text:
    JIMMY BARNETT v. STATE.
    No. A-6146.
    Opinion Filed Nov. 28, 1928.
    (271 Pac. 956.)

      Don Cameron and D. E. Ashmore, for plaintiff in. error.
    Geo. F. Short, Atty. Gen., and Leverett Edwards, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted of manslaughter in the first degree in the superior court of Okmulgee county and was sentenced to serve a term of four -years in the state penitentiary.

The record discloses that on the day charged the defendant shot and killed one Albert Fisher. The killing occurred at the home of defendant in the presence of several witnesses. Deceased was shot in the back. The evidence for the state and for the defendant is sharply conflicting; that for the state tending to prove the homicide was murder; that for defendant tending to prove the killing was in self-defense. It is urged that the evidence is not sufficient to sustain the judgment. \It has been many times held by this court that it is for the jury to pass upon the weight of the evidence and the credibility of the witnesses, and to say whom they will believe or disbelieve. Where the evidence, although conflicting, is such that the jury reasonably may find the guilt of defendant, this court will not substitute its judgment for that of the jury and reverse the case. Brimmage v. State, 17 Okla. Cr. 205, 187 P. 497.

The contention also is made that the court erred in overruling defendant’s application for a continuance. This application is based on the absence of witnesses Orban Crowe and Sam Prince. Crowe was with Fisher in his car when he went to the home of defendant on the night of the homicide. A subpoena was issued by the state to procure his attendance. None was issued by defendant. That this is not diligence is not an open question. If defendant desires to procure the attendance of a witness he must not rely upon the state procuring him, but must himself use diligence to secure his attendance. 9 Cyc. 197; Kirk v. Territory, 10 Okla. 46, 60 P. 797; Sanders v. State, 36 Okla. Cr. 120, 252 P. 855. Defendant had a subpoena issued for the witness Prince, which was not served. The whereabouts of this witness was unknown; the'application states that he was last heard of in Wyoming. No probability of procuring his attendance at any subsequent trial is shown. There was no error in overruling the application.

Complaint is next made that the court excluded competent evidence offered by defendant and admitted incompetent evidence for the state. This assignment is directed to several items of testimony. It was sought to be shown that at 2 o’clock in the afternoon of the day of the homicide, and again at 4 o’clock, Fisher, the deceased, was apparently intoxicated, and that some days prior to the homicide, the exact time not being shown, he was armed and intoxicated at the office of a dentist in Henryetta. The homicide occurred at 8 o’clock p. m. Evidence of intoxication at 2 o’clock p. m., or even 4 o’clock, on the same day, is rather remote and of doubtful probative force. Even if deceased was intoxicated at the time of the homicide, such fact would not justify defendant in shooting him, except in his necessary self-defense.

It is also insisted that the court erred in allowing the rule for the exclusion of witnesses upon the condition that defendant would first testify. The exclusion of witnesses from the courtroom in the course of the trial is not a matter of right, but rests in the sound discretion of the trial judge. Harrell v. State, 36 Okla. Cr. 225, 253 P. 516. When the request for the rule was ma'de, it was the duty of the court in his discretion to either allow or disallow the application. He had no right to add the condition that it would be allowed only if defendant first took’ the stand in presenting his side of the case. It was improper for him to mention in the presence of the jury the taking the stand by defendant a,t all. Counsel for defendant, however, made no objection nor exception to the statement, nor ruling of the court, but complied with the ruling and put the defendant on the stand first. If counsel desire to preserve the record upon the rulings and statements of the trial judge, they should make timely objections and exceptions. When they fail to do this, the error, unless fundamental, is waived. Stack v. State, 4 Okla. Cr. 1, 109 P. 126; Steward v. State, 9 Okla. Cr. 327, 131 P. 725.

It is also argued at some length that the trial judge made prejudicial remarks in the presence of the jury. This assignment is directed to remarks of the court in the course of the trial. The excerpts from the record set out and relied upon were not excepted to. at the time, and no motion to withdraw them from the jury was made. The remarks of the trial judge in the course of presenting the evidence, while of doubtful propriety, are not prejudicial, and, since no exceptions were taken, we assume counsel for defendant did not consider them so at the time. During the course of the argument the trial judge properly admonished counsel to stay within the record. Counsel had stated a matter of evidence as of his own knowledge, and at another point in his argument apparently had stated to the jury that the court had excluded material evidence. Both statements were improper argument, and the admonition by the trial judge timely. The court, however, should not then have engaged in a colloquy with counsel as he did about the matter. Exceptions were taken in this instance to the ruling of the court. The error, if any, was invited, and is not of sufficient importance to warrant a reversal.

Lastly, it is argued that the court erred in giving the jury additional instructions, after the case had been submitted .and had been hy them considered for some time. The instruction complained of is cautionary, admonishing the jury in substance to endeavor to arrive at a verdict by deliberating with candor and by giving respect to the opinions of each other. This is bilateral, and is as favorable to defendant as to the state. Upon an examination of the entire record, we' are convinced that under the evidence the jury correctly rendered its verdict finding defendant guilty; that they were extremely lenient in assessing the punishment at four years in the penitentiary. There is no miscarriage of justice. Section 2822, Comp. Stat. 1921, precludes this court from reversing a judgment of conviction because of the exclusion of evidence, or the admission of improper evidence, or for other reasons, unless after an examination of the entire record it is apparent that the exclusion of such evidence, or the admission of improper evidence, probably resulted in a miscarriage of justice, or deprived defendant of some cohstitutiomal or statutory right, to his prejudice. Wiley v. State, 17 Okla. Cr. 643, 191 P. 1057.

The various errors occurring at the trial, in the light of the entire record, are harmless.

The case is affirmed.

DOYLE, P. J., and DAVENPORT, J., concur.


source: Caselaw Access Project

author: DAVENPORT, J.

license: Public Domain

text:
    DAN SMITH v. STATE.
    No. A-6447.
    Opinion Filed Nov. 28, 1928.
    (271 Pac. 959.)
    W. F. Brumfield, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, Dan Smith, hereinafter referred to as the defendant, was found guilty of maintaining a place where intoxicating liquors were received and kept for the purpose of bartering, selling, giving away, and otherwise furnishing the same to others unlawfully, and was sentenced to pay a fine of $200 and imprisonment in the county jail for 30 days. Record was properly kept, and defendant has appealed to this court.

Case-made was filed in this court on December 4, 1926. No brief has been filed in behalf of the plaintiff in error, and no one has appeared to orally argue the case. Where the plaintiff in error fails to appear and orally argue the case, or to file brief in support of his assignment of errors, it is considered that he has abandoned the appeal or that it is without merit.

The record in this case has been carefully examined, and, no prejudicial errors appearing, the case is affirmed.

DOYLE, P. J., and EDWARDS, J., concur.


author: PER CURIAM.

text:
    Ex parte C. G. LESTER.
    No. A-7075.
    Opinion Filed Nov. 28, 1928.
    (272 Pac. 392.)
    Crouch & Crouch, Chapman & Chapman, and Hugh M. Bland, for petitioner.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The petition filed on behalf of C. G. Lester, alleges in substance that he is charged by information in the district court of Pottawatomie county with the crime of robbery with firearms, alleged to have been committed on the 6th day of June, 1928; that upon his arraignment in the district court he pleaded not guilty and was remanded to the sheriff of said county; that said district court denied his application to be admitted to bail; and further alleges “that in said cause the proof is not evident and the presumption of innocence is great, and that your petitioner is entitled to bail as a matter of right.”

Upon a careful examination of the record, we are of the opinion that the petitioner is not entitled to be admitted to bail as a matter of legal right. It is therefore considered and adjudged that the writ be denied and bail refused.


text:
    E. C. LONDON v. JOHN B. OGDEN, District Judge.
    No. A-6704.
    Opinion Filed Dec. 1, 1928.
    (272 Pac. 487.)

      See, also, 130 Okla. 89, 265 P. 139.
    Sigler & Jackson, for plaintiff in error.
   PER CURIAM.

The petitioner filed in this court his verified petition for mandamus alleging, in substance, that said respondent, as district judge, ordered and directed the county attorney of Carter coip?ty to file an information charging this petitioner with contempt of court in failing to obey the orders of said court, that after said cause was set for trial before respondent said petitioner filed his motion to disqualify said respondent on the ground that said respondent is biased and prejudiced against this petitioner and could not give him a fair and impartial trial; that said respondent refused to disqualify, and praying that a writ issue herein directing the said Hon. John B. Ogden, district judge, to recuse and disqualify himself in said action.

