text:
    MILTON KING et al. v. STATE.
    No. A-9737.
    Jan. 22, 1941.
    (109 P. 2d 836.)
    Joe Adwon and E. T. Barbour, both of Oklahoma. City, for defendants.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Phil E. Daugherty, Asst. Co. Atty., of Oklahoma City, for the State.
   BAREFOOT, P. J.

Defendants Milton King and Joe Brison were charged in the court of common pleas of Oklahoma county with the crime of conducting a public nuisance; were tried, convicted, and each sentenced to pay a fine of $50 and serve a term, of 30 days in the county jail, and have appealed.

It is contended that the evidence is insufficient to support the judgment and sentence. It is disclosed by the record that defendant Joe Brison had rented a building located at 1700 Northeast Fourth street in Oklahoma City, and in which was located a. beer parlor and cold drink stand. The defendant Milton King was employed to run and manage the place and was paid a salary by defendant Joe Brison. The place had been in operation from some time in October, 1938, to February 4,1939, the date alleged in the information. That prior thereto' a grocery store had been conducted there by other parties.

The evidence revealed that four, county officer's of Oklahoma county went to the place on the night of February 4, 1939, about 12 or 1 o'clock. The place was a place of public resort. They found congregated there 40 or 50 negroes in a small room that had a bar, glasses and1 other paraphernalia, and a musicbox which was playing loudly at the time the officers entered. The defendant Milton King was behind the bar. The defendant Joe Brison was not there at the time the officers entered, but had left the premises a short time prior thereto. The officers went through the crowd to where the defendant Milton King was, and saw him grab a half-gallon jar of corn whisky and pour it on the floor behind the bar and shove some clothes over the same. They smelled the whisky and also the vessel from which the whisky was poured, and alsoi secured the vessel from which the whisky was poured. Another half gallon of whisky was found by the officers in the automobile of the defendant Joe Brison which was parked just north of the building. The whisky was in the car so it could be observed by the officers, by looking through the glass doors. One couple of the customers were found hidden in a closet in one portion of the building.

The officers testified they could smell whisky on the breath of a number of people present. They, however, said they did not actually see anyone drinking liquor.

Many witnesses who lived in very close proximity to the premises testified that the same defendants had operated the place from October, 1988, to February 4, 1939. That they had continuously seen people coming from the premises in a drunken condition and swearing and cursing. That this had gone on almost continuously since the time that the place had been operated by the defendants. That so much noise was made that it was impossible for them to sleep in their nearby homes. Many of them testified that they considered it dangerous to' go by the premises, especially in the nighttime, and they were afraid to let their children pass the premises going to and from school. Many of the witnesses who testified were good citizens who did not frequent places of this character. The officers, prior to going there, had received a petition from the citizens in that community requesting them to investigate the place.

A place where beer is legally sold is not a nuisance per se, but may become such by the manner in which it is conducted. Oklahoma Statutes 1931, sec. 2616, 37 Okla. St. Ann. § 73, provides:

“All places where any spirituous, vinous, fermented or malt liquors * * * is kept or possessed by any person in violation of any provision of this act; and all places where persons congregate or resort for the purpose of drinking any such liquor, are hereby declared to be public nuisances, •x- * * anc| the owner or keeper thereof shall, upon conviction, be adjudged guilty of maintaining a public nuisance, and shall be punished by a fine of not less than fifty dollars nor more than five hundred dollars, and by imprisonment in the county jail not less than thirty days nor more than six months. * * *”

Oklahoma Statutes 1931, sections 11489 and 11490, 50 Okla. St. Ann. §§ 1 and 2, define “nuisance” as follows:

(1) “A nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either:
“First. Annoys, injures or endangers the comfort, repose, health, or safety of others; or,
“Second. Offends decency; or
“Third. * * *
“Fourth. In any way renders other persons insecure in life, or in the use of property.”
“A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon the individuals may be unequal.”

The evidence in the case at bar reveals the defendants were conducting the place alleged in the information in such a manner as to constitute a public nuisance within the terms described by the above statutes. It is not necessary under the law that proof of acts should be confined exclusively to the premises described in the information. Blanton v. State, 38 Okla. Cr. 149, 259 P. 655. The fact that people were seen to come from there in an intoxicated and drunken condition and immediately begin swearing and cursing and so conducting themselves as to be offensive to law-abiding citizens of the adjoining and nearby premises, and the fact that noises were made in or near the premises by those frequenting the same at all times of the night so that people could not sleep, were facts to be properly considered by the jury in coming to the conclusion that defendants were guilty of conducting the place in such a way as to constitute a public nuisance as charged in the information.

It has been held by this court that proof of a public nuisance could be proved by circumstantial evidence. Hilbert v. State, 44 Okla. Cr. 89, 279 P. 910. Certainly the evidence here, both direct and circumstantial, fully justified the jury in finding that intoxicating liquor was being sold and drunk upon the premises in such a manner as to constitute a public nuisance.

It is therefore ordered that the judgment of the court of common pleas of Oklahoma county be affirmed.

DOYLE and JONES, JJ., concur.


source: Caselaw Access Project

author: J ONES, J.

license: Public Domain

text:
    ALFRED PRESNELL v. STATE.
    No. A-9732.
    Jan. 22, 1941.
    (109 P. 2d 834.)

      Cbas. E. Webster, of Drumright, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   J ONES, J.

The defendant, Alfred Presnell, was jointly charged in the district court of Payne county, Okla., with one Richard Mansker and one Bill Foster with the ■crime of burglary in the second degree. A severance was granted; the defendant, Alfred Presnell, was tried, convicted, and sentenced to serve a term of two years in the State Penitentiary, and has appealed to this court.

The defendant makes two assignments of error before this court:

(1) Error of the court in refusing to give defendant’s requested instruction on circumstantial evidence.

(2) Certain remarks made by the county attorney in his argument to the jury were prejudicial to the defendant’s rights and constituted reversible error.

On May 27, 1936, a warehouse belonging to the Carter Oil Company, which contained oil field supplies; was broken into- during the daytime. The warehouse was built of tin, reinforced with lumber. The tin and boards had. been pried loose from a portion of the north side. The defendant, as identified by three witnesses who drove up while the building was being burglarized, was seen to run from this opening which had been made in- the building. Four gate valves had been carried from the building and were left on the outside of the hole. Defendant was arrested at Drumright by officers there because a parked car owned by defendant’s brother was abandoned near the warehouse, and the description of one of the burglars fitted the defendant; and when seen in jail by the employees of the company, they positively identified him as one of the burglars.

The defendant did not testify. He offered alibi witnesses to show that he was not at the warehouse at the time the crime was committed.

As to the defendant’s contention that the court erred in refusing to give his requested instruction on circumstantial evidence, it was held by this court in Bradley v. State, 18 Okla. Cr. 503, 196 P. 730:

“Instructions requested must be applicable to the evidence. The trial court is not compelled to give any certain requested instruction, although it may state a correct proposition of law, where there is no- evidence upon which to base the request.”

The state did not base its case upon circumstantial evidence, but upon the actual, positive identification of the defendant as having been present at the breached wall in the warehouse and as having fled when surprised by employees of the Carter Oil Company. An alibi instruction was given to the jury. And since the defendant relied for his defense solely upon alibi witnesses, it was within the province of the jury to determine the truthfulness of the alibi.

The court was correct in not giving an instruction on circumstantial evidence. There were circumstances which caused the arrest of the defendant by officers at Drum-right ; but upon the trial of the case, the state relied solely upon the testimony of the employees that the defendant was the person they saw running from the warehouse at the time they approached.

The defendant contends that reversible error was committed by the county attorney in calling the attention of the jury to the fact that the defendant had not testified in his own behalf in using the following words:

“The witness Deehan, who is now deceased, in his testimony identified this defendant, and that has not been denied or contradicted by any one in this case.”

In Perkins v. Territory of Oklahoma, 17 Okla. 82, 87 P. 297, it is stated:

“Where a defendant fails to offer any evidence, the prosecution is not prevented from discussing the evidence against him, and to insist that such evidence is undisputed; hut a prosecuting officer under the statute must refrain from calling attention of the jury to the fact that a defendant has failed to testify in his own behalf. Wilson v. Territory, 9 Okla. 331, 60 P. 112.”

The case of Chesser v. State, 63 Okla. Cr. 84, 73 P. 2d 191, 192, was very similar to the facts in the case at bar. The defendant in that case was charged with larceny of domestic animals. The defendant did not take the witness stand, and his defense was an alibi. In that case this court, in a well-considered opinion by Judge Doyle, stated:

“Statements of the prosecuting attorney, in argument to' the jury, ‘Why couldn’t they contradict the state’s testimony, but not one place do they do that,’ and ‘I say again there is no evidence offered to contradict the state’s evidence in this case,’ held, not a comment upon the failure of the defendant to< testify as a witness in his own behalf, within the meaning of section 3068, St. 1931 (22 Okla. St. Ann. § 701).”

