text:
    O. H. BUNCH v. STATE.
    No. A-10594.
    August 14, 1946.
    (171 P. 2d 985.)
    A. M. Covington, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and W. C. Hen-neberry, Asst. City Atty., of Tulsa, for defendant in error.
   BABEFOOT, J.

Defendant, O. IT. Bunch, was charged in the municipal criminal court of the city of Tulsa with the offense of assault and battery, waived a jury and was tried before the court; adjudged guilty and his punishment assessed at a fine of $48 and costs, and he has appealed.

At the time this case was assigned for oral argument, counsel for defendant appeared and argued the same. No briefs have been filed, either by the defendant, the city of Tulsa, or the state.

The evidence of the prosecuting witness is to the effect that he was struck by the defendant, who was a street-car conductor, in the city of Tulsa, with his money-changer when witness attempted to leave the street-car. There was a sharp conflict in the testimony of the prosecuting witness and the defendant as to the cause of the controversy. Defendant admits he hit the prosecuting witness with his money-changer; and under the evidence of the state, there is no question as to the guilt of the defendant. The weight to be given to the evidence and the credibility of the witnesses was clearly for the determination of the trial court. His decision is as binding as the verdict of a jury.

At the time of oral argument, it was contended that the venue of the action was not proved as to being in the city of Tulsa. We have examined the record, and are of the opinion that sufficient evidence was introduced to prove the venue. The witnesses, when asked with reference to the affair, referred to the streets as “Fourth Street,” “Peoria” and “Boston” avenues. All of the witnesses gave their addresses. This evidence was sufficient to sustain the venue, and the allegation of the information, which stated “within the corporate limits of the city of Tulsa, Tulsa County, Oklahoma.”

Finding no error in the record, the judgment of the municipal criminal court of the city of Tulsa is affirmed.

JONES, P. J., concurs. DOYLE, J., not participating.


source: Caselaw Access Project

author: JONES, P. J.

license: Public Domain

text:
    Ex parte ETCIL M. OWEN.
    No. A-10718.
    August 14, 1946.
    (171 P. 2d 868.)

      Arthur H. Dolman, of Oklahoma City, and Joe T. Rogers, of Wichita, Kan., for petitioner.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for respondent.
   JONES, P. J.

This is an original proceeding in habeas corpus by Etcil M. Owen through his wife, Lucille E. Owen, to secure his release from imprisonment in the State Penitentiary.

The petition alleges, in substance, that on March 3, 1932, an information was filed in the district court of Wagoner county charging the petitioner and one Louis Wallen with the larceny of domestic fowls. That on March 5, 1932, the petitioner, Etcil M. Owen, upon his plea of guilty to said information, was sentenced to serve two years in the State Penitentiary; that upon said judgment the said petitioner was taken to and confined in the State Penitentiary until about August 3, 1932, at which time he fled from said institution and continued at liberty until about February 1, 1946, when he was apprehended at Wichita, Kan., and returned to the State Penitentiary at McAlester, Okla., where he has since been in. custody.

The petition further alleges that the judgment of the district court of Wagoner county is void for the reason that the said Etcil M. Owen was not given a preliminary examination and did not waive such examination before any magistrate of the State of Oklahoma.

Attached to and made a part of the petition was a certified copy of the appearance docket of the district court of Wagoner county in which the following recitals appear:

Appearance Docket Entries Date Filings & Proceedings Cost
March 3,1932 Docket $2.00 File Information 1(F $2.10
March 5,1932 Enter Record (Each of defendants plead guilty, sentenced to 2 years in Pen. .10
March 5,1932 Issue Judgment & Sentence 1.00
March 11,1932 File Judgment & Sentence 1(F Return 1(F (Delivered Louis Wallen to Pen 3-7-32) .20
March 11,1932 File Judgment & Sentence 1(K Return 1(F (Delivered Etcil Owen to Pen 3-7-32) .20

Also attached to the petition and made a part thereof is a statement of the clerk of the district court of Wagoner county in which he certifies that there is no transcript from the justice of the peace court filed of record in his office in the case filed against the petitioner, Etcil M. Owen.

A rule to show cause was issued and a response filed by the Attorney General on behalf of the warden of the State Penitentiary, in which response it was specifically denied that petitioner did not have a preliminary examination, and it was further alleged that the respondent warden of the Oklahoma Penitentiary was holding the said petitioner pursuant to a due and lawful judgment of the district court of Wagoner county, Okla., under date of March 5, 1932, whereby the said Etcil M. Owen was' sentenced to serve a term of two years in the Oklahoma State Penitentiary; that said judgment and sentence has not been served for the reason that the said Etcil M. Owen. escaped from said penitentiary on August 3, 1932, and was not returned unto said prison until February 9, 1946. The response further states that the questions attempted to be raised by said petition could only be presented by appeal, and do not constitute grounds for a release from custody by habeas corpus.

At the hearing had before this court, no parol testimony was taken, but the petitioner relied solely upon the absence in the record of any statement that he had had a preliminary examination as sustaining his proposition that no preliminary examination was held prior to the filing of the information in the district court.

The Constitution of Oklahoma (art. 2, § 17) which provides :

“No person shall be prosecuted criminally in courts of record for felony or misdemeanor otherwise than by presentment or indictment or by information. No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination. Prosecutions may be instituted in courts not of record upon a duly verified complaint,”

was cited and relied upon by the petitioner to sustain his contention that since the record was silent as to whether- the petitioner had had a preliminary examination, it is presumed in the absence of a record that no preliminary examination was held, and that in the absence of a preliminary examination, the county attorney was without authority to file an information in the district court, and the district court was wholly without jurisdiction to proceed to pronounce judgment on the plea of guilty.

The petitioner’s contentions are presented under two heads: First, the absence of any recital in the record in the office of the court clerk of Wagoner county showing the filing of a transcript from the justice of the peace raises a presumption that no preliminary proceedings were ever had before a justice of the peace. Second, that if no preliminary proceedings were held before a justice of the peace, the district court of Wagoner county did not acquire jurisdiction by the filing of the information to pronounce judgment upon the plea of guilty.

Assuming, for the purpose of disposing of the second question, that the petitioner’s position in regard to the first proposition is correct, still it does not follow, as we view the law, that the petitioner is entitled to his release from confinement by habeas corpus.

In the early case of Ex parte Robinson, 56 Okla. Cr. 404, 41 P.2d 127, 128, the petitioner Eobinson sought to secure his release from imprisonment by a habeas corpus action instituted in this court in which it was alleged that the petitioner had not had a preliminary examination before any magistrate having jurisdiction. At the hearing before this court it developed that a preliminary examination was conducted before one Harris, a justice of the peace for Konawa township district, but this court held that said Hands in conducting the preliminary examination was acting outside his jurisdiction, and that all of the proceedings before him were null and void. The writ of habeas corpus, however/was denied. In the body of the opinion it is stated:

■ “Article 2, § 17, Constitution, provides:
“ ‘ * - * No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination. *
“This constitutional provision is for the benefit of an accused. It is in the nature of a personal privilege under which he may insist upon a preliminary examination before he can be put upon his trial or called upon to answer an information, but by its express terms he may waive this right. Canard v. State, 2 Okla. Cr. 505, 103 P. 737, 881, 139 Am.St.App. 949; Muldrow v. State, 16 Okla. Cr. 549, 185 P. 332; Simpson v. State, 16 Okla. Cr. 533, 185 P. 116; Ralston v. State, 16 Okla. Cr. 634, 185 P. 831; Browning v. State, 31 Okla. Cr. 373, 239 P. 272; Ables v. State. 35 Okla. Cr. 26, 247 P. 423; Neff v. State, 39 Okla. Cr. 133, 264 P. 649.
“It is well settled that an information charging a felony need not allege that an accused has had a preliminary examination or has waived it. Wines v. State, 7 Okla. Cr. 450, 124 P. 466; Robbins v. State, 12 Okla. Cr. 294, 155 P. 491; Browning v. State, supra; Stamper v. State, 25 Okla. Cr. 324, 220 P. 67. The manner of challenging jurisdiction because no preliminary examination was had is by motion to quash or set aside the information. The applicable statutes are, sections 2937, 2940, 2941, 2942, Okla. St. 1931 [22 O.S. 1941 §§ 493, 496 —498]. See, also, Quinton v. State, 10 Okla. Cr. 520, 139 P. 705; Robbins v. State, supra.
“A preliminary examination may be waived before the committing magistrate or the preliminary examination, and the entire preliminary proceedings may be waived in the trial court and is waived by failure to file motion to quash or set aside as provided by the statute before entering a plea on the merits.”

The law of the case as fixed by the syllabus is as follows:

“A justice of the peace has no jurisdiction to hold his court as a magistrate, outside of the district for which he was elected or appointed, and any attempt to do so is a nullity.
“(a) The constitutional provision, article 2, § 17, that ‘no person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such examination.’ is for the benefit of an accused and which, by express terms of the Constitution, he may waive.
“(b) The fact that accused has had a preliminary examination need not be alleged in the information or shown affirmatively by the state, the law presumes that accused has had a preliminary examination or has waived it, and when accused relies upon the want of a preliminary examination, the proper practice is to raise the question by motion to quash or set aside, before pleading to the merits.
“(c) Objections to an information, based on the absence of any essential preliminary proceeding, should be made by proper motion or plea, before pleading to the merits.
“(d) A preliminary examination may be waived before the committing magistrate or the entire preliminary proceeding may be waived in the trial court and is waived by failure to file a motion to quash or set aside in apt time.”

