text:
    FRANK KOLAR v. STATE.
    No. A-4662.
    Opinion Filed Jan. 24, 1925.
    (232 Pac. 449.)
    (Syllabus.)
    1. Evidence — Judicial Notice that “Com Liquor” is “Com Whisky.” This court will take judicial notice that the word “corn liquor” is a vernacular term, by common acceptance and use meaning “corn whisky.”
    2. Intoxicating Liquors — Information Charging Possiession of “Com Liquor” With Intent to Sell Supported by Evidence of Such Possession of Corn Whisky. An information charging a crime in having possession of intoxicating liquor, to wit, “corn liquor,” with intent to sell, etc., is supported by proof that the person charged had possession of “corn whisky” with intent to sell.
    Appeal from County Court, Canadian County; W. M. Wallace, Judge.
    Frank Kolar was convicted of unlawful possession of intoxicating liquors, and he appeals.
    Affirmed.
    Fogg & Bennett, for plaintiff in error.
    ■George F. Short, Atty. Gen., and John Barry, Asst. Atty. Gen., for the State.
   EDWARDS, J.

Frank Kolar was tried in the county court of Canadian county, and convicted of unlawful possession of intoxicating liquors. The charging part of the information is in these words:

“* * * That one Frank Kolar, late of the county of Canadian and state of Oklahoma, on or about the 4th day of January, in the year of our Lord one thousand nine hundred and twenty-three, at and within the said county and state, did then and there willfully, unlawfully have the possession of intoxicating liquor, to wit, 50 gallons of corn liquor, for the purpose of selling, bartering, and otherwise furnishing same, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state.”

The principal assignment of error is that the verdict is contrary to thé evidence, it being the contention of plaintiff in error that the proof of corn whisky or whisky would not support the charge in the information of “corn liquor,” and that, if the state relies for conviction upon the proof of corn liquor, its intoxicating character must be proven; that evidence as to the possession of whisky would be improper under a charge of corn liquor.

The record discloses that the plaintiff in error had in his possession more than 50 gallons of corn whisky, hidden in a straw stack, and admitted that the same was his and had been made by him. If there is no variance between the charge in the information and the proof, the state made a strong case, and the verdict is fully warranted by the evidence.

In the trial of the case the words “corn liquor,” as set out in the information, and the word “whisky,” or “corn whisky,” were used interchangeably.

In the evidence M. F. Meadows testified as follows:

“Q. What was it in this bottle, if you know? A. Corn liquor.
“Q. Do you know what corn liquor is? A. I think I do.”

Thereupon counsel for plaintiff in error cross-examined and referred to the liquor found as whisky, apparently treating the terms “whisky” and “corn liquor” as synonymous. The other witnesses in like manner treated the words “whisky” and “corn liquor” as being interchangeable.

We find only one case which appears to be in point on the use of the term “corn liquor.” In Wilburn v. State, 8 Ga. App. 28, 68 S. E. 460, the court, in upholding a conviction, said:

“It is insisted that there is a fatal variance between the allegation of the presentment and the proof, in that the only evidence tending to show that the liquor purchased was alcoholic, spirituous, malt, or intoxicating was that of the state’s witness, who testified that he bought corn liquor from the defendant. We think this was sufficient, in the absence of anything to the contrary, to authorize tne inference on the part of the jury that the liquor sold was corn whisky and intoxicating. Considering the nature of the case being tried, as well as the ordinary acceptation of the term ‘corn liquor,’ it would hardly be reasonable to assume that the jury could have inferred that the witness meant anything else than corn whisky when he stated he bought ‘corn liquor.’”

In thus holding we are not unmindful of the decisions of this court in the case of Yoather v. State, 5 Okla. Cr. 46, 113 P. 284, in which it is held that—

“On the trial of an indictment which charges the sale or giving away of a specific kind of liquor by name, not accompanied by general descriptive terms, the sale must be proved as alleged.”

That was a case in which the information charged the giving of whisky, and the proof showed alcohol instead of whisky; and in the case of Smith v. State, 7 Okla. Cr. 4,120 P. 1031, wherein the information charged that appellant sold whisky, beer, wine, and ale, and the proof showed the sale of patented medicine with unlawful alcoholic contents. Those cases turned upon the variance between the intoxicant alleged in the information and the intoxicant proven, while in the instant case the intoxicant alleged and proven is the same, but designated by different names which are synonymous.

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

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


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    JOHN COMBA v. STATE.
    No. A-4737.
    Opinion Filed Jan. 27, 1925.
    (232 Pac. 450.)
    (Syllabus.)
    Intoxicating liquors — Unlawful Possession — Conviction Sustained. In „a prosecution for unlawful possession of intoxicating liquor, evidence held sufficient to support conviction and that no material error was committed on the trial.
    Appeal from County Court, Ottawa County; Wm. M. Thomas, Judge.
    John Comba was convicted of unlawful possession of intoxicating liquor, and he appeals.
    Affirmed.
    Frank Nesbitt, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

Plaintiff in error, John Comba, was tried upon an information charging that he did have in his possession about 10 gallons of whisky with the unlawful intent to sell the same. He was found guilty by the jury and his punishment fixed at a fine of $500 and confinement in the county jail for six months. From the judgment rendered on the verdict, he appealed by filing in this court on June 21, 1923, a petition in error with case-made; but no •brief in support of the assignments of error has been filed and no appearance made in his behalf in this court.

An examination of the record discloses that the evidence is sufficient to sustain the verdict, and there is no prejudicial error in the rulings upon the admission of evidence. The instructions fairly stated the law applicable to the case.

The judgment of the lower court is therefore affirmed.

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


author: DOYiLE, J.

text:
    Ex parte J. I. BARNETTE.
    No. A-5403.
    Opinion Filed Jan. 27, 1927.
    (232 Pac. 456.)
    (Syllabus.)
    1. Habeas Corpus — Writ not Intended as ¡Substitute for Appeal. Tbe writ of habeas corpus is not intended to operate as a writ of error or certiorari, and cannot be substituted for an appeal. There must be illegality or irregularity sufficient to render the proceedings void.
    2. Same — Relief from Conviction Only Where Judgment Shown Void. Where petitioner is imprisoned under a judgment of conviction, unless the court was without jurisdiction to render the particular judgment, and the judgment is void and not merely voidable, relief cannot be had by habeas corpus.
    3. Same — Mere Irregularities not Considered on Application for Writ. On an application for a writ of habeas corpus, errors or irregularities, not jurisdictional, will not be considered.
    4. Same — Judgment of Conviction Regular on Face not Subject to Collateral Attack. A judgment of conviction of a court of record, imposing fine and confinement, is not subject to collateral attack on habeas corpus, where it appears regular on its face.
    Petition of J. I. Barnette for writ of habeas corpus to be directed to R. D. Sanford, Sheriff of Tulsa County.
    Denied.
    George Paschal and J. L. Ward, for petitioner.
    The Attorney General, for respondent.
   DOYiLE, J.

The petition shows that the petitioner, J. I. Barnette, in November, 1928, in the municipal court of the city of Tulsa, was convicted on a charge of transporting intoxicating liquors and sentenced by the court to pay a fine of $50 and be confined in the Tulsa county jail for 80 days; that petitioner is now held in custody under such sentence, and prays that a writ of habeas corpus issue to R. D. Sanford, sheriff of Tulsa county, to the end that the petitioner may be released from such imprisonment.

It appears that the regular judge of the municipal court disqualified himself in the case and, by agreement of the parties, G. S. Long, as special judge, tried the case. That on the 21st day of November, 1923, petitioner filed a motion for a new trial; that the trial court set no day for sentence or judgment of the court, and none was ever set, and the motion for new trial was never passed upon; that thereafter on the 31st day of December, 1924, G. E. Warren, the regular judge of said court who had disqualified, issued a commitment in said cause, upon which commitment your petitioner is now being héld by the sheriff of Tulsa county; that the charter of the city of Tulsa provides the manner in which a special judge or judge pro tern, may be appointed, and limits the authority to appoint such judge to the city commissioners of said city; that G. S. Long, special judge, never took the oath of office or qualified to act as a special or judge pro tern, of said court; that the entry on the minutes of the court of the trial of petitioner, which is alleged to have been signed by G. S. Long, as the trial judge, bears a forged signature of said trial judge, and in addition thereto bears the rubber stamp signature of the regular judge of said court.

Attached to said petition is an affidavit of G. S. Long, corroborating these allegations. Attached thereto also is a duly certified copy of the commitment issued in said cause.

It is well settled that, if a person is restrained of his liberty under an absolutely void judgment, he may be discharged on habeas corpus. To obtain release by such a proceeding, the judgment or sentence must be more than merely erroneous; it must be an absolute nullity. In re Wilkins, 7 Okla. Cr. 422, 115 P. 1118.

The general rule is that, when a court has jurisdiction of the offense charged and of the party who is so charged, its judgments are not nullities. It is only when the court pronounces a judgment in a criminal case which is not authorized by law, under any circumstances, as in the particular case made by the pleadings, whether the trial has proceeded regularly or otherwise, that such judgment can be said to foe void, so as to justify the discharge of the defendant, held in custody under such judgment.

Our statute provides that:

“No .court or judge shall inquire into the legality of any judgment or process, whereby the party is in custody, or discharge him when the term of commitment has not expired in either of the cases following:
“Fourth. Upon a warrant or commitment issued from the district court, or any other court of competent jurisdiction, upon an indictment or information.” Comp. Stats. 1921, § 432.

This court on habeas corpus will not look beyond the judgment and sentence of any court of competent jurisdiction as to mere irregularities of procedure, or errors of law on questions over which the court had jurisdiction.

The writ of habeas corpus is not designed to operate as a writ of error or certiorari, and does not have that effect. It deals only with irregularities which render the procedings void. A judgment of conviction in a court of record is not subject to collateral attack on habeas corpus, where it appears regular on its face. The municipal court of the city of Tulsa was by statute made a court of record, and it goes without saying that its record cannot be collaterally impeached by the affidavit of a special judge, judge pro tem., or any other person, in a habeas corpus proceeding.