That decision is controlling in the disposition of the instant case. See, also, Lakes v. State, 61 Okla. Cr. 252, 67 P. 2d 457; McDonald v. State, 59 Okla. Cr. 318, 58 P. 2d 345; McDaniel v. State, 35 Okla. Cr. 425, 250 P. 804; Murrell v. State, 34 Okla. Cr. 413, 246 P. 644.

The jnry, in returning their verdict, recommended that the sentence of two years be suspended during the good behavior of the defendant. This is a matter addressed to the sound judicial discretion of the trial judge. The trial court in passing sentence, of course, has a right, to inquire into' the past reputation and conduct of the defendant, which might possibly bring forth matters which would prevent the defendant from receiving a suspended sentence. Unless such investigation shows conduct on the part of the defendant, which indicates that he is; not eligible under the statute to receive a suspended sentence for this crime by him committed, this1 court is of the opinion that great weight should be attached to the recommendation of the jury.

Finding no material error in the record sufficient to require reversal, the judgment of the district court of Payne county is accordingly affirmed.

BAREFOOT, P. J., and DOYLE, J., concur.


author: DOYLE, J.

text:
    GEORGE ARNOLD v. STATE.
    No. A-9727.
    Jan. 22, 1941.
    (110 P. 2d 309.)
    James H. Hays, Jr., of Okmulgee, for plaintiff in error.
    • Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, J.

The information in this case, filed in the county court of Okmulgee county, charges that George Arnold did keep and have unlawfully in his possession seven quarts of whisky with the intention to sell the same. On the trial the jury returned a verdict finding him guilty and fixing his punishment at confinement for 30 days in the county jail and a fine of $50.

An appeal by petition in error with transcript, of the record proper was filed in this court on September 25, 1939.

When the case was called for final submission no appearance was made and the case was submitted on the record.

No briefs have been filed, from which fact this court, might assume that the appellant has abandoned his appeal. Without acting on such assumption, however, we have examined the record and find the information sufficient, and that the motion to suppress evidence was properly overruled. The instructions were fair and no error is apparent. The judgment of the court is therefore affirmed.

BAREFOOT, P. J., and JONES, J., concur.


author: JONES, J.

text:
    TINY PICKENS v. STATE.
    No. A-9731.
    Jan. 29, 1941.
    (110 P. 2d 319.)

      Mathers & Mathers, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Tiny Pickens, was by information charged with the unlawful possession of intoxicating liquor on September 11, 1937, tried, convicted, and sentenced to pay fine of $50 and tO' serve 15 days in the county jail, from which judgment and sentence she appeals to this court.

The defendant contends that the court erred in overruling her motion to suppress the evidence for the reason that the search warrant was invalid, and that the evidence is insufficient to sustain the conviction.

The search warrant was a John Doe warrant describing “a one story frame house located at 1930 N. E. 10th Street in Okla. City, Okla., County, Okla.” The defendant insists that the correct address of her home, and the place searched, is 1930 E. Alice street. The state offered proof that 1930 N. E. 10th was the same place. This court, in passing upon another liquor charge against this same defendant, where this same question was raised, in an opinion by Judge Barefoot, Pickens v. State, 70 Okla. Cr. 301, 106 P. 2d 127, 128, stated:

“For reversal of this case, it is contended that the court erred in failing to sustain a motion to quash the search warrant issued herein, it being contended that the defendant lived at 1930 E. Alice street and not at 1930 N. E. 10th street. Counsel in his brief states that these two addresses are a block apart; but the evidence in the record does not substantiate this statement. It shows that Alice Street and N. E. 10th street in the place where the search occurred are one and the same, and that 1930 N. E. 10th street and 1930 E. Alice street would be at the same location. In addition, the officer who procured this search warrant knew the defendant, and knew the address, and secured the search warrant for the purpose of searching the defendant’s place. The defendant was present, and had charge of the premises at the time of the search * *

A search warrant naming John Doe and describing the place to be searched by one of two correct descriptions, comes under the holding of this court in Mitchell v. State, 43 Okla. Cr. 63, 277 P. 260:

“The description of the premises to be searched is sufficient if it enable the officers executing the search warrant to locate the premises to be searched without the aid of any other information save that contained in the search warrant.”

See, also, Weisband v. State, 69 Okla. Cr. 79, 100 P. 2d 297; Crim v. State, 68 Okla. Cr. 390, 99 P. 2d 185.

There is a conflict in the testimony of the police officers and the defendant as: to whether the address given in the search warrant is correct. It has been the uniform holding' of this court that where there is a conflict in the testimony in the hearing upon a motion to suppress the evidence that the trial court’s ruling thereon will not be disturbed if the same is supported by substantial evidence.

Officers Spooner and Long', while armed with the search warrant hereinabove described, followed a known bootlegger into the home of the defendant. They seized a package containing several pints of whisky from the table in the living room. There is a conflict of testimony as to' whether or not the defendant was in the room at the time the liquor was found by the officers. There is positive testimony that the defendant was in charge of the premises, that it was a place of public resort, and that it had a reputation as being a place where people congregated for the purpose of buying and drinking intoxicating liquor. The defendant did not testify upon the trial in her own behalf. The evidence is sufficient where the defendant offers no proof to the contrary nor explanation.

The state must show either that the place where the liquor was found was in defendant’s possession or under his control, or that the intoxicating liquor was his, or that he had possession of same either as owner or employee. Mater v. State, 9 Okla. Cr. 380, 132 P. 383.

The defendant, in her motion for a new trial, contends that two searches of her premises were had the same day, and that only one search warrant was issued. This is a question which should have been raised before the trial court in the hearing on the motion to suppress the evidence. Defendant stated, in her hearing on a motion to-suppress the evidence, that Officers. Spooner and Long had the search warrant when Officer Kean was not present. Officer Kean testified that he had made a search of the house and had found nothing. Officer Spooner testified that he procured the search warrant and seized the liquor. Officer Long testified that lie was with Spooner when the liquor was seized.

It thus appears from the record that the officers had. a search warrant at the time of their search which is the basis for this prosecution. The question raised, that two searches were made on one warrant, not being presented until after the trial, we hold that such question is waived and may not now be considered.

Finding no material error in the record, the judgment is affirmed.

BAREFOOT, P. J., and DOYLE, J., concur.


text:
    GEORGE DOTY v. STATE.
    No. A-9733.
    Jan. 29, 1941.
    (110 P. 2d 298.)

      W. W. Miller, of Tahlequah, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error, George Doty, was tried and convicted in the district court of Cherokee county, upon information charging him with the theft of one black heifer, white-faced, with large black spot under left eye, muley, the property of Floyd Vann. The jury failed to agree on the punishment. Motion for new trial was denied on March 27, 1939; thereupon the court rendered judgment and sentenced him to be imprisoned in the penitentiary for the term of two years.

From the judgment he appealed by filing in this court September 18, 1939, a petition in error with case-made.

The principal assignment of error is that the verdict of the jury is contrary to1 the law and the evidence. It is urgently argued that the evidence is insufficient to support the conviction.

Floyd Vann testified:

“I live-in the southwest part of Cherokee county, about a mile and a half from the defendant, George Doty. I raised the heifer in question from a calf up; missed it on the date alleged and found it at the stockyards at Muskogee, in the possession of Bob Jackson, a stock buyer; Charley Dye went with me, I gave Mr. Jackson a description of the stolen heifer before we went to the stock pen; when I identified the heifer he turned it back to me and I took it home. The heifer had been on the range for about a month before it was stolen.”

Harve Weatherford testified:

“I live at Ft. Gibson. About the middle of September, 1938, I hauled a motley-faced heifer and a white-face bull for George Doty to the Muskogee stockyards, and got there early in the morning. Floyd Vann came to Muskogee, claimed the heifer and got it back.”

Bob Jackson testified:

“I buy and sell livestock at the Muskogee stockyards, I handled for George Doty on commission, one black motley-faced heifer and a bull about two years old; Floyd: Vann, a colored man, came and identified the heifer as his property and I gave him the heifer.”

Charley Dye testified:

“I went to the stockyards with Floyd Vann to look for his heifer, he described her to Mr. Jackson before we went to the pen to identify her, he called the heifer by name and it came up to him. I know that Floyd Vann was the owner; several times I had tried to trade him out of this heifer at his house.”

