text:
    Ex parte GEORGE COBLER.
    No. A-10571.
    Feb. 21, 1945.
    (156 P. 2d 383.)
    Hulsey & Hulsey, of McAlester, for petitioner.
    Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   BAREFOOT, P. J.

George Cobler filed his petition herein for habeas corpus, praying to be released from the State Penitentiary at McAlester, where he is confined, serving a term of 25 years.for the crime of manslaughter in the first degree. The Attorney General, on behalf of the state, has filed a demurrer to the petition. Under the law, this admits as true the allegations of the petition.

An examination of the petition reveals that petitioner, his wife and Delbert Sapington were charged jointly in Rogers county with the murder on-or about September 3, 1936, of one R. A. Raburn. A severance was taken, and Delbert Sapington was tried and convicted of manslaughter in the first degree, and sentenced to serve a term of 25 years in the penitentiary.

Petitioner alleges that at the trial of the codefend-ant, Sapington, the state’s witnesses testified to certain facts which tended to be circumstances against the wife of petitioner. That he and his wife had several small children. That the county attorney proposed to him that if he would enter a plea of guilty to "‘unjustifiable homicide” that an amended information would be filed against petitioner, and the charge against his wife would be dismissed. That upon this promise, petitioner entered a plea of guilty to the charge contained in the amended information. That he was then informed by the court that the same punishment would be assessed against him as had been assessed against his codefendant, Sapington. Petitioner asked permission to withdraw his plea of guilty, and upon advice of the court employed a lawyer, who prepared a motion to withdraw his plea of guilty, and that he be permitted to enter a plea of not guilty. That he was not guilty of the crime charged against him, and his plea of guilty was for the purpose of securing the dismissal of the charges against his wife. That he was told by the court that his motion would be heard on the following Monday, and he was directed by the court to have his wife with him, together with the same dress she was wearing on the night of the homicide. That he understood-by this that if his plea of guilty was withdrawn, his wife would be put to trial immediately thereafter. His motion was heard by the court, and evidence taken thereon, and at the conclusion the court overruled the motion to permit him to withdraw his plea of not guilty, and pronounced sentence against him, giving him 25 years in the State Penitentiary. No appeal was taken by petitioner from the order above made.

Petitioner has served more than seven years in the State Penitentiary. He contends that he was not guilty of the crime charged, as above stated, and that “it was the duty of the court to order the clerk to enter a plea of not guilty and to give the defendant a jury trial, and therefore this petitioner says that the judgment and sentence pronounced against him by the court as aforesaid was and is illegal and void, and that he has been denied due process of law.”

From the above statement, it will be readily observed that the petition for habeas corpus must be denied. There is nothing in the petition Avhich shows that the judgment and sentence rendered against petitioner Avas void, and that this court Avould have jurisdiction on habeas corpus to release and discharge him. It is only Avhen the judgment and sentence is void, or that the court did not have jurisdiction, that we have the right to release by habeas corpus. Ex parte Noble, 78 Okla. Cr. 105, 111 P. 2d 122.

Petitioner made no attempt to appeal from the judgment and sentence. There is no record before us giving the evidence that was taken before the court on the motion to permit the withdraAval of the plea of guilty. This court, on appeal, has been liberal in holding that a plea of guilty should be set aside upon timely motion by a defendant. Neville v. State, 72 Okla. Cr. 250, 114 P. 2d 961, and cases therein cited; House v. State, 75 Okla. Cr. 291., 131 P. 2d 124; Bennett v. State, 75 Okla. Cr. 42, 128 P. 2d 253; 22 O. S. 1941, § 517.

But where no appeal is taken, this cannot be done by the granting of a writ of habeas corpus, and discharging the defendant from a sentence imposed where the court had jurisdiction, and where the judgment and sentence was not void. Habeas corpus can not be substituted for appeal. Ex parte Hummingbird, 78 Okla. Cr. 33, 143 P. 2d 166; Ex parte Cannes, 77 Okla. Cr. 71, 138 P. 2d 561; Ex parte Wright, 78 Okla. Cr. 157, 145 P. 2d 772; Ex parte Maynard, 79 Okla. Cr. 215, 153 P. 2d 505.

As has often been stated by this court, the Constitution has placed the power of clemency in the hands of the Governor of this state. Under the pardon and parole law of the state, opportunity for an investigation of the facts as alleged in the petition may be promptly and properly investigated and action taken thereon, as the facts justify. Ex parte Nye, 75 Okla. Cr. 155, 129 P. 2d 614.

For the reasons above stated, the petition for writ of habeas corpus is denied.

•JONES, J., concurs. DOYLE, J., not participating.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    JAKE BOCK v. STATE.
    No. A-10363.
    Feb. 21, 1945.
    (156 P. 2d 381.)

      Hughes & Hughes, of Hobart, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

Jake Bock was convicted in the county court of Kiowa county of the offense of illegal possession of intoxicating liquor and was sentenced to serve 30 days in the county jail and pay a fine of $200, and has appealed.

In the closing argument of the county attorney to the jury, he made this statement, “Why didn’t the defendant deny the evidence here?” When this statement was made, counsel for the defendant presented the following-motion: “'Comes now the defendant and moves the court to declare a mistrial of this case because of the prejudicial remarks made in the presence and hearing of the jury in his closing argument to the jury in referring to the defendant when he stated: “'Why didn’t the defendant deny the evidence produced here?’, or words to that effect.”

The court overruled the motion and defendant excepted.

22 O. S. 1941 § 701, provides:

“In the trial of all indictments, informations, complaints and other proceedings against persons charged with the commission of a crime, offense or misdemeanor before any court or committing magistrate in this State, the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trial; if commented upon by counsel it shall be ground for a new trial. R. L. 1910, § 5881.”

Where this statute is violated by the prosecutor commenting on the failure of the defendant to testify, it is held that it is the mandatory duty of the trial court to order a new trial. Dorsett v. State, 16 Okla. Cr. 65, 380 P. 557; Schrader v. State, 40 Okla. Cr. 261, 268 P. 325; Cokely v. State, 28 Okla. Cr. 431, 231 P. 330; Rice v. State, 66 Okla. Cr. 434, 92 P. 2d 857; Shepherd v. State, 77 Okla. Cr. 131, 139 P. 2d 605.

In the case of Weinberger v. State, 8 Okla. Cr. 441, 128 P. 160, 161, it is said:

“The statute is in accordance with the constitutional guaranty that ‘no person shall be compelled to giye evidence which will tend to incriminate him, except as in this Constitution specifically provided.’ The clear intent of the statute is that the jury in determining their verdict shall entirely exclude from their consideration the fact that the defendant did not elect to testify, and any reference by the prosecuting attorney in his address to the jury to the fact that the defendant did not testify constitutes misconduct, and, under the terms of the statute, the trial court has no discretion, but must grant a new trial. Every person accused of crime is entitled to a fair trial under the forms of law before he may be convicted.”

In Nowlin v. State, 7 Okla. Cr. 27, 115 P. 625, 121 P. 791, 792, it is said:

“It matters not what we may think of the policy of this statute. It is mandatory, and therefore we have no discretion in the matter, but it is our plain duty to enforce it. It must not be violated, directly or indirectly, either in its letter or spirit.”

There is no other construction which can be placed on the statement of the county attorney, in view of record, than that such statement was a direct comment on the fact that the defendant did not choose to become a witness. It is regrettable that the prosecutor became so overzealous in presenting the state’s cause that he overstepped legal bounds and made this statement, thereby making it our mandatory duty under the statute and decisions above quoted to reverse this case for a new trial.

There is one other assignment of error which should be discussed so that it may be corrected at the retrial of this case. Nine pints of whisky were found in a room at defendant’s residence. The defendant did not testify, but Ms wife testified in bis behalf that the defendant had the whisky for his own personal use and did not have it for the purpose of sale in violation of the law. In Oklahoma, the possession of intoxicating liquor for his own personal use is not unlawful regardless of the'quantity a person has in his possession. Where a person has in excess of one quart in his possession, under the statute such possession is prima facie evidence of an intent to sell, 37 O. S. 1941 § 82, but this is not conclusive, and where the defendant contends that he had the intoxicating liquor for his own personal use, such contention raises an issue for the determination of the jury under proper instructions. If they should determine that the defendant had it for his own personal use, it is their duty to return a verdict of not guilty. If they should determine that he had it for the purpose of sale, conveyance, or other unlawful purpose, their verdict should be that of guilt.

In the instant case, the defendant requested the following instruction:

“The jury are instructed that the defendant admits having possession of the liquor in controversy in this action, but contends, and has offered evidence tending to show, that his possession of such liquor was intended for his "own personal use and without any intention of violating any of the provisions of the prohibitory liquor laws of the State of Oklahoma; and, in this connection, you are instructed that possession of any amount of intoxicating liquor, intended for his own personal use, is not a violation of the law', and unless you believe from the evidence, beyond a reasonable doubt, that defendant’s possession of the liquor shown from the evidence to have been possessed by defendant wras for an unlawful purpose, as elsewhere in these instructions defined, then it is your duty to return a verdict of not guilty.”

The refusal to give this instruction or one substantially presenting the theory of the defense wras error. We do not say that this instruction is a model, hut it is sufficient to call the court’s attention to the fact that the defendant was entitled to an instruction on his theory of the case, and the wording of this instruction is not so subject to criticism that it would have been improper to have given it. The requested instruction substantially states the law in Oklahoma.