For the reason stated the writ of habeas corpus was and is denied.

BE'SSEY, P. J., and EDWARDS, J., concur.


text:
    ROY CARNEY v. STATE.
    No. A-4738.
    Opinion Filed Jan. 27, 1925.
    (232 Pac. 451.)
    (Syllabus.)
    1. Intoxicating liquors — Unlawful Possession — Evidence Insufficient. In a prosecution for unlawful possession of intoxicating liquor, evidence considered, and beld insufficient to sustain a conviction.
    2. Evidence — Circumstantial Evidence — Sufficiency to Sustain Conviction. To justify a conviction on circumstantial evidence alone, the proof ought to be not only consistent with the defendant’s guilt, but inconsistent with any other rational conclusion.
    3. Evidence — Evidence of Previous Good Character of Accused. Evidence of previous good character is competent to show that the defendant would not be likely to commit the offense charged against him, and it is a fact which he is entitled to have submitted for the consideration of the jury, precisely as any other circumstance favorable to him.
    Appeal from County Court, Dewey County; R. L. Foster, Judge.
    Roy Carney was convicted of unlawful possession of intoxicating liquor, and he appeals.
    Reversed.
    W. P. Hickok and J. H. Antrobus, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charged that Roy Carney did have in his possession one quart of whisky with the unlawful intent of selling, bartering, giving away, and otherwise furnishing the same. On the trial the jury returned a verdict of guilty, fixing his punishment at a fine of $50 and confinement for 30 days in the county jail. From the judgment rendered on the verdict, he appeals.

The assigned grounds of reversal are that the evidence is insufficient to support the verdict, and that the court erred in refusing requested instructions.

Sam Steinmitz testified that he had a conversation with the defendant in front of the barber shop in Yici. Ciarence Warriner and Jim Baker were present. The defendant said' if they would get him $2 for the purpose of buying some whisky with $2 that he would put in, he thought he could find some whfsky. Witness thinks that is the way it was. Then he'went into the barber shop, and afterwards the defendant and Jim Baker returned “and motioned us to come out.” Then they all walked down the street and went into the A. B. 0. Garage. Some one took a fruit jar out of a car. Jim Baker took the first drink, Warriner the next, witness the next, and the defendant the last. Then they all left together. That he did not know who ran the A. B. 0. Garage and did not know whose car the jar was in.

Clarence Warriner testified that he was with Sam Steinmitz, Sam Baker, and the defendant in front of the barber shop and heard the defendant say something about $2 and he thought he could find some whisky; that he did not see any money; that he went into the barber shop with Sam Steinmitz, later on some one of the boys motioned them to come out, and they all went to the A. B. 0. Garage, and some one of the boys, he did not know which one, took the liquor out of a car; that Sam Baker had it when he first saw it, each took a drink, and then the jar was put back in the car and they all left together.

The state rested, and the defendant moved the court to instruct the jury to return a verdict of acquittal on the ground that the evidence was insufficient to warrant a conviction, which was overruled.

On the part of the defense, M. B. Edwards, farmer, Milo Johnson, farmer, Verne Cuberly, banker at Vici, C. H. Irvin, store clerk, J. T. Ball, hardware merchant, H. S. Vincient, merchant and justice of the peace, Dial Moore, business man, M. Wildman, business man, King Rhodes, farmer, cattleman, and deputy sheriff, and John Brown, each testified that they had known the defendant from 5 to 15 years, and knew his general reputation and character as to being a law-abiding, honest, and upright boy; that he was raised in that community and had always borne a good character among the people there and his reputation was good.

The instructions given by the court were commendably correct as far as they went, but the court failed to charge the law of circumstantial evidence and the law of previous good character.

To justify a conviction on circumstantial evidence alone, the proof ought to be not only consistent with the defendant’s guilt, but inconsistent with any other rational conclusion.

Evidence of previous good character of the defendant is admissible in his behalf upon the theory that, being of good character, it is improbable that he would have committed the offense with which he is charged; and it is for the jury to weigh and consider and give such effect as they think it entitled, in considering and determining whether the defendant is guilty of the offense with which he is charged. By numerous decisions of this court it is held that previous good character of a defendant is a fact that he is entitled to have submitted to the jury precisely as other circumstances favorable to him. Davidson v. State, 15 Okla. Cr. 85, 175 P. 120; Kirby v. State, 25 Okla. Cr. 330, 220 P. 74, 33 A. L. R. 1212.

The rule is well settled that where there is any substantial evidence to support the verdict, this court will not review the record for the purpose of ascertaining or determining its weight or sufficiency, and a verdict approved by the trial court will be allowed to stand, unless it is clearly against the weight of the evidence, or unless it appears from the record that the jury were influenced by improper motives in arriving at their verdict. This cause, however, we think is exceptional, and upon careful consideration we are of the opinion that the testimony was not sufficient to establish the defendant’s possession as alleged in the information.

The judgment of the lower court is, accordingly, reversed.

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


text:
    Ex parte H. E. ROBARDS.
    No. A-5389.
    Opinion Filed Jan. 28, 1925.
    (233 Pac. 247.)
    (Syllabus.)
    1. Efcil — Constitutional Right to Bail. All persons have constitutional right to bail by sufficient sureties, except for capital offenses, when the proof of guilt is evident, or the presumption thereof is great.
    2. (Bail — Granting Bail on Ground) of Illness Within, Sound Discretion, of Court. The ¡granting- or denying bail on the ground of bad health and a gunshot wound, requiring surgical treatinent in a hospital, is a matter within the sound discretion of the court.
    3. Same — Defendant’ in Capital Case Admitted to Bail, Where Confinement Will Aggravate Ailment. Where it is clearly shown that a defendant confined to jail for a capital offense is suffering from gunshot wound-s and other ailments likely to be aggravated by the continuance of such confinement, and that it will be several weeks before he can be tried, he will be admitted to bail.
    Application of H. E. Robards for writ of habeas corpus to obtain his release on bail.
    Writ allowed.
    See, also, 29 Okla. Cr. 89, 233 P. 246.
    J. R. Charlton, for petitioner.
    The Attorney General, for respondent.
   DOYLE, J.

In this case petitioner, H. E. Robards, has applied to this court for the second time for a writ of habeas corpus to the end that he be let to bail. In his former application to this court to be let to bail it was alleged that his guilt was not evident nor the presumption thereof great, and upon a hearing this court on the 29th day of November, 1924, held that on the showing made the petitioner was not entitled to bail.

Petitioner now contends that he should be let to bail, first, because the proof of his guilt of a capital offense is not evident, nor the presumption thereof great; and, second, that the circumstances are such that the court should exercise its discretion and admit petitioner to bail.

It is averred that in the month of December, 1924, he was tried in the district court of Washington county for the crime of which he is charged, and was convicted by a jury who fixed his punishment at 25 years in the state penitentiary; that immediately his attorney filed a motion for a new trial, and said motion was granted; that he has made application before the judge of the district court of Washington county for bail, which application has been refused.

It is further averred that at the time of his arrest he was shot through the right arm, and that the bullet crushed the bone midway between the elbow and shoulder; that he was soon thereafter taken to the Memorial Hospital in the city of Bartlesville, and his arm was improperly set by the county physician of said county; that it was placed in a plaster of paris cast for a number of weeks, and when the cast was removed it was found by an X-ray picture that the arm had never been properly set; that the bones of his arm had been shattered and a number of slivers of the bone were left imbedded in the flesh; that the bone had not knit; that the ends of the bones did not even touch, and the physicians decided that it would be necessary to break and reset his arm; that on January 2, 1925, he was taken from the jail to the hospital and an operation was performed by three physicians and the arm reset; that for several days he was deathly sick, suffered a great nervous shock, and that his arm was and is now swollen and causing him great pain and suffering; that on the 6th day of January, while still sick and unable to sit up, he was by the sheriff of said county removed from the hospital to the county jail where he now is.

Where this court has denied an application for bail, it will not ordinarily entertain a subsequent application based on the same grounds and the same facts, or on any other grounds or facts existing when the first application was made, whether presented then or not. In re Fraley, 4 Okla. Cr. 91, 111 P. 662.

However, where, as in this case, it is shown that following the decision of the court the petitioner was placed upon trial resulting in his conviction, the jury fixing the minimum punishment prescribed by law, and that his motion to set aside the verdict and grant a new trial was allowed and a new trial granted, we are inclined to think that petitioner should be admitted to bail. Admission to bail is a right of the accused which cannot be denied, except in capital cases where the proof is evident or the presumption great. If the motion for new trial had been overruled and judgment rendered in pursuance of the verdict, and an appeal therefrom taken to this court, the petitioner would be entitled to give bail pending the determination of such appeal.

By numerous decisions of this court it is held that, when it is made clearly to appear by the testimony of competent physicians, who have examined the physical condition of the prisoner at the time the application is made, that there is strong ground for the opinion that continued confinement would cause the disease from which the prisoner is then suffering to terminate fatally, he should be released on bail. Ex parte Watson, 1 Okla. Cr. 595, 99 P. 161; Ex parte Smith, 2 Okla. Cr. 24, 99 P. 893; In re Fraley, supra.

Under all the circumstances of this case we are of the opinion that the petitioner should be let to bail, and accordingly it is therefore ordered and adjudged that petitioner, H. E. Robards, be and he is hereby admitted to bail upon the charge of robbery by fire arms now pending against him in the district court of Washington county, and that his bond be and is hereby fixed at the sum of $15,-000, and that he be released from custody upon his executing and causing to be filed with and approved by the court clerk of said county a good and sufficient bond in said sum, conditioned as by law provided.

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


author: PER CURIAM.

text:
    Ex parte H. E. ROBARDS.
    Opinion Filed Jan. 28, 1925.
    (233 Pac. 246.)
    (•Syllabus.)
    Petition by H. E. Robards for writ of habeas corpus to obtain his release on bail.
    Writ refused, and bail denied.
    See, also, 29 Okla. Cr. 86, 233 P. 247.
    J. R. Charlton, for petitioner.
    The Attorney General, for respondent.
   PER CURIAM.

