text:
    Ex parte C. G. GROUCH.
    No. A-5255.
    Opinion Filed March 7, 1925.
    (233 Pac. 780.)
    (Syllabus.)
    1. _ Punishment — Convict at Liberty, Where Sentence not Lawfully Stayed, May be Arrested as on Escapei, and Ordered into Custody. Where a convicted defendant is at liberty and has not served his sentence, and the same is not stayed as provided by law, he may be arrested as on escape, and ordered into custody on the unexecuted judgment.
    2. Same — Expiration of Time Without Imprisonment not Execution of Sentence. Expiration of time without imprisonment is in no sense an execution of the sentence.
    Petition of C. G. Grouch for writ of habeas corpus.
    Demurrer to petition sustained, and writ denied.
    John B. Ogden, for petitioner.
    John Barry, Asst. Atty. Gen., for respondent.
   DOYLE, J.

Petitioner, C. G. Grouch, on August 4, 1924, filed in this court a petition alleging that he is unlawfully held in custody and imprisoned in the county jail of Carter county by E. C. London, sheriff; that the cause of said unlawful restraint is that on the 4th day of February, 1924, he was convicted in the county court of Carter county on a charge of unlawful possession of intoxicating liquor; that motion for new trial was duly filed; on February 13th the same was overruled and judgment rendered, sentencing petitioner to be confined for 30 days in the county jail and pay a fine of $50 and the costs; that notices of appeal were given, but no appeal was ever perfected, and on July 27, 1924, petitioner was placed in jail in execution of said sentence; that said imprisonment is unlawful for the following reasons: that petitioner at no time filed a bond to supersede said judgment and was at all times since said judgment was pronounced within the jurisdiction of the court; that by virtue of the fact that no case-made was signed and settled within the 120 days allowed by law to perfect an appeal, the same constituted notice to .the court clerk, the county court, the county attorney, and said sheriff; that since the elapse óf the 120 days from the date of said judgment and sentence more than 90 days have elapsed, and petitioner has been and remained in reach of said sheriff, and no attempt was made to arrest and imprison him until the 26th day of July, 1924; that on the 30th day of July, 1924, he filed petition for writ of habeas corpus in the district court of Carter county on the above grounds; and on the same day the writ was by said court denied.

To the petition herein the Attorney General demurred on the ground that the same does not state facts sufficient to entitle the petitioner to his discharge.

It has been held by numerous decisions of this court that where a person is by a court of competent jurisdiction sentenced to imprisonment as punishment for an offense and for any reason he is improperly at large, before serving his sentence, he may be arrested and imprisoned until the judgment is satisfied. Ex parte Eldridge, 3 Okla. Cr. 499, 106 P. 980, 27 L. R. A. (N. S.) 625, 139 Am. St. Rep. 967; Ex parte Steed, 6 Okla. Cr. 186, 117 P. 887; Ex parte Oliver, 11 Okla. Cr. 536, 149 P. 117; Ex parte Exelton, 16 Okla. Cr. 111, 180 P. 868.

In the case of Ex parte Eldridge, supra, it was held that—

“Where a convicted defendant is at liberty and has not served his sentence, and the same is not stayed as provided by law, he may be arrested as on escape and ordered into custody on the unexecuted judgment.”

Expiration of time without imprisonment is in no sense execution of the sentence. Upon the facts as stated in the petition, it appears that when the county court of Carter county issued the order of commitment, there was a valid and subsisting unexecuted judgment and sentence against petitioner, and while petitioner was at all times within the jurisdiction of said court, upon his failure to perfect an appeal he did not demand that the commitment issue on said judgment, in order that the same might be carried into execution.

The judgment being valid and the sentence unserved, the commitment and execution of the sentence is a legal and valid imprisonment.

For the reason stated, the demurrer was and is sustained, and the application for writ of habeas corpus denied.

MATSON, P. J., and BESSEY, J., concur.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    Ex parte GLADYS VAUGHT SELF.
    No. A-5333.
    Opinion Filed March 7, 1925.
    (233 Pac. 783.)
    (Syllabus.)
    Babeas Corpus — Petitioner Held Entitled to Discharge, Where Legal Cause for Restraint not Shown. Where a prisoner, in custody under a sentence of conviction, before a justice or the peace, Seeks to be discharged on habeas corpus on the ground of imprisonment without due process of law, and the sheriff charged with such unlawful restraint neglects to make answer or return to a rule to show cause why the writ should not ¡be allowed, and the petition, duly verified on its face, shows that said petitioner is by 'said officer illegally restrained of her liberty, and, no legal cause for such restraint appearing, the writ will ■be allowed and petitioner discharged.
    Writ awarded, and petitioner discharged.
    Application of Gladys Vaught Self for writ of habeas corpus.
    John B. Ogden, for petitioner.
   DOYLE, J.

This is an application for writ of habeas corpus fijled in this court November) 5, 1924, whereby Gladys Vaught Self seeks to obtain her discharge- from the county jail of Carter county, on the ground that she is illegally and without authority of law restrained of her liberty by Ewing C. London, sheriff of Carter county; that the cause of her restraint is that on the night of the 1st of November, 1924, petitioner was arrested by one W. W. Holder, who purports to be a deputy sheriff of Carter county at Dillard, in said county, saying that he was arresting her for disturbance of the peace; that no complaint had been filed and no warrant issued against her at that time; that said Holder took petitioner before one J. A. Cameron, justice of the peace of Wilson township, between 12 and 1 o’clock Sunday morning, and said justice of the péace pronounced judgment and sentenced petitioner to be confined in the county jail for 30 days and pay a fine of $25 and the costs; that said judgment was rendered on Sunday the 2d day of November, 1924, without complaint being filed, and no trial was had, no witness sworn or evidence offered; that said justice of the peace arbitrarily sentenced said petitioner without a hearing, and on her plea of not guilty.

Said petition is duly verified and is supported by the affidavit of Marion Fuller, constable of Wilson township and acting policeman in the city of Wilson, H. 0. Bishop, Jack Haney, and D. T. Lane, who each aver and state that they were present when petitioner was brought before said justice of the peace; that it was past midnight on Sunday morning; and that upon her plea of not guilty, without hearing any testimony, said justice of the peace imposed sentence and committed petitioner to the county jail of Carter county.

On presentation of the petition a rule to show cause was entered why the writ of habeas corpus should not be awarded as prayed for was issued and made returnable November 8, 1924, and it was ordered that said petitioner be admitted to bail in the sum of $200, and upon the approval of the same the sheriff of Carter county was directed to release petitioner during the pendency of this cause.

No answer, response, or return thereto has ever been made.

Section 428, 'Comp. Stats. 1921, requires that:

“The sheriff or other person to whom the writ is directed shall make immediate return thereof, and if he neglect or refuse, after due service, to make return, or shall refuse or neglect to obey the writ by producing the party named therein, and no sufficient excuse he shown for such neglect or refusal, the court shall enforce obedience by attachment.”

Section 429 provides:

“The return must be signed and verified by the person making it, who shall state:
“First. The authority or cause of restraint of the party in his custody.
“Second. If the authority be in writing, he shall return a copy and produce the original on the hearing.
“Third. If he has had the party in his custody or under his restraint, and has transferred him to another, he shall state to whom, the time, place and cause of the transfer.”

Section 430 provides that the petitioner may except to the sufficiency of or controvert the return or any part thereof, or allege any new matter in avoidance; the new matter shall be verified, except in cases of commitment on a criminal charge.

Section 431 is to the effect that upon the issues joined the court or judge shall proceed in a summary way and hear and determine the cause, and, if no legal cause be shown for the restraint or for the continuance thereof, shall discharge the petitioner.

The petition, duly verified on its face, shows that petitioner, Gladys Vaught Self, on the date thereof was illegally confined in the county jail of Carter county, and, as the sheriff in whose- custody she was confined has failed to make any return to the rule to show cause, or offer any excuse for failure so to do, the petitioner should be discharged.

While the court has ample power to enforce obedience to its order by an attachment, and require that the sheriff shall make a return to the rule to show cause, we are not required to do so, but may proceed to determine the cause upon the petition and its supporting affidavits.

From a consideration of the petition and affidavits attached thereto, it is obvious that said justice of the peace was without authority to render the judgment of conviction, and that said petitioner was on the date alleged unlawfully restrained of her liberty, and should be discharged.

It is therefore adjudged and ordered that said petitioner be discharged and her bond exonerated.

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


author: PER CURIAM.

text:
    In re CECIL LAWRENCE.
    No. A-5329.
    Opinion Filed March 9, 1925.
    (233 Pac. 1116.)
    Petition of Cecil Lawrence for writ of habeas corpus.
    Cause dismissed.
    I. F. Long, for petitioner.
    The Attorney General and Henry Woods, Asst. Co. Atty., for respondent.
   PER CURIAM.

Petition for writ of habeas corpus, signed and verified by Cecil Lawrence, filed in this court October 28,1924, alleging that he is imprisoned without due process of law, and stating the facts, by C. A. Cook, sheriff of Osage county. A rule to show cause issued, returnable November 8th, at which time counsel for the state filed a demurrer, which was overruled, and cause was assigned for hearing, at which time the county attorney announced that he would begin the prosecution anew. The cause is therefore dismissed.


text:
    In re HENRY LING.
    No. A-4968.
    Opinion Filed March 18, 1925.
    (233 Pac. 1116.)
    Application of Henry Ling for writ of habeas corpus to be let to bail.
    Bail allowed.
    Mathers & 'Coakley, for petitioner.
    The Attorney General, for respondent.
   PER CURIAM.

The petition of Henry Ling shows that he was committed by the county judge of Garter county, after a preliminary examination, to answer to the district court of said county upon a charge that he did kill and murder one Will Tyus. On the hearing of said application petitioner based his right to bail upon section 8, art. 2, of the state Constitution, which reads as follows: “All persons shall be bailable by sufficient sureties, except for capital offenses when the proof of guilt is evident, or the presumption thereof is great.” The application for bail was not opposed, and it was adjudged and ordered that petitioner be admitted to bail in the sum of $10,000, bond to be approved by the court clerk of Carter county and to be conditioned as by law provided, and upon approval of the same he shall notify the sheriff of Carter county, who shall discharge said petitioner from custody.


text:
    In re MARY MITCHELL et al.
    No. A-5063.
    Opinion Filed March 7, 1925.
    (233 Pac. 1116.)
    Application of Mary Mitchell and Lena Mitchell for writ of habeas corpus.
    Cause dismissed.
    Warren & Warren, for petitioner.
    The Attorney General, for respondent.
   PER CURIAM.