In the case of Herren v. State, 72 Okla. Cr. 254, 115 P.2d 258, 259, it is held:

“The entire preliminary proceedings may be waived in the trial court and is waived by failure to file motion to quash or set aside as provided by the statute before entering a plea on the merits.
“After a plea of not guilty is entered upon arraignment in district court without filing a motion to quash the information, the question as to the failure to have a preliminary examination is waived and may not be raised by an objection to the introduction of evidence at the beginning of the trial.”

In the body of the opinion it is stated:

“The record is silent as to whether defendant was heard by counsel at the preliminary examination or whether he even had a preliminary hearing. When a record is silent as to certain proceedings had upon the trial, every presumption of law is in favor of the regularity of the proceedings; and in order for this presumption to be overcome, the contrary must affirmatively appear in the record. Killough v. State, 6 Okla. Cr. 311, 118 P. 620; Henry v. State, 10 Okla. Cr. 369, 136 P. 982, 52 L. R. A., N. S., 113.
“It is stated in 22 O.J.S., Criminal Law, § 589:
“ dn the absence of proof to the contrary, the proceedings of courts properly exercising criminal jurisdiction are presumed to be regular, and the mere failure of their records to show this, does not overcome the presumption. '* * *
“ dn the absence of a showing to the contrary, the law presumes that accused has had a preliminary examination or has waived it, that proceedings leading up to a commitment by a magistrate were regularly conducted, that the magistrate performed the duties imposed on him by law, and that such duties were performed by the magistrate in good faith.’ ”

There are many other cases holding to the same effect. We call particular attention to the case of Landon v. State, 81 Okla. Cr. 166 P.2d 781, in which it is held:

“The right to have a preliminary examination is for the benefit of the accused and proper proceeding to raise question of failure to have preliminary examination is by a motion to quash or set aside the information before entering a plea to the information.
“Where defendant voluntarily enters a plea to the information and goes to trial, he will be deemed to have waived any right he may have had to question the fact that he did not have a preliminary examination or that the criminal complaint filed before the justice of the peace was unverified or that it was verified by an incompetent witness.”

See, also, Ex parte Miller, 82 Okla. Cr. 315, 169 P.2d 574; Sheller v. State, 58 Okla. Cr. 204, 52 P.2d 105.

In Sparks v. State, 71 Okla. Cr. 430, 112 P.2d 434, it is held:

“Where one is charged in the district court by information, and desires to raise the question of not having had a preliminary examination, or question a defect in the transcript of the justice of the peace, this should be done by a plea in abatement, or by motion to quash the information.
“Where a defendant voluntarily enters a plea of guilty, or enters a plea of not guilty, and goes to trial, he will be deemed to have waived any right he may have had to question the fact that he did not have such preliminary examination or that the transcript filed by the justice of the peace in the district court is insufficient.”

In Muldrow v. State, 16 Okla. Cr. 549, 185 P. 332, this court said:

“If the defendant upon arraignment pleads to the merits and enters on the trial, he waives the right to a preliminary examination, or, if one was held, any irregularities therein.”

In Tucker v. State, 9 Okla. Cr. 587, 132 P. 825, 827, it is stated:

“Whether an examination has or has not been had or has been waived is a question of fact to be raised by defendant. If he claims that this constitutional right has been denied to him, he can and should do so when he is arraigned upon the information by filing a plea in abatement, or by a motion to quash or set aside the information.”

In the light of the above authorities, it is apparent that when petitioner entered his plea of guilty to the information upon his arraignment in the district court, he waived any right he might have had to question the fact that he did not have a preliminary examination.

The writ of habeas corpus is denied.

BAREFOOT J., concurs. DOYLE, J., not participating.


text:
    BERNICE TODD v. STATE.
    No. A-10580.
    Aug. 21, 1946.
    (172 P. 2d 345.)

      Bobt. W. Hoyland, of Guthrie, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Ewing C. Sadler, Asst. Atty. Gen., and Hugh Adams, Co. Atty., of Guthrie, for defendant in error.
   JONES, P. J.

The defendant, Bernice Todd, was charged in the district court of Logan county with the crime of rape in the first degree, was tried, convicted of assault with intent to commit rape, and was sentenced to serve two and a half years in the State Penitentiary, and has appealed.

The proof of the state shows that the prosecuting witness, Gloria Mae Mallatt, was 17 years of age and living at the farm home of her parents near Crescent when the offense was alleged to have been committed on October 24, 1943. She was alone in her house working about 3 o’clock in the afternoon. Her parents were both working in the field a quarter of a mile or more from their house. A brother-in-law of the defendant, Melvin Houck, was employed by Mr. "Mallatt to assist in the farm work. During the noon hour, the defendant came to the Mallatt farm and took Melvin Houck to the town of Crescent with him for the purpose of having Houck assist him in obtaining a farm for the defendant’s use the following year.

The testimony showed that these men returned to the Mallatt farm about 3 o’clock, and they had each been drinking. The parties working in the field were out of drinking water, and the defendant volunteered to go to the well in the north field to get some water for them. Instead of going to the well in the north field, the defendant took the water jug and went to the farm home where the prosecuting witness was doing some house work.

According to the testimony of the prosecutrix, the defendant made improper suggestions to her and she commenced to beg him to leave, that she walked out of the house and defendant followed her, that the defendant told her that her father wanted her to come over in the field and tried to get her to get in the car with him, but that she refused. That the defendant then got into his car and started the motor to leave, and she went back in the house and locked the front screen door and she heard defendant’s car leave. That she went back to the kitchen to continue her work, and in just a few minutes the defendant came to the back door, entered the house 'and started struggling with her. The prosecuting witness broke away from him and started screaming and running toward the front door, but was caught by defendant in the front room. That defendant overpowered her and threw her on the floor and choked her; that he tore her slacks from her, at which time she fainted. That when she revived, defendant was getting up off her. That just before she fainted, the defendant was attempting to have sexual intercourse with her. That her privates were hurting when she regained consciousness and she had a secretion on her. That the defendant then told her that if she ever told anyone what happened, he would get her if it was ten years later. That as quickly as the defendant left, she went to the field and reported to her father and mother, that her mother gave her a donche and put her to bed and called the doctor. She remained in bed for four days as she was sore all over, her back was hurt and she was very nervous.

She further testified that she had seen the defendant before and knew who he was, that the defendant had an odor of whisky about him and that she was scared of him.

The father and mother of the complaining witness corroborated the story of the complainant as to her physical condition and as to the fact that her slacks had been torn.

The doctor testified that his physical examination showed that she had bruises on her neck and legs and inflammation of the vulva, which indicated to him that there had been a penetration.

On his own behalf the defendant testified that when he and Melvin Houck went to town they purchased two pints of whisky and drank it; that he became drunk; that when he went to the farm home after water he saw the prosecutrix and was talking to her about an acquaintance of hers who was in the army at Enid. That she said, “I used to go with him,” and defendant said, “They tell me he is a going thing.” The prosecutrix replied, “Yes, he sure is.” That he said, “Well, I believe I might go a little. How about us going?” and she said, “Come on in the house.” That they went in the house and laid down by the door where they could see if any one approached. That they hugged and kissed for a while, but that when he attempted to have sexual intercourse with her he could not because he was too drunk. That he finally got up and she agreed to meet him in Crescent on Saturday. He denied tearing tlie prosecutrix’s slacks, but said that she voluntarily undressed herself.

The above summary of evidence shows that there is a sharp dispute between the prosecutrix and the defendant as to what occurred, but the evidence of the state, if believed by the jury, is sufficient to sustain the conviction.

As to the contention of defendant that he was denied a fair trial because of certain questions asked by the county attorney, the record discloses the following:

“Q. Mr. Mallatt, since this charge has been pending against Mr. Todd, charging him with raping your daughter, did he or anyone in his behalf make you a proposition to drop the case? By Mr. Hoyland: Objected to as incompetent, irrelevant and immaterial, not tending to prove or disprove anything in this case. By the Court: Sustained at this time. By Mr. Adams: Exception. * * Q. You made a proposition to Mr. Mallat, didn’t you? A. No, sir. Q. On behalf of Mr. Todd? A. No, sir. By Mr. Hoyland: Object to that as incompetent, irrelevant and immaterial. By the Court: Sustained. * * * Q. You were fined over in Kingfisher county for breach of the peace, weren’t you? A. No, sir, I was not. Q. On the 30th day of July, 1941? A. No, sir, I was not. Q. You have forgotten that, too, have you? A. No, sir, I haven’t forgotten it. I wasn’t fined. Q. You were arrested over there and put in jail on a bogus check charge? A. No, sir, I was not. By Mr. Hoyland: Objected to as improper, highly improper. By the Court: Sustained, gentlemen of the jury, you will not consider those questions and answers.”

No motion for mistrial on account of the alleged misconduct of the county attorney in asking the questions was ever made, and no further record pertaining to this assignment of error was made other than that above recited.

This court has many times held that absolute fairness must govern the trial and the prosecuting attorney should not ask known incompetent questions in the hearing of jury for the purpose of prejudicing the defendant in the eyes of the jury. Watson v. State, 7 Okla. Cr. 590, 124 P. 1101; Cline v. State, 57 Okla. Cr. 206, 47 P.2d 191; Hager v. State, 10 Okla. Cr. 9, 133 P. 263; Blackwell v. State, 82 Okla. Cr. 390, 171 P.2d 634.

