text:
    PLEAS HODO v. STATE.
    No. A-6376.
    Opinion Filed Feb. 9, 1929.
    (274 Pac. 688.)

      G. A. Chappell, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Kay county for obtaining illicit connection with Veril McMasters under a promise of marriage by the defendant to the said Veril McMasters, which said promise was not fulfilled, the said defendant having failed and refused to marry the said Veril McMasters, and not now being the husband of the said Vteril McMasters, and was sentenced to pay a fine of $500. Motion for new trial was filed and overruled, and defendant excepted and appeals to this court.

The testimony on behalf of the state is, in substance, as follows: Veril McMasters stated she was 21 years of age; she had lived in Kay county practically 10 years; that she was a graduate from the Newkirk high school; that her family moved from Missouri to Newkirk; she knew defendant in Missouri before coming to Oklahoma; defendant began keeping company with her in March, 1924; the first time she went out with defendant they went to a schoolhouse to establish a Sunday School; after that time defendant was with her two or three times a week; on the 18th day of May, 1924, she and defendant became engaged to be married; the reason why she remembers the date was it was her birthday; that they were on the road home from Newkirk. “We were talking, and he said, ‘Would you answer a serious question if I asked you one?’ and I said, ‘Yes. if it is necessary;’ and he said, T want to ask you one if you will give me an answer;’ and I said, ‘Yes, I will give you an answer;’ and he said, ‘Will you marry me?’ and I said, T don’t think that is a fair qoestion;’ and he said, ‘It is fair with me and it ought to be fair with you;’ and I said, T won’t answer it now;’ and he said, ‘When will you answer it’ and I said, T will answer it Sunday morning;’ and he said, ‘Why, Sunday we are going to the 101 Ranch, you will answer it then.’ This conversation was on Friday night; we went to the 101 Ranch Sunday, and I answered, ‘Yes, that I would marry him;’ I had intercourse with the defendant about Wednesday following the 18th of May; I believe we had been to Blackwell to a show; it took place in Kay county, about one mile south of Dilworth, Gkla.; we were going along joking about being engaged, and he asked when we would be married, and I told him I did not know, he said, T need somebody, and I need them pretty bad;’ and I replied, ‘Your mother is a good cook;’ he said what he wanted was not somebody to cook; he said he wanted somebody to sleep with, and I said, “Maybe you could persuade your father.’ Nothing more was said until about a mile further west, and he turned the ear and I told him the road home was the other way, we haven’t time to fool around, it is midnight; and he replied, ‘I have something serious to talk to you about;’ I said, ‘All right, let’s hear it;’ and he did not say anything, he went on a little ways, stopped his car, and sat there a little bit, and said, ‘I think you ought to come across;’ and I told him I did not know what he meant, and he said, ‘You ought to, well, if you don’t I will show you pretty soon;’ I said, ‘Well, I am not going to anyway;’ and he said, ‘We ought to, that we were engaged, that makes it all right;’ and I said it did not make it right with me; he said, ‘We are married in the sight of God just the same as if we were married;’ finally he got out of the front seat and got in the back seat, and lifted me across the top of the seat into the back seat; he was hugging and kissing me; he pulled me on his lap and had to hold me; and I told him he ought not to do that; and he said it was all right, it was the way he believed, and that it did not make any difference, he was going to be boss; he pulled my dress up, and then he said he was going to show me right now. I cried, and he just went ahead, and I submitted to it, and he had intercourse with me; I submitted because he promised to marry me any way, and I did not think it would make a whole lot of difference; we had intercourse again on Saturday night of that week; we were returning from Newkirk; he repeated about the same words he did the first night, ‘We will get married anyway.’ ”

On cross-examination, witness stated she was 21 years old; that she went with defendant about three weeks before they were engaged; he proposed on the 18th day of May, 1924; they were in a car driving to Newkirk to get a girl friend to take her to her house; “the first intercourse he had with me was Wednesday following the 18th of May, 1924; it was not exactly willingly that I submitted; I protested, but did not kick or fight him; it was partly force; I had a conversation with defendant -about a week before the child was born. Dr. Pryor attended me at the birth of the child; I became pregnant about the 20th or 21st, somewhere along there in May; figuring from the 19th day of February, I figure it was along about the 20th or 21st of May.”

Quite a number of questions were propounded to the prosecuting witness, but we have substantially set out all the testimony material and necessary to arrive at a proper opinion.

Zela McMasters, a sister of the prosecuting witness, was called, and, in substance, testified she knew the defendant; he kept company with her sister; the best she could remember “he began coming about May, 1924, I think; he came most every night; I would say three or four times a week; I don’t know when they became engaged, except she said it was on her birthday; defendant took her to Stillwater in 1924, and he came back with her; sister’s child was born in February, 1925; defendant was at her home two weeks before the child was born; he kept company with her regularly or steadily after that; sister went back to Stillwater in the summer 1925; I saw defendant and Veril in the act of sexual intercourse ■out in the car in front of our house the last of October or the first of November, 1924; only saw them have intercourse one time; defendant came back to see my sister after the baby was born; he acted like a sweetheart as much or more so than he did before; Mother and I saw him in town, and I told him there was no use to pretend he did not know Veril was pregnant because she had written a letter, and he did not answer it; my mother spoke up and asked him why he had not been down; my mother asked him if he did not know he was under obligations to Veril and why he retracted his promise; he said they sometimes retract themselves; I did not say much of anything. This conversation was after I had seen them having sexual intercourse.”

■ On cross-examination, she stated it was along the last of October, or the first of November, she saw the defendant and her sister have intercourse; the child was born in February, 1925; “I was sleeping in the front room that night; it was along toward midnight; sister was on his lap at the time they was having sexual intercourse; he was sitting in the seat; I could see what they were doing from where I was; in conversation with the defendant at Dr. Pryor’s house, I told him I sent for him to come down; my mother spoke up, and said, ‘Be careful, Zela;’ I don’t remember about her saying anything about it being a public place; I don’t think I said, ‘I don’t give a damn if it is.’ I told him he had better come down.”

Mrs. Elsie McMasters, called on behalf of the state, testified that her family and the Hodo family used to live close to each other in Missouri; “defendant started going with Veril some time in February or April, something like that, in 1924; he came over from one to three times a week; in a way I objected to him keeping company with her; I did not much blame her, she was the only grown girl and he was the only young man; they went to the same Sunday school; I don’t know whether they became engaged in May or not, I think so; Veril went away to school in May, 1924; defendant kept company with her up to along in the fall, when she came down to Newkirk, that was November, 1924; there were no other boys going with Veril at the time; the child was born in February, 1925; Veril did not say whose child it was; since April, 1924, she had never had a date with any one else; she never went out with anybody else but him; she worked in the Sunday school when she went out with him; Veril went to school in May, 1925, after the child was born; I first learned she was pregnant in December, 1924; I had a conversation with defendant on Tuesday after I learned of Veril’s condition; he came down to the house, and I went outside the door and asked him if he knew of her condition, and he said, ‘Yes.’ I said, ‘Pleas Hodo, do you know you are under obligations to Veril?’ and he said, ‘No, I don’t think I am now.’ I asked him when he had retracted the promise, and he said promises retract themselves some time, and I said this is one of the times it had best be kept; I tried to get him to marry her then, and he objected on account of his lodge; said he would be ruined in the Masonic Lodge, and that he was a Klan and so on, he never could get into any lodge, that he would be a marked man all his life, and would have to go clear to Canada; I asked what about her, and he said they soon forget about a girl; I asked him if he would marry her after the child was born, ‘Veril just thinks everything of you,’ and he said, ‘Cod knows I love her enough.’ ”

On cross-examination, witness stated that Veril never went with Pleas to a dance at Gueda Springs; he said in the preliminary she had gone with him different places; she did not remember whether she had or not; “I called this child mine all the time; I don’t remember just what time the defendant and Veril went down to the Rock schoolhouse; they organized a Sunday school the first time they went out together; he came to our house when he first came to this country; we was acquainted with the family in Missouri; I don’t think I ever asked Veril who was the father of the child; Zela did not curse defendant the time we had a conversation with him in front of Dr. Pryor’s house; she said, ‘You low down dirty cur;’ she told him she was just going to give him one week to make good; I don’t think she used the word, ‘damn’; I think defendant came down to the house the next night after that and Zela told him he was too late; she never told me the child belonged to Pleas until she swore out the papers; I did not tell Dr. Pryor that Veril did not know who was the father of the child.”

The prosecuting witness was recalled, and stated, “I was not married at the time defendant had sexual intercourse with me, am not married now, and never have been married.”

This is, in substance, all of the testimony introduced by the state in chief. At the close of said testimony, defendant demurred to the evidence offered on the part of the plaintiff on the ground and for the reason that the same failed to prove the defendant has committed a crime against the laws of the state of Oklahoma and is insufficient to convict the defendant, and that there is no corroboration of the complaining witness to any of the elements of the crime, that there is no corroboration as to the acts of sexual intercourse, and there is no corroboration as to her chastity. The demurrer of the defendant was overruled, and defendant duly excepted.

