text:
    JOHN DIXON v. STATE.
    No. A-6830.
    Opinion Filed Nov. 16, 1929.
    (282 Pac. 686.)

      Blanton, Osborn & Curtis and Sandlin & Winans, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith O. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, John Dixon, hereinafter referred to as defendant, was convicted in the district court of Garvin county of the crime of manslaughter in the first degree, and his punishment fixed at imprisonment in the state penitentiary for a term of 7 years.

This defendant Avas indicted jointly with his brother Boy Dixon for the murder of one Francis Pierce, which Avas alleged to have been committed on or about the 5th day of March, 1926. This killing occurred at a country dance in the southAvestern part of Garvin county, near the point Avhere Garvin, Carter, and Stephens counties come together. The defendant and his brother Boy Dixon and another brother, “Bed” Dixon, Avho was someAvhat older than either of the two brothers jointly charged with this murder, Avere all attending this dance, as was also the deceased, Francis Pierce, and his brother Don Pierce. Boy Dixon was drinking considerable, and it is, we think, a fair inference that perhaps all of these parties were drinking to some extent. The trouble first started with a fight between Boy Dixon and Don Pierce, in which fracas Roy Dixon was knocked down by the deceased, Francis Pierce, and either the blow struck by Pierce on the head of Dixon, or the fall of Dixon against some object, cut his head, and “Red” Dixon and John Dixon took Roy Dixon out of the house and washed and dressed his head. While the Dixons were out of the house dressing Roy’s head, the dance was resumed again, and Francis Pierce continued to finish out the set with Mrs. Ott White, at whose house the dance was being given. After Roy Dixon’s head had been dressed, he and John Dixon returned to the house and went into the east room where the dance was in progress. According to the state’s evidence, as soon as the opportunity presented itself, Roy Dixon renewed hostilities with the deceased, Francis Pierce, and another affray started, in Avhich Roy Dixon and Francis Pierce were fighting across the room. In this affray somebody dreAV a pistol and shot Francis Pierce through the intestines, the ball going clear through the body and into the arm of a man by the name of Dyle, who was playing a guitar for the dance. The state’s witnesses say that John Dixon fired this shot. The witnesses for the defense say that John Dixon did not fire the shot, but that John Dixon was standing in the doorAvay betAveen the east and west rooms of the house talking to Monroe White, who Avas the father of Ott White.

There is some evidence also to the effect that John Dixon had an automatic pistol on his person on that night, and that, when the first difficulty occurred between Roy Dixon and Don Pierce, John Dixon drew this pistol out of his pocket and said, “Let me to the son of a bitch.” It is undisputed that immediately after this fatal difficulty both John Dixon and Roy Dixon left the premises. It is further contended on the part of the defendant that Francis Pierce was armed on that occasion, and that he struck Roy Dixon oyer the head with a gun and knocked him down during the first difficulty.

Counsel for the defendant in their brief say that there are no involved questions of law in the case. The issue was simple. Either, as testified to by state’s witnesses, John Dixon shot and killed Francis Pierce, or else his brother Roy Dixon did it, aided and abetted and encouraged by this defendant, John Dixon. In either event the defendant would be guilty. On the other hand, according to the testimony of defendant’s witnesses, this defendant did not fire the fatal shot and was not in any way responsible for the firing of the shot that killed Francis Pierce.

It is contended first that the trial court erred to the prejudice of the defendant in permitting counsel for the state, in the direct examination of the state’s witnesses, to ask numerous leading and suggestive questions. A careful examination of the evidence complained of by the defendant leads to the conclusion that the questions were not leading or suggestive and could not have been prejudicial to the right of the defendant.

In the case of Campbell v. State, 28 Okla. Cr. 250, 214 Pac. 738, 739, this court said:

“The scope and the manner of the examination of witnesses are matters that necessarily must be left largely to the discretion of the trial court. Where leading questions are permitted to be asked a witness, there must appear to have been an abuse of discretion by the trial court, resulting to the prejudice of the defendant.”

To the same effect are the following cases: Taylor v. State, 27 Okla. Cr. 165, 225 Pac. 988; Lee v. State, 7 Okla. Cr. 149, 122 Pac. 1111; Winfield v. State, 18 Okla. Cr. 257, 191 Pac. 609.

It is next contended that the trial court erred in depriving the defendant of his right of cross-examination as to certain witnesses introduced by the state. The questions asked by the defendant on cross-examination had been fully answered by the witnesses. Furthermore these questions were full of insinuations not supported by the evidence. Upon objection of the state,- the court refused to permit the defendant to pursue that line of questions further. The trial court certainly had a right to sustain objections to questions that had been previously answered in order to save time and expense, and also had the right to refuse to permit the defendant to continue to ask questions which had already been answered by the witness.

It is next contended that the trial court erred in failing to limit the jury to a consideration of evidence offered by the state for impeachment purposes by a proper instruction to- that effect. It is not contended that any request was made for any such instruction, either written or orally. In the absence of such request, it was not error for the trial court to fail to instruct along that line. Coker v. State, 26 Okla. Cr. 230, 223 Pac. 711; Hopkins v. State, 28 Okla. Cr. 405, 231 Pac. 97; Motsenbocker v. State, 29 Okla. Cr. 305, 233 Pac. 487; Wise v. State, 34 Okla. Cr. 284, 246 Pac. 656; Klaber v. State, 35 Okla. Cr. 238, 250 Pac. 142; Roberts v. State, 36 Okla. Cr. 28, 251 Pac. 612; York v. State, 40 Okla. Cr. 312, 269 Pac. 323.

The defendant next contends that the court erred in permitting the state’s witnesses to give improper and incompetent testimony in rebuttal in an attempt to impeach the defendant on a collateral issue. The question of the credibility of any particular ivitness is a matter material to every criminal case. It is a question the jury has to pass on in every trial in order to weigh the facts. That a witness may be impeached on any material matter by showing that he made contradictory statements out of court to those he made at the trial is clearly established as a rule of evidence. De Bose v. State, 18 Okla. Cr. 549, 197 Pac. 176; Freds v. State, 18 Okla. Cr. 456, 195 Pac. 1094; Douglas v. State, 19 Okla. Cr. 257, 199 Pac. 927.

The state had the right, therefore, to show that the defendant and the witness Mrs. Ott White made contradictory statements to that which they testified to in their direct examination. This was a matter that affected the credibility of the defendant and the witness, Mrs. Ott White, and as such was material and competent for impeachment purposes. The evidence would have been admissible for the further reason that the defendant had opened the issue.

The deceased, Francis Pierce, was shot down and killed at a time when he was apparently doing nothing, to justify this killing. This defendant either fired the fatal shot, or else he actively aided and abetted his brother in the commission of the crime. When they returned into the house and renewed hostilities with Pierce armed with a deadly weapon, and used that weapon upon him, they forfeited the right of self-defense, and could have been convicted of murder instead of manslaughter in the first degree.

The errors complained of by the defendant are either technical, not supported by the record, or without prejudice to the substantial rights of this defendant.

For the reasons stated, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    JAKE BOCK v. STATE.
    No. A-7220.
    Opinion Filed Oct. 26, 1929.
    Rehearing Denied Nov. 23, 1929.
    (282 Pac. 1116.)
    Clayton Carder and E. Y. Rakestraw, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Kiowa county of transporting whisky, and was sentenced to pay a fine of $50, and to confinement in the county jail for a term of 30 days.

Judgment was entered in October, 1928, and the appeal was lodged in this court in November, 1928. No briefs in support of the appeal have been filed. The evidence amply sustains the judgment. No material error is made to appear.

The case is affirmed.


text:
    PETE BRLLARIAL v. STATE.
    No. A-7189.
    Opinion Filed Oct. 26, 1929.
    Rehearing Denied Nov. 23, 1929.
    (282 Pac. 1116.)

      J. W. Osmond and C. Ross Hume, for plaintiff in error.
    J. Berry King, Atty. Gen., for tlie State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Caddo county on a charge of having possession of a still, and was sentenced to pay a fine of $100 and to serve 60 days in the county jail.

The case was tried in September, 1928, and the appeal was lodged in this court in October, 1928. No briefs in support of the appeal have been filed. The evidence sufficiently sustains the judgment. No material error is made to appear.

The case is affirmed.


text:
    GEORGE COX v. STATE.
    No. A-7190.
    Opinion Filed Oct. 26, 1929.
    Rehearing Denied Nov. 23, 1929.
    (282 Pac. 1116.)
    J. W. Osmond, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Caddo county on a charge of unlawfully transporting whisky, and was sentenced to pay a fine of $100 and to serve 30 days in the county jail.

The case was tried in August, 1928, and the appeal was lodged in this court in October, 1928. No briefs in support of the appeal have been filed. The evidence clearly shows that defendant, in the town of Apache, transported two pint bottles of whisky from one car to another, a distance of some 40 or 50 feet.

Under the record, this is a minimum case. The judgment is modified, by reducing the fine to $50, and, as modified, the case is affirmed.


text:
    PAUL CRUCE v. STATE.
    No. A-7192.
    Opinion Filed Oct. 26, 1929.
    Rehearing Denied Nov. 23, 1929.
    (282 Pac. 1117.)
    J. W. Osmond, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Caddo county of transporting intoxicating liquor, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The judgment was rendered in August, 1928, and the appeal was lodged in the court in October, 1928. No briefs in support of the appeal have been filed. The evidence reasonably sustains the judgment. No jurisdictional or fundamental error is made to appear.

The case is affirmed.


text:
    LONNIE GREEN et al. v. STATE.
    No. A-7191.
    Opinion Filed Oct. 26, 1929.
    Rehearing Denied Nov. 23, 1929.
    (282 Pac. 1117.)
    J. W. Osmond, for plaintiffs in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error were convicted in the county court of Caddo county on a charge of having unlawful possession of whisky. Lonnie Green was sentenced to pay a fine of $200, and to serve 90 days in the county jail, and Ada Green was sentenced to pay a fine of $250 and to serve 90 days in the county jail.