As a witness in his own behalf the defendant testified:

“I raised this heifer, she ran with my stock and came home after the trouble came up.”

On cross-examination he stated:

“I deal in stock quite a bit and brand my calves; when they are big enough, but not all the time; I had Harve Weatherford haul this heifer and a white-faced bull that was my own to Muskogee stockyards to sell for me, I told Bill Torrick about ten days before that I did not believe the bull was mine, I did not say positively it was not my bull, but it is the same bull I sold ten days later; I bought some calves at the Muskogee stockyards and I got Bussel Clemons to brand them; this white-faced heifer was not there and when we got through it was getting late and I said we would wait until a later day, I never got around to' it; that is the reason why the heifer was not branded.”

Without going into a detailed statement of the testimony corroborating or tending to corroborate the defendant’s testimony that he was the owner of the heifer, the transcript shows that his mother and sister and four or five other witnesses testified that he raised and was the owner of the heifer.

In rebuttal the state called four witnesses whose testimony established or tended to establish the fact that the defendant was not the owner of the bull taken from the same range at the same time as the alleged stolen heifer was taken and sold at the same time.

Looking’ at this case upon the merits, it is impossible to find any ground for the interference of this court.

As heretofore repeatedly held by this court, it is the province of the jury to determine questions of fact depending upon conflicting evidence and to declare by their verdict what the truth is. It is no more the province of this court than of the trial court to determine controverted questions of fact arising upon conflicting evidence. Neither can lawfully usurp the appropriate functions of the jury, and neither can substitute its own judgment for that of the jury, where the facts are reasonably capable of diverse and opposing inferences.

The only other contention made is that the court erred in permitting the state to show the contemporaneous possession of a bull that was taken from the same range at the same time as the heifer in question was taken. Counsel cites, no authority in support of this contention.

In the early case of Davis v. State, 7 Okla. Cr. 322, 123 P. 560, the court held that in a prosecution for larceny of certain cattle, where the evidence for the defense tended to explain the defendant’s possession of the cattle, it is competent in rebuttal to show the defendant’s contemporaneous possession of other stolen cattle.

In Starr v. State, 7 Okla. Cr. 574, 124 P. 1109, the court held:

“In a prosecution for larceny of two1 cows, evidence that other cattle were taken from the same range at the same time is properly admitted as a part of the res gestae to negative tbe idea of mistake and to show the intent with which the cattle were taken.”

In Smith v. State, 32 Okla. Cr. 121, 240 P. 143, the court held:

“Where the defendant’s possession of property, recently stolen, is attempted to be accounted for, it is competent to show the defendant’s contemporaneous possession of other stolen property.”

In Glenn v. State, 52 Okla. Cr. 417, 5 P. 2d 767, the court held:

“In a prosecution for larceny where defendant’s possession of property, charged to have been stolen, is attempted to he accounted for, it is competent to show his contemporaneous possession of other stolen property.”

And see Cheeves v. State, 18 Okla. Cr. 480, 196 P. 726; Flannigan v. State, 55 Okla. Cr. 328, 29 P. 2d 989.

No other reason for reversing the judgment having been assigned and finding the record free from reversible error, the judgment appealed from should be, and is1, accordingly affirmed.

BAREFOOT, P. J., and JONES, J., concur.


author: BAREFOOT, P. J.

text:
    ROY PETERS v. STATE.
    No. A-9770.
    Jan. 29, 1941.
    (110 P. 2d 300.)

      Mac Q. Williamson, Atty. Gen., and M. F. Hudson, Co. Atty., of Idabel, for tbe State.
    Wm. A. Tidwell, of Idabel, for defendant.
   BAREFOOT, P. J.

Defendant was charged in tbe county court of McCurtain county with the crime of unlawful possession of intoxicating liquor, was tried, convicted and sentenced to- pay a fine of $250 and serve 180 days in tbe county jail, and has appealed.

This case arose from tbe search of defendant’s apartment by tbe officers of McCurtain county in Idabel on tbe 17th day of April, 1939. It is contended that tbe search warrant issued in this case was illegal, and for this reason tbe judgment and sentence should be set aside. It is necessary to briefly review the facts.

Defendant, who was a single man, was occupying a room in what was known as “Tbe Russell Apartments.” Tbe evidence revealed that this was a two-story building in the business section of the city of Idabel. The lower Story was unoccupied. The upper story had several apartments. The only ones being occupied were the room of the defendant and one adjoining room occupied by Lloyd Tol-lett, who- was single, but who had furniture stored in an adjoining room that was. locked. No other person occu-( pied said premises.

On the 17th day of April, 1939, Sam Sellars, the chief of police, had occasion to- be watching the upstairs of the building above described. He saw a party coming down the stairway and followed him to- his automobile and searched him and found on his person a pint of gin. He had no- search warrant of any kind or character, but he took this party to the office of the sheriff of McCurtain county, and the county attorney was called immediately. He came to the sheriff’s office, and the Chief of Police, Mr. Sellars, Undersheriff L. C. Roundtree, and Deputy Clyde Tinsley immediately went to- the apartment or room of defendant, Roy Peters, for the purpose of searching the same. They did not procure and did not have a search warrant. When they arrived at defendant’s room, they found a crap game in progress. The defendant, Roy Peters, was present. All of the parties were arrested and taken to the sheriff’s office. No- intoxicating liquor was found at defendant’s room at this time.

After arriving at the jail, the chief of police, Mr. Sellars, and Officers Tinsley and Deputy J. D. Butler returned to- the room of Roy Peters. A search warrant had been prepared upon an affidavit made by the county attorney. The officers had this search warrant at the time they searched the premises the second time. It is unnecessary to- set out the affidavit in full in order to pass upon the questions here involved. The description in the affidavit for search warrant specifically names the defendant, Roy Peters, as the party whose room was to be searched, and the description was as follows: “In a two story building located upon Lot 6, Block 17, Original Town of Idabel, Oklahoma.”

It is contended:

1. That the court erred in refusing to suppress the testimony on account of an illegal search warrant based upon the description of the premises as above set forth, and for the further reason that it was based on information and belief.

2. That the court erred in refusing to' sustain the objections to the county attorney’s argument and the misconduct on the part of the county attorney in his closing argument to the jury.

It will be noted that the search warrant issued in this case named the defendant, Roy Peters, as being the party whose premises were to be searched. It was certain as to the fact that he occupied a room in the building described in the search warrant. In fact, no one else was occupying any portion of the building except the one adjoining room that was occupied by Lloyd Tollett. No attempt was made by the officers to search any part of the premises except those of defendant. The officers were in no way deceived by the terms of the description in the warrant, and under these facts we do' not think the court erred in refusing to suppress the evidence received under the search warrant by reason of the description therein.

It may be further stated that there was no evidence taken on behalf of the defendant upon any motion to suppress the evidence in this case before announcing ready for trial. It was during, the trial of the case that defendant first raised the objection that the evidence should be suppressed by reason of the description in the search warrant. If the officers had found the whisky when they were first there and did not have a search warrant to search the premises, and this prosecution had been based upon that search, then it would have been necessary to sustain the motion, for the reason that the officers had no search warrant. Before making the second search, the officers procured a search warrant and had the right to search the premises by reason thereof.

The contention that the affidavit was based upon information and belief and not upon facts cannot, in our opinion, be sustained. It is argued that the affidavit and search warrant are identical with the affidavit and search warrant in the case of Freeman Davis v. State, 65 Okla. Cr. 306, 86 P. 2d 65, which said case was reversed for the reason that the affidavit was made by the county attorney of McCurtain county, and that it appeared he was not familiar with the facts, and that the affidavit was made upon information and belief. But the affidavit in this case has two- direct allegations that were not contained in the affidavit in the Freeman Davis Case. The first is an allegation that the defendant had purchased and was in possession of a Federal Internal Revenue stamp, which authorized the sale of intoxicating liquor a.t the very address alleged in the search warrant. The license was in the name of the defendant. The defendant admitted when upon the witness stand that he had such federal license. The other allegation in the affidavit was to the- effect that the chief of police of the city of Idabel had arrested John Gentry in the possession of a pint bottle of gin ten minutes before and while he was leaving the premises described in the search warrant. Besides these facts, the county attorney knew of the search by the officers just prior to the making of the affidavit. This was certainly enough knowledge to authorize the county attorney to make an affidavit for the purpose of searching the premises of the defendant. Hays v. State, 71 Okla. Cr. 62, 108 P. 2d 186. The evidence of the chief of police as to the searching and finding the pint of gin on the person of John Gentry was not competent evidence to’ be presented to the jury in the possession case against defendant, but no exception was taken to' the introduction of the same. The only reason for it being competent was that no testimony was taken by defendant on the motion to suppress the evidence and no exception was taken. Defendant announced ready for trial and on the trial was the first time that the motion to' suppress ivas made. The evidence of the chief of police was competent to' be considered by the court, as to' the knowledge had by the county attorney in making the affidavit to search the premises described in the search warrant.

