author: DOYLE, J.

text:
    DICK BULLARD v. STATE.
    No. A-9975.
    Dec. 3, 1941.
    (119 P. 2d 870.)

      W. H. Cooper, of Anadarko; for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, J.

This is an attempted appeal from a judgment of conviction rendered in the county court of Comanche county, on May 21, 1940, finding Dick Bullard guilty of unlawful possession of intoxicating liquor, with punishment assessed at 60 days’ confinement in the county jail and a fine of $150.

It appears that on February 7, 1940, the county attorney of Comanche county filed an information in the county court of said county charging Dick Bullard with the unlawful possession of 24 half pints and 16 pints of whisky.

The record shows that when the case was called for trial the defendant waived his right to a jury trial, and it was agreed by and between the parties to try the case to the court.

When the case was called for final submission, counsel for the state moved to dismiss the attempted appeal for want of jurisdiction.

An examination of the record discloses that judgment was rendered May 21, 1940, and the case-made and petition in error wasi not filed in this court until the 21st of November, 1940, six months after the rendition of said judgment. This being an attempted appeal from a judgment of conviction for a misdemeanor, the greatest length of time within which the appeal must be lodged in this court is 120 days from the date of the rendition of judgment. Section 3192, Sts. 1931, 22 Okla. St. Ann. § 1054.

The statute prescribing the manner in which an appeal can be taken is mandatory, and a failure to file the appeal in the appellate court within the time allowed by law is fatal to> the appeal. Green v. State, 7 Okla. Cr. 5, 120 P. 1037.

There is no provision of law which vests this court with discretion to hear and determine appeals on the merits when they are not taken within the time prescribed by statute. Newton v. State, 38 Okla. Cr. 217, 260 P. 84; King v. State, 68 Okla. Cr. 145, 96 P. 2d 95.

Case-made and petition in error not having been filed in the court within 120 days after the rendition of judgment, this being a misdemeanor conviction, the motion of counsel for the state to dismiss the attempted appeal must necessarily be sustained.

It is therefore ordered and adjudged that the appeal be dismissed and the cause is remanded to the trial court, with directions to enforce its judgment and sentence.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CLARENCE OWENS v. STATE.
    No. A-9926.
    Dec. 3, 1941.
    (119 P. 2d 871.)

      W. H. Cooper, of Anadarko, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   PER CURIAM.

The defendant, Clarence Owens, was charged by information in the county court of Caddo county, on January 11, 1940, with the offense of unlawful possession of intoxicating liquor, was tried, convicted, and sentenced to serve a term of 50 days in the county jail and to pay a fine of $225, and appeals to this court.

Petition in error and case-made were filed in this court on August 30, 1940. No brief has been filed in this case and noi oral argument presented.

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

We have examined the record and find that the information is sufficient to charge the offense of unlawful possession of intoxicating liquor. The defendant’s motion to suppress Hie evidence properly yas overruled, the evidence is sufficient to sustain the judgment and sentence, and the court’s instructions were applicable to the law and facts. On the record before us we have discovered no error which would warrant a reversal of the judgment, and it appears that the defendant was accorded a fair and impartial trial.

The judgment of the trial court is accordingly in all things affirmed.


text:
    SAM THOMPSON v. STATE.
    No. A-9924.
    Dec. 3, 1941.
    (119 P. 2d 872.)
    W. H. Cooper, of Anadarko, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   PER CURIAM.

The defendant, Sam Thompson, was charged by information in the county court of Caddo county, on March 29, 1939, with the offense of transporting intoxicating liquor, ivas tried, convicted, and sentenced to serve a term of 90 days in the county jail and to pay a fine of $100, from which judgment and sentence he appeals to this court.

Petition in error and case-made were filed in this court on August 30, 1940. No brief has. been filed in this case and no oral argument presented.

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

We have examined the record and find that the information is sufficient to charge the offense of transporting intoxicating liquor. The defendant’s motion to suppress the evidence properly was overruled, the evidence is sufficient to sustain the judgment and sentence, and the court’s instructions were applicable to the law and' facts. On the record before us we have discovered no error which would warrant a reversal of the judgment, and it appears that the defendant was accorded a fair and impartial trial.

The judgment of the trial court is accordingly in all things affirmed.


text:
    SAM THOMPSON v. STATE.
    No. A-9925.
    Dec. 3, 1941.
    (119 P. 2d 873.)

      W. H. Cooper, of Anadarko, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   PER CURIAM.

The defendant, Sam Thompson, was charged by information in the county court of Caddo county, on January 13., 1940, with the offense of unlawfully selling intoxicating liquor, was tried, convicted, and sentenced to serve a term of 60 days in the county jail and to pay a fine of $200, and appeals to thisi court.

Petition in error and case-made were filed in this court on August 30, 1940. As in the case of Sam Thompson v. State, 73 Okla. Cr. 242, 119 P. 2d 872, against this same defendant, there has been no brief filed nor oral argument presented. And as was stated in that case, under’ such circumstances, this court will not go into a careful examination of the evidence to determine whether or not the trial court erred in the admission or rejection of testimony. An examination of the record will be made for jurisdictional errors; and if no fundamental error appears, the judgment will be affirmed.

After an examination of the record, we find that the information is sufficient to charge the offense of selling intoxicating, liquor, the evidence is sufficient to support the judgment and sentence, and the court properly instructed the jury.

From the record, it appearing that there is no fundamental error and that defendant had a fair and impartial trial, the judgment of the lower court is affirmed.


author: JONES, J.

text:
    TOM MANN v. STATE.
    No. A-10092.
    Dec. 3, 1941.
    (119 P. 2d 879.)
    Holmes H. Colbert, of Sulphur, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Tom Mann, was charged by information in the district court of Murray county, on November 16, 1939, with the offense of unlawful possession of intoxicating liquors, second offense, was- tried, convicted, and sentenced to serve a term of two years in the State Penitentiary at McAlester and to pay a fine of |50 and costs, from which judgment and sentence he appeals to this court.

On October 20, 1941, the Attorney General filed a motion in this court to dismiss this appeal, stating1:

“That plaintiff in error herein has, Avithout leave of the court, left the State of Oklahoma and gone to Missouri and was indicted on July 11, 1941, by federal grand jury sitting in the Eastern District of Missouri and thereafter on Jnly 14, 1941, entered a plea of guilty in federal court in the Eastern Judicial District of Missouri and was sentenced to serve 244 days in' jail and fined $500.00. That said supersedeas bond filed in this case as required by Section 3196, O. S. 1931, as amended by Article 5, chapter 19 [17], Session Laws 1935, 22 Okla. St. Ann. § 1058, provided among other things that the plaintiff in error ‘shall not depart without leave of the court’ and that said, permission for plaintiff in error has not been granted by this court to leave the State of Oklahoma.”

Attached to the state’s motion to dismiss is a certified copy of the judgment and commitment of defendant in the- District Court of the United States, Eastern District of Missouri, Southeastern Division, which is in substance as set out in said motion to dismiss.

Defendant was not given permission by this court to leave the state; and this case, after being set for hearing upon the motion to dismiss! on November 13, 1941, was submitted upon the record and motion of the Attorney-General.

In Herring v. State, 71 Okla. Cr. 69, 108 P. 2d 193, 194, this court held:

“Where a defendant has been convicted and appeals from the judgment and sentence, this, court will not consider his appeal unless defendant is where he can be made to respond to any judgment or order which may be rendered or entered in the case, and, where he leaves the state and is convicted of crime in another state pending •the determination of his appeal, this court will on proper motion dismiss the appeal.”

See, also, Kilpatrick v. State, 71 Okla. Cr. 125, 109 P. 2d 514; Evinger v. State, 35 Okla. Cr. 12, 247 P. 416.

We are of the opinion that, under the holdings of this court, the defendant has waived his right to have his appeal in this case considered and determined.

The appeal is therefore dismissed.

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


text:
    JOE SCOTT v. STATE.
    No. A-9993.
    Dec. 3, 1941.
    (119 P. 2d 877.)
    Jim B. Barnett, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that Joe Scott, on the 11th day of May, 1940, in Oklahoma county did' have possession of 108 pints and 17 quarts of tax-paid liquor, with the unlawful intent to sell the same.

The record shows that when the case was called for trial the defendant waived his right to a jury trial, and' it was agreed by and between the parties to try the case to the court. The trial resulted in a conviction.

Motion for new trial was duly filed, presented and overruled.

On September 27, 1940, the court rendered judgment and sentenced the defendant to serve 30 days in the county jail and pay a fine of $50.

From the judgment the defendant appealed by filing- in this court on January 21, 1941, petition in error with case-made attached.

No' briefs have been filed and no appearance for oral argument made.

Where the defendant appeals from a judgment of conviction and no briefs in support of the petition in error are filed, and no appearance for oral argument made, we doi not consider it the duty of this court to go into a careful examination of the evidence to determine whether or not the trial court erred in the admission or rejection of testimony. This court will examine the record for jurisdictional errors, and finding no fundamental error the judgment will be affirmed.

An examination of the record discloses no jurisdictional or fundamental errors. As to the sufficiency of the evidence toi sustain the verdict, we think there can be no> reasonable doubt.

