text:
    H. P. STRICKLAND v. STATE
    No. A-7310.
    Opinion Filed March 22, 1930.
    (287 Pac. 822.)

      Wm. Blake and Ed Crossland, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and N. B. Johnson, Co. Atty., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter for convenience referred to as the defendant, was by information charged with the crime of murder; was tried, convicted of murder, and his punishment fixed at imprisonment for life in the state penitentiary. Motions for newi trial and in arrest of judgment were filed, considered, and overruled, exceptions saved, and the case brought to this court on appeal.

Edward H. Fish, a witness called on behalf of the state, in substance testified:

‘‘My home is at Ohetopa, Kan. On the 5th day of September, 1928, I was at my brother-in-law’s, John Griffith. near Limestone school!ouse in Rogers county, Okla. I v-ent to the home of S. T. Griffith and helped him gather so111? roasting ears. Somewhere about five o’clock in the afternoon me and Mr. S. T. Griffith and Sam Griffith left for 'Dilsa. At that time I did not personally know H. P. StricM'md. Stockland lived about two hundred yards from S. T. Griffith. When we started to Tulsa with the load of roasting ears, I was driving the truck, Mr. Griffith was sitting on the seat by my side, and Sam was sitting on the roasting ears behind me. As we came-up the road, I figured it was too rough to pass another car, and I stopped to give the man approaching me plenty of room to pass. The car stopped on the west side of my truck about three feet from it. When the defendant drove up to my truck he opened the door of his car and jumped out as quickly as he could, and seemed to be very nervous. He reached back in his car; he was shaking. Nobody said a word. Nothing was said or done when he reached into» the car with his hand. Mr. Griffith was sitting on the truck by the side of me. He got off and went around the front end of the truck. When Mr. Griffith got around in front of the truck, I noticed Mr. Strickland reach in his pocket and get out a pocketknife and started striking toward Griffith. As near as I could tell, the knife was closed. Strickland and Griffith met in front of the truck. The truck was about three feet from the east line of the fence. Strickland and Griffith scuffled around the truck to get over to the east side, Mr. Griffith kinder grabbed Mr. Strickland by the arms and bent him down over the fence and held both wrists and asked me to get over the fence and take the knife out of his hand. I got over the fence and reached down that way (indicating), and I seen the knife was shut. Mr. Strickland says, ‘Boys, don’t hurt me,’ and I told Mr. Strickland I would not hurt him for anything in the world; ‘Now you feffows don’t have any more trouble.’ Strickland started around the car and put his knife up, and I supposed was going to get in his car; he Avalked around the car, and the next thing I saw Avas him pulling his uun out of the car; that is, have it by the stock. Mr. Griffith started to run and holloAved, ‘Oh, boys, don’t let him shoot me.’ I was on the east side of the truck and saAV Mr. Strickland put the gun un that way (indicating) and shoot, the shot hit Mr. Griffith in the back; Strickland was about thirty or forty feet from the deceased at the time he fired the shot, when he Avas shot he just wheeled and said. ‘Oh my God- you have killed me; don’t shoot any more.’ He went Avobbling on up the road a little ways and went down on Ms knees; he probably walked ten steps. I ducked behind the truck and stood there against the hind wheel and looked through under the truck. As near as I could tell, Mr. Strickland either reloaded his gun or done something to it, then got in his car and drove on down the road. As he drove away 1 went on around the truck, keeping it between me and him. He did not stay at the scene of the difficulty more than a minute after he fired the shot. The girl got out and walked on down the road; I mean Strickland’s daughter-in-law, who was the daughter of the deceased; the daughter of the defendant was just standing there looking on when I first noticed her.”

Considerable testimony was then taken as to how long the injured party lived, and what was done with reference to his remains. On cross-examination witness denied the deceased made any motion to the defendant to stop his car as he came up to the truck.

“My intention was as quickly as the defendant got by I would get out and crank my car and go on. The deceased was thirty or forty feet away from the defendant at the time the shot was fired. I never did leave my car during the trouble; I saw Sam Griffith running up the road.”

Then follows several pages of the record on the cross-examination and redirect examination of the witness as to where he was at the time of the shooting and where Sam Griffith was.

Sam Griffith was then called as a witness for the state, and in substance stated he was a nephew of the deceased, and was with Ed Fish and his uncle at the time of the trouble.

“We stopped the truck to let Mr. Strickland by; we did not do anything, we just pulled to the east side of the road and stopped. Mr. Strickland drove up even with our car, and got out of his car. He Avas trembling and reached right up in his car for his gun. No one in our car did anything, nor did any one say anything. Mr. Strickland got out; Virene.got right out of the car and went doAvn the road south; Mr. Strickland did not say anything Avhen he got out of the car; he walked around in front of the truck. When Mr. Strickland got out of the car, Mr. Griffith got off of the truck and walked around toAvard the front of the truck. Mr. Strickland took his knife out of his pocket, it looked like a red knife. When Mr. Strickland started around the car, Mr. Griffith clinched him and held him there, and told my uncle to take his knife away from him. The defendant put his knife back in his pocket and walked around the front of the truck. When Mr. Strickland went to bring his gun out of the car I ran doAvn north taking the section line, and then crossed over the fence after the shot was fifed. Mr. Griffith Avas about forty feet behind me when the shot was fired; I got shot, one shot went into the flesh of my leg, and the other one went in there (iiidicating). I turned and looked back just as the shot was fired. The reason I turned was to see whether or not he was going to shoot. I came back after the shot was fired.”

Witness was further examined and cross-examined as to his knowledge of what took place between the deceased and the defendant prior to the shooting, and what he was doing at the time the shot was fired.

The wife of the defendant was called as a witness, and testified to a remark she had heard made either by the defendant or his son as they were driving from defendant’s home by the home of the deceased, in a car a short while after the shooting, the statement being “that you would not be bothered with the son of a bitch any more,” the state contending the statement related to the deceased. This is in substance the testimony of the state.

The testimony on behalf of the defendant tends to show that he and the deceased had been on friendly terms, and Avere living near each other; that a son of the defendant had married a daughter of the deceased; that the son of the defendant and the deceased had had some conversation with reference to the son’s hogs eating up some corn belonging to the deceased, in which the son said that his father said it did not make any difference if the hogs ate all the corn, as the deceased had gathered his part of the crop. The record shows this conversation was not communicated to the deceased.

The defendant’s testimony shows that, before the trouble started, the defendant drove up to the truck in which the deceased was riding, and some one waved him to stop, that he thought there was some car trouble, and stopped his car and got out and went around to where the deceased was, and a fight or struggle began. The defendant’s testimony tends to show that the deceased, Avhen he came around the truck, had a knife in one hand and a rock or something else in the other; and that the daughter-in-laAV of the defendant, when the car stopped, got out of the car and went on up the road. The daughter of the defendant remained at the car. The deceased got the defendant down in some way and was holding him down, and the daughter of the defendant interfered, and, when she did that, the deceased applied an epithet to her, calling her a slut, and said he would knock her head off or do her some injury, the exact language not being given definitely, and turned his attention from the defendant and started to strike the daughter, and she started to get out of his Avay. The defendant says the deceased was pursuing his daughter, and, in order to protect his daughter, he secured a gun from the car and fired the shot that took the life of the deceased; that when he fired the shot lie believed it was necessary to protect his daughter from receiving great bodily harm at the hands of the deceased; that the deceased was pursuing his daughter in a threatening manner at the time. The testimony of the defendant is in substance corroborated by the daughter of the defendant. There is a great volume of testimony as to minor details relating to the two families and as to what took place prior to, and just after, the shooting. The defendant admits he fired the shot, and in detail tells the circumstances of what happened at the time he shot, claiming justification in firing the shot in order to protect his daughter. The testimony shows that, when the defendant got out of his car before the shooting, the deceased got off the truck and walked around to the front of the truck and went into a clinch, no words passed between the parties that any one heard, and the only reason found in the record that tends to offer a motive for the trouble between the deceased and the defendant is the conversation the deceased and the son of the defendant had a day or two before the killing regarding the hogs, and what the son told the deceased his father said about the corn.

There is very little conflict in the testimony between the state’s witnesses and defendant’s witnesses as to the facts which led up to the starting of the difficulty. The conflict of the testimony as disclosed by the record begins after the separation of the deceased and the defendant, when it is admitted by all the testimony that the deceased had the defendant down, and the state witnesses contend that Ed Fish assisted in the separation, and defendant’s witnesses contend that the daughter of the defendant by her actions caused the deceased to quit his struggle with the defendant and turn to her.

This is all the testimony that is deemed necessary to set out for the purpose of an opinion in this case.

The defendant has assigned thirty-nine errors alleged to have been committed by the court in the trial of his case. Counsel for the defendant in the brief divides the assignments of error into five questions. We will first consider the second question presented in the brief of the defendant, which is the refusal of the trial court to direct a verdict of not guilty of murder.

The question of the degree of crime is for the .jury. Section 2739, Comp. St. Okla. 1921. Under the provisions of section 1735, Comp. St. Okla. 1921, “a design to effect death sufficient to constitute murder may be formed instantly before committing the act by which it is carried into execution.”

