text:
    ED LYNCH v. STATE.
    No. A-6579.
    Opinion Filed April 20, 1929.
    (276 Pac. 501.)
    Wann & Wann, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Choctaw county, on a charge of having sexual intercourse with, rape, ravish, and carnally know one Elnora Nix, a female person over the age of 16 and under the age of 18, and his punishment fixed at seven years in the penitentiary. Motion for new trial was filed, considered, and overruled, and exceptions saved, and the case appealed to this court.

The testimony on behalf of the state in substance is that Elnora Nix lived with her parents in Choctaw county, near Ft. Towson, and that some time the latter part of December, 1924, her parents went to town and left her, and while they were gone the defendant had sexual intercourse with the prosecutrix, Elnora Nix, and after that time he continued to have sexual intercourse with her, as a result of which the prosecutrix gave birth to a child. Prosecutrix stated that no other man had ever had sexual intercourse with her; that defendant was the only man she had ever cohabited with. The proof on behalf of the state shows that the prosecutrix was born on May 31, 1907, and was under the age of 18 years at the time the defendant first had sexual intercourse with her, and that she was not the wife of the defendant. The testimony further shows that the defendant was married and had a wife with whom he resided at the time it is alleged he first had intercourse with the prosecutrix.

The testimony on behalf of the state tends to show that defendant wrote a note to the prosecutrix and left it under an old plow by a post near the home of the father of the prosecutrix and advised her he would leave it there. The mother of the prosecutrix testified she saw the defendant when he was near the place where the note was left, under the old plow, where it was stated by the prosecutrix it was to be left, and she saw defendant motion to the prosecutrix, and when he left the prose-cutrix went and got the note, and she took it away from her and read the same. The note was introduced in evidence and designated as “State Exhibit 1,” and is as follows:

“Now listen Dear one I have spent all the money I had ,So you must not think I am Trifling with you I aim on Doing what I Told you I would do oh Dont think I will not keep my promise to you you Said that you had kept your word and I know you have done it. Oh please Dont think I am trying to get a Round you I would give all I have on Earth lor you. Oh Be True to me if I am Drove away from you I sure will come back to you as soon as I can get Every thing arranged. Say is thair any one you can out confidence that would help you out if So Name them to me oh if I can get away to get out of the thing! I sure will Stay in Reach of you and I will Dye By you if Necessary I am for you to be my wife in the future if you ar gone away Well it may Be that you ar not gone up yet May Be you will Come O. K. yet Say must I Tell the woman of our Being together or must I waite a while and see if you ar gone. What Ever you Do Dont tell them at home Say if you ar not gone up Do you want me or would you like a younger man I love you So much you ar the only girl I have Tutch oh I Dont See why I Com to love you so much and how you come to love an old ugly man like me Bless Your Sweet Time.”

The defendant had only lived near where the family of the prosecutrix lived for a short while, but had been preaching in that neighborhood and had on several occasions met the prosecutrix at church. The testimony tends to show that when he moved into the neighborhood he located in about 250 yards of where the family of the pros-ecutrix lived; that the prosecutrix frequently saw the defendant from time to time up until in December, 1924, the date she claims he first had intercourse with her; that after the prosecutrix found she had become pregnant, she had a conversation with the defendant telling him of her condition, and he then wrote the note which was introduced in evidence.

The defendant called several witnesses, among others Albert Easterwood, to establish that some time before Christmas, in December, 1924, he saw the father and mother of the prosecutrix going to town; they had potatoes in their wagon; witness stated this was on Monday before Christmas; that he also saw the defendant on that date; that it was about 5 or 5% miles from where he had been living; that he remembers distinctly the time of the month, it was; that he saw the defendant about 4 o’clock, might have been later, going in, the direction of his home; that his wife was with him; he had a load of top fodder on his wagon.

Defendant also called George Kline, who stated he saw the father of the prosecutrix, Mr. Nix, and his wife on December 22, 1924; they were going north toward Ft. Tow-son; they were hauling potatoes; that he distinctly remembers it was on Monday; that he saw the defendant, Ed Lynch, on the same, day, and that his wife was with him, and they were going toward Ft. Towson; Mr. Nix passed first.

The defendant also called his wife, who testified that she was at home on or about the 22d of December, 1924; that her husband and she stayed home on Sunday night and on Monday morning went over to Pine Belt Farm; that she saw Mr. and Mrs. Nix that day, saw them first at their home and next saw them going out of the lane; later they passed them beyond the Widow Salters place on Rocky branch; after they passed the Nixes they met Mr. Easter-wood ; they returned home that night about sundown.

Mrs. McKinzie was called on behalf of the defendant, and she testified to being at defendant’s home on December 22, 1924, and that it was on Monday; that defendant was her father; that she was at home until her mother and father left that morning, and that they returned late in the afternoon; the sun was low, something like 5 o’clock; that Mr. Nix left home before her father did; that Mr. and Mrs. Nix returned before her father did.

This is, in substance, all the testimony that is necessary to be set out in this case, that was introduced by the state or by the defendant. The defendant did not testify.

Several errors are assigned and urged by the defendant as to why this case should be reversed and new trial granted. The first assignment is that the court erred in overruling the motion of plaintiff in error for a new trial. The plaintiff in error in his brief has argued the different assignments, but does not support the same by any authorities showing wherein the court erred in the trial of the case.

The question to be determined in this case is the question, under the facts as presented by the record in this case, did the defendant have sexual intercourse with the prosecutrix, Elnora Nix, within three years prior to the filing of the charge against him in this case, and was the prosecutrix over the age of 16 years and under the age of 18 years at the time of the alleged offense? It is clear from the record that the prosecutrix was born May 31, 1907, and that she would not be 18 years of age until the 31st day of May, 1925. The statement of the prosecutrix is not contradicted by the defendant that the first time she had sexual intercourse with him was some time in December, 1924, and at different times for some months thereafter. The note set out in the record, and placed by him at a designated place where he advised the prosecutrix it would be placed, near where the mother of the prosecutrix claims to have seen the defendant, clearly shows that the writer of the note knew that the prosecutrix was in trouble.

It is urged by the defendant that it is alleged in the information that the first intercourse had with the prose-cutrix by the defendant was the 1st day of December, 1924, and that the first date fixed by the state’s testimony was three or four days before Christmas, 1924, and that the prosecutrix had stated in her testimony that she would be 18 years of age the 31st of December, 1924; that all she knew about her age was what her father and mother had told her; that there is no corroboration of the testimony of the prosecuting witness Elnora Nix. It will be noted that the defendant does not take the stand and deny having sexual intercourse with the prosecutrix. This court has repeatedly held that a conviction for rape may be had upon the uncorroborated evidence of the prosecutrix, unless it bears upon its face inherent evidence of improbability, or is clearly contradictory, or unless the prosecutrix has been successfully impeached. Roberts v. State, 31 Okla. Cr. 103, 237 P. 148.

In Douglas v. State, 19 Okla. Cr. 257, 199 P. 927, this court in the second paragraph of the syllabus said:

“Under the laws of this state, conviction for rape may be had upon the uncorroborated evidence of the prose-cutrix ; but where the testimony of the prosecutrix is contradictory, and her reputation for truth and veracity is impeached, and” defendant’s testimony “denies specifically the testimony of the prosecutrix, and his testimony is corroborated, the testimony of the prosecutrix, standing alone, is not sufficient to warrant a conviction.”

In this case the testimony of the prosecutrix as to the sexual intercourse with the defendant stands unchallenged, and the defendant did not take the stand and testify denying1 the act of sexual intercourse or testimony of the prose-cutrix, nor did the defendant attempt to show that the reputation of the prosecutrix was bad.

It is urged by the defendant that the testimony is insufficient to sustain the verdict and judgment. With this contention we cannot agree. After a careful reading of all the testimony and an examination of the authorities upon the questions raised by the defendant, we are compelled to hold that the testimony in this case is sufficient to sustain the judgment. It is an unfortunate situation; the defendant, a minister of the gospel, so far forgets himself as to enter the home of his neighbor, and there in the absence of his neighbor violates the laws of his state, and the divine command, by cohabiting with his neighbor’s daughter of immature years.

The defendant was accorded a fair and impartial trial; the court properly declared the law as applied to the facts in the case.

There being no prejudicial errors in the record, the judgment is affirmed.

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


source: Caselaw Access Project

author: DAVENPORT, J.

license: Public Domain

text:
    GEORGE MILLS v. STATE.
    No. A-6570.
    Opinion Filed April 20, 1929.
    (276 Pac. 499.)
    Sigler & Jackson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Carter county on a charge of larceny of chickens, was convicted, and his punishment fixed at 30 days in jail and a fine of $100. Motion for new trial was filed and overruled, and the defendant has appealed to this court.