The defendant in his own behalf testified, in substance, he had known the McMasters family all his life; he had been to their home in Missouri; he was married one time, but was a widower and unmarried at the time prosecuting witness testified to his being with her; he moved from Missouri to near Dilworth, and lived about three-quarters of a mile from the McMasters family; they were on friendly terms and he often visited them; the first time he ever went with Veril McMasters was about the 20th of April, 1924; he went with her to a revival meeting; “I believe I was with her the next Sunday; I drove down to her home, I suppose it was on purpose to see her; when I got down to her home, her mother told me Veril had gone to Newkirk; I told her if sh.e would tell me where she was I would bring her home; her mother said she was at Sherrods; I went to Sherrods, and Miss Sherrod and Veri] and I went to a ball game, and I brought Veril to Dilworth; there was no one with me on the way home with Veril; this was the first time we were ever anywhere alone; the next time I was with her was the 16th day of May, 1924; she wrote me an invitation to her birthday party about the 18th of May; I was down to see her on Friday night after I came from work; I got Veril and we drove to where Veril’s sister was, got Zela, and drove to the Sherrods and got Grace and took them back to McMasters; I was not alone with Veril on that occasion; I attended her birthday party; up to that time no proposition of marriage was made to her, nor had I made any proposal of sexual intercourse; up to the latter part of May, 1924, when I took her to Stillwater to school, I had only been with her three times, once alone.” Witness identified the handwriting on letters and introduced letters written by the prosecuting witness to the defendant during the month of June, 1924, while she was attending school at Stillwater.

Defendant further testified that he did not become engaged to the prosecuting witness until September, 1924; that he never had proposed sexual intercourse to her when he was with her out north of town. He then gave some testimony about prosecuting witness assisting him in selecting a wedding ring in September; defendant denies any knowledge of having intercourse with the prosecuting witness, and denies that he knew she was pregnant until Christmas, 1924; that he took her home from school where she was teaching; “the next day I went down to talk to her about it; I asked her if she was pregnant, and she said she was, and asked her why she did not tell me before; she said the reason was she was not sure she was pregnant; I asked her what she meant by that, and she said that while she was attending school at Stillwater she and a young lady and a married woman had gone driving to Perry and went to a drug store and got some drinks; this fellow I was with talked to the druggist ‘before he fixed the drinks and he put some drug in it’; that she remembered leaving the drug store to go to the ear, and the next thing she remembered she woke up in her room; I asked her if she ever told her mother, and she said, ‘No’; and I said, ‘Why don’t you tell her?’ and she said she did not want to tell her mother; the reason she had not told me was that she was not sure she was that way; I asked her if she expected me to go ahead and marry her under the circumstances, and she said, ‘Certainly not’; I told her I could not marry her now if I wanted to”; and the defendant detailed several pages of conversation along the same line, attempting to connect the prosecuting witness with Jack Crowe, whom he claims the prosecuting witness said lived at Perry. Defendant states he had a conversation with the mother of the prosecuting witness in which she asked him if he realized the condition of the prosecuting witness, and then detailed a conversation with the mother in which she stated she wanted him to go to Kansas and marry the girl, and he stated he could not do that; the mother said all she wanted him to do was to loan Veril his name; “we want a name for the child”; that he told the mother his name was all he had and “I don’t care to loan it”; the mother wanted him to take his car and take Veril to Arkansas City where she could get rid of the child, and he asked the mother if she wanted to murder both the prosecuting witness and the child. Defendant denies having anything to do with the prosecuting witness; that he had no intercourse with her under promise of marriage; and in all his testimony attempts to charge the prosecuting witness with improper relations with another man which brought about her pregnancy. Defendant also introduced Dr. Pryor to show that the mother of the prosecuting witness stated she did not know who was the father of the child; and attempted in many ways to contradict the testimony of the state.

Defendant, on cross-examination, admitted he wrote to the prosecuting witness during the year 1924, and also in 1925, when she was in school at Stillwater after the baby was born. All of the testimony tends to contradict the testimony offered by the state. It is on the material points in conflict with the state’s testimony; the defendant going so far as to say that after the child was born he was sorry for the girl, and that he went with her several times, and that he wrote her letters when she returned to school in 1925, after the child was born. This is all the testimony that we deem necessary to properly consider the question raised.

Defendant has assigned nine separate errors alleged to have been committed by the trial court. The first error urged by the defendant is that the court erred in overruling defendant’s demurrer to the amended information. A careful examination of the amended information shows that the information is sufficient to put the defendant upon trial, and the court did not err in overruling his demurrer.

The second error urged is that the amended information did not substantially conform to the statutes of the state of Oklahoma, and that the facts stated in the information do not constitute a public offense. This assignment of the defendant is without merit, and is not seriously urged by the defendant. The defendant urges with considerable force his third assignment, which goes to the sufficiency of the evidence to sustain the verdict of the jury.

Section 2703, C. O. S. 1921, provides: “Upon a trial for inveigling, enticing or taking away an unmarried female of previous chaste character, under the age of twenty-five years, for the purpose of prostitution, or aiding or assisting therein, or for having, under promise of marriage, seduced and had illicit connection with an unmarried female of previous chaste character, a defendant cannot be convicted upon testimony of.the person injured unless she is corroborated by other evidence tending to connect the defendant with the commission of the offense.”

There are four elements necessary to establish a crime of seduction of a female under a promise of marriage: First, promise of marriage; second, seduction and illicit intercourse; third, unmarried female; and, fourth, previous chaste character.

In Harvey v. Territory, 11 Okla. 157, 65 P. 838, the court quoted with approval from the Supreme Court of Minnesota, State v. Timmens, 4 Minn. 325 (Gil. 241), as follows: “Now it cannot be intended that by being corroborated, the statute means there shall be proof of these facts, sufficient in itself to establish them independently of the testimony of the girl, as that would render the statute practically null. Parties seldom seek publicity in such matters. From their nature they transpire in secret, and it is only by accident that any positive proof can ever be brought to bear upon them except through the parties themselves. The corroboration therefore intended by the statute, is proof of those circumstances which usually form the concomitants of the main facts sought to be established, which circumstances should be sufficiently strong in themselves, and pertinent in their bearing upon the case, to satisfy the jury of the truthfulness of the witness in her testimony on the principal facts.”

In the case of Cluck v. State, 9 Okla. Cr. 580, 132 P. 930, this court held: “In a prosecution for seduction under promise of marriage, the testimony of the prose-cutrix must be corroborated as to the promise of marriage and the illicit intercourse, but need not be as to her being unmarried and of previous chaste character.”

In this case the testimony shows conclusively that the prosecuting witness, Veril McMasters, was unmarried, and had not gone with any man other than the defendant. Upon the question of corroboration of the promise of marriage,-it is not necessary that positive proof be shown, but the facts and circumstances which usually attend an engagement of marriage is sufficient for the purpose of corroborating the testimony of the prosecu-trix. The proof need only amount to such circumstances as usually show the main facts sufficiently strong to satisfy the jury as to the truthfulness of the prosecutrix’s testimony. The defendant denied any promise of marriage and the seduction of the prosecutrix, but defendant admits he kept company with the prosecutrix about the time alleged, and admits that later on in September he became engaged to her. The prosecutrix testified positively that defendant promised to marry her, and that by reason of that promise he succeeded in seducing and having sexual intercourse with her. When all the testimony is sifted down to the real facts, it shows that she consented to have sexual intercourse with the defendant upon his promise that he would marry her. The corroborating testimony relied on by the státe consists mainly of the evidence of the attention of the defendant to the prosecuting witness of the character of a sweetheart and a suitor for a period of several months, during which time the defendant was attentive to the prosecuting witness and acted as lovers usually do. The defendant admits going with the prosecutrix to the schoolhouse to organize a Sunday School, and that when he called the following week it was for the purpose of seeing the prosecutrix. From circumstances detailed in the testimony, we hold the jury might properly regard them as bearing upon the question of the alleged promise of marriage; that is, defendant admits he continued to call upon the prosecutrix as late as September, 1924, and ordered a wedding ring for her, and that he continued to go with her up until the early part of the year 1925, when he claims the prosecutrix advised him of her condition.

There is some testimony also to show that after the child was born the defendant continued to go with her. It is true he attempts to say that he is sorry for her, and the fact that he is sorry for her was the reason for going out in company with her. This seems to be a case where actions speak louder than words, and we hold the question of the sufficiency of the evidence to establish the fact of a false promise of marriage, in order to obtain her consent to sexual intercourse, was for the jury under proper instructions of the court. The offense of which the defendant has been convicted is a grave offense. A seducer acts with utmost deliberation, and coolly lays siege to the heart of his victim, and by all manner of promises and protestations of love gains her affection and subjects her will to his. Usually this is not the work of a moment, but extends over days and sometimes perhaps months. In this case the defendant was several years the senior of the prosecutrix, who was an unsuspecting girl of immature years, of limited experience, and yielded to his promises, the result of which she became pregnant and gave birth to a child.

The defendant by his testimony indicated that he has no remorse of conscience; and in conversation he claims to have had with the girl’s mother he desired zealously to protect his good name. The record does not disclose that he was so considerate of the name of the pro-secutrix. The courts and juries of the state cannot be too vigilant in their protection of our girls against the wiles and seductive influence of men who proclaim their love for the girl, securing her consent for illegal cohabitation, and in the dark hours of her troubles forsake her on the ground that he cannot sacrifice his good name. A careful examination of the record fails to disclose any material errors in the ruling upon the evidence or instructions of the court. In our opinion, the evidence amply supports the verdict.

The fifth proposition urged by the defendant is that the court erred in denying his request to have the court reporter report the argument of T. J. Sargent, who was assisting the county attorney, and having it made a part of the record. The record shows that, when the request of the defendant was made to have the court reporter report the argument of T. J. Sargent, the court made the following statement: “The court denies the request to take the entire argument of counsel, and instructs the reporter to sit at the desk and listen to the argument of counsel, and that counsel for the defendant may indicate the part he wishes taken, and upon such indication being made the reporter shall take such argument as indicated, that is, by this is meant, that counsel for the state makes any statement which counsel for the defense wishes to be excluded from the consideration of the jury he shall indicate to the reporter that part of the argument to be taken down so that such point may be preserved.”