In this proceeding Mary Mitchell and Lena Mitchell filed in this court March 15, 1924, a petition for writ of habeas corpus to obtain their discharge from the county jail of Choctaw county, on,the ground that they are illegally and without authority of law restrained of their liberty by E. C. McClanahan, sheriff; that petitioners were arrested from some information from the state of Arkansas, and said sheriff holds them without any warrant or authority of law. On the same day a rule to show cause was entered, returnable March 19, 1924. Respondent made return that he arrested said petitioners on request of officers of Howard county, Ark., on complaint made and filed, charging said Mary Mitchell and Lena Mitchell with the larceny of $1,200, the property of the First National Bank of Mineral Springs, Ark., and now holds them in custody on a warrant issued on complaint filed March 12, 1924, before R. L. Oaks, a justice of the peace of Choctaw county, and approved by the county attorney of Choctaw county, charging them with being fugitives from justice, and proceedings are pending for the extradition of said petitioners. No further appearance was made in tnis court on behalf of petitioners, and said cause was accordingly dismissed.


author: BESSEY, P. J.

text:
    JOHN FINDLEY v. STATE.
    No. A-4717.
    Opinion Filed March 9, 1925.
    Rehearing Denied May 2, 1925.
    (234 Pac. 227.)
    (Syllabus.)
    1. Appeal and Error — 'Record Showing Trial by Jury of Six. From the whole record it appears that the cause was tried to a jury of six, as provided by law.
    2. Intoxicating Liquors — Search and Seizure of Liquor and Other Articles Remote from Human Habitation not Unreasonable, and Evidence Admissible. Under the circumstances shown the search and seizure were not unreasonable, and the evidence obtained by means thereof was admissible.
    3. Appeal and ¡Error — Admitting in Evidence Photograph of Still and Appliances not Prejudicial. Held, that a photograph of a still and appliances admitted in evidence was not prejudicial.
    Appeal from County Court, Canadian County; W. M. Wallace, Judge.
    John Findley was convicted of manufacturing corn whisky, and he appeals.
    Affirmed.
    E. C. Patton and Joe Adwon, for plaintiff in error.
   BESSEY, P. J.

The plaintiff in error, John Findley, here referred to as the defendant, was charged, tried, and convicted for the illegal manufacturing of corn whisky. By the verdict of the jury his punishment was assessed at confinement in the county jail for a period of six months, and to pay a fine of $500. •

The defendant first contends that the record shows that he was tried by a jury of four persons, and that the record does not show that he waived his right, by agreement or otherwise, to try his cause to a jury of six. This claim is predicated upon the following excerpt from the clerk’s minutes, as they appear in the case-made:

“Both sides announce ready for trial. The following named jury was duly chosen and sworn to try the case and a true verdict to render according to the evidence: C. H. Green, Marlin Price, Carl Ohnman, F. L. Mennefee.”

From the reporter’s record the following appears:

“Both sides announced ready for trial. Jury was duly called, chosen, and sworn to try said cause.”

Quoting from the instructions of the court:

“You are instructed that three-fourths of the whole number of jurors, that is, five jurors, concurring shall have power to render a verdict * * *; if less than the whole number of jurors render a verdict, then each juror concurring in the verdict must sign it.”

No objection to the number of jurors appears anywhere in the record, and no complaint in this regard appears in the motion for a new trial. From a consideration of all that appears, as above set out, we conclude that the defendant was tried by a constitutional jury of six, and that the naming of only four in the clerk’s minutes was an inadvertent omission or clerical error.

The defendant next complains that a photograph of the still in controversy was admitted in evidence, over the objections of the defendant, that such admission was improper, for the reason that the photograph was not identified by the person who took it. The record shows that the photograph was taken by the daughter of the sheriff, in his presence; we think, therefore, that the identification by the sheriff was sufficient. He knew that the photograph had been taken, was familiar with the appearance of the scene and the things depicted by the photograph. He would not be disqualified to identify the photograph as a picture of the things seized simply because he did not develop and print it. Whether this deduction be correct or not, the evidence is overwhelmingly to the effect that a still and appliances were seized on these premises, and the photograph was merely secondary evidence, of a cumulative nature, so that its admission, even if erroneous could not have been prejudicial to the defendant.

Defendant claims that the whisky, the still, and other appliances seized were obtained by an illegal search and seizure, and that the introduction of this evidence was therefore erroneous. The record does not bear out this contention. The seizure was made in a canyon, not adjacent to any human habitation. At the trial no objection was made to the introduction of this evidence, and no objection was made to the evidence relating, to a large quantity of mash found in the cistern near the home of a tenant.

This court has held that a search and seizure of contraband liquor and the appliances and materials used to make it in fields, woods, and canyons, remote from any person’s home, is not an unreasonable search and seizure, within the meaning of the Constitution. Reutlinger v. State, 29 Okla. Cr. 290, 234 P. 224; Rogers v. State, 28 Okla. Cr. 195, 230 P. 279.

This court has also held that, where evidence is obtained by means of an illegal search and seizure, the right to have it excluded must be exercised at the first opportunity, otherwise it will be considered as waived. So far as the evidence relating to the mash taken from the cistern was concerned, there was no objection made at the time it was offered, or afterwards, in the court below.

It is next contended that the officers went on to adjoining premises leased to Johnnie Jones and into the house of a man named Lewis, located on the same land, where they found 26 empty five-gallon bottles and 25 or 30. empty sugar sacks, that this was an illegal search and seizure. The right to complain of an illegal search and seizure inures to the accused only; neither Johnnie Jones nor Lewis made any objection to the search and seizure, so that any evidence pertinent to the issue obtained through these channels was admissible.

The evidence on the part of the state shows that the defendant and others with him were manufacturing whisky in large quantities. The defendant denied that he was there, or had anything to do with such manufacture. In this he was corroborated by four witnesses, whose testimony tended to show an alibi. The evidence is conflicting, but its weight and the credibility of the witnesses was for the jury.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    Ex parte JIM RICKARD.
    No. A-4936.
    Opinion Filed March 11, 1925.
    (233 Pac. 770.)
    Petition of Jim Rickard for writ of habeas' corpus to be admitted to bail.
    Writ denied, and cause dismissed.
    W. J. Hulsey, and W. N. Redwine, for petitioner.
   PER CURIAM.

Petition of Jim Rickard for writ of habeas corpus to be admitted to bail, filed in this court November 27, 1923, alleging that he was committed. after a preliminary examination, without bail, to answer to the district court of Pittsburg county on a charge of having murdered one Simeon Jefferson; that on habeas corpus proceeding the district judge of said county denied bail and remanded petitioner to the custody of the sheriff.

•Petition avers that the proof of his guilt is. not evident nor the presumption thereof great. It appears that petitioner did not testify in the examining trial and there was no testimony offered in his behalf. He has filed his affidavit, wherein he states that he shot the deceased in self-defense, believing his life was in imminent danger at the time he fired the fatal shot; that he did not report the killing to the officers because he is a poor man, not having any money to employ an attorney to represent him, and also realizing, on account of enmity existing against affiant by the Jeffersons, and their kinsfolk, that it might not be safe for affiant to remain in the community, he left the state. No dates are stated in the petition or affidavit.

The application when presented to the court was denied on the ground that the facts stated do not entitle petitioner to the relief prayed for, and at the time it was ordered that the case be dismissed.


text:
    Ex parte ALFRED NOWABBI.
    No. A-5094.
    Opinion Filed March 11, 1925.
    (233 Pac. 784.)
    (Syllabus.)
    1. Bail — Right of Accused in Capital Cases to Bail — Judicial Discretion. Habeas corpus to obtain bail. Held, that in capital cases the accused is entitled to .bail before trial, as a matter of absolute right, unless the proof of guilt is evident, or the presumption thereof is great. Held, further, when proof of guilt is evident, or the presumption thereof is great, the granting or refusing of bail is a matter of judicial discretion.

      2. Same — Person Accused of Murder Held not Entitled to BSail as Matter of Strict Legal Riig{ht, But Allowed as Matter of Discretion. Upon the record presented in this application, it is held, first, that petitioner is not entitled to bail as a matter of Strict legal right; second, that for reasons stated in the opinion bail allowed as a matter of discretion.
    Petition by Alfred Nowabbi for writ of habeas corpus to be admitted to bail.
    Bail allowed on rehearing;

      Warren & Welch, for petitioner.
    George F. Short, Atty. Gen., N. W. Gore, Asst. Atty. Gem., and M. W. Gross, Co. Atty., for respondent.
   DOYLE, J.

The petition filed on behalf of Alfred Nowabbi, March 28, 1924, for the writ of habeas corpus to be admitted to bail, shows that he was committed by W. T. Echols, a justice of the peace of Choctaw county, after a preliminary examination and without bail, to answer to the district court of that county upon a charge of murder, alleged to have been committed on March 10, 1924, by shooting Nellie Nowabbi, his wife. An application for bail was made to the judge of the district court, and the same was denied.

On application to this court, a rule to show cause issued, returnable April 4, 1924, at which time the cause was submitted. It is averred that the proof of his guilt is not evident, nor the presumption thereof great, which will appear from a transcript of the testimony taken upon said preliminary examination attached to said petition.

Counsel for petitioner contend that he is entitled to bail as a matter of legal right under Const, art. 2, § 8 providing:

“All persons shall be bailable by sufficient sureties, except for capital offenses when the proof of guilt is evident, or the presumption thereof is great.”

This court has held that under the constitutional provision one charged with a capital offense is entitled to bail as a legal right, “unless the proof of guilt is evident, or the presumption thereof is great,” and this court has further held that said constitutional provision does not forbid bail in a capital case where the proof of guilt is evident or the presumption thereof is great; in such a case the granting or refusing of bail is a matter of judicial discretion. On April 8th, the writ was denied and bail refused.

A petition for rehearing was duly filed, and by leave of court an amended petition was filed, averring that petitioner is now in ill health; that he is suffering from tuberculosis and malarial fever, and has become afflicted with a serious kidney trouble, likely to terminate fatally in the event he is continued in confinement through the summer months, and that there will be no trial of criminal cases in said district court until the month of October, 1924.