The testimony of the state, in substance, is that on the night of the 16th of February, 1926, Mrs. G. N. Jackson lost a number of chickens. She notified the sheriff the chickens had been taken, and the sheriff notified the poultry-house in Ardmore, and was advised by the firm of Newman & Boucher that on the morning of the 17th of February they purchased a number of chickens from George Mills. Mrs. Jackson came to Ardmore and identified several of the chickens, and claimed the others looked like her chickens that had been stolen.

The state further showed that the produce firm purchased the chickens from G. W. Mills, and paid the defendant with a check amounting to $16.80; that the check was indorsed by the said defendant, Mills, and cashed at the First National Bank of Ardmore.

■Carl and Malcom Jackson, sons of Mrs. G. N. Jackson, also identified part of the chickens found in the coop at the produce house as chickens that had been taken from their place.

The state further showed that, a day or two after the produce house had paid the defendant .the ,$16.80 for chickens, the defendant came to the poultry house and had a conversation with Mr. Boucher, a member of the produce firm; the conversation being as follows:

“The defendant walked into the store and told me he wanted to speak to me; we walked back in the back of the store, and he asked me did I buy any chickens from him this week, and I said, yes, and he said I sold you some chickens before — it wasn’t this week, he said are you positive about that, and he asked me when it was; I said Wednesday. About that time a man or somebody walked in, I don’t remember who it was, and he said let’s walk out here; we walked out on the sidewalk and he said, listen, I am a man of family and I don’t want to get into any trouble, and you are going to get me in trouble. I sold you some chickens but not this week and I would like to get this straightened up. He said if I can straighten it up about the chickens will you be all right; I said I don’t know about that; I bought the chickens and of course want to make a profit besides, I don’t know whether it will be all right. If I do, and give'you a suit of clothes, a hat or a ten. dollar bill will it be all right. I said, you are talking to the wrong man.”

The substance of the state’s testimony was that the chickens were identified as being the chickens of Mrs. Jackson, taken from her home the night of February 16, 1926, and that defendant sold them to the produce house the morning of February 17th, and received a check for $16.80 which he indorsed and received the money from the First National Bank of Ardmore. There was other testimony on behalf of the state from a witness Bob Short, tending to show the defendant’s connection with the chickens.

The defendant called his daughters Edith and Pauline Mills, who testified to having assisted their father in catching the chickens on the night of February 16, 1926, at their home and assisted in putting them in sacks on the morning of the 17th of February, 1926, their father (the defendant in this case) taking the chickens to town to sell. Witness also testified to the chickens being a mixed bunch. The defendant called his wife, Vilna Mills, who testified that the defendant and two daughters caught the chickens the night before, where the chickens roosted, and that defendant brought them to town the next morning. The witness also testified that during the year they had raised about 150 chickens, they were barred Rocks, white and jbrown Leghorns, and some Rhode Island Reds; that defendant brought 18 chickens in all to town that morning.

The defendant took the stand and in substance testified he did not take any of Mrs. Jackson’s chickens; that he did not know where she lived at the time; the chickens sold on the 17th of February, 1926, belonged to his wife; that he did not sell any of Mrs. Jackson’s chickens on the 17th day of February, 1926, to Newman & Boucher.

On cross-examination he was asked if he talked to Mr. Boucher, and admitted he had talked with him two or three days after the chickens were sold, in the presence of Bob Short. “I did not talk] to him about this business. I did not go down to the produce house and talk to him about these chickens. Mr. Short carried me down there. I did not have any conversation with Mr. Boucher in which I told him I did not sell him any chickens excepting before Bob Short. I told him I did not deny the check I had indorsed. I said, Let me see it, I will tell you whether I had or not; I told Mr. Short out on the road that I had not sold wet chickens. I would not deny selling some of our own. I did not know where Mr. and Mrs. Jackson lived at the time.”

The defendant has assigned three errors alleged to have been committed by the trial court. He first urges that the court erred in overruling the demurrer of the defendant to the plaintiff’s testimony, and in overruling the motion of the defendant in the court below to instruct the jury to return a verdict of not guilty. Second, that the court erred in admitting certain irrelevant, incompetent, and immaterial testimony. Third, that the court erred in overruling defendant’s motion for a new trial. These three assignments will be treated together. The testimony in this case is conflicting. This court has repeatedly held that,' where there is evidence in the record from which the jury could reasonably conclude the defendant was guilty of the crime charged, a conviction would not be set aside because of the alleged insufficiency of the evidence. In this case the testimony is conflicting, the guilt or the innocence of the defendant was a question for the jury to decide under proper instructions as to the law by the court. The jury having heard the testimony and found a verdict of guilty, this court will not disturb the same. Pickett v. State, 35 Okla. Cr. 60, 248 P. 352; Leslie v. State, 22 Okla. Cr. 111, 210 P. 297; Dale v. State, 39 Okla. Cr. 258, 264 P. 219.

We are of the opinion that the said evidence, as summarized above, and as appears in the record, is amply sufficient to authorize the jury to reasonably conclude that the defendant was guilty of the crime charged, and is sufficient to sustain the judgment of conviction as pronounced herein.

The judgment is affirmed.

EDWAKDS, P. J., and CHAPPELL, J., concur.


text:
    JOHN CALLAHAN v. STATE.
    No. A-6599.
    Opinion Filed March 30, 1929.
    (276 Pac. 494.)

      Wieck & Armstrong, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Kay County, on a charge of having possession and control of narcotic drugs, and was sentenced to imprisonment in the state penitentiary for a period of 7 years and to pay a fine of $500. From the judgment and sentence, defendant has appealed to this court for review by petition in error and case-made, which petition in error and case-made were filed on May 7, 1927. On November 4, 1927, the Attorney General filed his motion to dismiss this appeal on the ground that the defendant had been convicted in the United States District Court for the District of Kansas, Second Division, and sentenced to serve a term of one year imprisonment in the Sedgwick county jail in Wichita, Kan.r in which said jail said plaintiff in error was then imprisoned, and supported the motion by attaching a certified copy of the conviction and sentence of defendant.

On November 16, 1927, the defendant filed response to the motion of the state to dismiss, in which motion he admits that the defendant had been convicted, but alleged and stated his time would be out before a decision would be rendered in this case, and that the defendant would be willing to surrender himself to the court and abide by any judgment or order that might be entered.

On February 23, 1929, more than a year after this response was filed, the defendant having failed to file any showing that he had returned to the state and was within the jurisdiction of the court so he could be reached by the process of the court, the motion and response was considered by this court, and the appeal dismissed.

March 5, 1929, the defendant filed his motion to reinstate the appeal, in which motion he alleges, in substance, that, in a conversation with a representative of the Attorney General, the representative stated under the circumstances the state of Oklahoma would waive the question of plaintiff in error remaining out of the state of Oklahoma during the pendency of his appeal, and that said conversation between the said representative of the said office and attorneys for plaintiff in error was discussed with the presiding judge of the Criminal Court of Appeals at that time, and it was understood that the motion to dismiss would not be pressed. The defendant further shows in this motion to reinstate that he relied- upon what his attorney advised him, and has since served out his time in Kansas and has remained at his home and residence at Wichita, in the state of Kansas, and now offers to appear in the state of Oklahoma and before the Criminial Court of Appeals of Oklahoma, at any time designated. The case has been briefed by the defendant and by the state. The motion to reinstate is therefore granted, and the case will be considered on its merits.

The testimony on behalf of the state is, in substance, as follows: H. J. Noonan, called as a witness, testified that he was court clerk on the 18th day of July, 1926; the witness identified the record of the preliminary trial had in the county court of Kay county, and stated that State Exhibit 1, which is page 69 of the criminal court docket No. 13, is the docket of a case that was filed in the county court of John Callahan, Claude Henderson, and Mart Killion, which docket showed defendant arraigned, waived preliminary trial as to John Callahan, filing and approving bond of John Callahan. The defendant objected, and the objection was overruled and exceptions saved. The witness further testified that the defendant was arraigned September 13, 1926, and entered his plea of not guilty. The defendant Callahan gave bond on July 21, in the sum of $1,500 for his appearance in the district court.

F. L. Irwin, .called as a witness for the state, testified, in substance: My nickname is Doc; that on the 18th day of July I was a police officer in Ponca City; that I saw the defendant about 11 o’clock at night when he came to a filling station; that a fellow by the name of Henderson and oi^e named Killion were with him; I saw Henderson come to the filling station with a can to get some gasoline; about ten minutes thereafter the defendant Killion and Henderson came to the station; when they came in I walked over to them and started a conversation with them and sent a fellow to get some help to take three of them to the police station (¡Mr. Armstrong objected to this as immaterial, the objection was overruled and exceptions saved); they told me they were from Wichita, Kan.; defendant, Callahan, was talking to me more than any of them; they had a lot of cooking utensils in the car, an old coat, and I judge a gallon thermos bottle; they represented they were going on a camping trip; they were taken down to the police station and put In jail; Bob Hall and I assisted Mr. Callahan into jail; I filed a charge against Callahan being drunk and driving a car; there was a small amount of whisky in what looked to be a ginger ale bottle; from the time I told them we were going to take them to jail neither Henderson or Killion were in the front seat of the car; we did not search the car at the filling station at the time of their arrest; we took the car to the police station and there I partially searched it.

