text:
    ED SKELTON v. STATE.
    No. A-9430.
    Aug. 25, 1939.
    (93 P. 2d 543.)

      John T. Levergood, of Shawnee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, the defendant in the trial court, was by information charged that on the 25th day of June, 1937, he unlawfully, knowingly, and wilfully had in his possession intoxicating liquors with the unlawful intent to sell and give away the same; was tried, convicted, and sentenced to pay a fine of $100 and to be confined in the county jail for 60 days. From the judgment and sentence, the defendant appeals.

The defendant in his petition in error assigned 13 errors alleged to have been committed by the trial court. The only errors that it is deemed necessary to consider are the 8th, 9th, and 11th assignments of error, which are as follows:

“(8) Because the court erred in overruling defendant’s objection to the introduction of evidence procured by the state’s witnesses and officers for the reason that said evidence was procured by said officers without legal search and seizure warrant, and without authority of law, and that the evidence offered by the state was procured by this unlawful and wrongful means, and that the same was incompetent and irrelevant to be used against the defendant in the trial of this cause.”
“(9) Because the court erred in overruling defendant’s motion to quash the arrest, when in truth and in fact the evidence introduced upon the hearing thereof conclusively showed upon its face that said arrest was wholly illegal, unauthorized and void, and that no misdemeanor, especially the crime of illegal possession of liquor was committed or attempted to be committed in the presence of the arresting officer.”
“(11) Because the court erred in overruling plaintiff in error’s motion for a new trial, to which plaintiff in error duly excepted.”

As shown by the record, F. A. Budd, who was a police officer of the city of Shawnee, made an affidavit to secure a search warrant, upon which affidavit a search warrant was issued, giving the name of John Doe as the occupant of the residence to be searched. The defendant’s home was searched, and nothing found.

On an adjoining piece of property, which they claim the defendant had the keys to, intoxicating liquor was found; and the officers claim they had a search warrant for that property also; yet they declined, and the court refused to request them, to produce the search warrant for the property where the whisky was found, leaving this court in doubt as to the officers having a second search warrant.

The defendant, when called upon to plead, filed a motion to suppress the evidence on the ground “that the evidence obtained by the county attorney’s office, and upon which the information filed herein is based, was obtained by an illegal and unreasonable search of the defendant’s private residence and home on the 25th day of June, 1937, pursuant to the filing of a pretended complaint for search and seizure by one F. A. Budd, chief of police of Shawnee, Okla., before M. M. Chapman, municipal judge of the city of Shawnee, Okla., and the issuance of a pretended warrant for search and seizure by the said M. M.. Chapman.”

The defendant insists the search warrant is void because the same does not show there was probable cause for issuing the same as required by the law; that the person making said affidavit or complaint has no personal knowledge of the existence of intoxicating liquor on said premises to be searched; and that the complaint shows on its face that the same is based on information and belief; and sets forth many more grounds for the suppression of the evidence on the ground that the search warrant was void, because the affidavit was not sufficient.

Section 13442, O. S. 1931, Constitution, article 2, sec. 30, Bill of Rights, Okla. St. Ann., is as follows:

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

Section 3224, O. S. 1931, 22 Okla. St. Ann. § 1224, is as follows:

“The magistrate must, before issuing the warrant, take, on oath, the complaint of the prosecuting witness in writing, which must set forth the facts tending to establish the grounds of the application, or probable cause for believing that they exist.”

Section 2635, O. S. 1931, 37 Okla. St. Ann. § 84, defines what is necessary for the issuance of a search warrant, and how the same should be served. The affiant should swear to the facts, showing probable cause for his belief.

The records of this court have demonstrated many times that many sheriffs and police officers (also some county attorneys) do not comprehend the true purpose or requisite features of an affidavit for a search warrant.

In this case the affidavit for the search warrant was' submitted by F. A. Budd, chief of police of Shawnee, Okla.; but in the trial of the case Budd is not called as a witness. An examination of the affidavit made by the chief of police discloses a very peculiar state of facts, and clearly shows to this court that the chief of police, when he made the affidavit, was using an old-time blank that had long since been abandoned by most of the prosecutors in this state. As in the first paragraph of the affidavit, after reciting the different kinds of liquors that he claims was possessed by the defendant, he says that he possesses intoxicating liquors and “imitations thereof and substitutes therefor, which contain as much as one-half of one per cent, of alcohol, measured by. volume and capable of being used as a beverage.” He carries this in each of the paragraphs of the affidavit, in which he attempts to charge this defendant with the possession of liquor.

This court thinks that the form of affidavit used by the chief of police was an old, antiquated affidavit, where some one decided that he was preparing an affidavit for a search warrant, and that he would incorporate everything in it known to the laws of Oklahoma that a defendant might be charged with in the manufacture, possession, sale, or in any way, handling anything that might be used in the manufacture or sale of intoxicating liquors. The reason we say this, the record shows that this affidavit was made on the 26th day of June, 1937, and the people of this state amended the law defining intoxicating liquor as being liquors, compounds, or substitutes containing more than 3.2 per cent, alcohol by weight, Session Laws of 1933, chapter 153, p. 338, 37 Okla. St. Ann. §§ 1, 31, 82, 151 et seq. The affiant in this affidavit showed a want of knowledge of the law when he made the allegation against this defendant, charging him with possession of liquors, compounds, or substitutes containing more than one-half of one per cent, of alcohol.

As the party making the affidavit did not testify, there was no opportunity to test his knowledge of the truth of any of the statements in this affidavit; and, in fact, if he had testified, and followed the language of his affidavit, he would have been compelled to state that he had no personal knowledge whatever of any violation of the law by the defendant when he made the affidavit, as he gives as a basis of his making the affidavit “that said premises so described aforesaid bear the general reputation of being a place where intoxicating liquors, to wit: whisky, wine, beer, are had, possessed and kept and received for the purpose of sale and are sold.” This statement shows conclusively that the affiant had no knowledge of the facts stated in that part of the affidavit, because he said it bears the reputation. He does not give a single fact to indicate or show what has happened to the defendant’s home that would cause it to bear such a reputation.

The next statement in his affidavit, used as a basis for his complaint, is “that numerous persons whose true and correct names are to this affiant unknown have been seen to enter said premises in a sober condition, and later stagger forth from said place under the influence of intoxicating liquors.” The affiant does not say that he saw the parties enter the premises of the defendant and come out in the condition he states in the affidavit; therefore, this statement is based upon rumor, if any he had, and information.

He says that numerous persons congregated and resorted to the premises at all hours of the day and night; but he does not say that he has seen these persons congregating there. In other words, all the way through this paragraph of the affidavit which he gives as a basis for his complaint, not one single statement is made by the affiant upon his personal knowledge.

He was a police officer of the city of Shawnee; and if the facts stated in this affidavit went on in his presence and he saw them, it was his duty to arrest them at that time.

The court must conclude from the language of the affidavit that the affiant made the affidavit for the search warrant of both lots, if there was a search warrant for the second lot, based on information and belief, or that the statements made in the affidavit by the affiant were made without knowledge that the facts stated by him were true; and it was made for the purpose of searching the premises without being placed in a position so that if he made a false statement, the aggrieved person could redress the wrong done him by having the affiant prosecuted for perjury; but not so, where the affiant states mere naked belief.

We cannot understand why, if there was an affidavit for a search warrant, and the search warrant was issued to search the property where it is alleged the officers found the whisky, the state should refuse to produce the affidavit for the search warrant when requested to do so by the defendant; and we cannot understand why the court did not require the prosecution to produce .the affidavit for the search warrant.

Judging from the affidavit in the record in this case now being considered, we must infer, if there was an affidavit filed to secure a search warrant to search the property where the officers claim they found the whisky, that it was in the same form and contained the same allegations as in the case now being considered. The court is in serious doubt as to whether or not there was an affidavit filed for a search warrant to search the property where it is alleged the whisky was found by the officers.

The record in this case shows that the defendant was arrested, taken to jail on Saturday afternoon or evening, and at that time there was nothing on file showing that a search warrant had been issued; but there was an affidavit and search warrant filed on June 28, 1937.

In Baker v. State, 28 Okla. Cr. 408, 231 P. 320, on page 321, the court stated as follows:

“In every instance the affidavit should state some fact or facts showing probable cause, as a basis or foundation for an affiant’s belief.”

The court also set out in Baker v. State, supra, a form of affidavit which should be followed by any one to secure a search warrant to search the property of one suspected of violating the prohibition laws. With such an affidavit as set forth in Baker v. State, supra, if the facts, or any of the facts, stated therein are false, the aggrieved person can redress the wrong done him by having the affiant prosecuted for perjury; but not so where the affiant states a mere naked belief. One may believe and swear that he believes that a person is a thief, narcotics peddler, or counterfeiter without having any tangible reason for such belief; but unless facts are stated, the existence of sufficient reason for his belief would not be susceptible of proof. If a complaining witness is unable to state facts to support his belief, he should refrain from making the affidavit. If the rule were otherwise, it would permit the homes and privacy of numberless people to be invaded without affording a remedy, because the maker of an affidavit, which states only a belief that amounts to no more than a suspicion, cannot be prosecuted for perjury. In the very nature of things, it is impossible to disprove what a man says he believes.

In Davis v. State, 65 Okla. Cr. 306, 86 P. 2d 65, this court, in the second paragraph of the syllabus, said:

“The finding of probable cause as well as the issuing of the search warrant is a judicial function, to be exercised by the magistrate alone upon the sufficiency of the facts stated in the affidavit, which should have the force and effect of evidence as distinguished from the mere conclusions of the affiant.”

In Mullus v. State, 32 Okla. Cr. 134, 240 P. 135, this court, in the first paragraph of the syllabus, stated:

“A search warrant under the prohibitory liquor law may be lawfully issued only when based on affidavit stating facts and showing probable cause. Affidavits on information and belief or those alleging merely legal conclusions are insufficient.”