The record above quoted shows that the trial court promptly sustained the objection of counsel for defendant and admonished the jury not to consider the questions and answers. In order to have properly preserved the record for presentation on appeal, counsel for defendant should have moved for a mistrial and saved his exception if the court denied the motion. The question now raised was not presented to the court by motion for mistrial-during the-course of the trial, nor was it incorporated in one of the assignments of error presented by the motion for new trial. Under such circumstances, and in view of the whole record, this assignment may not now be sustained.

In the petition in error attached to the case-made, counsel contends that the court erred in giving certain instructions. This assignment is not. argued in the brief. We have read all of the instructions which were given by the court. There are no exceptions saved to the giving of any of them and no request was made for the giving of any additional instructions. The instructions as given seem to fairly and clearly state the law as applicable to the evidence in the case, and we are unable to perceive any error in any of them.

It is next contended that the court erred in submitting the issue of assault with intent to commit rape for the reason that such crime is not an included offense under the charge of rape in the first degree by force. No authority is cited in the brief to support this contention.

22 O.S.1941 § 916 provides:

“The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.”

In Coffe v. State, 59 Okla. Cr. 121, 56 P. 2d 1194, it is held:

“In a prosecution for rape committed by force overcoming resistance, under the evidence it was the duty of the trial court to instruct the jury on the law of the included offense of assault with intent to commit rape.”

In the instant case there was abundant proof that the defendant was guilty of the included offense of assault with intent to commit rape, although he might not have been guilty of actual penetration.

An assault with intent to commit rape includes every element of the crime of rape with force overcoming resistance, except penetration. Fannin v. State, 65 Okla. Cr. 444, 88 P.2d 671.

In Kilpatrick v. State, 71 Okla. Cr. 129, 109 P.2d 516, the conviction of the defendant was reversed for failure of the trial court to submit the issue of assault with intent to commit rape in a prosecution for rape in the first degree by force overcoming the resistance of the prosecu-trix.

The instructions of the court should always be applicable to the evidence. Even under the evidence of the prosecutrix the jury could have concluded that the defendant did not actually commit the crime of rape because she stated that she fainted before the act was committed, and that when she revived, defendant was on his feet pulling up his clothes. It was brought out on cross-examination of the doctor that the tenderness and soreness in the private parts of the prosecutrix could have been caused by the' insertion of the hard rubber nozzle on the douche which was given to her by her mother after the alleged attack occurred.

A careful examination of the entire record shows that the defendant had a fair and impartial trial, and there are no substantial errors which would require a reversal of the judgment of conviction or a modification of the sentence imposed by the jury.

The judgment of the district court of Logan county is accordingly affirmed.

BAREFOOT, J., concurs. BOYLE, J., not participating.


author: DOYLE, J.

text:
    Ex parte TESSIE BRAY.
    No. A-10783.
    Aug. 21, 1946.
    (172 P. 2d 349.)

      Brown Moore and L J. York, both of Stillwater, for petitioner.
    Mac Q. Williamson, Atty. Gen., H. A. Holloman, Asst. Atty. Gen., and K. D. Greiner, Co. Atty., of Still-water, for respondent.
   DOYLE, J.

In this proceeding, Tessie Bray, by his attorneys, filed in this court August 13, 1946, a petition for writ of habeas corpus which, omitting title, reads as follows:

“Comes now Tessie Bray and respectfully shows the court that after being granted a preliminary hearing in the Justice Court of Stillwater, Oklahoma, he was held to the District Court of Payne County, Oklahoma and was charged with the crime of murder. That an information has been filed against him in said district court charging him with the crime of murder, and that he is held and confined in the County Jail at Stillwater, Oklahoma without bail; that he is not guilty of murder, and the evidence adduced against him at the preliminary hearing is insufficient to show or prove that he is guilty of murder. A transcription of the evidence taken at said hearing is attached hereto and made a part thereof.
“Your petititoner further shows the court that the deceased, on the date preceding the killing had made threats against him to the effect that he would kill him. On the day of the killing, one Isabel Pettis came to the room where the petitioner was sitting in Josie Melso’s cafe, and told him that the deceased and one Joe Yaughn were going to beat him up; that the deceased tried to assault your petitioner while in said cafe. That deceased left said cafe to go home, but told your petitioner to stay there until he returned; that deceased was angry, and your petitioner understood that the deceased meant to get a gun and come back and shoot your petitioner; that your petitioner walked out the east side of said cafe, and thence south a few steps where he met deceased again; that deceased made threats against your petitioner and started toward him; that your petitioner thought the deceased had a knife or some other instrument in his hand. That he pushed the deceased back with his left hand, and the deceased made a second lunge toward him. That your petitioner thought that his life was in imminent danger, and that he shot the deceased in self-defense.
“That your petitioner has never been convicted of any crime and has always been a peaceable and law-abiding citizen; that he served in the armed forces of the United States of America and had received an honorable discharge only two days before said killing. Thu affidavit of three witnesses and verification of your petitioner’s petition are attached hereto and made a part' hereof.
“That Henry W. Hoel, District Judge is out of the state on his vacation at this time; consequently he is; unable to present this application to said judge.
“Wherefore premises considered, your petitioner prays that he be granted a writ of habeas corpus and that bail be fixed at a reasonable amount.
“Brown Moore
“Hendrix Wolf.
“Attorneys for Petitioner.
“State of Oklahoma 1 } SS “County of Payne J
“Brown Moore, attorney for Tessie Bray, of lawful age, being duly sworn on oath deposes and says: That he is defendant above named, that he has read the foregoing and above petition, knows the contents thereof, and that the matters and things therein stated and alleged are true.
“Brown Moore
“Subscribed and sworn to Aug. 13, 1946.
“M. T. Lemons (Seal)
“Asst. Clerk.”

The alleged affidavits of Noble Williams, Gladys Jackson, and Ruby Brown, each subscribed and sworn to August 9, 1945, are in substance the same, to the effect that said affiants were on the 27th day of May, 1946, sitting on the front porch of 1115 North Central, about 6:30 in the evening, and saw Leonard Jackson coming out of Josie Kelso’s cafe. Each affiant states that she heard some one say, “Tell the black m.f. to stay here until I get back.”

“Leonard walked south around the first house south of Josie’s cafe and then walked east. I saw Tessie Bray going south behind the house and saw them meet on a little hill. They talked, but I could not hear what they were saying. Leonard Jackson started toward Tessie, and I saw Tessie take Ms left hand and push him back. Tessie stepped back, and Leonard took a step toward Tessie, and at that time Tessie shot him. I did not see the gnn at any time before the first shot was fired. After the first shot was fired, I ran into the house.”

By agreement of counsel for petitioner, the county attorney, K. D. Greiner, respondent, E. G. Schroeder, sheriff, both parties appeared on the same day and a hearing was had, and at that time it was ordered and adjudged that the writ be denied and bail refused.

Upon the hearing it was undisputed that Tessie Bray, the petitioner, did not testify in the examining trial, and there was no testimony offered in his behalf. It will be observed that the application was verified by Brown Moore, one of his counsel, wherein, he states that petitioner fired the fatal shot in his necessary self-defense.

Section 8 of article 2 of our Constitution declares:

“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.”

It was the contention on the part of the petitioner that he was entitled to bail upon the testimony taken upon his preliminary examination, for the reason that the proof is not evident, or the presumption great, that he is guilty of murder as charged in the information. This contention is without merit. The determination and conclusion of this court in this case is based upon a settled -rule of this court that upon application for bail by writ of habeas corpus, after commitment for a capital offense, by an examining magistrate, the burden is upon petitioner to show facts sufficient to entitle him to bail, when those facts do not appear from the evidence adduced on the part of the prosecution. Ex parte Johnson, 1 Okla. Cr. 414, 98 P. 461; In re Fraley, 3 Okla. Cr. 719, 109 P. 295, 139 Am.St.Rep. 988; Ex parte Dykes, 6 Okla. Cr. 162, 117 P. 724; Ex parte Looper, 12 Okla. Cr. 437, 158 P. 290.

In Ex parte Garvin, 18 Okla. Cr. 17, 192 P. 363, this court held:

“Upon an application for bail after commitment upon a charge of murder, on the ground that the proof of guilt is not evident, nor the presumption thereof great, and, upon a consideration of all the evidence offered, the court is of the opinion that it is insufficient to create a reasonable doubt of the petitioner’s guilt, bail will be refused.”

In the course of the opinion we said:

“We are not permitted to presume for the petitioner either justification or mitigation, merely because the evidence for the prosecution fails to show their absence. On the contrary, unless the evidence for the prosecution shows the presence of facts or circumstances tending to justify, excuse, or mitigate the offense, then the burden is upon the petitioner to make that showing by evidence at least sufficient to generate a reasonable doubt in that respect.”

Under Const, art. 2, sec. 8, supra, one accused of a capital offense may be admitted to bail after the information has been filed, prior to trial, if the proof of guilt is not evident or the presumption thereof great. Ex parte Lacy, 20 Okla. Cr. 440, 203 P. 1050.

The court should, however, proceed with extreme caution in exercising the power to admit to bail in this class of offenses. The filing of an information charging a capital offense, where the defendant has not been admitted to bail, is prima facie evidence- that the proof of guilt is evident and the presumption thereof great. Ex parte Andrews, 39 Okla. Cr. 359, 265 P. 144. And see In re Bean, 17 Okla. Cr. 576, 190 P. 1091; Ex parte Sipe, 22 Okla. Cr. 303, 210 P. 1039.

