manslaughter, and sentenced to ten years in the penitentiary.

The sufficiency of the evidence to warrant the jury in finding the defendant guilty and fixing his punishment at ten years in the penitentiary is not questioned. The contention of error is based on other grounds.

In his first three assignments of error, in his brief, the defendant urges that the court erred in its instructions 8, 9, and 10, on the theory that instruction No. 8 did not properly present the defendant’s right of self-defense; that instruction No. 9 did not properly present the defendant’s theory as to the effect of the threats made by the deceased against the life of the defendant; and that instruction No. 10 did not properly present his claim of self-defense in relation to his right to protect himself from serious bodily harm. Nowhere in the record, except in the motion for new trial, does it appear that the defendant made any objections to the instructions which the court gave. Only in the motion for new trial, it is stated that objections were made and exceptions duly allowed. The record, however, does not support that allegation of the motion for new trial. This court has held that, “errors assigned upon instructions given by the trial court will not be considered upon' appeal, where the record fails to show that any objections were made or exceptions taken to such instructions at the time they were given.” Cruzan v. State, 13 Okla. Cr. 71, 161 P. 1179. In Sing v. State, 4 Okla. Cr. 544, 113 P. 204, it was held that, “matters occurring during the trial of a case which counsel desire to assign as error must appear by proper recitals in the case-made duly certified to as the law provides, independently of the motion for a new trial.” In Giles v. State, 70 Okla. Cr. 72, 104 P. 2d 975, 978, this court said:

“Where no exceptions to the instructions are taken until after they are read to the jury, such exceptions will be unavailing unless the errors are of a fundamental character.”

In this connection, counsel for the defendant Fields offered no requested instructions and made no suggestion that any different instructions be given other than those that the court gave. In Vester v. State, 76 Okla. Cr. 235, 136 P. 2d 205, this court said:

“If counsel for defendant desires additional instructions they must reduce such instructions to writing and request that they be given, and a conviction will not be reversed where there is a failure to make such request unless the Criminal Court of Appeals is of the opinion in the light of the entire record and instructions that, because of failure to instruct upon some material question of law, accused lias been deprived of a substantial right.”

See, also, Short v. State, 74 Okla. Cr. 272, 125 P. 2d 227; Green v. State, 65 Okla. Cr. 463, 88 P. 2d 907; Adams v. State, 62 Okla. Cr. 167, 70 P. 2d 821; Carpenter v. State, 56 Okla. Cr. 76, 33 P. 2d 637. In Ford v. State, 52 Okla. Cr. 321, 5 P. 2d 170, 171, this court held:

“It is not error for the trial court to omit to instruct upon every possible question under defendant’s theory of the case, when he has not requested such instructions.”

We have carefully examined the instructions given by the court and find that they substantially presented the defendant’s theory of self-defense, the effect of threats made by the deceased, and his theory of self-defense in relation to serious bodily harm. The defendant assigned, as erroneous, instructions li and 12, but did not urge them. We have carefully examined the instructions as a whole and while they are not by any means perfect, they are not fundamentally erroneous.

The fourth assignment of error-urged by the defendant is that the court erred in sustaining the objections of the state to evidence showing the deceased had told the defendant of other specific acts of violence the deceased had committed against other people. It was error for the court to sustain this objection. It was entirely proper for the defendant himself to give testimony in relation to what the deceased told him as to acts of violence which he, the deceased, perpetrated against other parties. It was relevant as touching upon the defendant’s belief that the deceased was a dangerous and violent man. It constituted a proper element of the defendant’s theory of self-defense. Murphy v. State, 72 Okla. Cr. 1, 112 P. 2d 438, is in point, wherein Brock v. State, 55 Okla. Cr. 410, 32 P. 2d 88, 89, is cited as authority for the proposition that it is proper for the defendant to testify relative to acts of violence which the deceased had told defendant he committed on other persons. In the Brock case, this court said:

“The question before the jury was not whether the stories told by deceased to defendant of his quarrels, brawls, and difficulties were true, but was; Did defendant believe deceased had committed such acts detailed to him and by reason thereof believe deceased was a dangerous and violent man, and, acting on such belief, commit the killing in his own self-defense.”

In this connection, however, the record discloses that the defendant was not prejudiced by the ruling of the court. It discloses the following:

“Q. Had Jerry ever told you of killing anyone? A. Yes, sir. Mr. Rutherford: ‘We object to that as incompetent and immaterial, and we object for the further reason it is incompetent, irrelevant and immaterial and improper examination.’ Mr. Horton: ‘He asked him himself and I am cross examining him on that.’ The Court: Objection sustained. Mr. Horton: We except.”

It appears from the record that the question with reference to acts of violence was answered before the objection was interposed. The jury, therefore, had the benefit of the answer. The state did not move to have it stricken from the jury’s consideration. The defendant had the benefit of the answer and the erroneous ruling of the court is harmless.

The fifth contention of the defendant is that the court overruled his objection to the following question:

“Q. Then can you explain to the jury since you are testifying now that this boy Hugo Henderson, took a gun off the deceased, Jerry, after you killed him, why you didn’t — your lawyer didn’t ask Hugo Henderson about that in the preliminary hearing instead of your testifying to it now. Explain to these gentlemen.”

The record discloses, in this connection, the transcript of the evidence of Hugo Henderson taken at the preliminary hearing was read into the record. That transcript shows that no inquiry was made of Hugo Henderson either by the state or by the defense, relative to Jerry Miller being either armed or unarmed. However, the defendant in his evidence in chief testified that after the killing he .«aw Hugo Henderson remove a bottle of whisky, a black automatic pistol, and some money from the deceased’s person. We believe that it was proper for the state to show on cross-examination that this testimony was not alluded to at the preliminary hearing on the cross-examination of Hugo Henderson. It was proper for the state to show the defendant’s failure to elicit so important evidence to his defense from Hugo Henderson at the preliminary hearing. This was proper because it went to the weight of the defendant’s evidence. It was an attempt to discredit the defendant’s testimony in this regard.

We think this position is in keeping with the law announced by this court in such cases. In this connection, see Harrold v. Territory, 18 Okla. 395, 89 P. 202, 10 L. R. A., N. S., 604, 11 Ann. Cas. 818, wherein the court said:

“A prisoner who takes the witness stand in his own behalf waives his constitutional privilege of silence, and the prosecution has the right to cross-examine him upon his evidence in chief with the same latitude as would be exercised in the case of an ordinary witness, as to the circumstances connecting him with the crime.
“On cross-examination of a witness, the party cross-examining should be confined to the matters concerning which the witness has been examined in chief, but this rule should be liberally construed so as to permit any question to be asked on cross-examination which reasonably tends to explain, contradict, or discredit any testimony given by the witness in chief or to test his accuracy, memory, skill, veracity, character, or credibility.”