The petition filed on behalf of H. E. Robards, November 24, 1924, alleging that he is unlawfully imprisoned in the county jail of Washington county by Andrew Henderson, sheriff of said county; that, having been charged with committing the crime of robbery with firearms, he was by the committing magistrate held without bail to the district court, on a preliminary examination, that on a habeas corpus proceeding in the district court of said county the district judge denied bail and remanded petitioner to the custody of said sheriff. Attached to said petition is a transcript of the testimony offered upon the part of the prosecution.

On November 29, 1924, a hearing was had; at that time it was ordered and adjudged that the writ be denied and bail refused. It would serve no useful purpose to review the testimony, and, in view of a trial before a jury, to do so would possibly be prejudicial. We deem it sufficient to say that we find therein no legal justification or excuse, and we concur with the district court in its finding that the petitioner is not entitled to bail as a matter of right.

Writ refused, and bail denied.


author: EDWARDS, J.

text:
    ED NEIVAR v. STATE.
    No. A-4514.
    Opinion Filed Jan. 30, 1925.
    (232 Pac. 959.)
    (Syllabus.)
    1. Appeal and Error — Sufficiency of Evidence — Scope of Review. Where the sufficiency of the evidence to support a conviction is challenged, this court will examine the record and ascertain if there is sufficient evidence to warrant a conviction, but will not weigh the same.

      2. Intoxicating Liquors — Manufacturing Intoxicating liquor — Evidence Sufficient. Evidence examined, and found to sustain the verdict and judgment.
    Appeal from County Court, Canadian County; W. M. Wallace, Judge.
    Ed Neivar was convicted of manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    E. T. Barbour, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The assignments of error are not separately set out and stated in the brief of plaintiff in error, but the principal argument is made and directed to the insufficiency of the evidence to sustain the judgment.

From the record we gather the following as the facts of the case: W. D. Borden and Fred Kimball, about 9 o’clock at night, went to a farm rented by the plaintiff in error, Ed Neivar', on the lookout for persons manufacturing whisky. They secreted themselves in the center of the field, and after a while heard voices in an adjoining field, heard a bucket rattle, heard a wagon come down to a creek, and heard the bucket scraping the bottom of the creek, saw an automobile coming from the east near the creek and stop, and saw the lights extinguished, and overheard some conversation. Borden testifies that he recognized the voice of plaintiff in error in the conversation, and heard him sey: “What will we do for water?” that they crept up nearer, and could distinguish the forms of three men and saw two stills in operation; that they then crept away and went to get assistance. They procured other men and went back to the place, and the party separated themselves into three groups and surrounded the stills. On attempting to make the arrest the three men ran in different directions, and one of the three was shot and captured at the time. The other two got away. The two stills were found in operation, with fires burning and whisky coming from the condensers. There were several barrels of mash and several jugs of corn whisky close to the stills. They found a newspaper bearing the name of the plaintiff in error, Ed Neivar. The testimony of the mail carrier was that this was delivered about two weeks before to plaintiff in error. They examined the automobile, a Ford touring car, at the place where the stills were. The next morning they found it was gone and traced its tracks to the premises of the plaintiff in error.

A grocer at Piedmont, not far from the place referred to in the evidence where the stills were in operation, testified that within a month before this time he had sold plaintiff in error 1,500 pounds of sugar and several boxes of yeast, and a considerable number of jugs.

It has often been stated by this court that, where there is evidence which reasonably supports the judgment, this court will not weigh the same, as that is exclusively within the province of the jury, and we believe the evidence is ample to support the judgment in this case.

Some other assignments of error are argued to some extent, but we have examined the record, and find no error that would warrant a reversal.

The judgment is affirmed.

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


text:
    NELLIE BASS v. STATE.
    No. A-4794.
    Opinion Filed Jan. 30, 1925.
    (232 Pac. 955.)
    (Syllabus.)
    Intoxicating Liquors — Unlawful Possession. — Circumstantial Evidence not Sufficient. In a prosecution for unlawful possession of Intoxicating liquor, evidence held insufficient to sustain conviction.
    Appeal from County 'Court, Oklahoma County; C. C. Christison, Judge.
    Nellie Bass was convicted of unlawful possession of intoxicating liquor, and she appeals.
    Reversed.
    Paul J. McCarthy, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

This appeal is from a judgment rendered on a verdict of a jury finding appellant, Nellie Bass, guilty of having possession of intoxicating liquor, and fixing her punishment at a fine of $250 and confinement in the county jail for a period of six months. It is assigned as error that the verdict was not supported by the evidence and is contrary to law.

The evidence is very brief. It shows that three policemen went to defendant’s home, 327 W. Reno, Oklahoma City, in the nighttime, and found some corn whisky on the premises.

Officer Gaines testified that one bottle was found in a washtub hanging on the back side of the house. Officer Galyon testified that the other bottle was found “in the little house in the rear,” and that defendant owned the premises.

Officer Pryer testified that he called a raiding squad and went with them; that they found one bottle in a wash boiler hanging on the end of the house, and the other under a wash tub in the rear of the house, and another under the floor in the little house in the rear.

As a witness in her own behalf, Nellie Bass testified that she was in bed when the officers came to her place, and knew nothing about the whisky they said they found in the back yard; that she did not put any whisky in a wash boiler or under a wash tub, and the tub did not belong to her; that the little house in the rear had been occupied by Sam Williams and his wife and a man named Timer and his wife; that they owed her rent for five weeks, and that evening she had an argument with them about the rent and ordered them to leave; that Sam Williams had a half gallon of whisky in a box in the little house, and she said, “Sam, what do you mean by that?” and these people had threatened to put a job up on her, and she thinks these people put the whisky there and called the officers; that Sam Williams is now in the county jail, and his wife is in the city jail charged with possession of stolen property, and their things are still in the little house.

The evidence of the defendant’s guilt relied on by the prosecution was wholly circumstantial. In such cases the facts proven beyond a reasonable doubt must be such as to exclude every reasonable hypothesis inconsistent with the guilt of the defendant.

Obviously, the evidence in this case does not meet this requirement. The liquor in question was not found in the defendant’s house, and may have been placed where found outside by the occupants of the little house, or by other persons, after the defendant retired for the night and before the officers appeared.

Because the verdict is not sustained by the evidence, the judgment of the lower court is reversed.

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


text:
    C. P. CARLSON v. STATE.
    No. A-4622.
    Opinion Filed Jan. 30, 1925.
    (232 Pac. 858.)
    (Syllabus.)
    Intoxicating Liquors — When Circumstantial Evidence Insufficient to Sustain Conviction for Unlawful Possession. Where a judgment of conviction for possession of intoxicating liquor with intent to 'sell rests upon slight circumstantial evidence, and the defendant positively denies possession, proves previous good reputation, and there are other facts in evidence which reasonably explain the circumstances consistent with the innocence of the accused, a judgment of conviction is not warranted, and will he reversed.
    Appeal from County Court, Woods County; L. T. Wilson, Judge.

      C. P. Carlson was convicted of having possession of intoxicating liquor, and he appeals.
    Reversed.
    J. W. Barry, for plaintiff in error.
    George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The principal assignment of error is that the evidence is insufficient to sustain the judgment. Briefly summarized, the evidence is that certain officers searched the residence of plaintiff in error and found a small fruit jar containing a little whisky. Some of the testimony refers to it as a pint jar, and others to a quart jar, and, on a further search of a granary, about 500 yards away from the house on another tract of land belonging to plaintiff in error, a three-gallon jug was found covered up in some kaffir corn and broom corn seed containing some whisky, estimated to be about a third full. One or two of the witnesses for the state testified that they found two barrels with some rye in them; “old mash, probably some had been used,” and found “a little piece of wire. I don’t know whether you would call it a coil or not,” and on cross-examination the witness testified that by “mash” he merely meant that rye and 'barley had been soaked.

The plaintiff in error testified that he had no knowledge of the whisky found in the jug in the granary. His son testified that his father was gone for some three weeks or longer, serving on the jury and in town, a short time prior thereto, and during that time one McIntyre, who lived near, put the whisky in the granary because his wife would not let him carry it home. Another witness testified that during that time he saw McIntyre going in the direction of this place with a jug. The previous good reputation of the plaintiff in error was not questioned.

Where the evidence is wholly circumstantial, the circumstances should be, not only consistent with the guilt of the accused, but inconsistent with any other reasonable hypothesis. We believe the evidence introduced under the circumstances is not sufficient to sustain the conviction, and the case is reversed.

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


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    C. L. FOSTER v. STATE.
    No. A-4755.
    Opinion Filed Jan. 31, 1925.
    (232 Pac. 858.)
    (Syllabus.)
    Intoxicating Liquors — Unlawful Possession — Evidence Sufficient. In a prosecution for unlawful possession of intoxicating liquor, evidence held to warrant a conviction, and that no material error was committed on tbe trial. v
    Appeal from County Court, Comanche County; John Manning, Judge.
    C. L. Foster was convicted of unlawful possession of intoxicating liquor, and he appeals.
    Affirmed.
    J. S. Rhinefort, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYiLE, J.

The plaintiff in error, C. L. Foster, was convicted on an information charging that he did have possession of intoxicating iiquor with the unlawful intent of selling the same, and his punishment fixed at a fine of $50 and 120 days’ confinement in the county jail. From the judgment an appeal was perfected by filing in this court on June 28, 1923, a petition in error with case-made.

No brief has been filed, and no appearance made on behalf of plaintiff in error in this court. When the case was called for final, submission, the Attorney General moved to affirm the judgment for failure to prosecute the appeal.

After an examination of the record, we find the evidence sufficient to sustain the verdict, and there is no prejudicial error in the record upon the admission of testimony. It appears that the instructions fairly covered the law of the case, and we are unable to find any error in the record.

The judgment of the lower court is, accordingly, affirmed.