Upon a consideration of the undisputed facts as shown by the testimony on the part of the state, upon which the application for bail was submitted, and the argument of counsel, it was the opinion of the court that petitioner was not entitled to bail as a matter of legal right.

The rule generally approved by appellate courts is that, in denying an application for bail, neither the facts nor the law in such cases will ordinarily be discussed by the court, lest it prejudice the rights of the defendant on his final trial, and we shall adhere to it in this case.

We deem it sufficient to say that we find in the record before us that the petitioner is not entitled to bail. We do not know what may be shown upon the final trial.

For the reasons stated, the writ was refused and bail denied.

BAREFOOT, J., concurs.


author: BAREFOOT, J.

text:
    MOSE JOHNSON v. STATE.
    No. A-10696.
    Aug. 21, 1946.
    Writ of Certiorari Denied Oct. 28, 1946.
    See 67 S. Ct. 132.
    (172 P. 2d 337.)

      Geo. L. Hill and Paul Gotcher, both of McAlester, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Tom G. Haile, Co. Atty., of Mc« Alester, for defendant in error.
   BAREFOOT, J.

Defendant, Mose Johnson, was charged jointly with Stanley Steen in the district court, of Pittsburg county, with the crime of murder. A severance was taken, and the defendant Mose Johnson was tried, convicted and sentenced to death by electrocution, and has appealed.

This defendant and Stanley Steen were charged jointly in two cases; one for the murder of Pat Riley, a sergeant of the guard at the State Penitentiary, and the other for the murder of L. C. Smalley, an inmate of the Penitentiary.

Stanley Steen was tried for the murder of Pat Riley, was convictéd and sentenced to death. The appeal in his case was decided by this court on March 20, 1946. Steen v. State, 82 Okla. Cr. 141, 167 P.2d 375. He committed suicide while in the death cell at the State Penitentiary, awaiting execution.

This defendant was tried for the murder of Pat Riley and was convicted and sentenced to life imprisonment. He was then tried for the murder of L. C. Smalley, was convicted and sentenced to death by electrocution. This is the case now before this court.

The two killings occurred within the walls of the State Penitentiary at McAlester, and within a very few minutes of each other. A full and detailed statement of the facts is set out in the opinion in the Steen case, supra, and it is unnecessary to repeat them here.

The Governor of the State, on September 12, 1945, in compliance with 22 O.S.1941 § 1003, requested an advisory opinion of the Judges of this court. Thereafter, and on November 14, 1945, defendant filed his appeal in this court, and we entered an order staying his execution pending the appeal. Subsequent thereto, the case was set for oral argument and argued, and briefs have been filed for both the state and the defendant. It now becomes our duty to pass upon the appeal. It re Opinion of the Judges, 35 Okla. Cr. 39, 248 P. 350; Steen v. State, 82 Okla. Cr. 141, 167 P.2d 375.

Defendant in his brief states:

“In defendant’s motion for new trial in the lower court, several assignments of error are urged, but in defendant’s petition in error herein, defendant relies mainly for reversal or modification of the punishment herein upon the error of the court in:
“1. Admitting evidence of another crime than the one for which defendant was being tried, and failure to properly instruct the jury as to the purpose for which they might consider it.
“Instruction No. 10, quote:
“ ‘The court instructs you that you are not trying the defendant for the death of W. H. (Pat) Riley, but for the death of L. C. Smalley, and that the evidence pertaining to the death of W. H. (Pat) Riley, must not be considered by you unless it is part of the same transaction of the death of L. C. Smalley, or may show whether or not the defendant, Mose Johnson, was aiding and abetting one Stanley Steen in the death of the said L. C. Smalley.’
“And
“2. That the evidence and testimony of the State’s witnesses was not strong enough, nor clear enough to justify the jury in returning a verdict of guilty with the punishment set at death in the electric chair.”

This first assignment of error was fully considered in the Steen case, supra, and since the identical question was passed upon in that case, it becomes unnecessary to again review it. The evidence with reference to the killing of Riley was a part of the res gestae, and was clearly admissible for the reasons stated in the Steen case.

With reference to the sufficiency of the evidence to sustain the judgment and sentence of the death penalty, we refer to the facts stated in the Steen case. The contention that the evidence only showed that the “defendant Johnson struck the said Smalley with either his open hand or fist” is not borne out by the record. A careful reading of the testimony of the witness Raymond Anderson reveals that he was looking directly at defendant as “they got to the east door or in the canteen door and rushed on back where Smalley was. Mose walked in ahead of Stanley, and I didn’t see what he hit him with, anyway he hit him, and Stanley walked up and stabbed him with this dirk.”

“Q. When Mose hit Smalley, state what Smalley did. A. Smalley only fell. Q. Fell? A. Yes, sir. Q. When Mose hit him he went down? A. Yes, sir. Q. Could you state how many times you saw Mose strike him? A. Only saw him hit one lick.”

This witness then testified that Stanley Steen immediately walked up and stabbed Smalley twice. He also testified that as defendant and his codefendant Stanley Steen attempted to leave the canteen after the killing, that defendant was knocked down by a guard and he saw a claw hammer taken from the waist of defendant’s pants. This claw hammer was introduced in evidence and identified by the witness.

George Jones, who was also an eyewitness to the killing, corroborated in detail the testimony of the witness Anderson, as follows:

“Q. Now, just state to the court and jury what you saw take place there. A. Well, all I seen take place when I got around to the window there, this boy, Stanley Steen was stabbing Smalley, and Mose Johnson was standing up there by the side of him. ... Q. Was Smalley on the floor when you first saw him? A. Yes, sir. Q. What, if anything, did you see Steen have in his hand? A. Seen him with a dirk in his hand. Q. Did you see him stab him more than once? A. Oh, two or three times.”

(He then identified the dirk.)

“Q. You say that Mose Johnson was standing there by Stanley Steen? A. Yes, sir. Q. Did you see anything in his hand? A. I seen a hammer down by his side.”

He did not see the defendant strike Smalley. He was at first standing on the east side of the canteen but changed his position to the south side, from which point he observed the stabbing.

Doctor A. P. Davis, the prison physician, who examined the deceased Smalley just prior to his death, testified that in addition to the cuts and stabs on his body which caused his death, he had “four upper front teeth missing. Recent open sockets — that means recently knocked out.”

This evidence, together with the other facts and circumstances, was such as to justify the jury in reaching the conclusion that the deceased was struck by defendant with the hammer prior to his being stabbed by Stanley Steen.

We find nothing in this record that would justify this court in setting aside or modifying the judgment and sentence rendered. The facts presented a premeditated design on the part of defendant and his codefendant Steen to murder the deceased, and it was carried out in a manner that revealed its planned execution.

Defendant was given a fair and impartial trial, and for the reasons above stated, the judgment and sentence of the district court of Pittsburg county is affirmed.

The original time assigned for the execution of the judgment and sentence having expired, owing to the pendency of this appeal, it is considered, ordered and adjudged that the judgment and sentence of the district court of Pittsburg county be carried out by the electrocution of this defendant on the first day of November, 19á6.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    THAD RINER v. STATE.
    No. A-10615.

      Aug. 28, 1946.
    (172 P. 2d 345.)

      Herbert K7 Hyde and Lee Williams, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Warren H. Edwards, Co. Atty., of Oklahoma City, for defendant in error.
   JONES, P. J.

The defendant, Thad Riner, was charged in the common pleas court of Oklahoma county with the offense of contributing to the delinquency of a minor; was tried, convicted, and sentenced to serve six months in the county jail and pay a fine of $200 and has appealed.

The case was set for oral argument on April 17, 1946, but no counsel appeared to argue the cause on behalf of defendant, and no brief has been filed.

In conformity with rule 9 of the rules of procedure of the Criminal Court of Appeals and the uniform decisions of the court, where no appearance for argument is made and no briefs are filed, the court will examine the record and if no fundamental error appears will affirm the judgment.

We have examined the record and find that the evidence is sufficient to sustain the conviction of the defendant on the charge alleged against him. The evidence of the 15 year old prosecuting witness, corroborated by the policemen who saw the juvenile in the alley with the defendant, is sufficient, if believed by the jury, to support a conviction. We have found no fundamental error in the record.

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

BABEFOOT, J., concurs. DOYLE, J., not participating.


text:
    Ex parte A. D. DAVIS.
    No. A-10719.
    Aug. 28, 1946.
    (172 P. 2d 340.)

      J. S. Montgomery, for petitioner.
    A. 0. Harrison, City Atty., of Bartlesville, for respondent.
   BAREFOOT, J.

Petitioner, A. D. Davis, has filed in this court his petition for writ of habeas corpus, alleging that he is unlawfully deprived of his liberty by L. W. Turner, chief of police of the city of Bartlesville, and seeking his release from the city jail.