For the reasons herein above stated, the judgment of the county court of Kiowa county is reversed and remanded with instructions to grant the defendant a new trial.

BAREFOOT, P. J., concurs. DOYLE, J., not participating.


author: BAREFOOT, P. J.

text:
    SHERMAN HAMMONS v. STATE.
    No. A-10375.
    Feb. 21, 1945.
    (156 P. 2d 379.)

      Harold McArthur, of Tulsa, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for defendant in error.
   BAREFOOT, P. J.

Defendant, Sherman Hammons, was charged in the court of common pleas of Tulsa county with the crime of unlawful possession of intoxicating liquor, was tried, convicted and sentenced to pay a fine of $100 and costs, and to serve a term of 60 days in jail, and has appealed.

For a reversal of this case, it is contended:

“1. The court erred in overruling plaintiff in error’s motion to suppress evidence.
“2. The court erred in overruling demurrer to evidence of the state and motion for directed verdict.
“3. Error of the court in failing to instruct on circumstantial evidence and in the giving of instruction eight.
“4. Court erred in admitting incompetent, irrelevant testimony and evidence.”

As to the first contention, we have carefully examined the record, together with the evidence given on the motion to suppress, and have come to the conclusion that the court did not err in overruling the motion. We have often held that the issuance of a John Doe warrant is bad practice, and should not be used unless absolutely necessary. Sanders v. State, 76 Okla. Cr. 6, 133 P. 2d 562; Vincent v. State, 75 Okla. Cr. 116, 129 P. 2d 196; Quick v. State, 75 Okla. Cr. 176, 129 P. 2d 604; Cook v. State, 75 Okla. Cr. 402, 132 P. 2d 349.

But we have not held that they are void for this reason alone. Where the evidence reveals that the name of the party whose premises are to be searched is unknown, and a proper description is given of the property so that the officer serving the same may determine from the search warrant itself the property to be searched, without the necessity of obtaining information other than from the search warrant, the same may be executed. The evidence in the instant case is sufficient to sustain the information in this case, and also to hold that the description is sufficient.

The second and third assignments of error may be considered together. The officers, in executing the search warrant of defendant’s home, also searched a building in the rear of his premises, which was used as a garage or store room, and another room in connection therewith. This they had a right to do under the terms of the search warrant. The floor of this building was covered with hay, and under the floor the officers found 34 half pints of whisky. No whisky was found in defendant’s home. The defendant was not present at the time of the search. The evidence revealed that defendant owned the garage binding where the whisky was found, but his wife testified that the premises were leased to Monroe Medlin, who was a brother-in-law of defendant, and who resided in a two-room house about 200 or 300 yards from defendant’s home. Monroe Medlin’s home was.also searched, under a different search warrant, at the same time defendant’s premises were searched.

The testimony which attempted to connect defendant with the possession of the liquor in question was wholly circumstantial. There was no direct and positive evidence to connect defendant with the possession of the liquor. Under these circumstances, we are of the opinion that the court erred in refusing to give the requested instruction of the defendant upon the question of circumstantial evidence. Moore v. State, 34 Okla. Cr. 277, 246 P. 648; Breedlove v. State, 49 Okla. Cr. 428, 295 P. 239; Ayers v. State, 53 Okla. Cr. 89, 7 P. 2d 918, 919; Carroll v. State, 54 Okla. Cr. 196, 197, 16 P. 2d 891; Craigo v. State, 64 Okla. Cr. 362, 81 P. 2d 336.

We have examined instruction No. 8, given by the court. Inasmuch as this case must be reversed by reason of the error heretofore mentioned, we suggest that on a retrial of the case, the court instruct the jury under the terms of the statute, 21 O. S. 1941 § 172, and thus give the jury an opportunity to pass upon the question of fact as to whether Monroe Medlin was in possession of the liquor, and the defendant was interested with him in the possession of the same. Instruction No. 8, complained of, had a tendency to place the burden of proof upon the defendant.

We note from the record that the trial court, in his instructions to the jury, defined the term “reasonable doubt.” Prom the very early days of this court we have held that it is best that this term should not be defined. Gransden v. State, 12 Okla. Cr. 417, 158 P. 157; Nelson v. State, 5 Okla. Cr. 368, 114 P. 1124; Soper v. State, 22 Okla. Cr. 27, 208 P. 1044. No exception was taken to this instruction, and for this reason this case would not be reversed for this error alone. However, if the case is to be retried, this instruction should be eliminated.

As to the contention that incompetent and irrelevant testimony was admitted, this assignment of error need not be considered, as it will not occur in a future trial of tbe case.

For tbe reasons above stated, tbe judgment and sentence of tbe court of common pleas of Tulsa county is reversed, and tbe case remanded.

JONES, J., concurs. DOYLE, J., not participating.


text:
    BEADIE FORD v. STATE.
    No. A-10353.
    Feb. 28, 1945.
    (156 P. 2d 633.)
    Sam L. Wilhite, of Anadarko, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant entered a plea of guilty to the offense of unlawful possession of intoxicating liquor in the county court of Caddo county and was sentenced to serve 30 days in the county jail and pay a fine of $100 and costs. The defendant paid the fine and costs. Later, the defendant filed an application to withdraw the plea of guilty and enter a plea of not guilty, which was denied. After a motion for new trial -was overruled, the defendant perfected an appeal to this court.

The Attorney General filed a motion to dismiss the appeal in which it is alleged that the fine and costs having been fully paid and satisfied, the trial court was without authority at law to grant a new trial or to review said action or make any order in relation to said judgment. No. response was filed to said motion and no appearance was made on behalf of defendant at the time it was set for oral argument.

In the case of Tracy v. State, 24 Okla. Cr. 144, 216 P. 941, 943, it is stated:

“Where judgment has been rendered and the defendant has suffered the penalty pronounced in the judgment in whole or in some substantial part, even during the term, the authority of the court rendering the judgment is at an end and the trial court is without jurisdiction to modify, suspend, or otherwise alter the judgment, except to set-aside a judgment void on its face as shown by the record,”

In the case of Ex parte Pruitt, 41 Okla. Cr. 318, 273 P. 288, 289, it is stated:

“The rule is well settled that, when a court has rendered judgment and imposed sentence upon a verdict of guilty or a plea of guilty, and such judgment and sentence has been carried into execution, the power of the court as to that offense is at an end, and the court is without jurisdiction to render a second judgment and sentence upon the same. Rupert v. State, 9 Okla. Cr. 226, 131 P. 713, 45 L. R. A., N. S., 60; [Ex parte] Myers, 12 Okla. Cr. 575, 160 P. 939. On these authorities the trial qourt was without jurisdiction to render the second judgment and sentence, or to correct the original judgment after such judgment had been executed, as in this respect the power of the court must be exercised when the original judgment is rendered.”

See, also, Rupert v. State, 9 Okla. Cr. 226, 131 P. 713, 45 L. R. A., N. S., 60; Yoder v. State, 66 Okla. Cr. 178, 90 P. 2d 669; Ex parte Meadows, 71 Okla. Cr. 353, 112 P. 2d 419.

In the light of the above authorities, it is apparent that at the time the defendant presented her application to withdraw her plea of guilty and enter a plea of not guilty, the trial court was without authority to grant her request for the reason that a part of said judgment had already been satisfied. The court’s refusal to allow the defendant to withdraw the plea of guilty and enter a plea of not guilty under such circumstances may not be questioned oil appeal.

The judgment and sentence of the county court of Caddo county is accordingly affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., not participating.


text:
    CHARLIE HILL v. STATE.
    No. A-10366.
    Feb. 28, 1945.
    (156 P. 2d 631.)

      Hughes & Hughes, of Hobart, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Charlie Hill, was charged in the county court of Kiowa county with the crime of unlawful possession of intoxicating liquor, was tried, convicted, and sentenced to serve 30 days in the county jail and pay a fine of $50 and costs.

The first assignment of error is that the court erred in overruling the motion to suppress evidence. The description in the search warrant is as follows:

“First unpainted house south of Fifth Street and east of the Frisco right of way on Fifth Street and said house being situated on Lot one (1), Block Thirty-one (31) of Lamb’s Railroad Addition to the original city of Hobart, Kiowa County, Oklahoma.”

At the hearing on the motion to suppress, counsel for defendant introduced in evidence a journal entry of judgment dated March 31, 1925, wherein a portion of Lamb’s Railroad Addition to the city of Hobart, which included lot 1, of block 31, had been vacated by the district court of Kiowa county.

It is the contention of defendant that since the premises described in the search warrant were a part of the land vacated and detached from, the city of Hobart, the description set forth in the search warrant described property no longer in existence and was insufficient to authorize a search of defendant’s premises.

There is no merit to this contention. There were two descriptions in the search warrant, either of which would have been sufficient to authorize a search of defendant’s premises. That part of the description referring to lot 1 of block 31 of Lamb’s Railroad Addition as a part of the original city of Hobart is correct. It was a part of the original city although it Avas later vacated because of non-development. This was just an additional descriptive averment set forth in the warrant to assist in correctly locating the premises to be searched. There is nothing in the description which is erroneous, and it is apparent that the description Avas sufficient to inform the officers to Avhom it was directed of the correct location of the property to be searched.