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


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    FRANK BLUMHOFF v. STATE.
    No. A-4639.
    Opinion Filed Jan. 31, 1925.
    (232 Pac. 862.)
    (Syllabus.)
    1. (Larceny — Evidence Sustaining Conviction. In a prosecution for the larceny of blacksmith tools, evidence held to sustain a conviction.
    2. Larceny — Truthfulness of Explanation of Possession of Stolen Property for Jury. The truthfulness of an explanation of possession of stolen property, although uncontradieted must be determined by the jury.
    3. Same — (Reasonableness of Explanation for Jury. Whether an explanation respecting the possession of property recently stolen is reasonable or not, is ordinarily a question for the jury, the same as any other question of fact.
    Appeal from District Court, Stephens County; Sam Jones, Judge.
    Frank Blumhoff was convicted of larceny, and he appeals.
    Affirmed.
    E. H. Bond, for plaintiff in error.
    George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error, Frank Blumhoff, was convicted of larceny, and in accordance with the. verdict of the jury was sentenced to imprisonment in the penitentiary for a term of six months. He appeals from the judgment, and assigns as error that the verdict is not sustained by the evidence.

The information charges that the defendant, in Stephens county, on or about the 1st day of March, 1922, did take, steal, and carry away one blower, one vise, one set of dies, one horseshoer’s apron, and two pairs of tongs of the value of $60, the personal property of G. W. Lunsford.

The evidence shows that G. W. Lunsford had a blacksmith shop in Oil City; that on the 10th day of February, 1922, he went to Mexia, Tex., leaving his shop in charge of G. W. Barker, his brother-in-law, and G. M. Lunsford, his son, that he returned to Oil City on the second day of April, and during the absence the property described had been stolen; that later he found this property in the possession of the defendant. He testified that the blower locked with a three-inch screw, that he put in there; that the vise had a molded handle that was broken, and he made and put the handle now on it; that the dies fastened with screws, one had come out, and he had substituted a bolt; that the property was of the value of $60.

J. S. Lunsford testified that he was with his father when the tools were found in the defendant’s possession; that they were taken from his father’s shop some time the last week in February, 1922. J. L. Parker testified that he had custody of the shop during the absence of Mr. Luns-ford, did his own work in there, and the last day he saw the tools was the 23d day of February, 1922; that the shop was broken into by unfastening one of the doors. W. D. Davis identified said tools as the property of G. W. Luns-ford.

On the part of the defense, J. W.. Pippin testified that he came into the possession of two sets of blacksmith tools as part payment of the rent of a lot, and produced a bill of sale from E. B. C. Wright, consideration $250, property described as “two complete blacksmith outfits now located on the J. W. Pippins lease at Oil City, Oklahoma,” date, October, 1921; that he sold the tools to the defendant and the defendant’s mother paid for them by check for $150, dated October 18, 1921. Mrs. Etta Blumhoff testified that she paid for a house and some blacksmith tools, giving one check for $100, and one for $150, dated October 18, 1921, payable to J. W. Pippin. J. L. Crotts testified that about the 15th day of November, 1921, he bought two tire shrink-ers, a vise, anvil, and blower from the defendant, paying him $175 for the same.

It is a well settled rule that the truthfulness of an explanation of the possession of stolen goods, although not contradicted, must be determined by the jury. In 25 Cyc. 138, the rule generally prevailing is stated in the following language :

“Whether the explanation is reasonable is for the jury. And a reasonable explanation will not necessarily lead to an acquittal. Even if a reasonable account is given, the question of guilt is still entirely for the jury, and defendant is not entitled to an instruction that the prosecution must show the account to be false.”

In State v. Gurr, 40 Utah, 162, 120 P. 209, 39 L. R. A. (N. S.) 320, Frick, Chief Justice, in discussing the probative force of an explanation made by the accused in whose possession recently stolen property was found, says:

“If counsel’s contentions are correct, then the whole matter hinges on whether the explanation which the accused makes concerning his possession is in the judgment of this court reasonable or not. If the jury should find it unreasonable, but we should deem it reasonable, we would be compelled to reverse the findings of the jury. This would require us to pass upon the weight to be given to the testimony of the accused and his witnesses respecting the explanation, although the jury had seen and heard themtestify, which we had not. Such a rule would, in effect, require the jury to believe or accept every reasonable explanation made by the witnesses, although in the judgment of the jury there were good reasons for disbelieving the statements made by them respecting the possession of the property. Counsel, however, contend that, if a reasonable explanation is made and we refuse to interfere, the jury can arbitrarily disregard every explanation, and thus convict innocent men. While it may be possible that a jury may err with regard to both the reasonableness and truthfulness of an explanation, yet such an error is possible with regard to any inculpatory fact which the jury must find from the evidence in order to convict the accused. The question, so far as this court is concerned, is not whether the jury ought to have found the accused guilty under the evidence, but the question is, Is there any substantial evidence to support the findings of the jury?”

The question of whether the explanation respecting the possession of property recently stolen is reasonable or satisfactory is ordinarily a question for the jury, the same as any other question of fact. If the evidence is such that all reasonable minds should arrive at the conclusion that the explanation is reasonable and satisfactory, then and then only does it become a question of law to be determined by the court. If, however, after a full, fair, and impartial consideration of all the evidence relating to the explanation, reasonable minds may differ and may thus arrive at different conclusions with regard to whether it is reasonable and satisfactory or not, the finding of the jury must control.

The defendant, Blumhoff, testified that he bought the tools in question from J. W. Pippin, October 18, 1921; that, when G. W. Lunsford came to his place and claimed the tools, he told him who he bought them from and showed him the bill of sale; that he had sold one set of the tools to Mr. Crotts; that he lived about three miles from Mr. Lunsford’s shop.

In rebuttal E. B. C. Wright testified that he formerly had a blacksmith shop at Oil City and executed the bill of sale for the tools on Mr. Pippin’s lease and sent it to Mijo Addison at Devol, that the tools he sold’ were placed in the building at least six months prior to the date of sale.

It .is urged that, as there was no direct evidence that the defendant stole the tools, and that the only evidence relied on by the state is that the tools that the defendant had possession of were stolen, and that the defendant had made a reasonable explanation of his possession of the tools, which was corroborated by other witnesses which testimony was not denied, therefore the evidence is insufficient to sustain a verdict of guilty.

It is true that the defendant shows a bill of sale and a check which he gave to the witness Pippin for two sets of blacksmith tools, but it is wholly unexplained how it was possible for him to buy the alleged stolen tools some four or five months before they were stolen from the complaining witness, and there is no direct evidence that he bought the particular property alleged to have been stolen. On the trial of the case there was no motion for a directed verdict, and for the first time the sufficiency of the evidence was raised in the motion for a new trial.

Carefully considering the whole testimony in this case, we have no doubt of its sufficiency to justify the verdict. After a careful examination of the record we conclude that there was no error which could have been prejudicial to the defendant.

The judgment of the lower court is accordingly affirmed.

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


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    FRANK POTTS v. STATE.
    No. A-4827.
    Opinion Filed Jan. 31, 1925.
    (232 Pac. 958.)
    (Syllabus.)
    Intoxicating Liquors; — Unlawful Possession — Evidence Sufficient. In a prosecution for unlawful possession of intoxicating liquor, evidence held to sustain a conviction, and that no reversible error was committed on the trial.
    Appeal from County Court, Ottawa County; Wm. M. Thomas, Judge.
    Frank Potts was convicted of unlawful possession of intoxicating liquor, and he appeals.
    Affirmed.
    J. L. Anderson and F. W. Church, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

Plaintiff in error, Frank Potts, was convicted on a charge of unlawful possession of intoxicating liquor and his punishment fixed at a fine of $500 and confinement in the county jail for 30 days. He has appealed from the judgment rendered on the verdict, but no brief has been filed and no appearance made on his behalf in this court.

The evidence shows that in executing a search warrant against the defendant’s drug store in the town of Picher, the officers found between 50 and 75 bottles of beer in the ice box in the front part of the drug store; that said beer was intoxicating liquor; that they also found about a half gallon of wine behind the prescription case, and three pints of whisky. The defendant did not testify.

It appears that no error prejudicial to the substantial rights of the defendant was committed on the trial.

The judgment of the lower court is affirmed.

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


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    SIM GOHEE v. STATE.
    No. A-4818.
    Opinion Filed Jan. 31, 1925.
    (232 Pac. 960.)
    (Syllabus.)
    Intoxwaiing Liquors — Unlawful Possession — Evidence Insufficient- In a prosecution for unlawful possession of intoxicating liquor, evidence held insufficient to sustain a conviction.
    Appeal from County Court, Pontotoc County; Tal Crawford, Judge.
    Sim Gohee was convicted of the unlawful possession of intoxicating liquor, and he appeals.
    Reversed.
    A. C. Chaney, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

On an indictment returned in the district court of Pontotoc county, and duly transferred to the county court, charging that Sim Gohee, “did unlawfully have in his possession intoxicating liquor, to wit, one keg of Choctaw beer, same being then and there .intoxicating,” with the unlawful intent to sell the same, he was tried and convicted and his punishment fixed at a fine of $50 and confinement in the county jail for 30 days. He has appealed from the judgment rendered on the verdict, and assigns as error that the evidence is insufficient to support the verdict.

The undisputed facts are that a 4 or 5 gallon keg containing what is alleged to be Choctaw beer was found in the possession of the defendant.

It is urged that there was no evidence tending to show that the liquor in the keg was intoxicating.

W. C. Moore testified that he and Stapleton found the keg; that they each took a drink, and it tasted like Choctaw beer; the defendant came up and they sampled it again; that “it never had any effect on him.”

A. J. Stapleton testified that he was with Mr. Moore when they found the keg; that he took two drinks about a quart each time, but it had no intoxicating effect that he could tell. This was all of the evidence offered by the state to show that the contents of the keg was intoxicating.

It is manifest from the record that there was no evidence tending to show that the contents of the keg was intoxicating liquor as alleged.