The affidavits of three physicians engaged in the general practice in Choctaw county to the effect that said petitioner was suffering to some extent from tuberculosis and Bright’s disease, and that he has malarial fever, are attached thereto.

On May 20, 1924, a rehearing was granted, and upon a careful consideration of proof offered in support of the amended petition, it was adjudged and ordered that petitioner should now be allowed bail, not as a matter of legal right, but as a matter of discretion, and that bail should be fixed in the sum of $25,000, and that he be released from custody upon his executing and causing to be filed with and approved by the court clerk of Choctaw county a good and sufficient bond in said sum, conditioned as by law required.

MATSON, P. J., and BESSEY, J., concur.


author: EDWARD'S, J.

text:
    ALFRED WITT v. STATE.
    No. A-4723.
    Opinion Filed March 12, 1925.
    (233 Pac. 788.)
    (Syllabus.)
    Rape — If All ¡Material Evidence of State Contradictory and Unreasonable, Verdict Set Aside. Ia a ease of rape where all the material evidence on the part of the state is contradictory, inconsistent, and unreasonable and bears upon its face inherent evidence of improbability, it is insufficient to sustain a conviction, and in such case the verdict will be set aside.
    Appeal from District Court, Payne County; C. C. Smith, Judge.
    Alfred Witt was convicted of rape and sentenced to serve a term of one year in the penitentiary, and he appeals.
    Reversed.
    John P. Hickam, for plaintiff in error.
    George F. Short, Atty. Gen., and Leon S. Hirsh, Asst. Atty. Gen., for the State.
   EDWARD'S, J.

The plaintiff in error assigns that the evidence is insufficient to sustain the verdict, and that the court excluded competent evidence in behalf of the defendant.

We think there is no merit in the latter contention. The evidence excluded was merely as to the general reputation for truth and veracity of the prosecuting witness, and if admitted would have been merely cumulative. The record also discloses that the witnesses whose testimony was excluded were not qualified. There was no error on this point.

The other contention that the evidence is insufficient to sustain the verdict and judgment, we believe, is well taken. We have considered the briefs of both the plaintiff in error and the state and have examined' the record carefully. The material evidence for the state is that of the prosecuting witness, Marie Broyles, her father, and brother, 14 or 15 years old, and a sister some 8 or 10 years of age. The testimony of these witnesses is a mass of contradictions and inconsistencies from beginning to end..

We are not unmindful of the rule frequently announced by this court to the effect that the weight and credibility of the evidence of the witnesses is for the jury, and the court will not reverse a conviction on conflicting evidence where there is substantial evidence supporting the verdict. Walker v. State, 20 Okla. Cr. 316, 202 P. 799; Sherman v. State, 20 Okla. Cr. 306, 202 P. 521; Ravenscraft v. State, 23 Okla. Cr. 361, 214 P. 946. That rule is sound, as well as the rule that a conviction for rape may be sustained upon the uncorroborated evidence of the prosecutrix. But a charge of rape is one, as has often been said, following the admonition of Lord Hale, “that this is an accusation easy to be made and hard to be proved, and harder to be defended by the party accused, though ever so innocent.”

The charge is one that arouses the passions and prejudices of jurors, and for that reason it is the duty of the court to closely scrutinize the evidence, and where the evidence of the state is unreasonable, inconsistent, and contradictory, and there is inherent evidence of improbability or indications that the prosecution is maliciously inspired, the court should not permit a conviction to stand.

It will serve no good purpose to set out the facts disclosed by the record in this case, nor the many contradictions, inconsistencies, and unreasonable features of the evidence. It is our opinion that the conviction should be set aside.

The judgment of the district court of Payne county is therefore reversed.

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


text:
    Ex parte JOSEPH F. LAWRENCE.
    No. A-5474.
    Opinion Filed March 12, 1925.
    (233 Pac. 1101.)
    (Syllabus.)
    1. Habeas Corpus — Writ not to be Used as Substitute for Appeal. The writ of habeas corpus cannot be used to perform the office of a writ of error or appeal; there must be illegality or irregularity sufficient to render the proceedings void.
    2. Adultery — Refusal of Injured Spouse to Prosecute — Dismissal. In a prosecution for adultery, the fact that the injured spouse who instituted the prosecution, subsequently relents and refuses to carry on the prosecution, requires a dismissal of the case.
    3. Same. The statute provides that: “Prosecution for adultery can be commenced and carried on against either of the parties to the crime only by his or her own husband or wife, as the case may be, or by the husband or wife of the other party to the crime.” Oomp. Stats. 1921, § 1852.
    Held, that the requirements are mandatory and a prosecution for adultery commenced on complaint of an injured spouse should be dismissed when he or she files an affidavit stating that the offense has been condoned and praying that the prosecution be dismissed.
    4. Habeas Corpus — Person Imprisoned on Unauthorized Proceedings Discharged. One imprisoned on proceedings not authorized •by law will be discharged on' habeas corpus.
    Application of Joseph F. Lawrence for writ of habeas corpus.
    Writ allowed, and petitioner discharged.
    R. Y. Nance and John A. Goodall, for petitioner.
    George F. Short, Atty. Gen., Charles Hill Johns, Asst. Atty. Gen., and W. A. Corley, Co. Atty., for respondent.
   DOYLE, J.

The petition for writ of habeas corpus shows that Joseph F. Lawrence was tried in the district court of Adair county on an information charging that in Adair county on or about the 28th day of January, 1925, Joseph F. Lawrence and Nona Gilmore “did then and there unlawfully, voluntarily and feloniously have sexual intercourse with each other, the said Nona Gilmore then and there being a married woman and the wife of Ben Gilmore, the complaining witness -in this case.” The jury returned a verdict finding him guilty as charged and fixing his punishment at imprisonment in the penitentiary for a term of three years. That petitioner is now held in custody under such conviction land praying that a writ of habeas corpus issue to the sheriff of Adair county to the end that petitioner may be released from such imprisonment.

On the application to this court counsel for petitioner and counsel for the state filed a stipulation that the writ need not issue in the first instance, and that the case be submitted and disposed of upon the following agreed statement of facts:

“I. That Joseph F. Lawrence is a single man.
“II. That Ben Gilmore and Nona Gilmore were duly and legally married and were husband and wife at the time of the commencement of this prosecution and at the trial thereof in the district court of Adair county, Okla., on March 6, 1925.
“III. That on the 28th day of January, 1925, Ben Gilmore, husband of Nona Gilmore, filed before W. A. Scofield, county judge of Adair county, Okla., and acting as examining magistrate, a preliminary complaint charging Joseph F. Lawrence and Nona Gilmore with the crime of adultery, and that a time was set for a preliminary hearing, and that when said cause was called for preliminary hearing before W. A. Scofield as examining magistrate, the defendants each waived such hearing and were bound over for trial to the March, 1925, term of the district court af Adair county, Okla.
“IV. That on the 5th day of March, and prior to the time set for trial of said cause in said district court, Ben Gilmore filed in said court a motion to dismiss said cause, giving as his reason therefor that he had condoned the offense and that he and his wife were then living together as husband and wife and that he did not want to prosecute said cause further, which motion was overruled by the court and exceptions to the' ruling of the court duly saved by the defendant. And that thereafter on the 6th day of March at the time set for the trial of said cause, the same was called in regular order, the defendant challenging the jurisdiction of the court, objecting to the impaneling of the jury or to the taking of any testimony therein, and declining to plead to said charge; all of which objections were overruled by the court and exceptions saved by the defendant. That thereupon a jury was duly impaneled and sworn to try said cause, and Ben Gilmore, the prosecuting witness and husband of Nona Gilmore, was called as a witness in behalf of the state. That when called to the stand he announced to the court that he desired to dismiss said cause and asked the court if he would be compelled to testify against the defendant. That upon being advised that he would have to testify, he then gave his testimony. That upon cross-examination he said that all testimony given by him was given over his objections and that he did not desire to prosecute said cause. That other witnesses were called and examined and the jury instructed, retired, and returned into court with a verdict finding the defendant guilty and fixing his punishment at three years in the state penitentiary.
“V. That the said Joseph F. Lawrence is not a citizen of Adair county, Okla., was unable to employ counsel, and that R. Y. Nance was appointed by the court to present his defense to said court and jury on the 2d day of March, 1925, four days prior to said trial.
“VI. That the said Joseph F. Lawrence was arrested on the 27th day of January, 1925, and that he was unable to make bail for his appearance at the March term of the district court of Adair county, Okla., and has been confined in the county jail since said date and is now confined in the county jail of Adair county, Okla.”

■Section 1852, Comp. St. 1921, provides:

“Prosecution for adultery can be commenced and carried on against either of the parties to the crime only by his or her own husband or wife, as the case may be, or by the husband or wife of the other party to the crime.”

Construing this provision of the Code in Taylor v. State, 29 Okla. Cr. 160, 232 P. 963, it was held by this court that—

“In a prosecution for adultery, the fact that the injured spouse, who instituted the prosecution, subsequently relents and refuses to carry on the prosecution requires a dismissal of the case.”

And further:

“That the requirements are mandatory, and a prosecution for adultery, commenced on complaint of an injured spouse, should be dismissed when he or she files an affidavit stating that the offense hás been condoned, and praying that the prosecution be dismissed.”

In the opinion it is said:

“Evidently the Legislature intended to place a limitation upon prosecutions for this offense, and to take the procedure out of the operation of the general criminal law. The Legislature had full power to deal with the subject, and, evidently regarding the commission of this particular act as an offense against the husband or wife personally, rather than as an offense against society, provided that prosecution could be commenced and carried on only by the injured spouse, leaving the injured spouse at liberty to condone the offense if he or she desired so to do, unembarrassed by the publicity incident to a prosecution commenced and carried on by the officers of the state. The Legislature no doubt deemed it wise public policy to take this duty or privilege from the prosecuting attorney and confer it upon the injured spouse, and upon questions of public policy its will is supreme.”

It is settled law that the writ of habeas corpus cannot be used to perform the office of a writ of error, and cannot be substituted for an appeal. There must be illegality or irregularity sufficient to render the proceedings void. Ex parte Barnette, 29 Okla. Cr. 80, 232 P. 456.

It follows that the question presented is: Was the court’s action in overruling the prosecuting witness’ motion to dismiss a mere irregularity in procedure, or did it render the action of the court thereafter illegal ? In other words, was it merely an error that would be reversible on appeal, or one that rendered subsequent proceedings void?