Dan Fulson testified to being a police officer on the 19th day of July, 1926; he first saw the defendant at the filling station; he seemed to be drinking a little, but he was not drunk; the car was taken to the police station.

Raymond Trapp also testified that on the night of July 19, 1926, he was night sergeant at the police station; that early the next morning he made a search of the Chevrolet touring car of the defendant, something after 5 o’clock; there was a tin can in the pocket to the door of the front seat; the can was offered in evidence and identified by the witness as being the can found in the front pocket of defendant’s car.

R. L. Hall was called as a witness and testified as to the same facts as did the witness Trapp; that they found the can in the pocket of defendant’s car, which had been brought to the police station at the time defendant was brought, and each of the witnesses testified defendant had been intoxicated. This is, in substance, all of the testimony offered by the state.

At the close of the state’s testimony, the defendant moved the court to direct a verdict of not guilty, on the ground and for the reason that the evidence offered and introduced on behalf of the state is wholly insufficient to justify the jury returning a verdict of guilty against the defendant, John Callahan, which was overruled, and defendant excepted.

The defendant then called Dr. A. L. Hazen as a witness. He testified as to the effects of morphine upon a person, and that he could detect and tell if a man was addicted to morphine, and in his opinion the defendant was not an addict to the use of morphine. He based this opinion on the general appearance, and upon his experience as a practicing physician with those who are addicted to the use of morphine. The defendant then questioned the doctor as to the effects of a shot, to show where the shot was on a certain part of the anatomy ihat it would cause the person in his movements to have a tendency to wabble similar to •one intoxicated. This was all the testimony offered by the defendant.

Several separate and distinct errors have been assigned by the defendant. The first assignment argued by the defendant is that the court erred in admitting State Exhibit <A, which was a can found in the pocket of the car of the defendant after it had been driven down to the police station. The defendant alleges that State Exhibit A was inadmissible, for the reason that, after the defendant was arrested and incarcerated in jail and his car was driven down to the-police station, it was five hours or more before the morphine was found in the door pocket of defendant’s car. The defendant insists that the search was too remote from the time the defendant was arrested and incarcerated to be admissible as evidence in the case, arguing that the officers could not return at some future time, whether it be an hour or a month later, and continue the search under the original authority when they arrested the defendant, and cites Coffelt v. State, 36 Okla. Cr. 365, 254 P. 760. An examination of the Coffelt v. State, supra, shows that the facts in that case are very different from the facts in this case. In the Coffelt Case it was some days after the arrest of the defendant before they went back to search his house and premises. In the case at bar the defendant’s car was taken to the police station and remained in the possession and charge of the officers parked just outside said police station, where the car was under the supervision of the officers at all times from the time the defendant was arrested until the search was made when it was claimed the morphine was found.

We hold that the search in this case was proper, and that the evidence secured by reason of the search of the car under the circumstances in this case was properly admitted. The search in which the officers found the morphine in the door pocket would be construed as a continuance of the search; the car being in the possession of the officers at the time of the arrest of the defendant on a drunken charge and driven to the police station. The car had not been in the possession of any one else in the interim, and the record discloses no one had an opportunity to place anything in the car after it was taken into the custody of the officers until the morphine was found. It might be argued that the admission of the morphine found was inadmissible had the car been left at the home of the defendant, or some other place, and the officers had returned and searched it, but, where the facts show the continued possession of the car by the officers, the court did not err in admitting the evidence.

It is next urged by the defendant that the court erred in overruling his motion to quash the information filed in said case which was introduced and urged before he announced ready for trial, to which ruling of the court the defendant duly excepted.

In overruling the motion of the defendant to quash the information filed, the court made the following finding:

“The record is rather incomplete and has not been handled in the proper manner so far as the formalities are concerned. When a preliminary is had in the county court, it should be certified by the magistrate to the clerk of the district court in the same manner that it would if some magistrate in some other part of the country was holding the preliminary hearing, and the transcript should be accompanied by such other documents, such as the warrant, etc., in the case, and while perhaps the endorsements on the back of the complaint would be sufficient to hold the defendant, I am inclined to think that the proper way would be for the magistrate to make a certificate to the correctness and as to what was done and that should be filed with the court clerk. As I say, there might have been a. magistrate in Ponca City, conducted the preliminary hearing and then the only way, for instance, that magistrate in Ponca City, if he has a preliminary hearing, could make it sufficiently known or get it into this court would be to file it with the court clerk. Now, the fact that the same person happens to be clerk of both courts does not relieve or change the duties even of the magistrate or the clerk. However, it being so apparent from the records that we have here and which have been introduced in evidence, that the defendant did waive his preliminary hearing in the county court, and it appearing that all records pertaining to the case were such as were entered, were filed with the court clerk of this court, and it further appearing that the defendant was arraigned in this court on September 13th, 1926, and entered a demurrer to the information which was overruled, and thereupon a plea of not guilty entered, and without having made any motion to quash or any complaint as to the insufficiency of the record in the county court, or before the committing magistrate; and it appearing that the case has been heretofore set for trial and continued on application of the defendant, still without 'any objection being raised to the sufficiency of the record before the magistrate, and without any motion to quash or to set it aside, the court finds that the defendant has waived any irregularity in the proceedings had before the committing magistrate or in certifying it to the court. Therefore, the motion to quash is overruled.”

The defendant duly excepted to the action of the court in overruling his motion to quash the information, and then presented his motion to suppress the evidence, and the court withheld the same until the evidence was presented in order that he might know what the evidence was, and the case proceeded to trial.

The defendant in his brief states that, considering the testimony of the court clerk and the documents introduced in the records, consisting of the original complaint and the criminal court docket, he is compelled to arrive at the conclusion that nothing with reference to the preliminary hearing or the waiving of the same has been filed in the district court as to John Callahan, in this case, which would authorize the county attorney to file the information alleged on a felony charge against the defendant.

Under the constitutional provision (section 17, art. 2) and our criminal procedure, it is the fact that there was a preliminary examination held or a waiver thereof and a judicial determination thereon by the examining magistrate that the offense charged in the complaint as shown by the examination has been committed and that there is sufficient cause to believe the defendant guilty thereof that authorizes the county attorney to file an information for the offense charged in the complaint, when examination has been waived, for which the defendant was held to answer. Muldrow v. State, 16 Okla. Cr. 549, 185 P. 332.

The trial court found upon a hearing that the defendant in this ease had waived his preliminary examination and that he had pleaded to the merits of the information before filing his motion to quash the same, and that by his demurring to the information and his plea of not guilty he waived any irregularity in the preliminary hearing. We hold that the court did not err in overruling the motion to quash the information, for the reason that the motion came too late, and that the irregularity of the examining magistrate in failing to indorse on the preliminary complaint filed in the district court the fact that this defendant had waived the preliminary examination was itself waived by the defendant when he demurred to the information and then entered his plea of not guilty before the motion to quash the information was interposed. However, when the motion to quash the information was filed, it would have been better practice for the district court to have called the county judge, the examining magistrate in this case, and have had him make the proper indorsements on the original complaint showing the defendant had waived the preliminary examination and there was probable cause to believe him guilty of the offense charged and that he was held to the district court for trial upon bond.

It is further contended by the defendant that the verdict.upon which the judgment is based is contrary to law, and that the court erred in overruling defendant’s motion for a new trial. Under this assignment it is urged by the defendant the court erred in instructing the jury as follows:

“You are instructed that if you find the defendant guilty you must also by your verdict fix his punishment, which should be a fine of not less than $500 and not more than $5,000, and imprisonment for not less than one year nor more than seven years.”

From an examination of the record it is disclosed that no exception was taken to the instruction quoted by the defendant; therefore we must then look to the statute to determine whether or not the court committed a fundamental error in giving this instruction. Section 8888, Comp. Stat. 1921, providing a penalty for the offense for which the defendant was convicted, is as follows:

“Any person who violates any of the requirements or provisions of this act shall; upon conviction, be deemed guilty of a felony and be fined not less than five hundred dollars nor more than five thousand dollars and shall be imprisoned not less than one year nor more than seven years, or both.”