It is next contended that the state failed to prove the venue. It is true that there is no direct testimony that the alleged offense occurred in Kiowa county. Yet, there are numerous statements which show that the defendant lived in the colored section of the city of Hobart. This court will take judicial knowledge that the city of Hobart is in Kiowa county. In the case of Ward v. State, 13 Okla. Cr. 81, 162 P. 232, it is stated:

“While it is always a simple matter, and-is much the safer plan, for the state to prove venue directly and positively, yet the one essential test is whether or not the venue has in some way been proved, and if it is proved by circumstances or. indirect statements which fix the venue, the requirements of |he law have been met.”

In the testimony of Tom Overstreet, who swore that he was a constable of Kiowa county, we find this evidence:

“Q. Now, Tom, as a constable of Kiowa county, do you have occasion from time to time to be down in the colored section of the city of Hobart? A. Yes, sir. Q. You are well-acquainted ivith the defendant here? A. Yes, sir. Q. And the premises upon which he resides? A. That is right. Q. Had you seen the defendant around the place where you found the liquor that day, before? A. Yes, sir. * * * Q. Where did the defendant live there in colored town? A. First house on the south side of Fifth street just as you cross the railroad track.”

In addition to the testimony of the constable, we find the folloAving testimony given by the defendant:

“Q. Hoav long have you lived in and around Hobart? A. Oh, I don’t know, sir. Eight or ten years, I guess, off and on.”

It has been held that venue does not have to be proved beyond a reasonable doubt, Edwards v. State, 25 Okla. Cr. 167, 219 P. 427; Cole v. State, 34 Okla. Cr. 366, 246 P. 653; Jentho v. State, 19 Okla. Cr. 434, 200 P. 251, and it may be proved by circumstantial evidence. Ward v. State, supra; Edwards v. State, supra; Nix v. State, 20 Okla. Cr. 373, 374, 202 P. 1042, 26 A. L. R. 1053; Fannin v. State, 65 Okla. Cr. 444, 88 P. 2d 671.

There is no error in the record, and it follows that the judgment of the county court of Kiowa county be and the same is hereby affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., not participating.


text:
    SWANIE R. FITZGERALD v. STATE.
    No. A-10365.
    Feb. 28, 1945.
    (156 P. 2d 628.)

      Hughes & Hughes, of Hobart, for plaintiff in error.
    Bandell S. Cobb, Atty. Gen., E. J. Broaddus, Asst. Atty. Gen., and David L. Field and Gerald Watts, Co. Atty., both of Hobart, for defendant in error.
   BAREFOOT, P. J.

Defendant, Swanie R. Fitzgerald, was charged in the county court of Kiowa county with the crime of unlawful possession of intoxicating liquor, was tried, convicted and sentenced to pay a fine of <¶250, and to serve 30 days in the county jail, and has appealed.

Defendant sets forth seven assignments of error, but in his brief presents them under one head:

“There is no competent evidence in the record to sustain the verdict of the jury and judgment of conviction of the defendant.”

The record reveals that Mrs. Mertice Taft owned an apartment house in the city of Hobart, Kiowa county, Okla. This house contained five apartments, with a stairway from the first to the second floors in the front hall. Defendant rented from Mrs. Taft two rooms on the lower floor, in which he and his family lived. He also rented a single room on the second floor, where he had some furniture stored.

Tom Overstreet, a constable, secured a search warrant for the purpose of searching for intoxicating liquor in the two rooms occupied by defendant, on the lower floor. He went to the apartment house about 11 o’clock on the night of November 24, 1941, accompanied by three deputy sheriffs. When near the house, they saw an automobile drive up to the apartment house and stop. They went to the porch and saw a man standing in the hall, and saw the defendant, clad in his pajamas, come from his rooms on the lower floor and go up the stairs. In a very few minutes they saw Mm coming down the stairs, and when he reached the bottom of the steps they stepped inside, and Constable Overstreet handed him the search warrant. As he did so, he saw a bottle of whisky in defendant’s hand, and he testified that defendant “stuck his hand sort of behind him.” The constable looked, and defendant had two pint bottles of whisky in his hand, which the officers took at that time. The officers saw a bill, or bills, in the hand of the other man in the hall, who stepped into defendant's rooms. The officers did not hold him.

They searched the two rooms on the lower floor, occupied by defendant, but found no intoxicating liquor. Constable Overstreet and one of the deputies then returned to Hobart for the purpose of securing a search warrant to search the room on the second floor. The other two officers remained on the premises, and one of them telephoned the officers at the county attorney’s office, telling them to return, that defendant had given his permission for the search of the room, and that it was unnecessary to procure a search warrant.

When the officers returned, a search was made of the room on the second floor, and the officers there found seven pints and 20 half pints of whisky, in a “plant” situated in the floor of this room. The plant was under a rug, between the floor of the room and the ceiling of the room below. Floor boards had been cut so as to make a door or lid for the plant, and a hole had been bored in one board so that a finger could be inserted and the lid raised. The defendant was arrested and charged Avith the possession of the liquor.

Prior to the date set for trial, defendant filed a motion to suppress the evidence on the ground that the search was illegal, and any seizure made thereunder was in violation of his constitutional rights. A hearing was had on this motion by the court prior to the trial, and evidence taken. It developed at this hearing that the original affidavit and search warrant had been lost and could not be produced, and that the justice of the peace who had issued the search warrant had died. The justice of the peace appointed in his place produced the docket kept in his office, and it was introduced in evidence. This • docket showed the issuance of the search warrant in question, and the- return thereof.

Under the above statement of facts, we are of the opinion that the evidence was sufficient to show that a search warrant had been issued and served. This being true, the officers had the legal right to enter the premises for the purpose of searching the same. If they had the right to enter the premises legally, then any violation of the law committed in their presence would justify them in making an arrest without the necessity of a warrant. It is revealed by the evidence that they observed defendant with two pints of whisky in his hand. The party who had entered the premises prior to the officers was standing near by with money in his hand. These circumstances were sufficient to justify the arrest of defendant. Simons v. State, 69 Okla. Cr. 265, 101 P. 2d 852; Tripp v. State, 73 Okla. Cr. 69, 118 P. 2d 273; Golden v. State, 75 Okla. Cr. 121, 129 P. 2d 202; Barfield v. State, 68 Okla. Cr. 455, 99 P. 2d 544.

Mrs. Taft, who owned the apartment house, gave the officers, permission to search any part of the house under her control. We do not think this gave the right of search to the rooms rented and occupied by her tenants without their consent. There is some dispute as to whether defendant gave his permission to search the rooms occupied by bim, but we deem this as immaterial, for the reason that defendant had lawfully been placed under arrest by the officers and this gave them the right to search his person and property in his immediate possession, and they therefore had the right to search the store room which was under his control and possession, on the second floor. Secreted in a trap under the floor of this room, the officers found seven pints and 20 half pints of whisky.

The evidence in this case revealed that defendant was arrested in the hallway of the apartment house. He was not in his own apartment. The general rule is that common halls and stairways of buildings which are rented for offices or tenements, are in the possession of the landlord for the use of his tenants. Flanagan v. Welch, 220 Mass. 186, 107 N. E. 979; Tremont Theatre Amusement Co. v. Bruno, 225 Mass. 461, 114 N. E. 672, L. R. A. 1917C, 387.

This, of course, does not mean that a hall and stairway such as in the instant case would be deemed a public place. However, it did not constitute a part of the dwelling place or home of the defendant, but premises which he with others had the right to use, and was in the possession and under the control of Mrs. Taft, the owner of the apartment house. We are not holding that the officers had the right to enter the hall of these apartments without a valid search warrant, but having lawfully entered, they had the right of arrest if they saw a violation of the law therein, without the necessity of a search warrant.

Defendant did not take the witness stand, and no attempt was made to explain or deny the possession of the whisky. The records of this court reveal this defendant to be an old offender of the prohibition laws of this state.

In addition to the Oklahoma cases above cited, we call attention to the case of Taylor v. State, 120 Tex. Cr. R. 268, 49 S. W. 2d 459, 461, in which the Court of Criminal Appeals of the State of Texas held:

“In the present instance, the arrest of the appellant and the search of his residence can be upheld if the officers making the arrest and search were lawfully in the yard of appellant’s residence at the time of the commission of the offense described by them. If, however, they were in his yard unlawfully at the time they discovered the commission of the offense, the arrest of the appellant and the search of his residence cannot be upheld, and the evidence of his guilt obtained by virtue of an illegal entry into his yard would be inadmissible under the terms of article 727a, C.C.P. Since the entry into the appellant’s yard and the consequent observation of the manufacture of whisky in his residence were obtained by virtue of a search warrant, the terms of the search warrant became of vital importance. If the search warrant was void on its face, the entry of the appellant’s yard on the authority of the warrant was unlawful. If regular on its face, the entry of the yard thereunder would not be unlawful. * * *
“From the testimony of the officers, it also appears that before making any search they delivered the search Avarrant, or a copy of the same, to the appellant. The appellant opposed the reception in evidence of the discovery made by the officers, demanding as a predicate therefor the introduction in evidence of the search warrant. Responding to this demand, counsel for the state introduced evidence, the effect of which was to show that the search warrant had been lost. The state also disclaimed reliance upon the search warrant as authority for the introduction in evidence of the criminating facts. If the state had relied upon the validity of the search warrant, it would have been incumbent upon it to show that the warrant was regular upon its face. * * *
“When the appellant demanded the production of the search warrant as a predicate for the proof of the result of the search, counsel for the state declared that he did not possess the warrant and did not rely upon it as a prerequisite for the introduction of the evidence showing the result of the search. The evidence of the officers who arrested the appellant was introduced, in substance, the effect of which was that the search warrant had been issued by a magistrate and placed in their possession; that, before the search of his premises, it was delivered to the appellant. As stated above, if the search warrant was regular upon its face, the entry of the appellant’s premises would not have been illegal. That the appellant possessed a search warrant or a copy thereof was in evidence without dispute. That on its face the search warrant was regular apparently would be presumed. See Burtch v. Zeuch, 200 Iowa 49, 202 N. W. 542, 39 A. L. R. 1349. If we are correct in assuming that the warrant was presumed to be regular on its face, unless the contrary is shown, and, the appellant having possession of the warrant, and thereby the means of rebutting the presumption if the facts justified it, hé apparently was not in a position to complain of the reception of evidence which was obtained through a legal entry of his curtilage by virtue of a search warrant not shown to be void on its face.”

