text:
    BUNK WHITE v. STATE.
    No. A-5513.
    Opinion Filed May 16, 1926.
    (246 Pac. 487.)
    W. C. Hall, for appellant.
    The Attorney General, for the State.
   PER CURIAM.

Bunk White was convicted on an information which charged that in Hughes county, February 16, 1924, he did “sell intoxicating liquor, to wit, whisky, to Daniel Narcomy,” the jury leaving the punishment to be fixed by the court. Motion for new trial was duly filed and overruled, and the court sentenced defendant to pay a fine of $150 and be confined in the county jail for 90 days. To reverse the judgment he appeals and assigns as error that the verdict is not sustained by sufficient evidence and is contrary to law.

The state relied for this conviction on the testimony of Daniel Narcomy, a Seminole Indian, who testified that he met the defendant on the street near the Farmers’ National Bank in Holdenville and asked him if he knew where he could buy some whisky, and the defendant said yes, he knew where he could get some; that he gave him $2, and they went together until they reached the Rock Island depot. The defendant went over in the negro part of town and returned with a half pint of whisky. He further testified as follows:

“Q. You understand that Bunk was taking your money and going over there to buy this liquor from a bootlegger in order to get a drink of liquor himself, and he drank some of it when he brought the whisky back? A. No, sir.
“Q. You don’t mean to say you wouldn’t give a negro a drink? A. I did not drink any.
“Q. He drank some ? A. He drank it.
“Q. That is just the way it happened? A. Yes, sir.
“Q. Was it pretty good whisky? A. I don’t know.
“That is all. The state rests.”

The defendant demurred to the evidence and moved the court to instruct or advise the jury to return a verdict of acquittal, because.the evidence is insufficient to warrant a conviction. The motion was denied and exception taken.

As a witness in his own behalf, the defendant testified that he used to live on a farm with Narcomy; that the Indian was telling- the truth when he said he gave him $2 to buy some whisky; that he went over there and got a half pint of whisky; that he did not sell the Indian any whisky; that he got nothing but the whisky out of the transaction.

Judge Warren, former Justice of the Supreme Court, testified that the defendant worked for him for several years; that he knew his general character and reputation, and it was that of a law-abiding citizen.

An examination of the record shows there was no evidence of a delivery by the defendant of the half pint of whisky in question. It appears that the defendant drank it; therefore we do not think there was evidence from which the jury might legally find the fact that the sale was consummated by delivery to the prosecuting witness.

We are therefore of the opinion that the court below should have sustained the motion for a directed verdict.

The judgment is reversed.


source: Caselaw Access Project

author: PER CURIAM,.

license: Public Domain

text:
    RAY SALES v. STATE.
    No. A-5502.
    Opinion Filed May 15, 1926.
    (246 Pac. 488.)

      See also 108 Ókla. 29, 233 P. 186.
    John B. Ogden, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM,.

The plaintiff in error was convicted of a violation of chapter 113, Session Laws of 1923, being charged with having transported certain persons in an automobile for hire from Ardmore to Wilson without having first obtained from the Corporation Commission a;, certificate declaring that public convenience and necessity required such operation and service. The penalty assessed was a fine of $100.

In the petition in error the plaintiff in error challenges the constitutionality of the act as a whole, and particularly that of several separate sections and provisioná of the act. He also challenges the sufficiency of the evidence. No briefs have been filed, and the cause has been regularly submitted on the record.

Without passing upon the constitutionality of the act as a whole or any of its features, we find that the information fails to state an offense under' the terms of the act. Assuming that under the facts none can be stated, the cause is reversed, with instructions to enter a dismissal.


author: PER CURIAM.

text:
    R. WRIGHT v. STATE.
    No. A-5431.
    Opinion Filed May 15, 1926.
    (246 Pac. 493.)

      P. A. Gavin, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the district court of Muskogee county on an appeal from a justice of the peace in the city of Muskogee upon a charge of assault and battery and sentenced to a fine of $100.

The case was tried in October, 1924, and the appeal lodged in this court in February, 1925. No briefs have been filed in support of the assignments of error. Where an appeal is prosecuted to this court and no brief in support of the petition in error is submitted and no appearance for oral argument made, this court will examine the record for fundamental errors, and will read the evidence to ascertain if it reasonably supports the judgment, and, if no such error is apparent, the case will be affirmed. We have examined the record, and no prejudicial error is apparent. The evidence fully sustains the verdict.

The case is affirmed.


author: BESSEY, P. J.

text:
    LULA PARKER v. STATE.
    No. A-5499.
    Opinion Filed May 15, 1926.
    (246 Pac. 493.)

      E. L. Mitchell and Meacham & Meacham, for plaintiff in error.
    The Attorney General and Houston B. Teehee, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The plaintiff in error, Lula Parker, was charged jointly with two other women with the larceny of certain described merchandise from a store in Cordell; the manner of the taking being that which is commonly referred to as “shoplifting.” The aggregate value of the articles so taken was $166. A severance was had and at a separate trial of the plaintiff in error, defendant in the trial court, she was found guilty. Her punishment was assessed by the court at confinement in the penitentiary for a term of one year.

The evidence shows that the defendant was guilty as charged. The only alleged error urged in this appeal is that the prosecuting attorney, in his argument to the jury, violated the spirit and the letter of the closing part of section 2698, Comp. Stat. 1921, prohibiting any comment upon the fact that the defendant fails to take the witness stand in her own behalf. The remarks complained of are as follows:

“Gentlemen of the jury, what is the defense in this case? This is the defense in the case: First, that the defendant has a sister; second, that she has a husband; third, that she has two little children. There is not a single bit of evidence from the defendant except to those things.”

There were two witnesses who testified for the defendant. W. H. Parker testified that he was the defendant’s husband; that she was the mother of two children and a good wife; that she had never before been accused of any crime. The defendant’s sister testified to the same effect. The special prosecutor had a right to comment on the evidence offered by the defendant, and the things stated by him covered practically all of the evidence offered in her behalf. The remarks complained, of were a true summary of all the evidence offered on the part of the defendant, except that as to her previous character, and did not constitute a comment upon the failure of the defendant to testify in her own behalf.

The statute, section 2698, supra, is comprehensive in the extreme, and this court will not enlarge nor extend its provisions in this regard by judicial construction.

The judgment of the trial court is affirmed.

DOYLE, J., concurs.

EDWARDS, 'J., having certified his disqualification, does not participate.


author: DOYLE, J.

text:
    ED TODD v. STATE.
    No. A-5538.
    Opinion Filed May 15, 1926.
    (246 Pac. 492.)
    R. C. Roland, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

On an information charging that in Carter county, April 1, 1924, Ed 'Todd did sell one pint of corn whisky to one Albert Holley for the sum of $2, he was convicted, and in accordance with the verdict of the. jury was sentenced to pay a fine of $50 and to be confined in the county jail for 30 days. To reverse the judgment he appeals, and assigns as error that the evidence is insufficient to support the verdict.

Albert Holley testified as follows:

“I bought a pint of whisky from defendant and paid him $2 for it out at his place in the town of Wilson, Carter county, April 1st, about 7 o’clock at night.”

On cross-examination he stated that defendant lived about a mile east of Wilson; that he turned the bottle over to D. Bell, deputy sheriff; that he had a special commission from D. Bell, and worked for him for $150 a month; that his home was at Wilburton, and he had a state commission (which he produced) signed by M. E. Trapp, Governor of Oklahoma; that his duties were to carry firearms and enforce the laws of the state of Oklahoma and of the United States; that Mr. Bell made the arrest and received the fees.

D. Bell, deputy sheriff, testified that he had the witness, Holley, working for him, and received from him a pint of corn whisky about April 12th, the time he verified the information; that he did not look to see what the contents of the bottle was. As a part of his cross-examination the return on the warrant was offered, showing fees charged for the service of the same, $36.70.

As a witness in his own behalf Ed Todd testified that he had lived in Carter county 29 years; that he never saw the witness, Holley, until this case was called for trial; that on March 27, 1924, he left home and went to Holliday, Tex., and returned May 29th to see his little girl, who attends the deaf and dumb school at Sulphur.

Leora Todd testified that her husband left for Texas on March 27th, and did not return until May 29th; that she stayed with the children at their home in Hewitt, but on the 1st day of April she was at her mothers place in Hewitt; that she stayed with her mother, who was sick in the town of Hewitt about two weeks; that she left the doors of her home locked and had the keys with her.

The only evidence against defendant was the uncorroborated testimony of the witness, Holley, and it appears that he was receiving $150 a month from Deputy Sheriff Bell for the sole purpose of spotting violations of the liquor law and making a witness out of himself, and thus secure the additional witness fees. It is a matter of common knowledge that the most potent factor of the dishonest dispensation of justice is the production of untruthful testimony upon the witness stand. Generally speaking, a spotter is not overscrupulous in the truthfulness of his testimony, and such evidence should be viewed with caution, as it may not be entitled to very much credence.

Here it appears that the bottle was not delivered to the deputy sheriff until about 12 days later than the alleged sale, and it appears that the witness, Holley, was not certain as to whether defendant lived in the town of Wilson or some other place.

The testimony of defendant and his wife is positive that he had left home several days before the date alleged. The state was at liberty to show by testimony other than Holley’s that defendant was in Carter county at the time, which it did not attempt to do.

Ordinarily the credibility of witnesses and contradictions and inconsistencies are for the jury, but here we cannot say that there is such fair conflict as prevents in-interference with the finding of the jury that the testimony of Holley was shown beyond reasonable doubt to be true.