As a cause for his restraint, petitioner alleges that he is charged with a violation of a city ordinance of the city of Bartlesville, which is as follows:

“Ordinance No. 1348.
“An ordinance levying a license tax on photographers and/or photographer’s agents, who solicit orders for photographs or sell coupons from house to house within the City, fixing the amount of said tax, providing penalties for the violation thereof, and declaring an emergency.
“Be it ordained by the Board of Commissioners of the City of Bartlesville, Oklahoma:
“Section 1. There is hereby levied upon every photographer and/or photographer’s agent, who solicits orders for photographs or sells coupons from house to house within the city, a license tax of $2.50 per day or $15.00 per week or $30.00 per month, for each such agent.
“Section 2. No person shall solicit orders for photographs or sell coupons therefor within the city without first having obtained a license therefor. Application for said license shall be made in writing to the City Clerk, and state the name and business address of the applicant, stating whether a person, co-partnership or corporation, with the names of the principal officers, where a corporation, and the names of the members, where a co-partnership.
“Section 3. Any person violating the terms of this Ordinance by soliciting orders for photographs or the selling of coupons without a license therefor shall be guilty of a misdemeanor, and shall be punished, on conviction, of a fine not exceeding $20.00. Each day said photographer and/or photographer’s agent shall so operate shall constitute a separate offense.
“Section 4. For the preservation of the public health, peace and safety, an emergency is hereby declared to exist, by reason whereof this ordinance shall be in full force and effect from and after its passage and approval, as required by law.
“Passed and approved this 2nd day of July, 1945.”

It is contended by petitioner that said ordinance is illegal and unenforceable for the following reasons:

“1. Is violative of the Constitution of the State of Oklahoma, and particularly art. 2, section 2 thereof; art. 2, section 7 thereof; art. 2, section 32 thereof.
“2. Is violative of the Constitution of the United States of America and particularly art. 4, section 2 thereof, and the Fourteenth Amendment to the Constitution of the United States.
“3. The Ordinance is unreasonable, unjust and oppressive and is not an exercise of the proper police power of the City of Bartlesville, Oklahoma.
“The said Ordinance deprives the petitioner to his inherent right to the enjoyment of the gains of his own industry and it deprives the petitioner of liberty without due process of law and that the Ordinance creates a monopoly in favor of the citizens of Bartlesville, Oklahoma, to the exclusion of this plaintiff; it abridges the privileges and immunities of the plaintiff as a citizen of the United States and further it is discriminatory and makes a classification of the method of business and the location of business that is abhorent to both State and Federal Constitution.”

Upon the filing of the above petition, a rule to show cause was issued, and a response filed by the Chief of Police of the city of Bartlesville. A certified copy of the ordinance above quoted is attached to the response as the basis for the detention of petitioner.

When the rule to show cause was heard in this court, petitioner introduced in evidence oral testimony, and other evidence. No evidence was offered by the respondent, but the contention is made that the evidence and record sustain the constitutionality and validity of the ordinance under the law.

Petitioner was 17 years of age. He was employed by O. E. Barrineau of the National Studios of Oklahoma City with a number of others to go into different cities in the state for the purpose of selling coupon orders for pictures. The plan for this operation as revealed by the record was for these salesmen to be taken by the manager to the city where they were to work that particular day. They then went from house to house with what was denominated “appointment blanks.” They sold these in the residence and business sections. They received $1 for each coupon, and this entitled the party purchasing the same to have an appointment at a later date with the photographer of the National Studios. At the time the picture was taken, an additional payment of $1 was made. The negative was sent to the National Studios in Oklahoma City, where it was developed and printed, and then delivered to the party holding the coupon. Petitioner and others soliciting the original orders received as their full compensation the $1 paid at the time of the original transaction. From this sum they paid their own personal expenses, including food and lodging.

The salesmanager of National Studios, C. F. Ray, testified fully as to the manner of the operation of the business, the training, instruction, and profits to be derived by the company and the compensation to be paid to the solicitors; and as to the license fee paid by the Studios in. Bartlesville, and in other cities of Oklahoma and Kansas of comparable size to Bartlesville, and in that trade territory. He testified that in his opinion the payment of $2.50 per day for each of the six solicitors working in the city of Bartlesville was exorbitant, and that the company could not afford to pay that amount. That to do so would not only prevent the company from making a profit, but would show a loss.

The testimony of the petitioner, Mr. Davis, was that he sold an average of ten coupons per day at $1 each, and that an adult experienced salesman could sell an average of 17 coupons a day. Mr. Ray, the salesmanager of the company, testified that the average salesman could make $8 per day. It is presumed that by this testimony he meant that amount above his expenses. This would be less than petitioner Davis testified could be made by an experienced adult solicitor. O. E. Barrineau, of tbe National Studios, testified that in bis opinion a reasonable license fee to be paid by tbe company would be $5 per day for a crew of six.

There is no question bere as to tbe validity of tbe ordinance in question, nor tbe right of tbe city council to pass tbe same.

In tbe recent case of Ex parte Davis, 72 Okla. Cr. 152, 114 P.2d 186, this court bad an occasion to fully discuss an ordinance passed by tbe city of Edmond very similar to tbe one bere involved, and as the same applied to a party who was selling photographic coupons, as in tbe instant case. It may be noted that tbe evidence in the Davis case, supra, revealed that petitioner’s income from selling coupons was from $2.50 to $3 per day, and that tbe license fee was $5 per day. Tbe ordinance involved in that case, as construed by tbe officers, did not apply to citizens of the city of Edmond who were operating a merchandise store in the city, but only to those who resided out of tbe city. These facts are not comparable to tbe instant case. Tbe court, in tbe Davis case, supra, comes to tbe conclusion that tbe ordinance there in question was a revenue raising measure; and in keeping with tbe bold-ing of tbe court in that case, tbe ordinance bere involved is also a revenue raising measure, as distinguished from a regulatory ordinance.

Tbe court in tbe Davis case, supra, pointed out that prior to amendment by tbe Legislature of 1935, S.L.1935, p. 136, § 1, Tit. 11 O.S.1941 § 651, municipal corporations had no legislative grant of power authorizing a tax on “photographers, photographers’ agents, agents of all kinds and solicitors.”

The general rule of law is that the burden is on one who attacks an ordinance, valid on its face and enacted under lawful authority, to show its invalidity. This general rule is announced in 33 Am. Jur. 368, as follows:

“Sec. 46. If the Legislature has the legal right to impose a license tax the amount of the imposition is a matter within its discretion; and this discretionary authority may be conferred on administrative boards or officials or on municipal authorities. In this respect, therefore, it is the general rule that whether the license is required as a police regulation or as a revenue measure, the courts will not review the action of the lawmakers or licensing authorities unless an abuse of discretion is obvious, and persons attacking the validity of an enactment imposing license fees have the burden of proof to show that the fees are excessive for the purposes declared in the enactment. Under the power to regulate, the presumption is, unless the contrary appears, that the fee is reasonable; and this is almost the equivalent of saying that in the exercise of the power to regulate, a considerable latitude will be allowed for the exercise of legislative discretion over the subject, or for an approximation of the cost of regulation and supervision. Furthermore, the courts will not interfere with the legislative determination of the method by which the amount of a license tax is arrived at, so long as it is not unreasonably discriminatory; and the action of the state government in this matter is not the subject of judicial inquiry in a Federal tribunal.”

And in 38 Am. Jur. 37:

“Sec. 348. In assessing a regulatory license fee or fixing the amount thereof, the municipal council or other legislative authority is accorded a wide discretion, which will not be interfered with unless its action is plainly unreasonable. Courts reluctantly interfere, and only where it is clear that there has been an abuse of discretion, where the lawmaking body of a municipality has exercised its discretion as to the amount and reasonableness of a license fee, and will not declare such fee unreasonable unless it is manifestly and palpably so. A license fee charged by a city is prima facie reasonable; if the subject matter is within the power of the municipality to regulate the license regulation will be sustained unless its unreasonableness appears on the face of the ordinance or is established by extrinsic evidence, and the burden is upon one who challenges the ordinance imposing it to establish its unreasonableness and invalidity.”

McQuillan, in his work on Municipal Corporations, says:

“Reasonableness of amount of license. Where the exaction is imposed under the power to regulate or in the exercise of the police power, as distinguished from the power to tax for revenue, as heretofore explained, the general rule obtains that the sum levied cannot be excessive nor more than reasonably necessary to cover the costs of granting the license and of exercising proper police regulation. The nature of the business sought to be controlled and the necessity and character of police regulations are the dominating elements in determining the reasonableness of the sum to be imposed. What would be fair and reasonable in one kind of business might well be considered unfair and unreasonable in another kind. This difference is fully recognized by the judicial decisions, and has been made the basis for close distinctions.
“The judicial view is that much should be left to the discretion of the municipal authorities. Where under undoubted character power, the tax is imposed for revenue alone, or for police regulation and revenue,, the amount thereof is usually a matter for determination by the legislative branch of the municipal government. Ordinarily the courts will decline to interfere on the ground that the amount is oppressive or unreasonably large. They incline to defer to the judgment and discretion of the corporate authorities, and frequently presume that the amount demanded is reasonable, particularly in tbe absence of evidence to the contrary.
“Ordinances imposing license taxes under the power to regulate are prima facie valid, and the unreasonableness of the exactions must be made clearly to appear, and they must be obviously and largely beyond wliat is needed for the purpose intended, before such legislation will be declared void. The fact that the exaction may result in producing a revenue in excess of that required for regulation, does not in itself destroy the regulatory character of a police measure.”