The case was tried in September, 1928, and the appeal was lodged in this court in October, 1928. No briefs in support of the appeal have been filed. The evidence reasonably sustains the verdict, and no material error is made to appear.

The case is affirmed.


author: CHAPPELL, J.

text:
    C. F. KERKER v. STATE.
    No. A-6817.
    Opinion Filed Nov. 23, 1929.
    (282 Pac. 896.)

      F. H. Reily, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the superior court of Pottawatomie county on a charge of having possession of three quarts of whisky with intent to sell the same, and his punishment fixed at a fine of $500 and confinement in the county jail for a period of 60 days.

The evidence of the state was that the sheriff and one of his deputies visited the filling station of the defendant; that they had a search warrant; that the filling station consisted of one building, the front room of which was used as a store and sales room, and that there was a small room in the rear in which was a cot and a stove, and that apparently some one slept in that room; that they found a gallon jug two-thirds full of whisky, together with some empty whisky bottles and “jake” bottles in this rear room. The defendant admitted that the whisky belonged to him, but claimed he had it for his own personal use. The defendant offered evidence of his good character; the state in rebuttal called several witnesses who testified that the reputation of the defendant as a law-abiding citizen was bad.

The defendant first contends that the court admitted incompetent and prejudicial evidence. The county attorney filed a sufficient affidavit for a search warrant, alleging that the defendant was unlawfully in possession of intoxicating liquor and also that the defendant was in possession of certain stolen articles describing them. A search warrant was issued directing the sheriff to search the premises of the defendant for intoxicating liquor and also for the stolen articles. The return of the sheriff on the search warrant showed that he had found the whisky testified to in this case, and also that he found some of the stolen articles described in the affidavit and warrant. When the sheriff was asked to tell what he found on the search and detailed the finding of the liquor and certain face powder, the court admonished the jury as follows:

“That evidence about the face powder would not be material, I am going to strike it, after a while you would have to find out whether it was red or white and I don’t Avant to go into it.”

The defendant introduced the affidavit and search . warrant. The county attorney asked the witness Darden the following question:

“This search warrant that has been introduced in evidence states that the property that had recently been stolen, and various and sundry articles?”

Whereupon the court gave the following oral instructions :

“Well, gentlemen of the jury, this case is one charging the defendant with the illegal possession of liquor or whisky, intoxicating liquors, and that is all he is being tried for, and no difference what else might have been found there, unless it was something intoxicating, it would be incompetent, you must not regard it, and you ought not to read it.”

On the same page of the record the court made the folloAving statement:

“I was going to admonish the jury awhile ago about that, about that face powder, and I thought I would wait awhile.”

The county attorney thereupon asked the following question:

“Mr. Darden, are there any articles described in that search warrant that you seized there, anything else besides whisky?”

To which, objection was made, and the court made the following statement:

“The inquiry in regard to this search warrant will be confined entirely to- intoxicating liquors. It is true the defendant has put this in evidence, but it is also true that a man cannot be tried for only one offense at a time, and if his attorney makes a mistake, dragging in something-else, it is the court’s duty to tell you not to consider that. Objection sustained.”

The defendant will not be heard to complain that incompetent evidence produced by himself was prejudicial to him. The defendant next contends that there was not sufficient competent evidence before the jury to support the verdict of guilty. According to defendant’s own story, he was in possession of three quarts of intoxicating, liquor which was sufficient to make a prima facie case against him. The possession of in excess of one quart of intoxicating liquor is sufficient to make a prima facie case and to justify the jury in finding the defendant guilty. Section 1, chapter 123, Laws Sp. Sess. 1923-24; Hargis v. State, 33 Okla. Cr. 283, 243 Pac. 986; Johnson v. State, 35 Okla. Cr. 242, 250 Pac. 141.

For the reasons stated the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    BOB ROTAN v. STATE.
    No. A-6869.
    Opinion Filed Nov. 23, 1929.
    (282 Pac. 895.)
    R. Place Montgomery, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kiowa county on a charge of having possession of intoxicating liquor with intent to sell the same and his punishment fixed at a fine of $50 and confinement in the county jail for a period of 80 days.

The evidence discloses that the deputy sheriff and an undersheriff saw the defendant carry two pint bottles of whisky under a sack into a closet some 30 yards from a filling station in the town of Lone Wolf. Going into the closet they discovered the whisky and arrested the defendant. One officer testified that the two pint bottles were full of whisky, and the other officer stated that one, of the bottles was about half full. The proof of the possession of two pints of whisky is' insufficient to raise the presumption of intent to barter, sell,, or give away the same. The state failed utterly to show any intent to sell or give away any of the liquor possessed, either by direct or circumstantial evidence. The proper charge in this case should have been transportation of intoxicating liquor.

The evidence is insufficient to support the verdict of the jury. The case is reversed.


text:
    GEORGE SLOAN v. STATE.
    No. A-6811.
    Opinion Filed Nov. 23, 1929.
    (282 Pac. 898.)
    Sam S. Gill, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of manufacturing whisky, and his punishment fixed at a fine of $500 and confinement in the county jail for a period of 6 months.

The defendant contends that the search warrant was void, and that therefore the evidence secured thereunder was inadmissible; the particular objection to the search warrant being that it did not run in the name of the state of Oklahoma.

Article 7, § 19, of the Constitution of Oklahoma provides:

“The style of all writs and processes shall be ‘The State of Oklahoma.’ All prosecutions shall be carried on in the name and by the authority of the State of Oklaliorna. All indictments, informations, and complaints shall conclude, ‘against the peace and dignity of the State.’ ”

Section 862, C. O. S. 1921, provides:

“The style of all process shall be: ‘The- State of Oklahoma.’ It shall be under the seal of the court from whence the same shall issue, shall be signed by the clerk, and dated the day it is issued.”

This court, in the recent case of McAdoo v. State, 36 Okla. Cr. 198, 253 Pac. 307, said:

“The provision of article 7, § 19, of the Constitution and section 862, Comp. Stat. 1921, requiring that process shall run in the name of the state of Oklahoma, is mandatory. * * * A search warrant is ‘process’ within the meaning of section 19, art. 7, of the Constitution and section 862, Comp. Stat. 1921, and must run in the name of the State of Oklahoma.” Dunn v. State, 40 Okla. Cr. 76, 267 Pac. 279.

In Myers v. State, 40 Okla. Cr. 170, 267 Pac. 867, this court said:

“The provisions of article 7, § 19, of the Constitution, and section 862, Comp. Stats. 1921, requiring that process shall run in the name of the state of Oklahoma, is mandatory. In a prosecution for having possession of intoxicating liquor, evidence obtained by search warrant not running in the name of the state should have been excluded on timely objection.”

The search warrant conferring no authority on the officer to make the search, the search and seizure was illegal, and the eivdence obtained inadmissible.

For the reasons stated, the cause is reversed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    JIM HUTCHINSON et al. v. STATE.

      No. A-6915.
    Opinion Filed Nov. 23, 1929.

    (282 Pac. 694.)
    John L. Hodge, for plaintiffs in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Carter county on a charge of having unlawful possession of intoxicating liquor with intent to convey the same, and their punishment fixed at a fine of $100 and confinement in the county jail for a period of 60 days for each of them.

The defendants contend, first, that the information was insufficient to charge an offense. The state charged the defendants in the first count with the possession of ten gallons of corn whisky, with intent to sell, barter, give away, or otherwise furnish the same, and in the second count charged the defendants with the possession of ten gallons of whisky with the intention of conveying the same from Healdton, Qkla., to another point in the state of Oklahoma, to the informant unknown. The defendants demurred to this information, and the same was overruled by the court. When the state had offered its evidence, it elected to prosecute upon the second count. The defendants contend that the information is void for uncertainty and insufficient to support the verdict of the jury. This information charged but one offense; that of possession. The first count merely alleges, in addition, that the defendants intended to sell the same, and the second count charges the defendants with intent to transport the same. It is the unlawful possession that is charged. The defendants might have had the intent to transport and also have had the intent to sell. The words, “second count” will be treated by the court as surplusage, since the information charges but one offense. Where a statute defines an offense and enumerates disjunctively the different acts or things which constitute the offense, all of such acts may be charged in a single count, conjunctively, since, though each by itself may constitute the offense, all together do no more, and constitute but one and the same offense. Davis v. State, 40 Okla. Cr. 231, 267 Pac. 674; Berry et al. v. State, 44 Okla. Cr. 150, 279 Pac. 982.

The defendants next contend that the court erred in overruling their demurrer to the evidence, because it was insufficient to prove possession of whisky with intent to convey the same. That part of section 7002, C. O. S. 1921, pertinent to the issue in this case, reads as follows:

“Or to have the possession of any such liquor with the intention of violating any of the provisions of this chapter.”

Section 7002, supra, makes it unlawful for any person to manufacture, sell, barter, give away, or otherwise furnish, or to ship or in any way convey such liquors from one place within this state to another place therein, or solicit the purchase or sale of such liquors or to have possession of the same with intention to violate any of the provisions of this chapter. The evidence introduced by the state was sufficient to establish the offense of unlawful possession with intent to violate section 7002, supra, and the court properly overruled the defendants’ demurrer and motion for a directed verdict.

The defendants next complain that the court erred in giving instruction No. 5. Standing alone, instruction No. 5 would not be sufficient, but, considered all together, the instructions properly state the law of the case. Oldham v. State, 43 Okla. Cr. 108, 277 Pac. 254; Guerin v. State, 43 Okla. Cr. 172, 277 Pac. 601; Richerson v. State, 43 Okla. Cr. 293, 278 Pac. 356.