Adhering to the rule that a person accused of crime shall be presumed to be innocent until proven guilty by credible and sufficient evidence, we reach the conclusion that the verdict in this case is clearly against the weight of the evidence and is insufficient to sustain the conviction.

The judgment is accordingly reversed.

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


text:
    MINOR RUSSELL v. STATE.
    No. A-5503.
    Opinion Filed May 15, 1926.
    (246 Pac. 489.)
    Pardue & Davis, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

Minor Russell,, plaintiff in error, defendant in the trial court, was found guilty of having unlawful possession of one pint of whisky. His punishment was fixed at a fine of $50 and 60 days in jail.

The defendant was apprehended by peaee officers as he was in the act of concealing a pint of corn whisky in a pile of scrap lumber at the rear of his blacksmith shop. The defendant claimed that he was suffering with tuberculosis and that he had the whisky there, conveniently accessible, for his own personal use.

Over the objection of the defendant, the court gave the following instruction:

“You are instructed that the defense interposed by the defendant is not a legal defense, under the laws of the state of Oklahoma, and the fact that this defendant had said whisky in his possession upon the recommendation of a physician would not relieve this defendant, under the law, for having said whisky in his possession for an unlawful purpose.”

In the offense of illegal possession of intoxicating liquor there are two major elements, possession and an illegal intent to sell, bartér, give away, or otherwise furnish the liquor possessed, and both of these constituent elements of the offense must be supported by proof.

In this case there is no evidence sufficient to overcome the presumption of innocence that the defendant had this whisky for any illegal purpose, and there is no legal presumption to that effect. His defense was not that a physician had prescribed the whisky; that was merely an explanation, in the nature of corroboration of his claim that he had it for his personal use. His defense was that the purpose for which he had it was a legal purpose. Under the circumstances the instruction quoted was misleading and prejudicial.

The cause is reversed and remanded.

DOYLE and EDWARDS, JJ., concur.


author: EDWARDS, J.

text:
    JACK HUFF v. STATE.
    No. A-5461.
    Opinion Filed May 15, 1926.
    (246 Pac. 496.)
    Coffey & Church, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was charged with the crime of vagrancy in the municipal criminal court of the city of Tulsa. A jury was waived and the case tried before the judge, who found defendant guilty and assessed his punishment at a fine of $100 and imprisonment for 80 days in the county jail.

The charge is based on the first, second, and fifth subdivisions of section 1956, Comp St. 1921. The state offered the evidence of two members of the police force, who testified they had seen defendant on the streets and about a pool hall frequently, did not know of any legitimate business he had; that he stayed several nights at a cheap rooming house on Boston street; that he had been arrested one time prior to the arrest in this case, at which time he had some crooked cards, and at the time he was arrested in this case he had some dice, including two crooked dice.

The defendant testified that he lived with his mother in Sand Springs and had for a number of years; that he traveled for a portrait house and made about $250 a month; that he had an automobile but had not worked for some 60 days on account of the condition of the roads which prevented him from traveling, but had conducted a mail order business; that he paid the grocery bill of his mother; that the crooked dice were merely trick dice which he used in playing tricks in his travels; that he had never attempted to use them for gambling. He also offered an employee of a general merchandise business at Sand Springs, who testified that the defendant lived there with his mother; that they traded at his store, and the defendant paid the bills. The evidence also shows that he put up a $250 cash bond at the time of his arrest.

The purpose of vagrancy statutes is to prevent idlers, who are without means of support, and without employment, and who make no exertion to obtain employment, from strolling about the community and becoming criminals, drones, or charges upon the public, and to bar fortune tellers, prostitutes, begg-ars, and such characters from loitering about the streets of any city or town; but, in order to convict for vagrancy, the proof must bring the accused clearly within the statute. The evidence in this case does not satisfy this requirement, particularly in view of the explanation and evidence offered by the defendant.

The case is reversed and remanded.

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


text:
    LEE DORKIS v. STATE.
    No. A-5493.
    Opinion Filed May 15, 1926.
    (246 Pac. 495.)

      E. I. Saddler, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information charges that on the 14th day of September, 1924, Leo Dorkis did have in his possession certain intoxicating liquor, to wit, 60 gallons of Choctaw beer, containing more than • one-half of 1 per cent, of alcohol, measured by volume, capable of being used as a beverage, with the unlawful intent to sell the same. On the trial, the jury returned a verdict finding him guilty, leaving the punishment to the court. The court sentenced defendant to pay a fine of $100 and to be confined in the county jail for 60 days.

From the judgment he appealed by filing in this court on March 30, 1925, a petition in error with case-made, but no brief has been filed and no appearance made in his behalf in this court. The assignments of error question the sufficiency of the evidence to sustain the verdict.

We have to say that on a careful examination of the record we find that there was substantial evidence in support of the allegations of the information, and that under elementary rules the evidence is such that we cannot disturb the verdict. Other errors assigned are not supported by the record.

Finding no prejudicial error, the judgment of the lower court is affirmed.

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


text:
    TOM WHISENHUNT v. STATE.
    No. A-5498.
    Opinion Filed May 15, 1926.
    (246 Pac. 494.)
    H. H. Thomas, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Houston B. Teehee, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Le Flore county upon a charge of grand larceny, and his punishment fixed at confinement in the penitentiary for a term of one year.

The record discloses a state of facts about as follows: The prosecuting witness Russell resided alone on his farm, and had in his possession $141 in money, and, evidently, being suspicious of banks and bankers, used a couch in his living room as a depository. Oln the day the offense was committed, defendant and Russell were at a store not far from the residence of Russell, and in a conversation defendant suggested that he had some whisky and offered Russell a drink. Russell embraced or rather imbibed the suggestion, with the counter proposition that he wanted to concoct a toddy, so they went to his residence to prepare the drinks. Soon thereafter a neighbor, Phillips, came to the house and purchased some cane seed from Russell, who took his money out of the couch either for the purpose of making change or to pridefully display his wealth, and then restored it to his hiding place in the presence of defendant and Phillips. Then Phillips and Russell went into another room to sample the liquid refreshments, leaving the defendant in the room where the couch was, where he was alone some 15 to 30 minutes, and immediately after the supply of whisky had become exhausted defendant volunteered to go a short distance away and procure a further supply, which he did, and soon returned with more liquor. About this time a Mr. Baker and his wife arrived, and a Mr. Smith, and a social visit was had. The p'árty then disbanded, Baker and his wife going first, then Smith, then Phillips started to leave, when Russell told him he had lost his money, and to overtake Smith and call him back. He did so, and they returned and made a search of the premises. They then located Phillips and searched each other in turn. After the display of the money by Russell, no one was alone in the room until it was missed except the defendant. The money was not found in the search of the various persons. The defendant denied any knowledge of it.

It is first argued that the evidence is insufficient to sustain the verdict. The proof of the larceny of the money is circumstantial. No one saw the defendant take the money, and it was not found in his possession, but it is undisputed that Russell had the money a short time before its loss, that defendant knew where it was placed. He alone had an opportunity to take it, and on his trip for additional liquor had an opportunity to conceal it. The evidence satisfies the rule that circumstantial evidence must be consistent with the guilt of the accused and inconsistent with any other reasonable hypothesis than that of guilt.

It is next contended that there are errors of law which prevented the defendant from having a fair trial in that the court did not correctly instruct the jury. In instruction No. 6, the court, after stating the principles governing the sufficiency of circumstantial evidence, said:

“* * * And all the facts and circumstances proven should not only be consistent with the guilt of the accused, but consistent with each other and inconsistent with any other reasonable hypothesis or conclusion than that of his guilt and sufficient to produce the reasonable moral certainty that the accused committed the offense charged against him. * * *”

—the point urged being that the court uses the words, “should not only be consistent,” etc., instead of the words, “must not only be consistent,” etc. The word “must” was the proper word to have used, since it carries with it more of the sense of necessity than the word “should,” which carries with it more of the sense of obligation or duty; that is, “should” is a weaker word as here used than the word “must.” See De Bose v. State, 18 Okla. Cr. 549, 197 P. 176; Inklebarger v. State, 8 Okla. Cr. 316, 127 P. 707; Sies v. State, 6 Okla. Cr. 142, 117 P. 504; Davis v. State, 18 Okla. Cr. 112, 193 P. 745.

Some complaint is made to other of the instructions and to the failure of the court to give some requested instructions, but no particular error is pointed out. Instruction No. 6 is subject to criticism, but the instructions taken as a whole in connection with the evidence could not have misled the jury to the injury of the defendant, and no error is apparent requiring a reversal.'

The case is affirmed.

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


text:
    H. A. SADLER et al. v. STATE.
    No. A-5476.
    Opinion Filed May 15, 1926.
    (246 Pac. 494.)
    W. C. Hall and O. G. Rollins, for plaintiffs in error.
    Geo. F. Short, Atty. Gen., for the state.
   PER CURIAM.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Hughes county on a charge of having possession of intoxicating liquor with intent to violate the liquor law, and sentenced to pay a fine of $500 and to confinement m the county jail for a term of 6 months.