In Garrett v. State, 40 Okla. Cr. 195, 267 P. 683, this court, in the first paragraph of the syllabus, stated:

“An affidavit for a search warrant, made upon information and belief, is insufficient, and evidence obtained on a search based on such affidavit should, on proper objection, be excluded.” Davis v. State, 65 Okla. Cr. 306, 88 P. 2d 65, and authorities cited therein.

This court has so many times held that an affidavit for a search warrant made on information and belief was insufficient to base the issuance of a search warrant, that it is not deemed necessary to cite further authorities on that question.

The affidavit in this case clearly shows it was made upon information and belief of the affiant who made the affidavit, or that he made it without considering the statements he was making; shows conclusively that it is not sufficient under the law upon which to predicate the issuance of a search warrant, as the affidavit clearly shows it was made on information and belief. If there was an affidavit and a second search warrant issued, this court from the record in this case cannot find by competent testimony that there was a second affidavit filed and a second search warrant issued to search the property adjoining the property on which the defendant resided.

Many questions are raised in this record, but it is not deemed necessary to consider them for the reasons herein stated, that there was no sufficient affidavit upon which to predicate the issuance of a search warrant.

The motion of the defendant to suppress the evidence on the ground that it was secured by illegal search and seizure was well taken, and the court erred in not sustáining the same.

There being no competent evidence to sustain the judgment, and for the reasons herein stated, the case is reversed, with directions to the trial court to dismiss the same.

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


source: Caselaw Access Project

author: DAVENPORT, J.

license: Public Domain

text:
    BERNARD SIMPSON v. CITY OF TULSA.
    No. A-9540.
    Aug. 25, 1939.
    (93 P. 2d 539.)

      W. E. Green, J. C. Farmer, and R. J. Woolsey, all of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and H. 0. Bland, City Atty., and M. S. Williams, Asst. City Atty., both of Tulsa, for defendant in error.
   DAVENPORT, J.

Bernard Simpson, the plaintiff in error, referred to in this opinion as the defendant, was by complaint in the municipal court of the city of Tulsa, Okla., charged with unlawfully and recklessly driving an automobile on the streets of Tulsa; was tried without a jury by the judge of the municipal court, convicted, and fined $85. Motion for a new trial was filed, considered, and overruled, and defendant appeals.

The defendant was charged with violating Ordinance No. 4124, article 5, section 65, passed December 6, 1935, which ordinance reads as follows:

“Any person who drives any vehicle in a manner which is calculated to endanger the rights, lives or property of others, or which is without due caution or circumspection or which is at a careless, heedless or dangerous rate of speed is guilty of reckless driving.”
“Every person convicted of reckless driving shall be punished upon a conviction by imprisonment for a period of not more than 80 days, or by a fine of not less than $1 nor more than $100, or both such fine and imprisonment.”

The facts in this case show that Hubert Gaddis, accompanied by a young man and two young ladies, was driving on First street, going east at the intersection of First and Elgin streets; that the defendant Bernard Simpson was driving on Elgin, going north at the intersection of Elgin and First streets.

Mr. Gaddis testified that he was driving about 20 or 25 miles per hour, and that when he started to cross Elgin street he shifted his gear into second, and looked to his right down Elgin, and he saw the lights of a car. He thought it was a half block away, but did not know what the distance was.

The testimony further shows that just before Mr. Gaddis’ car got across Elgin street, the defendant’s car, coming north on Elgin, struck the Gaddis car, turned it over, and skidded it a short distance. The proof shows that both Mr. Gaddis and the defendant were driving on their proper sides of the street.

There is no testimony as to the actual damages done to either of the cars that came together; and neither of the parties received any serious injury.

There is absolutely no testimony showing the rate of speed the defendant was driving, or that he was driving in any way whatever indicating a reckless disregard for the rights of others.

All the parties were sober so far as the testimony is concerned.

As the record shows, it was an unfortunate collision, in which no blame could be imposed upon either one of the drivers.

The defendant assigned in his petition for rehearing several errors alleged to have been committed by the trial court, the first assignment being:

“That said court erred in overruling the motion of the plaintiff in error for a new trial.”
“2. That said court erred in entering judgment of guilty and fining this defendant for the reason the evidence was insufficient to convict the defendant of any crime.”

These two errors are all the errors it is deemed necessary to consider, as the only question in the case is: Is there sufficient evidence in the record to overcome the presumption of innocence guaranteed to the defendant throughout the entire trial until overcome by competent testimony?

The defendant is charged with driving an automobile in a dangerous and reckless manner. There is no testimony sufficient to sustain that part of the allegation. He was also charged with operating an automobile in a manner that was calculated to endanger the rights, lives, and property of others, and in a manner which was without due consideration and circumspection, and at a careless, heedless, and dangerous rate of speed. Not a single witness gives any testimony to sustain these allegations in the information.

The officer, who arrived on the scene shortly after the accident, showed by the marks on the street that the defendant had set his brakes a short distance before his car struck the car of the prosecuting witness, Hubert Gaddis.

It is ■ unfortunate that these accidents occur at street crossings; and oftentimes some one of the parties is to blame; but this seems to be a case where neither the driver of the car that was struck, nor the driver of the car that struck the Gaddis car, did anything out of the ordinary, or was driving in a reckless, careless, or dangerous manner.

The prosecuting witness, as stated herein, saw the lights of the defendant’s car coming up Elgin, and, without giving it much consideration, thought it was probably a half block away. At night, unless you give careful attention, you cannot accurately measure distance. The prosecuting witness was in second gear, driving about 20 or 25 miles per hour; and the testimony wholly fails to show at what speed the defendant was driving.

In Morgan v. State, 35 Okla. Cr. 100, 249 P. 354, this court stated:

“To sustain a conviction of crime, each and every material element must be supported by the evidence.”

The finding of the facts by the court, upon the waiver of the jury, has the same effect as if the case had been tried by a jury, and will not be disturbed if there is sufficient testimony to sustain it.

In White et al. v. State, 13 Okla. Cr. 76, 162 P. 232, in the first syllabus, the court stated:

“While it is well settled that this court will not disturb the verdict on account of the insufficiency of evidence when there is evidence to support it, the converse rule is equally well settled that it is not only the province, but the duty, of the court to set aside such a verdict when it is contrary to the evidence, or where there is no evidence to support it. The performance of this duty on the part of the court is the exercise of legal discretion and judgment as to the sufficiency of the evidence to overcome the legal presumption of innocence, to which every one is entitled who is put upon trial for an offense.”

In Cude v. State, 42 Okla. Cr. 357, 276 P. 240, in the first paragraph of the syllabus, this court stated:

“To sustain a conviction, it should appear not only that the offense was committed, but the evidence inculpating the defendant should do so to a degree of certainty, transcending mere probability or strong suspicion.”

In the second paragraph of the syllabus, the court stated:

“Where the evidence in a case to sustain a verdict of guilty is of such a weak and uncertain character that the court cannot say that the jury was not influenced by prejudice, passion, or irrelevant and incompetent testimony, a great deal of such testimony appearing in the record, this court will order a new trial.”

Without prolonging this opinion further, it is the opinion of this court that the city of Tulsa wholly failed to introduce any competent proof sustaining the allegations of its information; and for the failure of the proof to sustain the allegations, the judgment of the court is reversed, with directions to dismiss the case.

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


text:
    MUTT SAFERITE v. STATE.
    No. A-9561.
    Aug. 31, 1939.
    (93 P. 2d 762.)

      Leander Hall, of Hominy, and C. K. Templeton, of Pawhuska, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

Mutt Saferite was by information jointly charged with one Homer Hayes for larceny of an automobile in the district court of Osage county, Okla., was tried separately, convicted, and sentenced to serve a term of six years in the state reformatory at Granite, and to pay cost of the prosecution. The defendant filed his motion for a new trial, which was overruled, and exceptions saved; and the defendant appeals.

The testimony in this case is very brief.

A. D. Stout drove his car into Barnsdall, Osage county, Okla.; parked the car; left the key in it; went to the hall of the Odd Fellows Lodge to attend a meeting. When he came out, his car was gone.

A. D. Stout stated that he did not authorize any one to drive his car away from where he parked it; that he left the key in his car; that when he next heard of his car was where it had been wrecked on the highway between Barnsdall and Bartlesville, Okla. The wreck occurred about three miles south and west of Bartlesville.

The testimony of the officer and the funeral director, who passed along where the wreck occurred, is that the car was headed towards Barnsdall at the time it was wrecked on a curve in the highway, and went into the ditch.

The defendant in this case was seriously hurt; was taken to the hospital; and did not get out for several days. The defendant testified in his own behalf, and admitted that he and Homer Hayes saw the prosecuting witness, A. D. Stout, go to the lodge room, and that he wanted to go to Bartlesville to try to see his wife, who was working up there at a restaurant. He and Homer Hayes drove the Stout car from Barnsdall to Bartlesville; couldn’t find his wife; and drove out a short distance to a dance hall, and inquired of parties there if his wife had been out there. While out at the dance hall, they met Clesson Hogue, and had a few words with him.

Hogue testified to the fact; and after they had a few words with him, the defendant and Homer Hayes went off; and he did not see any more of them. He had known them prior to this time.

Homer Hayes and the defendant both testified that when they failed to find the defendant’s wife either at Bartlesville or at the dance hall, they started back to Barnsdall to return the car to where they had found it; that Homer Hayes was driving the car; and at a curve in the road, Hayes lost control of the car, and went into the ditch.

There is no dispute in the testimony that Hayes and the defendant drove the Stout car from Barnsdall to Bartlesville, and out to the dance hall; and then started back on the highway towards Barnsdall; and when about three miles out from the city of Bartlesville, on a curve, with Homer Hayes driving, he lost control of the car and went into the ditch, injuring the defendant and keeping him in the hospital for sometime.