It appearing that the defendant was accorded a fair and impartial trial, the judgment of the common pleas court of Oklahoma county herein is affirmed.

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


text:
    ORVAL BOWMAN v. STATE.
    No. A-9877.
    Dec. 10, 1941.
    (120 P. 2d. 373.)

      R. N. Linville, of Elk City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Orval Bowman, was charged by information in the county court of Beckham county, on February 26, 1940, with the offense of transporting intoxicating liquor, was tried, convicted and sentenced to serve 60 days in the county jail and to pay a fine of $175, from which judgment and sentence he appeals to this court.

Counsel for defendant assigns as error the failure of the trial court to sustain his motion to suppress thel evidence.

The affidavit for the search warrant states that whisky isi being' manufactured, etc., in violation of the law by Leon Bowman and that said intoxicating liquors: are being manufactured, etc., on certain positively described premises, that the premises, are not a private residence, but a place of public resort used as a place of storage for intoxicating liquors, showing probable cause for the above statements, and prays “that a search warrant be issued to the sheriff or any constable of Beckham county commanding him to search the premises and seize all liquors therein and otherwise proceed according to law.”

The search warrant sets out the description of the property contained in the affidavit, stating that intoxicating liquors are being manufactured, etc., on those premises by “Leon Bowman or a person unknown,” in violation of law, and commands the officer “to search the premises above described and designated and to' seize all such liquors there found.”

Defendant contends that the search warrant is invalid for the reason that it states that the liquors were being kept by “Leon Bowman or a person unknown”, while the affidavit stated that the liquors were being kept by “Leon Bowman,” and for that reason the search warrant goes beyond and is not in conformity with the complaint.

Defendant’s counsel, in his brief, cites Miller v. State, 34 Okla. Cr. 103, 245 P. 68, which states that a warrant for search in describing the place to be searched shall conform to the description of the place described in the affidavit.

In Cahill v. State, 38 Okla. Cr. 236, 260 P. 91, this court said that where no person is to be searched, but merely a place, it is not essential that the owner or occupant of the premises be named in the affidavit and search warrant, unless the name is required as a part of the description.

This court held in Denmark v. State, 71 Okla. Cr. 95, 108 P. 2d 550, that:

“Where a search warrant is issued for the purpose of searching a person, such person should be particularly described, and if his name is. known it should be stated in the warrant. If a search warrant is issued for the search of a, place, the place must in like manner' be particularly described in the affidavit and warrant, and the name of the owner should be set out, or he should be described as unknown, according to the facts. If the place is particularly described, it is not absolutely essential that the name of the owner or occupant be stated.” Crim v. State, 68 Okla. Cr. 390, 99 P. 2d 185; Ross v. State, 38 Okla. Cr. 252, 260 P. 90; State v. Skelton, 36 Okla. Cr. 377, 254 P. 754.

Since the affidavit and search warrant in this case are for the search of specifically described premises, only, and not for the search of a person, the name of the owner or occupant of such property is not so absolutely essential to the affidavit and search warrant as to invalidate them, and the search would have been legal without nam-ingv Leon Bowman. In this search warrant for property, the adding of the phrase “or a person unknown”, which was not included in the affidavit, after the name of Leon Bowman, is not a material variance from the affidavit for such search warrant; and we are of the opinion that the search warrant ivas valid for the search of the premises described.

Both the state and the defendant have extensively briefed the above questions, concerning the validity of the search warrant, although, as far as this particular defendant is concerned, we dot not see how the search warrant can affect the question of the legality of the search of his person, as it is admitted that the search warrant was issued for premises which were neither owned nor in the possession of the defendant.

Defendant further contends that the evidence was inadmissible for the reason that the search of defendant was illegal, since the officer had no search warrant for defendant, no warrant for his arrest, and no misdemeanor was committed in the presence of the officer.

On February 24, 1940, D. W. Young, a deputy sheriff of Beckham county, took the above search warrant and went to a garage on property adjoining the premises (a filling station) described in the warrant. He saw defendant, Orval Bowman, come out of the building, go> to the back, and return. Defendant’s hand was stuck in his coat pocket, and the officer could see that he was carrying some object. When Young then advanced toward defendant, defendant started to- leave the premises, but stopped upon the order of Young, who jerked his hand out of his pocket, revealing the neck of a bottle. The officer held him by the arm and led him to the door of the filling, station, where he served the search warrant on Whitey Long, the proprietor, and searched defendant, who had one and one-half pints of whisky.

The deputy sheriff testified as, follows:

“Q. You did not have a search warrant for Orval Bowman? A. No, sir. Q. You did not have a warrant for his arrest? No, sir. Q. He did not do anything that caused you to arrest him until you took his hand out of his pocket and you saw this bottle? A. No, sir.”

In Keith v. State, 30 Okla. Cr. 168, 235 P. 631, it was held:

“No search of the person or seizure of any article found thereon can be made on mere suspicion that the person is violating the prohibitory liquor laws in having intoxicating liquor in his possession, or without a search warrant, unless: and until the alleged offender is in cus:-tody under a warrant of arrest, or shall be lawfully arrested without a warrant as authorized by law;.”
“Where a bottle, later found to contain intoxicating liquor, was taken from the person of defendant forcibly and against his will, and without a search warrant for his person, or a warrant for his arrest, this constituted an unlawful and therefore an unreasonable search and seizure under section 30, art. 2, of the state Constitution [Okla. St. Ann.]”

See, Barnett v. State, 71 Okla. Cr. 118, 109 P. 2d 243, and cases cited therein.

Orval Bowman was not the owner' or in possession of the premises for which the search warrant was issued. The officer had no warrant for the search or arrest of defendant, Orval Bowman, who1 was. searched and arrested on suspicion of committing a misdemeanor.

Because the evidence in this case was obtained by an unlawful arrest and search of defendant, the court erred in overruling defendant’s motion to suppress the same.

This case is reversed and remanded to the trial court, with instructions to1 dismiss.

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


text:
    STATE v. J. L. SEIDENBACH et al.
    No. A-9710.
    Dec. 10, 1941.
    (120 P. 2d 377.)
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for plaintiff in error.

      M. A. Breckinridge and Sam’l A. Boorstin, both of Tulsa, for defendants in error.
   DOYLE, J.

On March 20th, 1987, an action was commenced in the court of common pleas, Tulsa county, by filing an information, entitled: “State of Oklahoma ys. J. L. Seidenback, Carl Seidenback and L. H. Thrall, defendants.” To this information said defendants interposed a general demurrer. The record shows that on January 26, 1939, the state confessed said demurrer to be well taken; thereupon the court sustained the demurrer and directed that a new information be filed. On January 28, 1939, an information, entitled: “Amended Information for obstructing work of Labor Officials,” was filed in said court. The defendants filed demurrer to the amended information. On June 10, 1939, the court ordered that the demurrer to the amended information be sustained. Sustaining the demurrer' the court filed a -written opinion covering 10' typewritten pages. To the ruling of the court the state, plaintiff in error herein, duly excepted, and an appeal was attempted to be taken upon the question reserved by the state, by filing in this court on August 9, 1939, a petition in error with a duly certified transcript of the record proper attached.

This case has been set for oral argument at several terms of this court, and has been continued from term to term on motion of counsel for the state, and no brief in support of the petition in error has ever been filed.

On October 24th, 1941, counsel for the state filed what is entitled:

“Statement of Plaintiff in Error on Submission of Cause.” Which reads:
“This Court’s attention is called to the fact that although this appeal was filed on August 9, 1939, no further proceedings have been had in connection therewith, and the Case-made and record have been for many months misplaced and lost, bnt said record has been recently secured by the Attorney General and returned to the Clerk of this Court. That after an examination of the record and the memorandum decision of the Court thereon the plaintiff in error feels that said appeal should be submitted on the record, and plaintiff in error1 does not desire to file any brief herein, and respectfully submits the question of law to this Court, raised under the record, for final decision.
“Respectfully submitted,
“Mac Q. Williamson,
“Attorney General
“J. Walker Field,
“Assistant Attorney General.”

The right of the state to take an appeal to this, court upon any question of law reserved by the state during the trial, rests upon statutory authority, and that statutory authority cannot be enlarged by construction. Section 3191, Sts. 1931, 22 Okla. St. Ann. § 1053.

Where the trial court sustains, a demurrer to> an information the judgment is a “final judgment”, unless' the court being of opinion that the objection on which the demurrer is sustained may be avoided by a new information directs that a new information be filed, and if the court does not direct the case to be further prosecuted, the defendant, if in custody, must be discharged. 22 Okla. St. Ann. §§ 508, 509. State v. Gray, 71 Okla. Cr. 309, 111 P. 2d 514.

Upon the record before us it appears that the state, plaintiff in error, has abandoned its appeal by failing to properly prosecute the same as required by statute and the rules of this court, providing for filing of briefs or oral argument.

However, it affirmatively appears from the record that no written notice of appeal was ever served upon the defendants, either in person, or, “by posting up a notice three weeks in the office of the clerk of the district- court,” as required by statute. § 3193, Sts. 1931, 22 Okla. St. Ann. § 1055. (Act amending this section approved June 4, 1941. 22 Okla. St. Ann. § 1055.) Neither of these methods were complied with by the county attorney or the Attorney General.