If under the testimony in this case the jury found the shooting was unlawful and not in necessary self-defense, it would still be the duty of the jury, under the .statute, to determine the degree of the homicide of which.the defendant was guilty,, either murder or manslaughter in the first degree, and the question as to whether or not a design to effect death was formed instantly before the act of killing, or whether the killing was upon a sudden provocation and Avithout previous design to effect death, was in the exclusive province of the jury to say. The court did not err in overruling the motion of the defendant for a directed verdict of not guilty of the crime of murder.

The third question presented by the defendant is the action of the trial court wherein the defendant claims the court admitted incompetent, irrelevant, and immaterial evidence which materially prejudiced his substantial rights. The testimony complained of by the defendant is the testimony of the wife of the deceased and her daughter, who testify that, when the defendant and Merll Strickland -were leaving the defendant’s home, after the defendant had arrived with Johnie and Virene Strickland, they heard somebody in the car say, “You will not be bothered by the son of a.bitch any more.” It is urged by the defendant that the admission of this testimony was prejudicial to the rights of the defendant, as neither of the witnesses could testify ■ as to whether it was the defendant made the remark or Merll Strickland. The remark would indicate that whoever made the remark made it to some one who had been bothered by the deceased. This record does not show that any one had had any trouble with the deceased except the trouble Merll Strickland had with reference to his hogs eating up the corn of the deceased.

The father and son were in the car together, and, his son being the only one that had had trouble with the deceased, it would seem there could be no reasonable question but that this statement was made by the father, the dedefendant in this case, to his son Merll Strickland. As there were a number of eyewitnesses to the difficulty between the deceased and the defendant, and this conversation was held after the killing, we do not think the admission of the testimony in any way whatever prejudiced the rights of the defendant.

■ The fourth question presented by the defendant is| error of the court in giving certain prejudicial and erroneous instructions to the jury; the defendant points out that in instruction No. 5 the court used the word “affect” death instead of the word “effect” death, and discussed at some length the meaning of the two words. We do not think the use of the word complained of in any way. whatever misled the jury, as the jury in all probability did not notice the difference in the pronunciation or the spelling of the word “affect” and “effect.”

The defendant further complains of all the other instructions given by the court, and insists that they did not sufficiently cover the facts in this case, and especially does he complain of instruction No. 18. From an examination of the record we fail to find where the defendant submitted any special instructions with a request to the court to give them, covering his theory of his defense. He seems to have relied upon the instructions given by the court and his exceptions to the same. From a careful /examination of the instructions given by the court, and considering them in their entirety, we hold they substantially covered the law applicable to the facts in this case. Instruction No. 18, of which the defendant complains, is in substance a copy of an instruction approved by this court in Atchison v. State, 3 Okla. Cr. 295, 105 Pac. 387.

In Moore v. State, 25 Okla. Cr. 118, 218 Pac. 1102, this court in the first paragraph of the syllabus said:

“The instructions must be considered as a whole; no single instruction should be considered to the exclusion of the other instructions given. If, when considered together, the instructions correctly cover the law of the case and are not misleading, confusing, and contradictory, errors or omissions in separate instructions will not constitute reversible error.”

This court in a long line of cases has held that, where there is substantial evidence from which the jury would reasonably and logically arrive at a verdict of guilty, it would not set aside the verdict as contrary to the evidence although the testimony might be conflicting. In this case the testimony is conflicting as to what took place at the time the defendant got his gun out of his car and shot the deceased. The jury evidently believed the state’s witnesses to the exclusion of those of the defendant. Under the instructions of the court, the jury had an opportunity to find the defendant guilty of manslaughter in the first degree, but failed to do so, and found him guilty of murder without capital punishment. The jury are the sole and exclusive judges of the witnesses and the weight they will give their testimony, and the court will not disturb the verdict where there is sufficient competent testimony to submit the case to the jury. In this case the defendant was accorded a fair and impartial trial. The instructions of the court substantially covered the law as applied to the facts in this case.

Finding no errors in the record of sufficient merit to warrant a reversal, the judgment of the trial court is affirmed.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    FRANK WILLIAMS v. STATE.
    No. A-7141.
    Opinion Filed March 15, 1930.
    Rehearing Denied March 29, 1930.
    (286 Pac. 23.)
    Phillips, Boner & Phillips, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Bryan county on a charge of riot, and was sentenced to serve a term of two years in the state penitentiary.

The case was tried in February, 1828, and the appeal was lodged in this court in August, 1928. No briefs in support of the appeal have been filed, nor was any appearance for oral argument made at the time the case was submitted. Defendant was jointly charged with two others, but was tried separately. The evidence is sufficient to sustain the verdict and judgment, and discloses that at the time of the commission of the offense defendant carried a dangerous weapon, and his punishment is fixed by the third subdivision of section 2007, Comp. Stat. 1921, which provides that in such case the punishment shall be in the penitentiary not less than two-, nor more than ten, years.

An examination of. the record discloses no jurisdictional nor fundamental error.

The case is affirmed.


text:
    HERSHELL (H. O.) ESCHMAN v. STATE.
    No. A-7156.
    Opinion Filed March 15, 1930.
    Rehearing Denied March 29, 1930.
    (286 Pac. 24.)
    Mathers & Mathers, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the district court of Pottawatomie county on a charge of robbery with firearms, and was sentenced to serve a term of thirty years in the state penitentiary.

The appeal is by transcript, and was lodged in this court in August, 1928. No briefs in support of the appeal have been filed. An examination of the record discloses no- jurisdictional nor fundamental error. No- reason for a reversal is apparent.

The case is affirmed.


author: CHAPPELL, J.

text:
    FRANK BARNES v. STATE.
    No. A-6943.
    Opinion Filed March 8, 1930.
    Rehearing Denied March 29. 1930.
    (286 Pac. 21.)
    Burns McCain, Warren B. Phillips, and J. R. Huggins, for plaintiff in error.

      Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Seminole connty of the crime of manslaughter in the first degree, and his punishment fixed by a jury at imprisonment for 25 years in the state penitentiary.

The evidence of the state is that the defendant and one Wiggins had been drinking, and were on the streets of Seminole on the night and prior to the homicide; that defendant and Wiggins stopped near the Balph Owens cigar store; that Joe Chastine, Bandolph Owens, and his wife, Gladys Jones, and perhaps other people were in the Owens cigar store; that defendant and Wiggins were in front of this place using vile and indecent language; that ‘Joe Chastine, as an officer, went out to remonstrate with the defendant and Wiggins, and, after some conversation, the defendant struck the said Chastine with his fist; that Chastine took a “billy” from his person and attempted to strike defendant; that defendant immediately drew a .45 caliber pistol and shot at Chastine, the bullet passing through his coat and against his neck, and that the jar caused Chastine to fall to the sidewalk, and the bullet intended for him struck Gladys Jones and killed her. Immediately after the shooting defendant left, presumably to go* to his work in the oil fields near Seminole, and was arrested near the Bock Island Depot. At the time of his arrest, the defendant denied that he had been in any trouble or that anybody had been killed, and claimed that he was authorized by the chief of police of Seminole to carry the pistol to protect himself from highwaymen.

The defendant after his preliminary trial was released on bond, left the country, and was later found in Montana and returned for trial. He again made bond, but, when the case was called for trial, he was not present and the bond was forfeited, and within a short time thereafter the defendant was again arrested and placed in jail. The defendant admits the killing, and admitted that he had been drinking the night of the homicide, but claims that the shot was fired accidently, and that he did not intend to shoot but was using the gun for the purpose of striking Chastine to prevent Chastine from hitting him with the “billy.” All the state’s witnesses testified that he drew his gun and immediately fired at Chastine, and that he did not strike Chastine at all.

Before the jury was impaneled, the defendant' got leave of the court to withdraw his plea of not guilty, and his counsel dictated into the record the following motion to quash the information: “Comes now the defendant and moves the court to set aside the information in this case for the reason that his examining trial was had before Jessie L. Hay, a justice of the peace of this county but not of this justice of the peace district, and the said examining trial was conducted by said justice of the peace out of the district in which he was justice of the peace,” and now contends that the court erred in overruling this motion to quash. That part of section 2598, O. O. S. 1921, pertinent to the issue provides as follows:

“To enable the defendant to make proof of the matter set up as grounds for setting aside the indictment or information the defendant may file his application before any court of record in the county, setting, out and alleging that he is being proceeded against in a certain court, naming it, and setting out a copy of his motion, and alleging, all under oath, that he is acting in good faith, and praying for an order to examine witnesses in support thereof.”

In the case of. Brown v. State, 36 Okla. Cr. 293, 254 Pac. 113, this court said:

“Before a defendant is entitled to be heard in a proceeding to set aside an information, he must bring himself clearly within the provisions of the statute. A motion to set aside an information must be duly verified.”

The court in the body of the opinion said:

“The motion was not verified. It does not allege that the defendant is acting in good faith, and no proof was offered in support thereof. On the day it was filed the motion was overruled. The question argued is not presented by the record. The presumption is that a preliminary examination was duly had. It follows that the motion to quash was properly overruled.” Williams v. State, 41 Okla. Cr. 189, 270 Pac. 862; Gravitt v. State, 44 Okla. Cr. 45, 279 Pac. 968.