An alternative writ of mandamus was issued. Upon the return day respondent filed his answer in substance stating that petitioner with his counsel appeared when the oause was set for trial and demanded a .jury trial in said cause, which was granted, and further alleging that he is not biased or prejudiced against said petitioner bui is only acting as he views it, in the interest of justice to ;a,ll parties, and praying that the writ be discharged. Thereafter, by agreement of the parties, the cause was dismissed.


author: DOYLE, P. J.

text:
    W. M. DELLINGER v. STATE.
    No. A-6219.
    Opinion Filed Dec. 3, 1928.
    (271 Pac. 1044.)

      John L. Gilson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

Under the information in this case, W. M. Dillinger and John A. Vincent were jointly charged with the unlawful possession of intoxicating liquor. Upon his separate trial the jury returned their verdict finding the defendant Dillinger guilty and fixing his punishment at a fine of $50 and 30 days in jail, and asking the court to suspend the jail sentence. To reverse the judgment rendered on the verdict, he appeals.

The record shows that a motion for new trial was filed on the ground that the verdict is not sustained by sufficient evidence. The motion was denied. That after judgment a supplemental motion for new trial was filed on the ground of newly discovered evidence, supported by the affidavit of codefendant, Vincent, who upon his separate trial was convicted, and wherein affiant states that the defendant Dillinger knew nothing of the whisky found, nor where it was placed; that said affiant placed said whisky under Dillinger’s place of business facing Main street in the town of Hooker, which motion was overruled.

It appears that the defendant, Dillinger, operated a two-chair barber shop in the town of Hooker, and lived in a room in the rear of the barber shop, for several months prior to the alleged offense, coming there from Liberal, Kan.; that he was born near Belpre, Edwards county, Kan., and lived there until he removed to liberal; that this is the first and the only time he has ever been charged with a violation of the law in either Oklahoma or his native state.

Ben F. Barrick, sheriff of Texas county, testified that ■his deputy at Hooker, C. F. Tattu, called him up and asked him to come there that evening; that with one or two others he went to Hooker, and after talking to Mr. Tattu they 'concealed themselves back of the defendant’s barber shop, and while there watching he saw the defendant Vincent come through between two buildings and saw him .drop a bottle of whisky; that Vincent then went into the toilet, came out, and went into the residence part of the barber shop; that witness went to the front door, and Mr. Tattu, and Mr. Clark went to the back door and knocked, and the defendants invited them in; that they searched the inside of the house all over and found nothing, then went out and found the bottle that the defendant Vincent had dropped and found four quart jars of whisky under the rear corner of the barber shop; that he arrested the defendants and brought them to Guymon; that he did not know whether or not the whisky belonged to Dillinger and did not know who put it there, that he did not have a search warrant.

The testimony of the two deputy sheriffs was substantially the same- as that of the sheriff.

As a witness in his own behalf, the defendant, Dillinger, testified that he did not own the whisky and did not know who put it there; that he was never before arrested; that he did not drink whisky or have anything to do with whisky in any way; that his codefendant, Vincent, came there that evening about 9 o’clock and asked to stay over night with him; that Vincent often came in from the country, and if he had money stayed at the hotel, but several times he said he was broke and he stayed over night with him; that he never charged him anything.

J. E. Cartmell testified that he had worked in the defendant’s, shop as a barber for the past year and had never known of any intoxicating liquors being used or kept by this defendant; that he had a conversation with. Deputy Sheriff Tattu after the liquor was found, and Mr. Tattu stated he did not think this defendant was guilty of the crime charged, but that he believed that the whisky in question belonged to John Vincent.

J. W. Freeman, of Liberal, sheriff of Seward county, Kan., testified that he had known the defendant, Dillinger, for about fifteen years, during which time he lived at Liberal; that he knew his general reputation for being a law-abiding citizen, and that reputation was good; that during this time witness Was sheriff and undersheriff of Seward county for seven years.

Six or seven other witnesses qualified as character witnesses and testified that the general reputation of the defendant, Dillinger, as to being a law-abiding citizen was good.

Upon a careful consideration of the evidence, our conclusion is that the proof connecting the defendant, Dillinger, with the possession of the liquor found, is insufficient to sustain a conviction.

“Where a criminal charge is to be proved by circumstantial evidence, the proof ought to be not only consistent with the prisoner’s guilt, but inconsistent with any other rational conclusion.” 1 Greenleaf, Evid. 34.

Assuming that the defendant, Dillinger, was innocent, we fail to see how he could have met the testimony for the state in any other way than by the testimony introduced in his behalf.

It appears from an examination of the instructions that the court failed to instruct the jury upon the law of circumstantial evidence. In our opinion it would be destroying the presumption in favor of innocence of the defendant, and would be subversive of the rule which requires the establishment of guilt beyond a reasonable doubt, to allow this conviction to stand.

For the reasons stated, the judgment is reversed.

EDWARDS and DAVENPORT, JJ., concur.


author: EDWARDS, J.

text:
    W. B. PAUL v. STATE.
    No. A-6651.
    Opinion Filed Dec. 3, 1928.
    (272 Pac. 485.)
    See, also, 36 Okla. Cr. 85, 86, 252 P. 853 ( two cases).
    H. Tom Eight, for plaintiff in error.
    M. B. Cope and Erman S. Price, for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted of embezzlement in the district court of Rogers county, and was sentenced to serve a term of 15 years in the state penitentiary and to pay a fine of $4,000.

The record discloses that at the time charged and for some two years prior thereto defendant was cashier and director of the Farmers’ & Merchants’ Bank of Catoosa, and while such cashier he appropriated to his own use and embezzled an item of money coming into his hands and intrusted to him as such cashier in the sum of $300. The state proved the misappropriation of the money as charged, and introduced a written and signed confession in which defendant admitted embezzlements. Defendant did not take the stand, and offered no' testimony. There is no question of his guilt.

The preliminary complaint charged, in substance, that defendant was cashier and a director of the Farmers’ & Merchants’ Bank of Catoosa, that there came into his hands as such cashier and director the sum of $300.00, and that he feloniously and not in the lawful execution of his trust embezzled and converted it to his own use with the intention to defraud -said bank. Defendant waived a preliminary hearing, and the committing magistrate duly transmitted the complaint with his certificate to the district court, holding defendant for trial. The county attorney filed an information alleging that defendant was cashier of the bank, and as such cashier was intrusted with said money and unlawfully and feloniously embezzled and converted same to his own use. After various continuances and after the case was set for trial, the county attorney, with permission of the court, filed an amended information containing substantially the same allegations as the preliminary complaint. Defendant then filed a motion to quash, among other grounds, contending that defendant had not had a preliminary upon the charge in the amended. information-, that under the original information the offense charged and the punishment fixed thérefor was as defined in sections 2122, 2132, and 2105, Comp. Stat. 1921, and that the amended information charged an offense defined by section 4178, Comp. Stat. 1921, and insists there is a distinction between amending an information and filing an amended information. When a preliminary complaint is filed before a magistrate charging a person with crime, and a preliminary examination has been had or waived, and the accused is held for the district court, the county attorney is authorized to file an information charging the offense for which accused was held; he may not substitute one offense for another. Payne v. State, 30 Okla. Cr. 218, 235 P. 558; Lewis v. State, 39 Okla. Cr. 119, 263 P. 473. If the record before us disclosed that the amended information charged an offense different from that charged in the preliminary complaint upon which the preliminary was waived, this case would necessarily be reversed. The preliminary complaint before the magistrate charged embezzlement by the cashier and director of a bank. This is the same charge contained in the amended information upon which defendant was tried and the conviction had. It is proper to allow an information to be amended either before or after plea as provided by section 2512, Comp. Stat. 1921. Elkins v. State, 29 Okla. Cr. 175, 233 P. 491, and authorities cited. Where an information charging a felony is amended, and the charge in the amended information is substantially the same as the charge in the preliminary complaint before the committing magistrate, the contention that the accused should have the right to a preliminary hearing is untenable. Sellers v. State, 27 Okla. Cr. 245, 226 P. 109, and authorities cited. We do not perceive any difference between filing an amended information and amending an information on file. If an information on file is amended by changes or additions, the information becomes in fact an amended information to that extent. It is no different in effect than if rewritten in its entirety with the changes or additions embodied in it. See Lowe v. State, 7 Okla. Cr. 32, 121 P. 793.

Defendant contends that the court erred in denying a continuance when the amended information was filed. Section 2512, Comp. Stat. 1921, provides, in substance, that a trial shall not be delayed by reason of an amendment to the information unless for good cause shown by affidavit. The amended information charged the same embezzlement as was charged in the preliminary complaint and in the original information. The filing of this amended information could not affect the defense to the charge and did not entitle defendant to a continuance.