It is next contended that the court erred in not sustaining an objection to' the argument of the county attorney and to’ the misconduct of the county attorney in his closing argument to' the jury. The record contains the whole argument of the county attorney and assistant county attorney. The basis of the objection is. that the county attorney said in his closing argument: “I think this search warrant is good, but Asm have a Criminal Court of Appeals in this state, that goes1 off on a wild tangent, and anything to' reverse a search warrant.”

It was. further stated by the county attorney: “I drew the affidavit myself in the Freeman Davis Case, and- they reversed that case.”

The record does not disclose that an objection was taken by the attorney for defendant at the time the statement was made in the proper manner to protect the record as has been held by this court. The record, after giving the address of the county attorney, has this statement: “Defendant objects to the argument of county attorney, which objection is by court overruled, to* which defendant excepts, and exceptions allowed.”

This is the only notation in the record to show any objection was made to the argument of the county attorney. It does not show to what part of the argument objection was made, and does not show that the court overruled the objection, and an exception was taken thereto. Sturgis v. State, 2 Okla. Cr. 362, 102 P. 57; Quitman v. State, 35 Okla. Cr. 245, 250 P. 441; Buck v. Territory, 1 Okla. Cr. 517, 98 P. 1017; Irvine v. State, 10 Okla. Cr. 4,133 P. 259. But notwithstanding this fact, it was doubtful that this statement is sufficient to reverse this case. The county attorney was evidently firmly of the belief that this court had gone off on a wild tangent, as will be shown by his further argument in this case when he states that he knew that the affidavit in the Freeman Davis Case was right “because I drew the affidavit myself.” He is stating a fact which he verily believed, whether the evidence supported it or not, and as for the members of this court, we think that the old adage that it is the privilege and prerogative of an attorney who* has lost his case to “cuss the court” is still in force in this jurisdiction if he does not do so in the presence of the court. As to* whether the court acted wisely in deciding the Freeman Davis Case as it did will be left for decision in the future. Freeman Davis v. State, 65 Okla. Cr. 306, 86 P. 2d 65. We do not exactly see how the facts of that case should have any application to a decision of the case at bar.

It is further insisted that there was misconduct on the part of the county attorney when he said:

“That testimony, Gentlemen of the Jury, about the dice game, that is just another toe-hold I am taking on Boy Peters, because under the laws of this state, if he was down there permitting people to gamble in his place, the officers had the right to go back and search him at any reasonable time, without a search warrant. * * *
■ “ * * * If he knowingly permits people to gamble in his place of business, or his home, the officers have got the right to go down and search his place to their heart’s content.”

The same statement heretofore made is applicable to this statement. The defendant did not properly protect the record in asking the court to instruct the jury to disregard this statement at the time it was made and if it ivas refused, take an exception. Of course it is. useless to remark that the statement made by the county attorney that the officers could “search his place to' their heart’s content” without a search warrant is not the law. The Constitution of the United States and of this state and the statutes in pursuance thereof each explicitly provide that this cannot be done. Articles 4 and 5 of the Bill of Rights of the Constitution of the United States; article 2, section 30 of the Oklahoma Constitution, Okla. St. Ann; §§ 3221, 3222, 3223, 3224, and 3225 of Oklahoma Statutes 1931, Oklahoma Statutes Annotated, title 22, §§ 1221,1222, 1223, 1224, and 1225. And this court, from its earliest days to the present time, has so held. Gore v. State, 24 Okla. Cr. 394, 218 P. 545; Searcy v. State, 33 Okla. Cr. 421, 244 P. 203; Whitford v. State, 35 Okla. Cr. 22, 247 P. 424; Baker v. State, 35 Okla. Cr. 62, 248 P. 846; Dean v. State, 63 Okla. Cr. 385, 75 P. 2d 900; McHenry v. State, 61 Okla. Cr. 450, 69 P. 2d 90; Denton v. State, 62 Okla. Cr. 8, 70 P. 2d 135; Gransbury v. State, 64 Okla. Cr. 423, 82 P. 2d 240.

But the county attorney evidently thought he was right when he made this statement to' the jury, just as he did when he referred to the affidavit being correct in the Freeman Davis Case “because I drew the affidavit myself.”

The next argument or statement of the county attorney was: “I have been in the law practice myself, representing dozens and dozens and dozens. I have represented this man in whisky cases.”

The same statement heretofore made applies to this statement by the county attorney. But there was no evidence in the record that defendant had ever been charged with or convicted of a violation of the prohibition law, and if the statement by the county attorney that “I have represented this man in whisky cases” had been objected to and the court asked to instruct the jury not to consider the same and he had refused, and exception taken to the statement, this court would not hesitate to reverse this case and send it back to McCurtain county for a new trial. But we have carefully read the record and the whole argument of the county attorney, and have come to the conclusion that the jury were undoubtedly influenced by the eloquent argument made by the county attorney with reference to the failure of juries to convict defendants in McOurtain county and his statement that he had represented this defendant in whisky cases, and that there was just a little passion and prejudice that crept into the verdict of the jury when they gave this crippled defendant a fine of $250 and 180 days in jail, and that justice demands a modification of this sentence to a fine of $50 and 30 days in jail. It has been held by this court in the case of Sturgis v. State, supra [2 Okla. Cr. 362, 102 P. 71] :

“Counsel for a defendant must not only object to' improper statements of the county attorney in his argument to the jury, but he must go further and move the court to exclude such remarks from the jury and instruct them not to consider them for any purpose, unless the remarks were of such a character that the error would not be cured by a withdrawal of the remarks.” Rice v. State, 66 Okla. Cr. 434, 92 P. 2d 857.

As so modified, the judgment of the county court of McCurtain county is affirmed.

JONES and DOYLE', JJ., concur.


text:
    Ex parte ALVIE STINNETT.
    No. A-9977.
    Jan. 29, 1941.
    (110 P. 2d 310.)

      Carl C. Wever, of Pawhuska, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Owen C. Watts, Asst. Atty. Gen., for respondent.
   DOYLE, J.

On behalf of Alvie Stinnett, a duly verified petition for writ of habeas, corpus by which petitioner ;seeks to secure his release by order of this court from the custody of Jess F. Dunn, warden of the State Penitentiary at McAlester, was filed in this court and presented to' the Presiding Judge. Thereupon a rule to- show cause was entered and issued, returnable December 17, 1940.

It appears, both by the petition herein and the response to. the rule to show cause, issued thereon, that petitioner was, on November 10, 1930, by the judgment of the district court of McCurtain county, on his plea of guilty, sentenced to be imprisoned at hard labor in the State Penitentiary for life for the crime of murder alleged to have been committed on or about the 1st day of September, 1930, by striking one Beatrice Stinnett with a stick of wood, thereby inflicting certain mortal wounds from the effects of which she then and there died.

It is alleged that petitioner is a negro, illiterate, ignorant, and is entirely uninformed as to court proceedings and under the impression that the only thing he could do' was to- enter the plea of guilty, which he did; that his imprisonment was unlawful, without authority of law, and that petitioner was deprived of his liberty without due process of law.

It is further alleged:

“That the proceedings had on this petitioner’s plea of guilty was illegal and void, and the judgment and sentence was void under the statutes of Oklahoma, the Bill of Bights, and the Federal Constitution; that a copy of the information charging your petitioner with the crime of murder was not served on your petitioner with the list of witnesses to he called on the part of the state with the post office addresses endorsed thereon; that there was not a list of the state’s witnesses to be used in chief on the part of the state served upon your petitioner 24 hours before the case was called for trial; that your petitioner was not given 24 hours in which to enter his plea at the time of his arraignment; that your petitioner was not advised by the court of his constitutional right to have counsel before arraignment; that the court failed and neglected to advise your petitioner if he desired the aid of counsel at the time of his arraignment and had no funds in which to procure counsel, that the court would appoint him counsel.
“That the court failed and neglected to inquire of petitioner before passing judgment and sentence if he had any cause or reason why judgment and sentence should not be pronounced against him; that your petitioner entered his plea of guilty without being fully advised by the court of his rights and consequences of his plea; that your petitioner’s plea of gnilty was not free and voluntary as required by law, but by fear and ignorance; that your petitioner did not waive any of his statutory or constitutional rights, and was not asked by the court to waive any of his statutory or constitutional rights.
“Your petitioner says that by reason thereof that his confinement to the penitentiary is unlawful and without authority of law, and that he has been denied a fair and speedy trial as guaranteed by the Bill of Bights, and that he is entitled to be discharged from such unlawful imprisonment.”