The defendant admits all of the facts proven by the state; and he and Homer Hayes both insist they had no thought of taking the car of the prosecuting witness and depriving him of the use or benefit of it, but they took it only for the purpose of driving to Bartlesville and back, and while on the road returning, the accident occurred; the car was so badly damaged that they were unable to return it to the place where it was parked.

The defendant in his assignment of errors has assigned seven errors committed by the trial court, which he deemed sufficient to reverse the case.

The first assignment of error is: “Said court erred in overruling the motion of plaintiff in error for a new trial.”

The motion for a new trial includes all of the assignments that it is necessary for this court to consider; and they will be considered together.

The defendant insists that the verdict in this case is contrary to the evidence, and contrary to the law, and that the court misdirected the jury on matters of law in its instructions Nos. 5, 6, 9, and 13.

It is argued by the defendant with considerable force and merit that .the defendant did not take the automobile of the prosecuting witness for the purpose of converting it to his own use, and depriving the owner permanently of its use and value.

He urges that they had only temporarily taken the automobile to drive to Bartlesville and back, and were aiming to return it to the place where it was parked in Barnsdall when they drove it away, and were prevented from doing so only by the fact that they had a wreck before they reached Barnsdall, and could not return the car after it was wrecked.

It is apparent that if the defendant and Homer Hayes had taken the automobile belonging to the prosecuting witness at Barnsdall, and drove it away for the purpose of stealing and depriving the owner thereof, they would not have been driving back to the town of Barnsdall from which place they had taken the automobile. The testimony of the defendant and Homer Hayes shows that they were back on their way to Barnsdall to deliver the car to the point where it was parked at Barnsdall when the car went into the ditch; and the testimony of other witnesses who were at the scene of the wreck is that the marks showed that the car was headed towards Barnsdall when it went into the ditch.

This is a prosecution under section 1891, O. S. 1931, 21 Okla. St. Ann. § 1720, which section is as follows:

“Any person in this state who shall steal an automobile or other automotive driven vehicle shall be guilty of a felony, and upon conviction shall be punished by confinement in the state penitentiary for a term of not less than five (5) years, nor more than twenty (20) years.”

In order for the state to sustain the charge against the defendant, it is necessary for the state to specifically prove that the car was taken with felonious intent on the part of the taker to deprive the owner thereof permanently, and to convert the same to the taker’s own use. Jackson v. State, 22 Okla. Cr. 338, 211 P. 1056.

The definition of larceny, under which this defendant is charged, makes the intent to deprive another of the property taken a particular and essential element, constituting the crime, without which it does not exist.

Upon a charge of larceny of an automobile, the intent must be felonious, and must be to deprive the owner not temporarily, but permanently, of the property.

In Mitchell et al. v. Territory of Oklahoma, 7 Okla. 527, 54 P. 782, the court in the fourth paragraph of the syllabus said in part: Any taking of personal property with the intent to temporarily deprive the owner thereof, and then return the same, does not constitute larceny, but is a trespass. In order to constitute a felonious intent, the taking must be to permanently deprive the owner of the property.

The state in its brief has cited a number of authorities contending that the evidence is sufficient to show the defendant was guilty of the larceny of an automobile if he moved it from the place where it was located to another place; and insists that the testimony in this case is sufficient to sustain the conviction. With this contention we cannot agree. We have examined carefully the authorities cited by the state; and in each of the cases cited, they show that the car taken was never returned, nor was there any contention of the taker that it would be returned; but the cars were found in another and different place without any suggestion that they were only taken for a temporary purpose, and then to be returned.

In White et al. v. State, 13 Okla. Cr. 76, 162 P. 232, in the first paragraph of the syllabus, this court stated:

“While it is well settled that this court will not disturb the verdict on account of the insufficiency of. evidence when there is evidence to support it, the converse rule is equally well settled that it is not only the province, but the duty, of the court to set aside such a verdict when it is contrary to the evidence, or where there is no evidence to support it. The performance of this duty on the part of the court is the exercise of legal discretion and judgment as to the sufficiency of the evidence to overcome the legal presumption of innocence, to which every one is entitled who is put upon trial for an offense.”

In Cude v. State, 42 Okla. Cr. 357, 276 P. 240, in the first paragraph of the syllabus, this court stated:

“To sustain a conviction, it should appear not only that the offense was committed, but the evidence inculpating the defendant should do so to a degree of certainty, transcending mere probability or strong suspicion.”

The defendant in this case committed a wrong by driving the prosecuting witness’ car away from where it was parked, and was guilty of trespass.

Following the ruling of this court in Hughes v. State, 61 Okla. Cr. 40, 65 P. 2d 544, and the cases therein cited, we hold the evidence is insufficient to sustain the conviction of larceny in the information.

The judgment of the trial court is reversed, with directions to dismiss.

It appears from the record that the defendant was unable to give bond pending the determination of his appeal, and was taken to the penitentiary. It is therefore ordered that the clerk of this court forthwith forward to Jess F. Dunn, warden of the state penitentiary at Mc-Alester, a duly certified copy of this order, and upon receipt of same said warden is hereby directed to discharge said defendant from custody.

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


author: BAREFOOT, J.

text:
    Ex parte W. B. BARNES.
    No. A-9551.
    Sept. 1, 1939.
    (93 P. 2d 765.)
    Mac Q. Williamson, Atty. Gen., and Ben Carter, Co. Atty., of Durant, for the State.
    W. L. Steger, of Durant, for petitioner.
   BAREFOOT, J.

A petition for writ of habeas corpus has been filed by petitioner alleging that he is being unlawfully restrained of his liberty by John Williams, sheriff of Bryan county. It is alleged that on October 13, 1937, petitioner was convicted in the district court of Bryan county, of the crime of manslaughter in the second degree, and his punishment was assessed at a fine of $1,000 and one year in the county jail. That he has served the one year jail sentence in the manner provided by law, and is being held by the sheriff for the reason that he has not paid the $1,000 fine. That he is a poor person and is unable to pay the same. That the verdict of the jury made no requirement that the fine of $1,000 be served in the county jail if the petitioner was unable to pay said fine, and that the order and decree of the court, as shown by the minute book, did not specify that defendant must serve the $1,000 fine by imprisonment in the event he was unable to pay said fine, and that the sheriff of Bryan county received no commitment showing that he was to hold petitioner in the event said fine was not paid.

The respondent admits the facts set forth in the petition, but further shows that, thereafter, and on the 24th day of August, 1938, there was filed in the district court of Bryan county an application for an order nunc pro tunc to correct the judgment and sentence entered on the 25th day of October, 1937, so that the same would speak the truth with reference to the judgment and sentence against petitioner. Notice of the application was duly served upon petitioner and his attorney of record. This application was heard by the district judge who presided at the trial of petitioner, and after said hearing, at which the county attorney of Bryan county and attorney for petitioner were present, and entered into an agreed statement of facts. The only fact to which there was no agreement was “that the state contended that the court had duly and legally sentenced the said W. B. Barnes to serve a term of one year in the county jail and to pay a fine of $1,000, and in default of payment of said fine, that the said petitioner be required to serve out said fine and costs in the county jail of Bryan county, at the rate of $1 per day.”

The trial court, who had originally heard the case and entered the judgment then granted, made the order permitting the nunc pro tunc order to be entered, stating that he remembered having sentenced petitioner, and that he knew that the latter part of the judgment and sentence had been pronounced by him, and that he always, in sentencing persons, required them to serve out the fine and costs in jail in default of payment. This nunc pro tunc order corrected the judgment and sentence and provided that if the fine was not- paid that petitioner should be held in the manner provided by law.

It is earnestly contended by petitioner that the court did not have the right to enter the nunc pro tunc order, as above outlined, for the reasons: (a) That the order was not based on any evidence, (b) That petitioner was not present at the time the order was made, (c) That petitioner having served the jail sentence prior to the entering of the order that the court could not alter or set it aside, (d) That to permit the defendant to be so held by the sheriff constitutes double jeopardy.

The first contention is untenable for the reason that, according to the record and pleadings, there was an agreed statement of facts which is the same as the offering of evidence in a hearing of this character. In addition to this, the judge who tried the case heard the application, and had the right to use the knowledge which he had from a trial of the original case. Co-WokOchee v. Chapman, 76 Okla. 1, 183 P. 610. The court also had before it for consideration the record and the minutes of the court which were entered at the time of the original trial. Cornelson v. State, 37 Okla. Cr. 338, 257 P. 1109.

The fact that petitioner was not present is also untenable. Notice was served by the county attorney personally upon petitioner and his attorney of record, and his attorney was present and took part in the proceedings upon the application for the order. 16 C. J., sec, 3106, p. 1317; People v. Lenon, 79 Cal. 625, 631, 21 P. 967.

The contention that petitioner had already served the jail sentence, and that the court could not thereafter change the sentence, cannot be sustained for the reason that there was only one judgment against the defendant, and the same had not been served until the fine was paid. The authorities cited by petitioner have no application to the facts in this case. A careful reading of the case of Ex parte Lang, 18 Wall. 163, 21 L. Ed. 872, will bear this out.

The contention of petitioner that the action of the court was in effect placing him twice in jeopardy cannot be sustained. The entering of the nunc pro tunc order was not a changing of the judgment. It was only making the record speak the truth as it should have done originally. The courts of Oklahoma have been very liberal in permitting the court dockets to be corrected by an order nunc pro tunc, and the strict rule of construction has not been followed in this state. Courtney v. Barnett, 65 Okla. 189, 166 P. 207; Ex parte Howland, 3 Okla. Cr. 142, 104 P. 927, Ann. Cas. 1912A, 840; Ex parte Riggert, 33 Okla. 303, 125 P. 485; Petition of Breeding et al., 75 Okla. 169, 182 P. 899; Dunn v. State, 18 Okla. Cr. 493, 196 P. 739. The fact that a commitment was not issued would be no cause for discharge upon habeas corpus. People v. Wignall, 56 Cal. App. 423, 205 P. 881; Howard v. United States, 6 Cir., 75 F. 986, 21 C. C. A. 586, 34 L. R. A. 509.