Under this section notices of appeal and proof thereof, given and made in the manner and within the time prescribed for perfecting a.n appeal, is jurisdictional. State v. Gray, supra; State v. Foster, 55 Okla. Cr. 450, 32 P. 2d 750; State v. Simmons, 43 Okla. Cr. 404, 279 P. 524.

Under the statute the notice to the clerk of the trial court stating that the appellant appeals from the order or judgment and a, similar notice to the defendant, given and made in the manner and within the time prescribed for perfecting an appeal, are the prerequisite steps to conferring on this court jurisdiction to hear and determine the question reserved by the state. When the record in this court fails to show notice and proof of service made in the manner required by the statute, the purported appeal will be dismissed for want of jurisdiction.

Upon the record ¡before us it is apparent that this court has never acquired jurisdiction of the attempted appeal in this case. It is therefore considered and adjudged that the purported appeal from the court of common pleas of Tulsa county be and the same is hereby dismissed.

It is so ordered.

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


author: BAREFOOT, P. J.

text:
    MATTHEW WEEDEN v. STATE.
    No. A-9886.
    Dec. 10, 1941.
    (120 P. 2d 379.)
    Fred W. Martin, of Wagoner, for defendant.
    Mac Q. Williamson, Atty. Gen., and E. J. Broaddus, Co. Atty., of Wagoner, for the State).
   BAREFOOT, P. J.

Defendant, Matthew Weeden, was charged with the crime of rape in the first degree in Wagoner county, was tried, convicted, and his punishment assessed at 99- years in the penitentiary, and he has appealed.

Gounsel for defendant were appointed by the court to represent defendant. They tried his case and have appealed the same to- this court and have orally argued the same. They have faithfully discharged their duties as attorneys and officers of the court. The case has not been briefed either .by the defendant or the state for the reason that the only question raised is as to the sufficiency of the evidence to sustain the verdict. The punishment was assessed by the jury.

The record reveals that defendant was charged with the crime of rape in the first degree against his; twelve-year old daughter, Edna May Weeden. It is alleged in the information:

“The said Matthew Weeden, then and there being a male person over eighteen years of age, and about 43 years of age, did, then and there, willfully, wrongfully, unlawfully and feloniously, against the will of Edna May Weeden, rape, ravish and carnally know, and have sexual intercourse with, said Edna May Weeden, she, the said Edna May Weeden, then and there being a female person under the age of 14 years, and the age of 12' years, and not the wife of said Matthew Weeden, and being the daughter of said Matthew Weeden.”

It was charged that the act occurred on May 25, 1939. The statute upon which this charge was based is Oklahoma Statutes 1931, section 2518, O. S. A. Title 21, § 114, which is as follows:

“Rape committed by a male over eighteen years of age upon a female under the age of fourteen years, or incapable through lunacy or unsoundness of mind of giving legal consent; or accomplished with any female by means of force overcoming her resistance, or by means of threats of immediate and great bodily harm, accompanied by apparent power of execution, preventing such resistance, is rape in the first degree. In all other cases rape is of the second degree.”

A short statement of the evidence is all that is nec- . essary. It revealed that the defendant had served three different terms in the penitentiary, two> in the Oklahoma penitentiary for burglary and one in the Missouri penitentiary for burglary and larceny. It further revealed, according to the evidence of the prosecuting witness, Edna May Weeden, that her father began a course of conduct toward her when she was nine years of age and continued up until May 25, 1939, when she was twelve years of age. It is unnecessary to go into the details of this evidence. Suffice it to say that he had intercourse with her upon numerous occasions. That he at different times made arrangements which gave him an opportunity to be separate and apart with her, and the evidence of prose-cutrix is corroborated in many respects by members1 of the family and other disinterested witnesses. The doctor who> examined her’ when she reported to the county attorney corroborated her as to the condition he found at the time of the examination. Defendant took the witness stand and denied ever having wronged the prosecutrix or any other member of his family, and denied the truth of the statements made by other witnesses. However, he corroborated the prosecutrix in much of her testimony as to their being present at different locations where she said the acts occurred. He also' produced two other witnesses who testified they had seen the prosecutrix in a compromising position with other boys. This was also denied. His defense was that the members of his family were seeking to' get rid of him and therefore this prosecution was instituted. This was also' denied by different members of the family.

It will thus, be seen that there was a direct conflict in the evidence. Under the often announced rule of this court, this was a question for the jury to1 decide. They were in a much better position ton pass upon this: question than is: an appellate court,. There is ample proof to sustain the judgment and sentence. The testimony of the prosecutrix is amply corroborated. This court has adhered to' the rule that it is, unnecessary to corroborate the evidence of the prosecutrix in order to' sustain a verdict in this class of cases. It is only when the testimony is conflicting and so unreasonable that we have held that it is necessary that it be corroborated. See Varner v. State, 69 Okla. Cr. 294, 102 P. 2d 615, where the previous cases of this court are cited and reviewed. Work v. State, 63 Okla. Cr. 433, 75 P. 2d 1161. The evidence in this case does not bring it within that rule. In the case of Wood v. State, 72 Okla. Cr. 364, 116 P. 2d 728, this court held that a father could be guilty of rape of his own daughter. Wood v. State, 72 Okla. Cr. 347, 116 P. 2d 734.

The judgment, and sentence of the district court of Wagoner' county is therefore affirmed.

JONES and DOYLE, JJ., concur.


text:
    BEA CLAPP v. STATE.
    No. A-9896.
    Dec. 10, 1941.
    (120 P. 2d 381.)

      Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Sim T. Carman, Co. Atty., of Paw-huska, for the State.
    Jesse J. Worten and 0. K. Templeton, both of Paw-huska, for defendant.
   BAREFOOT, P. J.

Defendant, Bea Clapp, was charged with the crime of murder in Osage county, was tried, found guilty of manslaughter in the second degree and sentenced to serve a term of two years in the penitentiary, and has appealed.

For reversal of this case it is first contended that the court erred in permitting, two witnesses to testify for the state. These witnesses were Dr. R. O. Smith and Thelma Reeves, a nurse, who1 was employed at the hospital to which defendant was taken immediately after the collision which was the cause of this prosecution, it being! contended that Dr. Smith was the physician of defendant and that Thelma Reeves; was assisting him, and that under the provisions of the statutes; of this state they were incompetent to testify against him. The statute upon which this contention is based is Oklahoma Statutes 1931, section 272, O. S. A., Title 12, § 385, which is as follows:

“The following persons shall be incompetent to testify: * * *
“6. A physician or surgeon concerning any communication made to him by his patient with reference to any physical or supposed physical disease, or any knowledge obtained by a personal examination of any such patient: Provided, That if a person offer himself as a witness, that is to be deemed a consent to the examination; also, if an attorney, clergyman or priest, physician or surgeon on the same subject, within the meaning of the last three subdivisions of this section.”

The evidence of Dr. Smith was that he was the physician of defendant and that the defendant paid him for his services, and that the relationship of doctor and patient existed. Thelma Beeves was the nurse who was under the direction of Dr. Smith. Counsel for defendant thoroughly briefed this question, citing many authorities which substantiate his contention that the two witnesses above named were incompetent witnesses to testify as to the defendant’s being under the influence of liquor or that they smelled liquor upon his breath when he was brought to the hospital for treatment. The Attorney General in his brief for the state does not attempt to' justify the admission of this evidence as a proposition of law, hut contends that, as defendant was charged with the crime of murder and was only convicted of the crime of manslaughter in the second degree, the question as to whether defendant was under the influence of intoxicating liquor at the time charged in the information was eliminated, and that even though this evidence was1 inadmissible, it was harmless error and defendant cannot complain. Buling Case Law, vol. 28, p. 535, sec. 124; Corpus Juris, vol. 70, p. 439, sec. 588; 22 A.L.R. 1217, Note; 79 A.L.R. 1131, note; Chicago, S. B. & L. S. R. Co. v. Walas, 192 Ind. 369, 135 N. E. 150, 22 A.L.R. 1212; New York, C. & St. L. R. Co. v. Shields, 185 Ind. 704, 112 N. E. 762; Owens v. Kansas City, C. C. & S. J. Ry. Co., Mo. App., 225 S. W. 234; Finnegan v. Sioux City, 112 Iowa, 232, 83 N. W. 907; Kling v. City of Kansas, 27 Mo. App. 231; Smart v. Kansas City, 208 Mo. 162, 105 S. W. 709, 714, 14 L.R.A., N.S., 565, 123 Am. St. Rep. 415, 13 Ann. Cas. 932; Howe v. State, 34 Okla. Cr. 33, 244 P. 826; Williams v. State, 65 Okla. Cr. 336, 86 P. 2d 1015; Freeburg v. State, 92 Neb. 346, 138 N.W. 143, Ann. Cas. 1913E, 1101.

The record in this case reveals that defendant was charged with the crime of murder. Under the many holdings of this court, the trial judge presented instructions to the jury on manslaughter in the first degree and manslaughter in the second degree as included offenses. Steeley v. State, 17 Okla. Cr. 252, 187 P. 821; Palmer v. State, 17 Okla. Cr. 220, 187 P. 502; Ballard v. State, 12 Okla. Cr. 277, 154 P. 1197; Kent v. State, 8 Okla. Cr. 188, 126 P. 1040; Welborn v. State, 70 Okla. Cr. 97, 105 P. 2d 187; Cooper v. State, 61 Okla. Cr. 318, 67 P. 2d 981; Tucker v. State, 66 Okla. Cr. 335, 92 P. 2d 595.