The defendants contend that the conviction in this case was procured by evidence obtained by a search made without a search warrant, or, if made by a search warrant, that the same was illegal. The evidence shows that , on or about the 20th day of November, 1924, a search of the hotel operated by defendants was made, and five or more gallons of whisky found. Before proceeding to trial, defendants moved that this evidence be suppressed, for the reason that it was obtained upon a void search warrant, if any at all, and offered evidence upon this point. Without going into the evidence in detail, it fully sustains the contention. The officers who made the search testified that they had a search warrant, but stated that the affidavit to procure it was made upon information and belief, and they did not know from whom it was obtained, and produced a search warrant and affidavit issued on the 1st of October, some fifty days before the search. It appears to be uncontroverted that the defendants did not take possession of the hotel until November 12th. The different justices of the peace of the city of Holdenville were called and examined, and had no record of the issuance of a search warrant for the search made, and had no recollection of having issued such a warrant. By the entire record it is shown that there was no serious attempt to comply with the requirements of law in procuring a search warrant, and the evidence should have been excluded.

The case must be reversed.


text:
    FRED FRANKLIN v. STATE.
    No. A-5504.
    Opinion Filed May 15, 1926.
    (246 Pac. 889.)
    E. E. Ammons, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

The plaintiff in error was found guilty of the illegal possession of a quantity of mash fit .for distillation, with his punishment fixed at a fine of $50 and 30 days in jail.

The evidence in this case was procured by means of a search and seizure made in the nighttime at the home of the plaintiff in error. The search warrant was predicated upon the following affidavit:

“Now comes Clyde Hawkins and informs the court that he has good reason to believe that one F. T. Franklin has in his possession and stored away on his premises located at Ryal township in -, Okla., and known as-house, intoxicating liquors being kept for the purpose of unlawfully selling, giving away or otherwise unlawfully disposing of the same. Wherefore said affiant asks that a search warrant be issued and that said intoxicating liquors be brought before me to be disposed of according to law.”

This court has held in numerous cases that where the affidavit for a search warrant states no evidential facts, but merely the belief of the affiant, the magistrate has no jurisdiction to issue a search warrant predicated upon such affidavit. Gore v. State, 24 Okla. Cr. 394, 218 P. 545; Russell v. State, 25 Okla. Cr. 423, 221 P. 113; Foster v. State, 27 Okla. Cr. 270, 226 P. 602; Hannan v. State, 29 Okla. Cr. 203, 233 P. 249; Reutlinger v. State, 29 Okla. Cr. 290, 234 P. 224; Howell v State, 33 Okla. Cr. 292, 243? P. 997.

Where officers armed with such a void search warrant go to the home of the person named in the warrant and there awaken the accused after he has retired for the night informing him that they have come to search his premises and that they have a search warrant, and the accused in reply to their statement says, “Go ahead and search,” the failure of the accused to resist or protest under such circumstances does not constitute a waiver of his right to immunity from an unauthorized search and seizure. His permission to them to go ahead amounts to no more than a declaration that the accused assumes that the officers have legal authority to act, indicating a commendable inclination to let the law take its course, as distinguished from cases where the person suspected tells the officers that no search warrant is needed and to go ahead.

The cause is reversed, with instructions to dismiss.

DOYLE and EDWARDS, JJ., concur.


text:
    G. W. LITTLE v. STATE.
    No. A-5577.
    Opinion Filed May 22, 1926.
    (245 Pac. 1062.)
    Clayton Carde, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

Plaintiff in error, G. W. Little, was convicted in the county court of Kiowa county upon an information charging that in said county, September 6, 1924, he did have in his possession, with intent to sell, one pint of whisky, and in accordance with the verdict of the jury he was sentenced to pay a fine of $400 and to be confined in the county jail for four months. To reverse the judgment he appeals, and assigns as error that the verdict is not sustained by the evidence; that the court erred in admitting incompetent evidence and in refusing requested instruction.

The evidence discloses that three officers visited the stockyards of the Frisco Railroad at the town of Snyder, and in a barrel of hog feed in a stock pen adjoining the stockyards they found a pint bottle of whisky, and am empty carton was found near by that had contained pint fruit jars.

Jack Ball, deputy sheriff, testified:

“We found a pint in a barrel full of hog feed that was standing in the center of the lot.”

His further examination is as follows:

“Q. Do you know who was in control of that hog lot? A. No, I don’t.
“Q. Did you ever have any information?”

Over defendant’s objection, he was permitted to answer that he understood Mr. Fullingame and Mr. Little were feeding hogs out there. Over defendant’s objection, each of the two witnesses for the state were permitted to testify that they knew the general reputation of the stockyards as being a place where intoxicating liquor is kept, and that reputation was bad. At the close of the evidence for the state, the defendant moved for a directed verdict of acquittal, which was refused.

For the defense, W. A. Fullingame testified that he was engaged in the butcher business in Snyder and occupied the stock pen that joins the Frisco Stockyards, having leased the same from Hon. Syd Bailey, about a year before; that the barrel in the lot he used to hold slop made from the refuse from his butcher shop; and that defendant Little worked for him to support his wife and five children.

In our opinion, the evidence is wholly insufficient to show defendant’s possession of the liquor in question, and assuming possession to be shown, the amount found being less than a pint, there would be no presumption of intent to violate the liquor laws. It follows that the court erred in refusing to advise the jury to return a verdict of acquittal.

The defendant also requested an approved instruction where circumstantial evidence solely is relied on for a conviction, which the court refused to give. The instruction requested should have been given, and it was error for the court to refuse it.

For the errors indicated, the judgment is reversed.

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


text:
    T. A. WOODWARD v. STATE.
    No. A-5614.
    Opinion Filed May 22, 1926.
    (246 Pac. 646.)
    Renegar & Dial, for plaintiff in error.
    The .Attorney General, for the State.
   DOYLE, J.

The plaintiff in error was convicted on an information charging that on or about the 15th day of December, 1924, he did have in his possession about three gallons of whisky with the unlawful intent to violate the prohibition laws of the state, and in accordance with the verdict of the jury was sentenced to serve 30 days in the county jail and to pay a fine of $50. From the judgment he appeals, and assigns as error the overruling of the demurrer to the information, and that the evidence is insufficient to support the verdict.

No brief has been filed and no appearance made on behalf of plaintiff in error in this court.

An examination of the record shows that the demurrer to the information was properly overruled.

The proof on the part of the state shows that in executing a search warrant the officers found in the defendant’s blacksmith shop in the town of Sentinel three half-gallon jars of whisky, and found several empty jars scattered around in the blacksmith shop that had contained whisky.

The defense was that the same had been placed there by other parties, and that defendant did not own or claim possession of the whisky.

We are satisfied from a careful examination of the evidence in the case that it was ample and sufficient and the jury warranted in the conclusion that the testimony showed plaintiff in error guilty of the offense charged beyond a reasonable doubt.

The judgment is therefore affirmed.

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


text:
    GEORGE MARTIN v. STATE.
    No. A-5960.
    Opinion Filed May 22, 1926.
    (246 Pac. 647.)
    J. W. Mansell, for plaintiff in error.
    Geo. F. Short, Atty Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Roger Mills county on a charge of rape in the first degree, and sentenced to serve a term of 25 years in the state penitentiary.

The evidence discloses that on the 12th day of August, 1925, defendant, who was 25 years of age, took the prosecutrix, Daisy Lacey, who was 18 years of age, home from a country dance, a distance of about 15 miles. On the trip two acts of intercourse were accomplished. Upon the trial the prosecuting witness testified that they were by force, overcoming her resistance. There were some circumstances tending to corroborate her testimony as to force, and some circumstances which indicated that the acts of intercourse were with her consent. She testified that the act was accomplished in the front seat of a Ford coupe in such manner as to render her testimony on this point rather improbable. But, considered as a whole, the evidence sustains the verdict.

After judgment and sentence, an appeal was regularly taken. At the next term of court, after the trial, a supplemental motion for a new trial on the ground of newly discovered evidence was filed as provided in section 2755, Comp. St. 1921. This motion was also overruled by the court. The motion and affidavits in support thereof, and the order of the court thereon, were duly brought up by supplemental petition in error and case-made.

Defendant has presented and argued various assignments of error, which, in the main, are directed to the sufficiency of the evidence and the weight and credibility to be given to the testimony of the witnesses. Incidental complaint is made of errors occurring at the trial. None of these present any error prejudicial to the defendant which would require a reversal or which call for any extended consideration.

Upon the supplemental petition in error and case-made, however, there is assigned error of the court in overruling the supplemental motion for a new trial on the ground of newly discovered evidence. This motion, in substance, states that at and prior to the trial, on account of the hostility of the family of prosecutrix to defendant, and the fact that she was under the control, of her relatives, he was unable to talk with her or to know what her testimony would be; that her testimony was false, and he was unable to know this prior to trial, and unable to show its falsity until March 1, 1926, at which time his attorney was apprised of the facts, and received affidavits from prosecutrix which constitute newly discovered evidence, material to the case, and which contradict m large part her testimony, and would probably change the result of the trial. Attached to this supplemental motion is an affidavit of prosecutrix, Daisy Lacey, executed before a notary public of Jackson county, Mo. This affidavit, while not directly stating that her former testimony was false, does so in effect. It states that the acts of intercourse testified to were with her consent, and with the expectation of a marriage between her and defendant; that her testimony at the trial did not disclose the real relation between her and defendant, and was brought about in large part by threats made by her father and brother to kill defendant if she married him, and for the purpose of protecting defendant from bodily harm; that she is pregnant by defendant; that they have intended to be married; that she now expects to marry him. Four other affidavits are attached showing the free and voluntary character of the statement and affidavit of prosecutrix. This affidavit is not contradicted by the state.