Complaint is also made that the trial judge was arbitrary and improperly denied a postponement on account of illness of defendant’s leading counsel, and that the court made remarks in the course of the trial prejudicial to defendant. In view of the fact that defendant was represented by his other counsel and that his guilt is undisputed, these matters do not require a reversal.

Upon a consideration of the entire record, however, we are convinced that the punishment assessed is too severe, and that justice requires that the imprisonment of 15 years be reduced to 5 years, and it is so modified. The judgment otherwise to stand.

The judgment, as modified, is affirmed.

DOYLE, P. J., and DAVENPORT, J., concur.


author: DOYLE, P. 'J.

text:
    J. A. McGUIRE v. STATE.
    No. A-6119.
    Opinion Filed Dec. 3, 1928.
    (272 Pac. 390.)

      Brown, Brown & Williams, for-plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. 'J.

On information charging that J. A. McGuire did unlawfully have in his possession 50 gallons of mash, wort, and wash fit for distillation of intoxicating liquors, to wit, corn whisky, he was tried, found guilty, and, in accordance with the verdict, was sentenced to pay a fine of $50, and to be confined in the county jail for 30 days. From the judgment he appeals.

The testimony of two deputy sheriffs was, in substance, to the effect that, in executing a search warrant against the defendant’s place near Hoxbar, they found 50 gallons of mash in the smokehouse on the north side of the dwelling house. They each testified that this mash, wort, and wash was then and there suitable and fit for the distillation of corn whisky.

As a witness in his own behalf, the defendant testified that he had a barrel of stuff containing meal and sorghum molasses in his smokehouse, and was using it as an old-fashioned substitute for beer; that it was not an intoxicating liquor; that he did not remember whether it contained hops or meal, and did not know whether whisky could be made out of this compound.

Several witnesses qualified as character witnesses, and testified that the defendant’s reputation for being a law-abiding citizen in that community was good.

The sole question presented by this appeal is the sufficiency of the evidence to support the verdict.

After a careful examination of the evidence in the case, we are not prepared to say that the jury were not warranted in finding the defendant guilty.

The credibility of the witnesses and the' weight and value to be given their testimony is a question solely for the jury’s determination, and, to reverse a judgment on the ground that the verdict is contrary to law and the evidence, this court must find, as a matter of law, that the evidence is insufficient to warrant a conviction.

The instructions fully and fairly presented the law of the case, and, finding no material error in the record, the judgment appealed from is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    M. A. TUCKER v. STATE.
    No. A-6708.
    Opinion Filed Dec. 4, 1928.
    (272 Pac. 483.)
    Stevens & Cline, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

Under an information charging that M. A. Tucker did willfully, unlawfully, and feloniously, with intent to do bodily harm, commit an assault upon J. W. Ward, by striking and beating said J. W..Ward with dangerous weapons, to wit, a hammer and a heavy board, the jury found the defendant guilty of simple assault and fixed his punishment at a fine of $3'5. Motion for a new trial was duly filed and overruled. From the judgment rendered on the verdict he appeals.

The main, if not the only, question presented, is whether the evidence was sufficient to sustain the verdict. It appears' that the prosecuting witness Ward was a tenant of the defendant in a house on Avenue A, Lawton, and there was a dispute over the rent for the last month Ward occupied the house. Ward testified:

“I went over and said, ‘Tucker, you are using my lumber.’ He said something, and raised up and hit me with the hammer, and that is the last that I remember.” That be gave Tucker a check for $27.50 for the last month’s rent, and two days later Tucker came back with the check and said the bank would not take it, and handed back the check, and he paid it in cash. That Tucker claimed a balance of $2.50 rent for the month and they had a dispute about it.

On cross-examination he was asked:

“Did you that time say to Tucker: ‘You quit bothering me about that, or I will give you a damn good licking?’ ” He answered: “I might have said it; I don’t think I did.”
“Q. What did you do, Mr. Ward, to provoke him to strike you with that hammer? A. I never done anything, only told him that he was using my lumber, and he said he would pay for it.
“Q. Did you say out there, T will go and get my gun?’ A. I don’t know.
“Q. As a matter of fact, you went over there with a fight in mind? A. I might have.”

The second witness for the state, Mrs. M. L. Denny, testified that she lived next door to the Tucker place, and that morning was sitting on the porch sewing; that, hearing a scuffle she looked over and saw Ward and Tucker running around at one another, and it looked that, if they would get together, they would fight; that Mr. Ward then went out as far as the parking and said, “I will get my gun,” and. Mr. Tucker said, “I will get mine.” Then Mrs. Ward and her mother came across the street to where Mr. Tucker was, and witness went into the house to call the police, then came out, and saw Mr. Tucker hit Ward with a board.

Mrs. J. W. Ward testified:

“My husband went over there; Tucker was bent over and raised up with a hammer in his hands. I didn’t see him hit my husband with the hammer, but I ran over there and my husband went around me and Tucker picked up this board, drew back, and said, ‘Don’t you come over here; this is my premises.’ My husband came out from behind me and Tucker hit him with a board and he fell.”

As a witness in his own behalf M. A. Tucker testified that he took a check in part payment of the rent and went to the State National Bank; they said there was no money there, that it could not be paid. Later he took the check to Ward, and Ward took the check and gave him the money. Then he asked Ward for the balance of the month’s rent, $2.50, and Ward put his finger in his face and said, “If you don’t stop this I am going to give you a licking,” and he told Ward the best thing to do was to pay him the $2.50; they were walking along, and Ward pulled his knife out and said, “I don’t want you to follow me, you are getting the last cent out of me you will ever get.”

That morning he was repairing the porch and did not notice Ward until he said: “Tucker, you know you are using my lumber;” that he looked up and said, “Blonde, if I am using your lumber I will pay for it,” and as he started to get up Ward hit him twice; then they scuff led around and Ward said, “I will get my gun,” then swung in behind Mrs. Ward who was standing there; that he codld not see what she gave him, and he grabbed a ceiling board about 40 inches long and said to them, “Stop! stop! get off of my premises;” then, as Ward swung around from behind his wife, he hit him a pretty good lick; that he thought Ward was going to shoot him and struck him in self-defense; that his ear was sore a long time, the side of his head was cut, and he had marks on his shoulder and arms where Ward hit him; that he went to Dr. Hughes the next morning.

Dr. Hughes testified that he examined the defendant, and found his right ear demuted at the base, and he had an injury on his shoulder and on the forearm and on the left hand.

The foregoing is the substance of the material testimony upon which the conviction is based.

Penal statutes should be liberally construed in favor of the accused, and it must appear that he committed acts which are clearly made an offense by statute. Our Penal Code provides:

“To use or to attempt to offer to use force or violence upon or toward the person of another is not unlawful in the following cases:
“First. * * *
“Second. * * *
“Third. When committed either by the party about to be injured, or by any other person in his aid or defense, in preventing or attempting to prevent an offense against his person, or any trespass or other unlawful interference with^ real or personal property in his lawful possession; provided the force or violence used is not more than sufficient to prevent such offense.”

Section 1762, C. S. 1921.

The testimony of the witnesses for the state, excepting that of the prosecuting witness, supports or tends to support the testimony of the defendant that he acted in his necessary self-defense. He was at a place where he had a right to be, and the prosecuting witness was a trespasser, and the testimony for the state fails to show that, in defending himself in attempting to prevent the trespass, the defendant did not use more force or violence than was reasonably necessary to effect that purpose. Dickinson v. State, 3 Okla. Cr. 151, 104 P. 923; Buchanan v. State, 25 Okla. Cr. 198, 219 P. 420.

Our Procedure Criminal provides:

“If, at any time after the evidence on either side is closed, the court deem it insufficient to warrant a conviction, it may advise the jury to acquit the defendant.” Section 2713, C. S. 1921.

Carefully considering the whole testimony in the case, we are convinced that the court should have advised the jury to acquit the defendant when the state rested, 'because as a matter of law the evidence was insufficient to sustain a conviction.

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

EDWARDS and DAVENPORT, JJ., concur.


text:
    W. F. SCHULTE v. STATE.
    No. A-6345.
    Opinion Filed Nov. 24, 1928.
    Rehearing Denied Dec. 8, 1928.
    (271 Pac. 1045.)

      Arrington & Evans, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of forgery in the second degree, and his punishment fixed at two years in the state penitentiary; motion for new trial was filed and overruled, and defendant duly excepted, and has perfected his appeal to this court.