See, also, Brock v. State, supra, wherein this court said:

“But where defendant takes the witness stand, his right to remain silent on cross-examination is waived, and he subjects himself to the same nature of cross-examination as any other witness. Harrold v. Territory, [supra]; Graham v. State, 28 Okla. Cr. 266, 230 P. 763; Davis v. State, 35 Okla. Cr. 156, 249 P. 164; Radney v. State, 36 Okla. Cr. 240, 253 P. 913.
“The only right defendant has to refuse to answer after he takes the witness stand is to refuse to answer any question which might incriminate him as to some other crime. * * *
“This cross-examination * * * is controlled by the rule that statements and conduct of a witness contrary to and inconsistent with his testimony may be inquired about on cross-examination.”

In Creek v. State, 16 Okla. Cr. 492, 184 P. 917, 919, this court said:

“If, on direct examination, he opens a certain subject for investigation, he cannot be heard to complain if on cross-examination questions are asked him, the answers to which would tend to limit, explain, or modify the testimony he has given in chief.”

See, also, in this connection, Davis v. State, 58 Okla. Cr. 139, 50 P. 2d 755; Janeway v. State, 62 Okla. Cr. 264, 71 P. 2d 130.

Quite a different situation however, is presented in relation to the specific question and particularly to that part as to “why didn’t your lawyer ask Hugo Henderson about that in the preliminary hearing instead of you testifying to it now?” It was not a proper matter of inquiry to ask this defendant why his lawyer didn’t ask a certain question at the preliminary examination. We think it would be entirely improper to ask any defendant, at the trial on the merits, why his lawyer didn’t ask a certain question at a preliminary hearing, for two reasons: In the first place, it would be calling upon the witness to state a conclusion without any possible means of knowing what the correct answer would be. (No doubt counsel for the defense wonders, himself, why he did not ask the question at the preliminary hearing.) Such a question plunges the whole matter into the realm of rank speculation. Second, it seeks to inquire into the motives of defendant’s counsel, who himself was not on trial. Courts should require counsel to confine their questions to the facts in issue. Motives of counsel in omitting to ask certain questions are generally not directly in issue. Such a question • is not ordinarily proper cross-examination. However, we are of the opinion that while it was error to permit the inquiry as to why counsel did not ask a certain question, it was not such error as tended to prejudice the substantial rights of the defendant.

The defendant, in his sixth assignment of error, urges that the court refused to grant him a continuance on account of the absence of James White whom he alleges to be a material witness in his defense, and that the court’s refusal forced the defendant to testify in his own defense. As to the diligence used to procure White’s presence and as to the materiality of White’s evidence, the defendant alleges in his affidavit, attached to the motion for continuance, as follows to wit:

“Walter Fields, of lawful age, being sworn, deposes and says: That he is defendant in the above entitled cause; that he is unable to proceed to trial of this cause at this time, for want of material evidence, to-wit: The evidence of James White, who is a material witness in this case and defendant has used diligence to obtain his evidence, in this, to wit: That on the 29th day of Jan. 1945, he caused a subpoena to be issued by the court clerk of Jackson county, Oklahoma, and placed in the hands of the sheriff of Jackson county, to be served upon James White, commanding him to be present in court on the 7th day of February, 1945, to testify in behalf of this defendant. That after said subpoena was issued, but before it was served upon said James White, and without the knowledge of this defendant, the said James White departed this state, in response to the order of James E. Byrnes, war man power commission, to either work or fight, to work in a Avar production plant located at Camden in the State of Arkansas; defendant further swears that he had no knowledge that said James White was going to leave the state, that if he had so knoAvn that he would have taken his deposition to have been used in the above styled cause; but the defendant expects to have the evidence of said James White by the next term of this court.
“Defendant expects to prove that if said witness Avere present in court that he Avould testify to the follOAving facts:
“ ‘My name is James White, and am over 21 years of age. I reside in Altus, Oklahoma and have so resided for a number of years. I am well acquainted with the defendant Walter Fields and the deceased, Jerry Miller. That on the morning of July 4, 1944, I was Avalking along on the North side of West Nona street in the city of Altus, looking for the defendant, Walter Fields, when he saw Jerry Miller in the doorway of his place of business. That I asked Miller if he lcneAV where I could find Walter Fields, and he replied that he did not know, and then told him that Walter Fields has stolen some money from him while he, Jerry Miller, was drunk, and further stated that if he saw that black son of a bitch to tell him that he said that if he did not dig up that money he stole from him before night that he would kill him the first time he saw him. And as he made the statement, he drew a pistol and gave it a slight shake and said, ‘I mean business.’ That I then left and was standing in front of the Harlem Club when I saw Walter coming out of a building operated by ‘Starchy’ Cunningham; that I called Walter to one side and told him what Jerry Miller had said. That after standing there and talking a few minutes longer, the defendant, Walter Fields, asked me if I had my car close, and I stated that I did. Then he said he wanted to see Harry Kimbell, who was sheriff of Jackson county, and asked me if I would drive him up to the courthouse. 1 answered that I would and we first went to the courthouse, but the sheriff’s office was locked up, it being the 4th of July, and a National Holiday. We then next went to the jail but could rouse no one. Then Walter asked me to drive him to Mr. Kimbell’s home, which is in the north part of town, about a mile from the court house and jail. When we reached Mr. Kimbell’s house, I stopped the ear and Walter went around to the back door and knocked. That Mrs. Kimbell came to the door and they talked a few minutes, and Walter returned to the car and we drove back down to Nona street in the colored section of town and Walter got out. And that was the last I saw of him until after the shooting.’ And this affiant believes the same to be true; that this application is not made for delay, but that substantial justice may be done, and defendant asks that the above styled cause be continued until the next regular term of the district court of Jackson county.”