The defendant excepted to the statement of the court, and urges in his argument that it was an error of the court in refusing to require the court reporter to report all of the argument of Mr. Sargent, who was assisting the prosecution in the trial.

That part of section 3065, C. O. S. 1921, material to the question raised, is as follows: “An attorney in any case pending shall have the right to request of the court or stenographer that all such statements or proceedings occurring in the presence of the stenographer or when his presence is required by such attorney, shall be taken and transcribed. A refusal of the court to permit, or, when requested, to require any statement to be taken down by the stenographer, or transcribed after being taken down, upon the same being shown by affidavit or other direct competent evidence, to the Supreme Court, shall be deemed prejudicial error, without regard to the merits thereof.”

Defendant cites Corliss v. State, 12 Okla. Cr. 529, 159 P. 1015, in support of his contention. In the Corliss Case the facts are not the same as in this case. In that case the court refúsed to order the reporter to take the statements of the county attorney the defendant desired to have taken. The question involved in this case is almost identical to the case of Lamm et al. v. State, 4 Okla. Cr. 641, 111 P. 1002., in which the court, after quoting the section of the statute and question raised by the defendant, said: “The record in this case shows that when the motion was made the court ruled that the court stenographer must take down all that occurred during the trial except arguments of counsel, and that the attorney for the state and counsel for the defendant would each be entitled to have the court reporter take down in shorthand any statement made in the argument to which either of them desired to object, and either party would be allowed to preserve their exceptions to the same in the record. We think that this order of the court was all that the defendants had a right to demand under the statute above quoted. It will be observed that in the express language of the statute the refusal of the court to permit, or when requested, to require, any matters that might properly be a part of a case-made for appeal or proceeding in error to be taken down by the stenographer and transcribed after being taken down, upon the same being shown by affidavit or other direct and competent evidence to the Supreme Court, shall be deemed prejudicial error, without regard to the merits thereof. We think the object of this statute was simply to enable the parties to a trial to secure a record upon appeal, and that it does not force the judge to have the stenographer take down any statement that would not be subject to review upon appeal. It does not mean that the court stenographer should be required to take down the entire speeches of counsel for both sides of the case where no objection is made to such speeches. It gives the counsel the right to have any given statement to which they object, and which they desire to incorporate in a case-made, taken down by the stenographer, and, upon refusal of the court to have this done, reversible error is committed, without regard to the merits thereof. Indeed, it would be a needless and senseless thing to require a stenographer to take down everything said by counsel to which no objection was made. It would greatly encumber the record and force this court to waste a great deal of time in reading absolutely useless matter.” Dickinson, Receiver, et al. v. Whitaker, 75 Okla. 243, 182 P. 901.

It is true that the Dickinson v. Whitaker Case is a civil case, but the same principle is laid down and adhered to as is laid down in our criminal reports. We hold that the object of the statute in question is simply to enable the defendant in a trial .to secure the record upon appeal, and was not intended to force the court to have the stenographer take down any statements that would not be subject to review on appeal. We therefore hold that the ruling of the trial court upon the question was proper. The jury in this case was extremely lenient in imposing the penalty on the defendant.

Finding no error prejudicial to the rights of the defendant sufficient to warrant this court in awarding a new trial, the judgment of the trial court is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


source: Caselaw Access Project

author: CHAPPELL, J.

license: Public Domain

text:
    EVA BAYNE et al. v. STATE.
    No. A-6435.
    Opinion Filed Feb. 16, 1929.
    (274 Pac. 694.)

      Walter Mathews, for appellants.
    Roscoe Cox, Co. Atty., for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Lincoln county on a charge of having possession of a still and worm so made and assembled as to be capable of making and manufacturing whisky.

The information properly charges that the defendants did, in Lincoln county, wilfully, unlawfully, and wrongfully, have possession of a still and worm, an appliance made and set for the manufacture of whisky, and said still being so made and assembled as to be capable of making and manufacturing whisky.

The only evidence offered in this case against the defendants was obtained upon a search warrant issued on the following affidavit:

“Now on this 6th day of June, 1926, before me the undersigned L. H. Wray, justice of the peace within and for said county and state, personally appeared M. T. Rid-path, of lawful age, who being first duly sworn, on his oath says, that the following described property, to-wit: northwest quarter of section number three, township sixteen, range five east in Lincoln county, state of Oklahoma, is now being frequented and has been frequented for some time past, by persons who are known by affiant to be addicted to the use of intoxicating liquor as a beverage; that persons who are generally reputed to be bootleggers and gamblers loiter around said place at all times of the day and at late hours of the night; that men are frequently seen around said place in an intoxicated condition and said place is commonly reported to be a place where intoxicating liquors are kept for sale in violation to the Constitution and statutes of the state of Oklahoma; that A. S. Bain * * * that affiant verily believes that spirituous, vinous, or fermented, or some imitation thereof or substitute thereof, are being kept therein by A. ,S. Bain to be sold, bartered, and given away and otherwise furnished to other persons in violation of the Constitution and laws of the state of Oklahoma prohibiting the sale or otherwise furnishing of such liquors.
“Wherefore affiant prays the court that a warrant may issue, direct to M. T. Ridpath commanding him to forthwith search said premises and to seize all sprituous, vinous, malt and fermented liquors, or any substitute thereof or imitation thereof that may be ‘ found therein, together with the vessels in which they may be contained and the implements, fixtures and furniture which may be found therein and used and kept for such illegal sale, barter, giving away or otherwise furnishing of such liquors, and to safely keep the same and to make return of said warrant within three days showing all the acts and things done thereunder. M. T. Ridpath.
“Subscribed and sworn to before me this 6th day of June, 1926. L. H. Wray,
“Justice of the Peace.”

A search warrant was issued upon this affidavit as follows:

“State of Oklahoma, to M. T. Ridpath, Greeting.
“Proof by affidavit having been this day made before me, showing that spirituous, vinous, malt and fermented liquor or some imitation thereof or substitute therefor is being kept in a building or buildings on the following described real estate, to wit: NwM 8-16-5 in Lincoln county for sale, barter, to be given away or otherwise furnished to other persons in violation of the Constitution and laws of the state of Oklahoma; therefore you are commanded to make immediate search of said buildings for such spirituous, vinous, malt and fermented liquors, or any imitation thereof or substitute therefor that may be therein kept, and if you find any such liquor therein you are commanded to seize the same, together with the vessel or vessels in which it may be contained and the implements, fixtures, and furniture found therein and used or kept for the illegal sale, barter, giving away or otherwise furnishing of such liquor, and safely keep same, and make return on this warrant within three days showing all the acts and things done thereunder.
“Dated at Chandler this 6th day of June, 1928.
L. H. Wray,
“Justice of the Peace.”

The affidavit upon which the search warrant was issued was wholly insufficient, in that it did not comply with the provisions of section 7018, C. O. S. 1921. Before a search warrant may legally issue, the affidavit must set out that some part of the private dwelling is used as a store, shop, hotel, boarding house, or place of storage, or that the residence is a place of public resort. The affidavit in this case not only fails to show one or some of the necessary facts, but even fails to state that a dwelling house is on the premises described in the affidavit. The affidavit and warrant in this case were sufficient to authorize the sheriff to search the outlying premises, but gave the officer no authority to enter and search the private dwelling of the defendant Eva Bayne.

The sheriff went to the residence of defendant Eva Bayne and under the invalid search warrant issued in this case searched the private dwelling house of Eva Bayne and discovered the still offered in this case. The sheriff testified that he could not see the still and defendant refused to tell him where it was and claimed that there was no such thing on the premises. In searching, the sheriff discovered a step loose in the stairway, and, tearing up four boards, found the still concealed under the stairway. This was all the evidence offered by the state, and is the only evidence upon which a conviction could have been obtained. Timely objection was made by the defendant Eva Bayne to the introduction of these exhibits, on the ground that they had been illegally obtained, under this search warrant. It was reversible error for the court to overrule this objection and admit this evidence.

The only evidence offered in this case as to the still and worm was obtained by means of this unlawful search and seizure. So long as county attorneys approve the making and filing of affidavits like the one in this case, and so long as sheriffs obtain evidence under such void warrants, this court will be compelled to reverse convictions obtained thereby. Had the county attorney seen to it that a proper affidavit was filed and a proper search warrant issued, the conviction could have been sustained, as there was ample evidence, if legally obtained, to support the verdict of guilty.

There being no other evidence in the case upon which the verdict of guilty could have been returned, the case is reversed and remanded.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    MOSE JACKSON v. STATE.
    No. A-6440.
    Opinion Filed Feb. 16, 1929.
    (274 Pac. 696.)

      John Watkins, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Muskogee county on a charge of burglary in the second degree and sentenced to imprisonment for a term of six years.

The information properly charged that Mose Jackson, Robert Watley, and Jesse Norris committed the crime of burglary in the second degree in Muskogee county, state of Oklahoma. The defendants were jointly tried and all convicted. The defendant Mose Jackson prosecutes his appeal to this court.

The defendant in his motion for new trial sets out ten grounds of error, but waives all except two of the errors alleged in his argument in his brief.

The first error relied on is that the court erred in overruling the defendant’s motion for a new trial on the ground that the verdict is contrary to the evidence.