It is the duty of the court to1 determine as a matter of law whether the evidence is such as to' justify the submission of both or either of these issues to the jury. This duty may sometimes be extremely difficult, and if there is any doubt about the matter in the mind of the court, the lower degree of the homicide should be submitted for the consideration of the jury. The jury should fix the degree in their verdict. In the instant case there was evidence on behalf of the state to submit to the jury the question of murder. The charge in the information was: “* * * did then and there while so engaged in the commission of a felony, to wit: the crime of driving an automobile upon a public highway while under the influence of intoxicating liquor. * * *”

Oklahoma Statutes 1931, section 2216, O. S. A. Title 21, sec. 701, provides:

“Homicide is murder in the following cases. * * *
“3. When perpetrated without any design to effect death by a person engaged in the commission of any felony.”

Having come to the conclusion that the court was correct under the facts in the instant case in submitting an instruction on manslaughter in the second degree, we now consider the question of the legal effect of the verdict and whether a defendant can except to a verdict of manslaughter in the second degree when charged with murder by reason of the introduction of evidence that was incompetent insofar as the. charge of murder was concerned. We shall review some of the prior decisions of this court- which establish the rule that has been followed by the court in this jurisdiction. One of the more recent decisions is the case of Walters v. State, 57 Okla. Cr. 424, 48 P. 2d 875, 876. This is a case growing out of an automobile collision. As in the case at bar, the defendant- was charged with murder, was convicted of manslaughter in the second degree and sentenced to serve a term of four years in the State Penitentiary. The fact's were very similar to the facts here, the state contending that the defendant was under the influence of intoxicating liquor at the time and was driving in a reckless and careless manner on the wrong, side of the highway. The evidence was conflicting on both of these propositions, as in the instant case. Defendant contended that, the court having instructed on murder and both degrees of manslaughter, the jury did not believe the evidence tending to prove murder or manslaughter in the first degree and that the evidence was insufficient, therefore, to sustain the verdict of manslaughter in the second degree. The court, in an opinion by Judge Edwards, after citing the statutes on murder' and manslaughter in the first and second- degree/ said:

“This section has, been many times, construed and applied by this, eo-urt, and it is, settled law the jury must fix the degree of the crime of which a defendant is convicted when the court submits- to them the different degrees. The verdict will not be disturbed on the ground the jury found defendant guilty of a lower degree of the crime charged than that established by the evidence. It sometimes happens the jury, in arriving at a verdict, does so by a compromise and fixes a lower degree than the undisputed evidence may disclose. Some states have reversed convictions, under such circumstances, but, with! two exceptions, this court has held the error is1 in favor of the accused and is not ground for a new trial. The exceptions are: Leseney v. State, 13 Okla. Cr. 247, 163 P. 956, and Lovejoy v. State, 18 Okla. Cr. 335, 194 P. 1087. These cases have been criticized and have not been followed. Irby v. State, 18 Okla. Cr. 671, 197 P. 526; Taylor v. State, 44 Okla. Cr. 58, 278 P. 1117. We are satisfied the law on this point is correctly stated in the following cases: Lytton v. State, 12 Okla. Cr. 204, 153 P. 620; Lazenby v. State, 18 Okla. Cr. 83, 192 P. 1103; Smith v. State, 20 Okla. Cr. 301, 202 P. 519; Wilmoth v. State, 20 Okla. Cr. 453, 203 P. 1055, 21 A.L.R. 590; Inman v. State, 22 Okla. Cr. 161, 210 P. 742; Taylor v. State, supra; Berry v. State, 54 Okla. Cr. 154, 18 P. 2d 285.”

The case of Berry v. State, supra, is very similar to the case at bar. Other late cases by this court are Philby v. State, 64 Okla. Cr. 1, 76 P. 2d 412; Wilson v. State, 70 Okla. Cr. 262, 105 P. 2d 789, 792. It is unnecessary to quote from the cases above cited. It is true that the homicide and manslaughter statutes of this state were in force long before the advent of the automobile. They have been construed both before and since. The construction that has been placed upon them, is such that, when a citizen drives an automobile in an unlawful manner in contravention of those statutes and is guilty of culpable negligence as defined in the many cases here cited, is prosecuted by the officers of this state, and a jury returns a verdict of guilty, and the punishment is assessed at a term in the penitentiary, it is as stated in the case of Wilson v. State, supra:

“While an automobile may not be a deadly and dangerous instrument in the hands of a careful and prudent person, but when in the hands of one who* handles it in a careless and reckless manner, without regard to the rights of others, it becomes a, dangerous instrumentality. The great number of high-powered automobiles upon the streets and highways of this state demand a respect for the rights of others, and a greater responsibility for those who drive them. It is too late to cry ‘accident’ after one has been guilty of culpable, and criminal negligence and others have been injured or killed. The time to think of this is before the collision occurs. Many citizens of this state will, no doubt, be prosecuted in the future, and be convicted, who had no intention of injuring or killing anyone. Why not ‘slow down’ and ‘look and listen’ before it is too late.”

The statute defining manslaughter in the second degree is Oklahoma Statutes 1931, section 2228, O. S. A. Title 21, section 716, which is as follows:

“Every killing of one human being by the act, procurement or culpable negligence of another, which, under the provisions of this chapter, is not murder, nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree.”

In construing this statute it has been held in Clark v. State, 27 Okla. Cr. 11, 224 P. 738:

“ ‘Culpable negligence’ is the omission to do something which a reasonable, prudent, and honest man would do, or' the doing of something which such a man would not do, under the circumstances surrounding the particular case.”

Also; in Nail v. State, 33 Okla. Cr. 100, 242 P. 270, 272, it is: said:

“By no means every instance where one person is injured or killed by a vehicle driven by another do the circumstances constitute a crime. There must, be negligence rising to the degree of criminal or culpable negligence. The culpability of a defendant is a question of fact for the jury, and the test is: Do the acts charged as criminal show a degree of carelessness amounting to a culpable disregard of the rights and safety of others, and did said acts cause the death of deceased? If so; it establishes a case of criminal negligence.”

See, also, Walters v. State, 57 Okla. Cr. 424, 48 P. 2d 875; Taylor v. State, 44 Okla. Cr. 58, 278 P. 1117; Philby v. State, 64 Okla. Cr. 1, 76 P. 2d 412; Wilson v. State; 70 Okla. Cr. 262, 105 P. 2d 789.

Under these decisions; and applying- the evidence, it is not for' this court to set aside the verdict of the jury upon a finding of fact where the evidence supports the finding.

The facts, as revealed by the record are, briefly, that defendant was an employee of the Cities Service Oil Company; that he was driving on state highway No-. 99 north out of the city of Hominy about 8 o’clock p. m., and just before entering the city of Wynona a collision occurred with defendant sideswiping a, car coming in the opposite direction and then colliding with a second car coming in the same direction and at about a distance of 80 yards from the first, car. There was a head-on collision between defendant’s car and the second car. As a result of this Burwyn Aldridge, who was riding in the car beside defendant, was killed.

The evidence as to defendant’s being under the influence of intoxicating liquor at the time of the collision was highly contradictory. The state presented two witnesses, Dr. Smith and Thelma Reeves, who testified that when they examined the defendant at the hospital they could smell intoxicating liquor on his breath, and Dr. Smith testified that in his opinion defendant was under the influence of intoxicating liquor. For the reasons above stated, the evidence of these witnesses, was incompetent.

The other two witnesses whoi testified with reference to this matter were two members of the State Highway Patrol. These officer’s did not arrive at the scene of the’ accident until some time after the collision had occurred and the parties had been removed to the hospital. After making an investigation at the scene of the accident, these two officers went to. the hospital and saw defendant. It was about two and one-half hours after the collision had occurred. They both testified that in their opinion defendant was under the influence of intoxicating liquor. They also testified they could smell whisky upon his breath. They based this upon the actions and conduct of defendant while they talked to him.

Hr. Robertson testified as follows:

“Well, from his. actions in general, he talked constantly, seemed different to a normal person, he was constantly calling me back into his room after I had gone in there and talked to him at first. I asked him if he had been drinking and he said he had, and I asked him what, I says Not that it makes any difference or a great deal of difference what you have been drinking, but how much have you been drinking,’ and he said, ‘I have been drinking Paul Jones whisky, noi beer whatsoever;’ just the very words that he used. I asked him how much he had had to drink, he said, well, he and his buddies drank about a pint.’ I went to leave the room and he called me back, and he asked me my name and I told him it was Robertson, and he called me Robert, I started to leave the room and he would jump up in the bed in a sitting position, with the nurse constantly trying to keep ■the bandage over his eyes; he called me back in there three or four times, and he asked me Robert if there was going to be any charge filed on him, and I told him just forget about that, I would talk to him later about it.”