The record shows that the crime for which the defendant is being tried was committed on July 4, 1944. The case was set for trial February 7, 1945. It is therefore apparent that the defendant had ample time in which to prepare for trial, ascertain the availability of witnesses, and procure their evidence through which he would seek to establish his defense. However, he waited until only eight days before trial date and on January 31, 1945, before issuing a subpoena for James White, whom it is alleged had gone into Government service as a war worker at Camden, Arkansas. It appears that the subpoena, to which reference is made, is not attached to the motion for continuance — it should have been. The subpoena, together with the sheriffs return, would have thrown light on the question of due diligence. The burden was upon the movant. It might have appeared from the return that it would not have been possible to obtain the deposition of White before the trial date of February 7, 1945. However, the record does not disclose any attempt was made to contact James White to ascertain the probability of his appearing as a witness for and on behalf of the defendant. It was necessary to show such attempt had been made without success. The court will take judicial notice of the fact that it is only about a day’s drive from Altus, Oklahoma, to' Camden, Arkansas, where the said witness, James White, was supposed to be. Moreover, the record does not show that any effort was made to obtain the witness’ deposition, either before or after the return of the subpoena was made. It is not unreasonable to assume that even after the return of the subpoena, it was improbable that the deposition' of White could have been taken. Neither is there any allegation of facts upon which the court could be assured that either the witness or his evidence, as set forth in the defendant’s affidavit, would be available, even if a continuance were granted. There was no showing made that James White was still in Arkansas, or that he had been in any wise contacted relative to the possibility of his testifying, or that, if he appeared as a witness, or testified by deposition, that he would testify as the defendant swore he would. Under these circumstances, the status of White as a witness and the nature of his testimony were highly speculative. Moreover, the affidavit shows little diligence except the issuance and return of a subpoena which was not served. The record is totally lacking in evidence as to any other attempt or effort to procure his presence as a witness at the trial on February 7,1945, or at any time in the future. In Simmons v. State, 68 Okla. Cr. 337, 98 P. 2d 623, 624, this court said:

“An application for continuance on account of the absence of a witness must show diligence has been used to procure the witness or his testimony.”

See, also, Kidd v. State, 76 Okla. Cr. 213, 136 P. 2d 210. In Presley v. State, 76 Okla. Cr. 120, 134 P. 2d 595, 597, this court said, in quoting from Petty v. State, 11 Okla. Cr. 438, 147 P. 782:

“An affidavit for continuance on the ground of the absence of material witnesses, who are out of the state, which states that the defendant expects to procure their attendance at the next term of court, to be sufficient should state the grounds of such expectation, so that the court may determine whether or not it is reasonable.”

Also see Rucker v. State, 64 Okla. Cr. 259, 79 P. 2d 629.

We do not believe, under this state of the record, that the defendant has pleaded or established a case which shows the exercise of due diligence to obtain the presence of James White as a witness. The defendant’s objection in this connection is based upon the following portion of the record:

“Mr. Horton: Well, I take exceptions to the court. There is another witness here also. And I would like to, in that connection I would like to put, unless they agree the witness is out of the state, if they will agree to that, the first witness. The Court: I will let you show that defendant can testify to all the things that witness can. Mr. Horton: The law also says I don’t have to put the witness on. The Court: I will let you show that at the trial. I overrule your affidavit, and show exceptions. Mr. Horton: Let it also (show) Mr. Harrison attempted to serve a subpoena on the negro, the witness White, and he couldn’t find him and it was reported he had left town. Mr. Harrison: That’s right. The Court: It is a matter of record. The only reason I am overruling that, (is) it is corroborative testimony.”

Particularly, this contention is based on the statement in which the court says the only reason for overruling the motion for continuance is that the testimony would merely be corroborative of that given by the defendant. Counsel for defendant, in his brief, fails to set forth that part of the record pertinent to this contention, as follows:

“Mr. McCuistion, of counsel for the State:
“I would like to show we agree on behalf of this last witness (James White) that if he were present he would so testify and you can read that affidavit in the record.”

The record discloses that the defendant did not avail himself of this agreement on the part of the state. In view of this agreement on behalf of the state, if any injury resulted to the defendant’s rights, it was because of the fact that he did not avail himself of the agreement that he could read into the record his own affidavit as to what White purportedly would have testified to. Moreover, the defendant would have had all the benefit of what he alleged White’s knowledge to be which was material and beneficial to his case, without any of the detriment of cross-examination of White. As to the testimony of J. R. Lauderdale, another absent witness (a white man), the defendant availed himself of a similar agreement on behalf of the state and read the affidavit of Lauderdale into the record. Under this state of the record, we cannot see how the defendant was prejudiced by the lack of White’s presence. If so, it was only because of his oversight in failing to read his own affidavit as to what White’s testimony would have been. Because of this failure, he cannot now be heard to complain.

Based upon that portion of the record, as above quoted by the defendant in his brief, he then complains in the face of this record that without the testimony of witness White, he would be compelled “to take the witness stand” and “to testify against himself.” In this connection, he cites the case of Knight v. State, 73 Okla. Cr. 107, 118 P. 2d 258, which is clearly not in point with the circumstances involved in this case, as the rule laid down in that case was applicable to the situation where two defendants were charged jointly with the crime of larceny of livestock. The plea of self-defense was not involved in the Knight case and in that case, no one other than the absent witness could establish Knight’s contention as to certain facts, except his brother who was jointly charged with him. Not to have granted the continuance would have forced the brother, a joint defendant, to take the witness stand, where otherwise it might not have been necessary. The elements involved in that case are certainly not analogous to the case at bar. A different situation arises in a case where the defendant pleads self-defense and where the evidence presented by the state creates a situation where the issue of self-defense is totally lacking. In other words, the evidence offered by the state, as here, discloses a case of what appears to be premeditated murder, unprovoked by any overt act, of the deceased, at the time of the homicide. In the case at bar, it was essential to his defense that the defendant take the witness stand to establish overt acts of the deceased as the principal elements of self-defense. This is true because none of the eyewitnesses to the homicide testified to any overt acts tending to establish a. case of self-defense, such as that the deceased reached for his gun before the defendant shot him. It appears from their testimony, in substance, that Fields came into the room operated by Miller, the deceased; that Fields had some conversation with the deceased about the accusation he had made, to the effect that the defendant Fields had taken some money from him to which the deceased Miller, in substance, said that that was his belief and he had a right to his opinion. The defendant said, in substance, I am tired of your messing with me, or messing in my business; and Miller, the deceased, said, “You can’t rob me of my belief.” Whereupon the defendant said, “Don’t you say nothing,” and the defendant drew his pistol. Willie Dee Jenkins said, “Don’t do that,” and another witness said, “Don’t do that,” and just then the defendant discharged the gun and shot Jerry Miller in the left side of the head, above the ear. None of the witnesses, on behalf of the state, testified in any manner whatsoever to any overt act on the part of the deceased, such as his reaching for his gun, as a predicate for the plea of self-defense on the part of the defendant. Under the circumstances in the case at bar, it was essential that the defendant personally take the witness stand and testify to certain overt acts which he claimed to have been made by the deceased, leading him to believe that he was in danger of suffering great bodily harm or losing his life, and, tending to establish a case of self-defense. All the other evidence was to the contrary. This court has repeatedly held that evidence of threats claimed to have been made by the deceased would not be admissible in the absence of testimony presenting the issue of self-defense. In White v. State, 4 Okla. Cr. 143, 111 P. 1010, 1011, it was said:

“Threats made by the deceased against the defendant are not admissible in evidence when there is no testimony presenting the issue of self-defense.”