For the reasons above stated, the judgment of the county court of Kiowa county is affirmed.

JONES, J., concurs. DOYLE, J., not participating.


author: BAREOOT, P. J.

text:
    C. W. TIPTON v. STATE.
    No. A-10390.
    March 7, 1945.
    (156 P. 2d 825.)

      J. Garnett Hughes, of Hobart, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and Gerald Watts, Co. Atty., of Hobart, for defendant in error.
   BAREOOT, P. J.

Defendant, C. W. Tipton, was charged in the county court of Kiowa county with the sale of intoxicating liquor, to wit: One pint of “Fortuna” whisky, for the sum of $3.50, to H. B. Crider. He was tried, convicted and sentenced to pay a fine of $50 and to serve 30 days in the county jail, and has appealed.

For reversal of this case, it is contended:

“The evidence clearly reveals that the crime committed by the defendant was planned and procured by the prosecuting witness, H. B. Crider, and defendant was induced by the trickery and fraud of Crider to commit the offense of which he was found guilty, and defendant was ‘entrapped’ into the commitment of such offense by the trickery and fraud, and would not have committed such crime but for trickery and fraud, and the trial court therefore erred in refusing to give defendant’s offered instructions numbered one and two, on the question of ‘entrapment.’ ”

The evidence in this case reveals that the prosecuting witness, IT. B. Crider, was a state enforcement officer, working out of the office of the Governor, and that on November 18, 1942, he and Floyd Park, a fellow officer, were in the city of Hobart, Kiowa county. They went to the home of defendant, and Officer Crider went to the back door and purchased from defendant one pint of whisky for a consideration of $3.50. This whisky was paid for with a $5 bill, which was marked and the identical bill was taken from the person of defendant after his arrest, and when searched before being placed in jail.

Defendant testified that the prosecuting witness came to his door and his wife opened the door. She called defendant, and he talked with the prosecuting witness, who told him that he needed some whisky; that he was sick and feeling badly after being out the night before; that he was a newcomer in the community and was working out at the airfield. Defendant admitted selling the pint of whisky for $3.50, but said it was only cost price, and was whisky he had for his own use, and he only sold it because the prosecuting witness told him lie was sick.

After the sale of the whisky, as above outlined, the two officers searched defendant’s premises, and found two additional pints of whisky.

Defendant testified that one of the officers tried to get him to assist them in buying whisky and procuring the arrest of others. This he refused to do.

From the above statement, it will be readily observed that there was no entrapment of defendant, and the court did not err in refusing to give the requested instructions on entrapment offered by defendant. Stevens v. State, 51 Okla. Cr. 451, 2 P. 2d 282.

Defendant cites the cases of Wooten v. State, 70 Okla. Cr. 292, 106 P. 2d 132, and Sanders et al. v. State, 72 Okla. Cr. 85, 113 P. 2d 198, in support of his contention. The facts in those cases are clearly distinguishable from the facts here.

In this case there was no entrapment as contemplated by the law. The testimony of the prosecuting witness was that just as soon as he convinced the defendant that he was “all right” that defendant said, “I believe I will sell it to yon”; and the sale was consummated by defendant accepting the money, and the witness receiving tbe pint of whisky. The fact that the prosecuting witness was an officer did not in any way affect the sale. Caveness v. State, 3 Okla. Cr. 729, 109 P. 125; Stack v. State, 4 Okla. Cr. 1, 109 P. 126; Medlock v. State, 66 Okla. Cr. 27, 89 P. 2d 377; Hiatt v. State, 67 Okla. Cr. 372, 94 P. 2d 262.

Finding no error in the record, the judgment and sentence of the county court of Kiowa county is affirmed.

JONES, J., concurs. DOYLE, J., not participating.


author: PEE CUEIAM.

text:
    W. E. MAYES v. STATE.
    No. A-10345.
    March 7, 1945.
    (156 P. 2d 822.)

      Harve N. Langley, of Pryor, and Chas. G. Watts, of Wagoner, for plaintiff in error.
    Eandell S. Cobb, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   PEE CUEIAM.

The defendant, W. E. Mayes, was charged in the county court of Wagoner county, with the crime of driving a motor vehicle upon the public highway while under the influence of intoxicating liquor, was tried, convicted, and sentenced to pay a fine of $100, and has appealed.

It is argued that the trial court erred in admitting in evidence over objection of the defendant testimony of the officers who arrested the defendant that they found some whisky in the automobile allegedly driven by the defendant.

On the day in question, the defendant, a Cherokee Indian who lived in an adjoining county, had driven a Chevrolet coupe automobile to a place about three miles east of Wagoner. He was looking for the house of one Dave West, a friend of defendant who lived in that community. Accompanying the defendant was one Putnam who admittedly was in ail intoxicated condition. According to the testimony of defendant, he was driving Putnam around giving him some air so that lie could sober up, and had started for the home of Dave West. Defendant drove up into the yard of the farm home of one Burkes. He got out of his automobile and went to the house to inquire about the location of the Dave West residence. At the house there were only two boys, aged 14 and 4 respectively. The defendant toussled the hear of the 4 year old boy and attempted to joke and play with both boys. The boys were scared and started to cry and defendant left the premises. As he started to leave the Burkes home, he saw some men bailing hay in an adjoining hay meadow. He drove over into the hay meadow and while over there his automobile became stuck on account of the soft ground in the meadow.

Willburn Burkes, the 14 year old boy at the place where the defendant had stopped, and another neighbor boy went into the town of Wagoner, and reported to the officers that the defendant was out in the hay meadow. It is apparent from the testimony of Willburn Burkes at the trial that he greatly exaggerated the defendant’s condition when he reported to the officers. This was no doubt due to the fact that the defendant was a stranger to him and because of his Indian blood and mannerisms had scared the youth. After the youths had reported to the officers, the officers drove out to the hay meadow, and, accordingly to their testimony, “to arrest him.”

Officer Willis, after testifying concerning the incidents leading up to his going to the hay meadow, testified about going up to the defendant’s car. His testimony as to what happened then is as follows:

“Q. What happened then? What did you do? A. I said, ‘What you doing, fellow?’ I don’t recall the remark he made — something about what’s it to you. I said, ‘I’m taking you to town.’ * * * Q. Why did you go down there? For what purpose did you go down there? A. I went down there to get the man. Q. Did you have a warrant for him? A. No, sir. Q. As far as you knew, he had committed no crime, misdemeanor or otherwise. A. As far as I knew, yes, he had. These boys’ statement to me that he was drunk and disturbing someone was enough. Q. What was Mayes’ condition with reference to being under the influence of intoxicating liquor? A. Well, he was under the influence of liquor, yes, sir. I couldn’t say he was drunk. Anybody knowing anything would have cause to think the man was under the influence. (Officer) White told him if he made trouble he would knock his head off. Q. Did you find anything in the car? A. Yes, sir. Q. In what part of the car did you find it? A. When I opened the door, there was a pint about 2/3 full of whisky. Q. Did you open the door? A. That is right, and a pint about 2/3 full fell out. Q. Did you have a search warrant for it? A. No, sir. I opened the door to get him out.”

The officer further testified that there was another pint about half full laying in the glove compartment, which was open, and that they raised up the turtle-back of the car and found two more pints in the back-end of the car. All of the testimony -with reference to the search and seizure of the whisky was admitted over the objection and exception of counsel for defendant.

Title 37 O. S. 1941 § 8, provides:

“Any person Avho shall, in any public place, or in or upon any passenger coach, street car, or in or upon any other vehicle commonly used for the transportation of passengers, or in or about any depot, platform, waiting station, or room, drink any intoxicating liquor of any kind, or if any person shall be drunk or intoxicated in any public or private road, or in any passenger coach, street car, or any public place or building, or at any public gathering or if any person shall be drunk or intoxicated and shall disturb the peace of any person, he shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by á fine of not less than ten dollars, nor more than one hundred dollars, or by imprisonment for not less than five days nor more than thirty days, or by both such fine and imprisonment.”

Under this statute, the defendant was not committing a misdemeanor in the presence of' the officers when they arrived at the hay meadow. Assuming for the purpose of disposing of this question that defendant was intoxicated, yet the hay meadow was not a public place under the terms of the above statute, and it was not a violation of the law for a person to be drunk in such hay meadow.