Attached to the petition is a copy of the original complaint filed before M. D. Deck, justice of the peace, Idabel district, said county and state, and a duly certified transcript of the proceedings had before said committing magistrate, white omitting title and certificate is as follows:

“Information by complaint, duly verified and properly indorsed by L. E. Miffin, County Attorney of McCurtain County, Oklahoma, charging the defendant, A1 Stinnett, with the crime of murder, having, on the 10th day of November, 1930, been filed before me, M. D. Deck, Justice of the Peace, Idabel District, and of McCurtain County, Oklahoma, and upon which complaint, a warrant for the arrest of the said A1 Stinnett was issued and placed in the hands of an officer1, who- arrested the said A1 Stinnett, and he was- forthwith brought before me M. D. Deck, Justice o-f the Peace as aforesaid, and there advised of his right to counsel, waived arraignment, and plead not guilty, and was committed to- jail without bond, and trial day set for the 17th day of November, 1930.
“And, thereafter and on the 10th day of November, 1930, this cause coming on for trial, the defendant, A1 Stinnett, appearing and requested that he have a trial and without further delay, and instanter, and thereupon the state appearing by L. E. Mifflin, and the defendant appearing in person, thereupon being duly arraigned, the defendant waived preliminary trial and the taking of testimony and indicated that he wanted to plead guilty to the charge as set forth and the court being well and sufficiently-advised in the premises finds:
“It is therefore, ordered, adjudged and decreed by the court that the evidence and proofs heard in this cause be and the same is sufficient to show that the crime as set forth in said complaint has been committed, and that the same tends reasonably to show the probable guilt of the defendant in the commission thereof, and it is further ordered that the defendant, A1 Stinnett be and he is held to answer in the District Court of McCurtain County, Oklahoma, to the charge of murder, without benefit of bail.
“M. D. Deck,
“Justice of the Peace.”

It appears that on the same day the complaint with transcript of the proceedings had before the committing magistrate was filed in the district court of McCurtain county, Hon. Geo. T. Arnett, District Judge.

The record shows:

“The following being the minutes taken on this date in District Criminal Case No. 2196, State of Oklahoma vs. Alvie Stinnett, along with other proceedings had on the same date in other cases, and recorded in the district court journal.
“State of Oklahoma vs. Alvie Stinnett. No. 2196.
“Now on this 10th day of November', 1930, the same being a regular day of the September, 1930 term of this court this cause comes on for arraignment, whereupon defendant is arraigned, says his true name is Alvie Stinnett, waives time, pleads guilty to crime of murder, and is sentenced to life imprisonment in iState Penitentiary, and costs of prosecution.”

This court has held repeatedly that in cases of this kind, where the defendant is charged with a capital offense, he should have the advantage of every right which the law secures to him upon his trial.

The Bill of Rights provides that in all criminal prosecutions the accused “shall have the right to be heard by himself and counsel; and in capital cases, at least two- days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief, to- prove the allegations of the indictment or information, together with their postoffice addresses.” Const. art. 2, sec. 20.

The right of the accused to- the assistance of counsel in making his defense has long been regarded in this -country as essential to- the due administration of justice in criminal cases.

Says Mr. Coo-ley: “With us it is a universal principle of constitutional law that the prisoner shall be allowed a defense by counsel.” Const. Lim. 334.

In order that the accused may have the full benefit of this constitutional right, the Code of Criminal Procedure provides:

“If the defendant appear for arraignment, without counsel, he must be informed by the court that it is his right to- have counsel before being arraigned, and must be asked if he desire the aid of counsel. If he desires, and is unable to- employ counsel, the court must assign counsel to- defend him.” Section 2929, C. S. 1931, 22 Okla. St. Ann. § 464.

In Polk v. State, 26 Okla. Cr. 283, 224 P. 194, it was held:

“Under our laws every person accused of felony is entitled to aid of counsel at every stage of the proceedings, whether imprisoned or admitted to bail, and refusal of opportunity to procure such counsel amounts to- a deprivation of a right essential to his safety.”

Construing the second provision of section 20 of the Bill of Rights, above quoted, the uniform holding of this court is that, in a capital case, the defendant does not have to demand a list oí the witnesses, together with their post-office addresses; that the Constitution makes that demand for him, and, unless he waives it he cannot be legally put upon trial until that demand has been complied with. Spess v. State, 13 Okla. Cr. 277, 164 P. 131; Goben v. State, 20 Okla. Cr. 220, 201 P. 812; Polk v. State, 26 Okla. Cr. 283, 224 P. 194.

The uniform holding of the courts is that, in a capital case, a plea of guilty can only be entered after the defendant has been fully advised by the court of his rights and the consequences of his plea; and where it appears on appeal from a judgment of conviction that the defendant has been denied a right guaranteed by the Constitution, such showing requires a reversal, unless the record clearly shows that the right was waived, or that no injury could have resulted to the accused by reason of such denial. Howington v. State, 30 Okla. Cr. 243, 235 P. 931; Mullen v. State, 28’ Okla. Cr. 218, 230 P. 285.

In the case of Ex parte Barnett, 67 Okla. Cr. 300, 94 P. 2d 18, the questions here presented were discussed and the authorities reviewed, and this court held:

“When a person is held in custody under a void order of commitment, or is imprisoned without due process of law under the sentence of any court of the state, it is court’s duty upon habeais corpus to inquire into the illegality of the commitment when the matter is properly before it, and, if it be adjudged that the order of commitment was made without authority of law, the person will be entitled to a discharge from custody. Okla. St. Ann. Const. Bill of Bights, § 7. * * *
“Under the Bill of Bights, an accused has the right to consult with counsel and to be fully advised as to his rights, and as to- the consequences of his act before entering his plea to the indictment or information. Okla. St. Ann. Const. Bill of Bights, § 20. * * *
“In a felony case where the defendant is unable to employ counsel and is incapable adequately of making hisi own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law.
“One charged with a crime is as much entitled to assistance of counsel in preparing for trial as at the trial itself.
“A ‘waiver* is ordinarily an intentional relinquishment or abandonment of a known right or privilege.
“Courts, indulge every reasonable presumption against a waiver of fundamental constitutional rights, and do1 not presume acquiescence in their loss.
“Whether one accused of crime has waived his right to assistance of counsel for1 the defense depends on the particular circumstances of the case, including the background, experience, and conduct of the accused.
“Habeas corpus was available remedy to- one who without assistance of counsel, and without having effectively waived his constitutional right to assistance of counsel, wa,s convicted and sentenced, where expiration of time rendered relief by an application for a new trial or by appeal unavailable.
“A plea of guilty should be entirely voluntary and should be made by one competent to' know the consequences thereof and should not be accepted until after the defendant has been fully advised by the court of his rights and the consequences of his plea.
“Where accused did not have assistance of counsel and did not effectively waive constitutional right to assistance of counsel for his defense, conviction was void as having been rendered without jurisdiction. Okla. St. Ann. Const. Bill of Bights, § 20.”

In the recent case of Bowen v. Johnston, Warden, 306 U. S. 19, 59 S. Ct. 442, 444, 83 L. Ed. 455, Mr. Chief Justice Hughes, delivering the opinion of the Supreme Court of the United States, said:

“The scope of review on habeas corpus is limited to the examination of the jurisdiction of the court whose judgment of conviction is challenged. * * *
“But if it be found that the court had no jurisdiction to try the petitioner, or that in its proceedings his constitutional rights have been denied, the remedy of habeas corpus is available. * * *
“It must never be forgotten that the writ of habeas corpus is the precious safeguard of personal liberty and there is no higher duty than to maintain it unimpaired. Ex parte Lange [18 Wall. 163, 21 L. Ed. 872], supra.”

In Sutton v. State, 35 Okla. Cr. 263, 250 P. 930, 934, it is said:

“It is true that many constitutional guaranties may be waived by an accused person who' comes into court represented by counsel and being fully advised of all his rights, and in such cases it might be said that he waives a right for which he does not ask. However, the record in this case shows that appellant did not waive any constitutional or statutory right, except in so far as his plea of guilty waived his right to be tried by a jury. In our opinion the constitutional right to be represented by counsel and the right in capital cases, at least two days before the case is called for trial, to be furnished with a list of the witnesses, together with their post office addresses, are essential to due process of law guaranteed to1 the citizen by section 7, Bill of Bights. We are inclined to think that a conviction had by a denial of these constitutional rights simply amounts to judicial lynch law.”