This court, in Ex parte Clarke, 30 Okla. Cr. 259, 236 P. 66, construed the section 8888, supra, as follows:

Subdivision 3: “We now pass to the consideration of the language of the statute, providing for a fine and confinement, or both. Does this statute provide for a fine and confinement, in the conjunctive; or does it mean either the one or the other, or both, in the discretion of the court or jury? Applying a well-known principle of statutory construction, to wit, that, where a statute is susceptible of different constructions, that construction should be adopted which gives effect to every phrase and portion of the act if such construction is rational and in keeping with the purposes and objects to be attained, to give effect to the phrase, ‘or both’ we must construe the conjunctive ‘and’ in this case to mean the disjunctive ‘or.’ 25 R. C. L. Statutes, §§ 246, 247.
“In ambiguous writings the word ‘or’ is sometimes construed to mean ‘¡and’; more frequently the word ‘and’ is construed to mean ‘or.’
“The court will adopt the appropriate construction indicated by the context and the purposes of the act. State ex rel. Caldwell v. Hooker, 22 Okla. 713, 98 P. 964; Williams v. U. S., 17 Okla. 28, 87 P. 647; 25 R. C. L. 917; 1 Bouv. Law Dict. 194; extended notes and annotations to Janney v. Sprigg [7 Gill (Md.) 197] 48 Am. Dec. [557] 573; 1 Words and Phrases, First Series, p. 389; 1 Words and Phrases, Second Series, p. 208.
“Giving effect to the phrase ‘or both’ is equivalent to saying that the punishment may be fine, or imprisonment, or both fine and imprisonment, and that the conjunction ‘and’ in this case means ‘or.’ It has been the' policy of our Legislature, in providing for punishment of offenders, to fix a maximum and a minimum punishment, so that the court or jury may exercise a wise, humane discretion to fit each particular case. In doing this the moral responsibility, the age and character of the offender, and other factors, may properly be considered. It is manifest that some persons who have beep found guilty of violating the Narcotic Drug Act (Comp. Stat. 1921, §§ 8886-8888), should be dealt with most severely, while in other cases the punishment should be light. Such construction is in keeping with another rule of statutory construction, to wit, that, where the terms of a penal statute relating to the severity or character of the punishment are ambiguous, such provisions must be construed most favorably to the accused. 21 R. C. L. 209; Ex parte McClure, 6 Okla. Cr. 241, 118 P. 591, supra.
“For these reasons we construe this statute to mean that the penalty for the offense for which the petitioner was convicted may be a fine, or imprisonment, or both.”

It was the duty of the court to correctly instruct the jury as to the punishment to be imposed upon the defend ant should the jury find him guilty. In this case the court in its instruction erroneously advised the jury as to the punishment to be inflicted upon the defendant. The court should have instructed the jury in the alternative, advising it that it should fix the punishment at a fine of not less than $500 nor more than $5,000, or by imprisonment in the state penitentiary for not less than one year nor' more than seven years, or both such fine and imprisonment. Ex parte Clarke, supra; Brady v. State, 36 Okla. Cr. 325, 254 P. 513.

The failure of the defendant to reserve an exception to the giving of the instruction as to the punishment to be imposed upon the defendant, and his failure to request the court to give a special instruction correctly stating the law, amounts to a waiver, and the question raised by the defendant is not properly before this court for consideration.

Upon a consideration of the entire record, we find no error requiring a reversal. The judgment will be modified by remitting the fine of $500 against the defendant, and, as so modified, the case is affirmed.

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


author: PER CURIAM.

text:
    J. W. ERNHART v. STATE.
    No. A-6392.
    Opinion Filed April 27, 1929.
    (276 Pac. 696.)
    Eaton & Cavanaugh, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Okmulgee county on a ■ charge of manufacturing corn whisky, and was sentenced to serve 30 days in the county jail and to pay a fine of $100.

The only contention presented in the brief is that the evidence is insufficient to sustain the judgment. The record discloses that at the time charged, certain officers discovered a still in operation in a canyon and on approaching it found defendant and one Roy Ray. Defendant at the time was pouring whisky from a container into a five-gallon jug. Some statements were made by the parties at the time and shortly after the arrest indicating their joint participation in the making of the whisky. Defendant asserts that there is no proof that the whisky was corn whisky as charged in the information. We do not consider the contention has any merit. The evidence amply sustains the judgment.

The case is affirmed.


author: EDWARDS, P. J.

text:
    WILLIE FRANK SHORT v. STATE.
    No. A-6542.
    Opinion Filed April 27, 1929.
    (276 Pac. 703.)

      H. D. Henry and S. A. Horton, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of rape in the first degree, and his punishment fixed at imprisonment in the state penitentiary for a teem of 15 years.

The record discloses that the prosecuting witness, Fairest Shilling, at the time of the offense charged, was 15 years of age. Her home was at Ada. She had been visiting some relatives at Dill, and on the way home stopped off at Oklahoma City to visit an uncle who lives on Twenty-Third street east of the State Capitol, some 40 blocks from the Rock Island Depot. She arrived at the Rock Island Depot at night, and, while attempting to take a street car, defendant came to where she was waiting, entered into a conversation with her, told her he' knew where her uncle lived, and proposed that he would assist her to walk to his place. Near the Capitol, between Twenty-Third and the street ear tracks, defendant proposed that they sit down and rest. They did so, and after a short time prosecutrix insisted that they go ahead, and defendant refused and demanded that she have intercourse with him. Upon her refusal, he threatened her, and she offered him all the money she had if he would not harm her, but finally by force and fear he compelled her to submit, after which he accompanied her near to her uncle’s place and left her. On reaching her uncle’s house, she immediately made known what had happened. Defendant was not known and was not arrested until more than two years later.

The first contention made is that the evidence is insufficient to sustain the judgment; it being particularly stressed that the identity of defendant as the person who committed the crime is not positive and certain. The identification of defendant depends entirely upon the testimony of the prosecutrix. It was ample, if believed, to satisfy the jury. It appears to us to be reasonable, credible and convincing. We deem it unnecessary to set out the testimony upon this point. Under this assignment, it is also argued that there is no sufficient proof of penetration. This contention is wholly untenable. The testimony of prosecutrix is that of an inexperienced, unsophisticated young girl, and we are satisfied, as the jury must have been, of the truth of her testimony.

Complaint is next made that the evidence does not make a case of rape in the first degree. This argument is predicated on the fact that the information, in addition to alleging that the act of sexual intercourse was accomplished by means of force and violence overcoming her resistance, and by means of threats of immediate and great bodily harm, accomplished by apparent power of execution sufficient to and which did overcome resistance on the part of the said Fairest Shilling, also alleged that the female was under the age of 16 years, to wit, 15 years. The verdict returned is for rape in the first degree, and fixes the punishment at the minimum of 15 years. Defendant insists that the information charged rape in the second degree. Rape in the first degree is defined by section 1834, Comp. Stat. 1921, as follows:

“Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances:
“First. Where the female is under the age of sixteen years.
“Second. Where the female is over the age of sixteen years and under the age of eighteen, and of previous chaste and virtuous character.
“Third. Where she is incapable through lunacy or any other unsoundness of mind, whether temporary or permanent, of giving legal consent.
“Fourth. Where she resists but her resistance is overcome by force and violence.
“Fifth. Where she is prevented from resistance by threats of immediate and great bodily harm, accompanied by apparent power of execution.
“Sixth, Where she is prevented from resisting by an intoxicating narcotic, or anesthetic agent, administered by or with the privity of the accused.
“Seventh. Where she is at the time unconscious of the nature of the act and this is known to the accused.
“Eighth. Where she submits under the belief that the person committing the act is her husband, and this belief is induced by artifice, pretense or concealment practiced by the accused, or by the accused in collusion with her husband with intent to induce such belief. And in all cases of collusion between the accused and the husband of the female, to accomplish such act, both the husband and the accused shall be deemed guilty of rape.'11

Á female under the age of 16 years is not required to resist an act of sexual intercourse in order to make the crime rape. She is incompetent to give her consent, and the law resists for her. An act of intercourse accomplished with her with or without her consent is rape in the first degree. If the rape is accomplished by force, it is none the less rape in the first degree. When the rape is by force overcoming resistance or by threats pre¿ venting resistance, if the state relies upon the allegation of force or threats, the further allegation that she is under the age of 16 years is surplusage. Also the intercourse is rape in the first degree where the female is under the age of 16 years, and, if in such case the state relies upon the nonage of the female, the allegation of force is surplusage. Under either or under both conditions the crime is rape in the first degree. Certainly it was never the intention of the Legislature to provide that an act of intercourse accomplished upon a female by force overcoming resistance or by threats preventing resistance where the female was above the age of 16 years is rape in the first degree, but, if accomplished in like manner upon a female under the age of 16, rape in the second degree.

The case is affirmed.