The amended information upon which the defendant was tried and convicted, omitting the caption, reads as follows:

“Comes now J. W. Dean, the duly qualified and acting county attorney, in and for Pontotoc county, state of Oklahoma, and gives the district court of said county and state of Oklahoma, to know and be informed that the above named defendant, W. F. Schulte, late of Pontotoc county, did in Pontotoc county and in the State of Oklahoma, on or about the 27th day of December, the year of our Lord one thousand nine hundred and twenty, and before the commencement of this prosecution commit the crime of forgery ■in the second degree, in the manner and form as follows: That is to say the defendant did in said county and state, at the above named time and place, being then and there an officer and agent of the Pontotoc Custom Gin Company, a corporation of Ada, Oklahoma, duly organized and existing under and by virtue of the laws of the state of Oklahoma, unlawfully, wrongfully, wilfully, fraudulently and feloniously issue, sell and pledge to one W. A. Simpson, as collateral security for the purpose of securing one certain promissory note, then and there executed and delivered by the said W. F. Schulte to the said W. A. Simpson, in the principal sum of four hundred ($400.00) dollars and upon which said promissory note and collateral security the said W. F. Schulte did then and there receive from the said W. A. Simpson, the sum of four hundred ($400.00) dollars, good and lawful money of the United States of America, a more particular description of which is to the county attorney unknown, one certain false, spurious and fraudulent certificate of stock for fifty (50) shares of the capital stock of the said Pontotoc Custom Gin Company, a corporation aforesaid, which said false, spurious and fraudulent certificate of stock was and is in words and figures as follows, to wit:
“Incorporated under the Laws of the State of Oklahoma.
“No. 304. Shares 50.
“Pontotoc Custom Gin Company, Ada, Oklahoma.
“Capital Stock $30,000.00.
“This certifies that W. F. Schulte if the owner of fifty shares of Ten Dollars each of the Capital Stock of Pontotoc Custom Gin Co., Fully Paid and Non-Assessable transferable only on the books-of the Corporation by the holder hereof in person or by Attorney, upon surrender of this Certificate properly endorsed.
“In witness whereof, the said Corporation has caused this certificate to be signed by its duly authorized officers and to be sealed with the Seal of the Corporation, this 20th day of April, A. D. 1920.
“R. Bess, President
“S.
“J. B. Parker, Secretary. [Seal.]
“Shares $10.00 Each.
“Which said certificate bears the following endorsements on the back thereof:
“Certificate for 50 Shares of the Capital Stock of the Pontotoc Custom Gin Co., Ada, Oklahoma. Issued to W. F. Schulte, Dated Apr. 20, 1920.
“For value received,__'------hereby sell, assign, and transfer unto________Shares of the Capital Stock represented by the within Certificate, and do hereby irrevocably constitute and appoint_________to transfer said Stock on the books of the within named Corporation with full power of substitution in the premises.
“Dated__________19_____
“W. F. Schulte.
“In the presence of________
“W. A. Simpson,
“That the said W. F. Schulte then and there well knew that said certificate of stock was then and there false, spurious and fraudulent, in this to wit: that said certificate of stock had been duly signed in blank by the proper officers of said Pontotoc County Custom Gin Company, to wit: Its president and secretary, and left in the care and custody of the said W. F. Schulte, as officer and agent of said company as aforesaid, and that the said W. F. Schulte filled in said certificate of stock in the ■blank places therein so as to read as above set forth, or cause the same to be filled in by some person or persons unknown to the county attorney; that said stock was further false, spurious and fraudulent in that the same had not then and there been duly signed, issued, sold and pledged, or duly authorized so to be done by the board of directors, or other managing body of said Pontotoc Custom Gin Company, having authority to sign, issue, sell and pledge the same, as was then and there well known by the said W. F. Schulte, but that the said certificate of stock was then and there false, spurious and fraudulent, as he, the said W. F. Schulte, then and there well knew at the time he so issued, sold, pledged and delivered the same to the said W. A. Simpson, aforesaid, ■but then and there, knowingly, wrongfully, wilfully, fraudulently and feloniously made such sale, pledge and delivery of said certificate of stock to the said W. A. Simpson, for the purpose aforesaid and with the unlawful, fraudulent and felonious intent then and there on the part of him, the said W. F. Schulte, to have the said certificate of stock uttered and passed as genuine and with the unlawful, fraudulent and felonious intent then and there cheat and defraud the said W. A. Simpson, Pontotoc Custom Gin Company, a corporation, and other persons, corporations and associations unknown to the county attorney, contrary to the form of the statute, in such cases made and provided, and against the peace and dignity of the state of Oklahoma.
^J. W. Dean, County Attorney.”

Defendant filed a demurrer to the information, which demurrer was by the court overruled, and defendant duly accepted.

The testimony on behalf of the state is, in substance, as follows: W. A. Simpson stated that he was a farmer living in Pontotoc county; that he knew the defendant; that about the first of January, 1920, he lent the defendant some money; he took the defendant’s note, and took from the defendant as security a certificate for 50 shares of stock in the Pontotoc Customs. Gin Company; that he afterwards took a note from the defendant for $285.90; that he sold the notes with a balance due on them to John P. McKinley.

John P. McKinley testified he bought two notes from W. A. Simpson, and Simpson delivered the assignment of stock for 50 shares in the gin company; that he had photographs made of the notes and stock by N. B. Stall.

N. B. Stall testified as to being a photographer and that he made a photographic copy of two notes and stock for John P. McKinley; that, after making copies, he returned them to McKinley. He then identified the photographic copies.

W. A. Simpson, recalled, testified that he let the defendant have $400, and took his note and certificates of gin stock as security; that he saw the defendant about this matter in September, 1923; that he talked with Mr. Rives of the Oklahoma State Bank of Adía.

John W. Balthrop, manager of the- gin company, and Coleman Lee, bookkeeper of the gin company, went to the office of the defendant, in Ada, when he carried the stock certificates with him; that Mr. Balthrop asked the defendant how it came he had so many certificates, and which was the original stock, the defendant answered that Mr. Rives had the original stock and the other held by the witness was not good.

John P. McKinley was recalled and testified that he surrendered the note and stock of the defendant in the month of November, 1923; that the defendant stated the certificate of stock was not good; the defendant did not make a statement as to why the certificate was not good; that when he surrendered the certificate the note had been paid in full.

C. H. Rives was recalled and stated that he remembered being present at the office of the defendant when Mr. Balthrop asked the defendant about the certificate of stock, and defendant stated he would replace the Simpson certificate with a good certificate.

J. W. Balthrop, on cross-examination, stated that the defendant had actually owned 50 shares of the stock of the gin company and traded some to a man by the name of Wilburn. He did not know about the various certificates held by the defendant. Defendant did not claim at the time to own more than 50 shares of stock. They had not passed upon the proposition of a stockholder pledging his certificates of stock as collateral.

Testimony was introduced to show that certificates Nos. 7, 14, 266, 271, 290, and 304 were certificates owned or claimed by the defendant. No. 304 is the certificate upon which this prosecution is based. A number of certificates were mentioned, showing that the president’s name, R. Bess, with the letter “S” under the name, and it was admitted by all that the “S” indicated the name of Schulte, as he had often signed the president’s name with the letter “S” to show by whom the stock was signed.

The testimony of defendant’s witnesses tends to show that there was no consideration passed in the issuing of the stock certificate 304, for 50 shares of the gin company stock. All of the testimony shows President R. Bess’ name was signed with the letter “S” under it. Witness Lee, on redirect examination, stated authority to sign the name of Mr. R. Bess extended only to certificates that Mr. Bess ought to have signed.

J. B. Parker testified that he was secretary of the company; that the defendant was the attorney for the company throughout the years 1920, 1921, 1922, and 1923, and also a stockholder. R. Bess was its president during these years, and meetings of the directors were held at the office of the defendant; that after the reorganization the limit of 50 shares owned by any one of the stockholders was placed in effect; that the board meetings passed on transfers before issuing new stock; the approval of the transfer of stock was entered on the minutes, and he would then sign the number of certificates if he did not have time to fill them out; defendant would then fill them out;' he did not remember whether he authorized the defendant to fill out certificate No. 304, and did not know of any sale of new stock to the defendant after the reorganization; he had not received any money from the defendant for new stock.

On cross-examination, Mr. Parker testified with reference to numerous signatures of R. Bess with the Tetter “S” under it in the stock book; that they were evidently and probably signed by the defendant; the directors made no objection to the stockholders putting up stock as collateral, and, if stock was put up by stockholders, so far as he knew the directors never did anything about it.

R. Bess testified that he was president of the gin company on the date of the alleged crime; the defendant was the company’s attorney; meetings were held in the office of the defendant and records were kept there; he never authorized the defendant to sign his name to the stock, except stock authorized at the meetings, or to fill in above his name; the defendant owned at one time 50 shares of stock; the defendant never said anything about getting a certificate in lieu of other certificates.