Applying the law to the facts in the instant case, we have come to the conclusion that the burden required of petitioner in the instant case has not been met. The evidence of the petitioner reveals that he was making $10 per day and that the company paid his traveling expenses. That an adult experienced salesman could sell an average of 17 coupons in a day. The evidence of Mr. Ray, a sales manager of the company, was that an average salesman could make $8 per day. This proceeding is based upon the individual petitioner, and not upon the profit or loss to the company for which he is working. The evidence is not full and complete as to the number of solicitors it is necessary to work in each city or town where the business is carried on. Nor as to the number of days required to cover a city the size of Bartlesville. As above stated, the license fee provided by the ordinance is $2.50 per day for one individual, or $15 per week. It might be that by working fewer solicitors, and paying the weekly license fee provided by the ordinance, the company would show a profit.

We have examined many authorities and from such examination the amount charged under the ordinance in question does not seem unreasonable, and especially to the extent of justifying our holding it invalid, under the evidence presented in this case. Note, 39 A.L.R. 1385; In re White, 43 Minn. 250, 45 N.W. 232; City of Duluth v. Krupp, 46 Minn. 435, 49 N.W. 235; O’Harra, City Attorney, v. Collier, J. P., 173 Mich. 611, 139 N.W. 870, Ann.Cas. 1914D, 936; City of Lebanon v. Zanditon, 75 Kan. 273, 89 P. 10; Higgins v. Lacroix, 119 Minn. 145, 137 N.W. 417, 41 L.R.A., N.S., 737; Wiggins Perry Co. v. City of East St. Louis, 107 U.S. 365, 2 S.Ct. 257, 27 L.Ed. 419.

For the reasons above stated, the petition for habeas corpus is denied.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    CARL SWEDEN v. STATE.
    No. A-10592.
    Aug. 28, 1946.
    (172 P. 2d 432.)

      William Jones, of McAlester, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Carl Sweden, was charged in the district court of Pittsburg county with escaping from the State Penitentiary; a jury was waived, the defendant was tried, convicted and sentenced to serve the minimum term of two years in the State Penitentiary and has appealed.

At the time of the arraignment of defendant, he was without counsel and the district court appointed his present counsel to represent him.

The record discloses that the hearing before the district judge was very informal. Much of the evidence consists in statements by counsel admitting certain facts in lieu of the state being required to introduce evidence to prove such facts. The contention of counsel for defendant during the trial can best be shown by the statement of his counsel as follows:

Mr. Jones: “I agreed that he left the institution and was away, and was brought back, but his defense is that he was a trusty, and was not an escaped prisoner.”

The contention of counsel that the defendant could not be prosecuted as an escaped prisoner because he is a trusty cannot be sustained in view of the statute which provides:

“Any prisoner in either the State Penitentiary or State Reformatory sentenced thereto who escapes from such prison, either while confined therein, or while permitted to be at large as a trusty, is punishable by imprisonment in such prison for a term not less than two (2) years or more than seven (7) years, to commence from the expiration of the original term of his imprisonment.” 21 O.S.1941 § 443.

Counsel contends in their brief that no venue was proved. The only witness who was sworn to testify was the record clerk at the State Penitentiary, and only very few questions were asked him. His evidence showed that the defendant was received at the Oklahoma State Penitentiary on April 2, 1939, and that while he was a trusty on August 3, 1941, he left the institution. When counsel for the state attempted to question the witness in connection with the alleged escape, the record discloses that counsel for defendant objected for the reason that the fact was not in the personal knowledge of the witness. A colloquy then occurred between counsel for defendant and the court during which counsel for defendant and the defendant himself made certain admissions concerning the alleged escape. The defendant interrupted to speak four or five times and stated that he was at a hayfield when he left, and that he was found near Evansville, Indiana and brought back to the penitentiary. After certain admissions had been made by counsel for defendant and the defendant, the trial court stated:

“You state that you agree that he left the hayfield as an inmate and was a trusty, and without permission of the officials, he left and was apprehended in Indiana and brought back. Mr. Jones: That would be it.”

No further proof was offered by either side after this statement by the court.

It is true that there is no direct testimony that the hayfield where the defendant was working as a trusty at the time of his escape was in Pittsburg county, but, as we view the record, even though he was temporarily out of the penitentiary as a trusty working in Pittsburg county, or any other county, he was still constructively an inmate of the State Penitentiary at McAlester in Pittsburg county, and any escape while thus an inmate should be prosecuted in Pittsburg county.

This court has had occasion to learn something of the rules of conduct governing the prisoners at the State Penitentiary. Those who are trusties are given a large amount of liberty, and in many instances they are sent on errands to adjoining counties. Some of them have even delivered furniture made at the State Penitentiary to the State Capitol in recent months. All of these trusties were inmates of the State Penitentiary regardless of where they might be sent to work. They were constructively in the custody of the warden of- the State Penitentiary from the time of their reception at that institution until they receive their discharge by serving their term or as a result of the granting to them of executive clemency.

The witness Choat testified that he was record clerk of the Oklahoma State Penitentiary. The exhibits which he identified and which were admitted in evidence were the judgment and sentence and commitment of the defendant to the Oklahoma State Penitentiary at McAlester. This court will take judicial notice that the Oklahoma State Penitentiary is located at McAlester.

The defendant further contends that there is a variance between the allegations of the criminal complaint and the information filed in the district court. This contention is based upon the fact that the preliminary complaint charged specifically that the defendant escaped from the State Penitentiary on August 3, 1941. In the body of the information, a typographical error describes the date as the 3rd day of August, 1940, and in another place.in the said information referred to the 3rd day of March, 1940. However, at the beginning of the information it is recited:

“Carl Sweden did, in Pittsburg County and State of Oklahoma, on or about the 3rd day of August in the year of our Lord, one thousand nineteen hundred and forty-one, and anterior to the presentment hereof, then and there unlawfully, willfully, and feloniously commit the crime of escaping from a state prison in the manner and form as follows, to wit: * * *

Carelessness in the preparation of the information led to the typographical errors which are relied upon by counsel for defendant to sustain his plea that there is a material variance. The information was not attacked at the time of the arraignment of the accused. The proper procedure to have followed, if counsel for defendant was of the opinion that there was a material variance between the allegations of the preliminary complaint and the information, was to present a motion to quash the information on the ground that there was a material variance from the allegations of the preliminary complaint. No such motion to quash was ever presented. We think it is so clearly apparent that the dates typed into the body of the information are typographical errors that the defendant was certainly not misled or confused in the preparation of his defense. The proof at the trial showed that the defendant escaped from the prison on August 3, 1941.’ Counsel for defendant demurred to the evidence introduced by the state, but did not ask for the discharge of the defendant on the grounds that there was a variance between the allegations of the information and the proof.

We are quite sure that if the erroneous mistakes in the body of the information had been cabed to the trial court’s attention by proper pleading upon arraignment, the county attorney would have been directed to have amended the information to have conformed to the true date of the alleged escape as set forth in the heading to the information, and which was clearly set forth in the preliminary complaint.

It has been held that a variance is not material unless it misleads the accused in preparing his defense or exposes him to double jeopardy. Tiger v. State, 54 Okla. Cr. 202, 16 P.2d 889; Herren v. State, 72 Okla. Cr. 254, 115 P.2d 258.

This court does not approve of the handling of criminal cases in the manner in which this case was presented. However, the fault lay as much in the hands of counsel for defendant as with the county attorney or the court. The county attorney should bear in mind, however, that the burden is upon the state to prove the guilt of defendant beyond a reasonable doubt, and this includes the proving of venue and all other essentials necessary to show jurisdiction and sustain a judgment of conviction. We find there is sufficient evidence, circumstantial or direct, in the record to show that the defendant did escape from the State Penitentiary on August 3, 1941, and was later recaptured at Evansville, Indiana, which, after all, was the gist of the offense.

Counsel for defendant at the time of the trial interposed only one defense, and that, was that since the accused was a trusty and not confined within the walls of the penitentiary, that he could not be prosecuted for his alleged escape. In view of the statute hereinabove cited, this contention was correctly overruled. The judgment of the district court of Pittsburg county is affirmed.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    HENRY SAULSBURY v. STATE.
    No. A-10586.
    Sept. 4, 1946.
    (172 P. 2d 440.)

      Robert Burns, of Oklahoma City, for plaintiff in error.
    Rande.ll S. Cobb, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for defendant in error.
   BAREFOOT, J.

It was charged that the defendant shot and killed one Jack B. Bradshaw, at the Bomber Inn, a beer and dance tavern, in Tulsa county, on the night of March 3, 1944.

For a reversal of this case, the first assignment of error is:

“The trial court erred in giving instruction No. 9 for the reason that it shifted the burden required of the state to the shoulders of the defendant to establish his plea of self defense or justification for the homicide.”

The instruction complained of was as follows:

“You are instructed that upon a trial for murder where the commission of the homicide by the defendant is proven beyond a reasonable doubt, the burden of proving circumstances of mitigation or that justify the homicide devolves upon the defendant, unless the proof on the part of the prosecution amounts only to manslaughter or that the defendant was justified; but where such burden of proving circumstances that mitigate or justify the homicide devolves upon the defendant under this instruction, you are instructed that the amount of evidence necessary for that purpose is fixed by law as being such as is sufficient to create in your minds a reasonable doubt upon this issue, and if the evidence offered by the defendant to mitigate or justify the homicide where it is the duty of the defendant to do so under these instructions is strong enough to create in your minds a reasonable doubt as to his guilt of the crime charged in the information then it would be your duty to acquit him.”