Defendant produced a number of witnesses who testified in regard to this matter. Several of these witnesses were present at the scene of the collision and assisted in taking the defendant from the car and assisted in carrying him into* the hospital, and each of these parties testified they had at no time detected any action on the part of the defendant which caused them to believe he was under the influence of intoxicating liquor, nor could they at any time detect the odor of liquor on his breath or in the car in which he was driving. Other witnesses also testified that they had observed the defendant in the town of Barasdall about 4 p. m. before the accident occurred at 8:30 p. m., and that at that time he was not under the influence of intoxicating liquor. Several witnesses also testified that they examined the car of defendant at tlie time of the collision and that they found' a spike in the right front tire. The two state patrolmen testified that they examined the car and tire and did not see any spike or nail in it. Other witnesses testified that they saw the spike on the following morning when the car was in the garage.

Defendant, testifying in Ms own behalf, stated that he had been employed for six years by the Cities Service Oil Company at Barnsdall. That he was doing some work at his home on Saturday, the 23rd day of September, 1939. That he went by the house of deceased, Bur-wyn Aldridge, about 12:30 and that they went out to- a lease about two and one-half miles west of Barnsdall to repair an engine. A Mr. Harry Yeazey was in charge of the engine. That he worked there about an hour, and the deceased secured' a quart bottle with about half a pint of liquor therein. That the three each took two drinks out of the bottle. This was about 1:30- p. m. They then prepared sandwiches and coffee, and the three left the lease about 4 o’-clock p. m. and went to Barnsdall, where he saw the witnesses who testified that he was not under the influence of intoxicating liquor a.t that time.

They started to Wynona to collect some money from a Mr. Ingersoll, who owed some money to Mr. Yeazey. They did not find him at home and proceeded to- Hominy to look for him. They remained in Hominy until about 7:30 p. m., and the three started back toward Wynona. The collision occurred after 8 p. m. just as they were going into Wynona. He testified that he felt his car swerve as if he had a flat tire. That he was traveling about 35 miles per hour. That he saw the first car and his car crossed the center line, and that he sideswiped this car. That he tried to straighten it up, but it swerved first to the right and then to the left and went across the center line head-on into the second car, which was 80 yards behind the first car. Proof showed that the second car was moving very slowly. Defendant was injured, his kneecap being broken, and other injuries. Burwyn Ald-ridge, who- was his friend and who- was sitting beside him, was killed. The passengers- in the second car were not seriously injured. Defendant testified that he had drunk no' intoxicating liquors at any time since the two drinks taken on the lease about 1:30 p. m. The accident occurred between 8 and 8:30 p-. in.

From the above statement, it will be seen that the evidence was conflicting. Under the law this issue became a question of fact for the jury to decide, and having decided it in favor of the state, this verdict and judgment and sentence will not be set aside by this court on appeal, where there is a conflict in the evidence. It is only when the evidence wholly fails to' support the verdict or judgment that the same will be set aside.

This case again brings forcibly to our attention the liability of those who drive automobiles in this state in a manner contrary to the laws and statutes of this state. The thought, that it is necessary for one to- be under the influence of intoxicating liquor before he may be convicted of a felony and that we have no statute limiting the speed one may travel in this state, is wrong. The murder, manslaughter in the first and second degree, driving while under the influence of intoxicating liquor, and the reckless driving statutes of this state were enacted for the protection of the citizens of this state. When strictly enforced, those who fail to' comply with them may find themselves: confronted with charges which will ultimately cause them to enter a felon’s cell, even though they never thought they would violate the criminal laws of this state. Why not do> as most drivers of automobiles do, “look and listen”, before it is too late.

For the reasons above stated, the judgment and sentence of the district court of Osage county is affirmed.

JONES and DOYLE, JJ., concur.


text:
    JOHN O. STORY v. STATE.
    No. A-9836.
    Dec. 17, 1941.
    (120 P. 2d 387.)

      Newman & Phillips, of Durant, and Keith & Allen, of McAlester, for defendant.
    Mac Q. Williamson, Atty. Gen., Jess' L. Pullen, Asst. Atty. Gen., and Bill Steger, Co. Atty., of Durant, for the State.
   BAREFOOT, P. J.

Defendant, John 0. Story, was charged in the district court of Bryan county with the crime of murder, was tried, convicted and sentenced to serve a life term in the penitentiary, and has appealed.

This case is the outgrowth of a charge that defendant murdered his wife, Ethel Story, in Durant, Bryan county, on the 23rd day of August, 1938, by placing her in a certain outhouse located back of his residence and then setting fire to said building and burning her to death. The case-made was filed in this court on the 8th day of April, 1940. On the 10th day of October, 1940, application was made to this court to withdraw the case-made for the purpose of making certain corrections to the same, and an order was entered on the 17th day of December, 1940, permitting the withdrawal of the case-made “under the supervision of the trial court upon proper notice to the adverse parties.” A hearing was had by the trial court and the case-made as amended and corrected is now before us for consideration.

Several briefs have been filed by counsel representing defendant. Considering these briefs together, it may be stated that as grounds for reversal it is first contended that the court, erred in denying the motion for change of venue. This motion was based upon the circulation of newspapers in Bryan county containing articles about tbe case, and especially with reference to the circulation of a detective magazine upon the streets of the city of Durant which contained an article with reference to defendant and to the facts in this case. A copy of the magazine is now attached to the case-made. The article is one of fiction based upon defendant’s case. The record is very meager as to the exact facts with reference to the disposition of the motion for change of venue. When the case-made was sent back for correction under supervision of the trial court, the detective magazine was attached to the case-made and made a part thereof. The article contained therein was a write-up of this case and was very unfavorable to the defendant. About 500 copies of this magazine had been sold in the city of Durant before the trial. However, the record discloses that a special venire of jurors was selected from a section of the county other than from the city of Durant The record does not disclose the examination of any of the jurors on their voir dire examination, and there is nothing in the record to show that any member of the jury had read the article in the detective magazine or had ever1 heard of the same. There were allegations, in the motion for continuance by reason of certain articles that had appeared in the newspapers of Bryan county, but nothing in the record to- show what these articles were or that any of the jury had read any of the same. There was no affirmative proof on behalf of the defendant, and the burden was on him to show that there -was, bias or prejudice against him in Bryan county to the extent that he could not secure a fair1 and impartial trial in that county because of such bias and prejudice of the citizens of that county. It appears from the record that, when the motion for continuance was presented to the trial judge, he and the attorneys for the defendant and the county attorney retired to the chambers of the court and discussed orally the motion. No record was made. It was agreed among them that they would go back- into the courtroom, and if a jury could be secured that was satisfactory and no prejudice was- shown to exist among them, that the trial would be proceeded with, but that, if the court became convinced that an impartial jury could not be secured, he would grant the motion for1 change of venue. As far as the record is concerned, no other action was taken by defendant, and the jury was selected and the trial proceeded with. No evidence was. offered by defendant to support the allegations of his motion for change of venue, except the affidavits of three citizens of Durant that, in their opinion, defendant could not have a fair and impartial trial in Bryan county by reason of the bias, and prejudice of the citizens of that county. The county attorney submitted the affidavits of 30 citizens of the county who said that, in their opinion, no such prejudice existed, and that defendant could secure a fair and impartial trial in the county. Under the above facts and the rulings, of this court, this, was a matter within the sound discretion of the trial court. There is nothing in the record to show that this discretion was abused.

In the late case of Abby v. State, 72 Okla. Cr. 208, 114 P. 2d 499, in which the defendant was given a death penalty, we had occasion to discuss this question and referred to the previous authorities from this court which had established the rule with reference to when a change of venue should be granted. It is unnecessary to again review them. We have come to' the conclusion that the record does not sustain the motion and that the trial court did not err in overruling the same.

The second assignment of error is that the verdict is contrary to and is not supported by the evidence, it being- insisted that the evidence was circumstantial and that the death of Ethel Story was an accident. In this connection, it is insisted that the state failed to1 establish the corpus delicti. We have carefully read and reread the record in this case. The case was first submitted on briefs and oral arguments on the 29th day of January, 1941. After a careful consideration of the briefs and the record this court ordered that it be reargued, and this was done on the 23rd day of October, 1941. We have again carefully considered the record. The evidence to a great extent was circumstantial. The deceased, Ethel Story, wasi burned to death in a, small outbuilding? at the home of herself and defendant in Durant, Bryan county, on the night of the 23rd day of August, 1938’, at about 11 p.m. It is unnecessary to give a detailed statement of the evidence. As above stated, it is highly circumstantial. We have carefully studied it and have come to the conclusion that it was sufficient to1 establish the fact of the death of deceased, Ethel Story, and that the defendant was guilty of the crime as charged. This conclusion, of course, is based upon the fact that defendant was tried before a jury, and the jury, after hearing the evidence, returned a verdict of guilty. This court does not sit as a trial court, and it is not for us to say what our verdict would have been had we been members; of the jury, but our duty ends when we determine whether there is sufficient evidence to sustain the verdict. This court has always followed the rule that the verdict of the jury will not be set aside where there is a conflict in the evidence or where the evidence is sufficient to sustain the same. It is only when there is insufficient evidence to sustain the verdict that it will be set aside. Cooper v. State, 61 Okla. Cr. 318, 67 P. 2d 981; Phillips v. State, 64 Okla. Cr. 454, 82 P. 2d 246; Edwards v. State, 72 Okla. Cr. 327, 115 P. 2d 918.