Our statute on habeas corpus (section 421, Comp. Stats. 1921), provides:

“Every person restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus to inquire into the cause of the restraint, and shall be delivered therefrom when illegal.”

This section makes it the duty of this court to discharge the petitioner if the imprisonment of which he complains is illegal.

Under the holding of this court in the case of Taylor v. State, supra, and for the reasons stated in the opinion in the case, we are of opinion that the trial court was without jurisdiction to try petitioner, and that any judgment it might render on the verdict returned on the trial of petitioner would be void. Habeas corpus is therefore the proper remedy.

It is therefore adjudged and ordered that petitioner be discharged from the imprisonment of which he complains.

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


text:
    Ex parte EDDIE OWENS.
    No. A-5443.
    Opinion Filed March 12, 1925.
    (233 Pac. 1100.)
    Application of Eddie Owens for writ of habeas corpus to be let to bail.
    Writ denied.
    D. L. Carter and J. Earl Smith, for petitioner.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an application of Eddie Owens, by his attorneys, for a writ of habeas corpus, alleging that Eddie Owens is unlawfully restrained of his liberty and imprisoned in the county jail of Kay county by James Barker, sheriff, that he is so held under a commitment based upon a preliminary examination upon a complaint, wherein the petitioner is charged with the murder of John Askren, in Kay county, on the 26th day of September, 1924. Petitioner says that he is not guilty of the crime of murder as charged, and that the proof of his guilt is not evident nor the presumption thereof great. Attached to his petition is a transcript of the testimony taken on behalf of the state at the preliminary examination. The petitioner did not testify at the preliminary examination.

Upon the return day of the rule to show cause, a hearing was had in this court, and at that (time the petitioner testified in his own behalf. Upon consideration of the testimony taken at the preliminary examination in connection with the testimony of the petitioner here, this court holds that the facts shown are not such as will entitle the petitioner to bail. Upon an application for bail by writ of habeas corpus, after commitment for a capital offense by an examining magistrate, the burden is upon the petitioner to show facts sufficient to entitle him to bail, and in the opinion of this court the burden has not been met in this case. Ex parte Butler, 15 Okla. Cr. 111, 175 P. 132; In re Bean, 17 Okla. Cr. 576, 190 P. 1091; Ex parte Hatcher, 22 Okla. Cr. 311, 211 P. 95.

The application of petitioner, Eddie Owens, is denied.


text:
    Ex parte LULA FORD.
    No. A-5218.
    Opinion Filed March 7, 1925.
    (233 Pac. 1116.)
    Petition of Mrs. Lula Ford to be let to bail.
    Cause dismissed.
    J. N. Fortner and H. P. Hosey, for petitioner.
    The Attorney 'General, for respondent.
   PER CURIAM.

This is a petition for writ of habeas corpus to be admitted to bail, signed and verified by Mrs. Lula Ford, and filed in this court June 19,1924, alleging that she is unlawfully held in custody and imprisoned in the county jail by J. R. Jones, sheriff' of McCurtain county, as follows: That on the 19th day of May, 1924, upon a preliminary examination on a charge of murder, before T. G. Carr, judge of the county court, she was held to answer the same and committed to the sheriff; that she made application to the judge of the district court of McCurtain county for bail on said charge, and said application was by said court denied; that she is not guilty of the crime of murder as charged; and that the proof of her guilt of said charge is not evident, nor is the presumption thereof great. The application was received through the mail. • No transcript of the proceeding before the examining' magistrate or before the district court is attached thereto. The case was passed subject to call. No further appearance having been made in the case, the same is on motion of the Attorney General dismissed.


text:
    O. W. HIGGINS v. STATE.
    No. A-4716.
    Opinion Filed March 12, 1925.
    (233 Pac. 1116.)
    Appeal from 'County Court, Canadian County; W. M. Wallace, Judge.
    0. W. Higgins was convicted of the illegal possession of intoxicating liquor, and he appeals.
    Affirmed.
    E. T. Barbour, for plaintiff in error.
   PER CURIAM.

The plaintiff in error, 0. W. Higgins, here referred to as the defendant, was by information charged with being in the illegal possession of 150 gallons of grape wine, containing more than one-half of 1 per cent, of alcohol measured by volume, which was held and in the possession of the defendant with the intent and purpose of selling and disposing of the same. By verdict of a jury defendant was found guilty as charged, with his punishment fixed at confinement in the county jail for a period of six months and to pay a fine of $500. The time for filing briefs in this court has long since passed and no brief has been filed, from which fact we may assume that the appeal has been abandoned. We have examined the information, the instructions of the court, and the judgment rendered on the verdict, and it appears that the information is sufficient, that the instructions fairly state the law of the case, that the judgment of the court is in conformity to the verdict, and that the defendant otherwise had a. fair trial. A cursory examination of the testimony shows that there was ample evidence to support the verdict. The verdict of the trial court is therefore affirmed. ■


author: PER CXJRIAM.

text:
    MOODY JACKSON v. STATE.
    No. A-4986.
    Opinion Filed March 7, 1925.
    (233 Pac. 1116.)
    Appeal from County Court, Oklahoma County; Jas. C. Cheek, Judge.
    Moody Jackson was convicted of a violation of the prohibition liquor law, and he appeals,.
    Order that proceeding abatei.
    Wright & Gill, for plaintiff in error.
    The Attorney General, for the State.
   PER CXJRIAM.

Plaintiff in error, Moody Jackson, was convicted in the county court of Oklahoma on a charge of selling intoxicating liquor, and in accordance with the verdict of the jury was on September 16, 1923, sentenced to be confined in the county jail for 30 days and pay a fine of $50 and costs. From the judgment an appeal was taken by filing in this court on January 10, 1924, petition in error with case-made. Counsel for plaintiff has filed a verified motion (to abate, supported by the affidavit of S. S. Gill, showing that on February 27, 1925, plaintiff in error departed this life. It is therefore adjudged and ordered that the proceeding in this case do abate, and the same is remanded, with direction to the trial court to enter its appropriate order to that effect.


text:
    BILL JONES v. STATE.
    No. A-4669.
    Opinion Filed Nov. 25, 1924.
    Rehearing Denied March 7, 1925.
    (233 Pac. 1116.)
    Appeal from County Court, 'Carter County; M. F. Winfrey, Judge.

      Bill Jones was convicted of a violation of the prohibitory liquor law, and appeals.
    Affirmed.
    R. C. Roland, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error, Bill Jones, was convicted on a charge that he did sell one pint of corn whisky to one Luke Carter, and his punishment fixed at confinement in the county jail for 30 days and a fine of $50. He appealed from the judgment rendered on such conviction by filing in this court on May 5, 1923, a petition in error with case-made. No 'brief has been filed in his behalf, and the cause was submitted on motion of the Attorney General to affirm for failure to prosecute. We have examined the record, and find there is evidence sufficient to support the verdict, and, there being no apparent error warranting a reversal, the judgment is affirmed.


text:
    Ex parte JOSEPHINE BROWN.
    No. A-5462.
    Opinion Filed March 12, 1925.
    (233 Pac. 1098.)
    (Syllabus.)
    1. Infants — Juvenile Court Cannot Render Penal Judgment for Arson; A juvenile court, as such, under our procedure, has no authority to render a penal judgment for the crime of arson.
    2. Same — Jurisdiction of Juvenile Court Stated. The jurisdiction of a juvenile court is confined to a general finding of juvenile delinquency and the exercise of guardianship and control of the delinquent child; or a finding that the child probably committed some specific offense and was possessed of the mental capacity to know right from wrong, and was therefore criminally responsible, and to make an order transferring the case for criminal prosecution to some court having jurisdiction of the offense.
    Petition by Josephine Brown for a writ of habeas corpus to obtain the discharge from custody of her son. Delbert Brown.
    Writ allowed.

      O. R. Fegan, for petitioner.
    The Attorney General, and G. W. Partridge, Co. Atty., for the State.
   BESSEY, P. J.

On February 9, 1925, complaint was made in the juvenile court of Logan county, charging that Delbert Brown was a negro boy, 14 or 15 years of age, in the custody of his mother in Logan county; the complaint stating further:

“That said child did, on or about the 8th day of February, 1925, in said county, violate the laws of the state of Oklahoma, by then and there, at about 7:30 o’clock in the evening, on February 8* 1925, setting fire to the house or home of the said Stokley Overstreet; said fire was set by the said Delbert Brown by pouring coal oil on the southeast corner of the house; one of the neighbors saw the boy set the fire and, therefore prevented very much damage being done to the house by extinguishing the fire. Your petitioner further states that the reputation of the said Delbert Brown is not good.
“Wherefore, petitioner prays that the said Delbert Brown be brought before this court to be dealt with according to law.”

The evidence shows that Delbert Brown was a 13 year old negro boy, of rather low mentálity, who associated with bad companions and was not subject to proper parental care. The juvenile court, acting upon the petition filed, made and entered the following judgment:

“In the Juvenile Court of Logan County, Oklahoma. In the matter of Delbert Brown, a Juvenile Delinquent. No. 128. Now, to wit, on this 11th day of February, 1925, the same being one of the regular days of the January, 1925, term of said court, this cause coming on for hearing upon the application of Stokley Overstreet to declare the juvenile Delbert Brown a delinquent child; and the court, after hearing the evidence of said petitioner and other witnesses, finds that the accused is guilty as charged, to-wit, of the crime of setting fire to the home of Stokley Over-street. That he is sentenced to the State Industrial School at McAlester for a term of 7 years, and until further orders of this court, and that commitment is now signed.
“A. H,. Boles, County Judge.”

The court issued a commitment accordingly and suspended sentence during good behavior. Later, there was some kind of showing made that the terms of the parole had been violated, whereupon the court made the following order:

“Now, therefore, it is by the court ordered that said Delbert Brown be committed and delivered to the charge of the superintendent of the State Industrial School (colored) at McAlester, Okla., to be safely kept under the direction of the Board of Control of State Charitable Institutions until further order of this court.”

The petitioner was thereupon committed to the State Industrial School (colored) at McAlester. (A youth convicted of arson cannot be paroled. Section 2803, Comp. Stat. 1921).

In this proceeding Josephine Brown, mother of Delbert Brown, asks for a writ of habeas corpus, alleging that the restraint of her said son is illegal, in that the juvenile court had no authority or jurisdiction to make the orders and render the judgment recited.