DAVjENPORT and CHAPPELL, JJ., concur.


author: CHAPPELL, J. DAVENPORT, J.

text:
    FRANK RAY v. STATE.
    No. A-6684.
    Opinion Filed April 6, 1929.
    Dissenting Opinion April 10, 1929.
    Rehearing Denied April 27, 1929.
    (276 Pac. 785.)

      Bond & Bond and S. H. Singletary, for plaintiff in error.
    Edwin Dabney, Atty. Gen.,,, and Smith O'. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Stephens county on a charge of having possession of whisky with intent to> barter, sell, give away, and otherwise furnish the same to other persons contrary to law, and was sentenced to' pay a fine of $200 and to be imprisoned in the county jail for 30 days. Motion for new trial was filed and overruled and exceptions saved, and the case appealed to this court.-

When the state offered the evidence procured under the search warrant, the defendant objected on the ground that the affidavit was based on information and belief. This objection was overruled by the court, the evidence admitted, and defendant now urges error in admitting this evidence, claiming the affidavit was insufficient to warrant the issuance of the search warrant.

The burden of proving the invalidity of the search rested on the defendant and not on the state. The trial court permitted the defendant to cross-examine the witness who made the affidavit for the search warrant as to his knowledge and information upon which the affidavit was based, although the affidavit on its face purported to be sworn to as to' some allegations on personal knowledge and as to others on information on facts therein stated, and the affidavit was positively sworn to.

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

“The sufficiency in form, or substance of the affidavit for search warrant and the search warrant itself may be challenged by a motion to suppress, evidence or by an objection to the admission of evidence. Such challenge is to be determined by the trial court. It is never a question for the jury. The purpose of the verified complaint for search warrant is to invoke the judicial power of the magistrate, and, when filed, it is the duty of the magistrate to' determine judicially if there is probable cause for believing the existence of the things stated in the affidavit. In so determining the magistrate exercises a judicial func■tion. Whether or not he errs in his conclusion or whether or not the affidavit upon which the search warrant is obtained is true is not an issue under the trial of a case predicated upon evidence obtained by such search warrant”—the court also citing Alvey v. Commonwealth, 199 Ky. 655, 251 S. W. 856; Bowen v. Commonwealth, 199 Ky. 400, 251 S. W. 625; State v. English, 71 Mont. 343, 229 Pac. 727; People v. Haas, 79 Mich. 449, 44 N. W. 928; Potter et al. v. Barry, 156 Mich. 183, 120 N. W. 586, in support of this decision.

In Dolan v. Commonwealth, 203 Ky. 400, 262 S. W. 574, it was said:

“* * * It is the rule in this state that if the affidavit and search warrant are sufficient on their face, the evidence obtained by the search is admissible, and the court will not permit the accused to show that the statements in the affidavit are not true, or to raise any question as to the accuracy or source of the affiant’s information, or the means by which it was obtained. * *

The sufficiency of the affidavit in this case must therefore be tested from the affidavit itself and not by reason of any extraneous testimony of the person sworn. It was] improper for the court to permit the defendant to cross-examine Hill, who made the affidavit for the search warrant.

In the case of Baker v. State, 28 Okla. Cr. 408, 231 Pac. 320, this court said:

“There are three forms of affidavits for search warrants more or less prevalent.
“(1) Affidavits on mere information or belief.
“(2) Affidavits importing positive knowledge of the possession of the instruments or things used or obtained! in violating the law.
“(3) Affidavits setting out facts showing probable cause for a belief that the law has been violated by the accused and facts showing probable cause for believing that the accused is in possession of the instruments used in its violation or of the products of its violation.
“Method numbered 1 is always bad. Method numbered 2 may be employed where the affiant can truthfully state of his own personal knowledge that the law has been violated and that the accused is in possession of the physical evidence demonstrating that fact. Method numbered 3 is sufficient in every case, and is therefore the safer method.”

In the body of the opinion this court says:

“The affiant should swear to facts showing probable cause for his belief. That does not mean that the affiant must know absolutely that the person is a thief, or has liquor in his possession, or is guilty of some other offense. To make an affidavit based on positive knowledge of guilt would in many instances be impossible, but the affidavit should state facts upon which the belief is founded. The records of this court have demonstrated, over and over again, that most sheriffs and peace officers (also some county attorneys) do not comprehend the true purpose and requisite features of an affidavit for a search warrant. To obviate this misconception we make these further explanations: In every instance the affidavit should state some fact or facts showing probable cause, as a basis or foundation for an affiant’s belief.”

In the case of Reutlinger v. State, 29 Okla. Cr. 290, 234 Pac. 224, this court says:

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

The function of the search and seizure proceeding is to aid the proper officers in procuring evidence to be used by the state in prosecuting the defendant, which evidence could not be secured without the aid of a search warrant. Being a preliminary proceeding to the main case, it is only necessary that the affidavit should show probable cause as in a preliminary hearing. The same degree of proof not being required in a preliminary hearing, as in a trial, so the same degree of proof should not be required in procuring a search warrant as would be required in securing a conviction in a trial. Tested by the authorities cited in this opinion, the affidavit was sufficient to authorize the issuance of a search warrant, and the evidence obtained by means of the search was properly admitted.

The defendant for his second ground of error challenged the authority of the justice of the peace to issue the search warrant in this case. In the case of Ex parte Hand, 13 Okla. Cr. 614, 166 Pac. 449, this court held:

“A person in undisputed possession of the office of justice of the peace and exercising the functions properly belonging thereto under color of title to such office is a de facto justice of the peace and his official acts are binding on the public and third persons.”

In the case of White v. State, 23 Okla. Cr. 206, 214 Pac. 205, in the body of the opinion, this court says:

“It has often been held that there is a presumption that a public officer did his duty and that statutory and constitutional modes of procedure have been followed.” Hess v. State, 9 Okla. Cr. 516, 132 Pac. 505; Anderson v. State, 8 Okla. Cr. 90, 126 Pac. 840, Ann. Cas. 1914C, 314.”

This court will not resort to the doctrine of judicial notice as to minor district officers, such as justices of the peace, appointed under section 3420, C. O. S. 1921, except where it is necessary to do so in order to properly and correctly determine the controversy. It is a sufficient answer to defendant’s objection to say that the justice of the peace was in possession of the office, assuming to act under color of title, and his acts, therefore, were not subject to collateral attack.

The evidence being sufficient to sustain the conviction, and the errors of law complained of being found to be without merit, the cause is affirmed.

EDWARDS, P. J., concurs.

DAVENPORT, J.

(dissenting). I cannot agree with the conclusion reached by the majority opinion wherein it holds the affidavit in this case is sufficient in form and substance to authorize the issuance of a search warrant to search the home and premises of the defendant, nor can I agree that the authorities cited in the majority opinion hold that an affidavit like the one in this case is sufficient under the law to- authorize the magistrate to issue a search warrant to search the home and premises of the defendant. In order to placé the proper construction upon the affidavit, it is necessary and advisable to set out. the affidavit in full — omitting the caption and jurat:

“I, J. R. Hill, do solemnly swear that I have probable cause to believe and do believe that intoxicating liquors are being unlawfully kept, stored and concealed upon the following described premises, to-wit: S'W Quarter of Section 9, Township 1 N, Bange 8 W, Stephens 'County,, Oklahoma, and buildings situated thereon.-lots in Block -in the City of -.
“And for reasons to base my said belief upon I state as follows, to-wit:
“1. That the said premises and building thereon is a place of public resort.
“2. That numerous persons frequent the said place for the purpose of purchasing intoxicating liquor.
“3. That persons have recently been seen coming from said premises in an intoxicated and drunken condition.
“4. That divers persons who use intoxicating liquors to excess habitually frequent the said place.
“5. That the said premises has a reputation in the community in which it is located as being a place where intoxicating liquor is manufactured.
“6. That the said premises has a reputation in the community in which it is located as being a place where intoxicating liquor in large quantities are unlawfully kept, stored for the purpose of being bartered, sold, given away, and otherwise dispensed to those who frequent said place.
“7. That this affiant has been told by reliable persons, peaceable and law-abiding citizens, who are familiar with the said premises, and who purport to speak from personal knowledge, that portions of the said premises are used as a place where intoxicating liquors are kept in large quantities for the purpose of being bartered, sold, given away and otherwise dispensed to other persons. And this Affiant, based upon the above knowledge and information hereinbefore set forth, does believe and has probable cause to believe that the said premises, or a portion thereof, are being used as a store room for the purpose of selling, bartering, giving away and otherwise furnishing such intoxicating, liquor in violation of the prohibitory liquor laws of the state, and that such intoxicating liquors in large quantities, are being kept for the purpose of selling, bartering, giving aw>,ay and otherwise furnishing the same in violation of the prohibitory laws of the state to people and customers who frequent said place, and Affiant further states that he has probable cause to believe and does believe based upon the facts and information hereinbefore set out that, Frank Ra.y who is in possession of the said premises, is guilty of keeping intoxicating liquor at said place for said purposes, and that said place is a place of public resort, and that some portion of the same is used for the unlawful storage and concealment of large quantities of intoxicating liquor.”