In attempting to support this contention, the defendant in his brief says:

“We believe that the general rule as laid down by this court and all others of which we have any knowledge is clearly and correctly expressed in [Criminal Law] section 566, page 881, 22 C.J.S., as follows:
“ ‘Subject to the exceptions appearing 'in the sections 571-578 infra, and except in so far as a statute establishes a different rule, the burden in a criminal case, whether for misdemeanor or felony, is on the prosecution to establish the guilt of the accused, beyond a reasonable doubt, that is, to prove every essential element of the crime charged, every fact and circumstance essential to the guilt of the accused, as though the whole issue rested on it.
“ ‘Subject to the exceptions referred to above this burden rests on the prosecution at every stage of the trial and never shifts, not even when the prosecution has established a prima facie case.’ ”

It will be noted that the text recognizes certain exceptions to the general rule announced, especially where a statute establishes a different rule. We have such a statute in Oklahoma. Tit. 22 O.S. 1941 § 745 is as follows:

“Upon a trial for murder, the commission of the homicide by the defendant being proven, the burden of proving circumstances of mitigation or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.”

Tt will be observed that the first part of instruction No. 9 is exactly in keeping with the above statute, and closely follows the wording thereof. The latter part of the instruction is the application of the law announced in the section as construed by this court in many prior decisions. Dorris v. State, 27 Okla. Cr. 208, 226 P. 590; Boswell v. State, 8 Okla. Cr. 152, 126 P. 826; Lumpkin v. State, 5 Okla. Cr. 488, 115 P. 478; Hawkins v. United States, 3 Okla. Cr. 651, 108 P. 561; Patton v. State, 55 Okla. Cr. 92, 25 P.2d 74; Culpepper v. State, 4 Okla. Cr. 103, 111 P. 679, 31 L.R.A.,N.S., 1166, 140 Am.St.Rep. 668. See, also, People v. Milner, 122 Cal. 171, 54 P. 833, and People v. Matthai, 135 Cal. 442, 67 P. 694.

In the case of Hawkins v. United States, supra [3 Okla. Cr. 651, 108 P. 566], Judge Richardson, in construing the above statute and speaking for this court, said:

“To make a prima facie case of murder under this statute the prosecution is required to prove only two facts; namely, the death of the deceased, and the fact that he was killed by the defendant. If each of these facts is proved beyond a reasonable doubt, and without disclosing facts sufficient to raise a reasonable doubt as to whether the homicide was only manslaughter or as to whether it was justifiable or excusable, then prima facie the defendant is proved guilty of murder. Thereupon the burden of proof shifts to the defendant; and to discharge it he must produce evidence sufficient in quality and quantity to raise a reasonable doubt, either as to the degree of the homicide, or as to whether he was justifiable or excusable, failing in which a conviction for murder is warranted. If, however, the defendant does produce evidence sufficient to raise such reasonable doubt, then the burden returns to the prosecution, and to warrant a conviction for murder it must overcome such doubt thus engendered by proof beyond a reasonable doubt of the existence of each essential element of the crime.”

A very full and complete review of the terms of this statute appears in the case of Culpepper v. State, supra, and in which the cases from California, the state from which this statute was adopted, are reviewed and instructions similar to the instruction here involved were upheld. We refrain from quoting from these cases, but they are directly in point as to the issue here involved. ,

We are, therefore, of the opinion that the court did not err in giving instruction No. 9, and that it did not place the burden of proof upon the defendant greater than the statute provided.

Defendant’s second assignment of error is:

“The trial court erred in permitting the county attorney to make improper statements not supported by the record over the objections of counsel for the defendant.”

The record in this case contains the entire argument of the assistant county attorney, counsel for defendant, and the closing argument by the county attorney. We have carefully read these arguments, and have found nothing therein that would justify a reversal of this case. The statement of the county attorney with reference to the arrest and conviction of defendant in Kansas City was denied by defendant, but defendant admitted that he had remained in jail in Kansas City for a period of five months; and the record in the case of this same defendant (Salisbury v. State, 80 Okla. Cr. 13, 156 P.2d 149, decided by this court on February 14, 1946) reveals that this defendant was convicted in Kansas City, Mo., and served a sentence on the identical charge to which reference was made by the county attorney.

It is next contended that:

“The punishment inflicted by the verdict of the jury was excessive and not justified by the evidence.”

The record here reveals that on March 3, 1944, about 8:3Q in the evening, Jack B. Bradshaw, age 22 years, and J. L. Beard age 21 and Dean Beard age 18, who were nephews of Bradshaw, went to the Bomber Inn, a beer and dance tavern, in Tulsa. On the way they stopped at a beer tavern and drank some beer, and had purchased a pint of whisky which they took to the Bomber Inn. The defendant was at the Bomber Inn when they arrived, but none of them knew him, and the defendant did not know any of them.

While at the Inn, the Beard boys and Bradshaw became noisy, and were told by the manager that they were not allowed to drink there, and asked to leave. Dean Beard went to the restroom, and J. L. Beard and Jack Bradshaw started to the door. The evidence is conflicting as to just what happened, and the manner of their exit, but it is pretty well established that J. L. Beard went out of the door first, the defendant was second, and the deceased Jack Bradshaw was third; and that Dean Beard reached the door about the time the shooting started.

J. L. Beard testified that after he was out of the building, he looked around for his uncle, and saw the defendant walking between them. That defendant immediately pulled a gun, and witness grabbed him, and, “the gun exploded right in my face,” but it did not hit him. The witness released the defendant and ran into a field northwest of the Inn, and as he ran, he heard two more shots fired. His uncle and the defendant ran around to the rear of the Inn, and when witness looked back he saw the defendant bending over Bradshaw, hitting him with his gun, and heard his uncle say: “Please do not shoot me any more.” The defendant left the scene, and the witness went to his uncle, and he and his brother placed him in their truck and left.- They drove about one block, and stopped at an ice cream parlor and called an ambulance, and Bradshaw was taken to a hospital. His testimony was corroborated by his brother, Dean Beard.

The evidence reveals that Bradshaw died about three or four hours after reaching the hospital, as a result of the gunshot wound.

There is some uncertainty as to just why this shooting occurred, but if the testimony of the witnesses J. L. Beard and Dean Beard is true, the defendant was guilty of murder.

It was the contention of the defendant that J. L. Beard had invited him outside to take a drink; that he had a large sum of money on his person which had been seen by the three boys when he paid for beer in the tavern; that when they got on the outside they went to the side of the building and he started to take a drink of the whisky, then refused it, and when he did, the deceased pulled a gun on him and told J. L. Beard to take his money. He admitted firing the three shots, but thought his life was being threatened.

No firearms of any kind were found on or near deceased, and no shots were fired by him. The pistol used by defendant was retained by him, and was not produced at the trial. Defendant’s explanation as to why he was carrying the gun on the night of the difficulty was, to say the least, unsatisfactory.

The jury assessed the punishment in this case, and there is nothing in the record that would justify this court in modifying the judgment and sentence, especially in view of the records of this court, which reveal that this same defendant had on appeal to this court a case in which he had been convicted of robbery with firearms after former conviction of a felony, and sentenced to serve a term of ten years in the State Penitentiary. Salisbury v. State, 80 Okla. Cr. 13, 156 P.2d 149, 152. In that case it is stated:

“As a part of'the state’s case, counsel for defendant stipulated that defendant had been convicted in Oklahoma City of the crime of grand larceny in 1934, as alleged in the information. In addition to this conviction, the defendant admitted in cross-examination that he had been convicted of felonious assault in Kansas City, Mo., and had been convicted of grand larceny in Texas.”

At the time of the oral argument of this case, attention was called to certain remarks of the trial court in which he stated that he was running the court and that he was not going to permit anyone to tell him how to run it, and to the application filed by defendant to disqualify the court in this case after he made such remarks.

The record reveals that any remarks made by the court were made before the jury was impaneled in this case, and at a time when the court was considering the question of setting aside a bond given by the defendant. This occurred at a hearing before the court on Monday, June 12th, and at that time the case was continued until June 15th, at which time the jury was impaneled and the trial begun. On that date a written motion was filed to disqualify the trial judge and an affidavit of the attorney for defendant was attached thereto, setting forth the statement of the court made on June 12th, and stating therein:

“That at the time the said proceedings were had, all the available jurors then in attendance at the district court of Tulsa county, Oklahoma, were in the court room of the said judge for the purpose of being called as jurors in the case referred to in the motion or application attached hereto. And, that said jurors heard or should have heard all the statements made by the Honorable S. J. Clendinning presiding, all of which statements are more fully set out in ‘Exhibit A’ set out in the said motion.”

This motion was overruled by the court and the case proceeded to trial on that date.

Counsel in their brief recognize the rule that this was a matter largely within the discretion of the trial court. From an examination of the record, we do not find that in overruling this motion the court abused this discretion. There was nothing to indicate that the defendant failed to receive a fair and impartial trial. The remarks were made to counsel for defendant three days prior to. the impaneling of the jury, and although the affidavit attached to the motion states that some of the regular jurors were in the courtroom at the time the remarks were made, it cannot be found, in the absence of proof, that defendant was prejudiced by the remarks. Counsel had the right to, and no doubt did, question the jurors with reference to whether they heard the statement made by the court, and as to whether or not they were prejudiced thereby. If any prejudice appeared, he had the right to challenge the juror so prejudiced.

It may be stated that counsel who appear for defendant in this court did not participate in the trial of this case, and they have filed a strong brief in his behalf.