In the case of Harrison v. State, 10 Okla. Cr. 210, 135 P. 948, this court says:

“(¡a) When the evidence disclosed by the record tends reasonably to support the verdict of. the jury, such verdict will not be disturbed by this court on appeal.
“(b) A motion for new trial, based on an allegation that the evidence does not support the verdict of the jury, is addressed, first, to the sound discretion of the trial court, who has seen and heard the witnesses testify, and who must necessarily know a great deal more about the facts and circumstances produced at the trial, which cannot be written into a record, than an appellate court can by reading the record after it is written. And when a trial court has considered and passed upon such an issue, it comes to this court .only on the proposition that as a matter of law the verdict is contrary to the evidence.
“Under this rule, see opinion for facts upon which the verdict in this case is based, and upon a review of which we cannot say as a matter of law the verdict is contrary to the evidence.”

This question has been before this court in State v. Duerksen, 8 Okla. Cr. 601, 129 P. 881, 52 L. R. A. (N. S.) 1013; Maggard v. State, 9 Okla. Cr. 236, 131 P. 549; Nowlin v. State, 7 Okla. Cr. 27, 115 P. 625, 121 P. 791; Calvert v. State, 10 Okla. Cr. 185, 135 P. 737; and many other cases of similar import. The uniform holding of this court has been in harmony with the rule laid down in State v. Rule, 11 Okla. Cr. 237, 144 P. 807, whch is quoted in the syllabus of this case. Under these authorities, it was the duty of the court to overrule defendant’s motion for instructed verdict and defendant’s motion for new trial on the ground of insufficient evidence.

The second question of error raised by the defendant is that the verdict is contrary to law. The evidence in the case is that other box cars had been burglarized during the month of March and goods stolen from those cars were found in the possession of defendant Mose Jackson when the officers were searching for the goods obtained by the burglary of the car in question in this case.

This court settled that question in the case of State v. Rule, 11 Okla. Cr. 237, 144 P. 807. In this opinion Judge Doyle says:

“(b) Evidence that tends directly to prove the defendant’s guilt is not rendered inadmissible because it proves or tends to prove him guilty of another and distinct offense.
“(c) Evidence of a different offense from the one charged is admissible when both offenses are so closely linked or connected as to form a part of the res gestae.
“(d) Evidence of other offenses is competent to prove the specific offense charged when it tends to establish a systematic scheme or plan embracing the commission of two or more offenses so related to each other that proof of one tends to establish the other, or to connect the defendant with the commission of the offense charged.”

Most of the exhibits introduced against the defendant Mose Jackson had been taken from a car that had been recently burglarized in Muskogee, and were introduced for the purpose of establishing the fact that a systematic scheme or plan to rob freight cars in Muskogee was being carried out by the defendants, and are so closely linked together as to form a part of the res gestae, and for the further purpose of overthrowing the testimony of the defendant that he had purchased the property from his co'defendant.

There is ample evidence in the record to support the verdict, and, no reversible errors of law appearing in the record, the judgment of the trial court is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


author: EDWARDS, P. J.

text:
    JOHN GAULT v. STATE.
    No. A-6431.
    Opinion Filed Feb. 10, 1929.
    (274 Pac. 687.)

      James H. Mathers, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Dewey county on a charge of driving an automobile while intoxicated and his punishment fixed at a term of one year in the state penitentiary.

The evidence for the state is that, on the date charged, defendant was intoxicated and drove a Star touring car about the streets of the town of Leedy at a dangerous speed. A deputy sheriff testified that he drove along the main street of the town at a speed of between 40 and 50 miles per hour, and, when he tried to stop him, defendant attempted to run him down with the car. Defendant denied that he was intoxicated, although he testified he had taken a drink or two in the morning. An examination of the record convinces us that the jury was fully warranted in its verdict finding defendant guilty.

It is first argued that the information is insufficient. It charges defendant with driving a car while “drunk.” The statute under which defendant is prosecuted, section 3, Senate Bill No. 26 (chapter 16), Laws of 1923, provides that it is unlawful for any person “under the influence of intoxicating liquor” to drive a motor vehicle on the highways of the state. Defendant contends that the word “drunk” is not equivalent to the words “under the influence of intoxicating liquor.”

Section 2561, Comp. Stat. 1921, is: “The words used in an indictment or information must be construed in their usual acceptation in common language, except words and phrases defined by law, which are to be construed according to their legal meaning.”

Among other definitions, Webster defines the word “drunk” as follows: “1. Intoxicated with or as with strong drink; under the influence of an intoxicant, esp. an alcoholic liquor, so that the use of the faculties is materially impaired; inebriated; drunken.”

In the case of State v. Pierce, 65 Iowa, 85, 21 N. W. 195, it is said a person is drunk in a legal sense when so far under the influence of liquor that his passions are visibly excited or his judgment impaired by the liquor. See, alson, Elkin v. Buschner (Pa.) 16 A. 102; Sapp v. State, 116 Ga. 182, 42 S. E. 410,

This court has often said that words used in a statute to define a public offense need not be strictly pursued in an information, but words of similar import may be used. Martin v. State, 35 Okla. Cr. 248, 250 P. 552. The information alleges the offense with sufficient particularity to enable defendant to prepare his defense and to defend himself in case he should be again informed against for the same transaction.

It is argued at some length that the judgment is excessive; that, since no one was injured, a sentence of one year in the penitentiary is too severe. It is true no one was injured nor any property damaged in the commission of the offense charged, but it was almost miraculous that no one was injured by the manner in which defendant drove along the streets of the town of Leedy. Some protection must be given to those lawfully using the public highways against the driver who becomes intoxicated and recklessly speeds about endangering others. It would be bttter in many cases if salutary punishment could be meted out to those abusing the privilege of driving on the public highway before some innocent person is injured. Justice does not require that we modify the judgment and sentence imposed.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    C. C. PERRY et al. v. STATE.
    No. A-6412.
    Opinion Filed Feb. 16, 1929.
    (274 Pac. 686.)
    Orbie W. Johnson, M. Bristow, and W. R. Wheeler, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiffs in error, hereinafter called defendants, were convicted on a charge of having the unlawful possession of a still, intoxicating liquor, and mash, and were each sentenced to pay a fine of $50, and to serve 30 days in the county jail.

It is first argued that the search was illegal as having been made without a search warrant. Upon this point the record discloses that the still, whisky, and mash were found in some brush about a quarter of a mile from the residence.house. It is well settled that no search warrant is necessary to search fields, woods, pastures, or land not within the curtilage or immediate proximity of the residence.

Complaint is next made that the evidence is not sufficient to sustain the verdict and judgment. The record is very brief, and we have read the same carefully, and, while the evidence, connecting the defendants with the possession and ownership of the whisky, mash, and still, is not unusually strong, yet, if believed by the jury, there was sufficient from which they could reasonably and logically find the guilt of the defendants, and, where there is sufficient evidence under this rule, its weight and credibility is for the jury, and this court will not disturb the judgment for insufficiency.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


author: DAVENPORT, J.

text:
    HENRY CORNETT v. STATE.
    No. A-6379.
    Opinion Filed Feb. 16, 1929.
    (274 Pac. 676.)

      Hamilton, Gross & Howard, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Jefferson county of robbery of the First National Bank of Addington, Okla., with firearms, and was sentenced to imprisonment in the state penitentiary for a term of 30 years.

The state called A. K. Gossom, who testified that he resided at Addington, Okla., on May 7, 1924. Mr. Gos-som then detailed the circumstances of the robbery of the bank of $2,991, and described the location of the bank, described the two men that drove up to the bank, and also the road going east toward what is known as Monument Hill.

The state then called Page Bohanan, commonly known as Happy Bohanan, who testified to being one of the parties who took part in the robbery of the bank, and attempted to detail the defendant’s connection with the robbery, claiming the defendant had assisted in planning the robbery with the witness and Earnest Hensley; that he had helped move Walter O’Quinn and Lucy Collis in a truck to Duncan and Reuben Lamar came with him; giving in detail defendant’s connection with the planning of the robbery and where he was to be when the robbery took place, and where the parties all stayed the night previous to the robbery; admitted his guilt and that he was an accomplice with Earnest Hensley and Eddie Shoquett, and others. The witness then attempted to identify what is known as State Exhibit A, which seems to be a note addressed by some one to Earnest Hensley. Witness attempted to identify State Exhibit B, which attempted to outline the country in and around Addington and the road out to Monument Hill; states he did not draw the map known as Exhibit B.

The state then called W. J. Ballard, the sheriff, who testified to hearing of the bank robbery on May 7, 1924, and of driving to Addington, and the finding of a Ford coupe which had no license tag on it turned over in a ditch, one glass broken and one puncture; there was no one present at the time, and it was shortly after the bank robbery; that he went out over Monument Hill, which is three miles east of Addington, and described the country between Monument Hill and Addington. He stated State Exhibit B was a fair representation of the country from Addington to Ringling, and that the iron stob indicated on Exhibit B was about ten miles out.

John Montgomery was next called by the state. He admitted he was a convict serving a term in the prison at Granite, Okla., and stated defendant gave him a note, and he delivered it to a black-headed boy known as Earnest: “at the time he gave me the note Earnest Hensley and Happy Bohanan was in jail; they were over here from Granite, and I went back with them; I took the piece of paper Henry gave me along back with me; I gave the paper to Earnest back in the deputy warden’s office.”

On cross-examination, he stated he rode in the front seat returning to Granite, and Earnest on the rear seat; that he did not have any chance to give him the note until after he returned to Granite; that he did not read the note, and did not know its contents; witness could not testify as to it being the note he delivered to Hensley, but stated it looked like the note in question.