On cross-examination, Mr. Bess testified that they were usually in a hurry to go home and sometimes he would authorize Mr. Schulte to sign his name to a stock certificate, but he did not know anything about the issuing of stock certificate No. 304. J

This is all the testimony we deem necessary to set out. At the close of the state’s testimony the defendant demurred to the evidence offered by the state as being insufficient to sustain the allegations of the information, and being insufficient to prove any offense charged or attempted to be charged in the information. The demurrer was overruled, and defendant duly excepted. The defendant then moved for an instructed verdict, which motion was overruled, and defendant duly excepted.

The prosecution in this case seems to be based upon section 2081, C. O. S. 1921, which is as follows:

“Any officer or agent of any corporation or joint stock association formed or existing under or by virtue of the laws of this state, or of any other state, government or country, who, within this state, wilfully signs or procures to be signed, with intent to issue, sell or pledge, or to cause to be issued, sold or pledged, or who wilfully issues, sells or pledges, or causes to be issued, sold or pledged, any false or fraudulent certificate or other evidence of the ownership or transfer of any share or shares of the capital stock of such corporation or association, whether of full paid shares or otherwise, or of any interest in its property or profits, or of any certificate or other evidence of such ownership, transfer or interest, or any instrument purporting to be a certificate or other evidence of such ownership, transfer or interest, the signing, issuing, selling or pledging of which has not been duly authorized by the board of directors or other managing body of such corporation or association having authority to issue the same, is guilty of forgery in the second degree.”

The testimony shows that the stockholders of the gin company met in the office of the defendant; that the defendant was a stockholder and attorney for the company, and that they often held meetings until late, and, when the directors authorized the issuing of stock of the company, the secretary would sign the certificate of stock, and the president when present would sign the stock, and when absent or in a hurry to go home, would direct the defendant to sign his name to the certificates, and that often the defendant had done so and would place under the name of the president the letter “S,” showing by whom it was signed.

The certificate of stock upon which this prosecution is based is No. 304. Neither the president nor secretary would state whether or not they signed their name to this certificate; they stated they did not remember; that no money had been received by the company for the sale of this certificate of stock. There is no testimony showing that the certificate of stock was signed by the secretary and the president in blank, as alleged in the information, and the question to be determined by this court is, Does the filling out of the certificate of stock with the secretary’s name signed to it, and R. Bess, president of the company signed to it by the defendant, with the letter “S” under it, amount to forgery?

26 Corpus Juris, on page 898, states:

“The essence of forgery is the making of a false writing with the intent that it shall be received as the act of another than the party who signed it.”

On page 899 of the same volume, it says:

“One who executes an instrument purporting on its face to be executed by him as the agent of the principal therein named when in fact he has no authority to execute such instrument, is not guilty of forgery as the instrument is nothing different from what it purports to be, the act being a false pretense.”

See U. S. v. Glasener (D. C.) 81 F. 566; In re Tully (C. C.) 20 F. 812.

In State v. Taylor, 46 La. Ann. 1332, 16 So. 190, 25 L. R. A. 591, 49 Am. St. Rep. 351, it was held by the Supreme Court of the state of Louisiana:

“An instrument showing on its face that the person who executed it signed as agent for the maker cannot be subject to forgery, although such agent acted without authority.”

In Ex parte Offutt, 29 Okla. Cr. 401, 234 P. 222, this court quoted with approval from People v. Bendit, 111 Cal. 274, 43 P. 901, 31 L. R. A. 831, 52 Am. St. Rep. 186:

“To constitute forgery, there must be the making of a writing which falsely purports to be the writing of another. ' A false statement of fact in the body of the instrument, or a false assertion of authority to write another’s name, or to sign his name as agent, by which a person is deceived and defrauded, is not forgery. To make it such there must be a design to pass as the genuine writing of another person, that which is not his writing.”

There is no dispute that in the certificate of stock upon which this prosecution is predicated, where the name of R. Bess was signed to it with the letter “S” under it, that the letter stood for the name of the defendant. The question of whether or not the defendant was entitled to have 50 shares of stock issued to him by the company is immaterial in a prosecution for forgery. It is also immaterial as to whether or not he signed the name of R. Bess, the president of the company, with or without his authority. When he signed the name of R. Bess as president and placed his initial “S” under it, he was thereby showing his agency. The certificate shows to have been executed by the agent, and we hold that it did not purport to be an instrument executed by R. Bess, as president of the gin company; that the state wholly failed to show that the certificate was signed by the .secretary and president of the gin company and left with the defendant, Which is one of the material allegations in the information. There being no competent testimony to sustain a conviction, the demurrer of the defendant to the evidence should have been sustained and the jury advised to return a verdict of not guilty.

For the reasons herein stated, the cause is reversed and remanded.

DOYLE, P. J., and EDWARDS, J., concur.


text:
    MAT BEASTER v. STATE.
    No. A-6714.
    Opinion Filed Dec. 8, 1928.
    (272 Pac. 391.)

      G. L. Bynum, for plaintiff in error.
    The Attorney General, for The State.
   DOYLE, P. J.

The plaintiff in error was tried upon an information charging that he did have in his possession 3% gallons of Choctaw beer with the unlawful intent of selling the same, and in accordance with the verdict of the jury he was sentenced to pay a fine of $100 and confinement for 60 days in the county jail. To reverse the judgment, he appeals.

The errors assigned are, in substance, that the court erred in admitting incompetent evidence on the part of the state, and in refusing to direct a verdict of acquittal on the ground that all the state’s evidence was obtained by unlawful search and seizure under a search warrant illegally issued.

The undisputed facts are that the officers in executing a search warrant to search the home of the defendant found 3 gallons of what they termed Choctaw beer.

The defendant testified that he lived with his wife and children east of Bryant; that when the officers came there they went down in the cellar and emptied a barrel of vinegar and bursted the barrel; that there was about a half gallon of Choctaw beer in the house, and that was the only Choctaw beer the officers found; that his wife’s folks were visiting and brought that half gallon of Choctaw beer there with them.

At the close of the evidence, the defendant moved the court to direct a verdict of acquittal, for the reason that the affidavit for.the search warrant based on information and belief was insufficient, which motion waa by the court overruled.

The affidavit introduced in evidence, omitting formal parts, recites:

“Before me, 'J. W. Hinton, a Justice of the Peace in and for said County, personally appeared S. A. Hamil who being duly sworn, states: That he has probable cause for believing and does believe that certain quantities of intoxicating liquors are being kept for the purpose of sale, barter, giving away and otherwise furnishing, and are being sold, bartered, given away and otherwise furnished, unlawfully, by Mat Beaster in the 4 Room house used and occupied by him as a residence located 2 Blocks N. E. Depot in the City of Bryant, Okmulgee County, State of Oklahoma.”

It is well settled in this state that issuance of warrant to make search for intoxicating liquors is unauthorized when based on affidavit made on information and belief, and evidence obtained by a search of defendant’s home under such illegal search warrant Is' inadmissible against him. Magin v. State, 25 Okla. Cr. 361, 220 P. 666; Carignano v. State, 31 Okla. Cr. 228, 238 P. 507.

It appearing that all the state’s evidence in this case was obtained by an unlawful search and seizure and contrary to Const, art. 2, section 30, and that the same was improperly admitted against the defendant in violation of his rights under Const, art. 2, section 21, the judgment appealed from is reversed, and the cause remanded, with direction to dismiss.

EDWARDS and DAVENPORT, JJ., concur.


text:
    ERNEST PEYTON v. STATE.
    No. A-6350.
    Opinion Filed Oct. 6, 1928.
    (270 Pac. 860.)
    John J. Carney, L. W. Harrod, J. Q. A. Harrod, and Lee Gill, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error was convicted in the district court of Oklahoma county on a charge of robbery and was sentenced to serve a term of five years in the state penitentiary. The state has filed a motion to dismiss for the reason that the appeal was not filed within six months from the date of the rendering of the judgment. The judgment in this case was rendered on February 15, 1926. The petition in error was filed on Tuesday, August 17, 1926, more than six months from the date the judgment was rendered. Section 2808, Comp. St. 1921, in part reads: “* * * In felony cases the appeal must be taken within six months after the judgment is rendered. * * *”

The statute fixes the time for appeal and this court is without power to extend the terms of the statute, and when, as in this case, the appeal is filed after the expiration of the six months’ period, this court does not acquire jurisdiction, but must dismiss the appeal. Howey v. State, 9 Okla. Cr. 453, 132 P. 499; Dunn v. State, 18 Okla. Cr. 493, 196 P. 739; George v. State, 21 Okla. Cr, 240, 205 P. 942; Heath v. State, 22 Okla. Cr. 122; 210 P. 560; Criner v. State, 37 Okla. Cr. 313, 258 P. 359; Easterwood v. State, 38 Okla. Cr. 72, 259 P. 181.