Defendants complain of other errors, but an examination of the record discloses that they are without merit. For the reasons stated, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    C. D. ROBINSON v. STATE.
    No. A-6925.
    Opinion Filed Nov. 23, 1929.
    (282 Pac. 694.)

      Phillips., Boner & Phillips, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, C. D. Robinson, hereinafter called defendant, was convicted in the district court of Bryan county on a charge of embezzling the public funds of said county while acting in the capacity of deputy county treasurer, and was sentenced to pay a fine of $1. and to serve a term of one year’s imprisonment in the state penitentiarj.

The judgment was rendered on the 6th day of September, 1927, and the appeal was lodged in this court- on the 5th day of March, 1928. The record discloses that notice of appeal was served, on the court cleric only. It shows no service of notice on the prosecuting attorney, as required by section 2809, C. O. S. 1921. It does not show the issuance of any summons in error, nor the waiver of such by the Attorney General.

This court does not acquire jurisdiction of the appeal. Burgess v. State, 18 Okla. Cr. 574, 197 Pac. 173; Lutke v. State, 37 Okla. Cr. 18, 255 Pac. 719.

For the reasons assigned, the attempted appeal is dismissed.

EDWARDS, P. J., and DAVENPORT, J., concur.


author: DAVENPORT, J.

text:
    WILLIAM BROWN v. STATE.
    No. A-6807.
    Opinion Filed Nov. 23, 1929.
    (282 Pac. 692.)
    Morris & Tant, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, ivas by information charged jointly with Harry Grayson, Bob Canady, John Brown, and Martin Jiles, was tried jointly with the other defendants named, and the defendant was convicted and sentenced to pay a fine of $250 and be confined in the county jail of Oklahoma county for a period of three months, from which judgment the defendant has appealed to this court.

At the close ef the state’s testimony, the defendants Bob Canady, John Brown, and Martin Jiles demurred to the state’s evidence, on the ground that it was insufficient to warrant the case going to the jury, which demurrer was by the court sustained, and the three defendants above named were dismissed from the case. The jury returned a verdict of not guilty as to Harry Grayson.

The testimony of the state tends to show that William Brown had leased the upper story of a building known as 325% East Second street in the city of Oklahoma City from L. E. Williams for a period of two months; on the date the search was made of this property, the officers claim they had a search warrant for the purpose of searching it, and in trying to get in they heard a noise from the upper floor, and when they got into the building they found Harry Grayson in one of the rooms. They also claim to have found a jug containing whisky and a pitcher on the ground, in between the walls of the building they were searching and a three-story brick building; the officers contend that Harry Grayson told them the defendant William Brown told him to throw the whisky out of the window. William Brown was not in the building at the time, and could not have told Grayson to throw out the whisky, or anything else. No one but Harry Gray-son was in the building. Grayson, who was acquitted by the jury, takes the stand and says there was no whisky in the building at the time they searched it, that no copy of the search warrant was served on him, and that he did not throw any whisky out of the room where he was.

The defendant testified he had given up the rooms, as he could not make it a go as a rooming house, and had. not had anything to do with the rooms for some days prior to the day the search was made by the officers. Neither of the'officers claim to have seen the defendant William Brown in the building, nor about any of the rooms, at the time they made the search. The only evidence tending to connect the defendant with the crime is an attempt to show by one of the officers that Harry Grayson stated defendant had told him to throw the whisky out the window of the room Grayson occupied. The state offered testimony, over the objection of the defendants, as to the general reputation of the place.

The defendant has assigned 10 errors alleged to have been committed by the trial court; the first being that the verdict of the jury is not sustained by sufficient testimony; second, error of law occurring at the trial and excepted to by the defendant; third, error of the court in overruling the demurrer of the defendant to the evidence of the state; eighth, error of the court in admitting in evidence incompetent, irrelevant, immaterial, and prejudicial testimony, over the objections of the defendant; tenth, error of the court in overruling, defendant’s motion for a new trial. These assignments will be considered together.

The defendant contends that the court erred in permitting the state, over his objections, to propound the following questions to the witness, W. M. Washington:

“Q. On the 12th day of April, 1927, and prior thereto, did you know the general reputation of that place known as the second story of a two-story frame building, known and described as 325% East Second street, Oklahoma City, Oklahoma county, and state of Oklahoma, as being a place where intoxicating liquor, to wit, whisky, was kept, bartered, sold, given away, and tlxorewise furnished to divers persons unknown? A. Yes, sir.
“Q. Did you knowi the general reputation of that place at that time as being a place where people were permitted to congregate and resort for the purpose of receiving and drinking intoxicating liquor, to wit, whisky? A. Yes, sir.
“Q. Now, you have stated you knew the general reputation of that place as indicated and described in my two previous questions. State if the reputation in those respects is good or bad. A. Bad.”

These same questions in substance were propounded to the witnesses D. W. Downer and Cliff Corner, and permitted to be answered, over the objections of the defendant. There is no testimony in the record to show or connect the defendant with the sale or possession of whisky, nor is there any testimony to show any congregation of people around the place for the purpose of receiving or buying intoxicating liquors. The defendant contends that the court erred in permitting the state, over his objections, to go into the general reputation of the place where it is alleged the whisky was found, without first having shown that the place itself was a place where whisky was kept, to sell, barter, give away, and otherwise furnish to others, not merely that it bore such reputation. Watson v. State, 44 Okla. Cr. 108, 279 Pac. 934, and cases cited therein.

If the testimony of the witnesses, admitted over the objection of the defendant, as to the general reputation of this place being a place where intoxicating liquor was kept for the purpose of sale, had been excluded from the jury, the verdict of the jury might not have been a verdict of guilty. It has been repeatedly held by this court that, before the general reputation of defendant’s place is admissible, it must be shown that the place itself was a place of public resort, not merely that it bore such reputation. We hold the state failed, first to offer testimony sufficient to sustain the allegations in the information; and, second, that the objection of the defendant to the testimony of the state upon the question of the reputation of his place was well taken, and tbe court erred in not sustaining the same.

We do not deem it necessary to consider the other errors assigned in detail. The case is reversed and remanded.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    L. F. BYRD et al. v. STATE.
    No. A-6900.
    Opinion Filed Nov. 23, 1929.
    (282 Pac. 690.)
    J. H. Warren, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were prosecuted in the county court of Pushmataha county on information filed by the county attorney charging the violation of the game laws of the state, to wit, the killing of a deer. The jury returned its verdict finding the defendants guilty, and fixed their punishment at imprisonment in the county jail for 90 days. The evidence of the state is substantially that W. C. James, fire warden, met the defendants on the day alleged in the information,, and that when the defendants saw him coming they began to run, and he cut them off, and commanded them to stop and that L. F. Byrd, one of the defendants, said:

“Uncle Billy, I will come clean. I have a deer but I am not able to pay for it.”

This witness testified that this deer meat was in two sacks, and that he took charge of it; that he arrested the defendants, and they showed him where they threw the hide and horns in the creek, and that defendant Byrd told him it was his first one; that the offense was committed in Pushmataha county. The guns taken from the defendants were identified and exhibited to the jury. At the time this evidence was introduced the witness was dead, and his evidence was read from the testimony taken at a previous hearing in said cause. It was admitted by the defendants that the witness James was dead, and that the transcript of the evidence was correct. The testimony of this witness was corroborated by the witness, Harris. Mrs. James, the wife of the deceased witness, testified that on the 23d of February her husband brought the defendants to the James home, and that he brought two guns and venison; that the defendants had blood on their clothing and on their shoes, and that the defendant Byrd said that he sure hated it., but he killed the deer, and said that his family was on sufferance, and that he had to rustle something for them to eat. Mrs. James testified that her husband pointed out to ber the place where the defendants were arrested, and that it was about one-half mile from their house, and that their house wás in Pushmataha county.

Emma James, the daughter of the deceased, corroborated the evidence of her mother, except as to the pointing out of the place. The defendants claimed that they did not kill the deer, and that the meat in the sack did not belong to them, and that they did not know anything about it. They denied that they told James, his wife, or daughter that they had killed a deer, but had been hunting hogs, and had not been in Pushmataha county until after their arrest..

The defendants first contend that the court erred in permitting Mrs. James to testify to her husband pointing out the place where he arrested the defendants, since it is impossible to tell from the record whether the husband of the witness pointed out the place where the crime was committed at that time and in the presence of the defendants or whether it occurred at some other time. If it should be said the evidence was hearsay, the defendants made no objection to its introduction, and are in no position now to complain. This court will not reverse a conviction for the admission of incompetent testimony, unless it clearly appears that the admission of such evidence has probably resulted in a miscarriage of justice, or that the defendants have been deprived of some constitutional or statutory right. Cloud v. State, 41 Okla. Cr. 398, 273 Pac. 1012; Pruitt v. State, 43 Okla. Cr. 420, 279 Pac. 707; Robinson v. State, 44 Okla. Cr. 189, 280 Pac. 1112.

The defendant next contends that the court erred in refusing to give defendants’ requested instruction that, if the deer was killed in McCurtain county, then the defendants could not be convicted.. The defendants in their testimony each positively denied that they had killed a deer either in McCurtain or Pushmataha counties, and this eliminated all controversy as to venue. The positive evidence of the state was that the crime was committed in Pushmataha county. If the defendants had admitted the killing of the deer, but claimed that the killing was done in McCurtain county and not in Pushmataha, then there would have been an issue between the state and the defendant. Under the facts established by the evidence in this case, the defendants were not entitled to the instruction requested.