Earnest Hensley was then called to the stand and admitted he was connected with the bank robbery at Addington; that he knew the defendant, and the substance of his statements are the same as to defendant’s connection with the robbery of the bank as Happy Bohanan’s. Hensley admitted he had been convicted for the part he took in the robbery.

On cross-examination, he admitted he was over to the preliminary of the defendant in this case, and that no note was given him until after they returned to Granite, and that, when the letter was handed to him, he did not read it; that he did read it before the officers got possession of it. Witness further stated he wandered around over the prairie after the bank was robbed on Wednesday until about 3 o’clock Friday; “the roads were not paved out in the country where I was; I think they are paved from Addington to Duncan; I got a hat from an old man out in the country; I did not get anything to eat from him; I thought it would be suspicious to ask for something to eat; I did not see the defendant, Henry Cornett, for several days or weeks after the alleged robbery; when I made the contract and deal to furnish this evidence I thought I had been framed and double-crossed by Walter O’Quinn; I was led to believe in good faith, and did believe that I had been double-crossed, and I was mad then at the defendant; I was pretty sore.”

On redirect examination, witness was asked about the contract marked “Exhibit C,” as the agreement entered into by them; witness could not be positive that State Exhibit C was the contract made with him; he said it was something like that. The contract identified is as follows:

“4-7-1923 “State Exhibit C.
“To Ben Hughes, witness in the presence of Mr. Justice Ben Hughes, for agreeing to reduce sentence to five years, which is thirty-two months and twenty days, and will reduce to parole before judgment passed.
“L. S.. McGuire,
“State Officer & Investigator.”
“Before this statement was drawn, I talked to Mr. Hughes and the party that showed the statement to me and told me to keep a copy of it if I wanted to; I told them it would be no good if their word wasn’t any good and to go ahead and keep them; I was speaking to Ben Hughes.”

Exhibit C was then read by the Attorney General to the jury.

The following question was propounded by the Attorney General: ,

“Now, Ernest, I will ask you if you have told the truth as regards to the agreement or any expectation of any. * * *
“Mr. Mathers: We object to that.
“The Court: Overruled.
“Mr. Mathers: We except.
“A. So far as I know, yes, sir.
“Q. Have you colored your memorandum or have you told the facts like you remembered them? A. Yes, sir.
“Q. Like you remember them? A. Yes sir.”

Continuing, the witness said, “I have served twelve or thirteen months of my sentence; have not received any parole yet.” On redirect examination, he stated he did not know who Slim McGuire, Justice, or Ben Hughes was excepting what they told him.

This was all the testimony on behalf of the state relating to the robbing of the bank and those who took part in it. The state next called James Pistole for the purpose of attempting to corroborate the testimony of the accomplices who admitted taking part in the robbery, and the witness, in substance, testified as follows: He lived at Ringling; he learned of the robbery of the Adding-ton bank; the same day a man and woman came into his restaurant and he had a conversation with them; he did not know who the woman was; they wanted to rent or lease a rooming house, the woman said. At this juncture the prosecution asked the court to require Lucy Collis to be brought into the courtroom, and over the objection of the defendant the court permitted the prosecution to have the witness look over the audience and see if he could identify Lucy Collis, and further in the evidence the prosecution asked that the witness turn away from the audience, and had Lucy Collis take her hat off so she would be in the condition she was when he first saw her. The defendant objected to this, the court overruled his objection, and the witness was permitted to look over the room, and said he recognized the woman. The defendant again interposed an objection, which objection was overruled, and the court permitted the witness to answer, and witness gave the following answer: “That’s the lady, as well as I remember she.”

Witness, on direct examination, stated that after the robbery the officers came back to his place with Lucy Collis, and, over the objection of the defendant, he was permitted to state that he identified her as being the woman that was there the day of the robbery. Witness was then permitted to identify the defendant in this case, and stated that defendant resembled the man with the woman in the restaurant; “it looks like him.” After the witness had been excused from the stand, the question came up as to his positive identification, which had not been made by the witness, and he was recalled and positively identified the defendant as being the man that was in the restaurant at Ringling the day the bank at Addington was reported to have been robbed. Witness admits he had never seen the defendant and the woman before he claims they came to his restaurant to order something to eat; he claims another young man came in about the same time, but he does not know who he was. Ringling is some distance from Addington, and there is a main traveled road from Duncan to Ringling.

The state further attempted to corroborate the accomplices by calling John Cobb, who claims to have been along the road- between Addington and Ringling and to have seen a Ford coupe driving at a rapid rate of speed going from the direction of Addington to Ringling; and he claims he identified Earnest Hensley as being the man that was driving that coupe. He further states that, about five minutes after the Ford coupe that he claims Earnest Hensley was riding in passed, a Ford touring car came along at an ordinary rate of speed, and that the defendant and Lucy Collis were the occupants of this Ford touring car, and that the defendant was driving. Witness had seen neither of these parties before; he was working on a fence and had quit work and had mounted his horse. He undertakes to' make a detailed report of both the man and woman in the touring car, and described the car, and how the parties in the car were dressed. The state attempted to show the skill of the witness John Cobb in identifying individuals by showing he had been engaged in the cattle business and had an eye for quick identification of brands; yet there is no contention that either the defendant or the woman riding with him as claimed by the witness Cobb had any special marks displayed for the keen eye of a man schooled in detecting brands. This is probably the first time in the history of jurisprudence where the witness is deemed to be qualified to identify strangers who were driving along the road from his skill in recognizing and identifying brands of cattle.

The state introduced what is designated as Exhibit A, which is as follows: “Mr. Earnest Hensley; Dear sir and friend, well Hapy done all he could to try to blow me up never did think he was that kind off boy well when I get thru telling and proving what I know on him these people won’t think him such angle and his term may not be as short as he thinks in the pen and I see where you done little off that said snitching but they are lots of difference in snitch and Iyer so maybe you want me to see iff can dig up something on you may transporting a hore is not gance the law and might find possible something else when look around you will have chance to let me know if it suits you to have me see what can do they are frieds off yours in little trouble I think the boys name is George I think they are girl in with him if you want to know anything about it write to one off them old Jim or Ben H they will see you and tell you about it then you can tell them what you want to do or what you intend to do and will then let me know so will know what to expect tear this up when read it.”

State Exhibit A is a piece of paper that'was introduced which John Montgomery, a negro convict in the prison at Granite, attempted to identify as being the paper that was given him by the defendant to be delivered to Earnest Hensley. The negro says he never read the paper that the defendant gave him, and the only attempted identification of the defendant’s handwriting is a statement of some of the accomplices who claim they had seen the defendant sign his name to checks. When cross-examined, the witness admitted that the wife of the defendant had signed the most of the checks, and that the witness had not seen defendant’s handwriting for some time prior to this time.

This is,- in substance, all of the testimony offered by the state to attempt to corroborate the testimony of Hensley and Happy Bohanan. Earnest Hensley and Happy Bohanan are admitted bank robbers; and it is admitted they co-operated together in the robbery of the bank at Addington, and, if their statements are to be considered, they are accomplices of the defendant in this case, and, being accomplices, it is necessary for the state to corroborate their testimony before the jury would be warranted in returning a verdict of' guilty against the defendant.

The question then to be determined first in this case, Is the corroborative testimony of such probative effect as to come within the requirement of the statute requiring corroboration of an accomplice?

Defendant has assigned twelve separate errors alleged to have been committed by the trial court. We will first consider the seventh assignment, which is as follows: “Because there was no legal or competent evidence sufficient in law to corroborate the testimony of the two accomplices testifying for the state.”

Section 2701, C. G. S. 1921, is as follows: “A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.”

It is not denied by the state that the witness Hensley and Bohanan robbed the bank of Addington. The state urges that the letter or note described as State Exhibit A is not denied by the defendant, and that the note tends to corroborate the testimony of the bank robbers. The defendant is not required to prove his innocence, nor'is he required to contradict any testimony offered by the state that is not deemed of such weight or importance as would tend to connect him with the crime. The witness Hensley figures in several ways in this case. He testifies against the defendant, and details the robbery of the bank, and the arrangement prior to the robbery, and where the defendant and witness were together, and places visited. Yet the state wholly failed to produce any witness that saw Hensley and the defendant together. The nearest the state came to connecting the defendant with the witness Hensley is found in the testimony of John Cobb, who claims to have seen Hensley driving along the road at a rapid rate of speed, and about five minutes thereafter claims to have seen the defendant and Lucy Collis driving along in a Ford touring car at an ordinary rate of speed. Again we find Hensley getting a contract of immunity from L. S. McGuire, state officer and investigator, and a man by the name of Ben Hughes, or Justice Hughes, wherein it was shown, if he would testify, he would be given five years, and after the trial a parole. At the time Hensley testified in this case, he stated he had served several months of his time and had not received a parole. Later on, and after the defendant had been tried and convicted in this case, and when defendant filed a motion for new trial on the ground of newly discovered evidence, the witness Earnest Hensley made an affidavit on the 27th day of April, 1927. In this affidavit Hensley stated in the trial of Henry Cornett he testified against the said Henry Cor-nett, and the statements made in his testimony were not true as far as the evidence incriminated or connected Henry Cornett in the robbery of the Addington bank; that prior to the date of the robbery he and Happy Bo-hanan went to the .Del Monte rooms in Duncan, met Guy Wilkinson, Claude Lee, and Eddie Shoquett, where th& question of the robbing of the Addington bank was discussed. He states the morning of the robbery they left Duncan about 6 o’clock in two cars — Eddie Shoquett, Happy Bohanan and himself riding in a Ford coupe, Claude Lee and Guy Wilkinson were in a touring car— they left Claude Lee on Monument Hill; he drove the car and remained in the car while Eddie Shoquett and Happy Bohanan robbed the bank; “in driving east from Monument Hill, I had an accident' and turned the car over. I then waited for Claude Lee to come with his car and when he did come I got in and rode two miles; when I left him I laid down in a ditch; Claude was to go on to Ringling and get something to eat and come back that night after it got dark; I left that night and walked to Guy Wilkinson’s camp, but as there was no one there I came on into Duncan, where I found Happy Bohanan and Eddie Shoquett; they gave me my part of the money from the robbery; I went to Oklahoma City, and the question of the robbery was discussed with a number of officers, Mr. L. S. McGuire, in the bureau of investigation being one talked with; I was to be a witness against Walter O’Quinn and was to enter a plea of guilty to the charge against me and accept a sentence of five years in prison, which was to be reduced after the trial of O’Quinn to a parole; Luther Bishop came to see me about making a witness against Henry Cornett, and I told him Henry Cornett did not have anything to do with the robbery; he told me if I did not make an agreement to make a witness against Cornett I would have to serve the five years’ sentence against me, and m addition to that they would prefer other charges against me, and that is the reason I swore as I did in the trial of the case against Henry Cornett on this charge; the evidence was not true, and was given under a promise and hope of having a lighter sentence if I would do so.” Hensley further stated in the affidavit that his statement to the officers that Henry Cornett had nothing to do with the robbery of the Addington bank was true.