See, also, Saunders v. State, 4 Okla. Cr. 264, 111 P. 965, 966, Ann. Cas. 1912B, 766, wherein this court said, in relation to bare threats:

“* * * such proof is not admissible at all unless there is first introduced some evidence other than that of the threats themselves tending to show that the deceased at the time he was killed was making some overt act or demonstration which furnished the defendant reasonable cause to believe that he was in danger of being killed" or of receiving great bodily injury at the hands of the deceased.”

A case in point with this situation is that of Hoover v. State, 35 Tex. Cr. R. 342, 33 S. W. 337, cited with approval in Reed v. State, 2 Okla. Cr. 589, 103 P. 1042. In the Hoover case [35 Tex. Cr. R. 342, 33 S. W. 338], the court in analyzing a situation analogous to the one at bar, said:

“But conceding that defendant’s version is correct, the state replies that he is estopped from pleading that his life or body was in danger, because he did that which, if not intended, was in its very nature calculated, to induce the deceased to do just what he did do, and that appellant must have known and did know that his own violent conduct caused the deceased to act as he did, and this was known to appellant before he shot. A.’s life is threatened by B. A. arms himself with a pistol, and goes into the house of B. pistol in hand, ready for immediate use, and remarks to him: ‘I understand that you intend to kill me.’ B. moves his hand to his side. A. shoots, and kills him. Under this state of case, B. would have been excused if he had drawn and fired. But what in fact was appellant’s intention when he entered the saloon, or why or for what reason did he kill deceased? It is true, he states that deceased threw his hand to his side, and that he was moving towards the counter, and that he feared that Ms purpose was to obtain a pistol. Concede all this. Concede that appellant believed his life in danger, that in fact deceased was attempting to procure a pistol for the purpose of killing appellant, and that appellant so understood his conduct. Still his own violent conduct was not only calculated to induce deceased so to act, but was the natural result of the conduct of appellant. No rational man could have expected anything else than a a resort to deadly weapons. And while it. may be true that appellant had good reason to, and did, from the conduct of deceased, apprehend danger to his life, etc., yet he knew that his own acts had caused the danger. But why did appellant Mil deceased? He answers this question by deliberately stating that he did not kill deceased because of the insulting language towards his female relative, but because he (deceased) had threatened to kill him. If this be true, all that deceased did ceases to be a factor in self-defense. Why? Because the acts of deceased did not induce appellant to kill him, he being killed because he had threatened to kill appellant. We have therefore this simple proposition : A. threatens to kill B. B. arms himself, goes in the house of A., and kills him because he had threatened his (B.’s) life. There is neither manslaughter, self-defense, nor anything else short of murder, in this state of case.”

In Reed v. State, supra [2 Okla. Cr. 589, 103 P. 1053], this court said:

“Where it is clearly and unequivocally shown that the defendant was the aggressor, and- there is no pretense that the deceased was about to carry the threats into execution, or that the defendant had reasonable grounds to believe and did believe that such was the case, evidence of such threats by the deceased, although they were communicated to the defendant, is inadmissible.”

The plea of self-defense, in the case at bar, was not apparent from any other evidence, and became apparent only when the defendant took the stand in his own behalf, and evidence of threats was not admissible until then. Where the defendant had no evidence other than his own, by which he conld establish his plea of self-defense, he had no choice than to take the witness stand and testify on his own behalf to establish snch plea. Until the plea of self-defense was established by some evidence, testimony such as the witness James White would have testified to, as to threats, would not be admissible. So, the contention on the part of the defendant that in overruling the motion for continuance the court assumed the attitude of forcing him to take the witness stand in his defense and he therefore suffered substantial prejudice, is without merit.

Furthermore, without objection from the state, Archie Childs, a witness for the state, testified at considerable length on cross-examination as to the fact of certain threats being made by the deceased to the defendant to the effect that the deceased, Jerry Miller, was going to kill the defendant. As to the defendant attempting to contact the sheriff, seeking advice and protection, what the witness White would have testified to in this regard is substantially established by the testimony of Mrs. Kim-bell, the wife of the sheriff, to the effect that the defendant did seek to find the sheriff. Therefore, the testimony of James White, as the trial judge concluded, would only have been cumulative had White been present and testified, as the defendant said he would have, in his affidavit. The testimony of White, in our opinion, would not have changed the result and it was not reversible error to refuse to continue the case in order that White might be present and testify. In Jackson v. State, 72 Okla. Cr. 226, 114 P. 2d 953, 954, this court said:

“Where the evidence is only cumulative, it was not error to overrule the motion for continuance.”

See, also, Linder v. State, 54 Okla. Cr. 435, 23 P. 2d 222; Roberts v. State, 36 Okla. Cr. 28, 251 P. 612; Rose v. State, 8 Okla. Cr. 294, 127 P. 873.

Under the circumstances herein involved, with relation to the request for continuance based upon the affidavit as to what James White would testify, is without merit.

We have carefully examined the record in this case and are of the opinion that the evidence in this case shows that the killing of the deceased was more the result of fear than an act of self-defense. This court has held that “No person has a right to kill another through unfounded fear or cowardice.” Reed v. State, supra. Fear, due to threats alone, unaccompanied by some overt act designed to execute the threats, will not mitigate a homicide. Saunders v. State, supra. Under these circumstances, we are of the opinion that the defendant was most fortunate in being found guilty only of first degree manslaughter and being sentenced to ten years in the penitentiary, as the record clearly could have supported conviction for murder and a much more severe penalty. While the record is not entirely free of error, it is clear as to the guilt of the defendant. We have no reason to believe but that upon a second trial, an intelligent and honest jury could arrive at no other verdict than the guilt of the accused. Therefore, under the harmless error doctrine, which has been firmly established in this court since its creation under the statutes of this state, 22 O. S. A. § 1068, and numerous authorities construing the same, finding no fundamental errors going to the substantial rights of the defendant, the judgment and sentence of the lower court is accordingly affirmed.