In the case of Estes v. State, 13 Okla. Cr. 604, 166 P. 77, 4 A. L. R. 1135, it was held that:

“ ‘Intoxicating liquor,’ as this phrase is used in the prohibitory liquor statutes of this state, is an alcoholic liquor, and in order to come under the ban of the law such liquor must either contain more than one-half of 1 per cent, of alcohol, or a sufficient quantity of it in a liquor or compound, capable of being used as a beverage, to intoxicate a human being.”

Because the evidence is insufficient to sustain a conviction, the judgment is reversed.

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


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    GUS LOGAN v. STATE.
    No. A-4805.
    Opinion Filed Jan. 31, 1925.
    (232 Pac. 961.)
    (Syllabus.)
    Intoxicating Liquors — Unlawful Possession — Evidence Sufficient. In a prosecution for unlawful possession of intoxicating liquor, evidence beld to sustain a conviction.
    Appeal from County Court, Pontotoc County; Tal Crawford, Judge.
    Gus Logan was convicted of unlawful possession of intoxicating liquor, and he appeals.
    Affirmed.

      King & Crawford, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charges that on July 30, 1922, the defendant, Gus Logan, did have in his possession four gallons of corn whisky, with the unlawful intent to sell the same. His trial resulted in a verdict of guilty, and fixing his punishment at a fine of $50 and confinement in the county jail for a period of 30 days. He appealed from the judgment rendered on the verdict, but no brief has been filed, and no appearance made in his behalf in this court.

An examination of the record discloses that the evidence is sufficient to sustain the verdict, and there is no prejudicial error in the rulings upon the admission of testimony, and the instructions fully state the law applicable to the case.

The judgment of the lower court is therefore affirmed.

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


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    ABE BOTTS v. STATE.
    No. A-4767.
    Opinion Filed Jan. 31, 1925.
    (232 Pac. 965.)
    (Syllabus.)
    1. Intoxicating Liquors — Information Charging Illegal Possession Sufficient. An information which alleges that the person charged had possession of intoxicating liquor in a quantity greater than one quart, with the intent to violate the prohibitory liquor laws of the state, is' sufficient.
    2. Same — Charge of Possession of Whisky Mash — Necessary Proof. When the information charges possession of intoxicating liquor, to wit, ‘‘whisky ■ mash,” the proof must show the prohibited alcoholic content or the intoxicating character of the liquor in order to establish the offense.

      3. Trial — Refusal to Instruct as to Circumstantial Evidence, When Error. When the evidence relied upon by the state is entirely circumstantial, it is error for the court to give a requested instruction on the law applicable thereto.
    Appeal from County Court, Latimer County; L. B. Kyle, Judge.
    Abe Botts was convicted of possession of intoxicating liquors with intent to sell; and he appeals.
    Reversed and remanded.
    H. T. Church, for plaintiff in error.
    George F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen., for the State.
   EDWARDS, J.

Several assignments of error are presented in the brief of plaintiff in error, the first being that the information is insufficient. The charging part of the information is as follows:

“* * * That Abe Botts did * * * commit the crime of unlawful possession of intoxicating liquor in the manner and form as follows, to wit: That is to say that he, the said defendant, Abe Botts, did within said Latimer county and state of Oklahoma * * * willfully, wrongfully, have and keep in his possession about 160 gallons of intoxicating liquor, to wit, whisky mash, the same then and there being a fermented and intoxicating liquor, with the unlawful intent upon the part of the said defendant to violate the provisions of the prohibitory liquor laws of the state of Oklahoma.”

It is contended that this is insufficient in not setting out the particular subdivision of the'liquor laws the defendant named in the information intended to violate. This question has been heretofore considered by this court. In Ex parte Spencer, 7 Okla. Cr. 113, 122 P. 557, it is held:

“Where an information charges the defendant with having in his possession intoxicating liquors with the intention of violating the provisions of the prohibitory liquor laws in Oklahoma, such information states an offense against the laws of this state,”

—citing and distinguishing the case of Michael v. State, 2 Okla. Cr. 703, 103 P. 1069, and also citing the case of State v. Feeback, 3 Okla. Cr. 510, 107 P. 443, in which the court, speaking by Owen, Judge, said:

“The indictment in this case, in effect, charged the defendant with having the unlawful possession of the liquor with the intention to violate all the provisions of the statute against selling, bartering, giving away, etc. In the Michael case [supra] the court said it was necessary to allege the defendant’s intention to violate some one of the provisions. The crime is none the less complete if he intended to violate all of them.”

See, also, Flowers v. State, 8 Okla. Cr. 503, 129 P. 81.

At the conclusion of the evidence the plaintiff in error requested the court to give the instruction on circumstantial evidence, which request was denied and exception saved. We have examined the record, and find that the evidence of the state is wholly circumstantial, and it was error to refuse an instruction as requested. Rutherford v. U. S., 1 Okla. Cr. 194, 95 P. 753; Munson v. State, 23 Okla. Cr. 64, 212 P. 438; Pierson v. State, 13 Okla. Cr. 382, 164 P. 1005.

It is also argued that the evidence is insufficient to sustain the verdict. The plaintiff in error was charged with unlawful possession of * * * 160 gallons of intoxicating liquor, to wit, whisky mash, the same being then and there a fermented and intoxicating liquor. Under this charge it was necessary to prove the intoxicating character of the mash. This was not done, and we think the evidence is insufficient. The court does not take judicial notice that “whisky mash” is intoxicating. Markinson v. State, 2 Okla. Cr. 323, 101 P. 353.

The case is reversed and remanded.

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


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    E. M. MIDGLEY v. STATE.
    No. A-4570.
    Opinion Filed Jan. 31, 1925.
    (232 Pac. 967.)
    (Syllabus.)
    1. False Pretenses — Information not Fatally Defective for Failure Directly to Allege Ownership of Property. An information based on section 2145, Comp. St. 1921, which defines the offense obtaining property under false pretenses, is not fatally defective because the ownership of the property obtained is not alleged in direct terms, if that fact is clearly 'shown! by the information.
    2. False Pretenses' — Obtaining Extension of Note not Obtaining Property by False Pretenses. The obtaining of an extension of credit upon a note or an extension of indebtedness is not sufficient to constitute the crime of obtaining property by false pretenses.
    Appeal from District Court, Le Flore County; E. F. Lester, Judge.
    E. M. Midgley was convicted of obtaining money by false pretenses, and he appeals.
    Reversed.
    Neal & Neal, for plaintiff in error.
    George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
   EDWARDS, J.

Several assignments of error are presented for the reversal of this case, it being first contended that the amended information on which plaintiff in error was tried is insufficient, in that it fails to allege unequivocally the ownership of the property charged to have been obtained by the false pretenses set out as the basis of the amended information. Numerous authorities are cited to the effect that it is necessary to state to whom the property belonged. The amended information does not in direct terms aver the ownership of the property. This court in the case of Fuller v. Ter., 2 Okla. Cr. 86, 99 P. 1098, upheld an information in practically the same language as the information in this case.

It has been held in other jurisdictions that it is not a fatal defect to fail to allege the ownership in direct terms, if the indictment or information as a whole cleárly discloses that fact. State v. Knowlton, 11 Wash. 512, 39 P. 966; Griggs v. U. S., 158 F. 572, 85 C. C. A. 596; State v. Balliet, 63 Kan. 707, 66 P. 1005; People v. Skidmore, 123 Cal. 267, 55 P. 984; State v. Boon, 49 N. C. 463; McClintock v. State, 98 Neb. 158, 152 N. W. 378; People v. Monroe, 64 App. Div. 130, 71 N. Y. S. 803. See, also, in this connection Douglas v. State, 15 Okla. Cr. 648, 179 P. 947; Bennett v. State, 21 Okla. Cr. 27, 204 P. 462.

The plaintiff in error requested the following instruction:

“You are instructed that the term ‘valuable thing’ as used in these instructions means some physical thing of value, and not the extension of credit or the renewal of credit already extended.”

The court, upon this point, gave this instruction:

“If you believe from the evidence, beyond a reasonable doubt, that the defendant * * * did obtain from the Le Flore County Bank, a corporation, the sum of $270, interest on $5,400 from January 7,1921, to June 7,1921, or a certain promissory note bearing date of January 7, 1920, for the sum of $2,500, by then and there falsely and designedly representing * * * that he was then and there the owner of, etc., * * * and that by reason of said false representation said bank surrendered to said defendant as aforesaid the note * * * or extended to him credit to the amount of $270, interest on said note of $5,400, or either of them * * * it will be your duty to convict the defendant.”

This is equivalent to instruction to the jury that the extending of credit in the amount of $270 upon the note described would be sufficient to constitute the offense, or the surrender of the $2,500 note would be sufficient to constitute the offense.

As shown by the evidence, the plaintiff in error on January 7,1921, mortgaged to the Le Flore County National Bank 264 head of cattle to secure a note then executed by the plaintiff in error to said bank in the sum of $5,400. This was to take up some $3,500 worth of his own notes and a $2,500 note signed by plaintiff in error and others, on which there had been a payment made, and in said note of $5,400 there was included $270 interest on said note for six months in advance. The plaintiff in error got no money nor money credit. He merely increased his indebtedness $270.

This is not sufficient to constitute the crime charged. It is essential that money or property be obtained, and this the proof does not show. See Foster v. State, 15 Okla. Cr. 216, 175 P. 944.

For the reasons assigned, the cause is reversed.

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


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    W. P. CARDIN v. STATE.
    No. A-4753.
    Opinion Filed Jan. 31, 1925.
    (232 Pac. 1117.)
    Appeal from Municipal Criminal Court of City of Tulsa; G. E. Warren, Judge.
    W. P. Cardin was convicted of unlawful possession of intoxicating liquor and he appeals.
    Affirmed.
    John L. Ward, for plaintiff in error.
   PER CURIAM.

Plaintiff in error, W. P. Cardin, was convicted on a charge that he did have possession of five gallons of whisky, with the unlawful intention to barter, sell, give away, or otherwise furnish the same, and was sentenced to pay a fine of $200 and be confined in the county jail for a period of six months. From the judgment an appeal was taken by filing in this court, on June 25, 1923, a petition in error with case-made. No brief has been filed, and, when the case was called for final submission, no appearance was made on behalf of the plaintiff in error. Finding nothing in the record to indicate that the plaintiff in error did not have a fair trial, the judgment is affirmed.