The authorities cited by petitioner, and especially the case of Ex parte Myers, 12 Okla. Cr. 575, 160 P. 939, construed the old statute, which was section 6917, Snyder’s Annotated Statutes 1909; Section 5958, Rev. Laws 1910, which provided:

“A judgment that the defendant pay a fine may also direct that he be imprisoned until the fine is satisfied, specifying the extent of the imprisonment.”

The cases cited by petitioner are cases which construe the statute above quoted. The statute now in force is Oklahoma Statutes 1931, section 3166; Oklahoma Statutes Annotated, title 28, section 101, which provides:

“The fees herein provided for the clerk of the district court, the clerk of the superior court, the clerk of the county court, the sheriff, the county attorney, the constable, and the justice of the peace, as provided in this act, and all costs in the prosecution of all criminal actions shall in case of conviction of the defendant be adjudged a part of the penalty of the offense of which the defendant may be convicted, whether the punishment for such offense be either imprisonment, or fine, or both, and fixed either by the verdict of the jury, or judgment of the court, trying the case, and the payment of such fees and costs in addition to the payment of the fine assessed, shall be enforced by imprisonment until the same shall be satisfied, at a rate of one dollar per day of such fees and costs, or fine, or both, whether the defendant shall perform labor on the public road or highway, or remain in prison.”

This statute has been construed in the case of Ex parte Clemmons, 27 Okla. Cr. 50, 225 P. 184, and is a complete answer to the contention of petitioner that he should, be discharged in this case. The court says:

“The statute first enacted providing for imprisonment for nonpayment of a fine and costs (section 5958, R. L. 1910) provides as follows:
“ ‘A judgment that the defendant be imprisoned and pay a fine and costs may also direct that at the end of the prison sentence he be imprisoned until the fine and costs are satisfied.’ * * *
“In the case of Ex parte Roller, 3 Okla. Cr. 384, 108 P. 548, in an opinion written by Judge Owen, the court said:
“ ‘The Legislature could provide for imprisonment for the nonpayment of fines and penalties imposed for the violation of law. * * * The judgment of the court * * * does not provide that the defendant be imprisoned until the fine and costs are paid.’
“It was adjudged that the petitioner for that reason should be discharged.
“In Ex parte Bowes, 8 Okla. Cr. 201, 127 P. 20, in an opinion written by Judge Doyle, the court again said:
“ ‘The Legislature of this state would have authority to provide as a part of the penalty for the violation of law the payment of costs and the enforcement of the payment by imprisonment. Under the provisions of our penal code and procedure criminal, the costs are not made a part of the penalty.’
“See 25 C. J. ‘Fines and Penalties,’ §§ 19, 21, 22; 8 R. C. L. 269.
“The Legislature in 1913 (section 6332, Comp. Stats. 1921 [which is the same as Section 3166, Oklahoma Statutes, 1931]), probably following the suggestions made by the court in the Roller and Bowes Cases, provided that the fine and costs ‘shall’ be enforced by imprisonment. This statute in part reads as follows:
“ ‘All costs in the prosecution of all criminal actions shall in case of conviction of the defendant be adjudged a part of the penalty * * * and costs in addition to the * * * fine assessed, shall be enforced by imprisonment.’
“This section specifically repeals prior statutes making a fine and costs a civil liability * * *.
“A fair construction of this statute impels us to hold that since its enactment its provisions relating to fines and costs automatically become a part of every criminal judgment imposing a fine or imprisonment, or both, and that a failure to make a recital in the judgment that the defendant be held until the fine and costs are satisfied in the manner provided by law will not on habeas corpus relieve the person so convicted from satisfying the fine and costs in the manner designated by this statute. [Citing numerous cases]. * * * They may be satisfied by the payment in money of the amount named, and if the person convicted fails to make such payment the statute directs that the fine and costs ‘shall be enforced by imprisonment until the same shall be satisfied at the rate of $1 per day.’ This brings the duration of the convicted person’s imprisonment under his own control. By payment of the fine and costs he can at any time secure his release.
“It is the better practice to recite in the judgment that the defendant stand committed until the fine and costs named are paid, at the rate of $1 per day, but under our statutes a failure to incorporate such a recital in the judgment will not operate to give the petitioner relief on habeas corpus. So far as fine and costs are concerned both the accused and sheriff are bound by the provisions of the statute which, by its terms, give no discretion to the trial court to render a judgment other than that designated by the statute.
“We conclude therefore that to all intents and purposes the fine and costs provisions of the statute automatically become a part of the judgment without any specific recital to that effect. Such recitals in the judgment are commended, however, in order that the convicted person and the sheriff may by an examination of the judgment and commitment avoid any misunderstanding as to the duration of the confinement.”

This case has been followed by this court in the case of Ex parte Ethel Lyles, 52 Okla. Cr. 167, 3 P. 2d 912, in an opinion by Judge Davenport, where it is said:

“Following the ruling in Ex parte Clemmons, supra, we hold that to all intent and purposes the fine and cost provision of section 6332, supra [section 3166, Okla. Stats. 1931], automatically becomes a part of the judgment without any specific recital to that effect.”

See, also, McCasland v. Board of Commissioners of Adair County, 126 Okla. 103, 258 P. 750; Ex parte Walker, 31 Okla. Cr. 36, 236 P. 919; Ex parte Bell, 34 Okla. Cr. 354, 246 P. 893; Ex parte Smith, 33 Okla. Cr. 175, 242 P. 284; Ex parte Gilmore, 56 Okla. Cr. 201, 36 P. 2d 304.

For the reasons above stated the application of petitioner for a writ of habeas corpus is denied, and he is remanded to the custody of the sheriff of Bryan county.

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


text:
    Application of GROVER MARKS.
    No. A-9716.
    Sept. 6, 1939.
    (93 P. 2d 1103.)
    Hughes & Dickson, of Guymon, Robert Burns, of Oklahoma City, and J. F. Murray, of Ponca City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   BAREFOOT, J.

Petitioner has filed in this court an application for an order requiring the approval of an appeal bond by the district court of Harper county. The petition recites that petitioner was convicted in Harper county of the crime of robbery on June 30, 1939, and sentenced to serve ten years in the penitentiary. That his appeal bond was set at $5,000, and he was granted 24 hours in which to make and file said bond. That being unable to make the bond in the time allowed, he was delivered to the warden of the penitentiary at Granite, where he is now confined. That on the 26th day of July, 1939, he presented to the court clerk of Harper county his appeal bond in the sum of $5,000, conditioned as required by law. A copy of the bond is attached to his petition. The bond was not approved by the court clerk of Harper county, and application is here made for an order directing that same be approved. Notice was served upon the county attorney of Harper county and the Attorney General, and a hearing was had upon the application. The county attorney of Harper county was not present, and no resistance to the order was made by the Assistant Attorney General.

The record reveals that the case made for appeal was filed in this court on August 15, 1939, and prior to the application for approval of the appeal bond.

The record reveals that the surety signing the bond filed a schedule of property showing a net value of $62,500, which consists of a two-story brick building in Ponca City, Kay county; residential property other than homestead of surety; a quarter section of land each in Creek and Latimer counties; a half section of land in Beckham county, and other property.

Also attached to the application is a letter from the court clerk of Kay county, which is as follows:

“To Whom it May Concern:
“The bond of Grover Marks, defendant who was convicted in Harper County, Oklahoma, has been handed to me. The sureties who reside here are good substantial people, own the property listed, and in my opinion' the bond is perfectly good, and if it was presented to me for approval, I would approve it. Mr. Galanter has resided in Kay County for a number of years, I know him personally and he is regarded as a very substantial citizen and with quite a lot of property, among these being a two story brick business building, now leased to the Hill Funeral Home. I think the bond is good and should be approved.
“(Signed) H. L. Smiley,
“Court Clerk.”

At the hearing it was stated by counsel that the refusal of the clerk to approve the bond was for the reason that the surety who scheduled was not a resident of Harper county. The statute, Oklahoma Statutes 1931, section 91; Oklahoma Statutes Annotated, Title 12, section 62, provides:

“The surety in every undertaking provided for by this code or other statutes unless a surety company, must be a resident of this state and worth double the sum to be secured, over and above all exemptions, debts and liabilities. Where there are two or more sureties in the same undertaking they must in the aggregate- have the qualifications prescribed in this section.”

It will thus be seen that the statute only requires that the surety “must be a resident of this state and worth double the sum to be secured, over and above all exemptions, debts and liabilities.”

At the hearing this court required the signature of a surety, who was a resident of Harper county, so that the district court of that county would be given jurisdiction if suit was filed on the bond. Some authorities hold that this is unnecessary, but it has generally been the practice in Oklahoma. Smith v. Collins, 42 Kan. 259, 21 P. 1058. From the hearing and the showing made, we are of the opinion the appeal bond in question should be approved, and it is so ordered.

It is further ordered that a copy of this opinion should be sent to the warden of the penitentiary at Granite, and that the original bond, which is attached to this application, should be approved by the clerk of this court. And when the same is so approved it should be returned to the court clerk of Harper county, who should record the same and retain it in the manner provided by law. That the clerk of this court, before returning said bond, should make a certified copy of the same to be retained in the files of his office.

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


author: DOYLE, P. J.

text:
    A. J. SPARKMAN v. STATE.
    No. A-9550.
    Sept. 8, 1939.
    (93 P. 2d 1095.)

      A. C. Sinclair, of Jay, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Appellant, A. J. Sparkman, Turner Linam, and Cliff Beck were jointly informed against for the crime of robbery with firearms, alleged to have been committed in Delaware county on the 24th day of October, 1937.