The defendant testified that after he became stuck in the hay meadow that he was there about an hour before the officers came and during this time, he “took a drink or two; any old Indian would.” There was no proof that defendant was intoxicated at the time he drove the auto-moblie up the country lane to the Burkes home, except the evidence of the Burkes boy in which he testified as follows:

“Q. What was his condition with reference to being under the influence of intoxicating liquor? A. I don’t know anything about constipating liquor. Q. Was he drunk or sober? A. He was drunk. (Cross-examination) “Q. Do you drink anything? A. No, sir. Q. You don’t know anything about intoxicating liquor? A. No, sir. Q. You have sued the defendant — you and your father? A. Yes, sir. Q. In the district court at Pryor? A. Yes, sir. Q. For $2,500? A. Yes, sir. I think that is what it was.”

In the case of Miller v. State, 74 Okla. Cr. 104, 123 P. 2d 699, this court held:

“Where the offense is not a felony, the officer cannot arrest without a warrant unless the offense was committed or attempted in his presence.”
“Where the officer does not know of the act constituting the offense, it is not committed in his presence.”
“Where officers arrest the defendant upon mere suspicion that he is distributing parlay cards to be used for betting upon football games, and at the time of the arrest the defendant is searched, the evidence thus obtained is in violation of the constitutional right of the defendant to be secure in his person against an unlawful search and seizure, and is inadmissible against the defendant.”

In the case of Gragg v. State, 66 Okla. Cr. 163, 90 P. 2d 454, 455, it is stated:

“Where the offense is not a felony, the officer cannot arrest without a warrant unless the offense was committed or attempted in his presence.”
“In a prosecution for unlawfully transporting intoxicating liquors, defendant cannot be convicted upon evidence obtained by an unlawful search of his person without a warrant for his arrest, and neither the liquor so seized nor the evidence of possession thereof so acquired is admissible against him.”

In the case of McKee v. State, 59 Okla. Cr. 353, 60 P. 2d 216, 218, it is said:

“A search of the person, without a warrant and where no legal arrest has been made, and on mere suspicion, is a violation of section 30, art. 2, State Constitution, forbidding unreasonable searches.”
“Where a person is unlawfully arrested and his person, possessions, and immediate surroundings searched, the fact of finding liquor by such search does not constitute a justification therefor.”

See, also, the following cases to the same effect. Patty v. State, 74 Okla. Cr. 322, 125 P. 2d 784; Whitford v. State, 35 Okla. Cr. 22, 247 P. 424; Hoppes v. State, 70 Okla. Cr. 179, 105 P. 2d 433.

In this case, the officers went to the hay meadow to arrest the defendant. They were acting on' purely hearsay information which they had received from the two boys. The defendant had committed no misdemeanor in their presence. Under such circumstances, the arrest of defendant and search of his car was unauthorized and the whisky seized at such time was inadmissible in evidence against defendant. Due to the weakness of the state’s case, as to whether the defendant was intoxicated when he drove the automobile up the road to the hay meadow, the admission of the evidence concerning the finding of the whisky was probably the determining factor in causing the jury to return a verdict of guilty. Because the erroneous admission of this evidence did materially prejudice the defendant, it is our opinion that the judgment and sentence of the county court of Wagoner county should be reversed.

It is so ordered.


text:
    O’DELL PERRY v. STATE.
    No.A-10396.
    March 14, 1945.
    (157 P. 2d 217.)

      H. I. Aston, of McAlester, for plaintiff in error.
    Randell S. Cobb, Atty. Gen.,- Jess L. Pullen, Asst. Atty. Gen., and Paul Gotcher, Co. Atty., of McAlester, for defendant in error.
   BAREFOOT, P. J.

Defendant, O’Dell Perry, was charged in the district court of Pittsburg county with the crime of “escaping from a state prison”; was tried, convicted and sentenced to serve a term of two years in the State Penitentiary, and has appealed.

An information was filed in the district court of Pittsburg county on June 30, 1942, the charging part of which was as follows:

“. . . that O’Dell Perry did, in Pittsburgh County and the state of Oklahoma, on or about the 8th day of April, in the year of our Lord One Thousand Nine Hundred and Forty-two, and anterior to the presentment hereof, then and there unlawfully, willfully, wrongfully and feloniously commit the crime of escaping from a state prison in the maimer and form as follows, to-wit: That on the 26th day of November, 1933, the said O’Dell Perry was duly committed to a state prison, to-wit: The Oklahoma State Penitentiary located at McAlester, Oklahoma, said commitment being from the District Court of Muskogee County, Oklahoma, ordering the Warden of the Oklahoma State Penitentiary to confine the said O’Dell Perry for a term of 50 years for the crime of Robbery with Firearms, which the said O’Dell Perry had been duly and legally convicted in Muskogee County, Oklahoma; that thereupon the said O’Dell Perry became prisoner #28841 of the Oklahoma State Penitentiary, and was such prisoner on the Sth day of April, 1942, and as such prisoner was permitted to be at large as a trusty of the Oklahoma State Penitentiary as aforesaid and permitted to be at large as a trusty did then and there unlawfully, wrongfully, willfully and felon-iously escape from said Oklahoma State Penitentiary by then and there leaving said premises and absconding without the knowledge or consent of the Warden of the said Penitentiary or any of the officials or guards thereof; contrary to the form of the statutes, in such cases made and provided, against the peace and dignity of the State.”

When arraigned, counsel for defendant, after taking time to plead, filed a demurrer to the information, which was as follows:

“Comes now O’Dell Perry, defendant in the above styled cause, by his attorney, H. I. Aston, and demurs to the information in said cause for the following reasons, to wit:
“1. That said information does not charge an offense under the laws of this state;
“2. That the offense charged in said information under Tit. 21, Paragraphs 443 and 443a of the Oklahoma Statutes of 1941 is contrary to law.
“3. That the act under which this information is based is unconstitutional, and contrary to the 14th Amendment of the Constitution of the United States of America.”

The court overruled the demurrer and defendant refused to plead. Counsel representing defendant said:

“My theory is this, that after the demurrer is overruled and the defendant refuses to plead further, then the court passes judgment.”

22 O. S. 1911 § 511. The court then, acting upon the suggestion of counsel and the case of People v. King, 28 Cal. 265, 266 (Book 9 P. States Rep.) construing a statute identical with the above statute, sentenced defendant to a term of two years in the State Penitentiary at McAlester. No question of this procedure is raised by defendant. From the judgment and sentence appeal has been perfected to this court. The assignments of error are the same as stated in the demurrer above quoted.

The statute under which defendant was charged is 21 O. S. 1911 § 113, which is as follows:

“Any prisoner in either the State Penitentiary or State Reformatory sentenced thereto who escapes from such prison, either while confined therein, or while permitted to be at large as a trusty, is punishable by imprisonment in such prison for a term not less than [two] (2) years or more than seven (7) years.”

We desire to call attention to the history of this statute. Section 8361, C. O. S. 1921, fixed the punishment for escape, “by imprisonment in said prison for a term not exceeding double the term for which he was so sentenced, to commence from and after the expiration of his former sentence.”

The Legislature in 1935, c. 15, art. 1, amended this section and fixed the punishment for escape at not to exceed five years, “to commence from the expiration of the original term of his imprisonment.”

In 1939, c. 15, art. 1, the statute ivas again amended, and the punishment was fixed at “not less than (2) years [and not] more than seven (7) years, to commence from the expiration of the original term of his imprisonment.”

In 1943, c. 12, it was again amended by striking from the 1939 act the clause, “to commence from the expiration of the original term of his imprisonment.” 21 O. S. Supp. 1943 § 443.

In the case of State v. Johnsey, 46 Okla. Cr. 233, 287 P. 729, this court held section 8361, C. O. S. 1921, unconstitutional. Evidently the law as enacted by the Legislature in 1935, 1939, and 1943 was for the purpose of correcting the lawr of 1921, which the above case held was unconstitutional.

It is first contended that the information does not charge an offense against the defendant, by reason of the fact, it is alleged, that defendant “was permitted to be at large as a trusty of the Oklahoma State Penitentiary.” It is argued that by reason of his being “at large, as a trusty,” he could not be charged with escape.

To support this contention, the case of Ex parte Elev, 9 Okla. Cr. 76, 130 P. 821, is cited. A careful reading of this case discloses that the facts are in no wise similar to those in the instant case. It may be noted that the statute above quoted, when referring to an escape, uses the term “either while confined therein, or while permitted to be at large as a trusty, is punishable,” etc. It was certainly the intention of the Legislature, by the enactment of this statute, to punish one who escapes while a “trusty” the same as if confined in the prison. To place any other construction upon this statute would result in the withdrawing of privileges from those who are confined of rights to which they are entitled by reason of their good conduct while in prison. It would upset the whole prison system, and it is certain that the Legislature had no such intention in enacting the aboye statute.

In 19 Am. Jur. 361, an escape is defined:

“An escape has been broadly defined as the voluntary departure of a person without force from the lawful custody of an officer or from any place where he is lawfully confined, or as it is more tersely stated, the unlawful departure of a prisoner from the limits of his custody or the act of a prisoner in regaining his liberty before released in due course of law.”

And on page 362:

“. . . Thus, an escape may be committed where a prisoner who is permitted by a jailer to go at large on errands and to perform certain labors outside the prison walls fails to return to the prison.” Citing: Annotations, 10 L. R. A. 148, and 50 L. R. A. 989. See also Jenks v. State, 63 Ark. 312, 39 S. W. 361; State v. Wright, 81 Vt. 281, 69 A. 761; Johnson v. State, 122 Ga. 172, 50 S. E. 65.

