text:
    JACK PHELPS et al. v. STATE.
    No. A-5684.
    Opinion Filed Feb. 26, 1927.
    (253 Pac. 910.)
    A. O. Manning, for plaintiffs, in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Major county on a charge of manufacturing whisky and each sentenced to pay a fine of $200 and to be confined in the county jail for a term of 60 days.

The record discloses that the two defendants, with Art Warkentine, installed a still at the home of Warkentine and manufactured a considerable quantity of whisky. The defendants did not take the stand, and offered no evidence. Counsel for defendants made a vigorous defense, objecting to each step of the proceedings, and has filed a brief making various technical contentions.

The information was verified by the county attorney. A motion to quash was interposed for the reason that it was in fact made on information and belief. A hearing was had on this motion and county attorney testified that he went to the place after the arrest and saw the still and other paraphernalia, and had affidavits filed with him as a basis for his affidavit. The positive affidavit of the county attorney is sufficient. Sayers et al. v. State, 10 Okla. Cr. 233, 135 P. 1073. If, however, we should hold otherwise it would not have been a sufficient reason for quashing the information. The information, in any event, would have been good for all purposes except as a basis for issuing a warrant, and the remedy would have been to have quashed the warrant, and not to quash the information. Bowen v. State, 5 Okla. Cr. 605, 115 P. 376; Fullingin v. State, 7 Okla. Cr. 333, 123 P. 558.

Defendants next contend that the information is insufficient in failing to charge the whisky manufactured contained more than one-half of 1 per cent, of alcohol, measured by volume. Section 7002, Comp. Stat. 1921, defines the offense for which the defendants are prosecuted. Such section prohibits the manufacture of spirituous, vinous, fermented, or malt liquors. The courts take judicial knowledge that whisky is a spirituous liquor, intoxicating in its character; and where a statute forbids the manufacture of spirituous liquor, an allegation of the manufacture of “whisky” is sufficient under the statute, and the intoxicating character need not be directly alleged or proven. 8 Words and Phrases, First Series, p. 7445, “Whisky”; Peretto v. State, 31 Okla. Cr. 319, 238 P. 870.

It is only those beverages which are not per se intoxicating, such as “choc beer,” “jake,” or the like, or substitutes, that such allegation is necessary. Rambo v. State, 31 Okla. Cr. 214, 238 P. 869; Kolar v. State, 29 Okla. Cr. 76, 232 P. 449; Skelton v. State, 31 Okla. Cr. 343, 239 P. 189.

Defendants also make some contention that there is not sufficient evidence other than the accomplices, Art Warkentine and John Jester, to connect defendants with the commission of the offense. This contention is wholly untenable. There are numerous corroborating circumstances, and, in addition, the evidence of Mrs. Art Warkentine and others, which fully satisfied the rule requiring corroboration of an accomplice.

Objection is made to some of the court’s instructions, but they are not of sufficient importance to call for discussion. There can be no question but what defendants operated the still in question and manufactured whisky, and that they had a fair trial and fully deserved the punishment assessed.

The case is affirmed.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    JIM RENFRO v. STATE.
    No. A-5759.
    Opinion Filed Dec. 11, 1926.
    Rehearing Denied Feb. 28, 1927.
    (253 Pac. 1117.)

      Thomas I. Munroe, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Tulsa county on a charge of having the unlawful possession of intoxicating liquor and was sentenced to pay a fine of $500 and to a term of six months in the county jail. Certain officers with a search warrant went into the vicinity of the residence of defendant and observed numbers of cars driving up, and bottles passing from defendant to the occupants of the cars, and observed the defendant going to the bed of the creek near the place, evidently where the source of supply was located. The defendant was coming away from the creek with a gallon jug in his hand; they attempted to arrest him, and he broke the jug, but the officers preserved some of its contents, which was admitted in evidence. Several assignments of error are argued, but none of them have any merit. The evidence of guilt is overwhelming. The judgment is affirmed.


author: DOYLE, P. J.

text:
    HOMER PENNEQUINE v. STATE.
    No. A-5576.
    Opinion Filed Jan. 22, 1927
    Rehearing Denied Feb. 28, 1927.
    (253 Pac. 303.)

      Wilson, Murphy & Duncan and Beckett & Lewis, for plaintiff: in error.
    George F. Short, Atty. Gen., and Houston B. Teehee, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

In the information in this case, filed in the district court of Osage county, Homer Pennequine was charged with the crime of murder, alleged to have been committed in said county on or about the 28th day of August, 1923, by killing one Ben Avant. Upon his trial the jury found him guilty of manslaughter in the first degree and fixed his punishment at imprisonment in the penitentiary for the term of 5 years. From the judgment rendered in pursuance of the verdict he appeals.

The defense interposed was justifiable homicide. The evidence shows that deceased, Ben Avant, had been a resident in that community about 31 years, engaged in stock raising and farming. He was a man of family; his wife an Osage Indian; his age was 56 years; and he was a duly commissioned deputy sheriff at the time of his death. The town of Avant had been named for him. His home Was just outside the town on the north. He was the owner of a store building occupied as a drug store, facing east on Main street at the northwest intersection corner of Main and Broadway. Just off the comer of the sidewalk southeast of the drug store entrance was an iron hitching post.

The defendant, age 32 years, lived practically all his life in Okmulgee county. On August 8, 1923, he assumed the duties of marshal of the town of Avant. About a week later he found a horse hitched to the iron post and moved the horse from the post. An hour later a controversy arose between defendant and Mr. Avant over the removal of the horse. In the afternoon of August 28th the defendant again found the same horse hitched to this post and told Mr. Avant to remove his horse from the post. In the course of the controversy over the matter the defendant drew his gun and searched Mr. Avant for weapons. After some talk Mr. Avant mounted his horse and rode off in the direction of his home. In a short time he returned, riding south along Main street. He turned west on Broadway. Shortly after he rode east on Broadway and turned north on Main street. Dismounting about 30 feet from the corner, he led his horse to the curb, stooped over, and began wrapping his bridle reins about a stone. The defendant walked up and shot him three times.

Several witnesses testified that they saw the de- • fendant advance up the sidewalk about 20 feet; that while Mr. Avant was still in a stooping position with both hands down holding the bridle reins, the defendant said, “Mr. Avant,”. and as Mr. Avant raised up with the bridle reins in his hands the defendant fired the first shot; that as he fell backwards the defendant fired the second shot; that he took a step forward and fired the third shot.

The defendant as a witness in his own behalf testified: Mr. Avant dismounted from his horse probably two steps from the curb with the reins in his hands and reached down to wrap the reins around a stone. I was almost in front of him. He looked up and reached for his gun. I jumped forward and grabbed my gun, and I hollered, “Don’t do that, Mr. Avant,” and I fired three shots as fast as I could pull the trigger. Mr. Avant fell backwards. He was in his shirt sleeves and had his gun in his shirt. When he came around the corner he reached over, and I saw him take hold of the handle of the gun on the outside of his shirt, bringing the handle further towards his belt buckle, and I saw the handle of the gun.

The transcript of the record and the testimony covers 1,400 pages, but we deem the foregoing statement sufficient for the purpose of this opinion.

The first error assigned is the overruling-of the defendant’s motion for a continuance. The ground stated in his affidavit is that Oscar Martin and Jay Coon are material witnesses, without whose evidence he cannot safely proceed to trial; that he caused a subpoena to issue for said witness, and the return made thereon is, “Not found in the county”; that Oscar Martin if present would testify that he was present “when the defendant and the deceased had some kind of controversy on the street and at that time the defendant searched the deceased; that the deceased got on his horse and rode towards his home; that shortly after that he had a conversation with the defendant about the occurrence, and said to the defendant, ‘You are going to have hell;’ that the defendant then asked him to assist him in preventing any trouble and he went to his room to get his gun for that purpose, and while in his room heard the shooting”; that Jay Coon if present would testify that just prior to the shooting the deceased came riding up the street from the south, turned his horse in towards the sidewalk in an open space between where some cars were parked; that as he turned his horse towards the sidewalk he held his bridle reins in his left hand and with his right hand reached across to the left side as if to adjust his belt or gun, then dismounted and led his horse towards the sidewalk; that defendant was leaning against the fender of a car about 15 feet south of the place where the deceased approached the sidewalk, and walked towards the place where the deceased was stooping over; that the deceased raised up and made a motion which to the witness appeared to be an effort to reach for his gun, and the defendant fired the first shot, followed quickly by two more.

It appears that the witness Martin had removed to the state of Idaho several months before and that the witness Coon had left the state. The record shows that upon motions of the defendant the cause was continued in January and May, 1924, and was set for trial on September 23, 1924. It appears' that the defendant had eight months in which to prepare for his trial.

No rule is more firmly established in this state than that this court will not reverse a judgment of conviction upon the ground that the trial court refused to grant a continuance, unless it appears that such court has manifestly abused its discretion in refusing it. Gentry v. State, 11 Okla. Cr. 355, 146 P. 719; La Cass v. State, 25 Okla. Cr. 130, 219 P. 416; Little v. State, 25 Okla. Cr. 190, 219 P. 424; Graham v. State, 28 Okla. Cr. 266, 230 P. 763.

The application shows an utter want of diligence to have the witnesses in attendance upon the trial. On the other hand, if the defendant had exercised due diligence, he could have procured the deposition of the nonresident witnesses under the provisions of article 17, Procedure Criminal. In our opinion the application lacks the evidence of good faith, as well as that of due diligence, and was properly denied.

The second asignment is, “Improper evidence admitted for the state.” Under this assignment the defendant complains that the court erred in permitting the state to offer in evidence the deputy sheriff’s commission issued to the deceased, on the ground that it was not shown that the deceased qualified by taking the oath of office.

The defendant offered evidence to show that the deceased was armed at the time of the homicide, and it was proper for the state to show that the deceased had the authority to go so armed. Under this assignment the defendant also complains that the court erred in permitting the state to offer in evidence in rebuttal as to the conversation had between the witness Barker and the defendant.