The state in its brief argues that the testimony of the witness called by the state to corroborate the two witnesses who admitted they were in the bank robbery is sufficient corroboration, citing Wilson v. State, 24 Okla. Cr. 332, 217 P. 885. A careful examination of the facts in the Wilson Case shows that the testimony of Mary Glover, the daughter of J. D. Glover, was to the effect that the defendant, shortly before the alleged offense occurred, came to their home armed, and ordered them to stop cutting timber, and told the witness that, if her papa wanted to leave with his family, he had better be leaving. In addition to this, there was evidence showing footprints leading from the scene of the riot to the home of the defendant. This statement of facts connecting the defendant directly with the transaction was such circumstances as tended to show the defendant’s connection with the riot of which he was charged.

In Moody v. State, 13 Okla. Cr. 327, 164 P. 676, in the third paragraph of the syllabus, the court said.: “It is not essential that the corroborating evidence shall cover every material point testified to by the accomplice, or be sufficient alone to warrant a verdict of guilty. If the accomplice is corroborated as to some material fact or facts by independent evidence tending to connect the defendant with the commission of the crime, the jury may from that infer that he speaks the truth as to all. Such corroborating evidence, however, must show more than the mere commission of the offense or the circumstances thereof.”

In the Moody Case there was evidence tending to show there had been ill feeling between Moody and W. P. Rausin, who was killed; that the defendant had expressed himself to a witness that he ought to kill the deceased, that the deceased a few days before the killing had put up defendant’s mules and charged him $1.50 to get them released. The witness testified that the defendant told him the $1.50' Rausin charged him for the mules was the cause of his death; the tracks led from where the body of Rausin was found toward the home of the defendant, and the shoes of the defendant fitted the larger tracks exactly. Under such circumstances and proof, it tended to corroborate the other witnesses in the case.

In Haas v. State, 37 Okla. Cr. 335, 257 P. 1115, the question of the corroboration of the accomplice was considered by this court fully, and the court in its second paragraph of the syllabus said: “Where, upon a charge for burglary, a defendant is convicted upon the testimony of accomplices, with independent evidence tending to connect him with the commission of the offense, this court will take the strongest view of the corroboration that the evidence warrants.”

However, the testimony shows in the Haas Case that the accomplice was corroborated by witnesses who were running ,a filling station, where defendant and accomplices stopped and had some work .done to the headlights on their car; that, after the burglary, the goods were hid by a bridge, and all parties drove out to get the goods, and two accomplices got out and got them, and defendant and a man by the name of Hood drove away in the car. Later on, witnesses identified the defendant as being the man with Hood who came to their house and telephoned for a service car; the defendant being identified immediately before the robbery and immediately after as being one of the men in company with the accomplices. This testimony was independent of the testimony of the accomplices, which tended to connect the defendant with the burglary and was sufficient to warrant the jury in finding the verdict it did in that case.

In Wever v. State, 22 Okla. Cr. 414, 211 P. 1062, this court cited with approval the case of Kirk v. State, 10 Okla. Cr. 281, 135 P. 1156, in which it was stated: “There cannot be a conviction unless there is proof of substantial facts tending to connect the defendant with the commission of the offense aside from and without the aid of the accomplice testimony.”

In order that a conviction may be sustained, it is necessary that the corroborative evidence directly connects the defendant with the commission of the offense. In Jolliffee v. State, 21 Okla. Cr. 278, 207 P. 454, the court reaffirmed the doctrine that a party cannot be convicted on the uncorroborated testimony of an accom-. plice, citing Thompson v. State, 9 Okla. Cr. 525, 132 P. 695; Hendrix v. State, 8 Okla. Cr. 530, 129 P. 78, 43 L. R. A. (N. S.) 546.

In Powell v. State, 21 Okla. Cr. 332, 207 P. 570, in discussing the testimony, the court says: “The court is of the opinion that the evidence of both Hart and Cline is that of accomplices, and if this conviction is allowed to stand there must be found in this record evidence independent of those two witnesses which tends to connect the defendant with the commission of the offense. Is there any such evidence? The state asserts that the evidence is sufficient, but nowhere in the brief filed in behalf of the state is there pointed out any evidence tending to corroborate the testimony of the accomplices. We fail to find any which we deem to be sufficient for that purpose. True, there is some evidence which would create •a suspicion of the defendant’s guilt, but not more, as we view it. The evidence of Mrs. Homer Hart and of W. J. McGuffey, if unexplained, might have that effect, but at most it only tends to prove that some time after the receipt of this stolen car the defendant Powell had then received information that the car was probably a stolen car.”

In Livingston v. State, 29 Okla. Cr. 247, 233 P. 235, this court said: “Woods further testified that Sunday night, before the robbery on Monday, they spent the night at Livingston’s in a garret room, and that Livingston carried their breakfast to them in this room; that at about 11:30 Sunday night they drove with the defendant and a Mr. Burns from Sayre to a place near the river bridge, where they got ,a sack of clothes which they had previously hidden there.”

In this case, on a hearing upon the motion for continuance, the record is filled with statements and counter statements as to an agreement that had been entered into with the defendant provided he would give certain testimony; the defendant alleging that he was advised by certain officers not to take his witnesses to court the time the case was assigned for trial, as his case would not be called for trial. This is contradicted by the officers, and defendant’s motion for continuance based on that ground was overruled, and defendant forced to go to trial without his witnesses. The defendant in his motion for continuance did not show diligence; no effort being made by him to have his witnesses subpoenaed. He should have had his witnesses subpoenaed or had the agreement that he claims he had with the officers reduced to writing.

A brief summary of the testimony in this case, when stripped of all its unnecessary statements, is this, the bank of Addington was robbed by Eddie Shoquett, Happy Bohanan, and Earnest Hensley; Bohanan and Hensley admitted they took part in the robbery, and testified ■against the defendant in this case, in which they attempted to say that defendant assisted them in planning the robbery, but did not take part in the robbery; that the defendant was to be out on the road near Monument Hill and was to pick up Hensley in defendant’s car after the robbery.

In this case it is necessary to analyze the testimony and arrive at a conclusion as to whether or not there is sufficient testimony positive or circumstantial to connect the defendant with the commission of the crime. The substance of the testimony pointing to the question of corroboration of the accomplices is as follows:

Earnest Hensley, after the defendant was convicted, and when his motion for a new trial was filed on the ground of newly discovered evidence, made the affidavit which is attached to the motion for a new trial, in which he stated positively that his testimony in the trial of the defendant was false, and was given by him upon a promise of the officers that he would receive immunity; that he would enter a plea and be sentenced to five years, and then after the trial he would secure a parole. It is further shown by Earnest Hensley, who is an admitted bank robber, that he had negotiated with the different officers and figured in several different ways with the officers as to his testimony in this bank robbery. It is true this affidavit of Earnest Hensley may be entitled to but little weight; however, it tends to show the theory of the defendant that in this case the testimony of the defendant was not true. The testimony which the state introduced attempted to corroborate the confessed accomplices, and if true, fails to connect the defendant with the parties any time before the robbery. In other words, the testimony introduced by the state fails to show any connection or association of the defendant with the accomplices just prior to the robbery, or within any reasonable time, or showing where the defendant was with the parties who admit they committed the robbery.

The only testimony the state offered is the testimony of John Cobb, who had never seen the defendant before the day he claims to have seen him driving on the road near where Cobb was fixing fence, and who attempts to identify defendant and Lucy Collis as being the parties he saw going in the direction of Ringling. If it be true that the parties Cobb saw were defendant and Lucy Collis, there is nothing shown that was unusual, as they were driving along a public highway where all parties had a right to drive, in a quiet and peaceful manner, nothing to indicate that they were trying to keep from being seen. Cobb was indefinite in his identification of defendant until after he left the witness stand, and was recalled and then positively identified the defendant as being the man he claims to have seen driving along the' road in company with a woman he says was Lucy Collis.