In the instant case the defendant was seen in close proximity and at the home just prior to the burning of the building, and was also present while the same was¡ burning. Many circumstances, were testified to* and statements made by the defendant in the presence of others and to members of his. family at the time of the fire, also the conduct of defendant and other circumstances which the jury had the right to; consider. In addition to this, evidence was introduced by the state which tended to- show a motive for the crime, and also statements made to officers after defendant was placed in jail. Defendant also testified that he had served a term in the penitentiary in Illinois for train robbery. All of this evidence was for the proper consideration of the jury.

It is urged for reversal of this case that the statement made by defendant to a private detective who was employed by the sheriff to assist him in securing evidence in this case and who* lived at Sherman, Tex., and was a special detective for the Frisco Railroad Company and also carried a special commission as deputy sheriff of Bryan county, was error. This party had been used by the sheriff of Bryan county on other occasions in assisting him in securing evidence in criminal cases in that county. It isi contended that the statement as testified to by this officer and by W. 0. Taylor as sheriff of Bryan county was not a confession, but was an extrajudicial statement' involuntarily made and therefore inadmissible. It was almost a year from the time that deceased was burned to death until the date of defendant’s arrest. The date charged wasi August 23, 1938. The defendant was arrested on August 14, 1939. He had remarried on the 12th day of November, 1938, and was • living with his wife and the children of himself and deceased at De-Queen, Ark., at the time of his arrest. He was brought from the State of Arkansas to' Bryan county, where he was placed in jail. It was while in jail in Bryan county that the statement was made by him to Mr. D. 0. Rob-nett, of Sherman, Tex., a special officer for the Frisco Railroad Company, as above stated. This statement was made in the presence of Sheriff W. O. Taylor of Bryan county and the county attorney of Bryan county. His testimony on this point was as follows:

“Q. What was the first statement that Mr. Story-made to you in which he — what connection he had with' his wife’s death at the fire on August 23, 1938? A. He said that he was responsible for her death. Q. Where was that statement made? A. In the jail office at the county jail. Q. Did Mr. Story make a statement whether anybody else was responsible or connected with him in the commission of this offense? A. He said there was not. Q. Tell wha,t he said? A. He said there was not. Q. Were both of those statements voluntary? A. Yes, six*. Q. Who was present when he made the statement? A. The first time he and. I. Q. Later following that statement, did he make any statement — did he later repeat that statement? A. Yes, sir. Q,. When was that? A. I believe that was the same time. Q. Where was that statement made? A. In the county jail office. Q. At the time that he made a statement to you and the sheriff, was he advised that he did not have to make it? A. Yes, sir. Q. You advised him that any statement could be used for or against him? A. Yes, six*. Q. You are certain about that? A. Yes, sir. Q. Did you advise him that he could hire a, lawyer? A. Yes, sir. Q. Did you threaten him any way? A. No, sir. Q. Did you use any force? A. No, sir. Q. Did you offer1 him any reward? A. No, sir. Q. What statement did he make to you? A. He made practically the same statement that he was- responsible for her death. Q. Did he say anyone else was responsible with him? A. He said there was not. Q. Were you in Durant last Sunday? A, Yes, sir. Q. Where? A. In the jury room in the county jail. Q. Did he make a statement to you again — Mr1. Story? A. Yes, sir. Q. What statement did lie make? A. He made several of them. Q. Did he make a statement to' you as to wha,t part he had— By Mr. Newman: Let him tell it. A. He made the statement that he intended to' plead guilty and accessory to the fact and take his sentence. Q. Did he make any other statement? A. Yes, sir. Q. Mr. Robnett, did he ever make a statement to you in my presence? A. Yes, sir. Q. That statement made in mine or your presence, was he fully advised that he didn’t have to make the statement and he was offered no reward and advis'ed that he did not have to make the statement? A. Yes, sir. Q. What statement did he make? A. He told me that he burned his wife. Q. Did he make a statement whether anybody else was connected with it? A. He said there was not. Q. Have you worked on this case in this county and other cases besides the Story case? A. Yes, sir. Q. At whose request? A. Sheriff Taylor. By Mr. Steger: That is all.”

This witness also testified:

“A. I asked him concerning his relations between him and this last woman that he manned and he said that she had nothing to do with it. He said she had no connection wtih it and said she should be released and said there was nobody connected with it besides himself and Mr. Story cried and asked if she would take the older boy back to Arkansas and said we had enough to convict Jesus Christ and he meant that in connection with the death of other members of his family. He said that he was responsible for this wife’s death and nobody else was connected with it. Q. Were any of these statements reduced to writing? A. No, sir. Q. Why didn’t you do that? A. He said it was too heavy a burden and said it would take at least four days to write it out. He agreed to make a statement on this particular death. Q. And none of these statements were ever reduced to writing or signed by him? A. No, sir.”

The evidence of Sheriff Taylor of Bryan county corroborated the evidence of this witness with reference to statements made by defendant in his presence. From this evidence it does not appear that the statement was involuntary, but was, on the other' hand, a voluntary statement. It, together with the other evidence in this case, was properly submitted to the jury and was for their consideration under the law as it exists in this jurisdiction as applied to the facts and the evidence, and it Avill not be set aside by this court. This question has recently been considered in the case of Sealy v. State, 65 Okla. Cr. 356, 87 P. 2d 166, 169. In that case referring to' voluntary and involuntary statements it Avas said:

“This court in many cases has discussed the question of the admission of voluntary and involuntary statements, and especially with reference to statements made to officers AAdio have parties in their custody and under arrest. A case decided on January 27, 1939, * * '* Ben R. Williams v. State [65 Okla. Cr. 336], 86 P. 2d 1015, this question is fully discussed and it is stated therein there is at times seemingly a conflict between the decisions, but this is generally caused by the facts of each individual case. We again state that the mere fact a confession or statement is made to an officer while the accused is under arrest, in or out of prison, or is drawn out by his questions does not necessarily render the confession involuntary. Taylor v. State, 27 Okla. Cr. 165, 225 P. 988; Mays v. State, 19 Okla. Cr. 102, 103, 197 P. 1061, 1065; Jewell v. State, 11 Okla. Cr. 389, 273 P. 366; Reagan v. People, 19 Coto. 316, 112 P. 785; State v. Blod-gett, 50 Ore. 329, 92 P. 820.”

The Mays Case, supra, [19 Okla. Cr. 103„ 197 P. 1065], also gives a full discussion and is the case upon which the Sealy case is based. It is there stated:

“In a trial for murder, held, on the evidence that whether the alleged confessions of the defendant were Amluntary was for the jury. Held, further, that Avhere the voluntary nature of the confessions was submitted to the jury under proper instructions, a verdict against the defendant is conclusive on the issue.
“An extrajudicial confession of the defendant is n;ot sufficient to: warrant his conviction without additional proof that the crime charged has been committed. There must be, in addition to the confession, proof of the corpus delicti, and where the corpus delicti is established by independent evidence, a conviction based upon the defendant’s voluntary confession is warranted.”

And in the body of the opinion it is said:

“This court has held repeatedly that it has no> power to reverse a judgment of conviction upon the ground that the verdict is not supported by the evidence, unless there is substantial evidence tending to show the guilt of the defendant, or the evidence fails so far to support the verdict that the necessary inference is that the jury must have acted from partiality or prejudice, or have been controlled in reaching their verdict by undue influence. This court adheres to the rule that a conviction cannot be had on the extrajudicial confessions of the defendant without independent evidence of the corpus delicti, and, before such confessions should be admitted, there should be evidence prima facie sufficient to show that the offense to' which the confession relates has been committed. The court must decide in the first instance this question. However, the decision of the court does not bind the jury, as the province of the court in such particular is only to determine whether sufficient evidence has been adduced to go to' the jury for their determination. In passing upon the evidence submitted to them the jury must first determine beyond a reasonable doubt that the crime,has been committed; then they are at liberty to give the alleged confession such weight as it is entitled to, taking into' consideration the circumstances surrounding it and the extent to which it has been corroborated. In this case the corpus delicti was proved by independent evidence, and if the confessions of the defendant were voluntary and admissible, the issue of the defendant’s guilt or innocence was clearly a question for the jury.”

It is further stated:

“It was and is earnestly insisted that the alleged confessions of the defendant were made under such circumstances as rendered them involuntary.
“A confession is a voluntary statement made by a person charged with the commission of a crime, wherein he acknowledges himself to be guilty of the offense charged, and discloses the circumstances of the act, or the share and participation which he had in it. Wilson v. State, 17 Okla. Cr. 47, 183 P. 613.
“Extrajudicial confessions are those which are made by the defendant out of court, whether to an official or nonofficial person. It is elementary law that such confessions, in order to be admissible, must be entirely free and voluntary. The rule is well established that confessions induced by a promise of benefit or a threat of harm, made to the defendant by a prosecuting attorney or an officer having him in custody, or by any one having authority over him, or made by a private person in the presence of one whose acquiescence may be presumed, will be deemed involuntary, and will be inadmissible as evidence. Miller v. State, 13 Okla. Cr. 176, 163 P. 131, L.R.A. 1917D, 383.
“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 toi falsehood; and therefore the object with which it is admitted, instead of being secured, is likely to be frustrated. Bishop says:
“ ‘The doctrine, in its essence and divested of its technicalities, is that a defendant’s confession is admissible in evidence against him if made freely and without the hope of benefit to: his cause; otherwise it is rejected, since its purpose may have been to secure such benefit rather than to disclose the truth.’ Bish. New Cr. Proc. par. 1217.
“As Mr. Wharton has well said:
“ ‘The real question is whether there has been any threat or promise of such a nature that the prisoner would be likely to< tell an untruth from the fear of the threat, or hope of profit from the promise.’ Wharton, Cr. Ev. § 658.”