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    OTTO HUFFMAN v. STATE.
    No. A-4770.
    Opinion Filed Jan. 31, 1925.
    (232 Pac. 856.)
    (Syllabus.)
    Intoxicating Liquors — Unlawful Possession — ‘Evidence Sufficient. In a prosecution for unlawful possession of intoxicating liquor, evidence held to sustain the conviction.
    Appeal from County Court, Ottawa County; Wm. M. Thomas, Judge.
    Otto Huffman was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.
    Burns & Turner, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Otto Huffman, was convicted on a charge that he did have in his possession intoxicating liquor with the unlawful intent to sell the same; the jury leaving his punishment to be fixed by the court. April 18, 1923, he was by the court sentenced to pay a fine of $500 and serve six months in the county jail. From the judgment an appeal was perfected by filing in this court on July 17, 1923, a petition in error, with case-made.

No brief has been filed, and no appearance made when -the case was called for final submission. From an ex-animation of the record we have failed to find anything whereof the plaintiff has just right to complain.

The judgment of the trial court is therefore affirmed.

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


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    ARTHUR BERG v. STATE.
    No. A-4809.
    Opinion Filed Jan. 17, 1925.
    (233 Pac. 497.)
    (Syllabus.)
    1. Constitutional Law — Treason—Criminal Syndicalism Act Constitutional. The Criminal Syndicalism Act (chapter 70, Session Laws 1919; sections 2219, 2220, and 2221, Comp. St. 1921) held constitutional so far as its provisions are material in a prosecution for circulating and displaying printed matter teaching,* advocating and affirmatively suggesting criminal syndicalism or sabotage, and for circulating and displaying books and other printed matter prohibited by said act.

      2. Same — Criminal Syndicalism Act not Violative of Eight of Free Speech nor; Void for Indefiniteness. That part of section 2221, Comp. St. 1921, defining criminal syndicalism as circulating and displaying printed matter advocating, teaching, or affirmatively suggesting crime, sabotage, etc., does not violate the right of free speech, and is not void for indefiniteness.
    3. Treason — Criminal Syndicalism Statute not Violative of Constitutional Definition of Treason. The fact that treason is defined in the federal and the state Constitutions does not deprive the Legislature of the power to enact a 'statute intended to prevent the teaching of criminal syndicalism or sabotage as defined by tbe criminal syndicalism statute, and does not violate either tbe Constitution of the United States nor tbe Constitution of this state defining treason.
    4. Indictment apd Information-Information for Criminal Syndicalism Following Language of Statute Sufficient. Under Criminal ■Syndicalism Act, § 3, making criminal and prescribing the punishment for circulating or displaying hooks or printed matter advocating, teaching, or affirmatively suggesting syndicalism or sabotage, an information setting out the matter complained of and following substantially the language of the statute is sufficient.
    5. Indictment and Information — Trial for Separate Offenses in Information Improper. A defendant cannot be tried for two separate offenses in the same information or indictment.
    6. Same — Same Act Constituting Different Offenses Properly Set Forth in Separate Counts. An information or indictment must charge but one offense; but when the same act may constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be guilty, the different offenses may be set forth in separate counts in the same indictment or information; but in such cases the information or indictment must show upon its face that the separate counts are all based upon one and the same transaction.
    7. Same — Information under Criminal Syndicalism) Act Duplicitous. The amended information in this ease attempting to join the crime of circulating and displaying printed matter advocating, teaching, etc., of criminal syndicalism and the crime of being a member and organizer of an organization teaching and advocating, etc., criminal syndicalism, is not a statement of the same acts which constitute different offenses, and the attempt to so join renders the amended information duplicitous.
    8. Evidence — Articles Taken from Person Lawfully Arrested Admissible. In case of a lawful arrest, the aresting1 officer' may take from the person arrested any instruments of crime or anything else reasonably deemed necessary to his own or the public safety, and the use of such things on the trial of the person arrested is not objectionable as obtained by unlawful search and seizure.
    Appeal from District Court, Pittsburg County; A. C. Brewster, Judge.
    Arthur Berg was convicted of criminal syndicalism, and he appeals.
    Reversed and remanded.
    John J. Carney, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst, Atty. Gen., for the State.
   EDWARDS, J.

The information is in two counts, in the first of which plaintiff in error is charged:

“* * * On or about the 27th day of December, in the year of our Lord one thousand nine hundred and twenty-two and anterior to the presentment hereof, then and there willfully, wrongfully, unlawfully and feloniously print, publish, edit, issue and knowingly circulate, sell, distribute and publicly display, books, pamphlets, papers, handbills, posters and documents, the same being written and printed matter containing matter advocating, advising, affirmatively suggesting and teaching crime, criminal syndicalism, sabotage, to wit, Certain membership cards iii words and figures, as follows, to wit, ‘Industrial Workers of the World. Official Membership Book. Issued by authority of the General Executive Board of the I. W. W. The member is entitled to work in any industry of this organization where employment is obtainable when stamps are affixed showing the member to be in good standing. To be in good standing a member must be paid for current month. Preamble: The working class and the employing class have nothing in common. There can be no peace so long as hunger and want are found among millions of the working people and the few, who make up the employing class, have all the good things in this life. Between these two classes a struggle must go on until the workers of the world organize as a class, take possession of the earth, and machinery of production, and adolish the wage system. We find that the centering of the management of industry into fewer and fewer hancls_ makes the trade unions unable to cope with the ever growing power of the employing class. The trade unions foster a state of affairs which allows one set of workers to be pitted against another set of workers in the same industry, thereby helping defeat one another in wage wars. Moreover, the trade unions aid the employing class to mislead^ the workers into the belief that the working class have interests in common with their employers. These conditions can be changed and the interests of the working class upheld only by an organization formed in such a way that all its members in any one industry, or all industries if necessary cease work whenever a strike or lockout is on in any department thereof, thus making an injury to one injury to all. Instead of the conservative motto, “a fair day’s wage for a fair day’s work,” we must inscribe on our banner the revolutionary watchword, “Abolition of the wage system.” It is the historic mission of the working class to do away with capitalism. The army of production must be organized, not only for the everyday struggle with capitalists, but also to carry on production when capitalism shall have been overthrown. By organizing industrially, we are forming the structure of the new society within the shell of the old.’ ‘Labor is entitled to all it produces’; and certain official stamps, signs and indices of the I. W. W.’s, as follows, to wit: Stamp. Stamp. Stamp. Stamp.”

In the second count the plaintiff in error is charged with being a member of, and an organizer, and voluntarily assembled, in a society teaching the doctrine of criminal syndicalism and sabotage, to wit, Industrial Workers of the World.

The facts as gathered from the record are substantially as follows:

“The plaintiff in error was, by his own evidence, an oil field worker, and was on his way from El Dorado, Ark., to Drumright, Okla. He was arrested in the town of Hailey-ville on the 27th day of December, 1922, which was during the time of a railway strike. It appears that he had ridden into town on a freight train; had been there but a short time, probably not more than an hour or such a matter and was waiting to catch another freight train and ride out when he was stopped on the railroad right of way by four special officers, who had no warrant or search warrant, and was searched, and the papers and documents in question taken from his person. He was turned over to the chief of police at Haileyville and later convicted of vagrancy.”

Upon the trial the jury returned a verdict finding the plaintiff in error guilty upon the first count of said information and not guilty upon the second count. The record was made up in the regular way, and the plaintiff in error presents four assignments of error as follows:

“First. Of the introduction of the evidence secured by the unlawful search and seizure.
. “Second. That the information upon which plaintiff in error was tried is defective.
“Third. That plaintiff in error was not permitted to propound certain questions to the jurors on voir dire examination.
“Fourth. That the statute under which plaintiff in error was convicted attempts to create and define a new kind of treason, and is, therefore, unconstitutional.”

We will notice these assignments of error, first, however, considering No. 4, under which the information is drawn. This is based on sections 1, 2, and 3, chapter 70, of the Session Laws of Oklahoma of 1919; sections 2219, 2220, and 2221 of Compiled Statutes 1921, which reads as follows: -:

“Section 1. Criminal syndicalism is hereby defined to be the doctrine which advocates crime, physical violence, arson, destruction of property, sabotage, or other unlawful acts or methods, as a means of accomplishing or effecting industrial or political ends, or as a means of effecting industrial or political revolution, or for profit.
“Sec. 2. Sabotage is hereby defined to be a malicious, felonious, intentional or unlawful damage, injury to or destruction of real or personal property of any employer or owner by his or her employee or employees, or any employer or employers or by any person or persons at their own instance, or at the instance, request or instigation of such employees, employers, or any other person.
“Sec. 3. Any person who, by word of mouth or writings, advocates, affirmatively suggests or teaches the duty, necessity, propriety or expediency of crime, criminal syndicalism, or sabotage, or who shall advocate, affirmatively suggest or teach the duty, necessity, propriety or expediency of doing any act of violence, the destruction of or damage to any property, the bodily injury to any person or persons, or the commission of any crime or unlawful act as a means of accomplishing or effecting any industrial or political ends, change, or revolution, or for profit; or who prints, publishes, edits, issues, or knowingly circulates, sells, distributes, or publicly displays any books, pamphlets, paper, handbill, poster, document, or written or printed matter in any form whatsoever, containing matter advocating, advising, affirmatively suggesting, or teaching crime, criminal syndicalism, sabotage, the doing of any act of physical violence, the destruction of or damage to any property, the injury to any person, or the commission of any crime or unlawful act as a means of accomplishing, effecting or bringing about any industrial or political ends; or change, or as a means of accomplishing, effecting or bringing about any industrial or political revolution, or for profit; or who shall openly, or at all attempt to justify by word of mouth or writing, the commission or the attempt to commit sabotage, any act or physical violence, the destruction of or damage to any property, the injury to any person or the commission of any crime or unlawful act, with the intent to exemplify, spread or teach- or affirmatively suggest criminal syndicalism; * * * is guilty of a felony.”