This court has repeatedly held that the venue of an offense need not be proved beyond a reasonable doubt. Cole v. State, 34 Okla. Cr. 366, 246 Pac. 653; Edwards v. State, 25 Okla. Cr. 167, 219 Pac. 427; Brunson v. State, 4 Okla. Cr. 467, 111 Pac. 988; Steele v. State 28 Okla. Cr. 335, 230 Pac. 760; Jentho v. State, 19 Okla. Cr. 435, 200 Pac. 251.

This court has also held that venue may be established by circumstantial evidence. Gritts v. State, 6 Okla. Cr. 534, 118 Pac. 673, 120 Pac. 669; Ward v. State, 13 Okla. Cr. 81, 162 Pac. 232; Edwards v. State, 25 Okla. Cr. 167, 219 Pac. 427; Nix v. State, 20 Okla. Cr. 374, 202 Pac. 1042, 26 A. L. R. 1053.

The evidence being sufficient to establish the venue and to support the verdict of the jury, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


author: EDWARDS, P. J.

text:
    ETHEL BATTLES v. STATE.
    No. A-6937.
    Opinion Filed Nov. 23, 1929.
    (282 Pac. 689.)
    W. A. Bishop and Japp, Woodliff & Garrison, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Seminole county of manslaughter in the first degree, and her punishment fixed at confinement in the state penitentiary for a term bf four years.

At the time charged, defendant, in the town of Seminole, shot and hilled her husband, Charley Battles. The parties were negroes, and at the time defendant was living separate and apart from her husband, several blocks from the former home in which he lived. Shortly before the killing, defendant and deceased met on the railroad tracks; deceased attempted to talk with defendant, but she refused to talk with him, and he then struck and knocked her down. Defendant soon after procured a pistol, and with two small nephews went to the home of deceased, broke down the door, and shot him four times; three of the shots taking effect, from which deceased died almost immediately. One or two witnesses for the state testified that defendant passed in front of their place of residence, just across the street from where the killing occurred, accompanied by two small nephews, who were imploring her not to kill “Uncle Charley.” She stated to these witnesses that she was going to the house to kill him. One of the witnesses testified he saw something in her hand just before she crossed the street. Defendant in her own behalf testified that she killed her husband in self-defense; that after he knocked her down on the railroad track she started toward home, and deceased waylaid her in the pipe yard near their house and knocked her down again, and compelled her to go home with him, and after they got into the house he threatened to kill her, and made a rush for the dresser drawer, in which she knew the pistol was kept, and that she beat him to the pistol, and he followed her up, and that she shot him. There is some evidence that she was intoxicated at the time of the homicide.

The first contention is that the court erred in giving instruction No. 5, as follows:

“You are instructed that the defendant, in addition to her plea of not guilty, pleads what is knoAvn in law as self-defense; that is, the defendant claims that she took the life of the deceased, Charley Battles, in order to save her own life or to prevent great bodily harm being inflicted upon her; and in this connection you are instructed that a person has a right to fight in his own necessary self-defense, and to use whatever force is necessary or apparently necessary to prevent losing his own life or having great bodily harm inflicted upon him, and it is not only the real, but the apparent, danger that authorizes one to act in his own defense, and in this case, if you find and believe from the evidence that the deceased, Charley Battles, assaulted or was about to assault the defendant, and that the defendant was without fault in the premises, the defendant had the right to defend herself and to use whatever force was necessary, or apparently necessary, to keep from losing her own life or having great bodily injury inflicted upon her, and in this connection you are instructed that it is your duty as far as may be possible to place yourself in the position of the defendant at the time of the fatal difficulty, and to view the transaction from her standpoint, and if you have a reasonable doubt as to whether the deceased or the defendant was the aggressor in the fatal difficulty, and as to whether the defendant believed, at the time she took the life of the deceased, that she was in danger of losing her life or having great bodily injury inflicted upon her, then you should resolve that doubt in favor of the defendant and find her not guilty.
“You are further instructed, however, that where a person is assaulted, or about to be assaulted, that it is his duty to use all reasonable means within his power to avoid the difficulty and avert the necessity of killing his antagonist, except that he is not bound to retreat, provided he is in a place where he has the right to be.”

It is argued that the part of the instruction which requires that the person assaulted shall be without fault is too general and is calculated to mislead the jury; that the words “without fault” should have been defined to the jury, which should have been told the character of acts on the part of defendant which destroys or deprives her of her right of self-defense, citing Gibbons v. Territory, 5 Okla. Cr. 212, 115 Pac. 130. No additional or further request for instruction upon this point was made, nor to further,define the term “without fault.” The law is often stated in similar language to that used in this instruction. Thus it was said in Evans v. State, 8 Okla. Cr. 78, 126 Pac. 586:

“One who kills another under an apprehension of death or great bodily harm from assault must have been free from fault in bringing on the difficulty in order to justify the homicide.”

A similar expression is used in Reed v. State, 2 Okla. Cr. 589, 103 Pac. 1042, syllabus 8. If defendant desired a further definition, she should have submitted a request to the court. Merriott v. State, 18 Okla. Cr. 247, 194 Pac. 263.

Complaint is also made of the proviso in the last clause of the foregoing instruction, that defendant, to avail herself of the right of self-defense, should be in a place where she had a right to be. It is argued that, the homicide having taken place at the home, the jury should have been told that defendant was at a place where she had a right to be. As it is undisputed that defendant and the deceased were living separate and apart, and she svas not living at their former home, and in view of the difficulty which had just taken place between them, and her evident purpose in going to their former home was for revenge, it would have been improper for the trial court to assume that she had a right to be there, and the instruction is not erroneous in this particular.

Several other matters are presented in the. brief, all of which have had the attention of the court, but none are of sufficient importance to call for special discussion. It appears to us that there can be no question but that defendant is conclusively shown to be guilty of manslaughter in the first degree, and, since the punishment fixed is the minimum, none of the errors complained of could have been prejudicial.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    W. B. JONES v. STATE.
    No. A-6832.
    Opinion Filed Nov. 23, 1929.
    (282 Pac. 892.)
    Burris & Crawford and Wimbish & Wimbish, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, W. B. Jones, hereinafter referred to as the defendant, ivas convicted in the district court of Pontotoc county of the crime of embezzlement, and sentenced to- serve a term of three years’ imprisonment in the state penitentiary and to pay a fine of $20,000.

The information charged the embezzlement by the defendant, who was the commissioner of accounting and finance and ex officio city treasurer of the city of Ada, of the sum of $10,000 of the public money and other funds, property, bonds, securities, assets, and effects of the said city, collected by the defendant,- and received, held, and controlled by him by virtue of his said office and trust during the period from July, 1919, to November 8, 1921.

The state introduced in evidence what purported to be an audit, made by the firm of Wolfe & Company, accountants, by C. F. Miller, one of their employees, of the books and accounts of the city of Ada for the two years ending June 30, 1921, and the cash receipts and disbursements of the defendant as commissioner of accounting and finance and ex officio city treasurer of the city of Ada, for the period from July 1,1921, to November 8, 1921. This audit revealed an apparent shortage of $10,268.83 on the part of the defendant as commissioner of accounting and finance and ex officio city treasurer.

The defendant objected to the introduction of this audit, and now assigns the admission of the same as error sufficient to require a reversal of this case. The rule laid down in the case of Hays v. State, 22 Okla. Cr. 99, 210 Pac. 728, is not applicable to the facts revealed in this case, for the reason that in the Hays Case, supra, the audit was prepared by deputies working out of the state examiner and inspector’s office, and the audit, having been filed with the state examiner and inspector, became a public record, and as such public record was admissible as primary evidence under section 654, C. O. S. 1921.

The audit prepared by Wolfe & Co., and introduced in evidence in the case at bar, was not a public record, and could not become primary evidence, except under the rule as laid down in 16 C. J. § 1211, p. 615. The rule is stated as follows:

“Books of account are the best evidence of the matters they contain; but where the books or accounts are multifarious and voluminous, and they are in evidence, or are admissible in evidence and are in court, or are otherwise accessible to court and counsel, it is proper to permit an expert accountant or other competent person who has examined the accounts to summarize the results of his examination.”

An examination of the audit introduced in evidence discloses that it in nowise complies with the rule as laid down in Corpus Juris, supra. It appears from the evidence of the witness, Miller, who prepared the audit, that he made a detailed audit of the accounts of the defendant with the city of Ada from July 1, 1919, to June 30, 1921, and an audit of the cash received and disbursed from June 30, 1921, to November 8, 1921. The witness further testified that he made the audit from what was-submitted to him as city records. The witness further testified that lie was working for Wolfe & Co., and that, while the audit was made by him, it ivas the official report of Wolfe & Co.; that Wolfe & Co. were employed by the Chamber of Commerce of the city of Ada to make the audit, and that it was made under his supervision; that the witness prepared the report, and the same was O.K.’d by Wolfe & Co. and filed with the city clerk of Ada. On cross-examination the defendant’s counsel asked the witness:

“Q. You got your information from records and from other parties and other instruments that didn’t come to you direct from Jones, didn’t you? A. Well, to some extent yes—
“By the Court: All right go ahead and tell where you got the records from which this audit was based.
“A. Well, you take for example, receipt water turned over from the water department, he gave receipts then, and naturally those receipts were in their office—and the money turned over to him, from that department would be in Mr. Jones’ office—You take the meter deposits, the money put up for meters by the users, as a deposit, that we largely had to get from the records from the Oklahoma State Bank—Some of the receipts and records in Mr. Jones’ office, he couldn’t or didn’t produce and we finally found some in his desk. In the meantime we went to the bank, Oklahoma State and M & P Bank and Security State bank and ascertained from them—”

The audit is a voluminous document covering 84 pages, and, although there are a great number of similar comments, it will only be necessary to set out a few of the extracts which are deemed to be pertinent to the issue in this case. They are as follows:

“We are informed that meter deposits were handled through an account known as W. B. Jones, Special in the Oklahoma State Bank of Ada, Oklahoma. As no ledger account thereof was found in the Cities records and a number of the bank’s monthly statements for the period under audit were reported missing, an abstract of the bank’s ledger account was secured.”
“July 1st, 1919, Cash on hand and in banks and balance in meter deposit fund, for which the present Commissioner of Accounting and Finance is accountable, per the News Despatch Printing and Audit Co’s, report of November 8th, 1919.”
“Deposits to W. B. Jones, Special account in the Oklahoma State Bank, Ada, which we were advised was used as a depository for this fund, as tabulated by us from abstracts of the bank’s ledger account, July 1, 1921, to November 8, 1921.”