Article 2, § 30, of the Bill of Rights, is as follows:

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

Section 2877, Comp. Stat. 1921, provides that a search warrant may be issued when the thing sought to be seized is in the possession of another to whom he may have delivered it for the purpose of concealing it, or preventing it being discovered, in which case it may be taken upon the warrant for such person, or from the house or such place occupied by him or under his control or from the possession of the person to whom he may have delivered it.

Section 2879, Comp. Stat. 1921, provided:

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

Section 7009, defines what is necessary for the issuing of a search 'warrant and how the same should be served. In the majority opinion it is stated:

“The trial court permitted the defendant to cross-examine the witness who made the affidavit for the search warrant as to his knowledge and information upon which the affidavit was based. Although the affidavit on its face purported to be sworn to as to some allegations on personal knowledge and as to others on information on facts therein stated and the affidavit was positively sworn to.”

It is this statement in the majority opinion that I cannot agree to, and I cannot accept the interpretation placed upon the language of the affidavit in the majority opinion.

The majority opinion quotes with approval Phillips v. State, 34 Okla. Cr. 52, 244 Pac. 451, in which the court, among other things, states:

“It is the duty of the magistrate to determine judicially if there is probable cause for believing the existence of the things stated in the affidavit. In so determining the magistrate exercises a judicial function. Whether or not he errs in his conclusion or whether or not the affidavit upon which the search warrant is obtained is true is not an issue under the trial of a case predicated upon evidence obtained by such search warrant.”

An examination of the case of Phillips v. State, supra, discloses that the question raised in that case was a question not on the form of the affidavit, but that the affidavit was positively sworn to, and the defendant raised the question that, even though sworn to positively, the facts stated in the affidavit were not within the knowledge of the affiant. The court further says:

“That the sufficiency of the affidavit and warrant are not challenged, but defendant sought to show that the officer making the affidavit did not have positive knowledge that intoxicating liquors were being manufactured on the premises in question, and that for that reason the affidavit was in effect an affidavit on information and belief.”

That question is not involved in this case, but the question to be determined is the question of the form and substance of the affidavit; that is, is the affidavit in this case to which the defendant objected at the time it was offered in evidence an affidavit made on information and belief, or does the affidavit made on statements of the witness making it disclose any facts within the knowledge of the affiant at the time he made the affidavit. It will be seen that the affidavit states as follows:

“I, J. R. Hill, do solemnly swear that I have probable cause to believe and do believe that intoxicating liquors are being unlawfully kept, stored, and concealed upon the following described premises, to-wit.”

Then a quarter section of land in Stephens county is described, and then follows a number of statements all relating to the fact about which the witness has stated that he believed was taking place. Again in the affidavit isi another statement, that:

“That this affiant hás been told by reliable persons, peaceable and law-abiding citizens, who are familiar with the said premises, and who purport to* speak from personal knowledge that portions of the said premises are used as a place where intoxicating liquors are kept in large quantities for the purpose of being bartered, sold, given away and otherwise disposed of to other persons.
“This affiant, based upon the above knowledge and information hereinbefore set forth, does believe and has probable cause to believe that the said premises, or a portion thereof, are being used as a store room for the purpose of selling, bartering, giving away and otherwise furnishing such intoxicating liquor in violation of the prohibitory laws of the state, to people and customers who frequent said place, and Affiant further states and does believe based upon the facts and information hereinbefore set out that Frank Ray who is in possession of said premises is guilty of keeping intoxicating liquor at said place of public resort, and that some portion of the same is used for the unlawful storage and concealment of large quantities of intoxicating liquor.”

The majority opinion says:

“The sufficiency of the affidavit in this case must therefore be tested from the affidavit itself and not by reason of any extraneous testimony of the person sworn. It was improper for the court to permit the defendant to cross-examine Hill who made the affidavit for the search warrant.”

The record discloses that the witness J. R. Hill was questioned as to his knowledge of any violation of the prohibitory law by the defendant when he made the af-fldavit. No objection was made by the state, and the examination clearly showed that the witness knew nothing about any violation, and that he had no personal knowledge that the law was being violated by the defendant. It is true this court has held that, if the affidavit was sworn to positively, the question of the truth of the affidavit could not be gone into in the trial of the case. In the majority opinion the court cites Baker v. State, 28 Okla. Cr. 408, 231 Pac. 320, and quotes at length from this opinion as to what the court said about the affidavit for the search warrant, but it failed to state what the court said the party making the affidavit should state. In Baker v. State, supra, the court, after stating the number of forms of an affidavit for a search warrant more or less prevalent, quoted in the majority opinion, said:

“An affidavit in this case could have been drawn in the following form (omitting the caption): I, O. J. Kem-erer, do solemnly swear that six windows; one door, twenty-five bushels of wheat, and fifteen bales of hay have been stolen from and carried away from.' the premises of A. B. Reynolds; that affiant has reason to believe, and' does believe, that the described stolen property is secreted in the possession of Harry Baker at his residence; * * * and for cause of such belief affiant says that there were tracks leading from where the property was stolen towards, or to, the premises of Harry Baker; (or that one -saw property of this character being conveyed to the premises of Harry Baker; or that Harry Baker has recently come into possession of property of this description ; or that Harry Baker made statements, to others indicating that he had designed to take this, property; or any other facts as a basis for such belief)

The affidavit in this case does not measure up to the standard of what the court stated should be set forth in an affidavit. If the affidavit in this case had positive statements charging the defendant with the violation of the prohibitory law, then the defendant could have had some recourse on the party making the affidavit, if it was shown to be false. If the statement in the affidavit to Secure a search warrant is made in a positive form, if the facts or any of the facts stated therein are false, the aggrieved party could redress the wrong done him by having the party prosecuted for perjury, but, where the affidavit states a mere naked belief that he believes a person is a thief, a bootlegger, or a counterfeiter of money, without having any tangible reason for such belief, or unless facts are stated, the existence of which is sufficient reason for his belief, his belief would not be susceptible of proof. If the complaining witness is unable to state some facts supporting his belief, he should refrain from making the affidavit. The lawmakers of our state have wisely enacted provisions of law necessary to secure a search warrant to search the home and premises of one who is thought to be violating the law, and this procedure should be strictly followed'; if the party is permitted to make an affidavit on information and belief without any knowledge of a violation, it would permit the home and privacy of innocent people to be searched without a remedy, because the making of an affidavit that states only information and belief amounts to no more than a mere suspicion, and the party making the affidavit cannot be prosecuted for perjury. It is impossible to disprove what a witness says he believes.

I cannot agree to the doctrine that a witness should be permitted to gO' before an officer of the law, and, without having any knowledge or facts upon which to predicate it, make an affidavit on information and belief and procure a search warrant and enter the homes of citizens of this state, and the witness who goes before an officer and makes an affidavit stating facts against an individual which he knows nothing about is committing as grave an offense against his government as the man who willfully goes out and violates the law by high-jacking, manufacturing whisky, or any other offense against the laws of his state. The laws of our state should be enforced, but no person, not even an officer, has the right to willfully commit perjury in his 'ambition to try to detect crime. I cannot interpret the language of this affidavit to mean anything other than that the statements in the affidavit were made solely and only upon information and belief, as he admitted without objections from any one while he was on the witness stand; he stated he did not know or have any facts other than what some one had told him, and those parties did not live in the neighborhood where the defendant lived at the time.

In the majority opinion the court quotes from Reutlinger v. State, 29 Okla. Cr. 290, 234 Pac. 244, as follows:

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

The majority opinion should have gone further and showed that the court, in rendering the opinion, stated that there were two search warrants issued in the case, but under the circumstances the validity of the first warrant was- immaterial; when Ogden was found where he was in the act of making whisky, the officer had the right to arrest him without any warrant, and as an incident to search without a search warrant and to seize all implements and vessels used in violation of law for which he was arrested.

The court then states:

“The affidavit for the search warrant for the Ogden premises was defective, because it stated no facts upon which a finding of probable cause could be based. The averments in the affidavit amount to a conclusion merely —a conclusion of the affiant. Facts should have been stated, having the force and effect of evidence such as would be competent for the consideration of a jury in a trial for the offense, as distinguished from the ultimate conclusions of the affiant himself.”

I agree with the statement of the court hereinabove set out, and insist that in this case the affidavit does not contain the necessary allegations to warrant the issuing of a search warrant, and that the evidence procured under the search warrant based upon the affidavit in this case upon timely objection should have been excluded by the jury. The affidavit in this case clearly shows that it is wholly based on information and belief, and does not attempt to describe the premises other than the S. W. quarter of section 9, township 1, N., range 8 W., Stephens county, Okla., and buildings situated thereon.