A juvenile court, as such, under our procedure has no authority to render a penal judgment for the crime of arson. Its jurisdiction, as defined by section 8070, Comp. Stat. 1921, and sections following, is confined to a general finding of juvenile delinquency; or that the child has probably committed some specific offense and is possessed of the mental capacity to know right from wrong, and is therefore .criminally responsible, and to make an order transferring the case for criminal prosecution to some court having jurisdiction of the offense.

The juvenile court is not, strictly speaking, a court of criminal jurisdiction. On the contrary, its functions are more like those of a guardian having supervision over juvenile delinquents; except that where it appears probable that a child has committed a punishable offense, when he may be transferred to a court exercising criminal jurisdiction.

In this case, if the juvenile court found that there was probable cause for holding Delbert Brown for the crime of arson, and found further that he was a person of sufficient mentality to know the wrongfulness of the act, such facts should have been certified to the district court of Logan county, having jurisdiction of the offense. Neither the juvenile court, as such, nor the county court, has jurisdiction to try a minor child, or any other person, for the crime of arson. Ex parte Parnell, 19 Okla. Cr. 273, 200 P. 456; State v. Alexander, 18 Okla. Cr. 546, 196 P. 969; Ridge v. State, 25 Okla. Cr. 396, 220 P. 965; Ex parte Hightower, 13 Okla. Cr. 472, 165 P. 624.

As will be seen from the record quoted, the juvenile court did not make a specific finding that Delbert Brown was a delinquent child, nor a finding of probable cause to believe him guilty of the crime of arson and that he was of sufficient intelligence to be responsible therefor. On the contrary, the juvenile court assumed jurisdiction of a specific criminal offense, which is by law lodged in another court.

The juvenile court was without jurisdiction to render a judgment for arson, and therefore the commitment issued thereon was void. The application for a writ of habeas corpus is allowed, and the prisoner is ordered discharged from the custody of the superintendent of the State Industrial School at McAlester and remanded to the custody of the sheriff of Logan county, to be further dealt with according to law.

DOYLE and EDWARDS, JJ., concur.


text:
    LON BERLIN et al. v. STATE.
    No. A-4912.
    Opinion Filed March 12, 1925.
    (233 Pac. 1094.)
    (Syllabus.)
    Appeal and Error — Timo and Procedure .for Appeal in Misdemeanor Casea In misdemeanor cases the appeal must be taken within 60 days after the judgment is rendered, unless the trial court or judge for good cause shown extends the time not exceeding 60 days, as prescribed by section 2808, Oomp. Stats. 1921. In such cases the appeal is taken by filing in this court a petition in error with case-made attached or transcript of the record together with proof of service of notices of appeal as required by the statute, and if this is not done within the time prescribed by the statute, this court does not acquire jurisdiction of the appeal, and such appeal will be dismissed.
    Appeal from County Court, Pawnee County; L. N. Kimrey, Judge.
    Lon Berlin and Steve Berlin were convicted of unlawfully transporting intoxicating liquor, and they appeal.
    Appeal dismissed.
    Rowe & Besly, for plaintiffs in error.
    George F. Short, Atty,. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiffs in error, Lon Berlin and Steve Berlin, were convicted on a charge of unlawfully conveying intoxicating liquor, and in accordance with the verdict of the jury were each sentenced to be confined in the county jail for 60 days and to pay a fine of $100. To reverse the judgment rendered, on July 14, 1923, an appeal was attempted to be taken by filing in this court on November 12, 1923, a petition in error with case-made attached

The Attorney General, July 1, 1924, filed a motion to dismiss the appeal as follows:

“The judgment and sentence of the court shows from the record to have been made and entered on the 14th day of July, 1923, and this pretended appeal shows to have been filed in the office of the clerk of the Criminal Court of Appeals on November 12, 1923, 121 days after the date of the judgment and sentence; no jurisdiction being conferred upon this court by the filing of said appeal as the statutory time had elapsed.”

Section 2808, Comp. Stat. 1921, provides:

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

This court has uniformly held that the appeal must be perfected within the time prescribed by the statute, and that if appellant fails to file a transcript of the record or case-made in this court within the time prescribed by the statute, this court does not acquire jurisdiction of the appeal and the same will be dismissed.

It follows that the motion to dismiss the appeal should be sustained, and the same is hereby dismissed, and the cause remanded to the county court of Pawnee county with direction to cause its judgment and sentence to be carried into execution.


text:
    Ex parte JOHN JOHNSON.
    No. A-5270.
    Opinion Filed March 12, 1925.
    (233 Pac. 1092.)
    (Syllabus.)
    Habeas Corpus — Issue Presented by Habeas Corpus — Defendant Held Under Information not Entitled to Discharge for Lack of Evidence Adduced at Preliminary Examination. The office of the writ of habeas corpus is not to determine the guilt or innocence of the prisoner, and the only issue which it presents is whether or not the prisoner is restrained of his liberty by due process of law; and a defendant, held by virtue of an information preferred by a proper prosecuting officer in a court of competent jurisdiction, cannot be discharged on habeas corpus on the ground that the evidence adduced upon his preliminary examination was insufficient to show that a public offense had been committed, or probable cause to believe' the defendant guilty thereof.
    Petition by John Johnson for writ of habeas corpus.
    .Writ denied.
    J. D. Grigsby, Jr., for petitioner.
    The Attorney General, for the State.
   DOYLE, J.

The petition for writ of habeas corpus shows that in July, 1924, John Johnson was committed by George Allen, judge of the county court of Cleveland county, after a preliminary examination and without bail, to answer to the district court of that county upon a charge of murder, alleged to'have been committed July 5, 1924, upon the body of J. W. Daniel; that upon a hearing before the district count petitioner was admitted to bail; that on he 22d day of July, 1924, an information was filed in the district court of said county, charging petitioner with the crime of murder; that upon arraignment petitioner entered his plea of not guilty to said information; that thereafter petitioner, with leave of court, withdrew his plea of not guilty and filed his motion to set aside and quash said information, on the ground and for the reason that there was no testimony introduced at said preliminary examination which showed or tended to show any cause or belief that petitioner was guilty of the crime of murder or any other offense under the laws of the state; that on the hearing of said motion before the district court the same was overruled.

Petitioner further alleges that he is not guilty of having committed the crime of murder, or of any other offense, and that the proof against him is not evident nor the presumption thereof great; that his imprisonment is therefore illegal and unauthorized.

At the hearing of this application the Attorney General demurred to the petition on the ground that the facts stated are insufficient to authorize this court to grant the relief prayed for.

Section 432, Comp. Stats. 1921, reads as follows

“No court or judge shall inquire into the legality of any judgment or process, whereby the party is in custody, or discharge him when the term of commitment has not expired in either of the cases following:
“First. Upon process issued by any court or judge of the United States, or where such court or judge has exclusive jurisdiction. * * *
“Fourth. Upon a warrant or commitment issued from the district .court, or any other court of competent jurisdiction, upon an indictment or information.”

The question here sought to be raised is not a jurisdictional one, and hence is not available on habeas corpus, for it is settled law that on habeas corpus the court can only inquire into jurisdictional defects in the proceedings. Ex parte Burroughs, 10 Okla. Cr. 87, 133 P. 1142.

The record shows that petitioner is being held by virtue of an information preferred by the county attorney in a court of competent jurisdiction, to wit, the district court of Cleveland county, and under the foregoing provision of the statute the writ of habeas corpus cannot be resorted to for the purpose of determining the sufficiency of the evidence adduced upon the preliminary examination to show probable cause. The office of the writ of habeas corpus is not to determine the guilt or innocence of the prisoner, and the only issue it presents ist whether or not the prisoner is restrained of his liberty by due process of law. The due and proper administration of public justice requires that, whenever an information is filed in a court of competent jurisdiction, it is its right and duty to proceed to its final determination, without interference from any other tribunal, and the writ of habeas corpus cannot be resorted to on the plea that the evidence adduced upon the preliminary examination was insufficient to show that a felony had been committed or probable cause of believing the defendant guilty thereof. The defendant had the right to raise this question in the court where the information is pending, by a plea in abatement, or by motion to quash, or motion set aside the information, and upon an adverse ruling by the court the remedy is by appeal from a judgment of conviction, exception having been reserved.

It appearing that the application is insufficient to show that petitioner is entitled to the writ or a rule to show cause, it must be denied.

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


author: EDWARDS, J.

text:
    BEELEY DERRISAW v. STATE.
    No. A-4004.
    Opinion Filed March 14, 1925.
    (234 Pac. 230.)
    (Syllabus.)
    1. Appeal and Error — Harmless Error — Variance Between Verdict and Information for Stealing. Where a defendant is tried on a charge of stealing an automobile, and the jury returns its verdict finding the defendant guilty of the “larceny of an automobile as charged in the information,” and it appears that the error has not resulted in a miscarriage of justice, nor constitutes a substantial violation of any constitutional or statutory right, the error is harmless.
    2. Trial — Verdict—Common-Sense Construction. Technical words ■ of construction and fine points of distinction should never apply to the verdict of the jury. A verdict should receive a commonsense construction, and, if it is possible to arrive at the intent of the jury, it should be upheld.
    3. Laceny — Intent Proven by Circumstances. Intent is ordinarily not capable of proof by direct and positive evidence, and may be proven by the facts and circumstances in the case.
    4. Criminal Law — Trial—Intoxication, Rendering Mind Incapable of Forming Intent, a Defense-Intoxication Question for Jury. Where it appears that a defendant is in such a state of intoxication as to render the mind incapable of forming or entertaining a specific intent essential to constitute an offense, a defendant should be found not guilty, and whether or not such a state of intoxication existed is for the jury under proper instructions.
    Appeal from District Court, McIntosh County; Harve L>. Melton, Judge.
    Beeley Derrisaw was convicted of stealing an automobile and sentenced to serve five years in the state penitentiary, and he appeals.
    Affirmed.
    C. H. Tully, for plaintiff in error.
    George F. Short, Atty. Gen., and N,. W. Gore, Asst. Atty. Gen., for the State.
   EDWARDS, J.

For the purpose of brevity, the plaintiff in error will be referred to as defendant.