It would be a dangerous rule to allow, generally, a conviction to be overturned by the ex parte affidavit of a witness that he committed perjury in the trial of the case. Ryal v. State, 16 Okla. Cr. 266, 182 P. 253. If the filing of such an affidavit were generally recognized as a sufficient ground for a new trial as newly discovered evidence, we should see convicted criminals pursuing witnesses who had testified against them endeavoring to procure affidavits impeaching their own testimony. Here, however, the conviction depends entirely on the testimony of the prosecutrix that the act of sexual intercourse was accomplished by force, overcoming her resistance. The relative ages of the defendant and the prosecutrix and the surrounding circumstances and the manner in which the act of intercourse was accomplished are such that slight evidence of falsity is sufficient to discredit her testimony. Her affidavit in support of the supplemental motion for a new trial is more reasonable than her oral testimony upon which the conviction is based. We are impelled to the belief that her oral testimony that the intercourse was accomplished by force is false, and that the verdict should not be permitted to stand. 20 R. C. L. p. 299, § 80; People v. Shilitano, 218 N. Y. 161, 112 N. E. 733.

The case is reversed and remanded, with directions to dismiss.

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


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    JOHN MOORE v. STATE.
    No. A-5615.
    Opinion Filed May 22, 1926.
    (246 Pac. 648.)
    George L. Zink, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

On information charging that on the 30th day of August, 1924, John Moore did transport and convey whisky in a bottle from one place in Kiowa county “on section line running north and south, first west, of Deitrick Lake about one-quarter of a mile north and then to Deitrick Lake, a distance of about one-half mile." He was convicted, and in accordance with the verdict was sentenced to serve a term of 90 days in jail and to pay a fine of $100.

To reverse the judgment, he appeals and assigns as error that the verdict is not sustained by sufficient evidence and is contrary to law, and that the court erred in giving certain instructions and in refusing to give his requested instruction on circumstantial evidenee.

Sam Sanderfer, deputy sheriff, testified: About 10 p. m. he with Mr. Settle drove out west of Deitrick Lake about a quarter of a mile and passed a car parked by the side of the road. That he went on a little ways and stopped and saw a man pick up something and go to the car and start away. That they followed the car to Deitrick Lake. There the man got out and put a bottle in a prairie dog den and went on. That he picked up the bottle and it contained whisky. That a little further on he picked up a hat. That he asked the man collecting the parking fee who that fellow was, and he said it was John Moore. A man named Patterson asked him if he was looking fo-r John Moore. He said “Yes”; and Patterson went away and shortly returned with defendant, who was bareheaded. That the man who got out of the car and placed the whisky there had on the same kind of pants that defendant was wearing. That he never saw defendant before that night. That there was a big crowd there, the shows and the carnivals were still running, and he stopped the boxing match.

W. E. Settle, undersheriff, testified: That the first time he ever saw defendant was at Deitrick Lake. That he was with Officer Sanderfer when they noticed a car by the^side of the road. That they turned into a field and watched a man walk along the fence and pick up something and then go back to the car. That Sanderfer followed him in their car, and witness walkéd back to the picnic grounds.

As a witness in his own behalf, defendant testified: That he lived 8 miles north of Lawton, and had been farming all his life. That he went out to Dietrick Lake for the picnic, rodeo, and carnival with Willis Moore, his brother, who parked his car on the west side of the picnic grounds. That they arrived there that evening, and he did not use the car at any time until after his arrest. That W. C. Stamper, Jack Stamper, Frank Stamper, J. W. Stamper, and Fred Lawson came there with them, and they all took in the show together that evening.

Each of the above parties named testified and corroborated defendant as to' the fact that he was with them all that evening and did not leave the carnival grounds until after his arrest.

On the record before us, we are convinced that this defendant should have a new trial.

The court gave the following instruction:

“No. 8. You have a right to take into consideration all the facts and circumstances surrounding this case in arriving at your verdict. Exception allowed.”

Defendant requested the court to give an instruction on the law of circumstantial evidence, which the court refused to do. The instruction which was presented and requested to be given was in the approved form of the law of circumstantial evidence. In view of the instruction excepted to not fully stating the law, the instruction asked for should have been given, and it was error for the court to refuse it. Rutherford v. U. S., 1 Okla. Cr. 195, 95 P. 753; Kirk v. State, 11 Okla. Cr. 203, 145 P. 307; Pierson v. State, 13 Okla. Cr. 382, 164 P. 1005.

The judgment appealed from is therefore reversed, and the cause remanded for further proceeding in accordance with law.

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


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    ED LIPSCOMB v. STATE.
    No. A-5620.
    Opinion Filed May 22, 1926.
    (246 Pac. 649.)
    Rummons & Hughes, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The plaintiff in error, Ed Lipscomb, was convicted on an information charging that September 9, 1924, he did have in his possession a still and still worm which could be used for the manufacture of distilled spirits, and, in accordance with the verdict of the jury, was sentenced to pay a fine of $100 and be confined in jail for 30 days. From the judgment he appeals, but no brief has been filed, and no appearance made in this court in his behalf. The cause was submitted on the record.

The errors assigned question the sufficiency of the information and the sufficiency of the evidence to support the verdict.

The sufficiency of the information was only questioned in the court below by an objection to the introduction of evidence, which we think was properly overruled. The evidence on the part of the state shows possession of a still and worm. The defense was that the defendant did not know that the stuff was concealed in the house and on the farm on which he was raising a crop.

We. do not feel called upon to review the evidence. The weight and credit to be given to the testimony of the witnesses was properly the province of the jurors who heard the testimony of the witnesses, and saw their conduct on the trial, and not for the judges of this court who have before them only a transcript of the evidence.

It is sufficient to say that the evidence was sufficient to support the verdict.

The judgment appealed from is accordingly affirmed.

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


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    ERNEST L. COOLEY v. STATE.
    No. A-5517.
    Opinion Filed May 22, 1926.
    (246 Pac. 650.)

      L. T. Wilson, C. E. Wilhite, and A. J. Stevens, for plaintiif in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The plaintiif in error, defendant in the trial court, was found guilty of rape in the second degree, with his punishment fixed by the jury at confinement in the penitentiary for 15 years.

Since the sufficiency of the evidence is challenged, and the weight of the evidence affecting other features of the ease is argued, it becomes necessary to recite the facts somwhat in detail.

The state’s evidence shows that the defendant, Ernest L. Cooley, was a man 52 years of age, a member of the church of Jesus Christ of Latter Day Saints, a lay preacher of Aaronic priesthood, as well as a farmer, blacksmith, and broom maker. Mildred Wells, the prosecuting witness, 15 years of age, resided with other members of the Wells family on a farm 7 miles from the farm home of the defendant. The Wells family were also members of the church of Latter Day Saints, and the two families had been intimately associated in their religious and social activities, and also were in the habit of exchanging work and services on their farms. Just before the commission of the alleged offense, the defendant had been operating a disc listing plow in one of the Wells fields, and Mildred Wells had been operating a plow in a different portion of the same field. After the noon hour, the defendant and Mildred drove two teams, with some farming equipment, to the home of the defendant, where both began to work with their respective teams in a field adjacent to defendant’s house. After awhile the defendant and Mildred took some metal plates to be repaired into a combined blacksmith shop and garage, facing the house where the wife of the defendant was engaged in her household duties. Mildred turned the forge while the defendant did the welding.

Mildred testified that while they were there the defendant put his arm around her and kissed her and ^mentioned having intercourse”; that after taking liberties with her person “he led me or had me to go over to the car, took hold of my arm when I got up in the car, in the back seat of a Ford touring car, and told me to sit on the edge of the back seat and lean back and I did.” Without hesitation she stated in detail how the sexual act complained of was accomplished, and how she assisted the defendant to adjust and remove portions of her clothing, and that the act was apparently accomplished with her consent and co-operation; that the act was completed without pain, lacerations, or stains on her person or body. She testified further that she and the defendant had indulged in improper caresses both before and after this occasion, but that this was the only act of copulation. Some months after this occurrence the prosecuting witness told her sister of the incidents just related, and the sister in turn told her mother. Then followed an ecclesiastic trial or investigation, in which the defendant was neither exonerated nor found guilty. Later this prosecution was commenced.

The defendant and his wife denied in toto all of the incriminating facts shown; denied that Mildred Wells was even with him in the shop or garage that day.

We hold, however, that the evidence as a whole was of sufficient probative force to go to the jury.

For the purpose of intelligently exercising his right to peremptory challenges, the defendant* at the thréshold of the trial, sought to interrogate prospective jurors as to their affiliation with the Ku Klux Klan. This request was by the court refused.

Under the provisions of section 2671, Comp. Stat. 1921, the defendant had a right to challenge five jurors peremptorily, without assigning any reason or cause for challenge. If the accused wished to exercise that right he should have been given a reasonable opportunity to discover the state of mind of the different jurors, or any collateral matter reasonably liable to influence them, including possible, secret obligations or affiliations such as are disclosed here. An examination of a juror on his voir dire has a twofold purpose: First, to ascertain when a cause of challénge exists; and, second, to ascertain whether it is wise or expedient to exercise the right to challenge peremptorily. We think the right of the accused to challenge jurors peremptorily, under the peculiar circumstances shown in the record, wa,s prejudicially impaired.

The conviction is reversed, and the cause remanded.

DOYLE and EDWARDS, JJ., concur.


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    ERNEST WISE v. STATE.
    No. A-5463.
    Opinion Filed May 22, 1926.
    (246 Pac. 656.)