BAREFOOT, P. J., and JONES, J. concur.


author: JONES, J.

text:
    JEWEL STONE v. STATE.
    No. A-10788.
    Jan. 14, 1948.
    (188 P. 2d 875.)

      Herbert K. Hyde, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Warren H. Edwards, Co. Atty., and W. A. Carlile, Asst. Co. Atty., both of Oklahoma City, for. defendant in error.
   JONES, J.

The defendant, Jewel Stone, was charged by information filed in the district court of Oklahoma county, on September 6, 1941, with the crime of wife and child abandonment. On September 15, 1941, the defendant entered his plea of guilty to said charge and was sentenced to serve a term of five years imprisonment in the State Penitentiary. At the same time and place an order was entered suspending the sentence on good behavior in accordance with the statute authorizing the suspension of sentences in certain cases. 22 O. S. 1941 §§ 991 & 992.

On December 1, 1945, the county attorney of Oklahoma county filed a written application to revoke the suspended sentence given to the defendant for the reason that he had failed to comply with the terms and conditions of said suspended sentence. On December 20, 1945, the district court entered an order setting the application to revoke the suspended sentence for hearing on January 3, 1948, at 9:00 a. m. On January 3, 1946, the district court entered an order revoking the suspended sentence. Thereafter, on the 4th day of February, 1946, defendant, through his counsel, filed a written application to vacate the order revoking the suspended sentence. This application was set for hearing on February 8, 1946, at which time the defendant appeared in person and by his attorney, and the State of Oklahoma was represented by the assistant county attorney of Oklahoma county. Considerable evidence was offered both by the state and the defendant as to whether the defendant had complied with the terms and conditions of the suspended sentence which had been given him in 1941. At the conclusion of the hearing, the trial court took the matter under advisement until March 15, 1946, at which time he entered an order denying the application to vacate the order revoking the suspended sentence, and directing the sheriff to transport the defendant to the State Penitentiary to commence serving his sentence.

The defendant excepted to the order of the court denying his application to vacate the order revoking the suspended sentence, gave notice of appeal, and was released from confinement upon execution of an appeal bond in the sum of $2,500.

The case-made with petition in error attached was filed in this court on September 21,1946. There has been no brief filed on behalf of defendant and no appearance iii-his behalf at the time the case was assigned fór oral argument. • '•••'

Where an a,ppeal is submitted without briefs and without oral argument, it is the rule of this court, to search the record for fundamental error only, and, if none is found, and there is competent evidence in the record to sustain the conviction, affirm the judgment. Booth v. State, 73 Okla. Cr. 67, 117 P. 2d 805; Scott v. State, 73 Okla. Cr. 247, 119 P. 2d 877.

. There is no question raised in the record as to, the guilt of the defendant. . His plea: of guilty, entered, in 1941, is conclusive as to that fact, and this is;a purported appeal from the denial by. the trial court of: an application to vacate an order revoking a; suspended sentence. ,

In the recent case Of State v. Humphrey, 85 Okla. Cr. 153, 186 P. 2d 664, it was held:

“Only those. persons coming, within, terms: of. statute are eligible for suspended sentence, but they have.no right to demand the same; and. it may not be granted to them except at the discretion’óf the court.
. “The revocation, of a suspended sentence is a matter addressed to the sound judicial discretion ’of trial judge, and the hearing in Connection therewith may be of a summary character.
“The granting or refusal of suspended sentence or the refusal to revoke a suspended sentence, being; a matter addressed to the sound discretion of the trial court, no appeal, will lie from an order of the. trial court.,rendered in the exercise of that discretion.’7 ,

In the case of Ex parte Boyd, 73 Okla. Cr. 441, 122 P. 2d 162, 163, this court held:

“Where all constitutional’ and statutory, guarantees have been observed in criminar prosecution, réqúirérbients of due process are fully satisfied, presumption of ihrio-eence is overcome, and Hence suspension, of sentence is not a matter of right, but purely within trial court’s discretion.”
“When execution of a sentence is suspended, the judgment itself is hot impaired or limited. The time for its execution is merely deferred, as a matter of grace, subject to being withdrawn by the court for a violation of some of the conditions named in statute.'
“The revocation of a suspended sentence is a matter addressed to the sound judicial discretion of trial judge, and. the hearing ip connection therewith may be of a summary character. ,
“In habeas. corpus proceeding by, accused, alleging trial court revoked suspended sentence without due process of law, the question for determination is whether there, has been an ¿buse. of discretion by trial court, and is to be determined in accordance with familiar, principles governing the exercise of judicial discretion. That exercise implies conscientious judgment,- not arbitrary action.”

No question has been raised by the state as to whether the defendant has a right to appeal from the denial of the application to vacate the order revoking the suspended sentence. We have held in Ex parte Boyd, supra, that the defendant in a habeas corpus proceeding may present the question as to whether there has been an abuse of judicial discretion by the trial court in revoking a suspended sentence. If the order denying the application to vacate the order revoking the suspended sentence was an appealable order (upon which question we do not express an opinion), it appears that this court in determining the effect of the order revoking the suspended sentence would be limited to a determination as to whether or not the trial court abused, his discretion. Tfcfe récord, wholly fails to show an abuse of judicial discretion on the part of the trial court. The judgment is affirmed.

BAREFOOT, P. J., and BRETT, J. concur.


author: BAREFOOT, P. J.

text:
    BILL JACKSON v. STATE.
    No. A-10827.
    Jan. 14, 1948.
    (188 P. 2d 878.)
    Porter Newman, of Durant, for plaintiff in error.
    Mae Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Victor C. Phillips, Co. Atty., of Durant, for defendant in error.
   BAREFOOT, P. J.

Defendant, Bill Jackson, was charged in the county court of Bryan county with the unlawful possession of intoxicating liquor, to wit: Ten .half-pint bottles of Eon Donna Rum, and two pint bottles of Seagram 7 crown whisky; was tried, convicted and sentenced to pay a fine of $50 and serve 30 days in the county jail, and has appealed.