The notations above set forth and many others made on the margin of the audit, and taken from the same as introduced in evidence, show that these comments had no part in the audit proper, and disclose undefined sources from which the information was received, and the admission of the same was highly prejudicial to the rights of the defendant.

In the case of Otey v. State, 39 Okla. Cr. 61, 263 Pac. 155, 158, this court said in the body of the opinion:

“This court holds that the admission of the letter transmitting the audit, together with the notations on the margins of the audit, over the objections of the defendant, was prejudicial to the rights of the defendant.”

In the Otey Case, supra, the audit had been made by the state examiner and inspector, and, after having been filed in his office, was a public record. If the letter of transmittal and marginal notations of an audit made by a public official were inadmissible, it would follow as a matter of course that the letter of transmission and marginal notations on an audit made by a private individual would be inadmissible, and the admission of the same would be prejudicial to the substantial rights of the defendant. The summary of an audit made by a private individual or company can never be made primary evidence. In the case at bar the state should have had the books and records of the city of Ada pertinent to- the issue identified as public records and offered them in evidence or had them in the courtroom available for court and counsel. The state then- should have had the books and records of the banks with which the defendant had his account properly identified by some officer of the bank, as the books and records of the bank required to be kept by law and the entries therein made in the due course of business. Phillips v. U. S., 201 F. 259, 120 C. C. A. 149; Hollingsworth v. State, 111 Ind. 289, 12 N. E. 490; People v. Miles, 123 App. Div. 862, 108 N. Y. S. 510; Ford v. State, 30 Ohio Cir. Ct. R. 592; Busby v. State, 51 Tex. Cr. 289, 103 S. W. 638; Ruth v. State, 140 Wis. 373, 122 N. W. 733.

The witness, Miller, could then have been examined as to his qualifications as a public accountant, and, when he had qualified, he could have been asked if he had made an audit of the books and records offered in evidence to ascertain the amount of money received and disbursed by the defendant in his official capacity. Answering in the affirmative, he then could have testified he had made a summary of the receipts and disbursements of the defendant for the various years and of the various departments under the control of the defendant as such commission of accounting and finance and ex officio treasurer, and could have testified that such summary showed a shortage in the defendant’s, account of $10,268.83. The summary without marginal notations or comments could then have been offered in evidence under the rule laid down in 16 C. J., supra. Under no circumstances could the audit in its present form be offered as primary evidence, and the admission of the same was prejudicial error.

The defendant complains of numerous other errors, but the conclusion we have reached renders it unnecessary to pass upon them. For the reasons stated, the cause is reversed and remanded, with instructions to proceed with the trial of the ease according to law.

EDWAEDS, P. J., and DAYENPOET, J., concur.


text:
    DEWEY WALKER v. STATE.
    No. A-6880.
    Opinion Filed Nov. 23, 1929.
    (282 Pac. 889.)
    Mauntel & Spellman, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was by information charged jointly with Daniel Walker, with unlawfully, stealthfully, and feloniously stealing from the possession of Chester Wenzel twelve turkeys, of the value of $23.81, was convicted, and his punishment fixed at six months in the penitentiary, from which judgment and sentence the defendant has appealed.

After the testimony was taken in this case, the court sustained a demurrer to the evidence as to Daniel Walker, and the court discharged Daniel Walker.

The testimony on behalf of the state tends to show that Chester Wenzel lived on a farm about a quarter of a mile from Daniel Walker during the summer of 1926; that Wenzel was the owner of 40 or 45 turkeys; some of Wenzel’s turkeys ran upon the place occupied by the defendant, and several of them got to roosting at the place occupied by the defendant. Chester Wenzel, the prosecuting witness, testified,

“I missed the turkeys, and later on upon an investigation I found the defendant and his son had sold some turkeys at Waynoka, to Roy Camp.”

Harry Whittet, a witness for the state, testified to assisting in making the search for the turkeys, and to having talked with the defendant about the turkeys, and claims the defendant asked him to wait and he would see if Daniel Walker had raised the turkeys the defendant and Dan had sold, and if the turkeys they sold were Wenzel’s turkeys he would see that Dan paid for them;

“Later John Wenzel and I went down and asked the defendants, ‘What do you say about the turkey deal?’ and he said, ‘I know where those turkeys came from, I got two turkey hens and a gobbler of Fox and took them to Dan’s when he moved west, and he would not agree to pay for the turkeys, insisting they had been raised from the two hens and gobbler, by Dan Walker.’ He said when Dan moved from the Mackey place he moved the turkeys in a wagon with his chickens. The defendant told me he would investigate, and if he found Dan had sold any turkeys any place other than Waynoka he would then know the turkeys he sold were Wenzel’s turkeys.”

On cross-examination it was shown by the witness that he had been taking a great deal of interest in investigating the matter, going so far as to propose a settlement if the defendant would pay $48.50, which was more than twice the amount the turkeys sold for; the defendant áfter making the investigation stated the turkeys they, sold at Waynoka belonged to Dan Walker, and that he did not have anything to do* with the selling of any turkeys belonging to Chester Wenzel.

John P. Wenzel testified as being present when Harry Whittet and defendant had the conversation at the home of the defendant, when Whiffet asked him what he had done about the turkeys, in which conversation the defendant told him the turkeys sold at Waynoka were Dan’s turkeys and that he would not do anything about paying Wenzel for the turkeys; that one morning the defendant came to his filling station and said he wanted to talk with him.

“He asked me if I could make arrangements for a settlement of some kind between him and Chet Wenzel. I told him I could not do it; it was not in my deal.”

There was other testimony introduced by the state tending to show that neither Dan Walker nor the defendant raised any turkeys during the summer 1926; there was no dispute that the defendant sold the turkeys at Waynoka to a produce dealer for $23.80.

Ike Meddles testified on behalf of the defendant, and stated he knew where Daniel Walker lived in the early spring and summer 1926.

“In January or February, 1926, Dewey Walker was at my place with two turkey hens and a gobbler; I wanted to buy them, and he told me he was taking them down to his son; his son Dan Walker lived about a mile from me down on the section line; I later saw the turkey hens at Dan’s place, did not see the gobbler; later I saw some turkeys and chickens at Dan’s place; Dan moved away from there about July; did not see any turkeys, geese or chickens after he left.”

Charles Carlson testified for the defendant, and stated-lie worked for defendant during the harvest 1926;

“1 saw some turkeys, geese, and chickens there; two turkey hens and I don’t know how many young turkeys; these turkeys were brown colored; I think they weighed about Sy2 or four pounds at the time.”

Harry Fox testified that in January or February, 1926, be sold the defendant two turkey hens and a gobbler.

Ivan Morgan testified to being at Dan Walker’s place in September, 1926; saw some turkeys, and—

“Dan told me he was going to sell some of them before Thanksgiving; these turkeys were right in the neighborhood of the house and around the house.”

Clarence Henderson testified he was working for the defendant during a part of the year 1926; he helped the defendant move from where he lived in July, 1926, used defendant’s wagon and got a team down at Dakoma; .

“We stayed at the place all night, loaded up the poultry and started back, put the young poultry in behind and the old ones in front; we had two turkey hens and some young turkeys, geese, and chickens; we drove this poultry to Dan Walker’s place he had rented west of Hopeton.”

David Elmer Walker testified, and stated: He was commonly called Dewey Walker;

“I bought some turkeys and took them to Dan Walker; bought them from Mr. Fox; traded some hides and corn for them. This was after the holidays in 1926. I left these turkeys at my son’s place a mile and a half north of Edith. I was out at my son’s once after that; saw the two turkey hens and a bunch of little ones; that was after my son moved southwest of Avard. We loaded these turkeys in my car and took them to Waynoka and sold them to Roy Camp. We got 17 cents a pound. I saw other turkeys around the place where my son lived. When I was up there, Mr. Romjue came over one evening to get his turkeys and was driving them north. My son said the turkeys on the south side belonged to Mr. Wenzel. There was from 30 to 45 of Mr. Wenzel’s turkeys. I had a conversation with Harry Whittet with reference to these turkeys, I think it was the day after Thanksgiving, and he said he wanted to talk to. me and drove out where we could talk alone, and be said, ‘Walker, I am a friend of yours, and want to tell you that Dan has stolen some of Chet Wenzel’s turkeys,’ and he says, ‘You can settle it right away,’ and I told him I would investigate it and find out. I went away to' spend Thanksgiving, and when I came back Mr. Whittet and John Wenzel came down to my place the next day or two after I got home and said, ‘What are you going to do about it?’ And I said, ‘Harry, if you find over twelve turkeys my boy sold, you may come right square and have him arrested and put him in jail.’ Harry said that was all he wanted to know. My son and I sold those turkeys at Waynoka. It was a month after we sold them before Harry Whittet talked to me. Wenzel never talked to me about his turkeys until after I was arrested. We sold the turkeys on the 9th of October.”