It is argued at some length that said section is unconstitutional for the following reasons:

First. That it is an attempt to create and define a new kind of treason, and therefore in conflict with section 3 of article 3, and of articles 1 and 14 of the Amendments to the Constitution of the United States, and of section 16, article 2, of the Constitution of this state.

Second. That it is unconstitutional and void for the reason that it violates the constitutional right of free speech and that it does not clearly and explicitly name the acts which constitute the offense.

The section of the federal Constitution referred to is that defining and punishing treason, and the amendments are those pertaining to freedom of speech and the limitation on the states against passing any law which shall abridge the privileges and immunities of citizens. The section of the state Constitution referred to is that defining treason against the state.

It is generally said in effect that it is the province of the Legislature to declare what acts shall he deemed inimical to the public welfare and constitute a crime, and to prohibit the same. When that is done, judicial consideration of such enactments is limited to the injury whether the constitutional rights of the citizen have been invaded. If not, the statute must stand, however harsh it may be.

It is to be borne in mind that the criminal syndicalism statute does not limit or make criminal the advocacy or propriety of bringing about a change in our industrial system by peaceful methods. The people have at all times an undeniable and indefeasible right to alter their form of government; the statute is directed against those who advocate the necessity or expediency of sabotage, violence, or terrorism as a means of accomplishing industrial or polit-iial reform, or the doing of things of an analogous nature such as distributing or displaying circulars, books, posters, etc., teaching or advocating criminal syndicalism.

Statutes similar or of similar import to the one here under consideration have quite generally been held constitutional.

The crime prohibited by section 3 of the act in question, above quoted, is to be distinguished from treason as defined by the federal and state Constitutions, in that “treason” requires more than mere words to constitute the offense. It requires some overt act and proof by two or more witnesses, while the offense here defined is an offense which consists of words only; the advocacy or teaching of crime as a means of effecting industrial or political ends, or for a profit. State v. Hennessy, 114 Wash. 351, 195 P. 211; Frohwerk v. U. S., 249 U. S. 204, 39 S. Ct. 249, 63 L. Ed. 561; Equi v. U. S., 171 C. C. A. 649, 261 F. 53; Wimmer v. U. S. (C. C. A.) 264 F. 11.

In the case of Frohwerk v. U. S., supra, which construed the Espionage Act of 1917 (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, §§ 10212a-10212h), the court said:

“Some reference was made in the proceedings and in argument to the provision in the 'Constitution concerning treason, and it was suggested on the one hand that some of the matters dealt with in the act of 1917 were treasonable and punishable as treason or not at all, and on the other that the acts complained of not being treason could not be punished. These suggestions seem to us to need no more than to be stated.”

In the earlier case of Ex parte Bollman, 4 Cranch, 126, 2 L. Ed. 554, 571, Chief Justice Marshall in rendering the decision says:

“Crimes so atrocious as those which have for their object the subversion by violence of those laws and those institutions which have been ordained in order to secure the peace and happiness of society, are not to escape pum ishment because they have not ripened into treason.”

In People v. Steelik, 187 Cal. 361, 203 P. 78, the court said:

“Appellant contends that the offense with which he is charged comes under the common-law definition of constructive treason, and that therefore he cannot be punished because of the definition of treason contained in the federal and state Constitutions. These definitions are merely for the purposes of limiting the number of offenses which can be punishable as treason under the common law, and in no wise limit the power of the Legislature to provide for the punishment of acts inimical to the public welfare which theretofore might have, been punished as constructive treason.”

In the case of State v. Hennessy, 114 Wash. 351, 195 P. 211, the following reasoning was used:

“The third point is that the syndicalism statute amounts to an attempt to punish constructive treason and is unconstitutional. The argument in the appellant’s brief on this question takes a wide range during the course of which the provision of the federal Constitution which provides that no law shall be made abridging the freedom of speech is quoted. Also the provision of the same Constitution (Const. U. S. Amend. 14, par. 1) which provides that no law shall be passed which abridges the privileges and immunities of the citizens of the United States» * * *
“The fact that treason is defined in the federal Constitution does not deprive the state Legislature of the power to enact the statute which is intended to prevent the teaching of crime, sedition, violence, or intimidation as a means of overcoming or destroying the present social order.”

See, also, in this connection, State v. Hestings, 115 Wash. 19, 196 P. 13; State v. Hemhelter, 115 Wash. 208, 196 P. 581.

In the case of State v. Moilen, 140 Minn. 112, 167 N. W. 345, 1 A. L. R. 331, the court says:

“The contention that the statute violates rights granted and secured by the federal Constitution is without special merit. The design and purpose of the Legislature in the enactment of the statute was the suppression of what was deemed by the law makers a growing menace to law and order in the state, arising from the practice of sabotage and other unlawful methods of terrorism^ employed by certain laborers in furtherance of industrial ends and in adjustment of alleged grievances against employers.
“The facts surrounding the practice of sabotage, and like in terrorem methods of self-adjudication of alleged wrongs, are matters of common knowledge and general public notoriety of which the courts will take notice. That they are unlawful and within the restrictive power of the Legislature is clear.”

The District Court of Appeals of California, in the case of People v. Malley, 49 Cal. App. 597, 194 P. 48, based on the earlier case from the Supreme Court of that state of In re McDermott, 180 Cal. 783, 183 P. 437, upholds the California statute, and in doing so quotes and approves the opinion in the Minnesota case of State v. Moilen, supra. In various other decisions of the same state the act is upheld. Again, the Supreme Court of California, in the case of People v. Steelik, 187 Cal. 361, 203 P. 78, goes at length into the constitutional questions raised and sustains the act. The Supreme Court of Kansas appears to assume the criminal syndicalism statute of that state to be constitutional, without discussion. In re Danton, 108 Kan. 451, 195 P. 981.

The Supreme Court of New Jersey, in the case of State v. Quinlan, 86 N. J. Law, 120, 91 A. 111, upholds as constitutional a statute similar in meaning and effect to the statute here under consideration.

Argument is also made that the statute in question is unconstitutional as abridging the right of free speech granted by the Constitution. But we think ft is so well settled that the right of free speech does not imply unrestricted license that no extended notice need be given to this assignment. The act defining criminal syndicalism as circulating and displaying printed matter advocating, advising, teaching, or affirmatively suggesting crime as a means of accomplishing industrial or political ends, or for a profit, is not a denial of the free speech granted by the Constitution.

It is also contended that the law in question is unconstitutional for the reason that it does not clearly and explicitly set out the acts which constitute the offense. This objection to the constitutionality of the act has been generally raised in the cases heretofore mentioned and the objection held not to be sound. The words used in the definition of the offenses, which are not defined in the act itself, have well-recognized meanings and the language used fairly defines the crime created by the statute. People v. Steelik, supra; People v. Malley, supra; State v. Workers Soc. Pub. Co., 150 Minn. 406, 185 N. W. 931; State v. Hennessy, supra.

The plaintiff in error further argues that the amended information on which the trial was had was duplicitous, in that the first count charges the plaintiff in error with circulating, distributing, displaying, etc., * * * written and printed matter, advocating, advising, etc., criminal syndicalism, sabotage, etc., and that the second count charges that the plaintiff in error * * * did feloniously become, and was then and there, an organizer of * * * and became a member of and voluntarily assembled with a society and assemblage of persons which teaches the doctrine .of criminal syndicalism, sabotage, etc. That the offenses charged are distinct and not based on the same acts.

Section 3 of the Criminal Syndicalism Act defines two separate offenses: First. The teaching, advocating, etc., or the circulating or displaying printed matter teaching, advocating, etc., of crime as a means of accomplishing industrial or political changes. Second. The organizing, becoming a member of, or voluntarily assembling with any society or assemblage of persons teaching, advocating, etc., crime as a means of accomplishing industrial or political charges. The first of these crimes is charged in the first count of the amended information; the second of said crimes is charged in the second count of said amended information.

There is no allegation that the acts alleged in the second count are the same pleaded in the first count, and the evidence does not indicate that the acts were in fact the the same.

Our statute, section 2558, Comp. St. 1921, is as follows:

“The indictment or information must charge but one offense; but where the same acts may constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be guilty of, the different offenses may be set forth in separate counts in the same indictment or information and the accused may be convicted of either offense, and the court or jury trying the cause may find all or either of the persons guilty of either of the offenses charged, and the same offense maybe set forth in different forms or degrees under different counts; and where the offense may be committed by the use of different means, the means may be alleged in the alternative in the same count.”

The term “same offense,” as used in this statute, does not mean the same class or kind of offense eo nomine, but means an offense committed by the same acts, transaction, or omission. Estep v. State, 11 Okla. Cr. 103, 143 P. 64.

Section 2558, supra, has often been construed by this court. It is well settled that separate offenses — that is, offenses committed by separate acts — may not be joined in a single information, and when so attempted to be joined, the information is duplicitous.

In the case of De Graff v. State, 2 Okla. Cr. 519, 103 P. 538, it is said:

“An indictment or information must charge but one offense; but when the same acts may constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be guilty, the different offenses may be set forth in separate counts in the same indictment or information; but in such cases the information or indictment must show upon its face that the separate counts all refer to one and the same transaction.”

In Grant v. State, 6 Okla. Cr. 172, 117 P. 1100, it is held:

“An information which attempts to charge separate offenses against an accused not based upon the same transaction is duplicitous, and should be set aside, unless the state elects to go to trial upon one specific count, and dismisses the others.”

In the case of Williams v. State, 16 Okla. Cr. 54, 180 P. 559, it is said:

“Where it is clear from the information, the evidence, the verdict, and judgment that the defendant was called upon to defend against two separate and distinct offenses charged against him, over his repeated objections and exceptions, this court will not permit a conviction under such circumstances to stand unreversed, for the reason that such a conviction does not afford the defendant that fair and impartial trial according to the forms of law guaranteed to him by the Constitution and statutes of this state.”