When the question arises in the trial of a case as to whether or not a confession or statement made by a defendant is voluntary or involuntary, it is the best practice for the court to excuse the jury and hear the evidence and determine as a matter of law whether such confession is voluntary or involuntary. This question may be decided by the jury, and the court should have the evidence presented anew to the jury and instruct them thereon. The court did not so instruct the jury in the instant case, but permitted the evidence to be presented to the jury and held that it was a voluntary statement. While this was not the best procedure, we do not find the defendant was prejudiced thereby in the instant case so as to necessitate a reversal thereof.

As stated in the Sealy Case, supra:

“We here, however state that it is the best practice for officers who have parties in charge to fully warn them, that any statement made may be used against them. No promises of relief or benefit should be held out. The statement should be wholly voluntary.”

The evidence reveals that defendant was first placed in jail at Durant, the county wheré the crime was committed, and the one having jurisdiction of his crime. He was afterwards taken by the officers, including the special deputy, who was assisting in securing evidence, to Broken Bow in McCurtain county, and was there placed in jail for six or seven hours. He was from there taken and placed in jail at Hugo in Choctaw county. The record is not clear as to why this action was taken. The special deputy testified he was placed in jail at Hugo in Choctaw county for the reason that he was being taken to DeQueen, Ark., his former home, and for this reason 'he was not returned to Durant. The practice of officers taking persons from one county to- another if it be for the purpose of keeping them from consulting with counsel prior to their trial or denying them any constitutional or statutory right cannot be too severely condemned. It may be proper for officers to take prisoners to' some other county if the circumstances warrant, but it certainly should not be done to deny them the privilege of procuring counsel or denying them a constitutional or statutory right or for the purpose of securing from them an involuntary confession or statement.

It is contended that the court erred in giving instruction No. 9. This was an instruction upon the question • of alibi. In the first place, the record does not show that an exception was taken to this instruction by the defendant. Under the many decisions of this court the defendant could not sustain this contention for this reason. Jarman v. State, 57 Okla. Cr. 226, 47 P. 2d 220; Patterson v. State, 4 Okla. Cr. 542, 113 P. 216; Stump v. State, 66 Okla. Cr. 391, 92 P. 2d 616.

It may be further stated, however, that the evidence revealed that defendant was in close proximity to' where this crime was committed. He was not at such a distance as would justify the giving of an instruction upon the question of an alibi. This question was recently decided by this court in the case of Gregg v. State, 69 Okla. Cr. 103, 101 P. 2d 289, 296, where it is said:

“To entitle the defense of alibi to consideration, the evidence must be such as to show that, at the very time of the commission of the crime charged, the accused was at another place so far away or under such circumstances that he could not, with ordinary exertion, have reached the place where the crime was committed so as to have participated in the commission thereof; and, in a criminal prosecution, unless the evidence fills this requirement of the law, no instruction on the subject of alibi is necessary to be given by the trial court.” Barbe v. Territory, 16 Okla. 562, 86 P. 61.

When the case-made was returned to Bryan county for correction by order of this court made on the 17th day of November, 1940, there was attached to. the proceedings a motion for new trial filed by defendant, together with affidavits attached thereto' and an order of the court overruling this motion on the 21st day of January, 1941. We know of no authority that would give the trial court the power to grant a motion for new trial when a case-made was ordered sent back for the purpose of correction so that it could show the exact facts that happened at the trial. We have examined the motion and the attached affidavits and do not find anything that would warrant the court in granting a new trial even if it had the authority to. do so, but, as stated, we do not think it had such authority. In the decision of this case we have taken into, consideration the record as amended when the case-made was sent back for correction.

We have carefully considered this case, and while the judgment is based upon circumstantial evidence, we have come to' the conclusion that the jury who heard this evidence and saw the witnesses upon the stand and observed their demeanor were in a position to weigh this evidence and give it better consideration than an appellate court, and it is our conclusion that there was no error in this trial which would justify this court in reversing the judgment and sentence rendered in this case.

For the reasons above stated, the judgment and sentence of the district court of Bryan county is. affirmed.

JONES and DOYLE, JJ., concur.


text:
    L. P. HAMMONDS v. STATE.
    No. A-9893.
    Dec. 17, 1941.
    (120 P. 2d 376.)

      Boy White, of Eufaula,, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, L. P. Hammonds, was charged in the county court of McIntosh county, on September 29, 1939, by information with the offense of unlawful transportation of intoxicating liquors, was tried, convicted, and sentenced to serve 30 days: in the county jail and to pay a fine of |50, and he appeals to this court.

The only contention made by counsel for defendant in his brief is that the evidence is inadmissible because it was obtained by an illegal search of defendant’s person.

The evidence offered by the state is that Carl Brady, a policeman at Eufaula, saw defendant going down the highway on September 28, 1939. After dark the same day Brady was on the railroad track when he saw defendant coming hack down the track with a bundle under' his arm, in company with another negro- who had a gallon jug under his arm. Brady started towards the negroes, and defendant unscrewed the top from a half gallon jar and started pouring out whisky when he saw the officer.

Brady testified that he started after the defendant to see what his bundle was. He stated he did not intend to search him or to- take him into- custody. The whisky was revealed to- him when he was within five feet of the defendant.

Defendant offered no testimony.

The argument of defendant’s counsel is- that the officer had no right to pursue and arrest the defendant upon suspicion, and that evidence obtained from such arrest is inadmissible.

This is a correct statement .of the law, but the facts herein do not bring this- case within that category.

According to the record, before the officer reached defendant, he -committed a misdemeanor in the officer’s presence by producing and breaking a half gallon jug of whisky.

In the case of McAdams v. State, 30 Okla. Or. 207, 235 P. 241, where defendant threw whisky from his car before he was arrested or searched, but while officers admittedly were attempting to arrest him upon, mere suspicion, it was held that evidence of the subsequent search was admissible against the defendant because of the misdemeanor committed in the presence of the officers.

Evidence obtained without a search warrant, upon the arrest of a defendant, is admissible if the defendant has committed a misdemeanor in the presence of the arresting officer before any of Ms rights are invaded, even though the officer is attempting to, make an illegal arrest at the time the misdemeanor is, committed. Vinyard v. State, 37 Okla. Cr. 53, 256 P. 65; Davis v. State, 60 Okla. Cr. 198, 63 P. 2d 112.

In Brumley v. State, 60 Okla. Cr. 122, 100 P. 2d 465, in the opinion by Judge Doyle it is, stated:

“Peace officers have the right to arrest without a warrant all persons who are guilty of a violation of the criminal law in their presence.
“As an incident to such legal arrest the person and automobile of the offender may without a warrant be searched for contraband goods.
“Where peace officers without a warrant, legally attempted to arrest a person suspected of the commission of a misdemeanor (transporting whisky), and as a sequence of such attempted arrest the offense is, actually committed in the presence of and to the certain knowledge of the officers, the offender * * * may be legally arrested without a warrant for the offense so committed! in the officers’ presence.”

In this case no, further' evidence was revealed by a search of the defendant; and the intention here with which the officer started towards, defendant, under the holdings in the above cases, is immaterial. Even if the officer’s purpose was to, arrest and search defendant, which is not shown conclusively by the record, the commission of the misdemeanor by defendant before any of his lights were invaded nullifies the claim he could have set up to immunity from unlawful search and seizure had he been arrested and searched upon mere suspicion before committing the misdemeanor in the presence of the officer.

Finding no error in the record, this case is affirmed.

BAREOOT, P. J., and DOYLE, J., concur.


text:
    SUSIE MOREHEAD v. STATE.
    No. A-10063.
    Dec. 17, 1941.
    (120 P. 2d 372.)
    James W. Flinn, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that Susie Morehead on the 18th day of December, 1940, in Oklahoma county, did have possession of six and one-half pints of tax-paid liquor, with the unlawful intent to sell the same.

The record shows that when the case was called for trial the defendant waived her right to a jury trial, and it was agreed by and between the parties to try the case to the court. The trial resulted in a conviction.

Motion for new trial was duly filed, presented and overruled.

On March 12, 1941, the court rendered judgment and sentenced the defendant to serve 30 days in the county jail and to pay a fine of $50.

From the judgment the defendant appealed by filing in this court on April 29, 1941, petition in error with a duly certified transcript of the record attached.

No brief has been filed and no appearance made on behalf of plaintiff in error in this court. When the case was called for final submission, it was submitted on the record.

On appeal by petition in error and duly certified transcript of the record, where a jury was. waived and the case tried to the court, and where no briefs are filed or appearance made, this court will make an examination of the information and the judgment, and, if no- fundamental error is apparent, will affirm the judgment.