      M. D. Hartsell, for plaintiff in error.
    •Geo. F. Short, Aitty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Muskogee county on a charge of selling intoxicating liquor, and sentenced to pay a fine of $250 and to serve a term of six months in the county jail.

The record discloses that on the 23d day of August, 1924, certain officers went to the vicinity of the home of defendant, and two of them went to the residence and purchased a quart of whisky. They returned later and arrested defendant. They also found on the farm a keg of whisky and defendant took them to a still and delivered it to them. He made variojus statements admitting his guilt and his intention to plead guilty. A part of the evidence of defendant upon the matter of sale is as follows:

“Q. Calling your attention to the 23d day of last August, do you remember the occasion of this man Davis and a man by the name of Osborne coming to your place ? A. Yes, sir.
“Q. Tell the jury what took place.there immediately after they arrived? A. Judge, gentlemen of the jury, when these two gentlemen arrived they asked me for whisky. I told them I didn’t have no whisky, and they said, ‘We are looking for whisky,’ and I said, ‘I haven’t got none to sell.’ I come to the door and they met me half way. * * *
“Q. Can you tell the jury — what did he say after you told him you didn’t have any whisky? A. He said, T been drunk all night and I gotta have some more whisky’; and when I said I didn’t have none he said he was going in and get some anyway, and he did, and then he got in the car and went down and met this other fellow, and then they all come back.
“Q. You did have some conversation with the fellow that you had some whisky in your house and would plead guilty to having whisky there? A. I wouldn’t sell whisky to a man that I didn’t know. * * *”

Several assignments of error are presented which will be briefly considered. It is first contended that the information is duplicitous. It charges that defendant did sell one quart of spirituous liquor, one quart of vinous liquor, one quart of fermented liquor, one quart of malt liquor, and one quart of intoxicating liquor, to wit, one quart of whisky, to R. E. H. Davis, for and at the price of $2. It is obvious but one sale is charged and that the intoxicants are variously described in order to meet the contingencies of the proof. It apprises defendant of the particular sale he is charged with having made. It is not duplicitous.

It is next argued that the setting of the case for trial was made at a time when the court was not in session. The evidence upon this point shows that the court regularly opened on the first Monday in October. On the 17th of October an order setting the case for trial was made. When the county court opened its term on the first Monday in October, it remained in session until the term expired by operation of law or was adjourned sine die; that is, as the term had been regularly opened it continued until adjourned sine die, or until the first Monday of January, following, when a new term began and the October term expired by operation of law. • The court was properly in session when the assignment was made and when the trial was had. Tucker v. State, 10 Okla. Cr. 565, 139 P. 998; Brown v. State, 11 Okla. Cr. 498, 148 P. 181; Southwestern Surety Ins. Co. v. Douglas, 81 Okla. 232, 198 P. 334.

Complaint is next made that the court erred in limiting the cross-examination of witnesses for the state. The witness Davis testified that he purchased the quart of whisky upon which the charge was based and paid two 81 bills for it. Counsel then asked whose money was used, and an objection to the question was sustained. Counsel then stated that he desired to elicit on cross-examination how defendant came into possession of the money for the purpose of testing his credibility, and to show that the witness was employed by the sheriff’s office and was furnished marked money for obtaining evidence, and that such marked money was used in other transactions, and that he did not purchase whisky as testified to by him with money belonging to the witness or any one else. The court thereupon ruled that he had a right to test the credibility of the witness, but that he had no right to show where the witness procured the money. Defendant was not precluded from testing the credibility and interest of the witness, but, as he claimed he made no sale and received no money from the witness, we do not perceive how he was injured by being so limited on ■cross-examination.

It is also argued that the court erred in refusing to define “reasonable doubt” when requested by defendant. This court has several times held that the term “reasonable doubt” requires no definition, and that it is not error to fail to define, whether requested or not. Tolbert et al v. State, 34 Okla. Cr. 110, 245 P. 659; Pitman et al. v. State, 33 Okla. Cr. 165, 242 P. 288.

' It is also very strenuously urged that the court erred in admitting evidence of other offenses. It was shown that upon the arrest of defendant he went with some of the officers to a cornfield where there was a still, three barrels of mash, and a keg of whisky. This evidence was objected to, but was admitted for the express purpose of showing the possession by defendant of whisky at the time, as going to his intent. The court in his instructions expressly limited it to that purpose.' For this purpose, we think the evidence was competent, or at least harmless. Bundy v. State, 16 Okla. Cr. 481, 184 P. 795; Herndon v. State, 16 Okla. Cr. 586, 185 P. 701; Tudor v. State, 14 Okla. Cr. 67, 167 P. 341.

It clearly appears that defendant is guilty; and, while some errors are apparent in the course of the trial, they are not such as require a reversal.

The case is affirmed.

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


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    JULIUS THOMAS v. STATE.
    No. A-5226.
    Opinion Filed May 22, 1926.
    (246 Pac. 658.)

      A. G. Morrison, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Canadian county on a charge of having possession of narcotic drugs and sentenced to confinement in the state penitentiary for a term of five years and to pay a fine of $500.

Briefly stated, the evidence is that John Davis, an officer, in company with a drug addict, went to defendant’s home in El Reno and represented himself to be a “dope fiend,” and sought to buy morphine. After some discussion defendant directed him to go to the pool hall opposite the Kerfoot Hotel; that he would have “Dogey” deliver it there. There were also at the time some other negotiations as to price and quantity. Witness then went to the pool hall and shortly after saw Dogan on the steps of the post office talking with defendant. Dogan then came to witness and told him to go two blocks north and three west, and wait. He did so and soon Dogan came with a box of morphine, and delivered it to witness. There was corroboration of the circumstances by other witnesses.

Dogan, who was jointly charged, testified for the defendant that he had possession of the morphine, and not defendant. Defendant merely denied having possession of the morphine in question, but did not deny any other evidence of the state.

Defendant contends that there was no sufficient proof that he had possession of the morphine in question, nor that he assisted, aided, or abetted another in the possession; that the court erred in its instructions of aiding and abetting, erred in refusing an instruction on the law of circumstantial evidence and in admitting evidence of statements made by Dogan in the absence of defendant.

It is true the evidenec does not show that defendant had the physical possession; but, under the undisputed evidence, the negotiation for the sale, the price and place of delivery, were all arranged by defendant. It is shown he conversed with his codefendant, Dogan, and, according to arrangements made with the state’s witness, Dogan then appeared with the narcotic as agreed by defendant. This is a sufficient proof of possession; it is direct in character, and, under this state of facts, the defendant was not entitled to an instruction on the law of circumstantial evidence. Star v. State, 9 Okla. Cr. 210, 131 P. 542; Price v. State, 9 Okla. Cr. 359, 131 P. 1102.

There was no error in instructing the law that one who assists or aids another to commit a crime is a principal. The evidence conclusively points to defendant as being the owner and dispenser of the narcotic, with Dogan working for him, or Dogan as the possessor, with the defendant working for and aiding and assisting him. Neither was there any error in the ruling of the trial court admitting the statements made by Dogan in the absence of defendant. It is well settled that, where two or more persons are concerned in the commission of an offense, and there is evidence of an acting together, statements or conduct by one before the termination of the unlawful act is competent in evidence against the other.

Upon an examination of the entire record, it appears that defendant was fairly tried, the issues fairly submitted, and that there is no error which requires a reversal.

The case is affirmed.

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


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    G. A. WILDER v. STATE.
    No. A-5621.
    Opinion Filed May 22, 1926.
    (246 Pac. 660.)
    E. V. Rakestraw, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error, G. A. Wilder, was convicted .upon an information charging him with transporting intoxicating liquor, to wit, whisky, from “one place in Kiowa county, Okla;, to another place therein, to wit, from a place unknown in said county and state to the northwest part of Hobart, near the residence of Lee Watkins therein,” and, in accordance with the verdict, was sentenced to pay a fine of $100, and be confined in jail for 30 days. To reverse the judgment he appeals.

The principal assignment is that the verdict is contrary to and not sustained by sufficient evidence. The evidence in the case was substantially as follows:

Roy Quick testified that, with Mr. Lindsey, he drove to the home of Lee Watkins; that there they found another car sitting in the street in front of the house with two boys in it; that he spoke to Mr. Watkins,1 and Mr. Lindsey grabbed the defendant and found on his person, under his coat, a fruit jar containing about one pint of whisky.

John Lindsey, city marshal, testified that they found a car parked in the front of Mr. Watkins’ house, and that there were two cars in the yard, and defendant was coming out of Mr. Watkins’ yard, and he went into the yard and arrested him.

As a witness in his own behalf, defendant, G-. A. Wilder, testified that he lived 8 miles east of Roosevelt; had been farming there for 20 years; that once in a while he drank whisky; that Buck Rutledge was in town with him, and he heard that he could get some whisky at Lee Watkins’ place, and some Hobart boy drove them up there where a man sitting in the car near the hedge of Lee Watkins’ place sold him a pint of whisky; that after putting it under his coat he stood there and talked until the officers came and arrested him; that he never left the car where he purchased the whisky until after he wras arrested.

C. M. Rutledge testified that he was with the defendant and saw the officers arrest him standing by the car where he bought the whisky.

This prosecution was under that subdivision of the Enforcement Act which provides:

That it shall be unlawful “to ship or in any way convey such liquor from one place within the state to another place therein except the conveyance of a lawful purchase as herein authorized.” Section 7002, C. S. 1921.

The gist of the offense charged is the conveyance from one place to another “place.” The word “place” has a variable meaning. As used in the statute it means region or locality.