The attempted appeal is dismissed and the cause remanded to the district court, with instructions to enforce the judgment,

DOYLE, P. J., and DAVENPORT, J., concur.


text:
    L. I. WICKETT v. STATE.
    No. A-6498.
    Opinion Filed Oct. 6, 1928.
    (270 Pac. 861.)
    A. M. De Graffenried, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the county court of McIntosh county on a charge of selling one-half gallon of whisky to Sam Monahawee, and was sentenced to imprisonment in the county jail for 30 days and to pay a fine of $100 and costs. To reverse said judgment defendant has appealed to this court by case-made with petition in error attached.

The case was filed in this court on February 15, 1927. Under the rules of this court, where an appeal is not supported by brief and no personal appearance is made by plaintiff in error to orally argue the same, it is assumed that the plaintiff in error has abandoned his appeal or that it is without merit.

Two of the officers of McIntosh county, in their zeal to catch the defendant, gave the witness Monahawee money and sent him to defendant’s house, as they claim, to buy whisky. The record shows that the witness went to the home of defendant and talked to the defendant about buying some cattle. The witness says he bought one-half gallon of whisky from the defendant, for which he paid $5. Defendant denies he sold witness :any whisky. Defendant says he sold the witness a calf, for which he received $5. It is the duty of the officers to enforce the law, but we do feel constrained to say we do not approve of the method used by the officers.

The evidence in this case is conflicting. This court has repeatedly held that it will not interfere with the finding of the jury where there is any competent evidence to sustain the verdict. A careful examination of the record discloses that the information charges an offense; that the evidence sustains the verdict; and that there are no fundamental errors prejudicial to the rights of the defendant.

The judgment of the trial court is affirmed.

DOYLE, P. J., and EDWARDS, J., concur.


text:
    NOBLE WILLIAMS v. STATE.
    No. A-6491.
    Opinion Filed Oct. 6, 1928.
    (270 Pac. 862.)
    Tom W. Cheatwood, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, has appealed from the judgment and sentence of the county court of Cleveland county, state of Oklahoma, wherein he was tried, convicted, and sentenced on a; charge of pointing a pistol at one Coleman Snow, in violation of the criminal laws of thé state of Oklahoma.

This case was commenced in said county court on the 25th day of May, 1926, by J. D. Holland, then county attorney, filing an information in said court against the defendant herein, which information charged the defendant with unlawfully and willfully pointing a pistol at Coleman Snow, contrary to the statutes in such cases made and provided. Omitting the caption, the following affidavit was attached:

“Personally appeared before me, court clerk, in and for Cleveland county, state of Oklahoma, J. D. Holland, county attorney, of lawful age, who being sworn, upon his oath deposes and says that he has read the foregoing information and knows the contents thereof and the facts and allegations therein contained are true, as he is informed and verily believes.”

Section 2511 of the Compiled Statutes of Oklahoma 1921, among other things, provides as follows:

“All informations shall be verified by the oath of the prosecuting attorney, complainant or some other person.”

In Re Tom Talley v. State, 4 Okla. Cr. 398, 112 P. 36, 31 L. R. A. (N. S.) 805, this court, in construing the statute above quoted, makes the following statement:

“That no misunderstanding with respect to the statements made above as to the necessity of the verification of informations may arise, we deem it proper to state further that the holding that such requirement exists relates solely to informations charging a misdemeanor.”

It is admitted that the verification of the information is defective for the reason that it is made on information and belief, and for that reason, if properly challenged, is sufficient to warrant a reversal of this case. The verification of an information charging a misdemeanor and stating that the affiant declares that the statements set forth in the information are true as he is informed and verily believes is nothing more than an expression of an opinion and insufficient to support a judgment and conviction. In re Talley, 4 Okla. Cr. 398, 112 P. 36, 31 L. R. A. (N. S.) 805; Muldrow v. State, 4 Okla. Cr. 324, 111 P. 656.

When the case was called for trial on the 18th day of November, 1926, the defendant appeared in person and moved the court for permission to withdraw his plea of not guilty heretofore entered, which motion of defendant was allowed by the court, and defendant filed the following motion to set aside, quash, and hold for naught the information :

“Comes now the defendant, Noble Williams, and moves the court at this time to quash, set aside, and hold for naught the information in the above-entitled cause, for the reason that the same is not verified in positive terms as required by law, but is verified by the county attorney on information and belief only.”

Which motion was by the court overruled and defendant duly excepted. It is argued by the defendant that his motion to quash the information should have been sustained by the court. The only question to be determined by this court is, Did the defendant by having entered a plea of not guilty waive his right to file his motion to quash, set aside, and vacate the information? We hold that, when the defendant’s motion to be permitted to withdraw hig former plea of not guilty was sustained by the court, the defendant then stood before the court in the same position as though no- plea had been entered.

In the case of Gibbons v. Territory, 5 Okla. Cr. 216, 115 P. 131, this court, in passing upon a similar question to the one involved; in this case, says:

“On the first trial of this case the appellant raised no objection to the sufficiency or regularity of the indictment. On the second trial, however, he was given permission to withdraw his plea of not guilty and file a motion to set aside the indictment. When the court permitted appellant to withdraw his plea of not guilty he then stood in the same attitude as if no plea had been entered, and the motion to set aside was in time.”

The motion of the defendant to quash and set aside the information was in time, and the court erred in not sustaining. the same. There are other errors assigned, but upon a careful examination we find them without merit.

The judgment of the trial court is reversed.

DOYLE, P. J., and EDWARDS, J., concur.


text:
    Ex parte EVERETT BROWN.
    No. A-7181.
    Opinion Filed Oct. 11, 1928.
    (270 Pac. 1117.)
    Sadler, Hall, Chappelle, Moffett & Thompson, for petitioner.
    Edwin Dabney, Atty. Gen., J. H. Lawson, Asst. Atty. Gen., and Byron Kirkpatrick, Co. Atty., for respondent.
   DAVENPORT, J.

In this proceeding, the petitioner, Everett Brown, filed in this court on October 4, 1928, his duly verified petition alleging that he is unlawfully imprisoned in the county jail of Tulsa county, at Tulsa, Okla., by R. D. Sanford, sheriff of Tulsa county; that he is held under a commitment issued by Judge S. Morten Ruther-ford, one of the judges of the common pleas court of said county. Petitioner avers that he is not guilty of the crime of murder as charged, and the proof of the guilt of the crime charged is not evident, nor presumption great; that heretofore he made application to Judge R. D. Hudson, judge of the district court, in and for Tulsa county, for bail on said charge, and said application was denied. Attached to said petition is a transcript of the testimony taken at the preliminary examination. After a careful examination of the transcript of the evidence filed and attached to the petitioner’s petition, it is adjudged that the petitioner •is entitled to be admitted to bail, and it is ordered that said petitioner be admitted to bail in the sum of $10,000; said bond to be conditioned as provided by law, and to be approved by the court clerk of Tulsa county.

DOYLE, P. J., and EDWARDS, J., concur.


text:
    ROBERT JORDAN et al. v. STATE.
    No. A-6488.
    Opinion Filed Oct. 6, 1928.
    (270 Pac. 863.)
    Jas. A. Embry, for plaintiifs in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiifs in error, hereinafter called the defendants, were convicted upon a trial by a jury of the crime of possession of about 50 gallons of mash containing more than one-half of 1 per cent, of alcohol, measured by volume, and capable of being used as a beverage, and each defendant was sentenced to pay a fine of $50 and be imprisoned in the county jail for a period of 30 days. Motion for new trial was filed and overruled, and defendants duly excepted and have appealed to this court.

The testimony on behalf of the state is, in substance, as follows: John Crawley, a deputy sheriif, testified that he knew the defendants; that on or about August, 1926, he had a search warrant for a tract of land, and that he, a Mr. Wallace, Mr. Maples, and Bill Dunn went out to the Mullins place and served the search warrant on him; that he searched the Mullins place and found some empty barrels, but no whisky in them; they smelled like they had had whisky in them.

The testimony of the other witnesses was in substance the same as Mr. Crawley, who searched the defendants’ home; that defendant Jordan was dining at the Mullins home when they went there. Witnesses further testify the only thing they found at the Jordan house was some sugar and fruit jars; that something like 100 yards or ¡more from where Jordan lived they found in a house, which the testimony shows to have been occupied by Marion Gray, a still, some mash, and a cook stove. This is in substance all of the testimony of the state which tends to connect 'the defendant in any way with the mash and still found ■in the cabin 100 or more yards away from where Mr. Jordan, one of the defendants in the case, lived.