The defendant testified to various conversations with several persons during the 20 days he was serving as town marshal. Upon cross-examination he was asked this question:

“In the conversation with George Barker you said That the only objection you had to this gun was that the barrel was not long enough to carry the notches you expected to put on it.’ ”

The defendant denied having made this statement. In rebuttal the witness Barker was permitted to testify that the defendant, in substance, said “that the barrel was not long enough to file notches on it”; that witness thought the defendant was joking.

We think that, in view of the fáct that the collateral issue was raised by defendant’s evidence, he cannot now be heard to complain of an erroneous ruling of the court thereon. It is the well-settled doctrine ■ in this state that a judgment of conviction will not be reversed on the ground of improper admission of evidence, unless in the opinion of the court, after an examination of the entire record, it appears that there has probably been a miscarriage of justice, or a substantial violation of a constitutional or statutory right guaranteed to the defendant.

The only other assignment is alleged misconduct of the jury. The record shows that, in support of this ground of the motion for a new trial, C. L. Harris, bailiff in charge of the jury, testified that Ben Roebuck, a juror, left the table where the jurors were eating in the cafe, and lit his pipe and walked towards the front of the room 40 or 50 feet from the other jurors; that he did this on two occasions; that the other bailiff was near him; that he did not see him speak to any person. A. N. Murphey testified that after the case was submitted to the jury he saw the jurors on the street at a news stand; that the bailiff was with them. The court ruled that no misconduct was shown.

We think the trifling transgressions which were shown happened by mere thoughtlessness, and couid not have in any way prejudiced the defendant. It would be a travesty on justice if a judgment must be reversed for such a reason.

We have with much care examined the voluminous record and have given the errors assigned and argued in the brief careful consideration and the conclusion is irresistible that the defendant had a fair and impartial trial. We think the defendant may consider himself fortunate because he was convicted of no more serious offense than manslaughter of the first degree.

The judgment appealed from is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    C. C. VASSAR v. STATE.
    No. A-5879.
    Opinion Filed March 5, 1927.
    (253 Pac. 517.)
    Jas. A. Embry, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, P. J.

The information in this case charged that C. C. Vassar, Eli Vassar, Walter Bradberry, and Joe Johnson did unlawfully transport one gallon of corn whisky from a point unknown to the town of Tryon. When the case was called for trial, the defendant Bradberry failed to appear and order was entered forfeiting his bond. On the alleged insanity of the defendant Joe Johnson, a severance was granted. On the trial of C. C. Vassar and Eli Vassar, the jury returned a a verdict finding Eli Vassar not guilty and returned a verdict finding appellant, C. C. Vassar, guilty as charged, and fixing the penalty at a fine of $50 and confinement in the county jail for 30 days. To reverse the judgment entered on the verdict, he appeals.

The principal assignment is that the verdict is contrary to and not sustained by sufficient evidence. The evidence for the state shows that the town marshal arrested the defendants in front of Lewis' store in the town of Tryon. Eli Vassar and Joe Johnson and Walter Bradberry were in a Ford car, which belonged to the defendant Joe Johnson. Appellant, C. C. Vassar, was standing near the car. There was a gallon jug in the car containing whisky. When the officer reached for it the defendant Bradberry threw it out. The foregoing is, in substance, the testimony of nine witnesses for the state.

For the defense, Eli Vassar testified that he had been a farmer in that community for 34 years; that he was never before arrested; that he came to Tryon that day, and the defendant Bradberry beckoned to him to come to his barn; that Bradberry had about a quart of whisky there, and, with others, he drank it; that he did not have any whisky with him that day, nor did his son, C. C. Vassar.

As a witness in his own behalf, C. C. Vassar testified that he had lived on a farm near his father; that with his father he drove his car to Tryon that day; that, when he drove up to the garage, Bradberry called to him to come over to his barn; that, with those present, he participated in drinking about a quart of whisky, and it made him drunk; that he was -arrested and paid a fine of $25 and the costs for being drunk; that he had never before been arrested; that he did not have any whisky and did not buy or transport any whisky.

On the undisputed facts in this case, we are of the opinion that the evidence wholly fails to show a conveyanee or transportation by appellant of the whisky in question.

The judgment is therefore reversed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    THOMAS C. HARRELL v. STATE.
    No. A-5885.
    Opinion Filed March 5, 1927.
    (253 Pac. 516.)

      D. B. Madden and Walter Hub’bell, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   DOYLE, P. J.

Upon an information charging that in Cotton county, February 2, 1924, Thomas C. Harrell did feloniously take, steal, and carry away 100 bushels of oats, of the value of $55, the property of G. M. Janes, he was tried, convicted, and, in accordance with the verdict of the jury, was sentenced to confinement in the penitentiary for a term of one year and one day. He has appealed from the judgment.

Appellant contends that the evidence is insufficient to support the verdict.

The undisputed facts show that Dr. G. M. Janes was the owner of several hundred bushels of oats, raised on his farm 14 miles south of Walters, and stored in a granary on the adjoining farm of E. R. Taylor; that appellant was engaged in the business of buying oats, and drove his truck into Cotton county, and learned from inquiries made along the road that Dr. Janes had oat3 in a granary on the Taylor farm.

E. R. Taylor testified that appellant came to his place and said Dr. Janes sold him some oats; he said hi's name Was Bowles; that he loaded about 100 bushels of the oats into his truck.

Dr. Janes testified that he never saw appellant before he was arrested, and that the oats were taken without his knowledge or consent.

Mrs. E. R. Taylor testified that appellant drove up to the house and asked her if Dr. janes had any oats there. She said, “Yes.” He told her his name was Bowles; then drove to the granary where her husband was.

J. D. Kerr, sheriff, testified that he arrested appellant at Burkburnett, Tex.; at that time appellant said he sold the oats to an elevator at Burkburnett.

As a witness in his own ibehalf, appellant testified: That he had been engaged in buying oats in Cotton county and selling them at Burkburnett. That on February 2d he drove to Cotton county and was informed that Dr. Janes had oats to sell on the Taylor place. That he drove there that evening and asked Mr. Taylor if Dr. Janes had oats to sell, and what they were worth. Mr. Taylor said he did, and they were worth 55 or 60 cents, he did not know which. He told him he wanted to buy some, and that he would come back on Monday morning and pay Mr. Janes for the oats and try to buy the rest. That he did not tell him his name was Bowles, but told him that he lived north of Burkburnett 2 miles. That he started home, and 3 or 4 miles from there he got stuck and left the truck and went home. The next day, Sunday, he came back and hired a man to pull his truck out of the ditch, and that evening got stuck in the sand 2 miles north of Red River and went home. The next day he sent his boy after the oats, and he sold them at Kelley’s Elevator at Burkburnett. •

From the foregoing summary it is plain that the verdict is amply supported ¡by the evidence.

It is also contended that the trial court erred in permitting the county attorney to indorse the name of Mrs. E. R. Taylor on the information when the case was called for trial. Under the statute (section 2511, C. S. 1921), permission to indorse names of additional witnesses on the information at the trial is a matter resting entirely within the sound discretion of the trial court, and, unless it clearly appears that it was an abuse of discretion, and that it was prejudicial to the substantial rights of the defendant, it will not be held to be reversible error. Star v. State, 9 Okla. Cr. 210, 131 P. 542; Grayson v. State, 12 Okla. Cr. 226, 154 P. 334; Bradshaw v. State, 16 Okla. Cr. 624, 185 P. 1102.

In Grayson v. State, supra, it was held that:

“In felony cases, other than capital, the names of additional witnesses may be indorsed on the information after the filing of the same, at such time as the court may by rule prescribe.”

It follows that there was no error in the action of the court.

Appellant also complains of the action of the trial court in refusing to put the prosecuting witness, Dr. Janes, under the rule, and to exclude him from the court room during the progress of the trial.

The exclusion of witnesses for the state at the request of a defendant is not an absolute right in all cases, but rests in the sound discretion of the trial court, and this includes the power to except one or more witnesses from the operation of the rule. It is the proper practice to permit the prosecuting witness or some officer active in the prosecution of the case to remain for the purpose of advising the prosecuting attorney as to the facts, interest, and character of witnesses, etc. That the discretion of the court in allowing this witness to so remain was not abused is evident from the record.

Looking to the record, we find it free from error. The instructions correctly covered the law of the case, and appellant, from all that the record discloses, had' a fair trial.

The judgment appealed from is accordingly affirmed.

EDWARDS and DAVENPORT, JJ., concur.


author: EDWARDS, J.

text:
    BEN BOWDRY v. STATE.
    No. A-5557.
    Opinion Filed March 5, 1927.
    (253 Pac. 512.)
    Warren K. Snyder and R. P. Hill, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Joe W. Howard, Co. Átty., of Perry, for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Noble county on a charge of unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $300, and to serve a term of four months in the county jail.

The record discloses that defendant was sentenced on the 10th day of January, 1925, and appeal filed in this court, on April 24, 1925. Under the provisions of section 2809, Comp. Stat. 1921, a notice of appeal is required to be served upon the county attorney and the clerk of the court, or by posting in case such officers are not found in the county. No such notice appears in the record, but a recital is contained that defendant filed his notice of appeal, which purports to be a notice given in open court, evidently attempting to give the notice provided for in section 782, Comp. Stat. 1921 (chapter 219, Session Laws 1917). This latter section does not repeal section 2809, supra, but has application solely to appeals in civil cases. Burgess v. State, 18 Okla. Cr. 574, 197 P. 173; Merritt v. State, 35 Okla. Cr. 194, 249 P. 436.

For the reason that no notice of appeal was given as required by law, the appeal is dismissed.

DOY]LE, P. J., and DAVENPORT, J., concur.


author: DAVENPORT, J.

text:
    V. W. WELLS et al. v. STATE.
    No. A-5647.
    Opinion Filed March 5, 1927.
    (253 Pac. 911.)
    Champion, Champion & George, for plaintiffs in error.

      Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiffs in error, hereinafter called the defendants, were charged jointly by information in the county court of Garter county, with Jim Russell and Clellie Shockley, with the crime of manufacturing intoxicating liquor, with the willful and unlawful intent then and there to sell, barter, give away, and otherwise furnish the same to others, contrary to the form of the statute in such cases made and provided, and the defendants Victor Wells and Claude Mc-Phetridge were convicted, and their punishment fixed at a fine of $50 each, and 30 days in the county jail at Ardmore. Defendants filed motion for a new trial, which was considered and overruled, and sentence pronounced on the verdicts.

To reverse the judgments rendered, the defendants have appealed to this court, and have assigned five errors alleged to have been committed by the trial court, which errors are as follows:

“(1) Because the verdict of the jury is contrary to law.
“(2) Because the verdict of the jury is contrary to the evidence.
“(3) Because the verdict of the jury is contrary to the law and the evidence.
“(4) Because of error of the court in refusing to instruct the jury to return a verdict of not guilty in favor of these defendants and each of them.
“(5) Error of the court in giving instructions Nos. -, which do not convey, and are not the law governing this case.”

But in the brief counsel for the defendants have grouped the assignments of errors, and have considered them in one general proposition, to wit:

“That the court erred in overruling the demurrer of the plaintiffs in error to the evidence offered by the state, and that the verdicts of the jury are contrary to the evidence.”

As to whether or not the errors assigned by the defendants are well taken we deem it necessary to set out a brief summary of the testimony in this case.

The state called John W. Ginn, who in substance testified as follows:

“My name is John W. Ginn. I am and was on the 1st day of December, 1924, deputy sheriff of Carter county. I know the defendants, and saw them on or about that date about four miles east of Ardmore over at a still. I came up from the east, coming west, and saw them about 50 yards before I got to them and before they saw me. I crawled to within about 15 steps of them, and then jumped in on them and hollowed at them. Vic Wells broke, and run past the still. Mr. Keirsey and Hale Dunn stopped these boys, and I chased Victor on a little way, but never caught up with him. We found 14 gallons of whisky, seven empty barrels, three barrels with a little in them, and three barrels that had not been made up, a galvanized barrel, a galvanized gasoline tank, a copper worm, and thump keg. The still was running full blast, all four of the defendants were there. Claude McPhetridge was drunk. That was in Carter county, Okla. Later Victor Wells came in.”

The state also called W. C. Keirsey, who testified in substance as follows:

“My name is Con Keirsey. I am and was on the 1st day of December, 1924, a deputy sheriff in Carter county. I am acquainted with the defendants, and saw them on or about the 1st day of December, 1924. I saw Claude McPhetridge, Clellie Shockley, and Jim Russell. I could not say positively about Victor Wells. I saw them about six or eight miles east of town. We went out where the still was. They were all working around this still. It was in a deep branch; the branch was pretty steep. We found fourteen gallons of whisky, six or seven barrels of mash. The still was in operation.”

On cross-examination he testified that “Claude Mc-Phetridge was drunk. Victor Wells ran off.”

The state called Hale Dunn, who testified as follows :

“My name is Hale Dunn. I am and was on the 1st day of December, 1924, a deputy sheriff in Carter county, and on that date I saw three of the defendants, Mr. Russell, Shockley, and Mr. McPhetridge out east of town at a still. We went out there in, December, and came on them at a still at work. I would not be positive, I think it was Victor Wells who stood with his hands up, while Johnie got within 15 steps of where he was when he wheeled and ran. I could not swear it was Victor, but it looked like him. Claude was drunk. We found fourteen gallons of whisky, seven barrels of mash, and a still in operation.”

On cross-examination he testified as follows:

“I don’t know what Victor Wells was doing there. I don’t know whether Victor Wells was there or not. Claude was drunk. I supposed he was working from the looks of his clothes. Some of them were carrying whisky and some water. Claude was trying to run. I never saw him with anything in his hands. From the looks of his clothes he was working. Victor was around the still with the rest of them. I saw him drop something. I don’t know what it was.”

The defendants called the following witnesses, who testified as follows:

“My name is Jim Russell. I am 20 years old. I was arrested by Hale Dunn, Con Keirsey, and John Ginn for having a still. Clellie Shockley, Claude Mc-Phetridge, myself, and my little brother was there when we were arrested. Victor Wells was not there. That was my still; none of the other defendants had any interest in it. Claude McPhetridge had been at the still about 30 minutes. He got drunk. He did not have any interest in the still. He was not helping me run it. Victor Wells was not there. Claude had been there long enough to get drunk—about 30 minutes. He wasn’t working around the still.”

On cross-examination he testified further:

“I live about a half a mile from where the still was. Victor Wells is my brother-in-law. He was not present at that time. I am not trying to take this on myself so as to let the other boys go. If they had anything to do with it I would say so. I had been running the still since something like sunup, and was running it by myself until these boys came. McPhetridge was hunting his mules. I was talking to Shockley when the officers came up. McPhetridge was drunk. The first time I saw Wells he was running up the Creek. My little brother brought the Shockley boy down there.”

Earl Wells was called for the defendants, and stated that he was the father of V. W. Wells, and that his son had a good reputation.

The above in substance is all the testimony offered by both parties. At the close of the testimony, V. W. Wells and C. C. McPhetridge interposed a demurrer to the evidence, which demurrer was by the court considered and overruled. To the ruling of the court the defendants duly excepted.

The only question in this case to be determined is the sufficiency of the evidence to sustain the verdicts. The only evidence against McPhetridge is that he was near the still, drunk, and unable to run when the officers came up to the still. Jim Russell, one of the defendants who testified for the defendants, stated that the still and properties connected with it belonged to him, and that neither McPhetridge nor V. W. Wells owned any part of it, or had anything to do with the making of the whisky, and that they did not furnish any of the material used in making the whisky; that V. W. Wells was not at the still when the officers came.

In the case of White v. State, 28 Okla. Cr. 358, 230 P. 943, this court held facts very similar to the facts in the case at bar insufficient to sustain a verdict of conviction. In the White Case Charley Fourkiller testified:

“William Johnson, Eoach Young, and Jack Wolf, and I were on the bluff and these men were under the bluff. There was a fire there, and they had a kettle or boiler on this fire when we got down to this place. Tom White was something like 20 steps from the fire down drunk. All of us sampled this stuff, and it was choctaw beer.”

Grant Feather, called as a witness' in the White Case, testified, in answer to question, “Who made it?” “Me and Sunday White and Matt White, just us three made it.”

In passing on this case, the court said:

“There is no direct evidence to connect this defendant with the making of the liquor in question, and when a conviction is sought on circumstantial evidence alone, the circumstances proved must not only be consistent with each other and with the hypothesis of the defendant’s guilt, but inconsistent with any rational hypothesis other than his guilt. A conviction may not be founded upon mere conjecture or upon probabilities, however strong.”

In the case of Williamson v. State, 20 Ala. App. 394, 102 S. 485, that court, passing upon a similar question, uses this language:

“Where evidence was conflicting as to whether defendant was engaged in operation of a still, his presence there without evidence tending to connect him with its operation, control, or ownership, was insufficient on which to predicate verdict of guilty.”

In Moultrie v. State, 20 Ala. App. 258, 101 So. 335, in passing upon that case, the court says:

“Evidence that accused was discovered lying down close by a still was not sufficient to support a conviction for manufacturing liquors or having possession of a still.” State v. Pope et al. (Mo. App.) 269 S. W. 411.

In this case there is no direct evidence connecting, or attempting to connect, either of these defendants with the ownership or operation of the still. The testimony is conflicting as to whether the defendant V„ W. Wells was present at the place where the still was located when the officers came. In fact, the testimony of the identification of Wells is uncertain and indefinite.

In our opinion, the court erred in denying these defendants’ motion for a directed verdict of acquittal. Because the evidence is insufficient to sustain the verdicts, the judgment is reversed and remanded.

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


text:
    ETHEL HALLMARK v. STATE.
    No. A-5779.
    Opinion Filed March 5, 1927.
    (253 Pac. 513.)

      Morris & Tant, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was informed against in the county court of Oklahoma county, charged with the crime of maintaining and operating a public nuisance, to wit, that Ethel Hallmark, in the county and state aforesaid, did then and there willfully, unlawfully, and wrongfully maintain and operate the second story of the two-story brick building on 91/2 North Broadway, Oklahoma City, said county and state, known and- designated as the Hallmark rooms, where intoxicating liquor, to wit, whisky, was kept, bartered, sold, manufactured, given away, and otherwise furnished to divers persons unknown, and where divers persons unknown were per-, mitted to congregate for the purpose of buying and receiving said intoxicating liquor, all to the common nuisance of the public, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Oklahoma.

To this information the defendant entered her plea of not guilty and filed her. motion to suppress the evidence of the state for the reason that the search of her home and premises was made without a valid and legal search warrant. The court ordered the trial to proceed; the jury was impaneled and evidence of the state introduced. At the close of state’s testimony, the defendant again renewed her motion to suppress the testimony on the ground that it was procured by means of an illegal search warrant, which was overruled by the court and exceptions duly saved. The defendant was convicted, a motion for a new trial was filed and overruled, and the court imposed a sentence upon the defendant in accordance with the verdict of the jury, fixing her punishment at a fine of $250 and confinement in the county jail for a period of 60 days.

To reverse' the verdict and judgment the defendant has appealed to this court. The defendant has assigned six errors committed by the court. The view we take of this case on the evidence introduced by the state, we do not deem it necessary to consider any of the assignments of errors except the fourth, which is as follows:

“Because the court erred in overruling the defendant’s motion to strike from the record the testimony of certain witnesses, on the ground that such testimony was illegally and unlawfully obtained by the use of an illegal search warrant.”.