In Proctor v. State, 8 Okla. Cr. 537, 129 P. 77, we said:

“On the essential ingredient of the offense charged, there must be a conveyance from a place beyond the premises of the defendant.”

On the undisputed facts in this case we are of the opinion that the evidence wholly fails to show a conveyance or transportation of the whisky in question.

No timely objection having been made to the competency of the evidence obtained by an unlawful search of defendant’s person without a warrant for his arrest, the question is not presented by the record.

Because the evidence is insufficient to show a conveyance from place to place, the judgment appealed from is reversed.


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    SLATER SMITH et al. v. STATE.
    No. A-5565.
    Opinion Filed May 22, 1926.
    (246 Pac. 661.)
    James W. Smith, for plaintiffs in error.
    The Attorney General, for the State.
   DOYLE, J.

On information charging that on or about the 1st day of June, 1924, “Slater Smith and Tom Pickelsimer did then and there unlawfully and willfully transport and convey certain spirituous liquors, to wit, wine from some place in the state of Oklahoma, unknown, to a place on the west side of the public road about 150 yards north of the residence of Paul Warnke, in Washita county, contrary to,” etc., a jury was waived, on the trial before the court they were found guilty and sentenced each to pay a fine of $50 and be confined in the county jail for 30 days. To reverse the judgments they appealed. It is contended in this court that the verdict is not supported by sufficient evidence and that it is contrary to law.

The first witness for the state, Hattie Warnke, age 15 years, testified that she lived with her parents about a mile north of Canute and saw these boys in a car; that they stopped the car about 100 or 150 yards north of her house, and one got out of the car and went out in the weeds and had something in his hand, then returned to the car, and they drove off, and in about 5 or 10 minutes they returned, and Mr. Hibbits, was there hiding in the brush; that she did not know what these boys had; that people were passing along the road nearly all the time.

Newt Bibbits, deputy sheriff, testified that he lived a quarter of a mile from Warnke’s. That he was in a little patch of willows about 40 yards north of Warnke’s and these boys came along, stopped the car on the road opposite where he was watching “a little piece of a jug of wine.” Slater killed the engine and they looked at it, then walked over to where he was in the woods. That he spoke to them, and they said they stopped to take a leak and said they did not know anything about the jug. That he arrested them and brought the jug to the sheriff’s office and labeled it. Asked what it contained, answered: "Some kind of wine; I cannot state just what the fruit was.”

Harve Deen, sheriff, testified that he received the jug from Hibbits. Asked what it contained, answered: "Well, it smelt like wine; that is what I would call it.”

When the state rested, the defendants demurred to the evidence and moved the court to discharge them for the reason that the evidence is insufficient to show the commission of an offense, and for the further reason that, under the law (section 7002, C. S. 1921), it is not an offense to make unfermented wine, and the proof fails to show that the alleged wine was spirituous liquor, which motion was overruled. The defendants each testified and each denied ever having possession of the jug or its contents.

John Gunter testified that he lives north of Canute and was traveling along the road and passed a car stopped north of Warnke’s. The boys were standing by the side of the car. One had a glass jug in his hand and walked over behind some willows. That he had known the defendants all his life and they were not the persons standing near the car.

The statute (section 7002, C. S. 1921) declares certain liquors intoxicating. No proof of an alcoholic content is necessary when it is made to appear that the liquor in question is one of the class enumerated. The proviso reads:

"Provided, however, that the provisions of this chapter shall not apply to the manufacture and sale of unfermented cider and wine made from apples, grapes, berries or other fruit grown in this state.”

As to the competency and sufficiency of the testimony to establish the fact that the contents of the jug w7as intoxicating liquor, it will be observed that there is no direct or competent evidence that the same was fermented wine, and for this reason the state failed to prove that the liquor in question was within the class enumerated. To prove the fact of transportation the state relied on circumstantial evidence alone. Under the rule in such cases that the facts relied on must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt to justify a conviction, and in view of the fact that one disinterested witness positively testified that he saw other parties place the jug where it was found, we think the evidence was insufficient to support the findings and the judgment of the trial court.

The judgment is therefore reversed.

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


text:
    H. H. WARD v. STATE.
    No. A-5483.
    Opinion Filed May 22, 1926.
    (246 Pac. 664.)
    H. S. Hines, for plaintiff in error.

      Geo. F. Short, Atty. Gen., and Houston B. Teehee, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error was convicted in the district court of Kay county on a charge of robbery, and sentenced to confinement in the state penitentiary for a term of 25 years.

The several assignments of error are argued in the briefs, one of which assigns error of the trial court in overruling the demurrer to the amended information, which, under the view we take of the law, will dispose of the case. The other assignments of error probably will not arise again and will not be discussed. The charging part of the information is:

“* * * One H. H. Ward, * * * then and there being, did then and there unlawfully and feloniously rob and take from the possession of A. L. Bogan, doing business as the Murray Theater, of Ponca City, Okla., by the felonious use and means of certain firearms, to wit, pistols and revolvers, the sum of $850.00 good and lawful money of the United States of America; the said personal property being then and there the property of the said Murray Theater and the said Murray Theater being then and there attended by ..one Fred Pickeral as manager; and while the said Fred Pickeral was in fear of immediate injury to his person by reason of said firearms so had and held and used by the said defendants H. H. Ward, * * * contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state.”

To this amended information a demurrer was filed challenging its sufficiency as not stating facts sufficient to constitute a public offense and as being duplicitous.

“Robbery” is defined by section 1784, Comp. St. 1921, as follows:

“Robbery is a wrongful taking of personal property in the possession of another from his person or immediate presence and against his will, accomplished by means of force or fear.”

This section was amended by section 1 of chapter 85, Session Laws 1923, which section reads:

“That any person or persons, who, with the use of any firearms, or any other dangerous weapons, attempts to rob or robs any person or persons, or who robs or attempts to rob. any place of business, residence, bank, or other place, inhabited or attended by any person or persons at any time, either day or night, shall be deemed guilty of a felony, and upon conviction therefor shall suffer death, or imprisonment at hard labor in the state penitentiary for a time of not less than twenty-five (25) years, at the discretion of the jury.”

This latter act is one of classification with an increased punishment where the crime is committed in a particular manner. It does not, however, change the definition of robbery as contained in section 1784, supra.

This court has adopted a very liberal rule in construing pleadings in criminal cases. Under the sixth subdivision of section 2563', and sections 2564 and 2556, Comp. St. 1921, an indictment or information is sufficient which charges the act or omission in ordinary and concise language in such a manner as to enable a person of common understanding to know what is intended, and which so defines and identifies the offense that the accused, if convicted or acquitted, will be able to defend) himself if charged again for the same offense by pleading the record of such former conviction or acquittal. The tendency of the courts is to get away from a strict construction of criminal pleadings. The failure to use all the phraseology and technical language ordinarily used will not work a reversal in this court unless such failure appears prejudicial to an accused. We expect to follow and even extend the numerous holdings of this court to that effect.

Applying' these general principles to the information In this case, does it meet the requirements that a person of common understanding is able to know the circumstances of the offense sought to be charged? The information does not follow the statute. It does not allege a “wrongful” taking nor a taking “against the will.” These words, however, are sufficiently comprehended in the words “unlawfully and feloniously.” It dhes (not ¡allege that the taking was from the “person or immediate presence.” It is to be doubted if this essential allegation is covered by the allegation that it was then and there taken from the possession of another by the use of and by means of firearms. Property not at the time on the person or in the immediate presence may be taken from the possession of another, in which case the offense would be larceny and not robbery. Ex parte Grant, 32 Okla. Cr. 217, 240 P. 759; Monagham v. State, 10 Okla. Cr. 89, 134 P. 77, 46 L. R. A. (N. S.) 1149.

The information is not definite and does not clearly allege from whom the property- was taken. It alleges that the property was in the possession of A. L. Bogan; but it further alleges Fred Pickeral, manager of the Murray Theatre, was the person in fear. Just how the putting of one person in fear would have any connection with taking property from the possession of another is not apparent. We are not able to determine from whom the pleader is attempting to charge the money was taken. We assume the pleader meant to allege that the money taken was the property of A. L. Bogan, doing business as the Murray Theater, and that it was taken from the possession of Pickeral by putting him in fear; but the information does not so state. The ownership of the money taken was not particularly important. It was not material whether the money belonged to Pickeral or Bogan, and the information is not helped by the allegations in reference to the Murray Theater and its manager, since under the statute it would have been entirely proper to have charged the money was taken from Pickeral, if such were the facts, and proof that the money taken was in his possession as manager of the Murray Theater would have been sufficient to sustain the information on this point, although the actual ownership of the money might have been in some third person. See Moody v. U. S., 2 Okla. Cr. 662, 103 P. 862, 1039; Rasberry v. State, 4 Okla. Cr. 613, 103 P. 865; Hill v. State, 19 Okla. Cr. 406, 200 P. 253.

The drawing of an information charging robbery is not difficult. A casual inspection of the statutes would suggest allegations for the charging part of the information according to the facts, about as follows:

“That H. H. Ward * * * wrongfully and feloniously» by the use of firearms, to wit, a pistol, did take from the person, immediate presence and possession of A. L. Bogan (or Fred Pickeral, as ,the facts may be,) and. against his will, certain personal property, to wit, the sum of $850.00, lawful money of the United States of America. Thé said taking being accomplished by force and by pointing the said pistol at the body of him, the said Bogan (or Pickeral), thereby putting the said Bogan (or Pickeral) in fear of immediate, unlawful injury to his person, * * * contrary, etc. * * *”

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

BESSEY, P. J., and BOYLE, J., concur.