Defendant’s motion to quash, not being in proper form and not being verified, was insufficient to require the trial court to consider or sustain the same.

The defendant next contends that the court erred in giving instruction No. 7. It appears from the record that prior to the giving of the instructions to' the jury the court dictated the following into the record:

“Let the record show that the counsel for the defendant waives making any further suggestions, or suggesting any further instructions to the jury, and agree to the instructions submitted by the court.”

The defendant, having waived further suggestions and having waived the giving of additional instructions, and having agreed to the instructions as given by the court, will not now be heard to complain that any of said instructions do not correctly state the law, unless they are fundamentally wrong. The instructions given by the court on its own motion fairly state the law of the case.

The defendant next contends that the court ex’red in overruling his application for a continuance. The information was filed on the 11th day of April, 1927. The defendant at that time was represented by Cristwell and" Billingsley, attorneys. The cause was then continued at request of defendant for two terms. About three months before the trial it was discovered that the defendant had left the state, he was located in Montana, and brought back at an expense of about $300 to his bondsman. On the 2'2d defendant was informed by Mr. Billingsley, his attorney, that he would withdraw from the case, and on the day defendant was arraigned in open court Billingsley withdrew from the case. The defendant not being present, his bond was again forfeited and an alias warrant issued. The defendant was px’esent in court on Tuesday morning, left the court, and reappeared on Wednesday, at which time he was arraigned, was told his case was for trial, and asked if he had a lawyer. He stated he had employed James Mathers of Oklahoma City, but that Mathers could not be present until the next week. At that time the couxl told him he must arrange to have his lawyer present when the case was reached or get some other lawyer. On the day of the trial the court had the defendant brought in for the purpose of appointing counsel for him, and, when the court inquired if he wanted the court to appoint an attorney for him, he said he wanted to talk to Phillips. Thereupon the court instructed the officer having charge of him to allow him to talk to any attorney he wanted to. About ten days before this time the county attorney had notified Mr. Mathers that the case was set for arraignment on Monday the 24th, and the trial would proceed as soon as it could be reached on the docket of the court, and notifying him that no further continuances would be consented to by the county attorney. Defendant was represented in his trial by Phillips, Huggins ■ and Drake and Threadgill and Boughman.' The defendant contends that the court erred in forcing him to go to trial in the absence of his attorney, James Mathers, and because the defendant was misled and did not have time to subpoena his witnesses. This court has frequently held that absence of counsel is no ground for continuance. Coffey v. State, 38 Okla. Cr. 91, 258 Pac. 923; Waldock v. State, 42 Okla. Cr. 331, 276 Pac. 509.

The showing for continuance does not show due diligence on the part of defendant to procure the attendance of his witnesses, and was not sufficient under the law to require a continuance of the case. An application for a continuance is addressed to the sound discretion of the trial court, and, unless an abuse of this discretion is shown, a judgment will not be reversed on appeal. Davis v. State, 10 Okla. Cr. 169, 135 Pac. 438; Anderson v. State, 21 Okla. Cr. 193, 207 Pac. 977.

A careful examination of the record reveals that the defendant was in the commission of a felony at the time the shot was fired that killed Gladys Jones, that he had a fair trial, and that the evidence is sufficient to support the verdict of the jury. The errors of law complained of being without merit, the cause is affirmed.

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


author: EDWARDS, P. J. DAVENPORT, J.

text:
    DENNIS TEAGUE v. STATE.
    No. A-7043.
    Opinion Filed March 8, 1930.
    Rehearing Denied March 29, 1930.
    (286 Pac. 351.)
    Mathers & Mathers, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State,
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Dewey county of transporting liquor as a second violation of the prohibitory liquor law (Comp. St. 1921, § 6982 et seq., as amended), and was sentenced to pay a fine of $50, and to- serve five years in the state penitentiary.

The evidence both for the state and the defendant is brief; that for the state discloses that prior to the offense charged, defendant bad been charged in the county court of Ellis county with manufacturing intoxicating liquor, had pleaded guilty to such charge, and had been sentenced to a term of sixty days in the county jail and to pay a fine of $50, that the judgment was final and had been carried into execution. It also appears that at the time charged, in the instant case, a deputy sheriff from the town of Leedy, at about one a. m., observed two cars drive to a point near the gin at Leedy and heard some loud and offensive language in the nature of a quarrel or colloquy calculated to disturb the peace of the neighborhood. That he went to the place and found two men and two Avomen standing near one of the cars, and found defendant and one Dalton in the other car. He states it as his judgment that the offensive language Avas spoken by defendant, and that he sought to arrest him and got on the car. That either Dalton or defendant started the car and drove it away from the scene, and that one of them kicked a bottle and a jar out of the front of the car. That Dalton threw a bottle of whisky from- the car, and defendant attempted to pour out a pint of whisky which was in his pocket but that he prevented that and seized the whisky. Defendant testified that he and Dalton had been to a dance and had arranged to purchase some whisky to be delivered to him at town. That he drove into town and that the party, whose name he did not know, came to the car with a half-gallon of whisky. That they put it in the bottles, but had not transported it Avhen the deputy sheriff came upon the scene. He offered evidence of some other members of the party tending to corroborate his testimony. He admitted he had been convicted of a previous violation of the liquor law and also of grand larceny and served a term at the Granite Penitentiary. There is sufficient evidence to sustain the verdict of the jury, but, from the consideration of the entire record, we are convinced that the punishment assessed is excessive and the judgment should be modified by reducing the imprisonment from five years in the penitentiary to two years in the penitentiary.

As modified, the case is affirmed.

CHAPPELL, J., concurs.

DAVENPORT, J.

(dissenting). In dissenting from the opinion of the majority of the court, I deem it necessary to state that the testimony on behalf of the state shows that prior to this case defendant had been convicted or entered a plea of guilty to a violation of the prohibitory liquor laws of the state, but it does not show any positive knowledge of the witness, on behalf of the state, as to the transporting of the whisky charged in the information. The prosecuting witness testifying that the cars carné from the northwest into Leedy, and then passed out of his sight and stopped upon the street. The witness does not know whether the defendant had the pint of whisky when they drove into town, or whether he secured the whisky as testified to by the defendant and the other witnesses who were present. All the state’s witness knew, or testified to, was that the defendant had the pint of whisky in his pocket when he searched him, after approaching the defendant’s car and commanding him to consider himself under arrest.

The defendant in this case is not charged with possession of intoxicating liquor, but charged with transporting. Under our statute it is a penitentiary offense upon a second conviction for the violation of the prohibitory laws of our state and in this case the defendant was sentenced to the state penitentiary for a period of five years, and to pay a fine of fifty dollars, on a charge of transporting one pint of whisky.

It is true the prosecuting witness states that he had seen the defendant earlier in the evening at a drug store getting some empty bottles, and just prior to the taking of the defendant into custody he saw two cars drive into Leedy, passing out of sight and then stopped; that he af-terwards heard some loud talking, and claimed the parties were disturbing the peace by using profane language, and he walked up the street a distance of about two blocks to where the cars were, and there saw two girls and two men standing by the side of one of the cars, and, when he asked what was going on, one of them said* “Hell, we were rolling a cigarette.” He went on to the next car which was occupied by the defendant and a man by the name of Dalton; he told them to- consider themselves under arrest and got on the running board of the car, and some of the occupants started the car.

If the testimony of the state be true, the car had not been moved until after the witness claims he had taken them into custody and, therefore, it could not have been a voluntary transportation. Under the evidence contained in the record, I feel compelled to state that in my opinion the verdict in this case is contrary to the evidence, in view of the fact that several of the parties, who were present at the time the witness of the state came up to where the cars were stopped, testified that they had bought the whisky from a man there at the place where the cars were stopped, and had used the funnel, found in the car, to pour it into the pint bottles, and that the cars had not moved since they had procured the whisky. A mere suspicion of the officer, arresting the defendant, that they had brought the whiskey with them when they came from the west into the town of Leedy is insufficient, in my judgment, to sustain a conviction and send a man to the penitentiary for a term of five years.

•This court has repeatedly lield that it will not disturb the judgment on account of the sufficiency of the evidence when there is any competent evidence to support the judgment. It is equally well settled that it is not only the province but the duty of the court to set aside the judgment when it is contrary to the evidence,' or where there is no competent evidence to support it. In my opinion, the testimony in this case is too indefinite and uncertain to sustain the judgment and sentence, and the motion of the defendant for a new trial should have beén sustained.


text:
    Ex parte PAUL HOLMES.
    No. A-6895.
    Opinion Filed March 29, 1930.
    (287 Pac. 801.)
    T. G. Wiley, for petitioner.
    The Attorney General, for the State.
   CHAPPELL, J.

The petitioner herein entered a plea of guilty in the district court of Kay county of the crime of burglary, and was sentenced to serve a term of five years in the state penitentiary.