The substance of the testimony introduced by the state is as follows:

L. W. DeCordova testified: “I am working on the Oklahoma City police department, and was on the 21st day of November, 1924. I know the defendant, Ethel Hallmark. She was running a rooming house on the 21st day of November, 1924. The rooming house was located at 9^ North Broadway, the stairways going up at 7% and 9Vs North Broadway. The upper story was known as the Hallmark rooms. I went with W. V. Brown, George Brigman, Reese Gallion, W. A. Parker, Mrs. Cash, and John Heep to that place on the 21st day of November, 1924. I have been to that place frequently. We found three pints and a half pint of whisky. The half pint we found in one of the rooms, the three pints on Ethel Hallmark’s person. The matron searched the defendant, and she hollowed that the whisky was found. She found two pints in her stocking leg and one in her bosom. The reputation of this house was bad. The back of this rooming house opens down in front of the police station. When we went up there defendant was up there with two babies alone.”

George Brigman testified in substance to the same facts as DeCordova. W. A. Parker also testified as to the same facts.

The affidavit for the search warrant and the warrant was introduced showing that the search warrant was issued by O. P. Estes, police judge.

At the conclusion of the state’s testimony the defendant renewed her demurrer to the insufficiency of the evidence, which was overruled by the court. The defendant then moved to suppress the testimony and withdraw it from the consideration of the jury on the ground that all the facts about which the witnesses testified were procured through the means of an illegal search warrant and that no sufficient affidavit was made or filed for the purpose of procuring the search warrant; that the search warrant based upon the affidavit was illegally issued. The motion to suppress the testimony was overruled, and defendant duly excepted. The state introduced the affidavit and the search warrant, which show that the warrant was issued by O. P. Estes, Oklahoma City police judge. The question is, Has the police judge the authority to issue a search warrant?

Section 7009, C. O. S., is as follows:

“If it shall be made to appear to any judge of any court of record or any justice of the peace that there is probable cause to believe that liquor, the sale of which is prohibited by this act,- is being manufactured, sold, bartered, given away, or otherwise furnished, * * * in violation of this act, such judge or magistrate shall, with or without any endorsement of such complaint by the county attorney, issue a warrant, directed to ‘any peace officer, in the county, whom the complaint may designate, commanding him to search the premises described and designated in such complaint and warrant and to seize all such liquor there found,” etc.

In Terry et al. v. State, 31 Okla. Cr. 91, 237 P. 465, this court considered the identical question involved in this case, and held that a police judge was without authority to issue a search warrant. As the search warrant in this case was issued by a police judge, we hold that the search warrant was invalid and testimony procured by it was unlawfully procured, and the motion of the defendant to suppress the testimony on the ground that it had been procured by an illegal search warrant and to advise the jury to return a verdict of acquittal should have been sustained.

There béing no testimony in the record other than the testimony procured by an illegal search warrant, the case is therefore reversed and remanded.

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


text:
    W. J. RADNEY v. STATE.
    No. A-5560.
    Opinion Filed March 8, 1927.
    (253 Pac. 913.)

      See, also, 29 Okla. Cr. 318, 233 P. 770.
    A. M. Stewart, W. M. Williams, and H. D. Henry, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   DOYLE, P. J.

Appellant, W. J. Radney, was informed against for the murder of Eugene Lynch. He pleaded not guilty to the charge, and upon the trial the jury rendered a verdict of manslaughter in the first degree, but failed to agree on the punishment. In due course a motion for new trial was interposed in his behalf and denied, and he was sentenced to confinement in the penitentiary for a term of 20 years, and from the judgment duly pronounced by the court he appeals.

Appellant assigns error on rulings in the reception of evidence, and errors arising from the conduct of the trial judge, the conduct of the county attorney, and the conduct of A. R. Garrett, special prosecutor for the state.

At the outset it may be stated that a clear understanding of the facts in the case is the best explanation of some of the questions presented by appellant.

It appears that appellant lived on his farm 8 miles southeast of Mangum and a half mile west of the little town of Hester; that about 200 yards south of his home was a tenant house occupied by Mr. Yarber, who was the father-in-law of the deceased, Eugene Lynch. On Sunday morning, July 20, 1924, Leonard Radney, son of appellant, came to the Yarber home; he stopped at the gate about 50 feet in front of the house and asked one of Mr. Yarber’s little girls to call Mr. Lynch out; she wlent to the house, and Mr. Lynch came out and engaged in a conversation with Leonard Radney, then he went back into the house. The elder Radney came down the road, stopped in front of the house, and said “Good morning” to Mr. Yarber, who was standing at the gate, and asked him where Eugene Lynch was. Mi'. Yarber told him he was in the house, and appellant asked him to call him out; about that time Mr. Lynch passed the door, and appellant called to him, Mr. Lynch came out to the gate; after a brief conversation appellant pulled his gun, a 45-caliber Colt pistol, and shot Mr. Lynch. The bullet entered about four inches from the spinal column on the right side, and, passing through the body, came out over the left nipple, the exit wound being four inches higher than the entrance. Mr. Lynch fell on his hands and knees, and then got up and ran to the porch and fell again, dying in a few minutes.

Buddy Yarber testified:

“I was standing at the north side of the gate, near Leonard Radney, when his father walked up, said, ‘Good morning,’ and asked me where G'ene Lynch was. I told him he was in the house. About that time Gene walked in front of the door, and he called to him, and Gene came out. He said, ‘Good morning,’ to Mr. Radney, and Mr. Radney said, ‘What is the matter with you and the boy?’ Gene said there was nothing much, only the boy was trying to raise trouble with him, and he didn’t want to have any trouble with him. Mr. Radney had his right hand on his hip, and he pulled his gun and shot him. Gene threw his hands up and said, ‘Don’t shoot,’ or something like that. He fell, then jumped up, ran to the porch, and fell again. Mr. Radney and his son started away; we picked Gene up, carried him in, and laid him on the bed, and he was dead.”

He further testified that the deceased was rubbing his hands in front of him when Mr. Radney pulled his gun and shot him; that the deceased was unarmed; and that there was no gun or pistol of any kind on the premises at the time.

On cross-examination, he was asked:

“Q. He and Mr. Radney’s boy, Leonard, had been over in Kiowa county working at a thresher just prior to the difficulty? A. Yes, sir. They had been over there at work.
‘‘Q. And during the time that Gene was at the thresher, his wife was staying at your house? A. Yes, sir.” , !

Laura Yarber testified:

“I am 14 years old. I was out in the yard; Leonard told me to call Gene. I went up on the porch and called him; he came out and they stood at the gate talking, and I saw Leonard’s father coming down the road. GArifi wpnt hack in hhe honsp.; thp.n T heard Mr. Radney say, ‘Gene, come here,’ and Gene stepped to the door and said, ‘Just as soon as I get my shirt on.’ And he went out the door, putting his shirt in his pants; when he got to Mr. Radney he was rubbing his hands. I could not hear what was said; Mr. Radney pulled out his gun and shot him; my father was standing near the south post of the gate. Just as Mr. Radney pulled his gun Gene threw his hands up and hollered, ‘Don’t shoot me,’ and fell. After the shot was fired Mr. Radney started to fire again, and daddy said, ‘Don’t shoot no more,’ and Mr. Radney and Leonard turned and ran home.”

Herbert Yarber testified:

“My age is 16 years. I saw Leonard Radney talking with Gene in front of the gateway that leads to the house; Gene came back in the house, and daddy went out to the gate. I saw Mr. Radney about halfway between his house and ours. He stopped in front of the house and said, ‘Gene, come here,’ and Gene said, ‘All right, when I get my shirt on.’ When I heard the gun fire, I looked and saw Gene fall on his hands and knees. He got up and ran to the porch; and daddy, mamma, and my sister picked him up, and took him in, and laid him on the bed.”

Ettie Yarber testified:

“I saw Leonard Radney out at the gate; my son-in-law was going towards him; he remained out there just a few minutes, came in and went to the dresser and combed his hair; then I heard Mr. Radney call, ‘Gene.’ His wife brought his shirt, and I helped him put it on; then he went out to where Mr. Radney was. I was getting the children ready for Sunday school, I heard the shot and saw him fall. He jumped up and came running to the house all bent over; I reached for him as he fell on the porch, and I fell down.”

Lennie Lynch testified:

“I am the widow of Eugene Lynch; my age is 17 years. I was staying at my father’s while my husband was working at the thresher over at Lone Wolf. I had been there but two weeks. My husband returned on the Friday before he was killed on Sunday. A few minutes before he was shot I saw him talking to Leonard Radney; in a few minutes he came in the front door and went to the dresser, combed his hair, and asked me to hand him a shirt. I brought his shirt to him. About that time Mr. Radney called him, and he said, ‘All right, in a minute.’ He did not own a pistol and did not have any pistol about him at the time when I heard the gun fire. I looked around and saw him fall; I started to him; he jumped up and ran to the porch.”

For the defense Dora Radney, wife of appellant, testified:

“I was sitting on my back porch shelling peas for dinner that morning; my husband was helping me. My little girl said ‘Mamma, Leonard is not going to Sunday-school, he is down at Mr. Yarber’s.’ I looked that way and saw Eugene Lynch striking towards my son; my husband got up and went through the house and then walked out. I had a conversation with my husband Saturday evening and told him that Leonard told me that he had trouble at the thresher with Eugene Lynch; that Gene called him a ‘little bastard’ and a ‘little devil,’ and that he kicked him and told him not to tell his father about it; that if he did he would get him; and that he came home Wednesday night because he was afraid to stay there. Leonard had told me these things Saturday morning.”