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    OSCAR KNOX v. STATE.
    No. A-5619.
    Opinion Filed May 22, 1926.
    (246 Pac. 665.)

      Rummons & Hughes, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

On information charging that in Kiowa county, October 26, 1924, Oscar Knox and Earnest Knox did then and there unlawfully use a distillery for the purpose of manufacturing whisky they were convicted. Motion for new trial was duly filed and granted as to the defendant Earnest Knox and in accordance with the verdict of the jury appellant Oscar Knox was sentenced to pay a fine of $375 and be confined in jail for 65 days.

From the judgment he appeals, and assigns as error that the court erred in giving an instruction which assumed that appellant admitted his guilt and left for the jury the question of punishment.

It appears from the evidence for the state that appellant was apprehended manufacturing whisky; that he was standing by the still which was in operation, several barrels of mash and several gallons of whisky near by.

The defense interposed by Earnest Knox, a minor, was that he was there visiting his brother to borrow a buggy.

Appellant Oscar Knox testified that the still belonged to him, and that he alone was operating it; that the grasshoppers had eaten up his crop and he had started to manufacture 14 barrels of mash into whisky, and had just run off one barrel when the officers appeared and arrested him; that his codefendant had no interest whatever in the liquor deal; that he had arrived just before the officers to tell him that his wife was going to his father’s and that he would bring her back the next day.

While the instruction given by the court was error, nevertheless, in view of appellant’s testimony as a witness in his own behalf, we do not think the error was prejudicial to his substantial rights.

Our Criminal Procedure Act provides that:

“No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.” Section 2822, C. S. 1921.

The mandatory language of this wise and beneficent provision precludes this court from reversing judgments of conviction for errors, defects, or irregularities deemed inconsequential, in the absence of reasonably clear indications that the plaintiff in error was prejudiced thereby, in that otherwise the verdict might with reasonable probabilities have been different. The public policy in the administration of criminal justice as declared by this and other similar provisions of our Criminal Procedure Act has from its organization been fully conformed to by this court, not only as an obligation but as a pleasure as well, and the doctrine that, error being made to appear, prejudice will be presumed,. has never obtained in this court. George v. U. S., 1 Okla. Cr. 307, 97 P. 1052, 100 P. 46; Byers v. Territory, 1 Okla. Cr. 677, 100 P. 261, 103 P. 532; Swartz v. State, 6 Okla. Cr. 590, 120 P. 1029.

A careful examination of the evidence satisfies us that plaintiff in error had a fair trial and was properly convicted.

The judgment appealed from is accordingly affirmed.

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


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    JIM LANE v. STATE.
    No. A-5571.
    Opinion Filed May 22, 1926.
    (246 Pac. 893.)
    M. D. Hartsell, for plaintiff in error
    The Attorney General, for the State.
   DOYLE, J.

Thie information charged that ion or about the 23rd day of October, 1924, Jim Lane did unlawfully manufacture 11 gallons of whisky. On the trial the jury found him guilty and assessed his punishment at a fine of $100 and confinement in the county jail for 60 days. From the judgment rendered on the verdict he appeals.

The evidence for the state is as follows:

G. E. Corbin, deputy sheriff, testified: That with H. L. Watts he visited defendant’s place, about seven miles northwest of Muskogtee; They told the defendant they wanted to look the place over, and he said, “Help yourselves,” that 150 yards east of his house, across the road, they found a complete still and a barrel of mash, and in the timber 300 yards east of his house they found 3 empty mash barrels and a complete copper still and 11 gallons of whisky; they called defendant down, and he said that he had been making the whisky and had made 11 gallons the night before.

H. L. Watts, deputy sheriff, testified to substantially the same facts.

The defendant did not testify.

We deem it sufficient to say, in answer to the contentions made, that the demurrer to the information was properly overruled; that the motion to strike said cause from the setting of the trial docket, on the ground that the order of the court setting the same for trial because the same was made out of term time, was properly overruled ; that the remarks of the county attorney in his argument to the jury were not a comment on the failure of the defendant to testify within the meaning of section 2698, C. S. 1921.

In Parker v State, 34 Okla. Cr. 254, 246 P. 493, we said:

“The statute * * * is comprehensive in the extreme, and this court will not enlarge nor extend its provisions in this regard by judicial construction.”

After an examination of the record, we are of the opinion that substantial rights of the defendant have not been affected by any adverse rulings of the court. There can be no doubt of his guilt of the crime charged.

The judgment is therefore affirmed.

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


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    SHADE FLETCHER v. STATE.
    No. A-5455.
    Opinion Filed May 22, 1926.
    (246 Pac. 1119.)
    Wright & Gill, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was charged in the municipal court of Oklahoma City under the city ordinance with the offense of carrying a concealed weapon, was convicted, and appealed to the county court, and was there convicted, and sentenced to a fine of $5. The cause was tried in the county court in February, 1925, and an appeal lodged in this court February 26, 1925. No brief has been filed in support of the appeal. An examination of the record discloses no prejudicial error. The case is affirmed.


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    SHADE FLETCHER v. STATE.
    No. A-5616.
    Opinion Filed May 25, 1926.
    (246 Pac. 485.)

      George L. Zink, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

On information charging that in Kiowa county, September 9, 1924, Shade Fletcher did have in his possession about 35 gallons of whisky with the intention of violating the provisions of the prohibitory liquor laws, he was convicted, and, in accordance with the verdict of the jury, was sentenced to pay a fine of $300 and be confined in jail for 60 days.

The errors assigned and argued are that the verdict is contrary to law and is contrary to the evidence, and that the court misdirected the jury as to the law applicable to the case.

The sheriff and three other officers testified that under authority of a search warrant they visited the premises occupied by defendant, where they found and seized about 35 gallons of whisky.

Sam Sanderfer, deputy sheriff, testified “the defendant lives 7 miles south and a mile and a half west and then back up in a pasture something between a quarter and a half mile;” that they reached his place about the middle of the afternoon; defendant was not there; that they found empty jars in the house, and out under a straw pile they found whisky in similar jars, and found a 29-gallon keg of whisky buried north of the barn.

T. P. Shaddock, sheriff, testified that the 20-gallon keg was found buried north of the barn and about 28 half-gallon fruit jars full of whisky were found in the straw stack near the barn; that the barn is about 50 steps from defendant’s house.

At the close of the evidence for the state, the defendant interposed a demurrer to the same, and asked for a directed verdict, which was overruled, and exception taken.

For the defense, D. P. Parnell testified that he had the lease to the southeast quarter of the section, and Mr. Slader owned the southwest quarter, and he or somebody used the barn which was on the southwest quarter; that the defendant used the barn lot for his mules; that defendant was farming the place for him on crop share; that, he knew nothing of the whisky.

Defendant testified that he never knew that the whisky was there; that he did not bury any whisky or conceal it around the place; that he did not have possession of the southwest quarter of the section, and did not use the barn; that the house in which he lived was on the southeast quarter; that he only turned his mules into the barn lot to catch them.

We are satisfied from a careful examination of all the evidence in the case that it was sufficient to warrant the submission of the case to the jury, both as to the possession and the intent.

It is also urged that there was no proof of venue. The courts of this state take judicial notice of the boundaries of the state and of the counties in the state, and also of the geographical location of cities and towns in the state. Here the proof offered shows that defendant’s place was 7 miles south and a mile west of the city of Hobart, which point is almost the geographical center of Kiowa county.

Certain of the instructions are complained of. We have examined the instructions with care, and, without setting them out and in the absence of any request for instructions to be given, we deem it sufficient to say that the instructions fairly covered the law of the case.

Finding no prejudicial error, the judgment appealed from is affirmed.

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


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    W. W. BLASINGAME v. STATE.
    No. A-5612.
    Opinion Filed May 25, 1926.
    (246 Pac. 890.)
    O. H. Madden, for plaintiff in error.
    The Attorney General, and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

On information charging that in Harmon county, December 25, 1924, W. W. Blasingame did then and there transport and convey whisky from a place unknown to another place in the cemetery about one-half mile north of Gould, Harmon county, he was convicted; the jury leaving the punishment to be assessed by the court. Motion for new trial was duly filed and overruled, and the court sentenced defendant to pay a fine of $200, and to be confined in jail for 60 days.

The errors assigned and relied upon for a reversal of the judgment are as follows: That the court erred in overruling the motion for continuance, and erred in overruling defendant’s motion for a directed verdict of acquittal.

It appears that defendant had been employed in Harmon county by the sheriff in aiding enforcement of the liquor laws, and left there and went to Hobart, where he was employed in' the same capacity for about six weeks; at the date alleged, and on that day, drove from Hobart to Gould with Delmar Yoakum, who testified that he had lived at Gould before moving to Hobart; that defendant drove his car to Roosevelt, and there said he was going to get some whisky, and drove out in the mountains, left the car, and returned with a box which he said contained whisky, and drove on to Gould, stopped at the cemetery, and there concealed the box; that defendant stated the whisky was worth $20 a gallon; that the next day he went to the cemetery and secured the whisky, and sold some of it for the defendant.

T. P. Shaddock, sheriff of Kiowa county, testified that the defendant worked with the enforcement officers of Kiowa county, and on the date alleged stated that he was going home for Christmas; saying that he had a fellow that was going to make a delivery to him that night.