The record discloses that the defendant was arrested on the 20th day of July, 1927, under an order issued out of the county court of Kay county, charged -with the crime of burglary. Attached to petitioner’s application for the writ is a certified copy of the journal entry of judgment and sentence on defendant’s plea of guilty, which journal entry recites that on the 26th day of July, 1927, defendant was arraigned in the district court of Kay county and entered his plea of guilty to the charge of burglary, and thereupon and on the same day the court sentenced him. to imprisonment for five years in the penitentiary at Mc-Alester. There is also attached to petitioner’s application a certified copy of the minutes of the court clerk of Kay county which recites that on the 26th day of July, 1927, No. 1963, State of Oklahoma v. Paul Holmes and Paul Denton et al., “Defendants arraigned and plead guilty, Ent Judg. Defendants guilty and confined state penitentiary for .five years from date of delivery.” The clerk further certifies that that is the only minutes of any proceedings had in said court on the 26th day of July, 1927. Petitioner also attached a copy of the information filed against him in the district court of Kay county, which information charges the crime of burglary, and was sworn to and filed in said court on the 28th day of July, 1927.

Petitioner filed his application for writ of habeas corpus in the district court of Pittsburg county, and the same came on t® be heard on the 18th day of October, 1927, at which time the court on its own motion, as shown by a copy of the order, made and entered , by the court in said case, continued the hearing in said case for ten days, to permit the state to malee application to the district court of Kay county for a nunc pro tunc order correcting the records in said case to' make them speak the truth. And thereafter, and on the 26th day of October, 1.927, petitioner filed his motion to dismiss his application. Thereafter the state of Oklahoma, by Roy R. Carver, county attorney, filed an application in' the district court of Kay county for a nunc pro tunc order to correct the records in said cause, alleging that, whereas the journal entry of judgment and minutes of the court showed that petitioner pleaded guilty on the 26th day of July, 1927, and was sentenced to be imprisoned for five years in the state penitentiary at Mc-Alester, in truth and in fact the said plea of guilty was entered on the 28th day of July, 1927, and judgment entered thereon by the court on said day. On the 20th day of October, 1927, honorable Claude Duvall, judge of the district court of Kay county, made an order setting said application for said nunc pro tunc order for hearing on the 26th day of October, 1927. On the 27th day of October, 1927, at a regular day of the September, 1927, term of said court, the application for the nunc pro tunc order was presented and heard in open court. The court, having heard the evidence, found that the journal entry of judgment and the minutes of the court clerk showing same to have been made on the 26th day of July, 1927, was a clerical error, and further finding that the plea, of the defendant, the judgment of the court, and the minutes of the court clerk Avere actually made and entered on the 28th day of July, 1927, and thereupon said court ordered the journal entry of judgment and the court clerk’s minutes corrected to read the 28th day of July, 1927, instead of the 26th day of July, 1927 — all of which appears from the certified copies of the petition for nunc pro tunc order, the order, and journal of the clerk of the court of Kay county, which are attached to, and made part of, petitioner’s application in this case.

The failure of the clerk or recording officer to make a correct record does not vitiate the proceedings in a court record. Such records may be corrected by the court at any time by nunc pro tunc order upon application of either party to make the records speak the truth. Such records, when so corrected, relate to the time when the proceedings were in fact had. State v. Pollock, 5 Okla. Cr. 28, 113 Pac. 207; Dunn v. State, 18 Okla. Cr. 493, 196 Pac. 739; Cornelson v. State, 37 Okla. Cr. 338, 257 Pac. 1109; Ex parte Payton, 45 Okla. Cr. 1, 281 Pac. 597.

The state having taken proper steps to correct the record to speak the truth, and such record, when corrected, showing that plea of guilty and judgment of conviction were entered by the court after the information was filed in the district court, the court had jurisdiction to receive the plea and entered the judgment. The writ is therefore denied.

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


author: PER CHRIAM.

text:
    OWEN PHILLIPS v. STATE.
    No. A-7289.
    Opinion Filed March 29, 1930.
    (287 Pac. 811.)
    Rummons & Hughes, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CHRIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kiowa county on a charge of having the unlawful possession of intoxicating liquor and was sentenced to pay a fine of $200 and to serve thirty days in the county jail.

Judgment was rendered in October, 1928, and the appeal filed in tbis court in February, 1929.. No briefs in support of the appeal have been filed.

The evidence for the state discloses that at the time charged certain officers with a search warrant searched the premises of defendant and found about 30 gallons of wine. The defendant at the conclusion of the state’s' testimony admitted the possession, saying: “Well, Mr. Ball (a deputy sheriff) has told the truth and I am just here at the mercy of the court and jury. I had the stuff.” No testimony was offered. His statement was in effect a plea of guilty and request that the jury fix the punishment. No material error appears in the record.

The case was affirmed.


author: DAVENPORT, J.

text:
    T. W. THORNHILL v. STATE.
    No. A-7262.
    Opinion Filed March 29, 1930.
    (287 Pac. 743.)

      N. S. Corn, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was tried in the county court of Dewey county on a charge of having possession of intoxicating liquor, to wit, beer, with the unlawful intent then and there to sell, barter, give away, and otherwise furnish to others, and was sentenced to pay a fine of $50 and be confined in the county jail of Dewey county for a period of 30 days, from which judgment the defendant has appealed to this court.

The defendant filed a demurrer to the information, alleging the information did not state facts sufficient to constitute an offense against the laws of the state of Oklahoma; second, the information does not allege that the beer is a cask or as much as a cask; third, the information alleges possession of 108 pints of beer, which shows on its face it is less than a cask of beer; and, fourth, the evidence will show that it is not beer but home brew, a substitute for beer, and the information does not allege that it contains more than one-half of 1 per cent, of alcohol measured by volume and capable of being used as a beverage. This motion ivas overruled and the defendant saved an exception. The jury was impaneled, and the state called as a Avitness C. C. Jones, the substance of Avhose testimony is as follows: “I was sheriff of Dewey county on the 12th day of July, 1928; I am acquainted with the defendant T. W. Thornhill.” The defendant then objected to any testimony of the sheriff, C. C. Jones, on the same grounds as set forth in his demurrer to the information, which objection was by the court overruled, and the defendant duly excepted. Witness Jones then státed he was at defendant’s place on July 12, 1928; “Walter Tower and Marvin Compton was with me; we went there with a search warrant; we found some beer, beer bottles, and jars out there, and brought them to Taloga; the empty bottles and jars have been in the old jail; the janitor has the key to that.” The defendant then entered a motion and objection to the court trying- said cause on the ground that the court did not have jurisdiction at this time to try the cause as no order was made by the court fixing a time for a November term of court. Testimony was taken on defendant’s motion, the court after hearing the same overruled his motion, and defendant excepted.

Witness Jones further testified as to the number of bottles of beer and to the number of empties, and the county attorney then asked the following questions, and he gave the following answers:

“I will ask you, Mr. Jones, to take the cap off that bottle? A. Haven’t anything to take it off with.
“Q. Might pull it off on some of this stuff here.”

The sheriff takes the cap off the bottle. The county attorney then asks the court to be allowed to pass the beer bottle to the jury, to which the defendant objected, the court overruled the objection and gave the defendant an exception, and the jury taste the contents of the bottle. Witness then stated he had sampled some of the beer and that it was intoxicating. On cross-examination, he thought there were 108 pint bottles. He was then asked the following- question:

“Q. That is home brew, is it? A. Some call it beer and some home brew. (The defendant objected, which objection was overruled, and the witness proceeded.) If it was made at home it would be home brew; I drank a bottle of it and that is the way I arrived at the conclusion that it was intoxicating. I did not drink enough of it to feel the effect of it-but I have drank beer, Mr. Corn, and I know what beer it. I have drank beer several years ago before prohibition.”

The witness further stated defendant told him the empty bottles had been brought to his house by a man by the name of John Boatman; they were brought there for a man at Sharon.

Walter Tower, called as a witness, in substance, stated the same facts as did the witness Jones as to what took place at the defendant’s home and what was found there.

At the close of the state’s direct testimony, the defendant moved the court for a directed verdict on the ground that the state had failed to show that the law had been violated, and the state’s evidence discloses that the alleged intoxicant was not beer but home brew, and there is no testimony showing that it contained more than one-half of 1 per cent, alcohol measured by volume and capable of being used as a beverage, which motion was overruled, and defendant duly excepted.

The defendant called Clark Bowser, whose name appears on the affidavit for the search warrant, and the witness, in substance, stated that the affidavit for the search warrant was not read to him, nor did he know what it contained; that he was working at a threshing machine, and his uncle Marvin Compton and the deputy came out to where he was threshing and took him to town and handed him a paper which he signed, and that the court did not swear him to it. It developed in the testimony it was an affidavit for a search warrant. The deputy sheriff stated that Clark -Bowser stated he did not like to sign the affidavit. The defendant then introduced the affidavit of Clark Bowser in evidence, and stated, in substance, that he had never been convicted of any crime; “my family consists of my wife, five children, and myself;” defendant admitted the stuff found at his house was called home brew; he made it himself, and the stuff they had in the courtroom looked like the stuff he made, and gave the formula he used in making this brew, and stated it ivas a substitute for beer; the empty bottles had been brought by a man named John Boatman, for some one from Sharon.

On cross-examination, the defendant testified that he had drunk as many as ten or twelve bottles of this drink the officers found in the bottles in a few hours; that he had drunk as many as eight or ten bottles in a space of two hours, and he knew it was not intoxicating.