The Attorney General, on behalf of the state, has filed a motion to dismiss the appeal, for the reason that the petition in error with case-made attached was not filed in this court within the pei’iod of 120 days from the date of judgment and sentence, as provided by the statute.

It is provided by Tit. 22 O. S. 1941 § 1054:

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

We are reluctant to dismiss appeals in criminal cases, and will not do so upon technicalities, but when the appeal has not been filed within the time prescribed by the statute, it has been held upon many occasions that this court does not have jurisdiction to consider the appeal. See the following cases: Bouziden v. State, 78 Okla. Cr. 387, 149 P. 2d 99; Monzell v. State, 78 Okla. Cr. 34, 143 P. 2d 163; Bullard v. State, 73 Okla. Cr. 238, 119 P. 2d 870; Johnson v. State, 70 Okla. Cr. 322, 106 P. 2d 128; Powell v. State, 65 Okla. Cr. 250, 85 P. 2d 326; Wallace v. City of Tulsa, 76 Okla. Cr. 254, 135 P. 2d 1002; Samford v. State, 83 Okla. Cr. 134, 173 P. 2d 749; Butler v. State, 83 Okla. Cr. 105, 173 P. 2d 453; Ryals v. State, 84 Okla. Cr. 114, 179 P. 2d 482.

The record in this case reveals that the verdict of the jury finding the defendant guilty was rendered on August 27, 1946. The motion for new trial was filed on September 9, 1946, and overruled on September 13, .1946, and the judgment and sentence entered in the court clerk’s office on September 17, 1946. At the time .of entering judgment and sentence, an extension of 30 days was given for the preparation and service of case-made for appeal, and on September 21, 1946, an additional extension of time was'granted, as follows:

“Now on this the 21st day of September, 1946, the same being a regular judicial day of tiiis court came on. for héaring an oral motion of the defendant for an order extending the time in which to prepare and serve case-made and for good cause shown the court is of the opinion that an additional 60 days, in addition to the time heretofore granted, should be granted, the ¿defendant in which to prepare and serve case-made,. :and the plaintiff to have ten days after the service of the caser made. in. which to suggest amendments, if any,, and; the case-made to be settled, upon five days written notice by either party.
“It is therefore ordered, adjudged and decreed by the court, that the defendant, Bill Jackson, be granted an additional 60 days, in addition to the timé heretofore granted, in which to prepare and serve case-made and the plaintiff to have ten days after the. service of the case-made in which .to suggest amendments, if any, and the case-made to be settled on five days written notice by either party., and time is extended to February lOf/i, 1947, to file petition in the court of Criminal Appeals.”

From an examination of the case-made it appears that the last part of the above order, to wit: “and time is extended to February 10th 1947, to file petition in the Court of Criminal Appeals,” was entered after the case-made had been prepared, as it is in different print. But that part of the order, attempting to extend the filing of the case-made until February 10, 1947, was. beyond the power and jurisdiction of the court: for the.reason:that the judgment and sentence1 was entered on September 17, 1946, and the attempted. extension of timé to February 10, .1947, was beyond the 120 days allowed by the statute for the filing of an appeal in misdemeanor cases.

The record further reveals that the case-made was completed by the court reporter on November 21, 1946, and \vas served upon. the. county attorney on December 9, 1946, and. the. right to suggest amendments, was waived on that date.. The trial judge sighed the final certificate on January 8, 1947, and the same was filed with the court" clerk of Bryan ebuhty on January 3, 1947, and was withdrawn for appeal on the same date. As above stated, dt. was not filed with the clerk of this court until February. 3, Í947, which was beyond the . 120 days as provided by the statutes for appeal in misdemeanor cases.

.. It is regrettable that if. becomes nécessary to dismiss the appeal in this case for the reason that questions are raised by the appeal which, if considered, would probably : result in a reversal of the case, but under the decisions above cited, this court is without jurisdiction to consider the questions raised. ......

: For the reasons above stated, the appeal in this case is dismissed.

JONES and BRETT, JJ., concur.


text:
    EDWARD MARION GRAHAM v. STATE.
    No. A-10774.
    Nov. 5, 1947.
    (184 P. 2d 984.)

      Tillman & Tillman, of Pawhuska, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The defendant, Edward Marion Graham, was charged with being in unlawful possession of 48-1/3 pints, 12 quarts, and 12-4/5 quarts of whisky. He was tried, convicted, and sentenced to 60 days at hard labor in the county jail and assessed a fine of $200. and costs.

There are several assignments of error, the first of which is that the court erred in not sustaining the defendant’s motion to suppress evidence. This proposition is based upon the contention that the search was unlawful, as it was not made with a search warrant nor incident to a lawful arrest. The facts and evidence in relation thereto are substantially as follows: The defendant’s car was parked in front of Roseoe’s Tavern, west of Drumright on the night of January 15, 1946. A highway patrol ear, occupied by Officers Mansfield and Mount, drove up along side the defendant’s automobile just before the defendant and his two companions came out of the tavern. The highway patrol had theretofore observed that the defendant’s car bore a commercial car license plate. As the defendant and his companions were about to get into the automobile, Officer Mansfield approached him and asked him to whom the car belonged and asked him if he had a certificate of registration. The defendant said he owned it but that Ms wife had the title. For the remainder of the facts and evidence in relation to the search, we quote from the record. Edward Marion Graham, the defendant, testified in his motion to suppress, as follows, to wit:

“Q. Now, when did you first learn that there were any officers in the immediate vicinity of your car? A. I just came out of the night club and they were parked by it. Q. In the highway patrol car? A. Yes sir. * * * , Q. Now, what was the first thing said by either of these officers to you? A. They asked me if the car was mine. Q. What did you tell them? A. I told them ‘yes’, and then they asked me to look into the trunk, and what I had in the trunk of my car, and I told them nothing, and they asked me to see, and I lifted the trunk lid and showed' them, and there was nothing there.- Q. What was done or said then? A. He asked me how about looking in my car and I told him I didn’t see that he had any right to, and he said he could impound my car for seventy-two hours for investigation. He said, which did I want him to do, impound my car for seventy-two hours or search it, and I told him it looked like they were running things and he went on and searched it. Q. Had he ever placed you under arrest? A. No. Q. Had he seen you violate a law? A. No.”