The information charged that said defendants did willfully, unlawfully, forcibly, wrongfully and feloniously, while acting together and in concert, make an assault upon and against the persons of Antye Brocker and Anna Brock-er, with a firearm, to wit: A shotgun, held in the hands of said defendants, thereby putting them in fear of immediate injury to their persons, and while said Antye Brocker and Anna Brocker were under the influence of said fear the said defendants did then and there willfully, unlawfully, forcibly and feloniously take from the possession of the said Antye Brocker and Anna Brocker about $53, lawful money of the United States, without their consent and against their will, with the felonious intent of said defendants to convert the same to their own use and benefit and permanently deprive the owners thereof.

A severance was granted and the defendant Sparkman was found guilty of robbery with firearms as charged in the information, but the jury was unable to agree upon the punishment.

His motion for new trial was on February 9, 1938, overruled; thereupon the court rendered judgment and sentenced said defendant to confinement in the state penitentiary at McAlester for the term of 18 years. From this judgment he appealed by filing in this court on August 8, 1938, a petition in error with case-made.

The assignments of error are:

“1. The information is insufficient, indefinite and duplicitous.
“2. The county attorney made such improper prejudicial statement and argument as to constitute reversible error.
“3. Improper evidence of defendant’s character and former conviction was permitted to go to the jury.
“4. The evidence is insufficient to sustain a conviction.”

The alleged errors will be taken up in the order stated.

The record shows that when the case was called for trial, on February 9th, the defendant was by the court permitted to withdraw his plea of not guilty for the purpose of presenting a demurrer to the information. Thereupon the defendant demurred to the information upon the following grounds:

“1. That said information does not charge a public offense against the laws of the state of Oklahoma.
“2. That said information is so vague, indefinite and uncertain that the defendant is not apprised of the offense charged, or with what offense he is sought to be charged.
“3. That said information attempts to charge two or more offenses against the laws of Oklahoma, and is duplicitous.”

The Code of Criminal Procedure provides:

“The indictment or information must be direct and certain as it regards:
“1. The party charged.
“2. The offense charged.
“3. The particular circumstances of the offense charged, when they are necessary to constitute a complete offense.” Sec. 2884, 22 Okla. St. Ann. § 402.
“When an offense involves the commission of, or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material.” Sec. 2888, 22 Okla. St. Ann. § 406.
“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.” Sec. 2889, 22 Okla. St. Ann. § 407.
“The indictment or information is sufficient if it can be understood therefrom: * * *
“6. That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.” Sec. 2891, 22 Okla. St. Ann. § 409.
“No indictment or information is insufficient, nor can the trial, judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” Sec. 2892, 22 Okla. St. Ann. § 410.

We think the information in this case is sufficient under the requirements of the foregoing provisions of the Code.

The true test of the sufficiency of an information is not whether it might possibly have been made more certain, but whether it contains every element of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet. Warren v. State, 24 Okla. Cr. 6, 215 P. 635.

The language of the statute defining robbery is as follows:

“Robbery is a wrongful taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” Penal Code, § 2542, 21 Okla. St. Ann. § 791.

The prosecution in this case was based on chapter 44, Session Laws 1925, which is as follows:

“Any person or persons who, with the use of any firearms or .any other dangerous weapons, attempts to rob or robs any person or persons, or who robs or attempts to rob any place of business, residence or banking institution or any other place inhabited or attended by any person or persons at any time, either day or night, shall be guilty of a felony, and, upon conviction therefor, shall suffer punishment by death, or imprisonment, at hard labor, in the State Penitentiary, for a period of time of not less than five years, at the discretion of the Court, or the jury trying the same.” Penal Code, § 2543, 21 Okla. St. Ann. § 801.

The gravamen of the offense consists in the taking by violence or by putting in fear, with the use of any firearm or any other dangerous weapon, the money or personal property of another in “any place of business, residence or banking institution or any other place inhabited or attended by any person or persons at any time, either day or night.” Whether that person was the owner or the legal custodian of the money or property so taken is immaterial so far as the charging of the offense is concerned.

This court in Newton v. State, 56 Okla. Cr. 391, 40 P. 2d 688, held that:

“Section 2543, Okla. Stat. 1931 (chapter 44, Sess. Laws 1925, amending chapter 85, § 1, Sess. Laws 1923), provides that the crime of robbery may be committed against a business house or banking institution, under the conditions therein stated, in the same way, as it may be committed against a person.”

In the opinion it is said: “It is argued this is insufficient in not alleging the money was taken from a person who attended the bank at the time of the taking and does not allege the money was taken from the person and immediate presence of Heiland. Reliance is mainly on the case of Ward v. State, supra [34 Okla. Cr. 296, 246 P. 664]. The robbery in that case was of a person. It was alleged one person was put in fear, the property taken from another, and belonged to a third person. It was so worded that even the court could not be certain what was intended, and it was held the information was too indefinite and uncertain to apprise the accused of the offense sought to be charged.” And see Randall v. State, 33 Okla. Cr. 262, 243 P. 983.

In Robards v. State, 37 Okla. Cr. 371, 259 P. 166, 168, it is said: “The ownership of the money taken 'was of no particular importance.” Holding: “Proof that property is taken from the possession or immediate presence of another having the custody or control of the same constitutes robbery, although the actual ownership of the property may have been in some third person.”

In Dickson v. State, 26 Okla. Cr. 403, 224 P. 723, 726, it is said:

“We think the information sufficiently definite and certain on the subject of ownership of the property taken to inform the defendant that he was not accused of taking his own property, but that he was accused of taking property which was in the possession of A. C. Clothier, the cashier of the Citizens’ State Bank of Salt Springs, Okla., with intent to convert such property to his own use. In law 'convert’ conveys the idea of a dishonest appropriation. The information is sufficient in this respect.”

In Winfield v. State, 18 Okla. Cr. 257, 191 P. 609, the defendant was charged with robbery by the use of fire-arms and his punishment assessed at imprisonment for five years in the penitentiary. In that case we held that:

“Where the evidence on the part of the state clearly establishes all the essential elements of robbery in the first degree against the defendant on trial, he may be prosecuted and convicted of that included offense.”

In Dickson v. State, supra, this court held:

“In order to be subject to the objection of duplicity, an indictment or information must charge two distinct and complete crimes, for each of which a separate punishment may be inflicted, and each of which would withstand a demurrer for want of sufficient facts to constitute a crime.”

It is well settled that the exact words of a statute defining a crime need not be used in an indictment or information charging it, but any words clearly and intelligently setting forth the offense are sufficient.

An information which brings the one charged within the class against which the penalty of the statute is directed is sufficient. In our opinion the information sufficiently charged the crime of robbery with the use of fire-arms, and the demurrer thereto was properly overruled.

The second contention is that the court erred in overruling the defendant’s motion to declare a mistrial, because of improper and prejudicial remarks of the county attorney in his opening statement to the jury, wherein he stated:

“Down East of Colcord was a boy named Cliff Beck —first though, Turner Linam, was out in California, and while out there Turner Linam met up with this man A. J. Sparkman, who had been paroled from the Oklahoma State Penitentiary.
“The Court: The defendant’s objection is sustained.
“Mr. Sinclair: Comes now the defendant, and moves the court to declare a mistrial in this case because of prejudicial remarks of the county attorney, in reciting the previous character of this defendant to the jury, in his opening statement.
“The Court: Gentlemen of the jury, the statement of the county attorney, a part of it was a little too strong; he went too far; a part of it was improper, it probably wouldn’t have been if he had been a little more cautious in the use of his words. Now the reference about this man being a convict, or having been in the pen, he shouldn’t have said that, and he wouldn’t be permitted to prove that, under certain circumstances.”

The court then asked each juror: “Is your mind still free and open to decide this case according to the law and evidence?” Each juror answered: “Yes, sir.”

The court then announced: “The defendant’s motion asking the court to declare a mistrial in the case is denied.” Exceptions.

An opening statement is to advise the jury concerning the questions of fact involved, so as to prepare their minds for the evidence to be heard. The scope of the opening statement should be limited to getting before the jury a detail of the testimony expected to be offered.

In Guest v. State, 56 Okla. Cr. 129, 34 P. 2d 1082, the first syllabus is:

“An opening statement is, and purports to be, no more than an outline of the state’s theory and the evidence expected to be offered in support. The statement of incompetent or immaterial matter affords no ground for reversal unless it appears that the statement was manifestly prejudicial.”

The second syllabus is:

“Evidence which tends to throw some light upon the guilt of defendant, and which has some logical connection with the crime charged, is not inadmissible because it may tend to show him guilty of some other crime.”

From the evidence it appears that when this defendant was arrested as a fugitive on an extradition warrant in California, he made the voluntary statement that he was out on parole from the Oklahoma Penitentiary at McAlester.

This was an admission against interest, and as such was competent and admissible as evidence on the trial of the case.

The record also shows that it was stipulated and agreed that the affidavit of Tom Linam, of Santa Ana, California, should be offered as the evidence of said Tom Linam, wherein affiant states that about the first or second of November, Turner Linam, A. J. Sparkman and Cliff Beck came to his home in California.

This was also an admission against interest to the effect that this defendant at the time arrested was a fugitive from justice and admissible as such.

From what has been said it follows that the court did not err in overruling the motion to declare a mistrial.

It is also contended that the county attorney in his argument to the jury made the following improper statement:

“The defendant made a statement to Frank Bryant that he was out on parole from the Oklahoma State Penitentiary. I guess he knew he was coming back any way.”

There is no merit in this contention.

The final contention of counsel is that the verdict is not sustained by sufficient evidence, in that the evidence was insufficient to establish the identity of the defendant as one who participated in the commission of the robbery.

The identification of the defendant by the witness Anna Brocker as one of the three men who committed the robbery was positive. This, together with the other undisputed facts and circumstances in evidence, was sufficient identification to sustain the verdict.