Leonard Radney testified:

“My age is 20 years. I worked at the thresher over in Kiowa county. Eugene Lynch worked there at the same time; we bought a blanket together and I paid for it; he was to pay me as soon as he got the money; we went to a picture show together, and I loaned him 50 cents. Tuesday night I was sitting by the threshing machine; he broke off a piece of inner tube and commenced tapping me with it; I told him to stop and he didn’t;' I got up, and he quit and said, T will see you later.’ When we went to the barn together to go to bed, he reached back and caught me by the collar and said, ‘You God damn little bastard. I told you that I would get you this evening and I am going to do it.’ I said, ‘Listen here, Eugene, you know I am not of age.’ He said, ‘Yes; if you ever tell your father about it, God damn you, I will get you; and if I don’t, I have a brother just like me, and he will do it. Your father too, God damn him, I am going to get him too.’ I worked until noon the next day and came home. I saw him Saturday morning. He owed me 50 cents, and I was going to town to get my trousers; I did not have any change so I sent my little brother down there with a note to get the 50 cents; he told him to tell me he didn’t have the change, but would pay me in town that day. Then I told my mother about the troúble I had with him at the thresher; I saw Eugene in Man-gum that Saturday. He came up behind me, put his hand on my back, and shoved me, and said, ‘You know what I told you over at the thresher, don’t you?’ And he said, ‘God damn you, you have been talking.’ I said, ‘I haven’t said a thing.’ He said, T know you have, you God damn little bastard; if you will go out of town with me, I will settle it just like I told you at the thresher.’ And he said, ‘Your father too, God damn him, he has been talking about me.’ And he said, T haven’t got the 50 cents, but if you want your God damn 50 cents come down in the morning, and I will have it for you.’ I went down there Sunday morning and stopped in front of the house; Laura Yarber was standing there, and I told her I would like to see Gene; about that time he came out, and I asked him how he was feeling, and he said, ‘God damn you, I feel just like I did yesterday. Here is the 50 cents, you God damn little bastard, it seems like you are worried about it.’ I said, T didn’t come down - here for any trouble, and he said, ‘I know you didn’t but you are down here and you are going to get it.’ He struck at me once or twice, I stepped out of his way; he looked and saw my father coming and said. ‘Yonder comes the God damn-son of a bitch I want,’ and turned and went back in the house. He had on his trousers and B. V. D.’s. Mr. Yarber came out about that time; in two or three minutes my father came there and asked Mr. Yarber what was the trouble, and Mr. Yarber called Gene out. He came out and my father said, ‘What is the trouble with you boys?’ And Gene said I had been trying to attend to his business. Father said, ‘Forget all that.’ He said, ‘Hell, no; I don’t forget nothing. You, God damn you, you have been telling lies on me,’ and he said, ‘Your wife, God damn her, she has been telling lies on me, and you, God damn you. I am going to get you right here.’ And he went back to his side with his right hand; it didn’t look like he got his gun clear out. I could see the gun. My father stepped back and fired the shot.”

Several witnesses testified that they knew the general reputation of Warren J. Radney in that community as being a peaceable law-abiding man, that it was good.

The testimony of appellant in his own behalf was as follows:

“I came to Greer county in 1900; I have lived on my present farm of 240 acres 14 years; Mr. Yarber lived in the tenant house and Eugene Lynch lived in my house in Hester. Saturday night after we were in bed my wife said that my boy and Gene had some trouble over at the thresher, I asked her what it was. She said Gene had been whipping him with a piece of inner tube, that he hit him two or three times, and finally my boy said, ‘By G'od, quit,’ and Gene quit and said, T will see you tonight.’ And when they went in the barn to sleep together that night Gene caught him by the shoulder and said, ‘Do you remember what I told you? By God, I am going to do it,’ that my boy said, ‘Never mind, I am going to tell my daddy,’ and Gene said, ‘If you do I will get you and him both.’ That is what my wife told me. My son Leonai*d never told me about this until after the trouble; that the next morning I was shelling peas with my wife on the back porch, I looked and saw my boy and Gene Lynch standing in front of Yarber’s and it looked like Lynch was striking at my boy with both arms; I got up, went into the house, and got my six-shooter and started to Yarber’s; about halfway there I saw Eugene Lynch go into the house; when I got to the gate Mr. Yarber was there. I asked Mr. Yarber what was the trouble between Gene and the boy, he said he didn’t know; I asked him was Gene there, and he called him out; as he came out he had his shirt about on; he looked like he was packing it down in his pants with his right hand. It looked like a bulk there, and he was trying to slip it down at his right side; I thought it was a pistol; I didn’t actually see any pistol. I said, ‘Gene, what is the trouble? What is the matter with you and Leonard?’ And he said: ‘God damn him, he has been talking about me.’ I said, ‘Gene, forget all that, I will make him behave himself.’ He said, ‘No; your God damn wife and you God damn sons of bitches have been talking about me, and right here I am going to get you.’ As he said that, he made a grab at his pants and went to pull. Mr. Yarber said, ‘Don’t shoot’; when he did that I reached around and got mine. I stepped back about two steps and pulled my six-shooter from my left side, x I had the hammer pulled back, and I shot; I did not see him fall.”

On cross-examination, he was asked:

“Q. When were you married? A. February, 1909, at Altus.”

In the rebuttal several witnesses, members of the threshing crew, testified that with Eugene Lynch and Leonard Radney and the other boys they engaged in a game of rap jack one evening with pieces of inner tubes, and that there was no difficulty that night between Lynch and Radney. Several other witnesses testified that they knew the general reputation of appellant in that community as being a peaceable, law-abiding man, and that it was bad.

From the foregoing summary it is plain that the verdict rendered is amply supported by the evidence, and that the judgment should be affirmed, unless some error of law requires a new trial.

Taking up the errors assigned in the order presented, appellant complains that the court erred in permitting the state to offer evidence in rebuttal, controverting the testimony of Leonard Radney, as to what happened, and as to conversations had between the deceased and Leonard Radney the night before Radney left the threshing crew.

As a witness for appellant his son, Leonard, was permitted to testify in detail concerning a difficulty had between himself and the deceased at the thresher. Included in his testimony were certain statements made by the deceased in the nature of threats against appellant. He further testified that he told his mother about the trouble that he had with the deceased and of the threats made by the deceased. His mother testified that she had informed her husband of what Leonard had told her about his difficulty with the deceased and of the threats made by the deceased. Upon rebuttal, the state called two or three witnesses who were present at the thresher. Each testified that evening the boys at the thresher all played rap jack, and during the game Leonard said to the deceased, “That is enough, by God, quit,” and that the deceased with the other boys went on with the rap jack game. Oral Smith testified that he was with the deceased the rest of the evening, and he slept with him on his pallet in the barn that night, and that no threats were made by the deceased against Leonard Radney or his father.

The rebuttal testimony was objected to by counsel for appellant upon the ground that it was impeachment on a collateral issue and of a transaction not in the presence of defendant.

The record shows that appellant introduced this collateral and irrelevant issue by offering evidence of the difficulty between the deceased and appellant’s son in the absence of appellant. The state made no objection, but offered evidence to contradict the account given by appellant’s son as to the details of the difficulty. That the issue as to the details of the difficulty between the deceased and appellant’s son was collateral and irrelevant, we have no doubt. The question was not what actually occurred at the difficulty between the deceased and appellant’s son, but the question was what did appellant’s son tell his mother about it, and what did appellant’s wife tell him about it? If her recital to him of what happened and of what the deceased said to their son was of such a character as to arouse his passion to such an extent that he armed himself with a six-shooter and- went to the home of the deceased and there shot and killed him, as is shown by the evidence, then such recitals ..were competent evidence, both for the state and for the defense. Appellant could be actuated only by such things as he knew, and which had been communicated to him by his wife or others. Whether she gave a true or false account of the difficulty as told to her by her son is immaterial, as is also what actually occurred in the difficulty at the thresher.

The rule is well settled that, ordinarily, a party may not complain of an error which he himself has invited, or which he has waived, either expressly or impliedly. This rule clearly applies to a case where one party resorts to incompetent evidence without objections, and where the opposite party replies with evidence of the same character. In such case, both are

at fault and neither can complain in this court of the admission or exclusion of the evidence by the court below. 1 Wig. Ev. (2d Ed.) par. 15, p. 156; Id., § 19, p. 189.

In a homicide case, where the defense is justifiable homicide in self-defense, a defendant may for the purpose of showing the deceased to have been the aggressor introduce evidence to show that the deceased entertained hostile feelings towards him. Uncommunicated threats are evidence of the mental attitude of the deceased towards the accused. That is true also of communicated threats, and, further, evidence of the latter shed light upon the mental attitude of the accused towards the deceased when the homicide occurred. Wigmore on Ev., § 111.

In so far as the testimony of appellant’s son tended to show statements by the deceased in the nature of threats against appellant, it was competent and the state was entitled to rebut the same.

Appellant also complains that the court erred in sustaining the state’s objection to the testimony of the witness McCall, offered in corroboration of the testimony of Leonard Radney, as to the details of the difficulty between him and the deceased, on the streets of Mangum, the day previous to the homicide.

It follows from what has been said as to the previous difficulty between appellant’s son and the deceased that the court did not err in sustaining the state’s objection.

The final contention here made in behalf of appellant is that the court erred in overruling his objection to the question asked on cross-examination as to when he was married, and that the question asked and statements made to the jury in argument by Judge A. R. Garrett, special counsel, assisting the county attorney in the trial, constitute prejudicial error.

Counsel for appellant in their brief say:

“The facts, as the testimony will show, are that Leonard Radney was 20 years old at the time of the difficulty, but that the boy’s father and mother did not marry until 1909, which would tend to show that Leonard Radney was born out of wedlock, and such was the object of the special prosecutor, evident to the court and to the jury.
“The closing argument for the state, made by Hon. A. R. Garrett, hired counsel for the prosecution, clearly discloses the object that Mr. Garrett had in asking the question as to when the defendant was married.”

Counsel for appellant requested that the closing argument by Judge Garrett, special prosecutor, be taken in shorthand.

The record shows his argument in part as follows:

“ ‘Vengeance is mine,’ saith the Lord, ‘I will recompense,’ was the language of Moses 1800 years before that. But who is taking vengeance in this case? Who has taken upon himself to avenge? Yes; Warren Radney, in February, 1909, how old was this son of yours? He is 20 years old now and above—You say you were married in 1909—how old was this boy? When that boy went to his home and told his mother, whether he knew it or not, when he told her that this Lynch boy had called him a bastard—(interrupted)
“Mr. Stewart: Wait a minute! We object to this line of argument as not being in the case.
“Mr. Garrett: It is in the case.
“Mr. Stewart: And as being highly prejudicial.
“The Court: Overruled. The jury will be guided by the evidence.
“Mr. Stewart: Exception.
“Gentlemen of the jury, when' that mother repeated that to her husband and this father that he had called him a bastard, this man with a fine farm; this man with a fine home; this man that can have bankers come in here, because he carries a bank account and banks with them, to testify to his standing; this man; who trades with the merchant princes of his town can have men come in here and testify for him; this man with his wonderful bank account, with a fine farm and a fine home, and being an officer, a member of the election board; this man—was that his justification, because this boy said Lynch had called him a bastard? Was that the thing uppermost in his mind; that the thing that stung; that the thing that cost Eugene Lynch his life?”