See, also, Kimbrell v. State, 7 Okla. Cr. 354, 123 P. 1027; Sturgis v. State, 2 Okla. Cr. 362, 102 P. 57; Shuford v. State, 4 Okla. Cr. 513, 113 P. 211.

The plaintiff in error complains of the ruling of the court in sustaining an objection to questions propounded to the prospective jurors for the trial of the case. Each juror examined on voir dire was asked this question:

“If it should appear in the trial of this case that the defendant is a member of an organization commonly known as the I. W. W., or Industrial Workers of the World, would that fact, if it should appear as a fact, prejudice you against the defendant?”

In each instance the state objected and the objection was sustained. The question may not be in the proper form, and counsel who appeared for the plaintiff in error did not vary the form or attempt to ascertain from the trial court the reason the objection was sustained. But in view of the gravity of this case, we believe the court should have been more liberal and have allowed counsel to develop the feeling, if any, of the jurors towards the I. W. W.’s; that the sustaining of the objection to the question was error.

Complaint is also made that it was error to admit in evidence the papers taken from the person of the plaintiff in error at the time of his arrest, as a violation of his rights against unlawful search. This court holds that property taken from the person of any one by an unlawful search of his person is not admissible in evidence against him. But where an officer makes a lawful arrest, he may take from the person arrested any firearms, eoun-terfeit money, burglar tools, or other papers or documents, or other matter to be used with criminal intent, and that such things so taken may be used as evidence against the person arrested. Gore v. State, 24 Okla. Cr. 394, 218 P. 545; Boyd v. U. S., 116 U. S. 619, 6 S. Ct. 524, 29 L. Ed. 746; Weeks v. State, 232 U. S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 384, Ann. Cas. 1915C, 1177; Browne v. U. S. (C. C. A.) 290 F. 870; 2 R. C. L. 468; Baron et al. v. U. S. (C. C. A.) 286 F. 822; State v. Edwards, 51 W. Va. 220, 41 S. E. 429, 59 L. R. A. 465.

Upon the trial of this case the plaintiff in error took the stand and himself testified as to the possession of the papers introduced in evidence, against the admission of which he now complains.

Further complaint is made to the ruling of the court permitting the witness Nowlin to testify what the I. W. W. “stood for.” The following appears from the record:

“Q. Mr. Nowlin, are you familiar with the organization known as the Industrial Workers of the World, commonly known as the I. W. W? A. I am somewhat familiar with them; yes, sir. * * *
“Q. Do you know what they stand for? (Objection; ruling; exception.) A. Yes, sir.
“Q. What do they stand for? (Objection; ruling; exception.) * * * A. Well, they stand for tearing down our flag and our form of government and establishing a form of government of their own, and worshipping the red flag instead of the American flag.”

This evidence, we presume, was offered in support of the second court of the amended information, and as there was a verdict of not guilty on that count, it is probably not essential to review this assignment except for the fact that it would militate against the plaintiff in error on the other count. We think this evidence in this form was incompetent and prejudicial to the rights of the plaintiff in error.

It is urged at some length that the evidence is insufficient to sustain the verdict and judgment. The only-evidence sustaining the first count.was three membership cards of the Industrial Workers of the World, the same as set out in the amended information hereinbefore quoted, with some stamps of four different designs. One design being a “Vol Ass’t” stamp, showing oil derricks and tanks, with the design of the world and the name Industrial Workers of the World, and the value, thereon. Another design illustrates the head and shoulders of a person looking from a prison cell, with the words “Defense Stamp, 50c, 1922.” Another is labeled, “General Stamp, value 50c, Industrial Union,” with a view of the world, with the words “Industrial Workers of the World” thereon. Another is simply labeled “Monthly Dues, 50c, 1922” with a view of the world, with the words, “Industrial Workers of the World,” thereon. The other matter admitted in evidence was mere instructions in detail as to keeping records, directions to the secretaries how to remit to the union, and how to transfer members, how to secure stamps, and matters of that kind.

The stamps referred to are not in any sense and apparently are not intended to be inflammatory. The circulating of them without connection with any other matter would not be a violation of the law. •

The membership cards referred to and set out in the amended information are more objectionable. These words appear:

“The working class and the employing class have nothing in common. There can be no peace so long as hunger and want are found among millions of the working people and the few, who make up the employing class, have all the good things of this life. Between these two classes a struggle must go on until the workers of the world organize as a class, take possession of the earth and the machinery of production, and abolish the wage system.”

It will be noted that the words “no peace,” “a struggle must go on,” and “take possession of the earth,” I are used. Further on, “workers” are “pitted” against “workers.” “Wage wars” are mentioned, and “a revolutionary watch word” is suggested. The “army of production” and the “everyday struggle with capitalists” is referred to. Taken in one sense, this smacks of military activity, armies, and fighting. But, on the other hand, it is just as reasonably or more reasonably construed to be metaphoric. It hardly conjures up to the mind actual armies and actual military engagements. “Onward Christian soldiers” does not mean that the zealous churchman is literally militant. The language of the membership card should be construed in favor of the plaintiff in error.

We think, too, that even if the membership cards were construed to have the meaning contended for by the state, there is no sufficient proof that plaintiff in error circulated or displayed them as contemplated by the statute. There is no proof that any one had knowledge of the existence of such papers prior to the arrest of the plaintiff in error. After his arrest and while in the custody of an officer, one of the witnesses, according to the testimony, asked him what he was arrested for, and he answered, “For being an I. W. W. or being an I. W. W. organizer,” and then one of the officers who had him in custody came around and he asked the officer for the membership card, a red-backed booklet, and showed it to the witness. The witness and plaintiff in error testified very much the same in substance, except plaintiff in error states that the of-fleer showed the membership card to the witness. The display, we think, was not such a public display as is forbidden by the statute, and if done by the plaintiff in error was. a mere satisfying of the curiosity of the witness Kelley, and would not be sufficient on which to predicate a prosecution.

On account of the importance of the questions presented by this appeal, we have gone into the record thoroughly.

For the reason assigned, the cause is reversed and remanded.

The warden of the penitentiary is directed to deliver the plaintiff in error into the custody of the sheriff of Pittsburg county, who will hold him in custody subject to further proceedings according to law.

BE'SSEY, P. J., and DOYLE, J., concur.


text:
    DAN GROVES v. STATE.
    No. A-4725.
    Opinion Filed Feb. 2, 1925.
    (233 Pac. 243.)
    (Syllabus.)
    1. Witnesses — Cross-Examination—Right to Show State’s Witness is Charged with Homicide and Accused is Witness Against Him. In a criminal prosecution it is competent for the defendant to show that a witness who is testifying against him stands charged with homicide, and defendant as an eyewitness of the homicide is a witness against him.
    2. Same — Refusal to Permit Showing on Cross-Examination Riever-sible Error. In a criminal prosecution it is reversible error to refuse to permit the defendant to show on cross-examination of a witness for the prosecution that he stands charged with homicide, and that the defendant as an eyewitness to the homicide is a witness for the state against him.

      Appeal from County Court, Cotton County; J. C. Norman, Judge.
    Dan Groves was convicted of transporting intoxicating liquor, and he appeals.
    Reversed.
    Lewis Hunter, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

The information charges that on the 1st day of October, 1922, the defendant, Dan Groves, did unlawfully convey and transport one quart of corn whisky from a point unknown in Cotton county to a point in Benton Hill’s Bottom. On the trial the jury returned a verdict of guilty and assessed his punishment at a fine of $500 and confinement in the county jail for 90 days. He has appealed from the judgment rendered. upon such conviction.

The errors assigned question the sufficiency of the evidence to sustain the verdict, and that the trial court erred in its rulings on the admission and exclusion of testimony.

The state relied for this conviction upon the testimony of Bill Muse, Herman Muse, and Ace Kelly. It appears that Bill and Herman Muse are brothers, and Ace Kelly their nephew; that at the time of the trial Bill Muse was charged with the murder of Benton Hill; and that Dan Groves was a witness for the state.

Bill Muse, the first witness called, testified that his brother Henry and Ace Kelly and Benton Hill were together on the creek bank, and the defendant Dan Groves brought a half gallon of whisky to them; that they drank a part of it and witness broke the jar. On cross-examination he was asked if it was not a fact that Dan Groves was an eyewitness to the killing of Benton Hill, “wherein you are charged as the defendant.” The county attorney, Mr. Huff, objected for the reason the same is incompetent, irrelevant, and immaterial. The court sustained the objection. Exception reserved.

On cross-examination of the witness Herman Muse, he was asked if he knew whether the defendant Dan Groves is a witness against his brother in the case where his brother is charged with homicide for the killing of Benton Hill. Same objection and same ruling.

As a witness in his own behalf, Dan Groves testified that he was present on the bank of the creek with the witness for the state and Benton Hill, and was picking cotton for Mr. Hill at the time; that when he walked through the cotton field the rest of the party were sitting down and Bill Muse had a half-gallon fruit jar of whisky in front of him; that he did not know who produced the whisky. He was then asked to state whether or not he was' an eyewitness on this same day to the homicide where the witness Bill Muse is charged with the killing of Benton Hill. Same objection by the state sustained. Thereupon his counsel offered to prove by the defendant, Dan Groves, that on this same day he was an eyewitness to the killing of Benton Hill, a white man, by Bill Muse, a colored man, and that he is one of the only two eyewitnesses present at the time of the killing; that Bill Muse and the other state witness are biased and prejudiced against him; that Bill Muse is a witness against him with the hope of immunity, or of mitigation on the charge of killing Benton Hill. By the Court: The ruling of the court will be that this line of testimony is entirely incompetent in this case and will not be permitted to go to the jury. Exception allowed.

The question here presented is discussed in the companion case of Hennessee v. State, 29 Okla. Cr. 72, 232 P. 856, decided at this term, wherein it was held that a defendant has the right on cross-examination to show the nature of the relations existing between him ánd a prosecuting witness in so far as their relations are such as would tend to create a bias that might reasonably be supposed to affect the credibility of the witnesses.

For the reasons stated in the opinion in the Hen» nessee Case, the judgment of the lower court is reversed.