In analyzing and interpreting the language used in the affidavit, the statements contained therein relate to the mind of J. E. Hill, who made the affidavit and upon what he is predicating his statements, that is, that his statements contained in the affidavit are made on information and belief, and not a single statement contained in the affidavit independent of the statement of the affiant on information and belief attempts to charge the defendant with the commission of an offense. Every statement in the affidavit relating to the offense is on information and belief.

This court has had before it this question so often that it seems unnecessary to refer to decisions. Beginning with the case of Gore v. State, 24 Okla. Cr. 394, 218 Pac. 545, the court laid down the proposition: That “an affidavit stating mere conclusions,, or made on belief without stating the facts, is insufficient, and a search warrant based upon such a showing is void.”

The court also stated that holdings of this court hitherto, so far as in conflict with the rule of evidence here announced, are overruled. Following the decision in the Gore Case, the court in the case of Hall v. State, 31 Okla. Cr. 334, 246 Pac. 642, said:

“An affidavit for search warrant, which is based wholly on information and belief, is insufficient, and evidence obtained on a search warrant 'based on such affidavit should, on proper objection, be excluded.”

In Baker v. State, 28 Okla. Cr. 408, 231 Pac. 320, in the second paragraph of the syllabus, the court said:

“An affidavit for a search warrant predicated on belief alone, without stating any facts as a basis for such belief, is insufficient.”

In Hancock v. State, 35 Okla. Cr. 96, 248 Pac. 1115, in the first paragraph of the syllabus, the court said:

“A search warrant issued on affidavit made on information and belief, and without stating facts showing probable cause, is illegal.”

In Vice v. State, 36 Okla. Cr. 18, 251 Pac. 509, the court in the first paragraph of the syllabus said:

“A search warrant issued on affidavit made on information and belief, and without stating facts showing probable cause, is illegal.”

The affidavit upon which the search warrant was issued in the Vice Case, omitting the caption,, is as follows:

“Before me, a justice of the peace in and for said county, personally appeared C. W. Boots, who, being duly sworn, states: That he has probable cause for believing and does believe that certain quantities of intoxicating liquors are being kept for the purpose of sale, barter, giving away, and otherwise furnishing, and are being sold, bartered, given away, and otherwise furnished unlawfully by May Vice in the residence used and occupied by her as a residence located on South Fourth street, in the city of Henryetta, said intoxicating liquors consisting of whisky in bottles and barrels, wine in bottles and barrels, beer in jugs, bottles, and barrels, alcohol in casks, jugs, bottles, and barrels and other vessels, containing intoxicating liquors. Wherefore your affiant prays that a warrant issue for the search of said premises and for the-seizure of said intoxicating liquors. (Signed) C. W. Boots.”

In Cole et al. v. State, 38 Okla. Cr. 396, 262 Pac. 712, this court, speaking through Judge Edwards, in the first paragraph of the syllabus, said:

“An affidavit for a search warrant, made on information and belief, is not sufficient to authorize the issuance of a search warrant, unless the affiant sets up the facts upon which his belief is based, and shows that the facts stated are within his personal knowledge, and such facts are sufficient to constitute probable cause.”

The affidavit upon which the court laid down the doctrine quoted, omitting the caption, is as follows:

“-, 'being first duly sworn on oath, deposes and says: That as to the following described premises, to wit: S. E. ¼, Sec. 20, Twp. 25, R. 1 W. said premises being in the possession of John Doe, a true name unknown. That your affiant was told by a person who visited the premises that while there he smelt intoxicating liquors on the premises. That your affiant has been informed that a person who visited the premises saw a still in operation in the attic of the house. Your affiant says that the general reputation of the place and premises in the community and neighborhood is that it is a place where intoxicating liquor is being kept, concealed, and sold.”

The affidavit in Vice v. State, supra, is like the affidavit in this ease. All the statements are based upon information and belief. If it was the intention of the majority opinion to reverse the former rulings of this court, herein set out, and to overthrow the principles laid down in them, and to hold that a person may make an affidavit on information and belief .upon which a search warrant may issue, and that the testimony secured under and by virtue of the search warrant is admissible, it should be stated in the opinion that the former holdings of this court on the question of an affidavit on information and belief are by this opinion overruled. I cannot believe that it was the intention of the majority opinion to set aside the former opinions of this court and at one stroke undo what this court has been holding for years. I insist that the objection of the defendant to the introduction of the testimony secured by reason of the search warrant based upon the affidavit in this case, and to the introduction of the affidavit, was timely, and the objection should have been sustained. The admission of the affidavit over the objections of the defendant was prejudicial to the rights of the defendant, and deprived him of a fair and' impartial trial as guaranteed him under the Constitution and laws of this state, by permitting an ex parte statement in the affidavit to go< to the jury, putting in issue the reputation of defendant’s home as being a place where intoxicating liquor was manufactured, without first having laid the proper predicate by showing by competent evidence the home of defendant was a place of general resort. No evidence was offered by the state to show the reputation of defendant’s home was a place of genéral resort or that it was a place where people frequented. Yet the court, over the objection of defendant, admitted the ex parte statements in the affidavit to go to the jury. The admission of the statements in the affidavit without the proper predicate being laid was prejudicial error. Westfall v. State, 30 Okla. Cr. 115, 235 Pac. 270; Davis v. State, 16 Okla. Cr. 372, 182 Pac. 908; Bland v. State, 18 Okla. Cr. 514, 196 Pac. 732.

In Miller v. State, 36 Okla. Cr. 277, 253 Pac. 1039, the court said:

“Before evidence of the general reputation of a place may be received as evidence in a case of unlawful possession of intoxicating liquors, it must be shown that the place itself was a plaice of public resort, not merely that it bore such reputation.”

There are other errors assigned and argued, but, in the view I take of this record, it is not necessary to consider them. The case should be reversed and remanded.


author: EDWARDSi, P. J.

text:
    STATE v. JOSIE A. STOUT.
    No. A-6543.
    Opinion Filed April 27, 1929.
    (276 Pac. 795.)
    W. F. Pardoe, Co. Atty., for the State.
    George H. Jennings, for defendant in error.
   EDWARDSi, P. J.

From.' a judgment of tbe county court of Creek county sustaining a demurrer to a complaint, tbe state appeals.

Tbe record discloses that there was filed in a justice court of the city of Drumright a complaint charging defendant Josie A. Stout and others with the offense of Sabbath breaking in performing servile labor in operating a dance hall. The complaint alleges that defendant Josie A. Stout with others did “* * * conduct, manage andl operate a certain public dance * * * which said acts on the part of said defendants were useless and caused interruption of the repose and religious liberty of the saidJ community; and that said defendants so acting together did perform servile labor on said day and at said place, not works of charity or necessity, in that said defendants opened up a certain dance hall or pavilion at said place, and then and there sold tickets or admissions to said dance, received persons at said dance, checked their hats and! parcels, engaged in and played jazz music from the hour of 8:30 p. m. to 12 o’clock, midnight, conducted, managed and directed the dancers, and that ( after) said dancers, had left said pavilion, said defendants closed up said dance hall, and that said defendants conveyed themselves and musical instruments to and from said place.”

Defendant was fined $1 by such justice of the peace, and she appealed to the county court. A demurrer was interposed to the complaint, which was sustained by the county court, to which ruling exceptions were taken, and the state appeals under section 2807, Comp Stat. 1921.

Apparently the pleader was attempting to charge a violation of the first subdivision of section 1825, Comp. Stat. 1921, which is as follows:

“The following are the acts forbidden to be done on the first day of the week, the doing of any of which is Sabbath-breaking.
“First. Servile labor, except works of necessity or charity.
“Second. Trades, manufactures and mechanical employment.
“Third. All shooting, horse racing or gaming.
“Fourth. All manner of public selling, or offering or exposing for sale publicly, of any commodities, excépt that meats, bread, and fish may be sold at any time before nine o’clock in the morning, and except that food and drink may be sold to bei eaten and drank upon the premises where sold, and drugs, medicines, milk, ice and surgical appliances and burial supplies may be sold at any time of the day.”

This statute was construed in the case of State v. Smith, 19 Okla. Cr. 184, 198 Pac. 879, and it was there held that the selling of admission tickets and conducting on Sunday in an orderly manner a moving picture show was not servile labor. The term “servile labor” does not mean the same as “labor,” “common labor,” “secular labor,” or “work,” but has a special meaning of “menial labor”; as is some time said, such work with the hands as was formerly done by slave labor. Webster’s Inter. Dic. 1927; Campbell v. Int. Life Assurance Ass’n, 17 N. Y. Super. Ct. 316; Words and Phrases, First Series, vol. 5, p. 4343; 24 Cyc. 809; 16 R. C. L. 413; Twin Valley Tel. Co. v. Mitchell et al., 27 Okla. 388, 113 Pac. 914, 38 L. R. A. (N. S.) 235, Aun. Cas. 1912C, 582.