In People v. Wilson et al., 76 Cal. App. 688, 245 P. 781, 785, it is said:

“In Bowlin v. Commonwealth, 195 Ky. 600, 242 S. W. 604, the identification, held to be sufficient, was made from a recognition of the defendant’s voice. Nor is it necessary that the identification be made in positive terms by any of the witnesses. A conviction may be sustained, though the witnesses decline to swear positively, and testify merely that they believe the accused is the person whom they saw commit the crime. Thus in Commonwealth v. Cunningham, 104 Mass. 545, the witnesses would not swear that the prisoner was the man they saw on the stolen wagon, but that ‘he resembled him.’ There the court said:
“ ‘Upon this question of identity, the evidence offered was all of it competent, and proper for the consideration of the jury. It is impossible to say that it had no tendency to convict the defendant. Its sufficiency was to be estimated and weighed exclusively by them.’
“To the same effect are People v. Rolfe, 61 Cal. [540], 541; People v. Franklin, 46 Cal. App. 1, 188 P. 607; State v. Franke, 159 Mo. 585, 60 S. W. 1053.”

It is apparent from the record in this case, and it follows from what has been said, that the assignments of error relied upon for a reversal of the judgment are without merit.

The testimony in the case overwhelmingly points to the guilt of the defendant, and nothing short of fundamental error would justify a reversal of the judgment.

The judgment of the district court of Delaware county herein is therefore affirmed.

BAREFOOT and DAVENPORT, JJ., concur.


text:
    JOE YEARGAIN, Jr., v. STATE.
    No. A-9390.
    Sept. 8, 1939.
    (93 P. 2d 1104.)

      William F. Thomas, of Miami, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and William E. Poteet, Co. Atty., of Miami, for the State.
   BAREFOOT, J.

Defendant was convicted in the county court of Ottawa county, upon the charge of unlawful possession of intoxicating liquors, and was sentenced to pay a fine of $125, and serve 60 days in the county jail, and has appealed.

This charge grew out of the execution of a search warrant to search the “Riverside Night Club,” near Miami, in Ottawa county. As the result of this search five pints of whisky and six pints of alcohol were secured. An information was filed by the county attorney against the defendants, Joe Yeargain, Jr., and Don Lankard.

Both the affidavit and the search warrant described the premises to be searched, but was in the name of “John Doe,” and not in the name of either of the defendants. The court sustained a demurrer to the evidence as to the defendant Don Lankard, and defendant was convicted.

Counsel for defendant assigns and discusses a number of errors. In order to properly determine the issues, it only becomes necessary to discuss one of the errors assigned.

A motion was made to suppress the search warrant and the evidence obtained thereunder, for the reason that the affidavit upon which the search warrant was issued was based upon information and belief, and did not state facts sufficient to warrant the issuance and execution of the search warrant. This question has been before this court upon many different occasions, and it is true that there not only is a seeming conflict in some of the decisions, but there is a conflict.

In the case of Ray v. State, 43 Okla. Cr. 1, 276 P. 785, a search warrant based upon practically the same allegations as the instant case was upheld in an opinion by Judge Chappell. Judge Davenport wrote a strong dissenting opinion in this case. The only material difference in the Ray Case and the case at bar is that the real name of the defendant was given in the Ray Case and here the name of John Doe was used. This court, as it is now constituted, has had occasion to pass upon this question in the cases of: Davis v. State, 65 Okla. Cr. 306, 86 P. 2d 65; Skelton v. State, 67 Okla. Cr. 215, 93 P. 2d 543, and after a careful study of the prior decisions of this court, have come to the conclusion that the affidavit as used in. the instant case is based wholly upon information and belief, and does not state facts sufficient upon which to base the issuance of a search warrant.

The court at the time of the trial of this case was acting under the decision in the Ray Case, and under an interpretation of that decision he was justified in holding the search warrant was properly issued, but, as above stated, that decision has been practically overruled by the later decisions of this court. And, as we think, was not justified under the former holdings of this court.

The writer of this opinion, since becoming a member of the court, has had occasion to discuss the legality of the issuance of search warrants in the following cases: McHenry v. State, 61 Okla. Cr. 450, 69 P. 2d 90; Gransbury v. State, 64 Okla. Cr. 423, 82 P. 2d 240; Handley v. State, 65 Okla. Cr. 268, 85 P. 2d 436; and Denton v. State, 62 Okla. Cr. 8. 70 P. 2d 135.

Ón reading of the above eases, m all of which the affidavit for a search warrant was sustained, it will be noted that facts were given by the party making the affidavit, showing that he had the knowledge upon which the affidavit was based, and that the affidavit was in positive terms. In the instant case everything points to the fact that the maker of the affidavit did not know the facts, and the testimony given by him on the motion to suppress bears this out. It was clearly made upon information and belief.

The affidavit for the search warrant in this case provided:

“Affidavit for Search Warrant for Intoxicating Liquors
“State of Oklahoma, County of Ottawa, SS.
“Before: John H. Venable, County Judge, Ottawa County, Oklahoma.
“State of Oklahoma, Plaintiff, v. John Doe, whose true name is to the affiant unknown, Defendant. No. 5285.
“Roy Denman, of lawful age, being first duly sworn, on his oath, deposes and says:
“That he has probable cause to believe and does believe that intoxicating liquors are being unlawfully kept, stored and concealed upon the following described premises, to wit:
“ ‘A certain one story frame building known as the Riverside Night Club, together with the outbuildings appurtenant thereto and the curtilage thereof, said buildings being located approximately two hundred and fifty (250) yards west of the west end of the south bridge across the Neosho River at Miami, Ottawa County, Oklahoma, and being located on the west side of U. S. Highway No. 66, detour, at the said point; the said building being the first night club encountered on Highway No. 66 after leaving the aforesaid bridge going west or south.’
“And for reasons upon which to base by said belief, deponent alleges and states as follows, to wit:
“1. That the said premises and buildings thereon is a place of public resort.
“2. That numerous persons frequent the said place for the purpose of purchasing intoxicating liquor.
“3. That persons have recently been seen coming from said premises in an intoxicated and drunken condition.
“4. That divers persons who use intoxicating liquors to excess habitually frequent said place.
“5. That the said place has a reputation in the community in which it is located as being a place where intoxicating liquor is sold.
“6. That the said premises has a reputation in the community in which it is located as being a place where intoxicating liquor in large quantities is unlawfully kept, stored for the purpose of being bartered, sold, given away and otherwise furnished to those who frequent said place.
“7. That this affiant has been told by reliable persons, peaceable and law abiding citizens who are familiar with the said premises and who purport to speak from personal knowledge, that portions of the said premises are used as a place where intoxicating liquors are kept in large quantities for the purpose of being bartered, sold, given away and otherwise dispensed to other persons. And this affiant, based upon the above knowledge and information hereinbefore set out, does believe and has probable cause to believe that the said premises, or a portion thereof, are being used as a store room for the purpose of selling, bartering, giving away and otherwise furnishing such intoxicating liquor in violation of the prohibitory liquor laws of the state of Oklahoma, and that such intoxicating liquors in large quantities are being kept for the purpose of selling, bartering, giving away and otherwise furnishing the same in violation of the prohibitory laws of the state of Oklahoma to people and customers who frequent said place, and affiant further states that he has probable cause to believe and does believe based upon the facts and information herein-before set out, that John Doe, whose true name is to the affiant unknown, who is in possession of the said premises, is guilty of keeping intoxicating liquor at said place for said purposes, and that said place is a place of public resort, and that some portion of the same is used for the unlawful storage and concealment of large quantities of intoxicating liquor.”

It begins by stating that the party who makes it “has cause to believe and does believe, etc.” After the description of the property is given, it is said: “and for reasons upon which to base my said belief, deponent alleges and states as follows, to wit.” Here follows seven paragraphs in the affidavit. A part of these allegations are grounds for the issuance of a Search warrant under the statute where they are based upon facts known to the party making the affidavit at the time the same is made. If the facts are not known to the maker of the affidavit they are then mere conclusions, and can only be stated upon “information and belief.”

The seventh paragraph states: “That this affiant has been told by reliable persons, etc.” After the reading of this paragraph one can but come to the conclusion, that the party making the affidavit had no personal knowledge of the facts alleged in the preceding six paragraphs, but his only information was from others, and is what is known in law as evidence obtained upon “information and belief.” No facts are given in the affidavit to substantiate the statements that “the premises are a place of public resort,” or that the party making the affidavit had actually “seen persons coming from said premises in an intoxicated condition,” or “that persons who habitually frequented said premises were excessive users of intoxicating liquor.” The affidavit does not set out that the maker thereof had any knowledge that these facts existed. Certainly, with very little exertion on the part of the officer, he could have ascertained these facts on his own knowledge, and could have made an affidavit based upon facts which he knew, and which he could have stated in positive terms, as a basis for the issuance of the search warrant. It sometimes seems that some officers resent the fact that they are required to secure a search warrant before being permitted to search the homes and places of business of the citizens of this state. The answer is, that the Constitution of the United States, of this state, and the statutes enacted by the Legislature have seen fit in their wisdom to provide that it shall be done, and this court, following the decisions of the Supreme Court of the United States, have continually held that this should be done. It is useless to quote from those decisions, as they give a full and complete reason why this provision is in the Constitution of the United States and the state of Oklahoma.

The question of affidavits made upon “information and belief” was discussed by this court in the case of Gore v. State, 24 Okla. Cr. 394, 218 P. 545. The decision in that case followed an earlier decision of the court in the cases of Salter v. State, 2 Okla. Cr. 464, 102 P. 719, 25 L.R.A., N.S., 60, 139 Am. St. Rep. 935. This case has been cited and followed by many decisions of this court. Salter v. State, 2 Okla. Cr. 464, 102 P. 719, 25 L.R.A., N.S., 60, 139 Am. St. Rep. 935; Gore v. State, 24 Okla. Cr. 394, 218 P. 545; Hannan v. State, 29 Okla. Cr. 203, 233 P. 249; Ford v. State, 38 Okla. Cr. 375, 262 P. 504; Magin v. State, 25 Okla. Cr. 361, 220 P. 666; Dupree v. State, 36 Okla. Cr. 142, 252 P. 857; Spikes v. State, 65 Okla. Cr. 254, 85 P. 2d 327.