And see Ex parte Bobnett, 69 Okla. Cr. 235, 101 P. 2d 645; Ex parte Massengale, 67 Okla. Cr. 181, 93 P. 2d 41.

Every person charged with crime, whether guilty or innocent, is entitled to' a fair and impartial trial according to the due and orderly course of the law, and it is a duty resting upon the courts to see that the guaranty of such a trial, conferred by the laws upon every citizen, shall be upheld and sustained.

While promptness in the apprehension and trial of persons accused of crime is commendable, the law has provided how trials should be had, and the enforcement of law is to be arrived at only by adhering to' legal requirements and principles of justice and fair trials as provided by constitutional provisions, legislative enactment, and well-established rules of law.

It has been well said that the law is not designed to be a swift engine of oppression and vengeance, but it was and is designed to try and convict men only after due hearing- and a fair trial.

If the principles set forth and the conclusions reached in the foregoing opinions and authorities therein cited are true and correct, and we think they are, it follows that petitioner is unlawfully imprisoned and restrained of his liberty without due process of law, and that he is entitled to be discharged from the imprisonment of which he complains. He is therefore by the judgment of this court discharged therefrom.

The clerk of this court will forthwith forward to the respondent, warden of the State Penitentiary at McAlester, a duly certified copy of this opinion, and upon receipt of the same, said warden is hereby commanded forthwith to deliver into' the custody of the sheriff of McCurtain county the petitioner, Alvie Stinnett, who is directed to safely keep said petitioner in custody pending the disposition of the crime charged against him in the district court of Mc-Curtain county, in case Nx 2196, or until he is otherwise discharged in due course of the law.

BAREFOOT, P. J., and JONES, J., concur.


text:
    L. L. BARFIELD v. STATE.
    No. A-9746.
    Feb. 6, 1941.
    (110 P. 2d 316.)
    W. M. Hall, of Claremore, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, L. L. Barfield, was by information charged in the county court of Rogers county with engaging for money, without a license, in a certain veterinary practice on October 27, 1937, was tried, convicted, and sentenced to- pay a fine of $50 and costs, from •which judgment and sentence he appeals to this court.

The defendant makes two1 contentions:

(1) That the information was insufficient under the statute.

(2) That the court erred in his instructions to the jury.

This action was brought under article 34, sec. 12, p. 104, Session Laws of 1936-1937, 59 Okla. St. Ann. § 687:

“It shall be unlawful for any person, * * * not licensed as provided in this act, * * * to prescribe or apply any drug or medicine, or administer preventive treatment of any livestock, to perform any operation for the treatment, relief, or cure of any sick, diseased, or injured animal, for commercial purposes * *

The information, in part, is as follows:

a* * * jj l. Barfield did then and there willfully and unlawfully engage in prescribing and doctoring sick and injured live stock by administering to a certain domestic animal belonging to Frank M. Adams, and did then and there receive and take lawful money of the United States for the treatment of said domestic animal of the said Frank M. Adams, he, the said L. L. Barfield, then and there well knew that he did not have and own a license and certificate of the State of Oklahoma, to practice veterinary medicine and surgery as prescribed by the laws of the State of Oklahoma. * * *”

From the wording of that part of the statute with which we are here concerned, it seems to us that in order for a person to be held for violation of said part of the statute, it is necessary for him to< be charged with (1) not having a license, and (2) acting for commercial purposes, and (3) (a) prescribing any drug or medicine for any live stock, or (b) applying any drug or medicine to any live stock, or (c) administering preventive treatment to any live stock, or (d) performing any operation for the treatment, relief, or cure of any sick, diseased, or injured animal.

Having taken this view, it is necessary that the information state, specifically or, in other words, conveying the same meaning, that some drug or medicine was prescribed or used in connection with the animal or that an operation was performed on an ailing animal in order for said information to charge sufficiently a person under that part of the statute.

“Words used in a statute to define a public offense need not he strictly pursued in the information, but other words conveying the same meaning may be used.” Sweat v. State, 69 Okla. Cr. 229, 101 P. 2d 648.

This information does not employ the word “drug”, “medicine”, or “operation”. It does use the words “doctor”, “administer”, and “prescribe”. These words as defined in Webster’s New International Dictionary, 1910 Ed., are as follows:

“doctor * * * v. t. * * * 2. To treat as a physician does; to apply remedies to; to repair; as, to doctor a sick man or a broken cart. Colloq.”
“administer * * * v. t. * * * 3. To apply, as medicine or a remedy; to give, as a dose or something beneficial dr suitable * *
“prescribe * * * v. t. * * * 3. Med. To direct, designate, or order the use of as a remedy; as, the doctor prescribed quinine.”

In Staley v. State, 64 Okla. Cr. 302, 79 P. 2d 818, this court held:

“The courts of this state have never been favorable to technical construction of the statutes, and informations and indictments filed thereunder.”

This court will place a liberal construction upon in-formations; but at all times the rights of the defendant must be protected.

In Feige v. State, 11 Okla. Cr. 49, 142 P. 1044, the court was asked to- construe an information which charged the defendant did “unlawfully and Avillfully prescribe for, furnish medicine to-, and treat one Cornelius A. Prohl, for compensation.” This action was brought under a statute making it unlawful for a person, without a certificate and for compensation, to practice medicine. Persons in the practice of medicine were defined as those who- “prescribe or administer any drug or medicine * * * included, in materia medica in the treatment of disease.”

The court held that:

“The information on its face is wholly insufficient. It should have charged, among other things, the administration of some drug included in materia medica in the treatment of diseases, etc. * * *”

Since the court was of the opinion that the drug or medicine used must necessarily be one included in materia medica, the information was fatally defective for the reason that an essential element of the charge was omitted.

In the case at bar, this court must decide whether or not the words “prescribing and doctoring sick and injured livestock” and “administering to- a certain domestic animal” conveys the meaning of prescribing or applying drugs or medicines to livestock. Upon a strict construction, the words do not mean essentially either the prescribing or applying of drugs or medicines; but in common parlance, and to all but those of the most technical mind, they certainly do- convey the meaning that drugs or medicines were prescribed or applied.

The exact words of the statute defining a crime need not be used in the information charging it, but any words clearly and intelligently setting forth the offense are sufficient. Sparkman v. State, 67 Okla. Cr. 245, 93 P. 2d 1095.

In Ellis v. State, 38 Okla. Cr. 243, 260 P. 93, the court held:

“The true test of the sufficiency of an information is not whether it might possibly have been made more certain, but whether it alleges every element of the offense intended to- be charged, and sufficiently apprises the defendant of what he must be prepared to meet.”

This court said in Scott v. State, 40 Okla. Cr. 296, 268 P. 312:

“An information is sufficient which informs an accused of the offense with which he is charged with such particularity as to enable him to prepare for his trial, and so defines and identifies the offense that, if convicted or acquitted, he will be able to- defend himself against any subsequent prosecution for the same offense.”

We think that the information could have been drawn in better form, but are of the opinion that it sufficiently charged the defendant under the statute.

The proof on the part of the state showed that the defendant treated a mare belonging to one Prank Adams; that the mare had sleeping sickness. The defendant treated her by vaccination and received $6 for the first treatment. A few days later, the defendant opened the mare’s neck and gave her further treatment, and was paid $3 for the second treatment. The mare later died.

The proof further showed by the secretary of the Board of Examiners of Veterinarians that the defendant was not licensed as a veterinarian and never had been; that he had taken the examination eight times and had' failed to pass.

No evidence was offered by the defendant.

The trial court, in his instructions to the jury, used the words of the statute in defining the offense. Since we now hold that the information, although not in the exact words of the statute, is in words of similar import, the trial court did not err in using the words of the statute in his instructions.

In Shepherd v. State, 51 Okla. Cr. 209, 300 P. 421, 422, this court stated:

“The instructions of the court should conform to the charge in the information and the defense interposed and to the testimony in the case.”

In Tucker v. State, 43 Okla. Cr. 92, 277 P. 286, it was held:

“An instruction defining a statutory offense should be in the terms of the statute or in words of similar import.”

Finding no errors, the case is accordingly affirmed.

BAREFOOT, P. J., and DOYLE, J., concur.


author: BAREFOOT, P. J. DOYLE, J.

text:
    Ex parte ROBERT WOOD and five other cases.
    Nos. A-9933 to A-9938.
    Feb. 6, 1941.
    (110 P. 2d 304.)

      George Croom, of Tulsa, and Stanley Belden, of Gushing, for petitioners.
    Mac Q. Williamson, Atty. Gen., and Lewis R. Morris, Co. Atty., and John Eberle, Asst. Co. Atty., both of Oklahoma City, for the State.
   BAREFOOT, P. J.