The testimony shows that Mullins, the other defendant, lived a quarter of a mile or more away, and that he did not have anything to do with the house that had been formerly occupied by Gray, that the property was rented to Gray, and that Gray had moved into town only a day or two before the search was made.

, The testimony on behalf of the defendants tends to 'show that Mr. Jordan had only moved to the place where ,he was living on Saturday night previous to the Sunday morning the officers went out and made the search, and when they came out to the place defendant Jordan and his wife were taking their meal at the home of the defendant 'Mullins. The testimony on behalf of the defendants shows that there was' a section line running between the Mullins place and the cabin where Gray had lived, in which the mash, a still, and a cook stove were found. Jordan had not lived on the place but one night according to the uncontradicted testimony, and Mullins did not live on the same subdivision of land that the cabin was located on where they claim they found the mash, a still, and cook stove. The proof is not contradicted that a man by the name of Marion Gray had been living in the cabin where it was claimed the mash, a still, and cook stove were found, and that Gray had only moved away from the house a day or two previous to the time the officers claim to have made the search.

The proof further shows that the Gray house was across a section line from the houses occupied by Mullins and Jordan; the defendant Jordan having moved to the house that was searched by the officers on Saturday night previous to their searching it on Sunday morning and that he knew nothing about the house or anything that had been on the place, and had not had an opportunity to look around over the lands near him, nor had he been across to where the cabin is located that the testimony shows to have been occupied by Gray. Jordan denied any knowledge of the mash, still, and cook stove being in the cabin, or denied he had any knowledge of their being there, or having any interest in the articles claimed to have been found.

The defendant Mullins, who lived more than a quarter of a mile from the cabin where it was claimed they found the mash, still, and cook stove, denied any knowledge of their being there, and denied having any interest in them. The testimony on his behalf shows that the cabin they searched was not on the subdivision of the land the defendant Mullins had in his possession or control.

The defendants have assigned four errors alleged to have been committed in the trial of their case, all of which will be considered together, as they relate to the sufficiency of the evidence to sustáin a conviction; that is, Is the evidence sufficient to sustain a conviction of one or both of the defendants for wrongfully having possession of intoxicating liquor, to: wit, 50 gallons of mash containing more than one-half of 1 per cent, of alcohol, capable of being used as a beverage, with the intent then and there on the part of the defendants to sell, barter, give away, or otherwise furnish the same? It is strongly urged by the defendants that the evidence wholly fails to sustain the allegations in the information, and for that reason the court should have directed the jury to return a verdict in favor of the defendants, or should have sustained their motion for a new trial.

The state called Constance Walcott, who testified she was a pharmacist, that she analyzed the contents of a jar containing a substance brought to her by the sheriff, and that it contained 3 per cent, alcohol. 'She did not state the method used by her in analyzing the contents of the jar about which she testified. There is no testimony whatever showing that the contents of the jar she claims to have analyzed was a compound that was capable of being used as a beverage. No effort is made by the state to show that the compound was capable of being used as a beverage.

In Wheeler v. State, 25 Okla. Cr. 365, 220 P. 962, this court said:

“One of the essential elements of the offense charged is thatj the liqulor or compound was capable; of being used as a beverage. The character of a compound or mixture containing as much as one-half of 1 per cent, of alcohol or more may be such that its use as a beverage ■is impossible.”

Defendant urges that the evidence upon behalf of the state is insufficient to sustain a conviction of possession. Upon a careful examination of all the evidence we are constrained to hold that the evidence is not sufficient to sustain the verdict; that the evidence falls far short of that certainty required to convict in criminal cases. Lunsford v. State, 38 Okla. Cr. 233, 260 P. 514; Tipton v. State, 38 Okla. Cr. 74, 258 P. 1053; Mater v. State, 9 Okla. Cr. 380, 132 P. 383.

For the reasons herein stated, the case is reversed.

DOYLE, P. J., and EDWARDS, J., concur.


text:
    JOHN YANCEY et al. v. STATE.
    No. A-6117.
    Opinion Filed Oct. 15, 1928.
    (271 Pac. 170.)
    F. R. Burns, Q. P. McGhee, O. F. Mason, E. B. Hunt, and E. G. Avery, for plaintiffs in error.

      George F. Short, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and A. L. Commons, Co. Atty., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the district court of Ottawa county on a charge of murder, and were sentenced to life imprisonment in the state penitentiary.

The record discloses a state of facts about as follows : On May 24, 1925, the body of Harve Stephens was found in the shaft of the Silver Fox’ mine, just north of the city of Picher, Okla., in the state of Kansas. The mine had not been in operation, and the opening was covered with plants. There was about 40 feet of water in the mine shaft, which was 318 feet deep. The body was discovered by persons preparing to operate the mine. It had evidently been in the mine for about two months. The head was badly crushed, appearing to have been beaten. Defendants Yancey and Burke were arrested and charged with the crime, and a woman named Blanche Strong was held as a witness. At both the preliminary and the final trial, she was the principal witness for the state. She testified, in substance: That on March 27, 1926, she resided at the Beaver Flats in Picher, in rooms occupied by Burke and his wife. On that day, one Harmon brought two strangers to the Burke rooms, one of whom was Stephens. Burke and Yancey were there at the time. Harmon told them that these were a couple of chumps who wanted to put on a party, and Stephens then gave Yancey $5, and he went out and procured whisky, which was drunk, and one or two other expeditions were made out to procure whisky. That about 10:30 Yancey sent Harmon after whisky and some sleeping powders, which Harmon brought, and the powders were placed in the whisky and was drunk by Stephens and his companion. That defendants held Stephens and she took his money from him; a fight ensued in which Yancey knocked Stephens down, then went to Burke’s car standing near, procured a tire crank, and returned and beat Stephens on the head with it, which beating continued until Stephens became unconscious. During this time Burke was holding Stephens’ companion to prevent his interfering, and that she then went to the apartment of Mrs. Hamilton and counted the money taken from Stephens. That Mrs. Hamilton made a threat of calling officers, and defendants then loaded Stephens’ body into the car and required her to go with them. They drove out across the state line, and the body of Stephens was put out and covered up. They then returned to the apartment, and soon thereafter defendants - left again, and were gone about an hour and a half. After they returned, defendant Yancey told her the body had been thrown into the mine shaft, and that he was “deader than hell.”

Mrs. H. J. Hamilton testified that she resided at the Beaver Flats in March, 1925; that she heard the fight in front of Burke’s apartment testified to by Blanche Strong; that she saw Yancey beating a man over the head with a crank and Burke holding another man, and that Blanche Strong came to her apartment and counted some money; and this witness told Yancey if they did not get the man away from there she was going to call the law, and that Yancey and Burke loaded the body into Burke’s automobile, put the other man in, and that they and Blanche Strong all got in and drove off, and that a second trip in the Burke car was made later that night. She testified at length, and corroborated Blanche Strong in many particulars.

In addition to the county attorney, F. W. Church, a member of the bar at Miami, appeared for the state. Before entering upon the trial, defendant Burke filed an affidavit to disqualify and prevent Church appearing as counsel for the state, the affidavit and testimony taken on this point showing that after the incarceration of Burke in the jail he sent for Church, and that Church came to the jail and inquired what he was charged with, and that he told him murder; that he was charged with a fight at the Beaver Flats in which it was claimed Harve Stephens was killed; that Church then named a fee of $1,000, which was not raised, and nothing further was done in reference to the employment; that the employment was never consummated, nor the details of the case were never talked between Burke and Church. The trial court, after hearing the testimony, made a finding that there was no foundation for the motion to disqualify Church. Defendants contend this was error. It is well settled that an attorney cannot represent adverse interests, and the inhibition is strictly enforced. The authorities are in effect that, where an attorney, even where no fee has been agreed upon, demanded, or asked, and though the services rendered are gratuitous, yet if he has discussed the case with his client, or voluntarily listened to his statement of the case, he is thereby disqualified to accept’ employment on the other side of the case. Steeley v. State, 17 Okla. Cr. 252, 187 P. 821, and authorities cited; Ward v. State, 33 Okla. Cr. 182, 242 P. 575.

An attorney, however, is not disqualified where he does not represent or accept employment by the defendant, nor assume to do so, and does not discuss nor voluntarily hear the preliminary statement of the defendant, but, where the services of an attorney are sought by one accused of crime, and he merely ascertains the charge and fixes a fee, which is not paid nor promised, and as a consequence the employment is not consummated, certainly this mere seeking of his services, his inquiry as to the nature of the charge as a basis for the fixing of a fee does not disqualify him. The trial court was entirely correct in his ruling.