The defendant Daniel Walker testified in his own behalf, in substance, that—

“In 1926 I owned two turkey hens and a gobbler; the gobbler died and I only had one hatching; we had 15 young turkeys; we moved ten young ones and two old hens; five of the young turkeys drowned before we moved; when we moved from the Mackey place, I moved about 35 miles out west of Alva; I lived on the John Mackey place from July until the last of October, 1926; Mr. Wenzel had between 35 and 50 turkeys; father and I sold those 12 turkeys in Waynoka; I never said to any óne I did not own the turkeys I sold; the turkeys I sold were my turkeys.”

On cross-examination witness stated he hauled one load of goods from the place out west to the new place:

“Clarence Henderson hauled one load and my father-in-law hauled some; Wenzel’s turkeys and the turkeys I had were about the same color; I could tell his turkeys from mine because his went home and mine stayed there; his turkeys did not roost down at my place; Wenzel and Romjue’s turkeys were down at my place sometimes; Stella Cardin was not down at my place the day I moved my turkeys and chickens; she was down there once or twice; she had some cattle that kept getting into my cornfield, and I told her to keep them out, and I put them up and she sued me for possession of them; she was over to my place when we settled but never did get out of the car; when she came she Avas looking for cattle and not for turkeys.”

Eldora Howe, called in behalf of the state, testified she was the mother-in-law of Dan Walker; that Dan Walker did not raise any turkeys in the summer of 1926.

Eufus C. Howe testified he hauled some poultry about the 10th day of July, 1926; he did not see any turkeys:

“When we hauled him down there there were turkeys on the place; I don’t knoAV whose they were.”

On cross-examination witness stated he did not know whether they were Dan’s turkeys or not. This is in substance the testimony introduced in the case.

Six errors are assigned by the defendant alleged to have been committed in the trial of the case. The first error is that the trial court erred in overruling the motion of the plaintiff in error for a new trial. Second, that the trial court erred in not rendering judgment directing the jury to find-the defendant in error not guilty, upon the motion of the plaintiff requesting the said instructed verdict, and to which ruling the plaintiff in error then and there excepted. Third, that the trial court erred in not sustaining the demurrer.

In this case there is considerable conflict in the testimony. The evidence on behalf of the state being circumstantial and tending to show that twelve turkeys of the prosecuting witness were taken by some one; that the defendant and his son Dan sold at Waynoka some turkeys several days before Wenzel missed his turkeys. The circumstances upon which the state relies for conviction being that the prosecuting witness lived near the place of Dan Walker and claims that for some time his turkeys ran in and around the Dan Walker premises; that after Dan Walker moved away he missed twelve turkeys and began to investigate, and found that the defendant and Dan Walker had sold twelve turkeys to a produce dealer in Waynoka.

One of the witnesses, Harry Whittet, who seems to have been very active in trying to find out where the turkeys, if any, had been sold, says he talked with the defendant about settling the matter, and the defendant said that if they found where Dan Walker had sold turkeys anywhere but in Waynoka, then he would know the turkeys sold in Waynoka did not belong to Dan. The witness wanted the defendant to pay $48'.50 for the turkeys, which was more than twice the price the turkeys sold for. The defendant admits he had a conversation with the witness, but says he advised the witness he would investigate and see if Dan had sold any turkeys any other place; that Dan had some turkeys and had moved them when he left the Mackey place and moved to the place west.

Dan Walker testified to the number of turkeys he had and the number that was hatched, and the number that Avas drowned, leaving him as he claimed twelve turkeys, two old hens and ten young turkeys. Clarence Henderson, who had Avorked on his place, testified to seeing the turkeys and that he moved them from where Dan lived on the Mackey place.

Dan Walker and the defendant both testified, and admit the sale of turkeys, and Dan states positively he raised the turkeys and sold them at Waynoka; that he moved the turkeys from the Mackey place, and when he sold them he sold them as the turkeys owned by him.

The Controversy to be settled in this case is the controversy as to whether or not the defendant had any knowledge that Dan Walker was not the owner of the turkeys the defendant and Dan sold at Waynoka. The charge in the case being a charge of larceny, not receiving stolen property, it is incumbent on the state to prove each and every material allegation in the information.

Section 2101, C. O. S. 1921, defines “larceny” as follows:

“Larceny is the taking of personal property accomplished by fraud or stealth, and with intent to deprive another thereof.”

In this case the defendant contends that the evidence is insufficient to sustain the judgment. Dan Walker, the codefendant in this case, at the close of the state’s testimony was released by the court on the ground that the testimony was insufficient to sustain a conviction against him. The only evidence in this case which tends to connect the defendant Dewey Walker with the turkeys is the evidence that he hauled these turkeys for Dan Walker in his car to Waynoka, where they were sold on the public market in the general course of business during the day. The testimony further discloses that when the witness Whittet talked to the defendant the defendant advised him he would investigate, and if the proof showed that Dan sold turkeys other than the turkeys at Waynoka that Dan should settle for them, or that they should proceed, to prosecute Dan. Dan Walker testified positively that the turkeys sold at Waynoka belonged to him.

Considering all the evidence contained in the record-in this case, we hold that the evidence is insufficient to ;convict the defendant Dewey Walker of larceny of the turkeys alleged to have been missed by the prosecuting witness. This court has repeatedly held that where there was any competent testimony to go to the jury, it would not disturb the verdict, but, on the other hand, where there was no competent testimony tending to sustain the charge in the information, it is the duty of the court to say that the evidence is insufficient.

There being no competent testimony to sustain the charge of larceny, the judgment is reversed.

EDWARDS, P. J., and CHAPPELL, J., concur.


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    VIRG SUDDERTH v. STATE.
    No. A-6908.
    Opinion Filed Nov. 23, 1929.
    (282 Pac. 1109.)
    Tom W. Cheatwood, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, Virg Sudderth, hereinafter called defendant, was convicted in the district court of Cleveland county of the crime of driving an automobile on a public highway while under the influence of intoxicating liquor and punishment fixed at .a fine of $100. No contention is made that the evidence is insufficient; therefore it is unnecessary to state the facts.

The charging part of the information is as follows:

“* * * That on the 13th day of August, A. D. 1927, and anterior to the • presentment- hereof, in Cleveland County, State of Oklahoma, Virg Sudderth late of said County and within the jurisdiction of this Court, did unlawfully, willfully and feloniously run, drive, operate and propel a motor vehicle, to wit; a Ford automobile at, in and upon the -public highway, to wit; a street in the west part of the town of Lexington, Oklahoma while he, the said Virg Sudderth, was then and there being under the influence of intoxicants. * * *”

The demurrer of the defendant to this information was overruled by the court. Before judgment was pronounced, the defendant questioned the sufficiency of the information by motion in arrest of judgment. The defendant assigns the overruling of the demurrer to- the information as his first ground of error.

This prosecution is based on section 3, chapter 16, Session Laws 1923, and reads as follows: penitentiary not more than one year, or by a fine of not more than two thousand ($2,000.00) dollars, or by both imprisonment and fine.”

“It shall be unlawful for any person who is under the influence of intoxicating liquor, or who is a habitual user of narcotic drugs, and the having on or about one’s person or in said vehicle of said intoxicating liquor is prima facie evidence of a violation of this act, to operate or drive a motor vehicle on any highway within this state, as defined in section 1, of this act, and any person violating the provisions of this section shall be deemed guilty of a felony and shall be punished, by imprisonment in the

It will be noted that the information charges that the defendant drove the automobile on the public highway while under the influence of “intoxicants,” while the statute says under the influence of “intoxicating liquors.” Counsel for defendant argues that “intoxicants” and “intoxicating liquors” are not equivalent terms, and the use of the word “intoxicants” instead of “intoxicating liquors” does not sufficiently inform the defendant of the charge against him. True, intoxicants might have a broader meaning than intoxicating liquors. It might include certain narcotic drugs that would produce intoxication, but that is not the ordinary sense in which the term “intoxicants” is now generally used. If one is spoken of as intoxicated, it will immediately be understood that such a one is under the influence of intoxicating liquors and not doped as is commonly used of narcotics. Ordinarily opium or morphine are not spoken of as an intoxicant, but as a narcotic, and Legislature has so recognized the distinction and classified them as different. Sections 8886, 8887, 8888, C. O. S. 1921.

Section 2561, C. O. S. 1921, provides:

“The' words used in an indictment or information must be construed in their usual acceptation, in common language, except words and phrases defined by law, which are to be construed according to their legal meaning.”

Section 2562, C. O. S. 1921, provides:

“Words used in a statute to define a public offense need not be strictly pursued in the indictment or information, but other words conveying the same meaning may be used.”

Tlie words used in an indictment (unless otherwise defined by law) are to be construed in their usually accepted sense. “Intoxicants,” therefore is equivalent to “intoxicating liquors.” In its usual signification the term does not include “drugs.” Martin v. State, 35 Okla. Cr. 248, 250 Pac. 552; Gault v. State, 42 Okla. Cr. 89, 274 Pac. 687.

Defendant next complains that the court erred in refusing to give a requested instruction defining “under the influence of intoxicating liquor.”

In the case of Welch v. State, 43 Okla. Cr. 147, 277 Pac. 280, in paragraph 2 of the syllabus this court said:

“The term 'under the influence of intoxicating liquor,’ as used in section 3, chap. 16, Session Laws 1923, is a term of common use, and requires no definition or explanation to be understood by persons of ordinary intelligence, and it is not error for a court in defining the offense of driving an automobile while under the influence of intoxicating liquor to fail to define or explain such term.”

The expression under the influence of intoxicants or intoxicating liquor is one readily understood by the ordinary juror. It is not a technical term having a. legal meaning, and to attempt to define it would probably lead to more confusion than to leave it alone.