Marvin Compton was called in rebuttal by the state and stated he was acquainted with Clark Bowser; that some time during the spring he had Clark Bowser in his custody; that he was incarcerated in jail, and the court permitted the witness to testify as to a conversation he had with Clark Bowser while he was in jail, in which conversation Clark Bowser said Marvin Compton told him he knew where Raymond and Paul were getting their beer; he said they were getting it at Tom Thornhill’s. Witness further stated he did not read this affidavit to Clark Bowser, and was then permitted over the objection of the defendant to tell of a conversation he had with Clark Bowser in the absence of the defendant. Marvin Compton then stated Clark Bowser signed the affidavit in his presence, and was asked if Judge Wood administered the oath to Clark Bowser, and said: “Well, now, I could not say' whether Judge swore him or not.”

Witness on cross-examination stated be told Clark Bowser what was in tbe affidavit, and asked him to sign it, and he said, “I don’t much like to do it.” “I heard Clark Bowser say the defendant had liquor at his house and was selling and otherwise disposing of it.” This statement was objected to by the defendant on the ground that it was incompetent, irrelevant, and immaterial. The court overruled the same. This is, in substance, the testimony in the case.

Several errors are assigned by the defendant as grounds for reversal of this case; the first being the court erred in overruling the demurrer to said information filed in said cause. From an examination of the information, we find it charges:

“That T. W. Thornhill a person at and within the county of Dewey and state of Oklahoma, on or about the 12th day of July, 1928, did then and there unlawfully and wrongfully have in his possession intoxicating liquor to wit: 108 pints of beer, with the unlawful intent then and there on the part of him the said T. W. Thornhill, to sell, barter, give away and otherwise furnish the same in violation of the prohibitory liquor laws of the state of Oklahoma.”

The sixth paragraph of section 2563, C. O. S. 1921, provides:

“That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.”

In this case the information clearly and distinctly charges the defendant with possession of intoxicating liquor, to wit, beer; an offense which sufficiently charged to advise the defendant of what he is expected to defend against. The court did not err in overruling the demurrer of the defendant to the information.

The defendant contends that the court erred in giving instruction No. 2, which instruction is as follows:

“The jury are instructed that the laws of Oklahoma provide that any person may have in his possession one quart of vinous, spirituous or malt liquors for his own use and possession of same shall not be a violation of the law; but that the possession of more than one quart of such liquors at one time shall constitute prima facie evidence of intention on the part of the possessor to dispose of same in violation of law, but such presumption may be overcome by defendant by evidence.”

In Rose v. State, 36 Okla. Cr. 333, 254 Pac. 509, in the second paragraph of the syllabus, the court said:

“Under section 1, c. 123, Laws 1923-24, declaring that keeping in excess of a certain amount of intoxicating liquors ‘shall be prima facie evidence of an intention to convey, sell or otherwise dispose of such liquors,’ it is error to charge that ‘it is not incumbent upon the state to prove by other evidence the intent of the defendant to convey, sell or otherwise dispose of such liquors,’ in that it places upon defendant the burden of raising a reasonable doubt of his guilty intent. The statute only means to make such evidence competent and sufficient to establish the unlawful intent unless rebutted or the contrary proven, yet it does not make it obligatory upon the jury to convict upon the offering of such proof, whether or not such evidence is sufficient to overcome the presumption of innocence, when all the evidence including the presumptions is considered, is for the determination of the jury;”

In Dorsey v. State, 44 Okla. Cr. 7, 279 Pac. 917, in the second paragraph of the syllabus, the court said:

“In this case the possession of the whisky is a dis- . puted fact, and it was error for the court to instruct the jury ‘that the keeping in excess or more than one quart of any spirituous, vinous, fermented or malt liquor, or imitation thereof, or substitute therefor is prima facie evidence of an intent to' convey, sell or otherwise dispose of the same; that is, so that there is a presumption of guilt, but that it can be overcome by the defendant by proof that he did have lawful possession/ as it places the burden of proof on the defendant.”

We hold that instruction No. 2, complained of by the defendant did not correctly state the law, and the giving of the same, over the objection of the defendant, was prejudicial error. With what intent a person keeps intoxicating liquor is always a question for the jury, tó be determined upon the consideration of all the evidence. In the determination of the guilt of the defendant, the jury is. required, under the provisions of our statute, to consider the keeping of a certain quantity of intoxicating" liquor as prima facie evidence of an unlawful intent to violate the law, but the prima facie evidence may be rebutted by other evidence in this case, whether shown by the evidence on the part of the defendant or by the state in its evidence proving possession. It is the duty of the jury under the law to take into consideration the presumption of innocence of the accused until the contrary is proven beyond a reasonable doubt. It does not change the rule in criminal cases that, before a conviction can be had, the jury must be satisfied from the evidence beyond a reasonable doubt of the affirmative of the issue presented in the information that the defendant is guilty in the manner and form as charged. The last part of instruction No. 2, complained of, places the burden of proof upon the defendant. Other errors are assigned and argued, but we find nothing in the record requiring further discussion. For the reasons stated, the judgment of the lower court is reversed.

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


text:
    Ex parte EARL MARTINDALE.
    No. A-7556.
    Opinion Filed March 29, 1930.
    (287 Pac. 740.)
    C. R. Reeves, for petitioner.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Petitioner alleges that on the 16th day of January, 1924, he was convicted in the district court of Tulsa county of the crime of robbery, and by the verdict of the jury his punishment was fixed at imprisonment in the penitentiary for twenty-five years; that on the 26th day of January, 1924, the district judge of the Tulsa county district court rendered judgment and pronounced sentence against him; that he was guilty of stealing an automobile, and imposed a sentence of twenty-five years’ imprisonment in the state penitentiary; that on or about January 30, 1924, petitioner was taken to the penitentiary at Mc'Alester, and has been there imprisoned for over five years under a commitment issued on the judgment for stealing an automobile; that on or about the 30th day of July, 1929, the county attorney of Tulsa county filed a petition in the district court of said county, and made a motion to modify and amend the aforesaid judgment by an order nunc pro tunc changing the judgment and sentence pronounced on the 26th day of January, 1924, by substituting therefor a new and different judgment; that the said court was without jurisdiction to alter or amend said judgment and sentence; and that his incarceration under the original judgment and sentence is illegal, and the said judgment is null and absolutely void.

Petitioner further alleges that on or about the 10th day of September, 1929, Hon. Luther James, judge of the district court of Tulsa county, after hearing had in said cause, made an order finding that through an error of the clerk of the district court the original journal entry of judgment in said cause was made to read, “for the crime of stealing an automobile,” when in truth and in fact the petitioner was charged with the crime, of robbery. The jury found him guilty of the crime of robbery, and the court sentenced him for the crime of robbery, and the judge ordered the records corrected to speak the truth; that the said hearing so held on the application of the county attorney for a nunc pro tunc order was without authority of law, and void, for the reason that the said district court was without any authority of law to render- any new judgment or make said new order in said cause. It is admittedly the state that the petitioner was charged with the crime of robbery, that the jury returned a verdict of guilty of robbery, but it is claimed by the state that the court pronounced judgment and sentence against the petitioner for the crime of robbery, but through a clerical error of E. Gail Swayze, a deputy clerk of the district court of Tulsa county, who prepared the journal .entry of judgment for the signature of the trial judge, the journal entry was made to read that the defendant was guilty of the crime of stealing an automobile; that such error was a mere clerical one, which might be corrected by nunc pro tunc proceedings instituted by the state, in the court where the judgment was rendered, at any time before the expiration of the sentence.

Following the entry of the nunc pro tunc order of the judge of the district court of Tulsa county, petitioner was returned to the penitentiary at McAlester under a new commitment issued out of the district court of said county. Thereupon a rule to show cause 'was issued out of this court to the warden of the penitentiary at McAles-ter to show cause for the detention and imprisonment of petitioner. Said warden has filed his return and answer setting up that he detains the prisoner under a commitment issued out of the district court of Tulsa county for the crime of robbery, and that the term of said prisoner has not expired.

The issues presented by the petitioner and the return of the warden is, Was the original judgment void as contended for by petitioner, or was the judgment pronounced by the district court of Tulsa county in conformity with the verdict, and was the recital in such judgment that prisoner was guilty of the crime of stealing an automobile a clerical error which the district court on proper proceeding might correct at any time?

Counsel for petitioner contends that the district court of Tulsa county was without jurisdiction to amend, alter, or modify the original judgment after the term at which the judgment was rendered. The state contends that the original judgment was not amended, altered, or changed in any particular; that the judgment as corrected by the nunc pro tunc order was the judgment as originally rendered ; that the journal entry of judgment was merely corrected to speak the truth.

It appears from the information attached to petitioner’s application that he was charged with the crime of robbery. The verdict of the jury attached to his application shows that the jury found him guilty of robbery and fixed his punishment at twenty-five years in the penitentiary. Section 2750, C. O. S. 1921, provides that the judgment must conform to the verdict. Where the judgment does not conform to the verdict, this court on appeal has remanded the case for proper judgment. Caudill v. State, 9 Okla. Cr. 66, 130 Pac. 812; Barrett v. State, 39 Okla. Cr. 50, 263 Pac. 166; White v. State, 42 Okla. Cr. 50, 275 Pac. 1067.