The petitioners in the above-entitled causes filed petitions for writs of habeas corpus in this court on the 16th day of September, 1940, alleging they were unlawfully restrained of their liberty by George Goff, the sheriff of Oklahoma county, Okla. It was alleged in said petitions that defendants were being illegally restrained of their liberty by reason of (a) excessive bail, (b) by reason of the filing of an information against each of said defendants in the district court of Oklahoma county, which said informations were based upon a statute that was unconstitutional, (c) by reason of the fact that evidence produced before the examining magistrate was insufficient upon which to base an information in the district court, and (d) that said informations were insufficient for the reason that they were filed against petitioners by reason of certain illegal searches and seizures made by the officers of Oklahoma county, and for this reason were null and void.

By agreement of the respective parties, a hearing, of said petitions was set in the courtroom of this court for September 17, 1940, at 10 o’clock a. m., at which time all of said parties were present in person and by their attorneys. No response baying been filed in this case, it was agreed in open court that the petitions should be considered as if a general demurrer bad been filed thereto by respondent, and the matter was heard as if such demurrer had ■been filed. The court examined the petitions and announced from the bench that the petitions revealed on their face that informations had been filed in the district court of Oklahoma county, charging each of said petitioners with the commission of a felony, and that inasmuch as it had been the uniform holding of this court that where an information had been filed in a court of competent jurisdiction alleging the commission of an offense as defined by the statutes of Oklahoma, this court will not interfere with the due administration of justice before such tribunal, but that all matters properly presentable before such court, in case of a conviction, if properly preserved, might be presented on appeal to this court.

At the suggestion of the court, it was agreed that, bail be reduced in the cases pending against petitioners in the district court of Oklahoma county, and that said cases would be tried in the district court of that county, and that in the event of conviction, the questions raised in the petition would be presented on appeal. With this agreement entered in open court, an order was made denying the petitions.

This rule was early announced by this court in the case of Ex parte Burroughs, 10 Okla. Cr. 87, 133 P. 1142, where it was said:

“Section 4893, Rev. Laws [1910, section 693, Oklahoma Statutes 1931, Oklahoma Statutes Annotated, title 12, section 1342] provides:
‘No court or judge shall inquire into the legality of any judgment or process, whereby the party is in custody, or discharge him when the term of commitment has not expired in either of the cases following: * * * 4th. Upon a warrant or commitment issued from the district court, or any other court of competent jurisdiction, upon an indictment or information.’
“In this case it appears from the averments of the petition that the petitioner is being held by virtue of an information preferred by the county attorney in a court of competent jurisdiction, to wit, the district court of Rogers county, and under the foregoing provision of the statute the writ of habeas corpus cannot be resorted to for the purpose of determining the sufficiency of the evidence adduced upon the preliminary examination to show probable cause. The office of the writ of habeas corpus is not to determine the guilt or innocence of the prisoner, and the only issue it presents is whether or not the prisoner is restrained of his liberty by due process of law. The due and proper administration of public justice requires that whenever an information is filed in a court of competent jurisdiction, it is its right and duty to proceed to its final determination without interference from any other tribunal, and the writ of habeas corpus cannot be resorted to on the plea that the evidence adduced npon his preliminary examination was insufficient to show that a felony had been committed, or probable cause for believing the defendant guilty thereof. The defendant has a right to' raise this question in the court where the information is pending, by a plea in abatement; or by motion to* quash, or motion to set aside the information.”

This rnle has been steadfastly followed by this court. Ex parte Johnson, 29 Okla. Cr. 374, 233 P. 1092; In re Hill, 12 Okla. Cr. 335, 156 P. 686; Ex parte Woods, 7 Okla. Cr. 645, 125 P. 440; Ex parte King, 41 Okla. Cr. 241, 272 P. 389; Ex parte Wheeler, 65 Okla. Cr. 290, 85 P. 2d 434; Ex parte Keel, 62 Okla. Cr. 277, 71 P. 2d 313; Ex parte Green, 69 Okla. Cr. 218, 101 P. 2d 641; Ex parte Robnett, 69 Okla. Cr. 235, 101 P. 2d 645.

The petitions in these cases set up the plea that Oklahoma Statutes 1931, sections 2571, 2572, and 2573, Okla-boma Statutes Annotated, title 21, sections 1261, 1262, and 1263, being the statutes upon which the informations against petitioners are based, are null and void for the reason that they are in contravention of the Fourteenth Amendment of the Constitution of the United States, and of section 57, article 5, of the Constitution of the State of Oklahoma, Okla. St. Ann. This part of the petition might justify this court, under the law, in passing upon the constitutionality of the above statutes, but in view of the understanding and agreement at the time of the hearing of these petitions, no opinion should be expressed thereon.

Because of this agreement in open court, the question of the constitutionality of the above statutes was not presented by oral argument to this court, and no briefs have been filed by either the petitioners or the respondent, and in fairness to all parties, and in compliance with the understanding heretofore stated, we are not justified in passing upon the constitutionality of the above statutes at this time. When and if these matters are properly before this court, fully briefed, and an opportunity is given to all parties to* be heard, they will then be decided in justice and fairness to- all.

The petition for writ of habeas corpus in each of the above cases is denied.

JONES, J., concurs in conclusion.

Separate opinion by DOYLE, J.

DOYLE, J.

On behalf of the petitioners in the above entitled and numbered cases, petitions were filed with the clerk of this court September 16, 1940. To- each petition a general demurrer was on the same day filed and by agreement of parties the cases were the next day orally argued and submitted upon the petitions and the demurrers thereto.

Upon the conclusion of the arguments, and the various questions presented by counsel having been considered by the court, the decision of the court was announced by Presiding Judge DOYLE, in an oral opinion, finding that said petitions do not state facts which show that said petitioners are entitled to have the writs demanded, issue, wherefore the demurrers thereto were sustained and the writs denied.

Each petitioner being held in custody of the sheriff of Oklahoma county and confined in the county jail by virtue of a commitment based upon information pending and undetermined in the district court of Oklahoma county, wherein each petitioner is charged with having violated section 2578, Sts. 1931, 21 Okla. St. Ann. § 1263.

Each petition alleges the illegal detention of the petitioner and sets forth the cause of and authority for such detention.

It is alleged in each petition that:

“The petitioner is deprived of his liberty illegally and unlawfully for the reason, the evidence introduced by the State in the preliminary trial before the justice of the peace, Paul Powers is insufficient to show the commission of a crime or the probability of the defendant having committed the same. A true and correct copy of the transcript of said testimony in both of the cases is hereto attached and marked Exhibit B and made a part hereof. An examination of the transcript will disclose that there is no good and sufficient legal evidence justifying the justice of the peace in binding the petitioner over to- stand trial in the district court and in justifying the issuance of the commitment to the sheriff of Oklahoma county. The evidence does not show that the petitioner belonged to a party advocating or teaching crime, violence, or unlawful acts as a means of effecting industrial or political change or revolution: It does not show the petitioner sold, distributed or circulated or wrote, or published material advocating or teaching crime, violence, or unlawful acts as a means of effecting industrial or political change.
“The information filed by the assistant county attorney under which the petitioner is scheduled for trial on the 17th of September is null and void. A copy of said information in each of the two cases is hereto attached and marked exhibit C. & D. Said informations are null and void and do not state a crime under the laws of Oklahoma. They are so indefinite and uncertain that they do not notify the defendant of the crime for which he is being held. Each of said informations are null and void for further reasons that they are duplications. They attempt to and in fact do charge the petitioner with the commission of more than one crime. The informations are so illegal and so* irregular that they cannot be amended. To compel the petitioner to go under trial under said informa-tions would be to deprive the defendant of due process of law under the 14th Amendment of the Constitution of the United States and under the Constitution of Oklahoma.”

It is further alleged that said act is contrary to and in violation of section 57 of art. 5 of the State Constitution, in that the subject of said act is not entirely expressed in its title and embraces more than one subject.

In behalf of respondent the point was made that where imprisonment is upon a warrant or commitment issued from a court of competent jurisdiction upon an information, such commitment cannot be attacked collaterally or the proceedings inquired into in a habeas corpus proceeding, and this court is precluded from inquiring into1 the facts alleged in said petitions by the provisions of the Habeas Corpus Act, ch. 3, art. 4, sec. 693, 12 Okla. St. Ann. § 1342, which provides:

“No- court or judge shall inquire into1 the legality of any judgment or process, whereby the party is in custody, or discharge him when the term of commitment has not expired in either of the cases following: * * *
‘•Fourth. Upon a warrant or commitment issued from the district court, or any other court of competent jurisdiction, upon an indictment or information.”