See, also, Giles v. United States, 1 Cir., 284 F. 208; United States v. Kaplan, D. C., 286 F. 963, 964; Boyd v. United States, 116 U. S. 616, 6 S. Ct. 524, 29 L. Ed. 746; Weeks v. United States, 232 U. S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177; Silverthorne Lumber Co. v. United States, 251 U. S. 385, 40 S. Ct. 182, 64 L. Ed. 319; Gouled v. United States, 255 U. S. 298, 41 S. Ct. 261, 65 L. Ed. 647; Amos v. United States, 255 U. S. 313, 41 S. Ct. 266, 65 L. Ed. 654; State of West Virginia v. Wills, 91 W. Va. 659, 114 S. E. 261, 24 A.L.R. 1398. On pages 1408 to 1420 of 24 A.L.R. the question of the admissibility of evidence secured by illegal search and seizure is fully discussed, and all the authorities for and against the introduction of such testimony are cited. Under the decision of the case of Gore v. State, supra, this court has followed the late decisions of the Supreme Court of the United States which hold that this evidence is inadmissible, and the prior cases of this court holding different are specifically overruled. Beaty v. State, 35 Okla. Cr. 217, 249 P. 973; Parker v. State, 35 Okla. Cr. 196, 249 P. 432; Murray v. State, 39 Okla. Cr. 232, 264 P. 215.

The above decisions review the decisions of the Supreme Court of the United States, and other states, upon this question, and we shall not review them here.

We are clearly of the opinion, as expressed in the decisions heretofore cited, that where a search warrant is based upon an affidavit made merely upon “information and belief,” and the party making the same has no actual knowledge of the contents thereof, and no facts are stated in the affidavit to support the issuance of the same, that the search warrant issued thereon is void and that the evidence obtained thereunder cannot be introduced in evidence.

The case of Ray v. State, 43 Okla. Cr. 1, 276 P. 785, insofar as it is in conflict with this decision, is hereby overruled.

For the reasons above stated the judgment of the county court of Ottawa county is reversed. '

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


author: PER CURIAM.

text:
    Ex parte DEAN SIMPSON.
    No. A-9327.
    May 14, 1937.
    (68 P. 2d 118.)
    W. C. Henneberry, of Tulsa, for petitioner.
    Carl F. Wymore, Co. Atty., Cole County, Mo., Sam H. Lattimore, Asst. Atty. Gen., and Fred Cunningham, of Oklahoma City, for the State.
   PER CURIAM.

The petitioner, Dean Simpson, by an original petition filed, claims that he is restrained of his liberty by A. Garland Marrs, sheriff of Tulsa county, Okla., and Buck Walz, sheriff of Cole county, Mo.; that he is restrained for the state of Missouri on an extradition warrant which alleges that your petitioner, Dean Simpson, committed the crime of selling securities without a license, in the state of Missouri.

Petitioner further alleges that his restraint is illegal and unauthorized for the reason that he is not a fugitive from the state of Missouri, and that the complaint upon which the Governor of Oklahoma issued said warrant was not and is not sufficient upon which to issue a warrant. That the said complaint discloses on its face it was not verified on oath and fails to state a crime.

The petitioner appeared by his attorney, W. C. Henneberry; and the sheriffs appeared by the county attorney of Cole county, Mo., and Sam H. Lattimore, Assistant Attorney General, and Fred Cunningham, Pardon and Parole Officer, representing the state of Oklahoma.

It appearing to the court that the petition upon which the extradition warrant was issued was not properly sworn to or verified as required by law, the case was continued until May 14, 1937, at 10 o’clock a.m. On said date, to which the case was continued, the petitioner by written letter advised the court that an adjustment had been made, and confessed that the writ should be denied.

It is therefore the judgment of this court that .the petitioner, Dean Simpson, having confessed that he did not desire to prosecute the case, the petitioner is not entitled to the relief prayed for. The writ is denied.


text:
    J. W. EISIMINGER v. OKLAHOMA CITY.
    No. A-9221.
    June 25, 1937.
    (69 P. 2d 1046.)

      Paul R. Dillard, of Oklahoma City, and James E. Anderson, of Dallas, Tex., for plaintiff in error.
    Harlan Dupree, Municipal Counselor, and Robert L. Berry, Asst. Municipal Counselor, both of Oklahoma City, for the city.
   BAREFOOT, J.

This case involves the question of what is the proper procedure in appealing from municipal courts to the county courts of this state. The defendant was convicted in the municipal court of Oklahoma City, where he was charged with the crime of running a stop line. He was find $5 and $1 costs. He executed a bond which was duly approved, and appealed to the county court of Oklahoma county. The city attorney of Oklahoma City appeared in the county court and filed a motion seeking a dismissal of the appeal for the reason that no written notice or demand was filed by the defendant prior to the taking of said appeal to the county court, as required by section 6455, Okla. Stats. 1931, 11 Okla. St. Ann. § 754. The county court sustained the motion of the city attorney and dismissed the appeal of defendant. From this order of dismissal, he has appealed to this court.

The defendant contends that under the law, the giving of a bond, having the same approved and filed, and a transcript properly transferred to the county court is all that is necessary to perfect his appeal. The city contends that it is necessary for the defendant to file a written demand or notice within ten days after the rendition of the judgment against him, before an appeal to the county court may be perfected. This is the issue in this case. Its answer requires the construction of several Oklahoma statutes. Section 6448, O. S. 1931 (11 Okla. St. Ann. § 723), was enacted in 1890, and has been carried through the various statutes of this state as follows: St. 1893, § 619; St. 1903, § 432; R. L. 1910, § 659; C.O.S. 1921, § 4648, which reads as follows:

“In all cases before the police judge an appeal may be taken by the defendant to the district, superior or county court, but no such appeal shall be allowed unless the defendant, within ten days, shall enter into a recognizance with good and sufficient sureties, to be approved by the police judge, conditioned for the personal appearance of the appellant before the appellate court on the first day of the next term thereof.”

The charter provision for appeal from conviction in municipal court in Oklahoma City is as follows:

_ “All persons who shall be accused or informed against, tried and convicted in the municipal court are hereby granted the right of appeal within ten days to the county court of Oklahoma county, where a trial in said county court shall be accorded them, de novo, and, in order to perfect such appeal, the party intending to appeal from such judgment of the municipal court or judge shall within said ten days file with and cause to be approved by said municipal court or judge an appeal bond in the sum to be fixed by the court, not less than $50 nor more than $200 in any one case, conditioned that such appellant shall appear when such case may be called in the county court and shall perform the judgment there rendered against him, which appeal bond shall be signed by one or more good and sufficient sureties who may be required to qualify to said bond, and when said bond shall be so filed and approved the appeal to said county court shall be perfected.”

In 1915 (chapter 147) the Legislature passed a general act (now St. 1931, § 6452 et seq., 11 Okla. St. Ann. § 751 et seq.) regulating appeals from judgments of municipal courts, prescribing the procedure thereof, and repealing all laws in conflict therewith. By the terms of said act it is provided:

“Section 2. In all cases before a municipal court, except a judgment rendered on confession, an appeal may be taken by the defendant to the county court, and to such court only, where the trial thereof shall be had de novo on questions of both law and fact.
“Section 3. No such appeal shall be allowed, however, unless the defendant shall, within ten days after the rendition of such judgment, enter into a recognizance payable to said municipality, to be approved as to amount, form, and sureties, by the trial judge, in the penal sum of not less than $50 nor more than $500, and in no case less than double the amount of the fine and cost.
“Section 4. Upon the filing and approval of such recognizance as herein provided, such appeal shall be perfected, and all other proceedings before said municipal judge shall cease and be stayed; and it shall be the duty of said municipal judge, within five days thereafter, to deliver to the county court such recognizance and a transcript of the proceedings in said case and all of the papers and documents appertaining thereto; and such court shall file the same; provided, however, the failure upon the part of such judge or clerk to perform any duty herein provided, shall in no manner affect or make invalid such appeal. No notice of appeal shall be required or served. * * *
“Section 15. All acts and parts of acts in conflict with any provisions of this act are hereby repealed.”

In 1917 the Legislature of the state, chapter 127, 11 Okla. St. Ann. §§ 751, 753, 754, 756, passed a law specifically amending sections 1, 3, 4, and 6, and repealing section 11 of chapter 147 of the Session Laws of 1915 above quoted. That part of said act pertaining to the issues in this case was as follows:

“Section 2. That section 3, of chapter 147 of the Session Laws of Oklahoma, 1915, be and the same is hereby amended to read as follows:
“Section 3. Such appeal shall be allowed upon the filing of a written demand by the defendant, at any time within ten days after the rendition of such judgment, provided that such appeal shall not stay the execution of such judgment unless within said ten days the defendant shall enter into recognizance payable to said municipality, to be approved as to amount, form and sureties by the trial judge in the penal sum double the amount of fine and costs, but not less than fifty dollars ($50.00).
“Section 3. That section 4 of chapter 147, of the Session Laws of Oklahoma, 1915, be and the same is hereby amended to read as follows:
“Section 4. Upon the filing of such written demand, as herein provided, such appeal shall be perfected, and upon the filing and approval of such recognizance, as herein provided, all other proceedings before such municipal judge shall cease and be stayed and it shall be the duty of such municipal judge within five days thereafter to deliver to the county court such written demand and recognizance, if given, and a transcript of the proceedings in such case and all of the papers and documents appertaining thereto; and such court shall file the same; provided, however, the failure upon the part of such judge or clerk to perform any duty provided shall in no manner affect or make invalid such appeal.
“Section 5. That section 6 of chapter 147 of the Session Laws of Oklahoma, 1915, be and the same is hereby amended to read as follows:
“Section 6. Appeals may be taken from the county court to the Criminal Court of Appeals from the judgment of such county court in the same manner as appeals in criminal cases are now prosecuted from the county court to the Criminal Court of Appeals.”