In the Jenks Case, supra [63 Ark 312, 39 S. W. 362], it is said:

“The question presented is whether the defendant is guilty of an escape, aw described in the indictment. Our statute provides that ‘if any convict shall escape, on conviction thereof, by indictment, he shall suffer such additional imprisonment as the jury before whom he may be tried shall direct, not less than five nor more than ten years.-' Gould’s Dig. p. 833, § 8. Although Jenks had been made a trusty, and was not confined in the walls of the penitentiary, or kept under guard, yet he was required to remain within certain bounds, to do work, and to obey prison rules. He was, in law, still a convict in custody, serving his term of imprisonment. When, therefore, he fled from the county and state, he committed the crime of escape, for the punishment of which the statute above referred to was passed. Riley v. State, 16 Conn. 47; 1 Russ. Crimes (8th Am. Ed.) p. 416; 2 Whart. Cr. Law, § 1678.”

As to the sufficiency of the information, it will he noted that the charge is the same as the wording of the statute. It has often been held that this is sufficient as against a general demurrer. We are of the opinion that the allegations of the information are sufficient to inform the defendant of the crime with which he is charged, and that it is such as would be a bar to any action commenced in the future, involying this same offense. State of Kansas v. Clark, 121 Kan. 817, 250 P. 300, 50 A. L. R. 986.

It is further contended that the charge in the information is contrary to law for the reason that it violates the' ‘‘due process” clause of the 14th Amendment to the Constitution of the United States of America, which reads:

“Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.”

And also art 2, § 21 of the Constitution of the State of Oklahoma, which is:

“. . . Nor shall any person be twice put in jeopardy of life or liberty for the same offense.”

This contention is based upon the fact that the Act of the 1943 Legislature, which enacted the statute above set out as Tit. 21 § 443, and upon which the charge in the information is based, also enacted section 443a, which reads as follows:

“In addition, all prisoners who escape from either of the aforesaid prisons either while confined therein, or while at large as a trusty, when apprehended and returned to the prison, shall be punishable by the prison authorities in such manner as may be prescribed by the rules and regulations of the prison provided that such punishment shall not be cruel or unusual.”

It will be noted that this section provides that one who escapes, when apprehended and returned, shall be punished by the prison authorities “in such manner as may be prescribed by the rules and regulations of the prison,” etc.

By reason of this provision it is contended that defendant was “twice put in jeopardy of life or liberty.”

In the first place, section 443a of the statute, quoted above, is not involved in this case. There is nothing in the record which .shows or implies that any punishment has been administered or attempted by the prison authorities against this defendant by reason of his escape. He was charged only with a violation of the first section. It is, therefore, unnecessary and would be improper to consider the constitutionality of section 443a. The provisions of this section and section 443 are in no way interdependent.

The Legislature, in adopting section 443a, may have had in mind that the rules and regulations of the prison provided that when one escaped his good time should be denied him, or that the right to again become a “trusty” would be taken from him. Not until the record reveals that a defendant has been punished and the manner of the punishment inflicted, Avould it be proper for this court to construe this statute, or to attempt to pass upon its constitutionality. The punishment attempted to be inflicted would be one of the controlling factors in passing on this question.

The contention of counsel that the case of State v. Johnsey, supra, in holding section 8361, C. O. S. 1921, unconstitutional was decisive of this case, cannot be sustained. That decision was based solely upon the question of the punishment inflicted by reason of its terms. The Acts of the Legislature of 1935, 1939 and 1943 have amended this provision of the law, and the decision in the Johnsey Case Avould have no application here.

For the reasons above stated, the judgment and sentence of the district court of Pittsburg county is affirmed.

JONES, J., concurs. DOYLE, J., not participating.


text:
    In re WARREN HAZEL.
    No. A-10578.
    March 14, 1945.
    (157 P. 2d 225.)

      Robert O. Swimmer, of Oklahoma Oity, for petitioner.
    Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   JONES, J.

This is an original proceeding in habeas corpus instituted by the petitioner Warren Hazel to secure bis release from confinement in the State Penitentiary at McAlester. Prior to the institution of this action, the petitioner filed bis petition for a writ of habeas corpus in the district court of Pittsburg county, in which petition the identical grounds herein presented were alleged and said petition was denied by said district court.

The verified petition filed herein alleges in substance that the petitioner was charged jointly with one Clarence Carpenter, on the 25th day of February, 1944, in the justice of the peace court in the city of Lawton, with the crime of conjoint robbery; that at his arraignment before the justice of the peace, petitioner was not advised as to the nature of the complaint filed against him, was not advised of bis statutory right to have the benefit of counsel, that a copy of the complaint was never served on him, nor was the complaint read to him, nor was he informed that he was waiving any of these rights.

The petition further alleges that at the time he signed an instrument, which he afterwards learned was his purported confession, he was advised by the county attorney that if petitioner would enter a plea of guilty that a charge of robbery with firearms would not be filed, but that a lesser offense which carried no greater penalty than five years’ imprisonment would be filed, and that petitioner was told that if he hired counsel and fought the case, there was no telling what he would get.

The petition alleged that petitioner entered his plea of guilty before the justice of the peace on February 25, 1944, because he feared reprisals to his wife, and by fear of receiving a greater sentence and upon the hope that the county attorney would assist him to gain a lighter sentence than he had previously promised him.

That on the 26th day of February, 1944, an information was filed in the district court of Comanche county, and that petitioner was taken before said district judge on said date for arraignment; that petitioner was ignorant of court procedure and was not advised of the nature of the charge filed against him and was not advised that he had a right to benefit of counsel before entering his plea to said information, but that he relied upon the advice of the county attorney as to the nature of the charge against Mm; that after he entered his plea of guilty, he did not waive time in which to have 48 hours before pronouncement of judgment, but that the district court immediately sentenced him to serve 25 years’ imprisonment in the State Penitentiary, following which judgment and sentence be was immediately transported to the State Penitentiary where he is now incarcerated.

Attached to the petition are certified copies of the criminal complaint filed in the justice of the peace court, the information filed in the district court, and the judgment and sentence pronounced upon the plea of guilty. All of these instruments are identified and made a part of the petition.

A response was filed by the warden of the State Penitentiary in which he denied every material allegation in the petition except that he was holding the petitioner in custody under a commitment from the district court of Comanche county to serve a term of 25 years for conjoint robbery.

At the hearing held before the district court of Pitts-burg county, evidence was introduced on behalf of the petitioner and the respondent. A transcript of this evidence was prepared and, by agreement of the parties hereto, this cause was submitted to this court upon the transcript of the evidence had before the district court of Pitts-burg county and affidavits attached thereto.

The petitioner testified on direct examination to substantially the same facts as alleged in his petition. On cross-examination, he admitted signing a confession in the county attorney’s office, which related the details of the crime of robbery committed by the petitioner and his codefendant, Clarence Carpenter. In this confession signed by the petitioner and sworn to before the court clerk of Comanche county, the petitioner states that he is 23 years of age; that he and the codefendant, on February 23, 1944, were taxicab drivers in the city of Lawton; that early in the morning of February 24, 1944, about 6 a. m., he and Carpenter picked up another man and two girls; that they were all drinking; that they drove out to the edge of town and stopped; that while they were there, a car approached and the codefendant Carpenter stopped the car and stuck a pistol in the old man’s face who was driving the ear; that there ivas no shell in the gun and that Carpenter was just joking with the old man; that Carpenter told the old man he was just joking and for him to drive on, and when the old man started off, the petitioner jumped on the fender, rode about a hundred yards, and then hit the elderly man a time or two and took $15 in money from him.

Apparently, the man who was assaulted by the petitioner and his codefendant reported the robbery immediately to the officers and the petitioner and Carpenter were arrested within an hour or two. Later that same day, each of them signed a confession to the assistant county attorney. The following day, they waived a preliminary hearing before the justice of the peace and were bound over to the district court. The next day, they were arraigned in the district court and entered their plea of guilty to the crime of conjoint robbery.

On further cross-examination of the petitioner, he admitted that the facts in connection with the alleged robbery were substantially as related in the confession which he signed. The Assistant Attorney General then read the affidavit of the district judge who pronounced the judgment and sentence and inquired as to whether the proceedings before the court were as outlined in the affidavit of the judge, to which the petitioner answered, “Well, not altogether,” but petitioner did not elaborate as to what parts of the affidavit of the trial judge were incorrect.