This court has also held that the proceeding to correct this judgment nunc pro tunc was the proper proceeding, and that upon a sufficient showing the court had authority to order the record corrected to speak the truth. In Ex parte Payton, 45 Okla. Cr. 1, 281 Pac. 597, this court said:

“The trial court may at any time upon proper application, from the memory of the presiding judge or upon proper showing, by appropriate order nunc pro tunc, cause its record to recite the truth, and may supply any omission from its record. Such records, when so supplied, relate to the time when the proceedings were in fact had, and made valid that which was apparently defective.”

In the body of the opinion this court said:

“Since the error complained of is a mere clerical one, the proper practice is for the county attorney to apply to the district court for a nunc pro tunc order directing the court clerk to correct the record to speak the truth as to the date upon which judgement and sentence was pronounced.”

The district court of Tulsa county by proper nunc pro tunc proceedings conducted a hearing at which petitioner was represented by his counsel. Evidence was introduced by the state to show that the judgment and sentence of the court rendered in said cause on the 26th day of January, 1924, was in conformity with the verdict of the jury, and was that the petitioner was guilty of the crime of robbery, but that by a clerical error the journal entry of judgment was made to read, “stealing an automobile.” Upon such evidence and finding, the court ordered said journal corrected to speak the truth as to the crime for which petitioner was convicted. The findings of fact by the district court of Tulsa county in the nunc pro tunc proceedings is conclusive on this court in a habeas corpus proceeding.

In Ex parte Howland, 8 Okla. Cr. 142, 104 Pac. 927, 928, Ann. Cas. 1812A, 840, this court said at page 146:

“The amendment to the original petition also alleges that the ‘alleged judgment and sentence recorded by an order nunc pro tunc, and uoav made a part of the return, thus to change the issues as joined in this case, is false, untrue, and is set up in the return for fraudulent purposes.’ There is no contention made by counsel for relator that the findings of the court, on Avhich the nunc pro tunc order is based, were made without legal evidence. There being no contention of that kind, the presumption prevails that the court acted on sufficient competent testimony. It is not for this court to question the evidence on which the district court of Lincoln county made this order nunc pro tunc. The court on the evidence there introduced found, as a fact, that the judgment and sentence was entered on the 11th day of April, 1902, and that finding is conclusive on this court. The court having found that it was a mere error of the clerk, and it being clearly within the province of the court to correct such error, and the correction having been made, the order stands as originally made and intended, and must be given effect accordingly. 1 Freeman on Judgments, 74; Bobo v. State, 40 Ark. 224; Ward v. Magness, 75 Ark. 12, 86 S. W. 822; Jones v. Lewis, 30 N. C. 70, 47 Am. Dec. 338.” Ex parte Caveness, 3 Okla. Cr. 205, 105 Pac. 184; Ex parte Harry, 6 Okla. Cr. 168, 117 Pac. 726; Ex parte Ambler, 11 Okla. Cr. 449, 148 Pac. 1061.

Since the district court of Tulsa county had jurisdiction to hear the application of the state for the nunc pro tunc order, and since the court found as a fact that the judgment and sentence of the district court was for the crime of robbery, and further found that because of clerical error the journal entry of judgment was made to read, “stealing an automobile,” instead of robbery, this court is bound by such finding of fact and will not review the same on habeas corpus.

We take this occasion to caution district judges to be careful about the orders and judgments they sign in criminal cases. No judge ought ever to sign any order that deprives a defendant of his life, liberty, or property without first having carefully read the same. This court is continually hearing habeas corpus cases due entirely to the careless manner in which judgments and orders are made and signed.

Under the facts and law of this case, the petitioner is not entitled to be discharged, but is entitled to credit for all the time he has already served in the penitentiary upon such judgment and sentence. For the reasons stated, the writ is denied, and the warden is directed to compute the time of service of petitioner from the date he was first received at the penitentiary.

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


text:
    ELMER J. BLACK v. CITY OF PAWHUSKA.
    No. A-7174.
    Opinion Filed March 29, 1930.
    (287 Pac. 737.)
    Elmer J. Black, for plaintiff in error.
    A. B. Campbell, for defendant in error City of Paw-huska.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted in the county court of Osage county on an appeal from the police court of the city of Pawhuska, and was sentenced to pay a fine of $3 and costs, and has appealed to this court.

The testimony on behalf of the city tends to show that in the city of Pawhuska there are streets known as Eleventh and Kihekah, and on the day of the alleged offense the defendant was driving his car west on Eleventh street, and failed to stop at the stop sign and ran his car on across to the intersection at. the top of Grandview, where he stopped in the street, .a police officer motioned to him and he drove on across the street.

The testimony further tends to show that this stop was only indicated by a stop line arid the word “stop,” but that most of the intersections in the city have a white line across with the word “stop” at the end of the sign; some of the streets in the city have a white line across with the word “stop” at the end of the sign; that hte stop signal at this place where the defendant is alleged to have run the stop sign was a white line with an arrow, with the word “stop” at the end of the arrow. The police officer said the first time the defendant stopped in the middle of the intersection, right at the top of the hill between the intersection of Eleventh street and Grandview, but he motioned for him to go on across and stop, and he did.

The testimony further tends to show on behalf of the city that the officer watched the defendant while he was driving to the police station, and that his brakes worked all right.

The defendant testified in his own behalf, and stated, in substance, that he had been driving his car the morning of the alleged offense, and that he had had trouble with it, and in Sedan, Kan., he had to have the rear end taken off and a new gear put in; that he drove home and went down to the schoolhouse to get his son, and did not find him there, and started back down Eleventh street, and drove up in the regular way, and when he applied his brake as he approached the stop sign in the street, the brakes would not hold the car because of the grease that had worked into the brake, and he crawled down there and stopped when about six or eight feet below the stop sign; that a lady was coming up the hill at a very rapid rate of speed, and he was afraid she was going to hit him, and realized Ms brakes were not working right, and let his car go on across the street out of the way.

The testimony of the defendant shows that he had no desire to violate the city ordinance, and that he tried to stop, but, owing to the oil in his brakes from, the repair on his car, the brakes did not hold as he expected them to, and he went on into the middle of the street, and he let his car go on across the street to avoid a collision with the party driving on the cross-street. Defendant shows by the mechanic who examined his car within two hours after the alleged offense that the oil and grease had gotten on his brakes, and they would not hold as they should have done. This is in substance the testimony.

The defendant has assigned several errors, but the only assignment we deem necessary to consider is assignment 5, which is as follows: “That the verdict and judgment is contrary to the law and the evidence.”

It is urged by the defendant that the evidence is insufficient to sustain a conviction. Under our procedure criminal, section 2754, subdivision 6, C. O. S. 1921, a new trial should be granted when the verdict is contrary to the law or the evidence. In this case a jury was waived, and the case tried to the court. Under section 2754, supra, the responsibility to determine whether or not there has been adduced before the jury a sufficient amount of legal and competent evidence to render it safe to allow a verdict to stand is imposed on the trial court in the first instance, and on appeal upon this court. The performance of this duty at this time on the part of the court is to exercise legal discretion and judgment as to the sufficiency of the evidence to overcome the legal presumption of innocence to which every one is entitled who is put upon trial for an offense. McCoy v. State, 45 Okla. Cr. 311, 283 Pac. 257, and cases therein cited.

After a careful consideration of the evidence on behalf of the city and the statements of the defendant, we hold that the. testimony on behalf of the city is insufficient to show an intent on the part of the defendant to violate the city ordinance, and is wholly insufficient to overcome the presumption of innocence and to sustain a conviction. The defendant’s testimony tends to show that he did all he could to observe the ordinance by stopping his car at the stop line, but was unable to do' so.

The judgment is reversed.

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


text:
    CHARLIE WORDLOW et al. v. STATE.
    No. A-7100.
    Opinion Filed March 29, 1930.
    (288 Pac. 351.)
    M. D. Hartsell and H. T. Walker, for plaintiffs in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiffs in error hereinafter called defendants, were convicted in the county court of .Muskogee county on a charge of having possession of intoxicating liquor, and their punishments fixed as follows: Charlie Wordlow, a fine of $100 and a term of sixty days in the county jail; Mose Lagway, a fine of $100 and a term of sixty days in the county jail; Pete.Van Brunt, a fine of $100 and a term of ninety days in the county jail. The record failing to show judgment and sentence on Delmar Van Brunt, the attempted appeal as to him is dismissed.

The evidence of the state was that two officers out of the sheriff’s office were out searching for chicken thieves and saw three of the defendants across a fence from the road searching in the weeds. One of the defendants picked up a half-gallon jar filled with whisky and another one of the defendants started to take a drink out of the jar when he saw the officers and ran. Another one of the defendants had picked up another half-gallon jar. The officers came up and arrested five men, took the liquor to the sheriff’s office, and, after talking with the defendants, released one of them, Otto Williamson, who afterward testified that two of the defendants got him to take his car and follow the other two defendants out to the place where the whisky was concealed. One of the officers testified that the other four defendants admitted that they had gone out there together to the whisky at the time they were arrested. The defendants all took the witness stand, and practically admitted the statements the officers testified they made, but one of the defendants claimed that the whisky belonged to a man he had never seen before; that he took the other parties out there to make a trade with them on the whisky.