Next it is contended that the witness Blanche Strong was an accomplice, and that there is not sufficient evidence corroborating her testimony to sustain the judgment. That the witness Blanche Strong was an accomplice of defendants in the robbery of the deceased, Stephens, is evident, but that she was an accomplice in the murder may be doubted, and is a question not necessary to determine. From the facts as above stated, the evidence of Mrs. Hamilton alone would be sufficient corroboration, without considering various other items of evidence corroborating her. There is some argument that the court erred in permitting this witness to testify, for the reason that her name was not on the list of witnesses served on defendants. The name of Blanche Strong was indorsed and served with the list of witnesses. When called as a witness, she testified her name was Blanche Strong, and it was only on cross-examination when it was discovered that at one time she had been married to a man named Webb and had not been divorced from him, although she had a divorce action pending, and that prior to such marriage her name was Blanche Strong. She had lived in the apartment with defendant Burke and wife, and went by the name of Blanche Strong, was generally known by that name, and was known and referred to by defendants as Blanche Strong. No objection to her testifying was made, and it was only when it was discovered on cross-examination that she had been married to Webb that the objection was made. Defendants must have known at all times the particular witness indorsed and listed under the name Blanche Strong. If there is any inaccuracy in the name, it was waived by their announcing ready for trial and the failure to object to the witness when first called. Tallon v. State, 22 Okla. Cr. 89, 210 P. 309.

The argument is next made that the court erred in overruling defendants’ application for a continuance. This application was based on the absence of seven persons for whom a subpoena was issued and which was returned unserved, and on the absence of O-lennj Harmon, for whom no subpoena was issued, but whom defendants allege promised he would attend iand testify. From the testimony of Blanche Strong, it appears Harmon was present at the Beaver Flats at the room with defendants and deceased until a short time before the homicide. The affidavit for continuance states that he lives at Saginaw, Mo. Why no effort was made to procure his attendance at the trial or why his deposition was not taken is not shown. The absence of this witness on the promise that he would attend and testify, where no subpoena was issued for him and no attempt made to take his deposition, presents no reason for a continuance. Hopkins v. State, 9 Okla. Cr. 104, 130 P. 1101, Ann. Cas. 1915B, 736.

It is stated that the other witnesses are residents of Ottawa county. Mr. Warner, Mr. Woolsey, and Mr. Luckey, deputy sheriffs, who attempted to make service of this subpoena, testified that they had made diligent effort to locate the witnesses named, and, being unable to do so, Mr. Warner went to the jail and inquired of ¡defendants for particulars which might enable them to locate these witnesses. Defendants informed them they did not know two of them, but that two of them were working at the Commonwealth mine. The deputy sheriff thereupon went to the Commonwealth mine and ascertained that these two persons had not been there since June 20. The officers then diligently followed up any information they could get, and inquired of numerous persons, and examined the police records and hotel registers, and used unusual zeal in attempting to find these persons, and there is no reason to believe that their attendance could be had by any continuance of the case, for the reason that their whereabouts is unknown. Buxton v. State, 11 Okla. Cr. 85, 143 P. 58; Bornheim v. State, 16 Okla. Cr. 704, 183 P. 514; Williams v. State, 17 Okla. Cr. 375, 188 P. 890; Gaines v. State, 18 Okla. Cr. 525, 196 P. 719.

Also it is argued that the information is insufficient in failing to set out in what manner the homicide was committed. Under this assignment it is argued that the allegation that deceased was killed by being beaten with an automobile wrench is not sufficiently definite. There is no merit in this contention. Johnson v. State, 1 Okla. Cr. 321, 97 P. 1059, 18 Ann. Cas. 300.

Some other matters are referred to in the brief, but none are particularly stressed or apparently relied on, and such matters do not call for any special discussion. Upon a consideration of the entire record, we are satisfied that defendants had a fair trial, and that no erroi of any consequence occurred at the trial, that the guilt of defendants is clearly shown, and that this court should not interfere with the judgment.

The case is affirmed.

DOYLE, P. J., and DAVjENPORT, J., concur.


text:
    OMER McDANIEL v. STATE.
    No. A-6495.
    Opinion Filed Oct. 19, 1928.
    (270 Pac. 1115.)

      Roy White, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted on an information charging that in McIntosh county, on or about the 27th day of April, 1926, he did then and there manufacture certain intoxicating liquor, to wit, T|- gallons of whisky, and his punishment fixed at 60 days in jail and a fine of $100. Motion for new trial was filed and overruled, and exceptions saved. From this judgment and sentence, defendant brought his appeal to this court.

The evidence of A. R. Kirkpatrick, a deputy marshal, and Charley Healey, who was city marshal, is that on the 27th day of April, 1926, they were out in the neighborhood of defendant’s home; they had no warrant for the arrest of the defendant, or to search his home or curtilage; that they went upon the premises of the defendant and came up near to his house; they claim to have smelled something like beer cooking; they went up to the cellar, which is near the home of the defendant, and searched it, and found the defendant there, and claim to have found a still and a gallon and one-half of whisky.

The defendant urges that all of the testimony against him was inadmissible for the reason that the officers entered upon his premises without any warrant to search, and had no legal authority to search the curtilage of his home, and they did search the same without authority, and were trespassers upon his premises at the time they claim to have found the whisky in defendant’s possession.

The defendant interposed an objection to the introduction of the testimony of the witnesses A. R. Kirk-Patrick and Charley Haley, for the reason that it was all procured unlawfully and in violation of his rights as .a citizen of the state of Oklahoma. At the close of the testimony of each of the witnesses, the defendant moved the court to strike the testimony, on the ground that the search and seizure was made without a legal search warrant, and that .their testimony was incompetent, irrelevant, and immaterial, which motion of the defendant was overruled and defendant duly excepted. The state undertakes to justify the action of the officers on the ground that they claim when they went near the cellar of the defendant they smelled the beer cooking, and they went up and opened the door of the cellar and found the still. Section 30, aft. 2. of the Bill of Rights, provides:

“The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.”

Section 7012, C. O. S. 1921, provides:

“No such warrant shall issue but upon probable cause, supported by oath or affirmation describing as particularly as may be the place to be searched, and the person or thing to be seized.”

Section 7013, C. O. S. 1921, provides: '

“No warrant shall be issued to search a private residence, occupied as such, unless, it, or some part of it, is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort.”

The law wisely provided how the home and curtilage of an .individual may be entered upon by the officers for the purpose of making a search, and has particularly described what is necessary to be done by the officers before searching the home and curtilage of a citizen. This law must be strictly complied with in order that our laws may be properly enforced and the rights of our citizens upheld. Those charged with the enforcement of the law must comply with the law before seeking to secure testimony against those they believe to be violating the law. It serves no good purpose for a sworn officer of the law to fail or neglect to comply with the law in making an effort to secure evidence against one whom he believes is violating- the law. Unless our officers, whose duty it is to administer the law, obey and respect the law, we cannot hope for the faithful observance of the same by our citizens.

“The search of a dwelling house or the immediate surroundings within the curtilage of a dwelling house, without a search warrant, is in violation of section 30, art. 2, of the state Constitution.” Russell v. State, 37 Okla. Cr. 71, 256 P. 758.

The evidence offered by the state was incompetent, and timely objection having been made, it should have been excluded.

For the reason assigned, the case is reversed and remanded, with directions to dismiss.

DOYLE, P. J., and EDWARDS, J., concur.


text:
    Ex parte W. A. STONE.
    No. A-7194
    Opinion Filed Oct. 19, 1928.
    (270 Pac. 1118.)
    W. E. Crowe, for petitioner.
    Edwin Dabney, Atty. Gen., for respondent.
   PER CURIAM.

This is an original proceeding in habeas corpus to reduce the amount of bond of petitioner fixed by the district court of Garfield county. Petitioner is charged with the crime of rape in the first degree. He heretofore filed an application in this court, 41 Okla. Cr. 12, 269 P. 785, to be admitted to bail; bail was denied. Thereafter he was tried in the district court of said county; the jury failed to agree. Counsel for the petitioner and for the state have stated to the court on this application that the jury was éleven for acquittal and one for conviction. After the discharge of the jury, the district court admitted petitioner to bail in the sum of $25,000. Petitioner has been unable to give the bail, and this application is for a reduction of the amount. Upon considering the application and stipulation of facts, we are of the opinion that the bail should be reduced to the sum of $15,000, sureties-to be approved by the court clerk of Garfield county. It is so ordered.