The evidence being sufficient to sustain the verdict of the jury and the errors of law complained of being without merit, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


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    JIM CONTI v. STATE.
    No. A-7067.
    Opinion Filed Nov. 23, 1929.
    (282 Pac. 687.)
    Harris & Lackey, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was charged by information of having possession of intoxicating liquor, to wit, Choctaw beer, was convicted and sentenced to pay a fine of |250 and be imprisoned in the county jail for a period of 60 days, from which judgment and sentence the defendant has appealed.

The testimony on behalf of the state tends to show that on the 22nd day of February, 1928, the officers went to the home of the defendant with a search warrant, and searched his premises, and found a quantity of what is designated as Choctaw beer. The only evidence on behalf of the state tending to show they found intoxicating liquor was the statement of the witness Thad Wilkes that they found Choctaw' beer:

“Q. Was that beer intoxicating? A. It was.
“Q. How do you know? A. I tasted it.”

This was tbe only testimony introduced on behalf of the state showing the intoxicating effect of the Choctaw beer claimed to have been found by the officers. The court, over the objections of the defendant, permitted the state to go into the general reputation of the defendant’s place as being a place where intoxicating liquor was kept, stored, bartered, sold, or otherwise furnished to others.

No brief has been filed in this case, and under the rules of this court, where an appeal is not supported by brief, it is assumed the appeal has been abandoned or is without merit. The record in this case has been examined, and we hold that the information sufficiently charges an offense; that there is sufficient evidence, though of an uncertain character, to support the charge; there being no analysis of the beer proven, and no' testimony that any one drank a sufficient quantity to show it was intoxicating; the only testimony being one of the witnesses testified he tasted it, and it was intoxicating.

The instructions of the court were reasonably fair to the defendant. The court erred in permitting the state, over the objections of the defendant, to go into the general reputation of the defendant’s place, without it being first shoAvn that the defendant’s place was a place where intoxicating liquor was stored, kept, bartered, sold, or otherwise furnished to others, not merely that it bore such reputation; but in view of the facts contained in the record the error cpmmitted by the court was not sufficient to warrant this court in reversing the case.

We hold that, after an examination of the testimony contained in the record and the instructions of the court, the punishment imposed is excessive, and under the provisions of the law giving this court authority to modify the judgment we feel that the ends of justice will be properly met by a modification of the judgment from 60 day in jail and a fine of $250 to 60 days in jail and a fine of $100.00. The judgment, as so modified, is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


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    M. C. CLARK v. STATE.
    No. A-6862.
    Opinion Filed Nov. 23, 1929.
    (282 Pac. 688.)
    Sigler & Jackson, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county on a charge of having possession of eight gallons of Choctaw beer, and his punishment fixed at a fine of $50 and confinement in the county jail for 30 days.

The defendant filed a motion to suppress the evidence obtained by a search warrant because all the material evidence in this action was obtained over the constitutional and statutory rights of this defendant. Defendant attached Ms affidavit to Ms motion to suppress, in wMch he denied all the material allegations contained in the affidavit for the search warrant and examined the witness Hale Dunn, who made the affidavit for the search warrant, in an attempt to show that the witness had no personal knowledge of the facts set out in the affidavit for the search warrant.

In the case of Phillips v. State, 34 Okla. Cr. 52, 244 Pac. 451, 452, this court said: “Whether or not the magistrate errs in his conclusion or whether or not the affidavit upon which the search warrant was obtained is true is not an issue under the, trial of a case predicated upon evidence obtained by such search warrant.” See, also, Ray v. State, 43 Okla. Cr. 1, 276 Pac. 785.

The affidavit for the search warrant being sufficient on its face to authorize the issuance of the search warrant, the motion to suppress the evidence was properly overruled.

The evidence of the state was that they found eight gallons of Choctaw beer. Dr. J. L. Bullock, qualified as a chemist, testified that he analyzed the beer and that it contained 6 per cent, of alcohol. The defendant did not take the witness stand and offered no evidence in his defense.

The search and seizure being legal, and the evidence being sufficient to support the verdict of the jury, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


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    VAN MORGAN v. STATE.
    No. A-7305.
    Opinion Filed Nov. 25, 1929.
    (282 Pac. 1110.)
    McCollum and McCollum, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Pawnee county on a charge of. perjury and was sentenced to serve- a term of four months in the state penitentiary.

The charge arose from the following state of facts: Defendant was an applicant before the county judge for a license to operate a pool hall under the provisions of section 3204, Comp. Stat. 1921. In making such application he filed an application before the county judge which he verified by oath before the court clerk of the county. This application, among other things, sets out that the applicant has never been convicted of violating any of the laws prohibiting the traffic in any spirituous, vinous, fermented, or malt liquors, or any of the laws commonly called “prohibition laws.” The information alleges this was false; that in February, 1915, the applicant was tried and convicted in the United States District Court at Guthrie on a charge of introducing intoxicating liquor on the Indian Reservation; and that his affidavit was false and untrue, etc.

Counsel for defendant contend: First, That the provisions of the law providing for license for pool halls, section 3204, Comp. Stat. 1921, wherein it refers to a violation of the prohibition laws, has application only to the prohibition laws of the state of Oklahoma, and not to the federal statutes dealing with the introduction of liquor into the Indian Territory. Second. That the statute which provides for a license to operate pool halls does not provide nor require that the same shall be sworn to. Third. That the said section 3204 fixes the penalty for violation thereof as a misdemeanor, and the fixing of such penalty precludes perjury based upon a violation of such section.

The Attorney General has filed a confession of error in part as follows:

“The Attorney General is inclined to the view that the statutes of Oklahoma do not make it perjury for a person to swear falsely to an application for a pool hall license. It is with considerable reluctance and regret, and after much investigation, that the Attorney General feels impelled to make this confession.
“Sec. 1500 Comp. Stat. 1921, reads as follows:
“ ‘No act or omission shall be deemed criminal or punishable except as prescribed or authorized by this code. The words “this code” as used in the “penal code” shall be construed to mean “statutes of this state.” ’
“Irrespective of said section, it is a plain requirement of law, well known to the legal profession, that before a person may be punished criminally, there must be some express legal provision for so doing.
“Our statute defining the crime of perjury reads as follows:
“ ‘Any person, who, having taken an oath that he will testify, declare, depose or certify truly, before any competent tribunal, officer, or person, in any of the cases in which such an oath may by law be administered, wilfully and contrary to such oath, states any material matter which he knows to be false, is guilty of perjury.’ (Sec. 1628, Comp. Stat. 1921.)
“In the case of Ex parte Ellis, 3 Okla. Cr. 220, on pages 224, 225, 105 Pac. 184, 186, 25 L. R. A. (N. S.) 653, Ann. Cas. 1912A, 863, of said opinion, is the following statement of this court:
“ ‘In general any material statement made under oath in any proceeding, or in relation to any matter in which oath is authorized, or required by law, may be the subject of perjury. * * * ’
“ ‘It is a general rule that perjury cannot be predicated on an oath which is not required by law.’ U. S. v. Dupont (D. C.) 176 F. 823; State v. Wyatt, 3 N. C. 56; People v. Fox, 25 Mich. 492.
“And that the hearing of an application for a pool hall license is not a judicial proceeding. It is a special proceeding before a county judge and tbe hearing is controlled by the provisions of section 3203 to 3207, Comp. Stat. 1921. Section 3204 is the section relating to the application for the license and the necessity of the applicant to make a showing once a year to the county judge, and satisfy the county judge that he is a person of good moral character, et cetera. There is nothing in any of the sections relating to the issuance of license for pool halls that provides that the application shall be under oath, or that any witness or person shall be sworn by the bounty judge or by any other officer authorized to administer oaths as to the truthfulness of any matter that he may be called upon to present in any such hearing. In other words, the special statute for the issuance of pool hall licenses does not provide for an oath to be administered by the county judge at any time or for any purpose.
“Now, the statute defining perjury provides that perjury may be committed in instances ‘only’ ‘in which such an oath may by law be administered.’ However reprehensible it may be for a person to make a false oath in any instance whereby he may secure some benefit by so doing, nevertheless, the Legislature has seen fit only to make a false oath perjury where the person swears to some material matter in an instance where the oath may by law be administered.
“In the case of City of Shawnee v. Landon, 3 Okla. Cr. 440, 106 Pac. 652, this court held:
“ ‘Penal statutes cannot be enlarged by implication or extended by inference. No person can be convicted of a crime unless the act committed is within both the letter and the spirit of a penal statute.’ See, also, White v. State, 4 Okla. Cr. 163, 111 Pac. 1010; Myers v. State, 19 Okla. Cr. 138, 197 Pac. 884, 18 A. L. R. 1057; State v. Smith, 19 Okla. Cr. 195, 198 Pac. 879.
“The Attorney General is of the opinion that it would be an evident enlargement upon the perjury statute to hold that by implication and inference the crime of perjury may be committed by swearing falsely to an application for a pool hall license under the provisions of section 3204, supra.
“Nor do we believe that the fact that the county judge may have required the application to be sworn to before he would consider the same to be equivalent to a statute providing for the taking of such oath. Before you can make the offense criminal, the oath must be provided for by law. In other words, the crime of perjury may only be committed where the oath may by law be taken. * * *”

An examination of the statutes and the authorities convince us that the contention of defendant should be sustained in each particular. A part of such section 3204, Comp. Stat. 1921, is:

“* * * That he has never been convicted of violating any of the laws prohibiting the traffic in any spirituous, vinous, fermented or malt liquors, or any of the laws commonly called ‘prohibition laws,’ or convicted of violating any of the gambling laws of the state.”

The following section, 3205, among other things, provides:

“The county judge, upon five days notice to the person holding such license shall revoke such license for any one of the following reasons: * * * Fifth. Violating any of the laws of the state commonly called ‘prohibition laws’ or violating any of the gambling laws of the state; or permitting anyone to violate any of these laws in such place.”