The defendants first contend that the evidence is insufficient to support the verdicts. This contention is without merit.

They next contend that the court erred in refusing to give an instruction on circumstantial evidence. This court has repeatedly held that it is not error for the trial court to refuse to give an instruction on circumstantial evidence, unless the evidence is wholly circumstantial. Thomas v. State, 34 Okla. Cr. 288, 246 Pac. 658; Zeligson v. State, 43 Okla. Cr. 24, 276 Pac. 791; Howell v. State, 45 Okla. Cr. 66, 281 Pac. 818.

The defendants were found in possession of the liquor, the officers testified to admissions made by the defendants at the time of their arrest, and the defendants themselves testified at the trial to a state of facts which takes the case entirely out of the realm of circumstantial evidence. For the reasons stated, the cause is affirmed as to Charlie Wordlow, Mose Lagway, and Pete Van Brunt, and dismissed as to Delmar Van Brunt.

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


text:
    JESSE LANDRUM et al. v. STATE.
    No. A-7227.
    Opinion Filed March 29, 1930.
    (287 Pac. 1047.)

      G. W. Goad, for plaintiffs in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiffs in error, herein-' after called the defendants, were charged with larceny of chickens in the nighttime of the value of $22, were convicted, and sentenced to serve a term of two' years in the penitentiary; from which judgment both defendants have appealed to this court.

The testimony of the state, in substance, is that Mrs. Mattie Anderson was the owner of forty chickens; that on or about the 7th day of March, 1928, twenty-two of her chickens were missing from her premises; that night she kept her chickens in a hen house which was locked; on the 8th day of March, 1928, she missed her chickens, later these chickens were located at Dodge, Delaware county, Okla., where a Mr. Roberts had bought the chickens; Mr. Roberts was running a store at Dodge, and Lillie Roberts, his wife, testified the morning she purchased the twenty-two chickens the defendants came to the store and inquired the price of chickens; Mrs. Roberts was running the store that morning, and identified the two defendants as being the parties who sold her the chickens; she also testified in making out the check she asked the defendants to whom the check should he made, and one of the defendants stated to Henry Jones; the check was in the amount of $21.70. The testimony further shows that the check was cashed at a bank at Afton, Okla., and when it was cashed it was indorsed: “Henry Jones, Delaware Service Station, Bernice, Oklahoma; John Mathews.”

The testimony further tends to show that when Mrs. Anderson recovered the chickens from Mr. and Mrs. Roberts, of Dodge, she returned to her home and at roosting time they went to their usual place to roost, and some of the hens went to the same nests where they had been laying.

The defendants deny that they are guilty of taking the chickens of the prosecuting witness, either in the day or nighttime. Defendants called several witnesses to prove where they were at the time it is alleged in the information that the chickens had been taken. Neither of the defendants took the stand.

The defendants have assigned several errors alleged to have been committed by the trial court, the 'first being because the court erred in overruling the demurrer of the defendants to the information filed against them. After carefully reading the information, we hold that the information sufficiently charges a crime against the defendants, and the court did not err in overruling the demurrer.

The defendants next complain of the action of the court in refusing to give the defendants, and each of them, time in which to plead after demanding and receiving a copy of the information filed against them. It appears from the record that when the information was prepared, in making a copy of the information the word “out” was omitted after the word “with.” When this question was before the court as to the copy served on the defendants not being accurate on account of the word “out” not following the word “with,” the defendants demanded a copy of the original to be served on the defendants, which was done, and the defendants then demanded and requested further time to plead to the information as amended. The record discloses that the court in passing upon the question stated:

“On May 4, 1928, when this was before the court I stated that if counsel had a purported copy of the information, and it was not an accurate copy, and the information did not contain the word ‘out’ after the word ‘with’ the demurrer would be good and should be sustained. Counsel had an opportunity to examine it and defendants were represented by counsel. An examination of the information of May 4, 1928, showed that the word ‘out’ had been written in the original with a pen, and the court stated when that occurred he did not know.”

The attorney for the defendants admitted he had been served with a copy of the information the morning the question was before the court showing the word “out” after the word “with” that was not on the original served upon them.

The defendants before the demurrer was filed were permitted to withdraw their pleas of not guilty, which demurrer was overruled, and on May 4, 1928, the defendants required to enter their plea to the information.

It is further shown that the attorney for the defendants excepted to the ruling of the court and stated- they were not ready for trial on account of an absent witness. The defendants urged that the county attorney had agreed with the defendants’ counsel that the testimony of the absent witness Ed Willis would be the same as the testimony of G. T. Bowman. County attorney and counsel for the defendants could not agree as to what the testimony of the absent witness Ed Willis would be and requested a continuance for the defendants until they could secure the attendance of Ed Willis, which was overruled and defendants excepted.

An examination of the record fails to show that the defendants brought themselves within the rule required by the statute by failure of the defendants on filing their motion for continuance to have it sworn to by one or more of them setting forth what the testimony of the absent witness would be, and by showing they had used due diligence to secure the attendance of the witness and that his absence was no fault of theirs.

In Hunt v. State, 37 Okla. Cr. 294, 260 Pac. 512, in the first paragraph of the syllabus, the court said:

“Application for a continuance on account of the absence of witnesses is addressed to the sound discretion of the trial court, and, unless there is a manifest abuse of such discretion, the judgment and conviction will not be reversed because a continuance was denied.” Barnett v. State, 41 Okla. Cr. 153, 271 Pac. 956.

Counsel for the defendants with great earnestness argues that the testimony in this case is insufficient to sustain the judgment and refers to the ninth instruction of the court, in which the jury was told that it must believe beyond a reasonable doubt that the defendants in this case, in Delaware county, Okla., in the nighttime and within three years prior to the 9th day of February, 1928, did take, steal, and carry away from the messuage of Ralph Anderson and Mattie Anderson, the chickens or some of them charged in the information. The testimony of Mattie Anderson, who claimed to have owned the chickens, is that during part of the day, and on the 6th day of February, when she locked the chickens up for the night they were all there; she could tell when they were all there even if she did not count them. That she was at home all day the following Wednesday; that she did not know exactly when the chickens were taken, but she missed them on Wednesday, the 8th, when she went to lock the chicken house for the night. The question of the sufficiency of the evidence was a question for the jury, the jury being- the sole and exclusive judges of the weight of the evidence and the credibility of the witnesses. This court, has passed upon this question many times and has repeatedly held that where there was any competent testimony to go to the jury, though conflicting, it would not disturb the verdict.

We have carefully considered the record in this case and find that there is sufficient evidence to sustain the verdict. The information stated sufficient facts to advise the defendants of the crime of which they stood charged. The court properly instructed the jury as to the law applicable to the facts in this case. The defendants were accorded a fair and impartial trial.

Finding no errors of. sufficient merit to- warrant a reversal of this case, the judgment is affirmed.

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


author: EDWARDS, P. J.

text:
    J. P. McREYNOLDS v. STATE.
    No. A-7193.
    Opinion Filed March 29, 1930.
    (287 Pac. 1075.)

      Bond & Bond, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Stephens county on a charge of burglary in the second degree, and was sentenced to serve a term of three years in the state penitentiary.

The case was tried in April, 1928, and the appeal was lodged in this court in October, 1928. No briefs in support of the appeal have been filed, nor was there any appearance for oral argument at the time the case was submitted.

We have examined the record, the evidence is circumstantial, and there are sufficient circumstances proven from which the jury might reasonably and logically find the defendant gpilty. The facts proven are consistent with the guilt of the accused and inconsistent with any other reasonable hypothesis than that of his guilt. No material error is apparent.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    THOMAS A. BAYNE v. STATE.
    No. A-7292.
    Opinion Filed March 29, 1930.
    (287 Pac. 1064.)

      Walter Mathews, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The information in this case was filed in the county court of Payne county, on the 21st day of June, 1928, charging the defendant with manufacturing intoxicating liquors as prohibited by law, was tried and convicted, and his punishment fixed at a fine of $150 and imprisonment in the county jail for a period of 180 days, from which judgment defendant has appealed to this court.

The case-made, with petition in error attached, was filed in this court February 16, 1929. The case-made does not contain the evidence taken in the trial of the case, and this court would presume the evidence is sufficient to sustain the verdict and judgment.

The record has been carefully examined, and we find the information sufficiently charges an offense of manufacturing intoxicating liquor.

In view of the fact the defendant has not briefed his assignment of errors, it is assumed that the appeal has been abandoned or is without merit. Finding no fundamental or prejudicial errors in the record to warrant a reversal, the judgment is affirmed.

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


text:
    RAY CLARK v. STATE.
    No. A-7288.
    Opinion Filed March 29, 1930.
    (287 Pac. 1062.)
    Rummons & Hughes, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

- The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kiowa county on a charge of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $200 and to imprisonment for a term of 30 days in the county jail.

Judgment was rendered in October, 1928, and the appeal was lodged in this court in February, 1929. No briefs in support of the appeal have been filed. The evidence for the state discloses that, at the time charged, officers with a search warrant searched the residence of defendant and discovered a gallon and a half of whisky. Defendant admitted the possession of the whisky, and stated that he had the whisky for his own use. The quantity was prima facie evidence of an intent to violate the law sufficient to carry the case to- the jury. No material error is apparent.