The affidavit of the trial judge, after reciting that he was the judge who sentenced the petitioner and his code-fendant to serve 25 years in the State Penitentiary for the crime of conjoint robbery, farther alleged:

“That said defendant, Clarence Carpenter and Warren Hazel, before entering their separate and individual pleas of guilty to said charge, were each fully and carefully advised as to all of their rights as set out in the judgment and sentence in said cause. After the information was read to them, they were carefully and fully advised of their right to counsel and to be advised by counsel and that they were entitled to a fair and impartial- trial by jury, and that if they were financially unable to employ counsel the court would appoint counsel to represent them and see that their rights Avere fully protected and the court also advised them that they Avould have at least 24 hours and any other reasonable additional time thereafter before they should be required to enter their pleas, one way or the other. Each of them stated that they fully understood their rights to trial by jury and to have the advice of counsel and each stated that he desired to have neither. Also, after the information was read to them, they and each of them, were fully and carefully advised as to the charge, and the nature and cause of the accusation was fully and carefully explained to each of them, as was also the consequences of their plea thereto, and they and each, of them separately and individually stated to the court that they fully understood the nature and cause of the accusation and matters set out in the information and the consequences of their pleas, and that they desired to voluntarily waive their right to trial by jury, their right to have counsel and their right as to the time in which to plead and that it was their and each of their desire at that time to enter their respective pleas without counsel and without any further delay Avhatsoever. The court then asked each of said defendants Avhether he was guilty, or not, of the crime charged in the information, and each of them said that he was guilty. The court then asked each of them if they actually did what they were charged with doing in the information. Each of them said that he did do the things he was charged with doing therein. The court then accepted said pleas.
“The court heard the testimony of the complaining witness, Luther Cannon, for the purpose of determining matters of either aggravation or mitigation as to the amount of punishment, after the pleas had been entered, and explained to each of the defendants that each of them had a right to cross-examine the witness Cannon, and that the court would be glad to hear any statements from them, or any evidence or facts in their behalf that either of them cared to present to the court going to the question as to the amount of punishment. Both and each of said defendants admitted and stated that the facts as related by the witness Cannon were true, and that the facts and circumstances as related by him were correct, and that they had no evidence to offer or further facts- to call to the attention of the court other than the statements which they had already made.
“Thereupon, the said defendants, and each of them, were asked whether or not, they had any just cause, or any reason whatsoever, to show why judgment and sentence for the crime they had committed should not be pronounced against them and each of them, and the said defendants, and each of them, stated that they had no cause nor reason whatsoever to show and the court found them guilty as charged and sentenced them and each of them as above set out.
“Each of said defendants appeared to be of full and mature age and fully intelligent enough to understand all of the proceedings and the nature thereof and there was not the slightest evidence or indication that the court observed anywhere that any pressure was being brought to bear, or any effort was being made by any one, to hasten the proceedings, or to deprive the defendants, or either of them, of any of their rights under the law. The whole proceedings consumed about one hour or more, and the evidence of the witness, Cannon, together with the pleas of guilty and statements of the defendants, and each of them, in open court, showed that the defendants, and each of them, had not only committed the crime of conjoint robbery but had committed it in a very aggravated manner and had not only robbed the said Luther Cannon but in addition thereto had wilfully and unnecessarily made a vicious and unprovoked assault upon said witness Cannon.”

Also included in the record are affidavits from Robert S. Landers, assistant county attorney of Comanche county, and S. R. Harper, assistant county attorney of Comanche county. Their affidavits were substantially identical. They swore that they talked to the petitioner and his codefend-ant, but that the county attorney, Ralph Cline, was not present and did not ever talk to them; that they explained the nature of the charge which had been filed against them and the penalty which it carried; that each of the accused then made voluntary statements which were reduced to writing and signed and sworn to before the court clerk of Comanche county. They then related the details of the proceedings had upon arraignment before the district court of Comanche county, which were substantially as related in the affidavit of the district judge.

It has been held that courts indulge every reasonable presumption against a waiver of fundamental constitutional rights and do not presume acquiescence in their loss. Ex part Barnett, 67 Okla. Cr. 300, 94 P. 2d 18; Ex parte Meadows, 70 Okla. Cr. 304, 106 P. 2d 139. In each of these two cases, however, the judgment and sentence and the minutes of the court were both silent as to whether the petitioner had been advised fully as to all of his statutory and constitutional rights. In the instant case, no such similar situation is presented.

The judgment and sentence recites in part as follows:

“Now on this 26th day of February, 1944, being one of the regular judicial days of the January 1944 term of said district court, the above named defendant Warren Hazel appeared and is present in person before the bar of said court for arraignment upon the charge contained in the information in said cause, and thereupon said information was read to said defendant, Warren Hazel, and the court explained fully to him the nature and cause of the accusation against him, and the consequences of his plea and also all of his rights, including his right to counsel, to trial by jury and time in.which to plead and he states to the court that he desires to voluntarily waive his said rights to trial by jury, to counsel and as to time and desires to enter his pleas at this time and he was then asked by the court whether he is guilty or not guilty of the crime charged in said 'information. And thereupon the said Warren Hazel defendant in said cause, voluntarily and in open court says he is guilty of the crime of con-joint robbery, as charged in said information, and . .

While these recitals in the judgment and sentence are not absolutely conclusive that petitioner was advised of all of his rights as stated in said judgment and sentence, they are entitled to great weight and the burden will be upon any one who assails said recitals to show by clear and convincing proof that they are incorrect. Here we not only have the recitals in the judgment and sentence showing that petitioner was fully advised of his constitutional and statutory rights, but said recitals are further bolstered and supported by the sworn statements of the district judge and the two assistant prosecutors who had charge of the prosecution against petitioner and his codefendant. The proof on behalf of petitioner that he was denied the right to counsel and was not fully advised as to the nature of the charge against him is far from being clear and convincing.

The case herein presented is similar in a great many respects to the case of Ex parte Gault et al., 78 Okla. Cr. 172, 146 P. 2d 133, 136. In that case, the petitioners, Mike Gault and Allen Gault, had entered their jilea of guilty to the crime of robbery with firearms in the district court of Beckham county. In their petition for a writ of habeas corpus, they alleged substantially the same grounds as alleged in the petition filed herein. The language used in that case applies with equal force to the argument herein presented. It was therein stated:

“In the case of Ex Parte Meadows, supra, it is stated:

“‘Under Bill of Rights, sec. 20 (article 2), Okla. St. Ann. Const., an accused has the right to consult with counsel and to be fully advised as to his rights, and as to the consequences of his act before entering his plea to the indictment or information.’
“ ‘A plea of guilty should be entirely voluntary, and should be made by one competent to know the consequences thereof, and should not be accepted until after the defendant has been fully advised by the court of his rights and the consequences of his plea.’
“ ‘A person prosecuted for a crime may waive the rights guaranteed to him by Bill of Rights, relating to trial by jury, right to be heard by counsel, etc.’
“ ‘Whether one accused of crime has waived his right to the assistance of counsel for his defense must depend in each case upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’
“It is established in this jurisdiction that the writ of habeas corpus will not lie to correct purely procedural errors, and is not designed to interrupt the orderly administration of the laws by a competent court acting within the limits of its jurisdiction. Ex parte Grant, 32 Okla. Cr. 217, 240 P. 759; 12 R. C. L. 1192.
“The constitutional provisions guaranteeing to every person in a criminal action certain rights are: First, those in which the public generally, and as a community, is interested, as well as the accused, and which are jurisdictional as affecting the power of the court to try the cause; second, those more in the nature of privileges which are for the benefit of the accused alone, and do not affect the general public.. The former may not be waived; the latter may.
“Among the legal safeguards which have been adopted for the benefit of the accused, which may be waived, are the following: The right to have twenty-four hours in which to plead after arraignment; the right to be furnished with a copy of the information; the right to forty-eight hours after conviction before sentence may be passed; the right to be confronted by the witnesses; the right to trial by jury; the right to have counsel to represent him; the right to a subpoena for his witnesses. Ex parte Gilbert, 71 Okla. Cr. 268, 111 P. 2d 205.
“The only consideration for this court is whether, under the facts in the instant case, there was an intelligent waiver of these rights. We think this must be answered in the affirmative. After all of the evidence has been sifted, the only contention of the petitioners as to their being misled concerned the amount of punishment which was meted out to them. They contended that they thought that they would secure only twenty-five years in the state penitentiary because of an agreement had with the county attorneys of the two counties involved, and that instead they received a total of forty years imprisonment in the state penitentiary. . . .
“Furthermore, the recommendation of the county attorney was purely advisory to the court and he was in no way bound to follow such recommendation. After hearing a statement of the facts surrounding the commission of the crime, it was the trial court’s duty to assess such punishment upon the plea of guilty as seemed to him to be justified.
“Under the facts and circumstances of this case, we do not feel that there has been such a denial of the rights of the petitioners that this court can say that the trial court lost jurisdiction during the course of the proceedings to pronounce judgment upon the plea of guilty.”

After considering this entire record, and in accordance with our views heretofore expressed in Ex parte Gault, supra, above quoted, it is our judgment that the writ of habeas corpus should be denied. However, we wish to again emphasize the duty and obligation which rests upon a district court of this state when one accused of a capital offense is brought before him for arraignment. He should proceed with caution. It would be much better if in every capital case where the accused appears without counsel to assign counsel to consult with him whether requested or not. Courts should be careful and not allow an overzealous prosecutor to cause them to be too hasty in pronouncing judgment. It would be far better, and especially where the petitioner appears without counsel and refuses the offer of counsel extended by the court, to postpone the pronouncement of sentence at least 48 hours after the plea of guilty is entered. As we have herein above stated, the failure of the court to do this will not always constitute a denial of due process of law because these rights are personal to the accused and may be waived by him. However, these rights are so fundamental in their nature that the court should be extremely cautious to see that there has been an intelligent waiver by the accused before proceeding to pronounce judgment.

It follows from the foregoing, especially in view of the fact that the crime herein Avas not a capital offense, that there was no denial of due process of law in the conviction and commitment of petitioner, and the petition for writ of habeas corpus is hereby denied.

BAREFOOT, P. J., concurs. DOYLE, J., not participating.


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    In re CLARENCE CARPENTER.
    No. A-10579.
    March 14, 1945.
    (157 P. 2d 231.)

      Robert O. Swimmer, of Oklahoma City, for petitioner.
    Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   JONES, J.

This is an original proceeding in habeas corpus to secure the release of the petitioner, Clarence Carpenter, from confinement in the State Penitentiary. It is a companion case to the case of Ex parte Hazel, 80 Okla. Cr. 66, 157 P. 2d 225.