Considering these sections of the statute together, it appears that the Legislature in prescribing restrictions upon persons applying for pool hall license had in mind the state prohibitory liquor laws, and not those of the United States, and that the language as quoted from section 3205, supra, in fact excludes its application to violations of the federal statutes.

Upon the second contention it will be observed that the statute providing for an application for a license to operate a pool hall does not provide that the application be sworn to. It is a well-settled rule that an oath not administered pursuant to nor required nor authorized by any law cannot be made the basis for a charge of perjury. In 30 Cyc. p. 1411, the law is stated as follows:

“The taking of a mere voluntary oath that is nowhere either authorized or required by law is not perjury. A charge of perjury cannot be predicated upon false testimony before a grand jury, where the grand jury had no legal authority to inquire into the particular matter under investigation. Nor can perjury be assigned on the affidavit of an applicant for naturalization as to his residence in a state previous to the application, since as to such matter an oath is not required.”

In State v. McCarthy, 41 Minn. 59, 42 N. W. 599, it is said:

“An oath not administered pursuant to, nor required nor authorized, by any law, cannot be made the basis for a charge of perjury.” '

In State v. Parrish, 129 La. 547, 56 So. 503, 39 L. R. A. (N. S.) 96, it is said:

“To falsely malte oath before a notary public in order to obtain a saloon license is not perjury, when the law governing the issuance of such licenses does not require such an oath. An oath must be administered in accordance with the law before perjury can be charged.”

See also Patterson v. U. S. (C. C. A.) 181 F. 970, where the same rule is stated.

Upon the third contention, an examination of section 3204, Comp. Stat. 1921, supra, shows that the latter part provides:

“* * * Any person violating any provision of this section shall be punished by fine not less than twenty-five dollars nor more than one hundred dollars for each offense.”

In this connection, section 1509, Comp. Stat. 1921, is as follows:

“If there be in any other chapter of the laws of this state a provision making any specifie act criminal and providing the punishment therefor, and there be in this penal code any provision or section making the same act a criminal offense or prescribing the punishment therefor, that offense and the punishment thereof shall be governed by the special provisions made in relation thereto, and not by the provisions of this penal code.”

If plaintiff in error committed an offense in making a false application for pool hall license, the penalty is fixed by the latter part of section 3204, supra.

The confession of error of the Attorney General therefore follows the sound rule of law and is adopted by this court.

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

DAVENPORT and CHAPPELL, JJ., concur.


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    J. H. BOCK v. STATE.
    No. A-6873.
    Opinion Filed Nov. 30, 1929.
    (283 Pac. 272.)

      E. V. Rakestraw, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted on information, which charged him with selling intoxicating liquor to one W. E. Stone, and was sentenced to pay a fine of $50 and to be imprisoned in the county jail for a period of 30 days, from which judgment the plaintiff has appealed to this court.

The testimony on behalf of the state, in substance, is as follows: W. E. Stone went to a filling station in the town of Roosevelt, and the defendant sold him a pint of whisky. He went down the street about two blocks and delivered it to Jack Ball and Lee Watson. The prosecuting witness had never met the defendant before. He drove back to the filling station with Jack Ball and Lee Watson and pointed out the fellow that sold him the whisky. Jack Ball and Lee Watson testified that the prosecuting witness W. E. Stone brought the whisky down to where they were and they drove back to the filling station and he pointed out the man from whom he got the whisky and the man the prosecuting witness pointed out was the defendant.

The defendant shows where he was some time prior to the alleged sale of the whisky, and also testified tha.t he was not at the filling station until just about the time the witnesses Jack Ball and Lee Watson came up. The testimony is conflicting; the state’s witness testifying to having bought the whisky from the defendant, and the defendant denying selling the whisky to the state’s witness.

The defendant alleges as errors committed in the trial of his case: First, that the court erred in admitting incompetent, irrelevant, and immaterial testimony over his objections; second, because of error committed during the trial; third, the court erred in overruling the defendant’s motion for a new trial.

The record in this case is short; the testimony on behalf of the state showing a sale made by the defendant to the prosecuting witness, W. E. Stone, and that on behalf of the defendant denying the sale or that the defendant had anything to do with the sale of the pint of whisky alleged to have been purchased from the defendant by the prosecuting witness.

The instructions of the court was applicable to the facts in this case. The instructions given by the court were not prejudicial to the rights of the defendant or calculated to mislead the jury. The testimony of the state, if believed by the jury, was sufficient to sustain the conviction. The verdict rendered by the jury is conclusive that the jury believed the state witnesses and disbelieved the witnesses for the defendant.

We have carefully examined the testimony contained in the record and find the evidence sufficient to sustain the conviction.

There being no errors prejudicial to the rights of the defendant, the judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


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    HOWARD REYNOLDS et al. v. STATE.
    No. A-7218.
    Opinion Filed Nov. 30, 1929.
    (283 Pac. 269.)
    L. M. Gensman, for plaintiffs in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiffs in error were convicted in the county court of Comanche county on a charge of having possession of a still. H. E. Coody was sentenced to pay a fine of $50 and to serve 30 days in the county jail, and Howard Reynolds was sentenced to pay a fine of $250 and to serve 30 days in the county jail. The motion for a new trial was overruled and judgment and sentence entered on August 22, 1928. The state has filed motion to dismiss the attempted appeal for the reason that no notice of appeal was served upon the clerk of the court and the county attorney as required by section 2809, Comp. St. 1921, or by posting notice in case such officers were not found in the county. The only notice given was oral notice in open court at the time the motion for new trial was overruled, evidently in an attempt to give the notice provided for in section 782, Comp. St. 1921, chap. 219, Session Laws 1917. This latter section does not repeal section 2809, supra, but has application solely to appeals in civil causes. Burgess v. State, 18 Okla. Cr. 574, 197 Pac. 173.

For the reasons stated, the motion of the Attorney General is sustained, and the appeal is hereby dismissed.

DAVENPORT and CHAPPELL, JJ., concur.


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    FRANK DRUMMONDS v. STATE.
    No. A-6722.
    Opinion Filed Nov. 30. 1929.
    (283 Pac. 263.)
    L. M. Gensman, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Comanche county on a charge of having possession of intoxicating liquor, to wit, whisky, and his punishment fixed at a fine of $250 and confinement in the county jail for 30 days.

The evidence of the state was obtained by means of a search warrant. Officer S. A. Logan, who made the affidavit to procure the search warrant, testified that in the search they found a half-gallon fruit jar full of whisky in a cupboard in the kitchen, 800 pounds of sugar, a 3 or 5 gallon jug which had the odor of whisky, and 7 cases of fruit jars in. the cellar, one crate of which had a strong smell of liquor coming from it. This evidence was corroborated by Officer Ewing Barker, who testified that it was whisky. The defendant claimed that the liquor found on his premises had been found by a nephew of his, and had been carried to defendant’s home and left there. He denied that he knew the whisky was in his house or that he had anything to do with it.

The defendant filed a motion to suppress the evidence, and called the justice of the peace, who issued the search warrant, and S. A. Logan, who made the affidavit, for the purpose of showing that neither of the parties had any actual information or personal knowledge of the things set forth in the affidavit for the search warrant. The trial court permitted the defendant to attack the truthfulness of the facts alleged in the information and the source from which the affiant obtained his information.

In the case of Phillips v. State, 34 Okla. Cr. 52, 244 Pac. 451, 452, this court said:

“The sufficiency in form or substance of the affidavit for search warrant and the search warrant itself may be challenged by a motion to suppress evidence or by an objection to the admission of evidence. Such challenge is to be determined by the trial court. It is never a question for the jury. The purpose of the verified complaint for search warrant is to invoke the judicial power of the magistrate, and, when filed, it is the duty of the magistrate to determine judicially if there is probable cause for believing the existence of the things stated in the affidavit. In so determining the magistrate exercises a judicial function. Whether or not he errs in his conclusion or whether or not the affidavit upon which the search warrant is obtained is true is not an issue under the trial of a case predicated upon evidence obtained by such search warrant.”

In the case of Ray v. State, 43 Okla. Cr. 1, 276 Pac. 785, this court said:

“Where the affidavit and search warrant are sufficient on their face, the evidence obtained by the search is admissible, and the court will not permit the accused, after the warrant has been executed, to show that the statements in the affidavit are not true, or to raise any question as to the accuracy or source of the affiant’s information or the means by which it was obtained.”

The sufficiency of the affidavit in the case at bar must therefore be tested from the affidavit itself, and not by reason of any extraneous testimony of the person sworn. It was improper for the trial court to permit the defendant to cross-examine S. A. Logan, who made the affidavit for search warrant, in an attempt to establish either that Logan had no personal knowledge of the facts stated in the affidavit or that such statements were untrue.

The affidavit being sufficient upon its face to authorize the issuance of a search warrant, and a timely search of the premises having been made under the warrant issued thereon, the evidence obtained by such search was properly admitted by the trial court.

The evidence being, sufficient to support the verdict of the jury, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


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    OLIN DAVIS v. STATE.
    No. A-7137.
    Opinion Filed Nov. 30, 1929.
    (283 Pac. 263.)
    John W. Whipple, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Payne county on April 10, 1928, on a charge of manufacturing whisky, and was sentenced to pay a fine of $400 and to serve 150 days in the county jail. Motion for a new trial ivas overruled, and sentence passed on April 13, 1928.

The defendant prepared case-made, which was filed in this court on August 15, 1928, which is more than 120 days from the date of the judgment. The longest period of time in which an appeal from a misdemeanor may be lodged in this court is 120 days. Fuhr v. State, 31 Okla. Cr. 409, 239 P. 679, and authorities cited.

The attempted appeal is dismissed.