The case is affirmed.


text:
    H. L. CONLEY v. STATE.
    No. A-7287.
    Opinion Filed March 29, 1930.
    (287 Pac. 1059.)

      ■Rummons & Hughes, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The. plaintiff- in error, hereinafter called defendant, was convicted in the county court of Kiowa county, of having the unlawful possession of intoxicating liquor and was sentencced to pay a fine of $50 and to serve 30 days in the county jail.

. The case was tried in October, 1928, and the appeal was lodged in this court in February, 1929. No’ briefs in support of the appeal have been filed. The record discloses that with a search warrant certain officers searched the residence of defendant, and found a large quantity of bottled home-brew and a quantity unbottled and seven gallons of wine, the most of it being concealed under the floor which was reached by means of a trap door over which was a carpet. Defendant admitted the possession, but testified that this had been made for the use of his wife who was an invalid. The state offered evidence that at the time of the search defendant told one of the officers that he was making a part of this for two- different individuals, naming them. The evidence reasonably sustains the verdict, and no fundamental error is apparent.

The case is affirmed.


text:
    FRANK CERDAY v. STATE.
    No. A-7272.
    Opinion Filed March 29, 1930.
    Rehearing Denied May 10, 1930.
    (287 Pac. 1114.)

      Wan. T. Powell, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Cotton county on a charge of having unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $150 and to serve 40 days in the county jail.

Judgment was rendered in September, 1928, and the appeal was lodged in this court in January, 1929. No briefs in support of the appeal have been filed. The competent evidence offered by the state does not present a strong case, but ;we are not prepared to say that it is insufficient to sustain the verdict and judgment. Defendant did not take the stand and offered no testimony. No fundamental error is apparent.

The case is affirmed.


text:
    SHADE FLETCHER v. STATE.
    No. A-7291.
    Opinion Filed March 29, 1930.
    (287 Pac. 1115.)
    E. Y. Rakestraw, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Kiowa county on a charge of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $125 and to serve 30 days in the county jail.

The case was tried in October, 1928, and the appeal was lodged in this court in February, 1929. No briefs in support of the appeal have been filed. An examination of the record discloses no fundamental error. The evidence reasonably sustains the judgment.

The case is affirmed.


text:
    E. A. FOURT v. STATE.
    No. A-7296.
    Opinion Filed March 29, 1930.
    (287 Pac. 1116.)
    Walter Mathews, for plaintiff in error.
    J. Berry King, Atty Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Payne county on a charge of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $250 and to serve 60 days in the county jail.

Judgment was rendered in December, 1928, and the appeal was lodged in this court in February, 1929. No briefs in support of the appeal have been filed. An examination of the record discloses that the evidence reasonably sustains the verdict, and no fundamental error is made to appear.

The case is affirmed.


text:
    Ex parte G. A. MOSGROVE.
    No. A-7613.
    Opinion Filed March 31, 1930.
    (287 Pac. 795.)
    A. G. Morrison & Sons, for petitioner.
    Embry, Johnson, CroAve & Tolbert, for respondent.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus. Petitioner alleges that he is unlaAvfully restrained of his liberty in the city jail of the city oí: Geary by W. I. Grant, town marshal, W. I. Bristow, police judge, and Charles E. Rogers, mayor. That on October 12, 1929, petitioner Avas selling apples on a vacant lot Avhich he had rented for that.purpose in said city, and was arrested by the town marshal Avithout a Avarrant, and \Aras taken before the police judge, who- Avithout any charge or complaint having been filed against him other than the oral complaint of the toAvn marshal, fined him $15 and $8 costs, without any witnesses having been sworn, and the police judge then ordered the said marshal to confine petitioner in the city jail until said fine and costs were paid. That said restraint is without due process of law and in violation of the constitutional rights of petitioner. Upon said petition, a rule to' show cause was issued by this court.

At the time fixed, respondents filed their return alleging an ordinance prohibiting the sale of farm produce or other merchandise upon certain streets and alleys and providing a fine of $15 for violation thereof. That at the time of his arrest, petitioner was violating said ordinance. That upon his arrest the town marshal took petitioner to the police court and made oral complaint, and the police judge entered the same on his docket and arraigned petitioner, who pleaded guilty, and the police judge then adjudged petitioner guilty and sentenced him to pay a fine of $15 and costs, and that he stand committed until paid. That petitioner was confined upon said judgment.

Petitioner contends that under section 17, art. 2, State Constitution, and section 1, art. 7, State Constitution, and section 4639, Comp. Stat. 1921, his imprisonment without a verified complaint is not due process of law. Eespondents contend that under section 4639, Comp. Stat. 1921, the offense not being criminal in its nature, the complaint need not be in writing. The respondents clearly acted in good faith under the assumption that section 4639, Comp. Stat. 1921, was a valid provision of law.

Section 17, art. 2, State Constitution, in part provides:

“Prosecutions may be instituted in courts not of record upon a duly verified complaint.”

Section 1, art. 7, of the Constitution, provides:

“The judicial power of this state shall be vested in the Senate, sitting as a court of impeachment, a Supreme Court, district courts,' county courts, courts of justices of the peace, municipal courts, and such other courts, commissions or boards, inferior to the Supreme Court, as may be established by law.”

Section 1, c. 147, Session Laws 1915 (section 4652, Comp. Stat. 1921), defines municipal courts and offenses against municipal ordinances. This court in the case of Ex parte Bochmann, 20 Okla. Cr. 78, 201 Pac. 537, said:

“In this state a municipal court is a constitutional court and as such is bound by the constitutional provision found in section 17 of the Bill of Rights: 'Prosecutions may be instituted in courts not of record upon a duly verified complaint.’
“That part of section 650, R. L. 1910 [Sec. 4639, Comp. Stat. 1921], providing that 'The complaint when made by the marshal, assistant marshal or regular policeman against any person arrested without process * * * need not be in writing,’ is in conflict with section 17 of the Bill of Rights. Held, that all prosecutions of a criminal nature should be maintained upon a verified written complaint.”

In the body of the opinion it is said:

“ * * * Every person accused of an offense, under the Constitution and statutes of this state, has a right to be informed of the nature and cause of the accusation against him. He has a right to be represented by counsel and to have compulsory process to obtain witnesses in his behalf. It is difficult to see how this can be safely and orderly accomplished without a definite written accusation or complaint. McQuillin on Municipal Ordinances, §§ 305 and 306.
“Doubtless it was for this reason that our Constitution provides for a verified written complaint, and a written complaint is required in municipal courts in nearly all of the states. The exceptions, so far as we are able to ascertain, are in Nevada, Massachusetts, and Arkansas, Avhere a complaint may be made orally and made a matter of record by the police magistrate. 3 McQuillin on Municipal Corporations, § 1045 and notes. * * *”

Several other cases from this court are cited in the Bochmann Case in which this court had under consideration the power of municipal courts. Respondents contend that the Beehmann Case is not in point for the reason that case was for an offense criminal in its nature, and the offense charged in the instant case is for a mere petit offense, punishable by a fine of less than $20. There are several authorities which in whole or in part support the contention of respondents. Dillon on Mun. Corp. vol. 2, pp. 1127, 1129; 43 C. J. 459, §§ 646, 647; Pearson v. Wimbish, 124 Ga. 701, 52 S. E. 751, 4 Ann. Cas. 501.

Section 17, art. 2, considered in connection with section 1, art. 7, State Constitution, and section 1, c. 147, Session Laws 1915 (section 4652, Comp. Stat. 1921), clearly contemplates that a prosecution, whereby a person accused of an offense may be fined or imprisoned, shall be by a verified written complaint so that the accused person shall be informed of the nature and cause of the accusation against him. Where a police judge assumes to fine and imprison an accused person for the violation of a city ordinance without a verified written complaint having been filed, he is without jurisdiction, and the person so restrained of his liberty is entitled to release by habeas corpus. There is no hardship imposed upon the municipalities in so ruling. The right to arrest, without a warrant, a person engaged in a violation of the laws of the state or an ordinance of a municipality is conferred by section 4516, Comp. Stat. 1921. Before, however, the person accused shall be fined or imprisoned, the nature and the cause of the accusation against him shall be set out in a verified complaint.

For the reasons as stated, the writ is awarded, and petitioner is discharged.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    E. A. FOURT v. STATE.
    No. A-7719.
    Opinion Filed April 5, 1930.
    287 Pac. 788.)
    John W. Whipple, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error was convicted in the county court of Payne county- on a charge of having the unlawful possession of intoxicating liquor-and was sentenced to pay a fine of $500 and to serve 6 months in the county jail.

The appeal was lodged in this court in January, 1930, and plaintiff in error was at liberty upon an appeal bond.' It is made to appear by motion of the Attorney General, supported by affidavits of the sheriff of Payne county and others, that plaintiff in error since his appeal to- this court has become a fugitive from justice and canno-t be made to respond to any judgment or order which might be made in the- case.

The appeal is therefore dismissed.

DAVENPORT and CHAPPELL, JJ., concur.