The witness Pistole, who was running a restaurant at Ringling, several miles away from the scene of the robbery, also testified that the defendant resembled the man that came to his restaurant with a woman and ate something. He also says in his testimony that the woman spoke about renting a rooming house. Not a word of testimony could in any way be interpreted, if it be true, that the defendant and Lucy Collis were the parties that came to his restaurant the day of the robbery, were trying to conceal themselves in any way or that they acted in any suspicious manner. They had a right to be in Ringling and to stop in a restaurant to get something to eat. The fact that they were there would not be ■a sufficient fact alone to connect them with the robbery of the bank or to show that they aided or abetted in the robbery.

The next effort made by the state was to try to show by the negro convict, who was imprisoned in the Granite prison, that he had received from the defendant a note to be given to a black-headed boy by the name of Earnest. The negro had not read the note, and was not able to identify it except to say it looked like the note he delivered to Earnest Hensley. The note was introduced in evidence, the language of which shows that the writer was either uneducated or probably wrote it to show it was written by an uneducated person. It was attempted to identify the note as being the handwriting of the defendant, by a confessed accomplice, who testified he had seen the defendant sign his name to checks. The circumstances under which the note appeared are very peculiar. If it be true that the defendant wrote the note as the state attempted to show, there is not a word in it referring to this case. It does not tend to show the defendant had anything to do with the bank robbery, and therefore it is not sufficient to connect the defendant with the robbery or show that he aided or abetted in it.

In Livingston v. State, 29 Okla. Cr. 247, 233 P. 235, this court said in the syllabus: “Where a witness for the state admits that he participated in the robbery of a bank, and implicates the defendant, his testimony is not sufficiently corroborated by merely showing that the defendant was near the scene of the robbery. The corroboration of an accomplice must show more than a commission of the offense. It must show some fact or circumstance implicating the accused in the perpetration of the crime.”

In the Livingston Case, supra, the state did show that Livingston was in Sayre, at or about 12 o’clock noon, the day of the robbery, and that he left town alone, passing along a road near a weed and plum thicket at the rear of the bank, this being the extent of the testimony attempting to corroborate the testimony of Woods, who testified that Livingston was connected with the bank robbery. The state in this case asserts that the evidence is sufficient to corroborate the testimony of Hensley and Bohanan, who were admitted accomplices. We fail to find any testimony which we deem sufficient for that purpose. It is true there is some evidence which would tend to create a suspicion of the defendant’s guilt, but as we view it it is nothing more than a suspicion.

We hold that, independent of the testimony of the witnesses Hensley and Bohanan, there is not sufficient evidence of a convincing character to show that the defendant had anything to do with this robbery, or that he aided or abetted in it. If it be true that the defendant was along the road and in Ringling at the time the state attempts to show he was, that would not be sufficient to connect the defendant with the robbery in this case.

There are other errors assigned by the defendant, but the view we take of this record it is not necessary to consider them.

The case is reversed and remanded.

EDWARDS, P. J., and CHAPPELL, J., concur.


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    Ex parte LUTHER DITMORE.
    No. A-7283.
    Opinion Filed Feb. 22, 1929.
    (274 Pac. 697.)
    J. Q. A. Harrod, Laynie W. Harrod, and H. W. Morgan, for petitioner.
    Edwin Dabney, Atty. Gen., J. H. Lawson, Asst. Atty. Gen., S. P. Freeling, A. J. Morris, Ted Morgan, and Sam L. Wilhite, for the State.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus. The petitioner alleges that heretofore he was charged by a preliminary complaint before the county judge of Caddo county with the crime of murder in the killing of one Ted Fisher, that a preliminary trial was had, and that petitioner was held without bail for trial in the district court on said charge; that thereafter he filed a petition for .a writ of habeas corpus before Hon. Will Linn, district judge, to be let to bail; that said petition was denied, and he is in the custody of the sheriff of Caddo county. Petitioner avers in substance that the proof is not evident nor the presumption great that he is guilty of the crime of murder, and that he is entitled to be admitted to bail pending trial. There is attached to his petition .a transcript of the testimony taken at the preliminary hearing, and he introduced in evidence here a further transcript, taken before the district judge on his application.

In this state a person charged with an offense less than capital is entitled to bail .as a matter of right. In criminal case;s where the punishment may be death, a person accused may be admitted to bail by the Criminal Court of Appeals, or by the district court or superior court, or by a justice or judge thereof, unless the proof is evident or the presumption great, in which case the offense is not bailable. Sections 2920, 2921, Comp. Stat. 1921. Where a person is charged with a capital crime, and has made application to the district or superior court or a judge thereof for bail, which is denied, and his application is made to this court, the burden is on him to show that the proof is not evident, nor the presumption great, and unless he sustains such burden bail should be denied. Ex parte Pope, 37 Okla. Cr. 366, 259 P. 149; Ex parte Whitenack, 38 Okla. Cr. 102, 259 P. 165; In re Jones, 41 Okla. Cr. 224, 271 P. 426. Where the homicide is proven or admitted, this court, on an application for bail, will not indulge any presumption for the accused either of justification or mitigation (Ex parte Fraley, 3 Okla. Cr. 719, 109 P. 295, 139 Am. St. Rep. 988), but will examine all the evidence introduced both for the state and the petitioner, and if, upon a consideration of all the evidence, the petitioner has failed to sustain the burden cast upon him, bail will be denied.

Upon an application for bail, we refrain from discussing the evidence more than absolutely necessary, in order that any statement we may make should not in-' fluence the trial. It is necessary, however, to refer briefly to the testimony. From the record it appears that petitioner is 40 years of age and deceased was 26 years of age. There was no particular disparity physically in size. Petitioner admits he was a bootlegger, and that Fisher, the deceased, frequently came to his residence, and on the day of the homicide he came there, and other parties were also there, and that all drank whisky served by petitioner; that later all left the residence, except petitioner, his wife, and Fisher; soon Fisher left, and then petitioner left, .and was gone 30 or 40 minutes, returned, and discovered Fisher in the act of having sexual intercourse with his wife; that he rushed into the house, and as Fisher raised, with a butcher knife in his hand, he knocked the knife from his hand, then struck him, and they scuffled and fought for some time; that he threw deceased on the floor and “stomped” him to death. The wife of petitioner also testified in corroboration. They were the only eyewitnesses.

The details of the homicide are revolting in the extreme. The circumstances and the physical facts surrounding the killing, however, throw considerable light upon it, and tend very materially to impeach the oral testimony. The first person to appear at the home after the killing, possibly some 30 or 40 minutes later, was a young woman who had been working there. Petitioner met her at the door and inquired if she was his friend, and, on being assured that she was, she entered and he showed her the body lying on the floor of the bedroom, and upon her suggestion called an officer, who in turn called a physician. When they appeared, the body was in ,a state or repose, almost upon its back, the feet stretched out, one arm pulled over the body. The belt which supported the trousers of deceased was unbuckled in front, the trousers laid back, the underclothing open, and the privates laid out upon one side. There were blood marks upon the underclothing and upon the privates, which the physician testified were finger prints. The trousers on the body of deceased at the back were in the normal position. From these and other circumstances, not recited, with some unreasonable features of the testimony of petitioner and his wife, the conclusion seems almost irresistible that the body had been posed in the position in which it was found.. This must have been the conclusion reached by the district judge. Under all the evidence adduced, and the circumstances shown, it appears to us to be a reasonable and logical deduction. As the case has not yet been tried, we withhold any further statement of the evidence or conclusions based thereon.

We are of the opinion that the petitioner has not sustained the burden placed upon him by the law, and that bail should be denied.

DAVENPORT, and CHAPPELL, JJ., concur.


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    GUS STRONG et al. v. STATE.
    No. A-6079.
    Opinion Filed Feb. 23, 1929.
    (274 Pac. 890.)

      Guy Talbot, for plaintiff in error Frank Johnson.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiffs in error, hereinafter referred to as the defendants, were convicted in the county court of Alfalfa county, on a charge of transporting intoxicating liquors, and each sentenced to pay ■a fine of $50 and serve 30 days in the county jail.

The evidence shows that Diar Goff, sheriff of Alfalfa county, saw the defendants and Donald Brokovski drive away in a car, and he went out on the road and watched until they returned, and, as they were coming down the road approaching the sheriff, he turned out in the middle of the ro¡ad and stopped the car in which the defendants were riding, that in the car was Strong, Johnson, and Brokovski. The sheriff answered the following questions:

“Q. Did you stop them? A. Yes, sir.
“Q. Talked to them? A. Yes, sir.
“Q. Did you say anything about looking through the ear? A. Yes, sir, they said go ahead, you won’t find anything.
“Q. Did you? A. Yes, sir.
“Q. What did you find?
“Mr. Talbot: Objected to as incompetent, irrelevant and immaterial.
“Mr. Miller: We object to that as incompetent, irrelevant and immaterial.
“By the Court: Overruled.
“Mr. Miller and Mr. Talbot: Exceptions.
“A. Five pints of whisky.”

The record further discloses that the witness Donald Brokovski entered a plea of guilty to the charge and testified against the defendants Guy Strong and Frank Johnson, detailing where he went and where the whisky was purchased by defendant Strong. Brokovski claims to have seen Strong give Bill Giles a $5 check and $1 for two pints of whisky, and claims that at another place later they got another pint.

The defendants testified in their own behalf, and denied any knowledge of the whisky being in the car, and called Bill Giles as a witness, who testified that he did not sell either of the defendants whisky.

The defendant Johnson admitted that he told the sheriff to go ahead and search the car, and he was surprised when the sheriff found the whisky in the car. Defendant Strong denied having anything to do with the purchase of the whisky or putting it in the car. This is in substance the testimony.