On cross-examination, after testifying that his wife had the title to the car, the defendant gave further evidence as follows, to wit:

“Q. Did you tell him you supposed that you knew what he was looking for and you walked around the ear and took a half pint of whisky out of the glove compartment of your car and handed it to him? A. No. Q. Did that happen? A. No. Q. That didn’t happen? A. No. * * * Q. And then what happened after they opened the door? A. He jerked the seat out of the car — the back part of the seat. Q. Now, let’s get that pint of whisky straightened out. Was there in evidence there a pint of whisky? A. The pint was in my glove compartment. Q. Who took it out of the glove compartment? A. Mr. Mansfield, as far as I know. Q. You didn’t do it? A. No. Q. You didn’t hand it to him? A. No. Q. You didn’t tell him, ‘If this is what you are looking for, here it is?’ A. No. Q. That didn’t happen at all? A. No. Q. Well, did Mr. Mansfield ask your permission to open that door? A. No. He asked but I told him that I didn’t see that he had any right to. Q. He asked to? A. Yes, and I told him he didn’t have any right to and then was when he told me he could impound the car for seventy-two hours or search it, and then I told him it looked like he was running things and then he opened it without my permission. Q. You told him it looked like he was running things? A. That is right. Q. And he opened the door? A. Yes.”

Officer Mansfield, after testifying that lie approached Graham and his companions with the inquiry as to whom the automobile belonged, gave further evidence as follows, to wit:

“* * * Mr. Graham said it was his, and I asked him then if he had his title with him, and he said ‘No,’ and I asked him who had his title and he said his wife had his title and his used car dealer certificate, that he was a used car dealer. I got out then and came around behind the car and I asked if he had anything in the back and he said ‘No,’ and he opened the turtle and threw it up and it was empty with exception of a tire and jack and maybe some tire tools. We went around on the other side and these other two boys had gotten out of the car and the door was open on the other side, and he opened the glove compartment and took out a half a pint of whis-ky and said, ‘If that is what you are looking for, here it is,’ and I asked him about searching the car and he said he didn’t know why I should, and I told him that when he didn’t have the title and no proof of ownership the car could be impounded until proper title was brought up to show who owned it and during that time we would get a warrant to search it if necessary, and he said if that was necessary to go ahead and search, and I pulled up this seat and dropped it back (here the whisky was found) and told him he was under arrest. * * *” (Parenthesis our own.) .

On cross-examination, Officer Mansfield testified as follows:

“Q. Did you arrest him when he. handed you that third pint? A. No, sir. Q. You didn’t place him under - arrest? A. No, sir. Q. Or give him any indication that he was under arrest at that time? A. Not so far as telling him, no. * * * Q. Now, you had no permission to go in that automobile? A. Any other than his. Q. What permission did he give you? A. When we discussed this title and the impounding of the car and I told him what could happen, he says, ‘In that case, why you are allowed to search the car.’ ”

It is pertinent to add, in this regard, that subsequent investigation disclosed that the tag on the defendant’s automobile was a proper license and the fact of ownership was as he disclosed to the officers on the occasion in question.

Officer Mount’s testimony is to the effect that he remained in the patrol car until after Mr. Graham was placed under arrest. His testimony is inconsistent and in conflict with that given by Officer Mansfield and is therefore of little value under the circumstances, except that no arrest was made until after the search.

Based upon the foregoing evidence, the defendant contends that the search and seizure was unlawful and in violation of his constitutional rights under the Fourth Amendment to the United States Constitution, which reads in part as follows:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, * *

And, also, in violation of the Constitution of. Oklahoma, art., 2, §30, of the Bill of Rights, which reads in part as follows:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches or seizures shall not be violated; * *

These provisions, this court has held in numerous decisions, protect the individual in his person, his home, and his property, from invasion through unbridled and unrestrained executive or administrative will. Edwards v. State, 83 Okla. Cr. 340, 177 P. 2d 143; Gore v. State, 24 Okla. Cr. 394, 218 P. 545; Best v. State, 32 Okla. Cr. 89, 240 P. 159; Keith v. State, 30 Okla. Cr. 168, 235 P. 631; State v. Coburn, 68 Okla. Cr. 67, 95 P. 2d 670. Likewise, in Edwards v. State, supra, this court said:

“Moreover, it has also been held that the protection against unlawful search and seizure extends to all equally, those justly suspected or accused, as well as to the innocent. Wallace v. State, 42 Okla. Cr. 143, 275 P. 354.”

This constitutional inhibition does not prevent all searches and seizures but only those that are unreasonable and in violation of law. To prevent the abuse of the right to search and seizure, the foregoing provisions of the Constitution must be strictly construed. But, that does not mean that they should be so strictly construed as to thwart the reasonable and proper efforts of officers of the law to protect and prevent crime. However, to exercise the right of search and seizure, officers must conduct themselves in a manner supported by the law. These principles apply to searches made with or without a warrant and to automobiles as well as private dwellings. Edward v. State, supra; Perry v. State, 72 Okla. Cr. 149, 114 P. 2d 185; Lamb v. State, 59 Okla. Cr. 360, 60 P. 2d 219; Bowen v. State, 50 Okla. Cr. 36, 295 P. 623. In Edwards v. State, supra, this court said:

“One suspected of committing crime, under the law has a right to demand that the officers obtain a search warrant before a search is made of either Ms premises or his automobile. This constitutional immunity, however, is a personal privilege and may be waived. Short v. State, 48 Okla. Cr. 320, 290 P. 934; Cook v. State, 44 Okla. Cr. 226, 280 P. 626; Baker v. State, 35 Okla. Cr. 62, 248 P. 846; Gaines v. State, 28 Okla. Cr. 353, 230 P. 946; Boswell v. State, 26 Okla. Cr. 116, 222 P. 707; Hurst v. State, 25 Okla. Cr. 102, 219 P. 151.”

To establish a waiver, however, in the same case just quoted, it was said:

“It is fundamental that a waiver must be proved by the party alleging it, 63 C. J. 309. This proof must be clear and convincing, that the waiver was a free and voluntary act, as was said by Judge Barefoot in Pritchett v. State, 78 Okla. Cr. 67, 143 P. 2d 622, and by Judge Jones, in Dawson v. State, 83 Okla. Cr. 263, 175 P. 2d 368.”