We have examined the information and the judgment and sentence, and we have discovered no error which will warrant a reversal of the judgment.

The judgment of the court of common pleas of Oklahoma county is therefore affirmed.

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


text:
    HOMER HOPKINS v. STATE.
    No. A-9897.
    Dec. 17, 1941.
    (120 P. 2d 371.)
    Roy White, of Eufaula, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Homer1 Hopkins1, was charged by information in the county court of McIntosh county, on December 4, 1939, with the offense of unlawful possession of intoxicating liquor, was tried, convicted, and sentenced to serve 60 days in the county jail and to pay a fine of $100, from which judgment and sentence he appeals to this court.

The Attorney General has filed in this case a confess sion of error, stating:

“Comes now the defendant in error herein, State of Oklahoma, by and through the Attorney General, and respectfully shows to this court; that ":i * * the second assignment of error is. such that under the decisions and controlling cases of this court that the same constitutes reversible error '* * * said second assignment of error as urged being as follows:
“ ‘That the trial court erred in permitting the introduction of evidence with regard to the general reputation to the residence of the defendant as being a place where liquor was kept and sold in violation of law, without first having proof that said residence was a public place or a place of public resort.’
“The record in this case shows that the only testimony offered on the part of the county attorney before the tidal court was the testimony of Cliff Goldsmith, Milo Beck, and Boy Morgridge, Investigators from the Department of Public Safety of the State of Oklahoma, and the sheriff of McIntosh county, John McQuillen. The first three witnesses’ testimony being limited to the visit of said investigators to the home of the defendant, Homer Hopkins, where a, search warrant was served and a quantity of whisky seized thereunder. None of these witnesses being asked, nor having given any testimony, concerning said premises, other than describe it as. the home of Homer Hopkins. The testimony of the sheriff as to the pertinent portion thereof being as follows: That said sheriff went to Homer Hopkins’ place a short time after the enforcement officer had served the search warrant and found the whisky in response to> the question, ‘At that time and prior to that time, did Homer Hopkins’ house hear1 a reputation where people congregated?’
“This, was objected to and the court thereupon stated: ‘I think at this time the objection should be sustained.’
“The county attorney then asked the sheriff the following question: ‘Were you acquainted with the reputation of Homer Hopkins’ place on this date and prior to December 2nd, as to whether or not it was a place to where the public resorted and whisky was being sold?’ ‘Mr. White: We object.’ ‘The Court: Overruled,’ ‘Mr. White: Exceptions.’ ‘Q. What was the reputation?’ Again objected to because of its incompetency, and overruled. ‘A Bad.’ ‘Q. Did the place bear a poor reputation as a place where whisky could be bought? A. Yes, sir.’ ‘Q. Place where people congregated? A. I don’t know about that.’ ‘Q. I am talking about the reputation. A. I never seen them.’ ‘Mr. White: I move that all the evidence offered about the reputation of the place be stricken from the record.’ ‘The Court: On what grounds?’ ‘Mr. White: You can’t prove that it: is, actually such a place.’ ‘The Court: Overruled.’ ‘Mr. White: Exceptions.’ This is the entire record and testimony offered on the part of the, county attorney on this point.
“It thus clearly appears from this record that the testimony of the state enforcement officer showed that the place searched and where the whisky was found was a residence or home of Homer Hopkins. There was no testimony offered * * * to show that said home * * * was a place of public resort. * * *”

The Attorney General cites the case of Conley v. State, 40 Okla. Cr. 128, 267 P. 491, which states:

“Evidence of general reputation of a defendant’s home is inadmissible until it is first shown that the place itself was a place of public resort, and not merely that it bore such a reputation.” Mason v. State, 53 Okla. Cr. 76, 7 P. 2d 492; Garrett v. State, 40 Okla. Cr. 195, 267 P. 683; Yakum v. State, 30 Okla. Cr. 184, 235 P. 253.

We are of the opinion that the position of the Attorney General isi well taken; and for the reason that evidence as to the general reputation of defendant’s home was admitted in evidence without a proper predicate being laid, the case must be reversed.

This case is accordingly reversed and remanded to the trial court.

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


text:
    M. G. NORMAN v. STATE.
    No. A-9955.
    Dec. 17, 1941.
    (120 P. 2d 369.)
    J. R. Huggins, of Ada, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen,., and J. Walker Field, Asst. Atty. Gen., for the State.
   PER CURIAM.

The Attorney General has filed the following confession of error:

“Comes now the Attorney General in the above entitled cause and confesses error herein and as grounds and reasons therefor respectively calls1 this, court’s attention to the following- facts:
“The undisputed record in this- case shows that the proceedings herein were instituted in the justice of the peace court in the city of Wewoka under which the plaintiff in error was prosecuted by complaint with the crime, to' wit:
“That ‘while operating as a second-hand dealer he purchased from Claud Pack, a minor, fifteen years of age, one certain automobile tire without first having obtained the consent, in writing, of the parent or guardian of the said minor child,’ which resulted in a conviction by a jury in said justice of the peace court on the 19th day of May, 1938, whereby he was sentenced to pay a fine of fifty ($50.00) dollars; thereafter, and on the 21st day of May, he executed an appeal bond that was duly approved appealing said conviction to the district court of Seminole county. A transcript of said proceedings was duly filed in the district court on May 25, 1938. Thereafter, and on the 22nd day of March, 1939, said cause was tried before a jury and resulted in a verdict of guilty and assessing a fifty ($50.00) dollar fine as his punishment, and likewise filed on March 22, 1939.
“Page 39 of the transcript of proceedings shows from the minutes of the court clerk that on March 22, .1939, ‘sentence day passed to June 12, 1939.’ No other proceedings are shown to have been had in this case until it appears that thereafter on the 13th day of August, 1940, (transcript, page 32) a, bench warrant of arrest was issued by the court clerk, and on the 14th day of August, 1940, there was filed in the clerk’s office an appearance bond under which said bond was conditioned that the defendant would ‘make his personal appearance before said court at Wewoka on September 9, 1940, then and there to answer said accusation against him.’ Pages 41 to 43 show a final decree of judgment entered on the 9th day of September 1940, in said action at which time the defendant appeared, and through his attorney, objected to any sentence being1: imposed, alleging as grounds for said objection states: That the court has lost jurisdiction of both the subject matter of this cause of action and the person of the defendant and is at this time without authority and jurisdiction to impose any sentence or final judgment, and such imposition at this time would be a deprivation of the liberty of this defendant in violation of the Constitution and Statutes of Oklahoma. This objection of defendant by counsel was overruled and exceptions allowed, and the defendant; thereupon announced his intention to appeal from said judgment and sentence. Thereafter, an appeal bond was given and approved, notice duly served, and this appeal with petition in error filed in this court on October 21, 1940.
“The court’s attention is called to sections 3125, 3126 and 3.127, Oklahoma Statutes 1931, 22 Okla. St. Ann. §§ 961-963, which read as follows:
“ 'After a plea or verdict of guilty, or after a verdict against the defendant on a plea of a former conviction or acquittal, if the judgment is not arrested or a new' trial granted, the court must appoint a time for pronouncing' judgment.’
“ 'The time appointed must be at least two. days after the verdict, if the court intend to remain in session so long; or, if not, at as remote a time as. can reasonably be allowed.’
“ 'For the purpose of judgment, if the conviction is for misdemeanor judgment may be pronounced in the defendant’s absence.’
“Attention is also, called to section 3136, O. S. 1931, 22 Okla St. Ann. § 972, which reads as follows :
“ 'If no sufficient cause be alleged or appear to the court why judgment should not be pronounced it must thereupon be rendered.’
“In the judgement of the Attorney General this case comes fairly and squarely wdthin the rule as announced by this court in its last opinion upon this subject, wherein this court, in said opinion, referred to with approval the rule as announced in the case of Ex parte Coley, 67 Okla. Or. 482, P. 2d 968, and quoted with approval said rule, which is as follows:
“ 'Sentences need not necessarily be imposed at the same term of court at which the verdict or plea of guilty was had, and if the court’s purpose in postponing the imposition of sentence is incident to the administration of justice within its conceded powers, and its orders postponing sentence are unconditional and to1 definite periods, the jurisdiction of the court to impose sentence at a term after the trial term is not affected. But in the case at bar several terms of court have passed and no order was entered postponing the pronouncement of judgment and sentence. The court, under the law, had lost jurisdiction.’
“The court, in this opinion, referred to the earlier cases of said court upon this; subject, Collins v. State, 24 Okla. Cr. 117, 217 P. 896, and the case of White v. State, 45 Okla. Cr. 289, 283 P. 581. In the light of this record and these definite and positive declarations of our court it clearly appears that this judgment and sentence was and is void and that the court lost jurisdiction of said action and that said judgment should be reversed and the plaintiff in error released and discharged.
“Respectfully submitted,
“Mac Q. Williamson, Attorney General,
“J. Walker Field, Assistant Attorney General,
“Attorneys for Defendant in Error.”

We have examined the record and find that the facts are as stated in the motion filed by the Attorney General. For the reasons therein stated, the judgment and sentence of the district court of Seminole county is reversed, and the defendant is ordered discharged.