On cross-examination he admitted giving defendant a slip of paper on which he wrote: “R. A. Lackey. This man is working for me. T. P. Shaddock.”

S. H. Yoakum testified that he Went to Gould on Christmas Day, and defendant asked permission to talk to witness in private, and told him they had him arrested for transporting whisky, and he wanted witness to help him get loose from the authorities, and said that he had taken this whisky from a still; that, if witness would go to the law force at Hobart and tell them that he knew defendant was all right, and that he had just failed to deliver the whisky, and carried it on down there, they would let him loose, and also asked him to take the car he brought the stuff down in and deliver it at Hobart to the woman it belonged to.

, E. T. Smith, sheriff of Harmon county, testified that when he arrested Delmar Yoakum that night for selling whisky on the street in Gould he saw defendant near an alley ; that defendant had formerly worked for him in securing evidence against bootleggers. The defendant did not testify.

Before commencing the trial, the court denied a motion for continuance. The affidavit for continuance contained all the formal allegations required by law, and stated that defendant, with due diligence, had been unable to secure the attendance of Charley Boggs, who, if present, would testify that he purchased the liquor in question from Delmar Yoakum, who at the time stated that it was his whisky.

Motions for continuance are addressed to the discretion of the trial court, and its decision will not be disturbed, unless there appears to have been a clear abuse of discretion. In this case there is no ground for saying that the court abused its discretion.

Our examination of the record leaves no doubt in our mind as to the defendant’s guilt.

It appearing that he had a fair trial, the conviction is affirmed.

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


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    W. W. BLASSINGAME v. STATE.
    No. A-5613.
    Opinion Filed May 25, 1926.
    (246 Pac. 891.)
    C. H. Madden, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

On information charging that in Harmon county, December 25, 1925, W. W. Blasingame “did then and there unlawfully, willfully, and knowingly sell, barter, give away, and otherwise furnish certain intoxicating liquor, to wit, whisky, to one Delmar Yoakum,” he was convicted; the jury leaving the punishment to be fixed by the court.

The court rendered judgment, and sentenced defendant to pay a fine of $200, and to be confined in jail for 60 days. From the judgment he appeals,, and assigns as error the overruling of defendant’s demurrer to the jurisdiction of the court; the overruling of the motion for continuance; the overruling of demurrer to the evidence; and that the court erred in refusing to instruct the jury to return a verdict of acquittal.

This is a companion case to that of Blassingame v. State, 34 Okla. Cr. 308, 246 P. 890, this day affirmed.

The evidence for the state shows that defendant furnished to Delmar Yoakum whisky by leaving it at the cernetery near the town of Gould for said Yoakum to sell, which he did, paying defendant $10 received from the sale of one half gallon to a certain person, and $10 from the sale of another half gallon to a certain person and other smaller sales; defendant at the time being employed to aid in the enforcement of the liquor laws in Kiowa county. The defendant did not testify, and the evidence for the state is undisputed.

Before commencing the trial, the court overruled a demurrer to the jurisdiction on the ground that no warrant of arrest had been issued and served. On the record before us the question argued is not presented. Defendant then moved for a continuance, based on the absence of an alleged material witness, which motion was denied. This was a matter within the discretion of the trial court, and there is no ground for saying that the court abused its discretion.

An examination of the record leaves no reasonable question in our. mind as to the sufficiency of the evidence to justify submitting to the jury of the question as to defendant’s guilt. It follows that the motion for a directed verdict was properly denied.

It appearing that defendant had a fair trial, the conviction is affirmed.

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


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    MRS. B. E. GILMER v. STATE.
    No. A-5603.
    Opinion Filed May 25, 1926.
    (246 Pac. 1118.)

      Bicking & Wilson, for plaintiff in error.
   PER CURIAM.

The plaintiff in error was convicted on an information charging that, in a certain place in the city of Tulsa, she did keep a house of ill fame, and in accordance with the verdict of the jury was sentenced to pay a fine of $100. She has appealed from said conviction to this court, but there has been no appearance in her behalf on her appeal. The testimony of nine or ten witnesses for the state was offered to support the allegations of the information. As a witness in her own behalf the defendant denied any knowledge of the fact that her rooming house was resorted to by people of both sexes reputed to be of lewd and lascivious character. We have examined the record with care, and find no prejudicial error in it. The evidence was such as to warrant the verdict, and the judgment is affirmed.


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    T. F. BOCK v. STATE.
    No. A-5611.
    Opinion Filed May 26, 1926.
    (246 Pac. 642.)

      E. V. Rakestraw, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

Oin information charging that in Kiowa county, on the 11th day of December, 1924, T. F. Bock did then and there unlawfully and intentionally operate and use a distillery for the purpose of manufacturing distilled spirits, to. wit, whisky, he was convicted and, in accordance with the verdict of the jury sentenced to serve 90 days in jail and pay a fine of $400. From the judgment he appeals.

A number of errors are assigned and argued, but one of which it is deemed necessary to notice, and that is that the court erred in refusing to instruct the jury upon the law of circumstantial evidence.

T. P. Shaddock, sheriff, testified that Mr. Humble called him from Roosevelt and said that he had some mash located in a granary on Dr. Hibbitt’s place; that, with Mr. Humble, he drove out there and stopped at the barn and saw defendant coming out through a window on the south side of the barn; that he arrested defendant, and Mr. Humble then went into the granary, west of the house, and found the negro in there; that Dr. Hibbitt’s place is about 2y% miles southwest of Roosevelt.

W. H. Humble testified that he saw defendant coming out the window on the south side of the barn; it was about 9 p. m.; that he put his flash light on defendant and asked him what he was doing there; that he went into the granary and found Noland Stevens, a negro, operating a distillery; that there was a boiler filled with mash, a fire under it, and what he would call whisky was just starting to drip; that the coil was in a barrel of water and ice packed around it, and there was ice in a tub and three barrels partly full of mash.

As a witness in his own behalf the defendant testified that he lived at Roosevelt, was at his nephew’s, Jake Bock’s place, that evening; that while there Noland Stevens came there on foot and wanted defendant to drive him 2 or 3 miles in the country and offered to pay $2 for the ride, and he agreed to haul him; that Stevens had nothing with him; that defendant drove where Stevens directed and they came to the stable and granary where the still was found; that he parked his car south of the barn; that he was there about 10 minutes when arrested by the officers; that one of the Brannon boys, one of the Long boys, and a fellow named Hughes were present at Jake Bock’s place when Stevens hired him to make the drive; that Stevens had worked in that community for several years and at the time had been picking cotton for one of defendant’s brothers.

Jake Bock testified that defendant and Stevens took nothing from his place with them; that, after defendant and Stevens left, he and the three other boys went to a dance. Carl Brannon and Cecil Long each testified that they were at Jake Bock’s and heard the conversation between Stevens and defendant, saw Stevens and the defendant leave in the defendant’s car and they took nothing with them. Thus it appears that the evidence connecting defendant with the offense was entirely circumstantial. The defendant requested the court to give an instruction on the law of circumstantial evidence.

The rule is well settled that, where the state relies solely upon circumstantial evidence, the court should instruct upon the law of circumstantial evidence. Such evidence should be expressly defined and the rules governing its effect concisely stated. Pierson v. State, 13 Okla. Cr. 382, 164 P. 1005; Kirk v. State, 11 Okla. Cr. 203, 145 P. 307; Rutherford v. United States, 1 Okla. Cr. 194, 95 P. 753.

In the case last cited, Judge Dunn, delivering the opinion of the court, used the following language:

“The danger in cases where circumstantial evidence is entirely relied upon for conviction is that jurors, being brought into court and impaneled for the purpose of determining the guilt or innocence of the defendant, and the court admitting the circumstances as evidence against the defendant, unless warned in some manner, might .be inclined to believe that absolute proof of the circumstances would be conclusive proof of the crime, and their attention would be exclusively directed to the evidence which established the incriminating circumstances, instead of weighing and judging whether or not the incriminating circumstances proven established the ultimate fact and proved beyond a reasonable doubt that defendant was the guilty party.”

For the error indicated, the judgment is reversed.

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


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    J. M. ROWE v. STATE.
    No. A-5601.
    Opinion Filed May 26, 1926.
    (246 Pac. 488.)
    M. S. Simms, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

The plaintiff in error was convicted on a charge that on January 10, 1925, in the city of Tulsa, he did have in his possession intoxicating liquor with intent to sell the same, and in accordance with the verdict of the jury was sentenced to pay a fine of $50 and be confined in the county jail for 30 days.

To reverse the judgment, appellant assigns as grounds the insufficiency of the affidavit upon which the search warrant issued, and the invalidity of the search warrant under which thé evidence offered by the state was obtained.

Prior to the opening of the trial, appellant filed a motion to suppress the evidence on the ground that the affidavit for a search warrant is made upon information and belief, and states mere conclusions of the affiant, and fails to state any of the exceptions of section 7013, C. S. 1921, in that it fails to state that appellant’s residence is used as a store, shop, hotel, boarding house, or place for storage, and fails to state that such residence is a place of public resort.

An examination of the record supports the contention made. Under the law clearly established by the great weight of authority in the federal and state courts, and followed by numerous decisions of this court, the affidavit and search warrant issued pursuant thereto was void, and it was error to permit the state to introduce in evidence the intoxicating liquor illegally seized.

With the evidence obtained by the unlawful search stricken from the record, there is no evidence remaining which warrants a conviction.

The judgment of the lower court is accordingly reversed.