The record in this case discloses that on or about the 1st day of May, 1920, one Mico Hutka left his Ford in a garage at Eufaula. It was parked outside until time to close up the garage, at which time the persons in charge of the garage were unable to find it. It appears that the defendant, Beeley Derrisaw, took the car and picked up some negroes and an Indian or two and went to the country, The parties got some “choc” beer and they, with others, shot craps until in the night, and then the defendant, some negroes, and an Indian boy made a tour of various towns in McIntosh and Okmulgee counties, were at Henryetta early the next morning, and went from there to Dewar; stopped at a garage to have a casing fixed, and, while there, the defendant contracted to sell the car. The proprietor of the garage at Dewar, being suspicious, telephoned the officials at Eufaula, and the parties were arrested.

The defendant was tried and the other persons with him testified that they knew nothing about the ownership of the car- and presumed it belonged to the defendant until the arrest at Dewar. The defendant was a full-blooded Creek Indian, apparently of low mentality, was incompetent to manage his affairs, and had a guardian for that purpose. He has a considerable estate, was a natural spendthrift and given to intoxication. He took the stand in his own behalf and testified that he was drunk and hardly remembered what he did, and on being asked if he stole the car of Mico Hutka, answered, “I think I did, but I didn’t know what( I was doing when I did it,” and further testified that he thought he was driving his own car, and that he contracted to sell the car and was paid something down for it at Dewar. There is no particular controversy about the facts.

It is next contended that the verdict returned by the jury finds the defendant guilty of a crime different to that charged in the information. If that is true, under the record, it would be ground for a reversal. The information, while it is designated as a charge of grand larceny, states the offense of stealing an automibile under section 2120, Comp. St. 1921. The verdict finds the defendant “guilty of the crime of larceny of an automobile as charged in the information herein.” There is a distinction between a larceny, whch is purely a statutory offense, and a stealing, which is a common-law offense. Larceny is the taking of personal property, accomplished by fraud or stealth, with an intent to deprive another thereof. Section 2101, Comp. St. 1921.

In order to constitute the offense of stealing, there must be a wrongful taking, with a felonious intent on the part of the taker to deprive the owner thereof and to convert the property taken to the taker’s own use. Hughes v. Ter., 8 Okla. 28, 56 P. 708; Crowell v. State, 6 Okla. Cr. 148, 117 P. 883; Sullivan v. State, 7 Okla. Cr. 307, 123 P. 569. Here the information charges the offense of stealing an automobile, and the case was tried on that charge. The jury were instructed on the theory that the charge was a stealing and not a larceny, and no exceptions were taken to the instructions. While the verdict returned uses the term “larceny of an automobile,” it specifies larceny of an automobile “as charged in the information,” and the use of the word “larceny” instead of the word “stealing” was not prejudicial.

Technical words of construction and nice points of distinction are generally not drawn in reference to verdicts, and, where it is evident, as in this case, the meaning the jury intended to convey by their verdict, that meaning should be adopted, particularly where it does, not prejudice the right of the defendant. Under the provisions of section 2822, Comp. St. 1921, we would not be warranted in reversing a case for a mere error of procedure, where, as in this case, it appears that it is without prejudice to the substantial rights of the defendant. Walker v. State, 11 Okla. Cr. 339, 127 P. 895.

It is further contended that the evidence is insufficient to sustain the verdict; that there was no intent on the part of the defendant to steal the car in question shown; that it was not shown that he had an intent to permanently deprive the owner thereof; and that under the evidence it was shown that the defendant was intoxicated at the time of the transaction to the extent that he was incapable of forming an intent to steal.

Intent is not ordinarily capable of proof by direct and positive evidence. It can in general be proven only by the facts and circumstances, and, in this case, if the taking and carrying away are not sufficient to show the intent on the part of the defendant to steal the automobile in question, the subsequent negotiation on the sale of the car and. the receiving of part of the purchase price would seem to preclude the defendant from claiming that it was taken for the mere purpose of a joy ride, and not to deprive the owner thereof and to convert to his own use. The court in-strutted the jury clearly on this point that it was necessary that the property be taken with the intent to permanently deprive the owner thereof, and, though the defendant had no right to take the property, if he took it to use for a short time and returned it to the owner, the taking would not be larceny and the jury should acquit. Where intent is an element of the offense, as it is in stealing, and an act is committed by one in such a state of intoxication as to render the mind incapable of forming an intent, such inability to form and entertain an intent, if shown, would render the accused incapable of committing the crime. Updike v. State, 9 Okla. Cr. 124, 130 P. 1107; 12 Cyc. 404; Terhune v. Commonwealth, 144 Ky. 370, 138 S. W. 274.

In the instant case the jury were particularly instructed on this point; No. 7 of the court’s instructions being* as follows:

“The court instructs the jury that, even though they believe that the defendant wrongfully took the car, the property of Mico Hutka, drove the same to Dewar, and there disposed of it, still, if they further believe from the evidence, or have a reasonable doubt thereof that at such time the defendant was so intoxicated as to be unable to deliberate or form that intent, which is a necessary part of the crime of larceny, they must acquit. You are instructed, however, that voluntary drunkenness is no defense to a crime, unless such drunkenness is of such a nature as to deprive the defendant of the capacity to form the criminal intent as above instructed.”

The court instructed upon the issues raised by the defendant to the jury fully and at least as favorably as the law requires; the jury found against the contention of the defendant. The evidence sustains the conviction, and we are not at liberty to disturb the verdict and judgment for insufficiency of evidence.

The case is affirmed.

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


text:
    Ex parte A. H. THORNTON.
    No. A-5460.
    Opinion Filed March 14, 1925.
    (234 Pac. 217.)
    (Syllabus.)
    Habeas Corpus — Party in Custody Under Commitment Based on Complaint in Municipal Court Failing to Charge Crime Discharged. Where a complaint in a municipal court upon which a defendant is being prosecuted is fundamentally defective in substance so that it charges a crime in no manner or form and by no in-tendment or inference, it is insufficient to confer jurisdiction, and a party in custody by reason of a commitment based thereon will be discharged on habeas corpus.
    Petition by A. H. Thornton for writ of habeas corpus.
    Writ awarded, and petitioner discharged.
    C. R. Reeves, for petitioner.
    Harry Hammerly, for respondent.
   EDWARDS, J.

The petitioner, A H. Thornton, alleges that he is illegally restrained by the mayor and chief of police of the city of Chickasha, and that the said restraint is by virtue of a void ordinance and a void proceeding therein by which he was adjudged to pay a fine intthe said court of said city.

The respondents have made return, admitting that they are the mayor and chief of police of said city, and that on the 23d day of February the petitioner was adjudged guilty of vagrancy and a fine of $19 assessed against him and he was ordered committed until such fine was paid, and further claim that said petitioner is subject to commitment in a proceeding in the said court, claiming the right to carry out the commitment issued on such sentence.

In his brief and argument petitioner assigns the following reasons why said proceeding is void: First, that the ordinance under which the prosecution is predicated is unconstitutional, in that it provides for a fine of $25, without any provision for a jury trial, and that a blanket amendment to all ordinances of the said city, reducing the maximum fines provided by said ordinances to $19, is invalid; second, that there was no sworn complaint charging the petitioner with any offense under said ordinances sufficient to give the municipal court of the city of Chickasha jurisdiction ; third, there was no competent evidence proving the petitioner guilty of any offense under the ordinances of said city.

The question of the validity of the ordinances of said city under the decisions of this court, and under the law relating to the authority of the municipality to impose punishment without, a jury trial, and the power of a municipality to impose punishment without a jury trial, and the power of a municipality to amend various ordinances by one blanket ordinance, are very serious questions. Ex parte Johnson, 13 Okla. Cr. 30, 161 P. 1097; Ex parte Monroe, 13 Okla. Cr. 62, 162 P. 233; Ex parte Bochmann, 20 Okla. Cr. 78, 201 P. 537; Pentecost v. Stiles, 5 Okla. Cr. 500, 49 P. 921.

We do not, however, pass upon that contention here as the further contention that there was no complaint sufficient to give the municipal court jurisdiction must be sustained. The attempted complaint upon which the petitioner was convicted is as follows:

“The City of Chickasha v. A.. H. Thornton, Complaint. In the Name and by the Authority of the city of Chickasha, Grady County, Oklahoma. Before me, undersigned authority, on this day personally appeared Phillips, who after being by me duly sworn, on oath, deposes and says that heretofore, to wit, on or about the 23rd day of February, 1925, and prior to- the filing of this complaint, in the city of Chickasha, Grady County, Oklahoma, one-did then and there unlawfully vagrancy, contrary to the ordinance of said city in such case made and provided and against the peace and dignity of said city.”

Proceedings in habeas corpus cannot be used to correct irregularity of procedure, or in the place of an appeal, or a proceeding by writ of error, where the court had jurisdiction of the person and the subject-matter, but there must be an illegality or an irregularity sufficient to render the proceedings void. In re Wilkins, 7 Okla. Cr. 423, 115 P. 1118; Ex parte Woods, 7 Okla. Cr. 645, 125 P. 440; Ex parte Rupert, 6 Okla. Cr. 90, 116 P. 350; Ex parte Brown, 3 Okla. Cr. 333, 105 P. 577; Ex parte Justus, 3 Okla. Cr. 111, 104 P. 933, 25 L. R. A. (N. S.) 483; In re Talley, 4 Okla. Cr. 398, 112 P. 36, 31 L. R. A. (N. S.) 805.

Where, however, the complaint is a nullity, stating no facts and no conclusion of law which by any intendment or inference or presumption state an offense, it will be insufficient to confer jurisdiction, and in such category, we think, the purported complaint in this case falls'. No fact is charged and no conclusion of law drawn, and the instrument purporting to be a complaint is unintelligible. It is nothing. It does not charge a crime in any manner or form, and, being the basis of the jurisdiction of the municipal court, and being insufficient to confer jurisdiction, it follows that the judgment and sentence based thereon is without warrant of law. Ex parte Show, 4 Okla. Cr. 416, 113 P. 1062; Ex parte Kennedy, 10 Okla. Cr. 648, 135 P. 1194; Ex parte Hunnicutt (Ex parte Patton) 7 Okla. Cr. 214, 123 P. 179; Ex parte Wilson, 7 Okla. Cr. 610, 125 P. 739.

The' writ is awarded, and the petitioner discharged.