The facts in connection with the instant case are fully related in Ex parte Hazel, supra. The verified petition herein is based upon the same allegations as set forth in the petition of Hazel. Our conclusions in that case apply with equal force to the determination of this case. Both cases were presented on the same record and were consolidated for the purpose of argument.

There is one difference which would appeal to this court if we were sitting as a clemency board. The facts in connection with the petitioner, Clarence Carpenter, in so far as his participation in the actual robbery is concerned, are much more favorable to him than were the facts in regard to the part played by the petitioner Hazel. The facts presented in this connection, however, are not questions which pertain to the jurisdiction of the district court of Comanche county to pronounce judgment on the plea of guilty. They are matters which would have been given serious consideration by this court if an appeal had been taken and the question of modification of the sentence had arisen. Because of the former background of the petitioner Carpenter and the small part played by him in the robbery, the sentence might have been modified on appeal. If the facts were as related by Carpenter and Hazel, it is very questionable as to whether Carpenter was guilty of the crime of robbery. We are, of course, not passing on this question as it is not one of the matters properly before the court in a habeas corpus proceeding.

We feel it our duty, however, to mention them so that the petitioner Carpenter would not feel foreclosed, if he so desired, from presenting his application for clemency to the proper authorities.

The writ of habeas corpus is denied.

BAREFOOT, P. J., concurs. HOYLE, J., not participating.


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    IKE FOWLER v. STATE.
    No. A-10386.
    March 21, 1945.
    (157 P. 2d 223.)

      Jerome Sullivan, of Duncan, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Ike Fowler, was charged in the county court of Stephens county with the unlawful transportation of intoxicating liquor; was tried, convicted, and sentenced to serve 30 days in the county jail and pay a fine of $50, and has appealed.

W. L. Dixon, a deputy sheriff, and L. P. Byerley, a policeman of Duncan, followed a car driven by the defendant in the city of Duncan about seven blocks before stopping it. The defendant got ont of the car and a pint of whisky was found on him. The car was searched and no liquor was found in the automobile. The officers had a search warrant for the search of the automobile. It was conceded on the hearing on the motion to suppress evidence that no crime was committed by the defendant in the presence of the officers which would justify the search without a warrant.

For a reversal of this case it is insisted that the court erred in overruling the motion to suppress evidence filed by the defendant and presented prior to the commencement of the trial. The motion to suppress evidence was based on two grounds: (1) The search warrant was not served by the person to whom it was directed. (2) If the search warrant were valid, it did not authorize a search of the person of the defendant when he was outside of the automobile.

The search warrant in question was directed solely “to Elmer Zigler.” The search warrant did not follow the statute by directing it “to any sheriff, constable, marshal or policeman in the county of .” 22 O. S. 1941 § 1226. There was no designation in the warrant as to whether Elmer Zigler was a sheriff or any other peace officer in Stephens county.

22 O. S. 1941 § 1227, states:

“A search warrant may in all cases be served by any of the officers mentioned in its direction, but by no other person except in aid of the officer, on his requiring it, he being present, and acting in its execution.”

This court has hold that a search warrant is process and must run in the name of the state and be dircted to some peace officer in the county where the search is to be made. Key v. State, 43 Okla. Cr. 450, 279 P. 931; Dunn v. State, 40 Okla. Cr. 76, 267 P. 279; Bishop v. State, 47 Okla. Cr. 249, 288 P. 363; Denton v. State, 62 Okla. Cr. 8, 70 P. 2d 135; Mitchell v. State, 74 Okla. Cr. 416, 127 P. 2d 211.

At the hearing on the motion to suppress evidence, the proof showed that Elmer Zigler was in fact the sheriff of Stephens county. In the case of Love v. State, 53 Okla. Cr. 346, P. 2d 769, it is held:

“Sections 2882 and 5899, Comp. St. .1921 [22 O. S. 1941 § 1227 and 19 O. S. 1941 § 514] do not require that the sheriff shall personally serve or shall personally be present at the service of a search warrant directed to the sheriff. Such search warrant may be served by a deputy sheriff, as the agent of his principal. His act is the act and presence of the sheriff.”

In view of the holding of this court in Love v. State, supra, there would have been no question as to the legality of the service of the search warrant if the warrant had been directed to the sheriff, constable, marshal, or policeman in Stephens county, as required by the statute.

Here there is nothing in the faec of the warrant to show that it is directed to anyone other than Elmer Zigler, in his individual capacity. The warrant was not delivered to the person to whom it is directed and he was not present at the time it was served, and he did not direct the persons who served it to do so. As was stated in Denton v. State, supra [62 Okla. Cr. 8, 70 P. 2d 144] :

“It is not sufficient to say that the warrant was executed by a proper officer, as in the instant case. All of the authorities hold that the warrant should be executed by the officer to whom it is directed.”

In Mitchell v. State, supra [74 Okla. Cr. 416, 127 P. 2d 213] it is stated:

“Our Constitution (article 2, sec. 30) specifically prohibits unreasonable searches and seizures. The courts of this state and the Federal courts, in their construction of a similar provision of our Federal Constitution, Amendment 4, have uniformly held that any such law which seeks to limit these sacred rights protected by the Constitution should be strictly construed and that a search warrant should be executed only in the manner and form as provided by the statute.”

Under the plain provision of 22 O. S. 1941 § 1227, supra, it is apparent that the search warrant was not served in accordance with said statute.

With this conclusion established, it is unnecessary to discuss the other proposition presented in defendant’s brief. For the reasons herein above stated, the judgment of the county court of Stephens county is reversed and the defendant discharged.

BAREFOOT, P. J., concurs. DOYLE, J., not participating.


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    JOSEPH JOHNSEY v. STATE.
    No. A-10397.
    March 21, 1945.
    (157 P. 2d 221.)

      H. I. Aston, of McAlester, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Paul Gotcher, Co. Atty., of McAlester, for defendant in error.
   BAREFOOT, P. J.

Defendant, Joseph Johnsey, was charged in the district court of Pittsburg county with the crime of “escaping from a state prison;” was tried, convicted and sentenced tO' serve a term of two years in the State Penitentiary, and has appealed.

Defendant was charged by information with the crime of “escaping from a state prison,” it being charged that he was confined in the State Penitentiary at McAlester by reason of having been convicted and sentenced from Oklahoma county to serve a term of seven years for the crime of second degree burglary.

This is a companion case of that of Perry v. State, 80 Okla. Cr. 58, 157 P. 2d 217. Identical questions were presented in each case, and they were consolidated and briefed together. The opinion rendered in the Perry Case is adopted as the opinion in this case.

The judgment and sentence of the district court of Pittsburg county is affirmed.

JONES, J., concurs. DOYLE, J., not participating.


text:
    IKE A. FOWLER v. STATE.
    No. A-10384.
    March 21, 1945.
    (157 P. 2d 222.)

      Jerome Sullivan, of Duncan, for plaintiff in error.
    Eandell S. Cobb, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Ike Fowler, was charged in the county court of Stephens county with the unlawful transportation of intoxicating liquor; was tried, convicted, and sentenced to serve 30 days in the county jail and pay a fine of $50, and has appealed.

Two assignments of error are presented in defendant’s brief, to wit: (1) Misconduct of the county attorney in his closing argument to the jury which prejudiced defendant’s substantial rights. (2) The verdict is not sustained by the evidence and is contrary to the law. We shall con-' sider these two assignments together.

The evidence shows that two officers of Stephens county armed with a search warrant for the car of defendant saw defendant driving his automobile in the city of Duncan, on May 30, 1942. They stopped his .car, searched it, and found one pint of whisky hidden in a secret built-in compartment up under the dash board. No evidence was offered on behalf of the defendant.

We have ■ examined the argument complained of and it is our opinion that it was not such as unduly influenced the verdict of the jury. Here the guilt of the defendant is apparent. Under the record, no juror with any regard for his oath could do other than return a verdict of guilty. Since the jury assessed only the minimum punishment, the argument of the county attorney evidently did not develop any passion or prejudice in the minds of the jurors. For that reason, it is our opinion that although some of the argument may have been outside of the record and therefore improper that, under the facts herein, it is harmless error. Gee v. State, 53 Okla. Cr. 383, 12 P. 2d 547; Robinson v. State, 44 Okla. Cr. 189, 280 P. 1112.

In connection with the second assignment of error, it is argued that since one of the officers who made the search could not identify the bottle of whisky produced by the county attorney with the other officer’s signature appearing thereon, that the evidence was insufficient to support the verdict. The other officer whose name appeared on the whisky bottle had joined the Navy before the time of trial and was not a witness. The officer who did testify said that they took a pint bottle of whisky with a green label from defendant’s car; that the government seal on the bottle had not been broken; that the liquid was labelled “whisky” and the witness stated that in his opinion the pint of whisky submitted by the county attorney was the identical whisky taken from defendant’s car.

As to whether the liquid seized on that occasion was whisky as alleged in the information, the proof could be made by circumstantial as well as by direct evidence. The fact that the liquid was in a pint bottle with an unbroken government seal, that it was red in color and had the appearance of whisky and was labelled “whisky” was a sufficient showing that the liquid transported by the defendant was whisky, and in the absence of any proof offered on behalf of defendant, was sufficient to sustain the conviction.

A careful reading of the entire record discloses no errors of sufficient importance to justify a reversal of the judgment of conviction. The judgment of the .county court of Stephens county is accordingly affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., not participating.