For the reasons herein stated, the judgment of the district court of Tulsa county is affirmed.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    CARL HUGHES v. STATE.
    No. A-10587.
    Sept. 4, 1946.
    (172 P. 2d 435.)

      A. E. Pearson and Warren H. Edwards, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Ewing C. Sadler, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Carl Hughes, was charged in the court of common pleas of Oklahoma county with the offense of unlawful possession of intoxicating liquor, was tried, convicted, sentenced to serve 30 days in jail and pay a fine of $50, and he appealed.

At the time the case was called for trial, counsel for defendant filed a motion to suppress the evidence on the ground that the search warrant under which the whisky involved in the prosecution was seized did not clearly describe the premises of the defendant which were searched by the officers. Evidence was introduced by the defendant and by the state at the hearing on the motion to suppress evidence.

The description in the search warrant reads: “A one-story frame dwelling house and all out buildings located at 234 N. W. 62nd Street, being near the S. E. Corner of N. Harvey Street, and 62nd Street, adjacent to Oklahoma City, in Oklahoma County, Oklahoma.” In addition to this description, the warrant alleged the premises were occupied by Carl Hughes.

The defendant testified that 21 quarts and 55 pints of intoxicating liquor seized by the officers on August 3, 1944, and 21 four-fifths bottles and 31 pints of liquor seized by the officers on September 24, 1944, belonged to him and were taken in a search of his house in his presence. He testified that the correct legal description of his premises was 236 N. W. Ashland Boulevard; and his house did not have a number on it, but that there were some vacant lots between his house and the corner, and that if the house was numbered according to the way they are generally numbered in Oklahoma City it would have number 236. He further admitted on cross-examination there was no other house in that block. He further stated on cross-examination, that the street he lived on was one block south of the main thoroughfare known as 63rd street, and that the street he lived on was commonly known as 62nd street; that 62nd street and Ashland street were the same streets, and that Harvey street ran north and south on the west side of the block in which he lives.

E. D. Hill, an engineer, testified that he had formerly been county surveyor of Oklahoma county, and as such was familiar with the plats and locations of the streets in Oklahoma county. He further testified that the defendant lived near the junction of Ashland and Harvey streets, and that if the house had been numbered it should be 236 or 238 Ashland Boulevard. On cross-examination he testified that the defendant’s house was one block south of 63rd street and the second pair of lots east of Harvey street on Ashland Boulevard and was the only bouse in the block on the south side of the street. He further testified that if he was directing a person to the defendant’s house he would tell them to go to 63rd street and then one block south on Harvey street and go to the house on the south side of the street east of Harvey.

The trial court then asked the witness Hill this question: “If I were to tell you, Mr. Hill, I want to go up to a house located on the southeast corner of 62nd and North Harvey streets, would you go to this house?” To which the witness answered: “That is the only house in the block. That is what I would have to do, that is right.”

On behalf of the state, Noah Richmond, a deputy sheriff, testified that he was one of the officers who made the raid at the defendant’s place. That he had never been to the defendant’s house prior to the raid; that he was given the search warrant to execute with the description set forth in it, and got to defendant’s house without the aid of any other information than that contained in the search warrant. That the description set forth in the search warrant was the correct description of the premises given according to the streets as they were commonly known in Oklahoma City. That the open paved street from Lincoln Boulevard to Western avenue was commonly known as 63rd street; that 62nd street was just a block south of 63rd street, and the defendant’s house was close to the southeast corner of the intersection of 62nd street and North Harvey street. That there was no other house in the block by which he would be confused as to which building was described in the warrant.

The settled rule as to a sufficient description in a search warrant has been stated as follows in Pitzer y. State, 69 Okla. Cr. 363. 103 P. 2d 109:

“The description of the house to be searched, the names of the occupants of the premises, together with the legal description set forth in the search warrant, should all be read together; and if the same are sufficient to enable the officer executing the search warrant to locate the premises to be searched without the aid of any other information save that contained in the warrant, the same is sufficient.”

See, also, Mitchell v. State, 43 Okla. Cr. 63, 277 P. 260; Bohannon v. State, 66 Okla. Cr. 190, 90 P.2d 675.

In the instant case, there was dispute between the testimony on behalf of defendant and the witness for the state as to whether the description set forth in the search warrant was the correct legal description of the defendant’s premises. It is admitted, however, by all the witnesses that a person taking the description as written in the warrant would go to the house of the defendant, which was searched without the aid of any other information save that contained in the warrant.

In Peterson v. State, 76 Okla. Cr. 46, 133 P.2d 914, it is held:

“In hearing on motion to suppress evidence, court’s finding on disputed question of fact as to whether search warrant sufficiently described_ defendant’s premises will be sustained where there is competent evidence in record to support finding.”

Since there is competent evidence in the record sufficient to sustain the finding of the trial court on this issue, this court will not interfere with the judgment overruling the motion to suppress.

Although the question is not raised in the motion for new trial, nor set forth in the petition in error attached to the case-made filed herein, counsel for defendant in their brief present the issue that the defendant did not waive a jury and did not have a trial, but was arbitrarily found guilty by the court immediately after the overruling of his motion to suppress evidence, and that since the defendant did not waive a jury and did not have a trial that the court was wholly without jurisdiction to render any judgment and sentence against him.

Because the issue raised is a fundamental one going to the jurisdiction of the court to pronounce judgment and sentence against the accused, this court proceeded to hear said matter, even though it was raised for the first time on appeal in the brief filed by counsel for defendant. It is well to note at this point that present counsel for defendant did not appear in the trial below. Counsel who appeared for defendant before the trial court never, at any time, raised the issue that the defendant had not had a trial in accordance with the statutes and Constitution of this state.

The record discloses the following at the conclusion of the hearing on the motion to suppress evidence:

“The Court: The motions to suppress are overruled, and exceptions are allowed. Mr. James: We rest on the motions.and give notice of appeal in open court. The Court: Why not stipulate here that the testimony, evidence and record on the motion to suppress in each case will be the testimony, evidence and record used in the case on its merits? Mr. James: That’s all right. Mr. Arends: All right. I guess we have it in the record that this happened in Oklahoma County, Oklahoma? Mr. James: We will agree that this is definite enough to fix it in Oklahoma county, Oklahoma. The Court: In Oklaboma county, State ofjOklahoma. Then let the record in each case show that the court finds the defendant guilty; and notice of appeal to the Criminal Court of Appeals of the State of Oklahoma is given in open court, and that 30 days from this date are allowed in which to make and serve a case-made, three days thereafter to suggest amendments, and the same to be signed and settled on three days notice in writing by either party. You will have to file a motion for new trial in each case. Mr. James: I will file that. The Court: The defendant may remain on the same bond, and sentence day, in each case, is set for Saturday morning. October 14, 1944.”

While there is no express statement in the record by counsel for defendant waiving a jury, it is clear that the defendant and his counsel, by their conduct, indicated that such was their desire by entering into the stipulation which appears in the record. It is apparent from statements of counsel for defendant that he was resting his defense solely on the motion to suppress, as he attempted to appeal directly from the order of the court overruling the motion. Since the order overruling the motion to suppress evidence was not a final order in the case and hence not appealable, there had to be a final judgment by the court before the issue raised in the motion to suppress evidence could be presented by appeal.

In Daniels v. State, 55 Okla. Cr. 298, 29 P.2d 997, it is held:

“A defendant in a criminal case may waive any right not inalienable, given him by the statute or by the Constitution, either by express agreement or conduct, or by such failure to insist upon it in seasonable time as will operate as an estoppel to his afterwards setting it up against the state.”

In Ex parte Wooldridge, 72 Okla. Cr. 292, 115 P. 2d 284, it is stated:

“A person prosecuted for a crime may waive tbe rights guaranteed to Mm by Bill of Bights relating to trial by jury, right to be heard by counsel, etc.”

See, also, Coffe v. State, 59 Okla. Cr. 121, 56 P.2d 1194; Kennamer v. State, 59 Okla. Cr. 146, 57 P.2d 646.

In conformity to these decisions, it is our conclusion that the defendant and his counsel by their conduct, considered together with the express agreement as shown by the stipulation, are estopped to now raise the question that they did not waive a trial by jury or agree to submit the matter to the court. We think the record is sufficient to show that such was the intention of the parties, and we shall give effect to such intention as disclosed by the record.

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

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    CARL HUGHES v. STATE.
    No. A-10588.
    Sept. 4, 1946.
    (173 P. 2d 439.)

      A. E. Pearson and Warren H. Edwards, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Ewing C. Sadler, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Carl Hughes, was charged in the court of common pleas of Oklahoma county with the offense of unlawful possession of intoxicating liquor, was tried, convicted, sentenced to serve 30 days in jail and pay a fine of $50, and has appealed.

The same issues are involved in this appeal as were involved in the appeal in case number A-10587, Hughes v. State, 83 Okla. Cr. 16, 172 P. 2d 435. The identical description was in the search warrant used in this case as was inserted in the warrant used in case A-10587, supra.

The cases were consolidated for bearing on tbe motion to suppress evidence by tbe court of common pleas, and by agreement they were consolidated for tbe purpose of briefing and argument before this court.

Since tbe same issues are involved in both cases, tbe conclusions wbicb we reached in case No. A-10587, supra, apply equally to tbe contentions raised in tbis case. Tbe judgment of tbe court of common pleas of Oklahoma county is affirmed.

BAREFOOT, J., concurs. DOYLE, J., not participating..