The defendants objected to the introduction of the testimony of Sheriff Goff, on the ground that it was obtained unlawfully, as the witness Goff had no search warrant and his search of the car was unlawful and his testimony as to the whisky being in the car was inadmissible. It is admitted by the state that the sheriff, when he stopped the car in which the defendants were riding and told them he wanted to search the car, had no search warrant, nor did he have a warrant for their arrest. This court has repeatedly held that evidence obtained by :a search of defendant’s home, person or car without a search warrant, for the sole purpose of obtaining evidence against the party charged, is in violation of article 2, section 30 of the Bill of Rights, which is 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; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may ■be the place to be searched and the person or thing to be seized.”

This court has held that evidence obtained by a search of defendant’s car without a search warrant is inadmissible against the parties charged, where proper or timely objections were made.

In Klein v. State, 26 Okla. Cr. 173, 223 P. 201, this court said: “Where the possession of an unlawful thing is open and obvious, so that anyone within reasonable distance can readily see it, no search warrant is necessary, and the evidence thus obtained may be received upon the trial of the accused. However, a search implies invasion and quest, and that implies some sort of force, actual or constructive, much or little. The right of the citizen to be secure in his person and possessions from such unlawful search and seizure is as secure as the bill of rights can make it (Const, art. 2, § 30), and this right should be respected by officers and courts.”

In Childress et al. v. State, 31 Okla. Cr. 308, 238 P. 218, this court said: “It is too familiar to require citation of authority that it is the settled doctrine in his .state that, in order to make an arrest and seizure without a warrant under section 7014, C. S. 1921, there must be a violation of the prohibitory liquor laws committed in the presence of the arresting officer, and a conviction must be reversed where evidence procured by an officer of the court by means of an unauthorized search and seizure is admitted over the objections of the defendant.”

This court, in the case of Britton v. State, 34 Okla. Cr. 391, 246 P. 666, in the syllabus, said: “Search of a car without warrant of arrest or search warrant or knowledge by officers that it contained whisky is held illegal, and evidence so obtained should have been excluded upon timely objection.” Gore v. State, 24 Okla. Cr. 394, 218 P. 545; Keith v. State, 30 Okla. Cr. 177, 235 P. 634; Combest et al. v. State, 32 Okla. Cr. 47, 239 P. 936; Klein v. State, supra; Britton v. State, supra.

The trial court, in its sixth instruction, properly declared the law to. the jury, which instruction is as follows: “You are instructed by the court, that under the laws of this state, no search of the automobile mentioned in evidence could be had by the sheriff at the time mentioned, unless he had a search warrant for the purpose' or unless the defendant- gave him permission so to do, therefore if you find and believe from the evidence in this case, beyond a reasonable doubt, that at the time of the search of the automobile by the sheriff as mentioned in the evidence, the defendants gave him their permission to make such search of the same, then and in that event you will consider his testimony and state’s exhibit ‘A’ and ‘B’ along with all the other evidence in the case touching the guilt or innocence of the defendant or either of them. On the other hand, you are instructed that if after a consideration of the evidence in the case you find that at the time of the said search of said automobile by the sheriff the defendants, and each of them, did not give him permission to search said car, or if after a consideration of all the evidence in the case, you entertain a reasonable doubt as to whether the defendants, or either of them, did give their permission to the sheriff to search said car then in either of these two events, you shall wholly disregard all the evidence of the sheriff in this case concerning such search of said car, and the finding therein by him of any whisky, and shall not consider his evidence nor that of stated exhibits ‘A’ and ‘B’ for any purpose whatever in the case, but shall utterly exclude the same from your minds or consideration in determining the guilt or innocence of the defendants. But shall only consider such other evidence in the case touching the guilt or innocence of the defendants, if any, as defined in the other instructions of the court.”

The court’s instruction clearly advised the jury as to its duty. The sheriff did not claim that he had any knowledge the defendants were transporting whisky, or that, after he stopped their car, he could see the container in which the defendants had the whisky; therefore the action of the sheriff in searching the car 'without a warrant to search or a warrant for the arrest of the defendants was unlawful, unless the statute which creates a misdemeanor contains some provision to the contrary. Mere suspicion that it is being violated will not justify the arrest of the defendants. Criminal statutes must be strictly construed, and applied in harmony with the rule of common law. A well-settled doctrine is that an arrest for a misdemeanor cannot be made without a warrant, unless the offense is committed in the presence of the officer, nor can the officer search a defendant’s car unless he has knowledge that the car contains whisky. Britton v. State, supra.

In Carroll v. U. S., 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790, the Supreme Court of the United States stated the facts in the case, which are as follows: “Cronenwett and Scully were in an apartment in Grand Rapids. Three men came to that apartment, a man named Kruska, and the two defendants, -Carroll and Kiro. Cronenwett was introduced to them as one Stafford, working in the Michigan Chair Company in Grand Rapids, who wished to buy three cases of whisky. The price was fixed at $130 a case. The three men said they had to go to the east end of Grand-Rapids to get the liquor and they would be back in half or three-quarters of an hour. They went away and in a short time Kruska came back and said they could not get it that night, that the man who had it was not in, but that they would deliver it the next day. * * * The proposed venders did not return the next day and the evidence disclosed no information of their failure to do so. One may surmise that it was suspicion of the real character of the proposed purchaser, whom Carroll subsequently called by his first name when arrested in December following. Cronenwett and his subordinates were engaged in patrolling the road leading from Detroit to Grand Rapids, looking for violations of the Prohibition Act. This seems to have been their regular tour of duty. On the 6th of October, Carroll and Kiro, going eastward from Grand Rapids in the same Oldsmobile roadster, passed Cronenwett and Scully some distance out from Grand Rapids. Cronenwett called to Scully, who was taking lunch, that the Carroll ■boys had passed them going toward Detroit and sought with Scully to catch up with them to see where they were going. The officers followed as far as East Lansing, half way to Detroit, but there lost trace of them. On the 15th of December, some two months later, Scully and Cronenwett, on their regular tour of duty, with Peterson, the state officer, were going from Grand Rapids to Ionia, on the road to Detroit, when Kiro and Carroll met and passed them in the same automobile coming from the direction of Detroit to Grand Rapids. The government agents turned their car and followed the defendants to a point some 16 miles east of Grand Rapids, where they stopped them and searched the car. They found behind the upholstering of the seats, the filling of which had been removed, 6& bottles. These had labels on them, part purporting to be certificates of English chemists that the contents were blended Scotch whiskies, and the rest that the contents were Gordon gin made in London. When an expert witness was called to prove the contents, defendants admitted the nature of them to be whisky and gin. When the defendants, were arrested, Carroll said to Cronenwett, ‘Take the liquor and give us one more chance and I will make it right with you’ and he pulled out a roll of bills of which one was for $10.00.”

The court held that the fact that the defendant had previously agreed to deliver whisky to the enforcement officers, and the further fact they came along driving the same automobile was sufficient to show that the officers had sufficient knowledge, and the actions of the enforcement officers were not unlawful under the facts and circumstances disclosed by the record. Further in the opinion, the court says: “Having thus established that contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant, we come now to consider under what circumstances such search may be made. It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. Travelers may be so stopped in crossing -an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in. But those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise.”

This court has repeatedly held that, if the officers had knowledge that an offense was being committed, he had the right to search without a warrant, and to arrest the party committing the offense without a warrant, but that the officer must have some knowledge, not mere suspicion, an offense is being committed before he is authorized to stop the occupants of an automobile on a public highway and search the same without a warrant for the arrest of the occupants, or to search the car. Those rightfully within the state entitled to the use of the public highway have a right to the free passage without interruption and without being subject to the inconvenience and indignity of such a search.

In this case it is contended that the defendants, when the car was stopped by Sheriff Goff, waived their constitutional rights, and consented to their car being searched. The question to be determined in this case is, Does the fact disclosed by the record show that the defendants waived their constitutional right? The constitutional right against the unlawful search and seizure is a personal one, and the defendant may waive such right. As disclosed by the record in this case, the question was, Did the defendants voluntarily waive their constitutional right? The court properly submitted to the jury the law as to whether or not the defendants had waived their right, and the jury found they had. The verdict is supported by the evidence. Baker v. State, 35 Okla. Cr. 62, 248 P. 846.

Some other contentions are raised by the defendant, but none of them have sufficient merit to warrant a reversal of this case.

The case if affirmed.

EDWARDS, P. J., concurs.


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    LEV DOBBS v. STATE.
    No. A-6501.
    Opinion Filed March 2, 1929.
    (274 Pac. 902.)
    Jeff D. McLendon and I. C. Sprague, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of McCurtain county of manslaughter in the first degree, and his punishment fixed at imprisonment in the state penitentiary for a term of five years.

The case was tried in August, 1926; the appeal was lodged in this court February, 1927. No briefs in support of the appeal have been filed, nor was there any appearance for oral argument at the time the case was submitted.

The record discloses that on the day charged, Mike Brodie, with his small son about 10 years of age, was driving along the highway in a wagon when he was accosted by defendant and John Dobbs, who provoked a difficulty. Brodie got off his wagon and was assaulted by John Dobbs with a knife and eight wounds inflicted, from which he died almost immediately. Defendant was present abetting John Dobbs in the commission of the homicide.

It is a uniform holding of this court that where an appeal is prosecuted upon conviction for a felony, and no brief is filed nor oral argument made in support of the appeal, this court will not search the record to discover some error upon which to predicate a reversal, but will examine the record for jurisdictional or fundamental error, and, if none appear and the evidence reasonably supports the verdict, the judgment will be affirmed. We have done so in this case; no material error is apparent.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ.,. concur.