Generally speaking, when a defendant takes the witness stand in his own behalf, the right of cross-examination extends not only to the facts stated by him on his direct examination, but to all other facts connected with them, whether directly or indirectly, which tend to enlighten the jury upon the issues in the case.

The defense was that appellant, believing that he was in imminent danger and acting under that influence alone, fired the fatal shot.

A vast mass of testimony was introduced in this case. The transcript covers'some 600 pages. The trial court allowed appellant’s counsel full latitude in the matter of showing statements made by the deceased to appellant’s son wherein the deceased repeatedly called him a bastard. It was the theory of the state that the defendant, when he armed himself and left his home and went to the home of the deceased, acted under the impulse of passion, engendered by his wife’s story that the deceased had called their son a bastara, and that the motive on his part for the commission of the homicide was revenge. From what has been said it follows that the question asked was proper cross-examination, and the objection thereto was properly overruled.

In this connection we do not think that the special counsel for the state was guilty of conduct that invaded the right of appellant to a fair trial. Counsel have the right to present to the jury their views of the proper deductions or inferences which the facts warrant.

This disposes of all the assignments of error discussed by counsel for appellant in their brief.

The instructions of the court, to which no objection was made or exception reserved, fully and correctly cover the law applicable to the case. In the conduct of the trial the court appeared to realize that appellant was in a defenseless position. On his own testimony the homicide cannot be justified, under the law. However, his counsel safeguarded his rights at every turn and spared no effort to save him from the consequence of his indefensible deed.

In conclusion, we find that the appellant had a fair trial, free from prejudice, and the judgment of the trial court is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    CLAUDE MARTIN v. STATE.
    No. A-6041.
    Opinion Filed March 8, 1927.
    (253 Pac. 911.)

      H. D. Henry, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Appellant, Claude Martin, was convicted on a charge of unlawful possession of intoxicating liquor and was by the court sentenced to pay a fine of $250 and to confinement in the county jail for 60 days. From the judgment an appeal was perfected by filing in this court on February 2, 1926, a petition in error with case-made.

The Attorney General has filed the following motion to dismiss the appeal:

“Comes now Edwin Dabney, Attorney General, and respectfully moves the court to dismiss the appeal of plaintiff in error in the above cause for the reason that said plaintiff in error is now, and has been for some time, a fugitive from justice and his whereabouts are unknown, and that he cannot be made to respond and perform any judgment that may be rendered against him in said cause, as more fully appears from the affidavit of W. M. Williams, hereto attached, marked Exhibit A, and made a part of this motion.”

An examination of the record, the motion, and supporting affidavit convinces us that the motion is well taken. The appeal herein is therefore dismissed. Mandate forthwith.


text:
    JAMES LUMPKINS v. STATE.
    No. A-5880.
    Opinion Filed March 8, 1927.
    (253 Pac. 909.)
    J. G. Ralls, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

Appellant, James Lumpkins, was convicted on a charge that he did have in his possession intoxicating liquor, to wit, two pints of whisky, with the unlawful intent to sell the same, and, in accordance with the verdict of the jury, he was by the judgment of the court sentenced to pay a fine of $100 and be confined in the county jail for 60 days. To reverse the judgment he appeals.

The first assignment is that the evidence is insufficient to sustain the verdict.

O. P. Ray, Jr., sheriff, testified:

“I visited the defendant’s place two miles east of Atoka. I believe I had a search warrant. Mr, Lump-kins came to the door; I told him I wanted to look his place over for whisky. He told me that there was not a drop there, go on and help myself. There was á little child or maybe two in the yard. Mrs. Lumpkins was not in the house. I had information that he kept the whisky in the brush, from a man who had bought whisky; I will not give his name. He said if I would go up there and look at a certain place I would find some whisky; it was 41 steps from the house. There we found two pints of whisky, covered over with leaves and brush.”

Over appellant’s objections, this witness and three others were permitted to testify that they knew the general reputation of the Lumpkins place as being a place where intoxicating liquor is sold, and that reputation was bad.

Mrs. Lumpkins, wife of the defendant, testified that she was charged with her husband of this offense, and the county attorney dismissed the case as to her; that she went to drive the cow to pasture, and when she returned the officers told her that they found two pints of whisky beyond the potato patch; that she did not know anything about it.

Appellant took the stand and testified that his home and blacksmith shop belongs to Mr. Usher; that his shop is five-eighths of a mile east of Atoka; that sheriff Ray stopped at his shop, and said he wanted to look the place over, and he thought he meant the shop; the officers went on to the house and then went to the thicket and came back and told him they found two pint bottles of whisky, and told him where they found it; that it is 92 steps by actual measurement from his house to the place where they said they found the whisky; that he did not know who placed it there; and that it was not his whisky.

The court instructed the jury in part as follows:

“You are further instructed that, in determining the intent or the purpose for which this defendant had such intoxicating liquor, you may take into consideration the reputation of the defendant or his place of business as to it being a place where intoxicating liquors can be obtained.”

Counsel for appellant insist that the court erred in permitting the state to oifer evidence as to the reputation of the defendant’s home, and in instructing the jury that they might “take into consideration the reputation of the defendant,” and that the court erred in overruling defendant’s motion for a directed verdict.

This court has repeatedly held that evidence of the general reputation of defendant’s home as being a place where intoxicating liquors are sold is admissible only upon the laying of the proper predicate, showing that his home was a place of general resort. Lotta v. State, 30 Okla. Cr. 105, 235 P. 245; Yakum v. State, 30 Okla. Cr. 184, 235 P. 253; Mockabee v. State, 28 Okla. Cr. 167, 229 P. 1094; Welch v. State, 35 Okla. Cr. 2, 246 P. 1113.

It is also held by repeated decisions of this court that the jury has no right to consider the reputation of the defendant unless it is put in issue. Kirk v. State, 11 Okla. Cr. 203, 145 P. 307; Upton v. State, 12 Okla. Cr. 593, 160 P. 1134; Lunceford v. State, 28 Okla. Cr. 120, 229 P. 304; Lindsey v. State, 31 Okla. Cr. 406, 239 P. 684; Pitcher v. State, 32 Okla. Cr. 332, 241 P. 199.

It would serve no useful purpose to consider the remaining assignments. On the record before us, we are convinced that this defendant did not have a fair and impartial trial, and, for the reasons stated, the judgment appealed from is reversed.

EDWARDS and DAVENPORT, JJ., concur.


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    ELIZABETH JOHNSON et al. v. STATE.
    No. A-5993.
    Opinion Filed March 12, 1927.
    (253 Pac. 1033.)
    J. C. Johnson and A. M. Fowler, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiffs in error, herein-

after called the defendants, in their petition assign seven errors. The brief by counsel for the defendants urges only the first and second assignment of errors, which go to the trial court refusing to advise the jury to return a verdict of not guilty, and that the verdict and judgment is not sustained by sufficient evidencé, and is therefore contrary to law.

The charging part of the information on which the defendants were tried is as follows:

"That Elizabeth Johnson and Will Douglas did, in Seminole county, and in the state of Oklahoma, on or about the 11th day of September, 1925, commit the crime of unlawful possession of intoxicating liquors in the manner and form as follows, that is to say: That at and in the county of Seminole, and the state of Oklahoma, and on the day and date aforesaid, the said Elizabeth Johnson, and Will Douglas, did unlawfully, wilfully, and intentionally have in their possession on the premises and at their home about twelve gallons of Choctaw beer, the same containing more than one-half of 1 per cent, alcohol measured by volume and capable and susceptible as being used as a beverage, with the willful and unlawful intent of them the said Elizabeth Johnson and Will Douglas to barter, sell, give away, or otherwise dispose of the same in violation of the prohibitory laws of the state, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

The proof on behalf of the state is, in substance, as follows: John Poe, being called as a witness, stated:

“I am a deputy sheriff of Seminole county, have been since January of this year. I know the defendants Elizabeth Johnson and Will Douglas; they lived in and near what is known as the colored colony of Cromwell. I went to the home of these defendants on or about the 11th day of January, this year, and searched the place. I did not have a search warrant, nor did I search the home. I searched about the place and found about 12 gallons of Choctaw beer in, a barrel about 12 feet from the house. It was buried about 1% feet from the surface of the ground, and it looked like where they had been washing. It looked like it had been there two or three months, maybe longer. There was nobody in the house at the time I made the search, and Elizabeth Johnson was in a tent, and there were some colored boys around the barbecue stand, and another woman and defendant Will Douglas was also there, I had a conversation with Eliza Johnson. She said she did not know anything about the beer; that there was another family there, but she did not know their name. The reason she did not know their name was she had been away to Oklahoma City and had just returned. I examined the beer, and it was intoxicating'.”

At the close of the state’s testimony the defendants interposed a request to the court to advise the jury to return a verdict in favor of the defendants on the ground that the officer did not have a search warrant as required by law, and for the further reason they failed to show these defendants were in anyway connected with the Choctaw beer; which request and motion was by the court overruled and defendants reserved their exceptions. Both the defendants took the stand in their own behalf and stated positively that they knew nothing about the Choctaw beer, had nothing to do with it, and did not know who buried the beer where the officers claim to have found it.

We have carefully examined the record and proof offered on behalf of the state. There is no positive proof connecting either of the defendants with the Choctaw beer alleged to have been found by the sheriff, and the state wholly failed to prove the allegations in the information; there being no proof that the Choctaw beer contained more than one-half of 1 per cent, alcohol measured by volume, and capable of being used a$ a beverage. The motion and request of the defendants for an instructed verdict was well taken, and should have been sustained.