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


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    RIDDLE OREM v. STATE.
    No. A-4803.
    Opinion Filed March 14, 1925.
    (234 Pac. 217.)
    (Syllabus.)
    Appeal and Error — Larceny—Evidence Insufficient to Support Conviction of Grand Larceny — Judgment Modified on Appeal by Reducing Sentence to Maximium Punishment for Petit Larceny. In a . prosecution for larceny of hog meat and lard, of the alleged value of $25, where the verdict was guilty of grand larceny, and punishment fixed at 15 months’ imprisonment in the penitentiary, held, that the evidence was insufficient to support a verdict of grand larceny, and judgment rendered thereon should be modified by reducing the sentence to the maximum punishment authorized for petit larceny.
    Appeal from District Court, Marshall County; Porter Newman, Judge.
    Riddle Orem was convicted of grand larceny, and he appeals.
    Modified and affirmed.
    J. B. O’Bryan, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charges that the defendants, Riddle Orem and Ward Noah, did in Marshall county, on or about the 30th day of January, 1922, take, steal, and carry away certain personal property, consisting of hog meat and lard, all of the value of $25, the property of Otho Mitchell. Upon his separate trial the jury found “the defendant Riddle Orem, guilty as charged in the information herein, and assess his punishment at confinement ¿n the state penitentiary for a term of 15 months.” He has appealed from the judgment rendered on the verdict. The errors assigned challenge the sufficiency of the evidence to sustain the verdict and judgment, in that there was no evidence that the property alleged to have been stolen exceeded the value of $20. No brief has been filed and no appearance made on behalf of the plaintiff in error in this court.

We have carefully examined the record, as it is our duty to do. The evidence shows the theft of three shoulders, two middlings of hog meat, and about eight gallons of lard.

The owner testified that he supposed the shoulders would weigh fifteen or twenty pounds apiece and the mid-dlings about twenty pounds; that he supposed the lard would weigh about eight pounds to the gallon, and that there was about eight gallons in the can that was stolen. Asked as to the value, he said he did not know exactly, but had heard that the meat and lard were worth 15 cents a pound.

While the evidence is ample to prove the theft alleged, we think it is insufficient to show that the stolen property was of value exceeding $20.

Where statutes authorize appellate court to modify the judgments of the trial courts in criminal cases, the remedy in cases like this is found, not in a new trial, but in modifying the judgment by reducing the punishment.' In this case we have concluded to reduce the sentence to the maximum punishment authorized for the crime of petit larceny.

The judgment of the district court will therefore be modified to confinement in the county jail for 30 days, and a fine of $100, and as thus modified the judgment is affirmed.

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


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    BILL HOLT v. STATE.
    No. A-4807.
    Opinion Filed March 14, 1925.
    (234 Pac. 216.)
    (Syllabus.)
    Robbery — Evidence Sustaining Conviction. In a prosecution for rob-íbery, evidence held to sustain the conviction, and that no material error was committed on the trial.
    Appeal from District Court, Washington County; H. C. Farrell, Judge.
    Bill Holt was convicted of robbery, and he appeals.
    Affirmed.
    Montgomery & Montgomery, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

Plaintiff in error, Bill Holt, was convicted of the crime of robbery conjointly committed, and on May 19, 1923, was sentenced to imprisonment in the penitentiary for a term of seven years, from which judgment an appeal was taken to this court, but no brief in support of the assignments of error has been filed.

The first assignment of error relates to the sufficiency of the evidence to sustain the judgment.

The evidence on behalf of the state shows that on the 29th day of January, 1923. between 6 and 7 o’clock in the evening the defendant, Holt, and another man entered the grocery store owned and conducted by T. C. Henderson and O. R. McPheeters, on East Second street, Bartlesville, Charles Terrian and Frank Flores and the Store owners were sitting around the stove. Holt held a gun in his hand and ordered the men to stand up and go to the back end of the store, and there the robbers forced the men into an ice box. Holt took a diamond scarf pin from the person of T. G. Henderson and jerked a watch chain with a $10 gold piece fob from the person of Frank Flores. They then took about $30 in money from the cash register and left the store.

The four persons present identified the- defendant, Bill Holt, as one of the men engaged in the robbery. On behalf of the defendant, his father and mother and three or four other witnesses testified that he was at his home on North Kaw street, in Bartlesville, that evening until about 7:30; that he then went to a picture show, returning to his home about 9:30 that night.

Defendant testified in his own behalf that in the early part of the evening he made a trip to a grocery store to get some groceries for supper, came back to the house and stayed until 7:30, then went to a show, returning home about 9:30 that night.

On cross-examination he was asked:

“Q. Did you ever plead guilty to a felony in this court? A. I did.
“Q. What was it, A. Forgery. It was in 1919. I was 19 years of age.”

The weight of the evidence was a question of fact for the jury under the instructions of the court which gave the defendant the benefit of all reasonable doubt. This court has uniformly held that, when in a criminal case the inference of guilt can be reasonably drawn from the evidence, it will nqt ordinarily interfere with the verdict against the defendant.

Several assignments of error are directed to the admission and rejection of testimony.

We have carefully examined them and find no error in the rulings’ of the court.

While the defendant is not represented in this court, we have carefully gone through the record and find it free from substantial error. There is no question in our minds of the defendant’s guilt, and the judgment of the trial court is accordingly affirmed.

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


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    WATSON NED v. STATE.
    No. A-4722.
    Opinion Filed March 14, 1925.
    (233 Pac. 1096.)
    (Syllabus.)
    1. Trial — Refusal of Requested Instructions Covered by Given Instructions not Error. It is not error for the trial court to refuse to give a requested instruction, although it may be a correct statement of the law, if the principles therein contained are covered by the given instructions of the court.
    2. Sarnie — Sufficiency of Instructions as Whole. The instructions must be considered as a whole, and when considered together, if they fairly and correctly state the law applicable to the case, they will be sufficient.
    Appeal from District Court, Marshall County; George S. March, Judge.
    Watson Ned was convicted of manslaughter, and sentenced to a term of seven years in the state penitentiary, and he appeals.
    Affirmed.
    Minter & McClendon and Joe Ratliff, for plaintiff in error.
    George R. Short, Atty. Gen., and Leon S. Hirsh, Asst. Atty. Gen., for the State.
   EDWARDS, J.

For brevity, the plaintiff in error will be referred to as defendant. An information was filed charging defendant with murder in causing the death of Newt Ritter on the 9th day of December, 1920, and the record discloses f hat the deceased, Newt Ritter, and his uncle, Will Ritter, were agents of the Singer Sewing Machine Company, and went to the home of the defendant for the purpose of collecting the balance owed by the defendant on a sewing machine, but while at the home of the defendant a quarrel over a settlement of balance on the machine arose, and Newt Ritter and Will Ritter were shot and killed by the defendant. The defense is that the shooting was done to protect the home of the defendant from invasion by the two Ritters, and, further, that at the time of the shooting they were making an assault upon him, and that he shot in self-defense. This is a companion case to the case of Ned v. State, 28 Okla. Cr. 419, 231 P. 550.

The only errors assigned relate solely to the instructions, and it will not be necessary to go into the facts at any great length. Counsel for defendant in their brief concede that the testimony was such as would sustain a verdict either for or against the defendant.

The first assignment of error is that the court erred in failing to give defendant’s requested instruction No. 1, which is:

“Gentlemen of the jury, you are instructed what is or is not an overt action; that what act upon the part of the person slain will justify the person taking his life varies with the circumstances of each particular case. Under some circumstances the slightest movement may justify instant action on the part of the person threatened with danger, upon the ground of reasonable apprehension of danger. Under other circumstances this might not be true, and it is for the jury viewing the facts and circumstances in evidence from the defendant’s standpoint to determine how this may be in each case.”

The requested instruction was correct in form and substance in a case where warranted by the evidence. Watkins v. U. S., 1 Ind. T. 364, 41 S. W. 1044; Allison v. U. S., 160 U. S. 203, 16 S. Ct. 252, 40 L. Ed. 395.

The requested instruction should have been given, unless the substance was covered by the general charge of the court.

In the case of Green v. U. S., 2 Okla. Cr. 55, 101 P. 112, a case transferred to this court from the Indian Territory after statehood, the court held a request in the identical language to correctly state the law applicable to the facts in that case, and it was not covered by any other charge of the court. This error in that case, along with various other errors, was sufficient to reverse that case. That was a case in which it was claimed threats had been made and communicated to the defendant, and the court held the jury were told the conditions which would not justify the defendant in shooting deceased, but were nowhere told the conditions under which the defendant would be justified in acting upon the appearance of the danger.

It is obvious that, where in a homicide case, the person slain is a violent or dangerous character, or where threats are made and communicated of an intent on the part of the person slain to injure a person, the threatened person having in mind the threat ordinarily would be more likely to act on an appearance or apparent appearance of danger, that is, on a less significant overt act, than would a person where no threats had been made or communicated. The requested instruction in the latter case would not have the significance that it would have in the former. In this case there was no previous acquaintance, nor difficulty; there were no threats, either uncommunicated or communicated. In the court’s charge the jury are informed of the conditions under which the defendant would be justified. No. 14 of the court’s charge is in part as follows:

“* * * And you are therefore instructed that, if you believe from the evidence, or have a reasonable doubt thereof, that the said Newt Ritter, at the time and place mentioned in the information, made an assault, that is, made a willful and unlawful attempt or offer with force or violence to do the defendant a corporal hurt, which led the defendant, as a reasonable man, situated as he then was, to believe that the said Newt Ritter was about to kill him or to do him some great personal injury, and that the defendant did honestly and really believe that he was in imminent danger of losing his life or receiving some great personal injury at the hands of said Newt Ritter, and that the defendant, under such circumstances and conditions, then and there shot and killed the said Newt Ritter in order to so protect himself from such apparent imminent danger of being killed or receiving some great personal injury at the hands of said Newt Ritter, and that he did not use more force than reasonably appeared to him to be necessary to so protect himself from the assault of said Newt Ritter, then and in that event the shooting and killing of said Newt Ritter by the defendant was justifiable, and in that event you should acquit the defendant, and so say by your verdict.”

And in No. 14V& they are further told:

“* * * And if you find that the defendant was attacked by the deceased, Newt Ritter, or by the other Ritter if they were acting in concert, or have a reasonable doubt thereof, in such manner and under such circumstances as to furnish reasonable grounds for apprehending a design to take his life by the said Njewt Ritter, or to do him some serious and great bodily injury, and there was reasonable grounds for believing the danger imminent, and that such design would then and there be accomplished, and that the defendant had reasonable grounds to believe and did believe such danger was then and there imminent, he had the right under such circumstances, to act upon appearances, and without retreating, and to use such force as reasonably appeared to him necessary to protect himself from the attack of said Newt Ritter. And if you so find, or have a reasonable doubt thereof, you should resolve that doubt ,in favor of the defendant and acquit him.”