Section 10 of the Bill of Rights, Okla. St. Ann., provides :

“The privilege of the writ of habeas corpus shall never be suspended by the authorities of this state.”

The writ of habeas corpus, which has for centuries been esteemed the best and only defense of personal freedom, has for its object the speedy release by judicial decree of persons illegally restrained of their liberty.

It is elementary that the writ of habeas corpus cannot be used to perform the functions of an appeal, or used to review errors that do not go to the jurisdiction of the court to issue the commitment.

The writ cannot be invoked for the purpose of reviewing acts of courts of record, where they acted within their jurisdiction, under constitutional law.

Before the writ is available as a means of release from imprisonment, it must appear that the court issuing the process has acted without jurisdiction.

In each case it appears that said petitioners are being held by virtue of informations filed by the county attorney, in the district court of Oklahoma county, a court of competent jurisdiction.

In Ex parte Burroughs, 10 Okla. Cr. 87, 133 P. 1142, we said:

“The office of the writ of habeas corpus is not to determine the guilt or innocence of the prisoner, and the only issue it presents, is whether or not the prisoner is restrained of his liberty by due process of law. The due and proper administration of public justice requires, that whenever an information is filed in a court of competent jurisdiction, it is its right and duty to proceed on its final determination without interference from any other tribunal, and the writ of habeas corpus cannot be resorted to on the plea that the evidence adduced upon his preliminary examination was insufficient to show that a felony had been committed, or probable cause for believing the defendant guilty thereof. The defendant has a right to raise this question in the court where the information is pending, by a plea in abatement, or by motion to quash, or motion to1 set aside the information.”

Upon adverse rulings by the trial court the remedy is by appeal from a judgment of conviction, exceptions having been reserved. See Ex parte Johnson, 29 Okla. Cr. 374, 233 P. 1092.

In the instant cases the validity of the commitments is assailed on the ground that the act of the Legislature upon which the informations are based is void and unconstitutional. If the contention is well founded, it affects the jurisdiction of said district court in all the proceedings had. An unconstitutional law is void, and is no law. An offense created by it is not a crime, and a charge based thereon cannot be a legal cause of imprisonment.

We are reminded by counsel for the petitioners that it is the solemn duty of the courts in cases before them to guard the constitutional rights of the citizen against arbitrary power; that is unquestionably true. This court is bound to' sustain the fundamental law, the State Constitution, according to its true intent and meaning, but it is equally true that legislative enactments should be enforced by the courts as embodying the will of the people, unless they are plainly inconsistent with that instrument.

All legislative acts are presumed to be valid, and the 'courts should not declare an act to- be unconstitutional unless it is clearly so. A law that is unconstitutional is so- because it is either an assumption of power not legislative in its nature, or because it is inconsistent with, some provision of the State or Federal Constitutions.

A liberal construction will be applied to acts of the Legislature and constitutional provisions in determining whether or not such enactments violate the Constitution, and it is only when acts of the Legislature are clearly contrary to the Constitution that the court will hold them invalid.

In the case of Berg v. State, 29 Okla. Cr. 112, 233 P. 497, the constitutionality of this act was upheld. The court holding:

“The Criminal Syndicalism Act (chapter 70, Session Laws 1919, * * * 21 Okla. St. Ann. §§ 1261-1263) held constitutional so. far as its provisions are material in a prosecution for circulating and displaying printed matter teaching, advocating, and affirmatively suggesting criminal syndicalism or sabotage, and for circulating and displaying books and other printed matter prohibited by said act.
“That part of section 2221 Comp. St. 1921, 21 Okla. St. Ann. § 1263, defining criminal syndicalism as circulating and displaying printed matter advocating, teaching, or affirmatively suggesting crime, sabotage, etc., does not violate the right of free speech, and is not void for indefiniteness.
“The fact that treason is defined in the federal and. the State Constitutions does not deprive the Legislature of the power to enact a statute intended to prevent the teaching of criminal syndicalism or sabotage as defined by the criminal syndicalism statute, and does not violate either the Constitution of the United States nor the Constitution of this state defining treason.”

Judge Edwards, in the opinion of the court, said:

“It is to. be borne in mind that the criminal syndicalism statute does not limit or malee criminal the advocacy or propriety of bringing about a change in our industrial system, by peaceful methods. The people have at all times an undeniable and indefeasible right to alter their form of government; the statute is directed against those who advocate the necessity or expediency of sabotage, violence, or terrorism as a means of accomplishing industrial or political reform, or the doing of things of an analogous nature such as distributing or displaying circulars, books, posters, etc., teaching or advocating criminal syndicalism.
“Statutes similar or of similar import to' the one here under consideration have quite generally been held constitutional.
“The crime prohibited by section B of the act in question, above quoted, is to be distinguished from treason as defined by the federal and state Constitutions, in that Treason’ requires more than mere words to constitute the offense. It requires some overt act and proof by two or more witnesses, while the offense here defined is an offense which consists of words only; the advocacy or teaching of crime as a means of effecting industrial or political ends, or for a profit. State v. Hennessy, 114 Wash. 351, 195 P. 211; Frohwerk v. United States, 249 U. S. 204, 39 S. Ct. 249, 63 L. Ed 561; Equi v. United States [9 Cir.], 261 F. 53, 171 C. C. A. 649; Wimmer v. United States [6 Cir.], 264 F. 11. * * *
“Argument is also made that the statute in question is unconstitutional as abridging the right of free speech granted by the Constitution. But we think it is so well settled that the right of free speech does not imply unrestricted license that no extended notice need be given to- this assignment. The act defining criminal syndicalism as circulating and displaying printed matter advocating, advising, teaching, or affirmatively suggesting crime as a means of accomplishing industrial or political ends, or for a profit, is not a denial of the free speech granted by the Constitution.”

In the case of Stromberg v. California, 283 U. S. 359, 51 S. Ct. 532, 75 L. Ed. 1117, 73 A. L. R. 1484, the United States Supreme Court held:

“The right of free speech is not an absolute one, and the state, in the exercise of its police power, may punish its abuse by those who indulge in utterances which incite to violence and crime, and threaten the overthrow of organized government by unlawful means.”

Validity of syndicalism and sabotage statutes directed against political, social, or industrial propaganda, see Annotations, 1 A. L. R. p. 336 and 20 A. L. R. 1535, 73 A. L. R. 1484.

The opinion of the court is that the construction heretofore placed upon the act in question is correct, and we see no' reason why it should be otherwise held. In the cases now before us it is our conclusion that said petitions do not state facts which show that petitioners are entitled to the relief prayed for; the demurrers thereto should be and are sustained, and the writs denied.


author: PER CURIAM.

text:
    STATE v. SISLER et al.
    No. A-9802.
    Feb. 6, 1941.
    (110 P. 2d 321.)
    Mac Q. Williamson, Atty. Gen., for the State.
    Frank Hickman, of Tulsa, for defendants.
   PER CURIAM.

The defendants, Dr. Wade Sisler and Jessie H. Kirk, were charged by information in the court of common pleas of Tulsa county with “willfully and knowingly” requiring and permitting one “Thelma Hensley, a female person,” to- work more than nine hours in one day in defendant’s hospital. The court sustained defendant’s demurrer to the information, and the state appeals.

The appeal in this case was by the state upon a reserved question of law, as provided by Oklahoma Statutes 1931, section 3191, 22 Okla. St. Ann. § 1053. The appeal was filed in this court on the 12th day of January, 1940. It appears from the docket of this court that this case has been set for oral argument at several different sessions, and that counsel for the state have not appeared for oral argument and have filed no brief in support of the contention of the state.

Under the decisions of this court, where no brief is filed and no appearance made when the case is called for submission, and an examination of the record shows no merit in the errors assigned, the judgment will be affirmed. Henley v. State, 66 Okla. Cr. 264, 91 P. 2d 685; Walker v. State, 60 Okla. Cr. 302, 64 P. 2d 935; Hickman v. State, 60 Okla. Cr. 417, 65 P. 2d 211; Noble v. State, 39 Okla. Cr. 19, 262 P. 707; Hudson v. State, 28 Okla. Cr. 369, 230 P. 940; Shelton v. State, 41 Okla. Cr. 220, 271 P. 262; Justice v. State, 41 Okla. Cr. 136, 271 P. 860; Robinson v. State, 60 Okla. Cr. 443, 65 P. 2d 212.

We have carefully examined the record and find no fundamental error, and that the court did not err in sustaining the demurrer to the information. Ex parte Carson, 33 Okla. Cr. 198, 243 P. 260.

The judgment of the court of common pleas of Tulsa county is therefore affirmed.