There being no competent proof to sustain the verdict and judgment, the case is reversed and remanded.

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


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    LEON RODGERS v. STATE.
    No. A-5750.
    Opinion Filed March 12, 1927.
    (253 Pac. 115.)
    Rummons & Hughes, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty, Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was charged by information in the county court of Kiowa county, Okla., with the crime of transporting intoxicating liquor, to wit, one quart of whisky, from one place in Kiowa county to another place in said county and state; namely, to a point about one-fourth of a mile north of the Ozark trail, on the section line running north and south, one mile east of Hobart, Okla.

He was tried and convicted and sentenced to serve a term of 90 days in jail and pay a fine of $500. To reverse the judgment he has appealed to this court, and has assigned six errors committed by the court in the trial of the case.

From an examination of the record the only error assigned by the defendant that we deem necessary to consider is 3, which is as follows:

“(3) The said court erred in overruling the motion of the plaintiff in error to direct a verdict of not guilty, to which ruling the plaintiff in error duly excepted at the time.”

The third error assigned raises the question of the sufficiency of the evidence of the state to sustain the verdict and judgment.

The facts in this case, as disclosed by the record, are that on the evening in question the defendant and a young lady were out driving and stopped the car on the road and were sitting in the car when the state’s witnesses Walter Carter and Clyde Olney came along. Walter Carter testified, in substance, that he lived at Hobart, Okla., January, 1923; that he was a constable at that time; that he was acquainted with the defendant; that he saw the defendant on or about he 14th day of January, 1923, out on the section line east of the cemetery, sitting in a car with a young lady.

“We drove up to the car and saw some one in the car; it was so dark we could not see anything else in the. car. We stopped our car, and got out, and came up to the car that the defendant and the young lady was, in.”

Over the defendant’s objection, witness was permitted to testify that he and Clyde Olney walked up to the car and flashed their flash light in the car, and that they searched the car and found some whisky in the car.

“The only car we saw out on the road was the car the defendant and the lady were in. We found one quart of whisky in the car. We did not see the car move while we were watching it.”

Clyde Olney was called and testified that, in company with Walter Carter, on the 14th day of January, 1923:

“We found a car out there on the section line east and a little south of the line running north of the cemetery, and Mr. Rodgers and a young lady were in the car, and this quart of whisky.”

Objection was interposed by the defendant’s counsel to the testimony of Mr. Olney as to the whisky on the same ground that was interposed to the evidence of Walter Carter. Olney further testified that they had no search warrant, or warrant for the arrest of Mr. Rodgers or the lady that was with him, or to search the car.

“We did not see any whisky or anything in the car excepting the parties until we had gotten out of our car and turned the flash lights in the car. I flashed the light on to see who was in the car; they were sitting in the back seat. Mr. Carter also flashed his light into the car. The gentleman asked us to turn off the lights, please, or something to that effect. Mr. Carter got hold of the whisky in the car, and the gentleman took it away from him and threw it on the east side of the car. The car was standing still when we first saw it, and had not moved when the whisky was found in the car. We could not see anything in the car but the parties until we went up to the car and flashed our lights in the car.”

The defendant, at the close of the state’s testimony, interposed a motion and demurrer to the same, for the reason that the evidence offered by the state was obtained by means of an unlawful search and seizure and without a warrant and was inadmissible, which motion and demurrer were overruled by the court and defendant duly excepted.

The defendant called several witnesses to testify in his behalf and the defendant also testified as to what had taken place, and that he had not moved the car from where it was standing when the whisky was put into it.

The state offered no testimony other than the testimony of the witnesses Carter and Olney, which testimony was procured by a search of defendant’s car without a search warrant and was inadmissible. The objection of the defendant to the admission of the testimony of Carter and Olney on the ground that they had procured the evidence unlawfully was well taken. Gore v. State, 24 Okla. Cr. 394, 218 P. 545; Foley v. State, 25 Okla. Cr. 112, 219 P. 179; Dooley v. State, 25 Okla. Cr. 437, 221 P. 112; Stogsdill v. State, 36 Okla. Cr. 194, 253 P. 309; Jones v. State, 36 Okla. Cr. 180, 253 P. 310.

There being no evidence to support the verdict and judgment without the use of the evidence which was unlawfully obtained, the conviction of the defendant must be reversed.

Judgment reversed and remanded, with directions to discharge the defendant.

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


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    SYLVIA BOSWELL v. STATE.
    No. A-5578.
    Opionion Filed March 12, 1927.
    (254 Pac. 116.)

      Wright & Gill, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, Sylvia Boswell, hereinafter called defendant, was informed against in the county court of Oklahoma county, charged with the crime of illegal possession of intoxicating liquor with unlawful, willful and wrongful intent on the part of the defendant to unlawfully, willfully, and wrongfully barter, sell, give away, and otherwise furnish the same to divers persons unknown, contrary to the form of the statute in such cases made and provided. To this information the defendant entered her plea of not guilty and filed her motion to suppress the evidence of the state for the reason that the search of her home, where she and her family resided, was made without a valid and legal search warrant. The motion to suppress the testimony was by the court overruled and the trial ordered to proceed.

The substance of the testimony introduced is that Red Robinson claims' to have procured a search warrant from Police Judge 0> P. Estes, upon application made by Robinson to search the home of the defendant, which was a five-room house located at 17 West Eighth street, Oklahoma City, Okla., which was occupied by the defendant, her husband, and children. Red Robinson, Claude Tyler, and W. B. Brown claim to have gone to the home and, acting under the authority of the search warrant, claim to have searched the house of the defendant and found therein a small quantity of whisky, between a half gallon and a gallon. The warrant was not introduced in evidence; the only statement we have of the warrant is the testimony of Red Robinson and Claude Tyler, who testified in substance to the same fact's as Red Robinson.

There was no testimony introduced by the state except the testimony procured by the witnesses Robinson and Tyler, under and by means of a search warrant claimed by the witnesses to have been issued by a police judge of Oklahoma City, Okla.

The defendant demurred to the evidence of the state on the ground that said evidence is wholly insufficient to prove or establish the crime charged against this defendant, and for the further reason that the evidence introduced was illegally and unlawfully obtained from the private residence of the defendant, Sylvia Boswell, used by her and members of her family as such, and no part of which was used as a hotel, boarding house, shop, place of public resort, place of storage, or place of public resort, and that all of such residence was used as a private home; that all of such evidence was obtained in violation of the constitutional rights of this defendant.

The demurrer of the defendant was overruled by the court and exceptions duly saved. The jury returned a verdict of conviction. A motion for a new trial was filed by the defendant and overruled. The court imposed a sentence upon the defendant in accordance with the verdict of the jury, fixing her punishment at a fine of $50 and confinement in the county jail for a period of 30 days. To reverse the verdict and judgment the defendant has appealed to this court.

The defendant has assigned ten errors alleged to have been committed by the court in the trial of the case. The view we take in this case on the record, it is not deemed necessary to consider any of the assignment of errors except the second, which is as follows:

“Error of the trial court in overruling objection of the plaintiff in error to the introduction of certain testimony obtained unlawfully, in violation of the said plaintiff in error’s constitutional and statutory right, to which ruling of the court the defendant at the time duly excepted, and exceptions were allowed by the court.”

Section 7013, Comp. Stat. of 1921, provides as follows:

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

It is admitted that if there was a search warrant it was issued by the police judge of Oklahoma City. The defendant argues that the search warrant was issued by an officer having no authority to issue a search warrant under the provisions of the Enforcement Act. This contention is well taken. Under the Enforcement Act (section 7009, Comp. St. 1921).

“The authority to issue search warrants is specifically delegated to judges of the courts of record and justices of the peace. A police judge is without authority to issue a warrant for search in connection with the violation of the liquor laws.”

If it be true that said witnesses had a search warrant issued by a police judge of Oklahoma City, it was a nullity, and a search predicated upon the authority of such a warrant was illegal. Reinhart et al. v. State, 32 Okla. Cr. 109, 240 P. 1’9; Terry et al. v. State, 31 Okla. Cr. 91, 237 P. 465; Hallmark v. State, 36 Okla. Cr. 236, 253 P. 513.

We hold that the search warrant in this case was invalid and that the testimony procured by it was unlawfully procured, and was inadmissible; that the demurrer of the defendant to the testimony of the state, on the ground that it was procured by an illegal search warrant was well taken and should have been sustained and the jury advised to return a verdict of acquittal.

There being no testimony in the record other than the testimony procured illegally, the case is reversed and remanded.

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


text:
    LUTHER SIMMONS v. STATE.
    No. A-5705.
    Opinion Filed March 12, 1927.
    (253 Pac. 1032.)
    McLendon & McLendon and Wm. A. Tidwell, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

Appellant, Luther Simmons, was convicted on a charge of unlawful possession of intoxicating liquors, and, in pursuance of the verdict, was sentenced to pay a fine of $100, and be imprisoned in the county jail for 30 days. From the judgment an appeal was duly perfected. Pending the determination of said appeal, suggestion of the death of appellant has been made by his counsel of record.

In a criminal action, the purpose of the proceedings being to punish the defendant in person, the action must necessarily abate upon his death.

It is therefore considered and adjudged that the proceedings in the above-entitled cause, and especially under the judgment therein rendered, do abate. It is so ordered, and the cause remanded to the county court of McCurtain county, with direction to enter its appropriate order to that effect.

EDWARDS and DAVENPORT, JJ., concur.


text:
    R. WILLIFORD v. STATE.
    No. A-5788.
    Opinion Filed March 12, 1927.
    (253 Pac. 1035.)
    B. C. Wieck and Roy W. Cox, for plaintiff in error.

      Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of the crime of assault with a dangerous weapon, and was sentenced to imprisonment in the penitentiary for a period of two years. To reverse the judgment he appealed to this court.