It will be noted that the above sections specifically amend certain sections of the 1915 laws above quoted by definite and specific language. An examination of the above statutes and applying to them the general rules of construction of statutes, one can but come to the conclusion that the act of the Legislature of 1915, above quoted, repeals all former acts covering the same subject-matter, and section 6448, Okla. Stats. 1931, 11 Okla. St. Ann. § 723, supra, which was brought over from territorial days was repealed, not by implication, but by the direct terms of the act of 1915. It being in direct conflict with said act. The fact that this section of the statute was brought over into the Statutes of 1931 could have no effect for the reason that the publication of the 1931 statutes was not an adaptation of a code, but was merely a revision thereof. This left the act of 1915 in full force and effect as to the procedure governing appeals from municipal courts to the county courts of this state from the period of its enactment until it was amended by the Session Laws of 1917. During that period the giving of the bond, having the same approved and filed, and the transcript filed in the county court, as provided by law, was' all that was necessary to perfect an appeal to the county court. But it will be seen, as noted above, that by the enactment of the 1917 Session Laws, certain amendments were made to this statute which provided that before the defendant had the right of appeal, he should file a written demand within ten days after the rendition of the judgment against him. There is no difference between a written demand and a written notice as contended by defendant. It is further provided by said act that the defendant shall have the right to stay the execution of said judgment by entering into a recognizance payable to the municipality as prescribed by said act. We do not believe it was the intention of the Legislature to only give another mode of appeal, but that it prescribes exact terms by which an appeal might be had from a municipal court to the county court.

With reference to the contention that the provisions of the charter should prevail in governing appeals cannot be upheld for the reason that the Constitution of this state (section 3 (a), article 18) provides that the charter shall not be in conflict with the Constitution and laws of this state, and the courts have uniformly held the provisions of the charter prevail only in matters purely municipal; but when the provisions are in conflict with the general laws of the state in matters not purely municipal, the general laws of the state will control. There is no doubt that in matters of appeals in criminal cases where the accused has constitutional and statutory rights, the general laws should control. This contention is supported by section 1, chapter 147, of the Session Laws of 1915, 11 Okla. St. Ann. § 751, where it says:

“Such proceedings are hereby declared to be criminal in their nature; and except as otherwise specially provided, shall be governed by, and subject to, general laws relating to criminal procedure.” Board of Education of City of Ardmore et al. v. State, 26 Okla. 366, 109 P. 563; State ex rel. Burns v. Linn, 49 Okla. 526, 529, 153 P. 826, Ann. Cas. 1918B, 139; City of Sapulpa v. Land, 101 Okla. 22, 223 P. 640, 35 A.L.R. 872.

Two cases from this court have been referred to by both the defendant and the city as bearing upon this case. They are Fossett v. State, 34 Okla. Cr. 106, 245 P. 668, and Wilkerson v. City of Lawton, 44 Okla. Cr. 53, 279 P. 972. In the Fossett Case the court holds that the act of the 1917 Legislature, being section 6454, Okla. Stats. 1931, 11 Okla. St. Ann. § 753, controls over the provisions of the charter, and that appeals from municipal courts to county courts are governed by the general laws of the state, and that the above section must be complied with, and a written demand given before perfecting an appeal. The court, however, holds that by the execution of the bond in that case, it reciting she desired to appeal from said judgment to the county court, was sufficient to comply with the statute. We have examined the record in that case and find that the bond had in its face the following provision: “And said principal desires to appeal from said judgment to the county court of Oklahoma county.” No such expression appeared in the bond in the instant case. It simply recited the conviction and agreed that the defendant would appear at the next term of the county court of Oklahoma county. The Wilkerson Case is directly in point. The appeal to the county court was dismissed in that case, for the reason that no written demand was filed by the defendant as required by the statute, and the court said:

“Under the provisions of section 4655, Comp. St. 1921, 11 Okla. St. Ann. § 754, a written demand of the intention of the defendant to appeal from the municipal court is mandatory, and, unless that written demand is filed, the county court is without jurisdiction, and a motion to dismiss the appeal is properly sustained.”

It will thus be noted that these cases are really not in conflict. But should it be considered they were in conflict, we think the decision in the Wilkerson Case is in harmony with the construction we have placed upon the statutes involved in this case.

We are, therefore, of the opinion that the judgment of the county court of Oklahoma county should be affirmed, and it is so ordered.

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


author: DAVENPORT, P. J.

text:
    BROOX TAYLOR v. STATE.
    No. A-9278.
    Aug. 27, 1937.
    (69 P. 2d 489.)
    Walter Hubbell, of Walters, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, Broox Taylor, for convenience hereinafter referred to as the defendant, was by information charged with the possession of one gallon of intoxicating liquor; was tried, convicted, and sentenced to pay a fine of $50 and to be imprisoned in the county jail for 30 days. The record was properly saved, and the defendant has appealed to this court by petition in error with case-made attached.

The testimony of the state shows that the officers went to the home of the defendant and found no one at home; they claim to have had a search warrant, and claim to have searched the home of the defendant and found two half-gallon jars of whisky.

The defendant objected at the beginning of the trial to any evidence being submitted by the officers as to the search for the reason that there was no proper showing that the officers had a right to make the search. The defendant’s objection was overruled and the defendant properly saved the record.

The defendant testifying in his own behalf admitted he had the whisky in his home; that he had it for his wife, who was not in good health, and the baby. The defendant’s wife in substance corroborated the testimony of the defendant as to the whisky they had at their home, and the purpose for which it was to be used.

In his assignment of errors the defendant alleges seven errors committed by the trial court. The only error it is deemed necessary to consider is the first assignment; “The court erred in overruling motion of plaintiff in error for a new trial.”

All the other grounds alleged in the petition are covered in the motion for a new trial. A careful examination of the record conclusively shows that if there was a search warrant issued to search the home of the defendant, the officer failed to do his duty and serve the warrant as required by law.

Section 2635, O. S. 1931, 37 Okla. St. Ann. 84, provides :

“A copy of said warrant shall be served upon the person or persons found in possession of any such liquor, furniture, or fixtures so seized, and if no person be found in the possession thereof, a copy of said warrant shall be posted on the door of the building or room wherein the same are found.”

It is clearly shown by the record that no effort was made by the officer to comply with that section of the statute. The purpose of the statute is that the defendant may have a copy of the warrant so he may examine the same and know it has been issued by one who has the authority, and that it is in proper form as provided by the statute. The defendant is entitled to this right and is entitled to have the law complied with by the officer making the search. The record fails to show that the officer claiming to have the search warrant for the defendant’s residence and home made any effort to serve the warrant as provided by the statute, supra, and that the search, or the pretended search, was made by him without any showing that he had complied with the statute and had a valid search warrant, and the entrance into the defendant’s residence and the whisky alleged to have been found by the officer was found by an unlawful search and seizure. It is the duty of the officer to follow the statute, and when he fails to do so he cannot trespass upon the rights of a private home and then be permitted to go into court and give his version of what he found.

It is also contended by the defendant that the proof is insufficient to sustain a conviction. There is no proof aside from that obtained by the unlawful search and seizure to warrant the jury in finding a verdict against the defendant, for the reason that the evidence fails to show any effort on the part of the defendant to barter, sell, give away or otherwise furnish to others any of the whisky in his possession, or any other whisky.

There is no evidence showing or tending to show that the home of the defendant was a place of public resort; nor is there any evidence showing or tending to show that parties were seen going to and returning from the defendant’s home at all hours of the day or night; nor is there any evidence that tends to show parties visited defendant’s home in an apparently sober condition and left in an intoxicated condition. There is a total failure of proof as to the home being a place of public resort.

The evidence is insufficient to overcome the testimony of the defendant and his wife, and the presumption of innocence which he is entitled to under the law, and which presumption follows him throughout the trial until overcome by competent evidence. For the reasons stated herein, the judgment of the trial court is reversed and remanded, with directions to dismiss.

DOYLE and BAREFOOT, JJ., concur.


text:
    O. P. JOHNSON v. STATE.
    No. A-9705.
    Sept. 11, 1939.
    (94 P. 2d 4.)

      Baker H. Melone, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, O. P. Johnson, was tried and convicted in the county court of Canadian county, upon an information jointly charging O. P. Johnson and Anna Whipple did in said county on or about the 1st day of October, 1938, have and keep in their possession 30 pints of whisky, with the unlawful intent of said defendants to sell the same. The verdict of the jury found the defendant, 0. P. Johnson, guilty as charged in the information, but were unable to agree upon the punishment.

On April 4, 1939, the court rendered judgment and sentenced O. P. Johnson to be confined in the county jail for 30 days and to pay a fine of $50, and the costs.

An appeal was duly filed in this court of August 2, 1929.

On September 9, 1939, he filed his motion to dismiss the appeal, which, omitting title, is as follows:

“Comes now O. P. Johnson, the plaintiff in error, in the above entitled action, and hereby dismisses the above entitled appeal filed by him on the 2nd day of August, 1939.
“Plaintiff in error further shows to the court that he has surrendered himself to the sheriff of Canadian County, and that his bondsmen have been released from all liability on the appeal bond herein, and respectfully requests that this proceeding be dismissed in its entirety.
“Dated this 30th day of August, 1939.
“O. P. Johnson,
“Plaintiff in Error.”
“Baker H. Melone
“Attorney for Plaintiff in error.”

An appeal may be taken to this court by a defendant as a matter of constitutional right from any judgment rendered against him in a court of record. It is a privilege granted by the law to persons convicted of crime which they may exercise at their option. Hancock v. State, 57 Okla. Cr. 329, 48 P. 2d 348.

In the instant case, there is no reason made to appear why the dismissal should not be ordered in compliance with the motion of the plaintiff in error.

It is therefore adjudged and ordered that the appeal be dismissed.