The record herein discloses that this search and seizure was made without a search warrant. Moreover, it discloses that the search was not made incident to an arrest, based upon the commission of a felony. Therefore, the search and seizure could only be supported on the basis of being made as an incident to a lawful arrest for a misdemeanor committed in the presence of the officers or by voluntary waiver of the defendant’s constitutional right to require a search warrant. Under the record as herein made, all parties agree that there was no arrest until after the liquor was seized. The record is clear that at no time did the officer attempt to make a lawful arrest for failure to comply with any provisions of the law, such as the defendant’s failure to possess a certificate of registration. Neither did the officer seek to impound the automobile (all of which they might have done under Title 47, O. S. 1941 §22.23 (e); and §22.4 and §357; and §366 of the Statute). It is clear in the court’s mind that the officers abandoned the idea of making an arrest for failure to present a certificate of registration and any idea of impounding the automobile for failure to possess the said certificate until it became essential as an adjunctive instrument for the search and seizure. It is apparent that they believed the defendant’s explanation of his inability to produce the same. If not, why then did they not arrest the defendant for his failure to present the certificate of registration? If not, why did they not impound the car, if they, thought the facts justified it? It is apparent-that they were acting merely upon a suspicion that maybe he possessed whisky. It is likewise apparent that that was all they were after and that they were willing to make an unlawful search to satisfy their suspicions. This conclusion is substantiated by the fact that the officers made no arrest for failure to possess the registration certificate and no mention of their power to impound the automobile at that stage of the proceedings, but, still acting on the basis of suspicion, Officer Mansfield asked to see the inside of the trunk of the car. With this request, the defendant complied. Nothing being found there, and still acting upon suspicion, and not upon a lawful arrest, the officer asked for permission to search the car. This being refused, he then for the first time i*esorted to his power to impound the automobile, as a threat to obtain from the defendant an involuntary consent to search the car. It is therefore apparent that the only basis upon which this search and seizure could be sustained is that upon the ground of waiver. The sole question then is, “Does this record support a waiver by voluntary consent?” Do the facts in the case at bar constitute a waiver of the constitutional right to require a search warrant? The expression by the defendant, “It looks like you are running things, go ahead and search”, after being faced with the threat of having his automobile impounded, in our opinion constitutes nothing more than an expression of intention not to resist the officer’s exercise of authority in making the search and seizure. It was an acquiescence in regard to the supremacy of the law. It was an involuntary consent, obtained under threat of impounding defendant’s car. Such a consent does not constitute a waiver, as recognized by this court. In Pritchett v. State, 78 Okla. Cr. 67, 143 P. 2d 622, the defendant said, “You do not have to have a search warrant, just go ahead.” In Smith v. State, 34 Okla. Cr. 434, 246 P. 1109, the defendant said, “Go ahead and search, there is no whisky here.” In both of the foregoing cases the court held:

Such a statement is not to be construed as an invitation to search but rather as a statement of the intention hot to resist such search.

In Denton v. State, 62 Okla. Cr. 8, 70 P. 2d 135, the. defendant’s waiver was based upon the statement, “That’s just fine and dandy, come right ahead”, and in Perry v. State, supra, Judge Jones quoted from Evans v. State, 34 Okla. Cr. 173, 245 P. 912, wherein the court said:

“A private conveyance may not be searched on suspicion without a search warrant.”

In Bowen v. State, supra, this court held:

“A search of an automobile without a search warrant and not as an incident of a legal arrest, not upon any probable cause of the commission of a felony, but upon a mere suspicion,- is in violation of article 2, §30, State Const., and evidence obtained by such a search is inadmissible.”

' In Jones v. State, 82 Okla. Cr. 91, 166 P. 2d 443, this court held:

“Whether a search of or seizure from an automobile without a warrant is unreasonable, within the meaning of the constitutional provision forbidding unreasonable searches and seizures, is a judicial question to be determined in each case, viewing all facts and circumstances under which the search or seizure was made.

“A search of an automobile without a search warrant and not as an incident of a lawful arrest, and not on any probable cause of the commission of a felony, but on mere suspicion, violates the constitutional provision forbidding unreasonable searches or seizures, and evidence obtained by such a search is inadmissible.”

In the case at bar, it is clear that there was no warrant upon which to predicate the search and seizure and that the search and seizure was not incident to a lawful arrest. Notwithstanding the fact that the state seeks to support the seizure herein by the foregoing statutes, relative to the requirement of requiring the possession of the certificate of registration and the power to impound an automobile when the owner does not produce the same when request therefor is made by highway patrolmen. In this connection, we believe it was the intention of the Legislature that the statutes, sought to be relied upon by the state with reference to possession of certificate of registration and impounding of an automobile, were only a means of enforcing the motor vehicle act. It was not intended as a means or instrument of justification of an unlawful search and seizure, nor as a shield behind which officers can hide until they have explored or justified their suspicions. Before a search and seizure, of intoxicating liquor, can be predicated upon the aforesaid statutes, a good-faith arrest must be made. No such situation appears from the record herein. The motion to suppress should have been sustained. We need not consider the other assignments of error.

The case is therefore reversed and remanded, with directions that the defendant be discharged.

BAREFOOT, F. J., and JONES, J., concur.


text:
    Ex parte JOHN O. STORY.
    No. A-10926.
    Nov. 5, 1947.
    (184 P. 2d 983.)
    John O. Story, per se.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   BAREFOOT, P. J.

This petitioner, John O.'Story, has upon numerous occasions filed in this court what he designates as “habeas corpus,” “petition in error;” “mandamus”, etc. We have been very lenient in permitting the filing of these petitions, and have considered all of them.

Petitioner was convicted in the district court of Bryan county of the crime of murder. He was convicted of murdering his wife by locking her in an outbuilding and setting fire to the same. He appealed his conviction to this court, and the judgment of the district court of Bryan county was affirmed. Story v. State, 73 Okla. Cr. 273, 120 P. 2d 387. In this case all of the questions raised by the petitioner in the actions since filed were passed upon by this court. Ex parte Story, 75 Okla. Cr. 367, 131 P. 2d 773; Ex parte Story, 80 Okla. Cr. 11, 156 P. 2d 154; Ex parte Story, 83 Okla. Cr. 426, 178 P. 2d 112.

The petition in the instant case raises the same questions. Petitioner has filed numerous affidavits and made statements with reference to the facts in his case. There is absolutely nothing to show that the judgment and sentence rendered by that court was void. The petition is wholly without merit. It was filed by the defendant himself as were all of the other petitions. The only relief that can be given petitioner is by the Pardon and Parole Board of this state. We have heretofore forwarded all affidavits and statements send to this court to that Board.

No further petitions will be filed in this case.

The writ is denied.