In substance, the facts are as follows: The defendant was drunk on the streets of Tonkawa the evening of the trouble. State’s witness Raymond Williams, commonly known as Speck Williams, requested the defendant to go home. The defendant went away, and shortly thereafter was seen on the street by the officer. The said Raymond Williams, being called as a witness by the state, testified that he drove up, and Mr. Williford raised his gun, and said, “Get out,” calling witness a vile name. “I said, ‘All right;, just wait a minute; I want to talk with you;’ and started walking toward him. Mr. Bilbry got out of my car on the right side near the defendant. I hesitated, and stood still. Williford took his eyes off of me—looking this way.—and said something. I don’t know who he was talking to— he turned this way. I grabbed the gun and threw it off, and the gun was discharged while we were scuffling over the possession of it. I have known the defendant for about 18 months. We were good friends. The defendant has always borne a good reputation. The defendant was drunk that night. I had never heard of him being arrested for anything before.”

Mr. Bilbry said, in substance, that he and Williams drove to a filling station, and saw the defendant with a gun in his hand; that the defendant asked Williams to get out of the ear and put his hands up. Williams did so, and started walking toward the defendant. Witness also got out of the car, and when witness was in a few feet from the defendant, he said, “Stand there and watch that bird.” The witness Williams grabbed Williford’s gun, and a scuffle ensued, during which time the gun was discharged. “While they were scuffling, I began to hit Williford, and knocked him loose from the gun he had in his hand.” The doctor who treated Williams stated that he was shot once in the hip and recovered in a few days.

This, in substance, is all the testimony on behalf of the state. The defendant took the stand in his own behalf, and testified as to where he was reared; that he knew the witness Williams; was a good friend of Williams; that he had lost much sleep; had bought some whisky at Three Sands that seemed to be drugged; that he was not a drinking man, and was never arrested before; that he was so drunk he did not realize what was going on; that he had no intention of shooting Williams or anybody else.

Lee Wright was called as a witness for the defendant, and testified: That he never saw the defendant drunk, but knew something was wrong with him, and asked him to go into the office and sit down. That Speck Williams and Bilbry came up in a car. Williford told Williams to get out, and started toward Williams. The other man got out of the car too. That Williford took his eyes off of Speck Williams to look at Bilbry, and Williams grabbed hold of Williford’s pistol, and the other man commenced striking Williford over the head, during which time the gun was pulled off. That Williford pulled a gun as he went after Speck Williams. That witness Bilbry had hit Williford about three times before the gun went off.

The defendant has assigned nine errors alleged to have been committed by the court in this case. The only error assigned by the defendant that we deem neccessary to consider is assignment 5, which is as follows:

“(6) That the verdict is not supported by the evidence.”

The defendant confines his argument to the question as to the sufficiency of the evidence to sustain the verdict, and strongly urges that the evidence is wholly insufficient. A careful examination of the record discloses the fact that there- is no conflict in the testimony. The record further discloses that the instructions of the court were fair and correctly stated the law. We cannot agree with the defendant’s contention. The question of the sufficiency of the evidence is a question exclusively for the determination of the jury, and this court will not substitute its judgment for that of a jury, provided there is competent and credible evidence in the record which would cause the jury to conclude that the defendant is guilty as charged in the verdict. We find no prejudicial error in the record. This seems to be an unfortunate affair where one friend has trouble with his friend while under the influence of intoxicating liquor. The record discloses that the defendant and prosecuting witness were friends, and had been for some time, and at the time of the trial no malice or hatred existed between them; that the defendant is a young man, and prior to this alleged difficulty had borne a good reputation for peace and as a law-abiding citizen; had never been in any trouble before, nor even charged or suspicioned of criminal conduct prior to the trial of this case.

From the record in this case the assault was without apparent provocation, and is a case deserving of considerable punishment. However, we believe this is not a case where the defendant should be subjected to the odium which will necessarily follow from his incarceration in the penitentiary. We believe that the ends of justice will be best subserved by a modification of the judgment to provide imprisonment in the county jail of Kay county for a period of six months, and, as so modified, the judgment is affirmed.

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


text:
    T. A. WOODWARD v. STATE.
    No. A-5985.
    Opinion Filed March 12, 1927.
    (253 Pac. 1034.)
    O. F. Renegar, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

Appellant, T. A. Woodward, was convicted on a charge that he did have in his possession seven pints of whisky with the unlawful intent to violate the prohibition laws, and in accordance with the verdict of the jury he was sentenced to be confined for 30 days in the county jail and to pay a fine of $300. From such conviction and sentence he appeals and assigns as error the insufficiency of the evidence to sustain the verdict, and that the court erred in admitting incompetent testimony.

The evidence shows that two deputy sheriffs, in executing a search warrant, searched appellant’s blacksmith shop and residence in the town of Sentinel, finding seven pints of whisky in the blacksmith shop and a pint of whisky in the house.

As a witness in his own behalf, the defendant testified that he did not know anything about this whisky being in his blacksmith shop; that his two sons and Mr. Bellah worked in the shop with him.

W. H. Bellah testified that while he was working at the shop while Mr. Woodward was absent that morning a fellow left the whisky there, hiding it in different places, and that he bought a pint and told the fellow to get out of there before Mr. Woodward came.

An examination of the record convinces us that appellant was accorded a fair trial, and that the evidence is sufficient to sustain the verdict and judgment.

There being no reversible error in the record, the judgment of the lower court is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    ELMER WOODWARD v. STATE.
    No. A-5984.
    Opinion Filed March 12, 1927.
    (253 Pac. 1025.)

      O. F. Renegar, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

The information in this case charged that Elmer Woodward and Clyde Woodward, in Washita county, on the 27th day of February, 1925, did have in their possession eight gallons of whisky with the unlawful intent to violate the prohibition laws. A severance was granted, and, upon his separate trial, the defendant, Elmer Woodward, was found guilty, the jury fixing the punishment at a fine of $100 and imprisonment for 60 days. From the judgment rendered on the verdict, he appeals.

Bill Hopkins, deputy sheriff, testified:

“I was coming out of Sentinel, going home, met the defendants, in a car on the road. The car was broke down, the radius rods were down, and the casings off the front wheels. I stopped and asked them what was the matter. Elmer said, ‘Just had a casing off.’ I noticed a box between the seats and three half-gallon fruit jars in the front seat. I had my wife with me, and I drove over to John Browns, and there phoned John Ramsey, deputy sheriff, to come west from Sentinel and stop these boys if he met them. We both met at their car and arrested them, then searched the car, and found four half gallons on the front seat and twelve half gallons in the car between the seats.”

John Ramsey testified:

“I drove up in my car, and Elmer asked me if I would pull them into town; I said ‘No; I guess I will have to arrest you boys .on, the information I got from Mr. Hopkins.’ I saw one half-gallon jar in the front seat that they had failed to cover with the lap robe; we found four half-gallon jars of whisky in the front seat and twelve half-gallon jars of whisky between the seats.”

The jars containing the whisky were identified and introduced in evidence.

The defendant, Elmer Woodward, took the stand in his own behalf, and testified that his brother, Clyde, drove to Elk City that day in a Ford touring car, and there he gave him $80 and asked him to give it to a man that had placed eight gallons of whisky in his car; that the man would not accept the money from his brother Clyde because he was a minor; then Clyde left and he gave the man the $80; the man left and Clyde came back and was driving to Sentinel when the car broke down; Mr. Hopkins passed and spoke to them, and shortly after Mr. Ramsey arrested them.

No brief has been filed, nor appearance made in behalf of appellant in this court. There is nothing in the record to justify us in disturbing the verdict of the jury, and the judgment appealed from is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    DAN MILLER v. STATE.
    No. A-5811.
    Opinion Filed March 12, 1927.
    (253 Pac. 1039.)
    Thomas Norman, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

On information charging that in Carter county on the 10th day of February, 1925, Dan Miller did have in his possession two gallons of wine, with the unlawful intent to sell the same, he was tried and convicted, and in accordance with the verdict of the jury was sentenced to pay a fine of $50 and be confined in the county jail for 30 days. To reverse the judgment he appeals.

The following brief statement of the facts will be sufficient to make clear the contentions made:

Appellant, with his family, lived on a lot 100 by 150 feet, fenced with chicken wire, on the main traveled road between Ardmore and the industrial addition. The sheriff and one of his deputies searched the premises, but failed to find any intoxicating liquor. Across the road in the brush, about 100 yards from appellant’s house, they found a water bottle with about two gallons of wine in it. It also appeared that there were several small houses east and west of appellant’s home along this main road. One of the state’s witnesses described the location of the other houses in that vicinity, and says that the wine was found about 150 yards from them.

The sheriff and his deputy, against the defendant’s objections, were permitted to testify that they were acquainted with the reputation of the place where the defendant lives as being a place where intoxicating liquor is sold, and that reputation was bad.

At the close of the state’s case the defendant demurred to the evidence and moved for a directed verdict.

This court has repeatedly held that, before evidence of the general reputation of a place may be received as evidence in a case of unlawful possession, it must be shown that the place itself was a place of public resort, not merely that it bore such reputation. Ward v. State, 15 Okla. Cr. 150, 175 P. 557; Mockabee v. State, 28 Okla. Cr. 167, 229 P. 1094; Yakum v. State, 30 Okla. Cr. 184, 235 P. 253; Welch v. State, 35 Okla. Cr. 2, 246 P. 1113.

The insufficiency of the evidence to support the verdict finding the defendant guilty of having in his possession intoxicating liquor is apparent. There was no evidence tending to prove possession by the defendant of the wine in question. He was not seen to have put it where it was found, he was not present when it was found, and no facts or circumstances were shown to prove that it had ever been in his possession.

It is a well-established principle of law that, where circumstantial evidence is relied upon for a conviction, the circumstances must be such as to exclude every other reasonable hypothesis than that of the guilt of the defendant.

From whát has been said it follows that the court erred in overruling the motion for a directed verdict of acquittal.

For the reasons stated, the judgment is reversed.

EDWARDS and DAVENPORT, JJ., concur.