These instructions stating the conditions which would justify the defendant cured the error of the court in refusing the requested instruction.

The next contention is that the court erred in refusing defendant’s request No. 2, which is as follows:

“'Gentlemen of the jury, you are further instructed that the defendant, if he is where he has a right to be, is not required under our law to run from his aggressor, but has the right to stand his ground and resist any assault or attack with such force as he deems necessary as a reasonable man, and, (in determining whether or not the said defendant deemed it necessary to shoot the said Newt Ritter, you should view the facts and circumstances from the defendant’s standpoint, and as it appeared to him at the time of the fatal difficulty.”

Both the right to stand and defend and the viewing of the circumstances from the defendant’s standpoint as stated in this instruction are embodied in the court’s general charge. In that part of No. 14% quoted above the jury are told that the defendant had a right to act upon appearances, and, without retreating, to use such force as really appeared to him necessary to protect himself; in No. 17 of the court’s charge the jury are told that all the facts and circumstances must be viewed from the standpoint of the defendant, which instructions covered fully the request of the defendant on these points.

It is then contended that No. 14% is erroneous, in that it is contradictory, incomplete, vague, and misleading. A part of 14% has been quoted above, and it correctly states the law on the right of a defendant to stand and defend without retreating, and that part not quoted states the law on defense of domicile, and, while it ¡is not a model instruction, there is no substantial error in giving it.

It is well settled that the instructions are to be considered as a whole, and when considered all together, if they fairly and correctly state the law applicable to the case, they will be sufficient. In the light of the testimony in the case, and particularly the testimony of the defendant, and of the estire record, it appears that the defendant was fairly tried, his guilt conclusively established, and there is no such error as would prejudice his substantial rights. The case is affirmed.

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


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    TOM HARRISON v. STATE.
    No. A-4701.
    Opinion Filed March 16, 1925.
    Rehearing Denied April 27, 1925.
    (234 Pac. 221.)
    (Syllabus.)
    L ¿Appeal and Error- — Refusing Continuance for Illness of Accused Held not Abuse of Discretion. When a defendant files an application for a continuance on the grounds of his illness, and the court takes testimony of the witnesses and overrules the application, and thereafter the defendant appears in court and testifies, and no apparent inability on the part of the defendant appears in the record, there is no abuse of discretion shown.
    2. Continuance — Having Subpoena Issued for Witness Five or Six Days Before Trial not Due Diligence. When a ease is assigned for trial more than a month and a half before the day set for the trial, it is not due diligence for a defendant to wait until five or six days before the trial before having subpoena issued for his witnesses, where he knows of the materiality of their testimony.
    3. Same — Requirements of Due Diligence in Procuring Witnesses Stated; Due diligence on the part of a defendant in procuring witnesses requires that he shall have subpoenas issued in ample time to procure service, or to take their deposition in case their attendance cannot be had, and that he should see that the subpoenas are placed in the hands of an officer for service.
    Appeal from District Court, Nowata County; C. W. Mason, Judge.
    Tom Harrison was convicted of assault with intent to kill, and sentenced to a term of five years in the state penitentiary, and he appeals.
    Affirmed.
    Bert Van Leuven, for plaintiff in error.
    George P. Short, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for the State.
   EDWARDS, J.

For brevity, the plaintiff in error will be referred to as defendant. On the 22d day of November, 1922, the date the case was for trial, the defendant filed an application for a continuance on the ground that he was ill and unable to, attend court, and offered evidence of a physician who had made an examination of the defendant at some length, and who testified that he had examined defendant on the day before and that he had laryngitis, which, after considering, the court overruled, and exceptions were taken. The casé went over from that day until the 23'd. It appears from the subsequent events that the defendant was unduly alarmed by the condition of his health, and that he was able to attend the trial as he did and testified at length, and so far as the record discloses was physically able to attend without injury.

In the case of Gregg v. City of Kingfisher, 8 Okla. Cr. 8, 125 P. 1093, this court held:

“It was not error to overrule a motion-for a continuance, because accused was sick and unable to appear in court at the trial, where it affirmatively appeared from the record that he did appear and was present during the trial.”

We think there was no abuse of discretion in overruling the application on account of the physical condition of the defendant. On November 23d a further application for continuance was filed on account of the absence of Tom Barr, claimed by the defendant to be a material witness, and setting out what he expected to prove by the witness. It appears that Barr lived in the county, and was one of the witnesses for the defendant in his application1 for change of venue on the 9th of May preceding, and it is alleged in the affidavit in the second application for continuance that he is temporarily absent from the county, and that on the 16th day of November the defendant had a subpoena issued for him, which was not attempted to be served until November 20th.

After the case had. been set for trial on October 3d, almost a month and a half before the subpoena was issued, it was the duty of the defendant, if he expected to use him as a witness, to have a subpoena issued for him in ample ■time in order that service might be had. If subpoena had issued at an earlier date, his attendance could either have been had or his deposition taken. Diligence would have required that when the subpoena was1 issued that he should have had the same placed in the hands of an officer with the request that he be served. Bryan v. State, 5 Okla. Cr. 542, 115 P. 619. If this had been done, services would have been had for the record shows that on November 16th the witness was in Nowata and talked with the attorney for the defendant. Rose v. State, 8 Okla. Cr. 294, 127 P. 873. There is not such diligence shown as to constitute error on the part of the court in overruling the application.

The case is affirmed.

BESSEY, P. J., and DOY1LE, J., concur.


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    NORRIS CRABTREE v. STATE.
    No. A-4902.
    Opinion Filed March 16, 1925.
    (233 Pac. 1093.)
    (Syllabus.)
    Appeal and Error — If Accused Becomes Fugitive from Justice Pending Appeal, Appeal Dismissed. Where a defendant has been convicted and sentenced and perfects an appeal, this court will not consider his appeal, unless' defendant is where he can be made to respond to any judgment or order which may be rendered or entered in the case: and, where a defendant makes his escape from the custody of the law and becomes a fugitive from justice pending the determination of his appeal, this court will, on proper motion, dismiss the appeal.
    Appeal from District Court, Tulsa County; Albert C. Hunt, Judge.
    Norris Crabtree was convicted of murder, and he appeals.
    Appeal dismissed.
    Ed Crossland, for plaintiff in error.
    George F. Short, Atty. Gen., and John Barry, Asst. Atty. Gen., for the State.
   DOYLE, J.

In the information in this case filed in the district court of Tulsa county, Norris Crabtree was charged with the crime of murder, alleged to have been committed in Tulsa county on the 25th day of February,* 1923, by killing Robert A. Donnelly by shooting him with a pistol. A trial was had thereon, and the defendant was found guilty of murder as charged in the information, and his punishment fixed at imprisonment in the penitentiary for life. From the judgment rendered in accordance with the verdict on the 4th day of May, 1923, an appeal was perfected by filing in this court on October 31, 1923, petition in error with case-made attached.

The Attorney General has filed a motion to dismiss the appeal on the ground that plaintiff in error is now and has been, since the 8th day of January, 1925, a fugitive from justice, which motion is supported by the affidavit of W. S. Key, warden, who deposes that prisoner, Norris Crab-tree, 13136, received from Tulsa county, on the 9th day of May, 2, 1923, under a sentence of life imprisonment, escaped from this institution on the 8th day of January, 1925.

The uniform holding of this court is that, where a defendant has been convicted and sentenced, and perfects an appeal, this court will not consider the appeal, unless defendant is where he can be made to respond to any judgment or order which may be rendered or entered in the case; and, where a defendant makes his escape from the custody of the law, and becomes a fugitive from justice pending the determination of his appeal, this court will, on proper motion, dismiss the appeal. McKellop v. State, 18 Okla. Cr. 326, 194 P. 457; Young v. State, 16 Okla. Cr. 116, 180 P. 872.

The motion to dismiss was filed February 3, 1925, and no response or answer thereto has been made.

It follows that plaintiff /in error has waived the right to have his appeal in this case considered and determined. The appeal is therefore dismissed and the cause remanded to the district court of Tulsa county.

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


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    BILL BEARDEN v. STATE.
    No. A-4941.
    Opinion Filed March 16, 1925.
    (233 Pac. 1100.)
    (Syllabus.)
    Criminal Law — Clerk of County Court Without Power to Issue Warrant in Absence of County Judge. The clerk of a county court is without power to issue a warrant of arrest for a defendant based upon an information filed in such court in the absence of the county judge, and, where a motion is made in apt time to set aside the warrant so issued, it should be sustained.
    Appeal from County 'Court, Carter County; M. F. Winfrey, Judge.
    Bill Bearden was convicted of unlawful possession of intoxicating liquor, and he appeals..
    Reversed.
    Bass & Hardy, for plaintiff in error.
    George F. Short, Atty. Gen., N. W. Gore, Asst. Atty. Gen., and John L. Hodge, Co. Atty., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction rendered upon a verdict finding appellant guilty on a charge that he did have in his possession intoxicating liquor with the unlawful intention to sell the same and resulting sentence of confinement in the county jail for 30 days and to pay a fine of $50.

The overruling of defendant’s motion to quash and set aside the warrant, for the reason that the same was signed by the deputy court clerk, acting for the court clerk, is assigned as error.

It is agreed by counsel for the state that the confession of error filed by the Attorney General in the case of Beasley v. State, 26 Okla. Cr. 398, 224 P. 376, should be considered as a confession of error in this case.

In the Beasley Case it was held that the clerk of the county court is without power to issue a warrant for a defendant based upon an information filed in such court in the absence of the county judge, and, where a motion is made in apt time to set aside the warrant so issued it should be sustained — citing Bowen v. State, 5 Okla. Cr. 605, 115 P. 376; Bonham v. State, 6 Okla. Cr. 227, 118 P. 159; Fullingim v. State, 7 Okla. Cr. 333, 123 P. 558.

Under the authority of the cases cited, the motion ■to quash should have been sustained, and the county judge should have then and there issued a legal warrant for his arrest.

The judgment of the lower court is therefore reversed, and cause remanded for proceedings consistent with this opinion.

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