A clear distinction must be made between decisions involving a statute prohibiting all labor or work on Sunday excepting only the customary household duties or works of necessity or charity from a statute in which only servile labor is prohibited. See City of Topeka v. Crawford, 78 Kan. 583, 96 Pac. 862, 17 L. R. A. (N. S.) 1157, 16 Ann. Cas. 403; Quarles v. State, 55 Ark. 10, 17 S. W. 269, 14 L. R. A. 192.

We can readily see that the conducting of a public dance on Sunday, the playing of jazz music, and the disturbance occasioned thereby might constitute a public nuisance (Blanton v State, 38 Okla. Cr. 149, 259 Pac. 655), or constitute a disturbance of the public peace, as defined by section 2004, Comp. Stat. 1921. The things charged in the complaint in this case, however, are not servile labor.

The ruling of the trial court is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


author: CHAPPELL, J.

text:
    JOHN BASSETT v. STATE.
    No. A-6397.
    Opinion Filed April 27, 1929.
    (276 Pac. 794.)

      J. G. Harley, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district conrt of McIntosh connty for a second and subsequent violation of the prohibitory liquor law and his punishment fixed at a fine of $200 and confinement in the state penitentiary for a term of four months.

The record discloses that on the 9th day of March,, 1926, defendant sold to one Claude Martin two glasses of whisky for 75 cents, and that he had heretofore on September 28, 1921, in the county court of McIntosh county, been convicted of having unlawful possession of intoxicating liquors.

Only one contention is made by the defendant, which is stated in his brief: “All the errors may be submitted to this court together as the defendant is resting on one single proposition: That there is no competent legal evidence of a former conviction of the violation of the Prohibitory Liquor Laws of the State of Oklahoma admitted in evidence.”

In the case of John Bassett v. State, 42 Okla. Cr. 126, 274 Pac. 893, Edwards, P. J., speaking for the court, passed on the precise question involved in this case: “In a prosecution under the statute here involved (Section 6991) [Comp. Stat. 1921], it is necessary that the prior conviction be alleged with sufficient certainty to enable the court to determine whether or not the statute applies, and the proof must establish this fact beyond a reasonable doubt,” the same “as any other material allegation in the information. There is some difference in the authorities under similar statutes as to the manner in which the former conviction may be proven, but it seems to be settled that it may be proven by the record or a certified copy of the record of the prior conviction (State v. Howard [30 Mont. 518], 77 Pac. 50). Or by journal entries (People v. Campbell, 173 Mich. 381, 139 N. W. 24). It is also said that any legitimate testimony is admissible to prove the fact. Gould v. State, 66 Tex. Cr. R. 122, 146 S. W. 172.


text:
    JULIUS ZELIGSON v. STATE.
    No. A-6539.
    Opinion Filed April 27, 1929.
    (276 Pac. 791.)

      A. F. Moss and H. El Young, for plaintiff in error.
    Edwin Dabney, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Joe W. Howard, Co. Atty., (W. E. Wallace, of counsel), for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Noble county of the crime of grand larceny and his punishment fixed at imprisonment in the state penitentiary for a term of three years. Motion for new trial and motion in arrest of judgment were duly filed and overruled, and the defendant brings the cause to this court by petition in error.

The first assignment of error is: “The court erred in holding in this case that the information was sufficient to state a public offense and was sufficient to state the crime of larceny.” The charging part of the information is as follows: “* * * That on or about the 4th day of July, 1925, and within Noble County, Oklahoma,, the defendant, Julius Zeligson, did then and there knowingly, willfully, unlawfully, feloniously, fraudulently and stealthily take, steal and carry away without the knowledge or consent and against the will of one Magnolia Petroleum Company, certain personal property, to-wit: fifty-one joints of oil well casings, the personal property of the said Magnolia Petroleum Company and of the value of $1,970.00 with the unlawful, fraudulent and felonious intent then and there on the part of him, the said Julius Zeligson, to deprive the said Magnolia Petroleum Company of said property and to convert the same to- the use and benefit of him,, the said Julius Zeligson.” The particular question the defendant raises is that the complaint is insufficient for the reason that the owner of the property, alleged to have been stolen, is named in the information as the Magnolia Petroleum Company without stating whether the company is an individual trading under a fictitious name, a partnership, or a corporation.

In the case of Keasler v. State, 38 Okla. Cr. 255, 259 Pac. 1059, this court said in the body of the opinion:

“The point made is that the allegation of the ownership of the railroad car alleged to have been burglarized is insufficient. The prosecution was based upon the second subdivision of section 2063, C. S. 1921. Construed in their usual accepted meaning, the words used in the information, ‘Orient car No. 3859 in the possession of the Orient Railway Company,’ would mean a railroad car belonging to the Orient Railway Company and that together with the number of the car sufficiently identifies the act as to the car alleged to have been burglarized.”

In the case of Guthery v. State, 24 Okla. Cr. 183, 216 Pac. 948, paragraph 2 of the syllabus, this court said:

“Where in an information for burglary it is alleged that the building burglarized was the store building of the Farmers’ Supply Company, a corporation, specific proof that such supply company was duly incorporated was not essential where there is evidence inferentially indicating such incorporation and there was no controversy on this issue.”

In Carson v. State, 30 Okla. Cr. 438, 236 Pac. 627, paragraph 2 of the syllabus, this court said:

“The actual condition of the legal title of property alleged to have been stolen is immaterial to the thief; so far as he is concerned, one may be treated as the owner who is in personal possession of the property and whose possession was unlawfully disturbed by the taking. The possessor of the goods from whom the thief took them may properly be described as the ‘owner’ of the property in the indictment or information.”

Under the holdings of this court, the information in the case at bar was sufficient and the demurrer to the information was properly overruled.

Defendant’s second assignment of error, while stated in three paragraphs, is in substance error of the court in failing and refusing, at the close of all the evidence in the case, to sustain the motion of defendant to direct the jury to return a verdict of not guilty.

In the case of Welty v. State, 39 Okla. Cr. 85, 263 Pac. 177, Mr. Justice Edwards, speaking for the court, in paragraph 1 of the syllabus says:

“Where there is evidence, although entirely circumstantial, from which the jury may reasonably and logically find a defendant guilty, the weight, credibility, and probative effect of such evidence is for the jury and this court will not disturb its verdict for insufficiency.”

In the case of Haley v. State, 39 Okla. Cr. 186, 264 Pac. 635, Mr. Justice Davenport, speaking for the court, in the syllabus said:

“It is not for this court to substitute its judgment on questions of fact or of the weight of the evidence for that of the jury, where there is competent evidence from which the jury, may reasonably and logically find the guilt of the defendant, even though the evidence may be conflicting, or such that different inferences may reasonably be drawn therefrom.”

In the case of Strong v. State, 42 Okla. Cr. 248, 275 Pac. 385, in paragraph 2 of the syllabus, this court said:

“When the evidence disclosed by the record tends reasonably to support the verdict of the jury, such verdict will not be disturbed by this court on appeal.
“A motion for new trial, based on an allegation that the evidence does not support the verdict of the jury, is addressed, first, to the sound discretion of the trial court, who has seen and heard the witnesses testify, and who must necessarily know a great deal more about many facts and circumstances produced at the trial, which cannot be written into a record, than an appellate court can by reading the record after it is written. And when a trial court bas considered and passed upon sucb an issue, it comes, to this court only on the proposition that as a matter of law the verdict is contrary to the evidence.”

The evidence in this case offered by the state, if believed by the jury, was amply sufficient to' support a verdict of guilty, and the demurrer to the evidence and motion for an instructed verdict were properly overruled.

The third ground of error assigned by the defendant is that the court erred in failing to instruct the jury, upon the defense of the defendant, that he had purchased this pipe and that the pipe delivered to the defendant was not that which the defendant had purchased, and that consequently the defendant’s action in the matter might have been innocent.

In the case of Thomas v. State, 34 Okla. Cr. 288, 246 Pac. 658, in paragraph 1 of the syllabus, Mr. Justice Edwards speaking for the court says:

“An instruction upon the law of circumstantial evidence is not necessary, unless the testimony for the state is entirely circumstantial.”

In the case of Williams v. State, 12 Okla. Cr. 39, 151 Pac. 900, in paragraph 2 of the syllabus, this court said:

“If upon the trial of a criminal case special instructions are desired by the defendant, he is required by the provisions of our code of criminal procedure to present in writing to the court the instructions desired, and it is not error for the trial court to omit to instruct upon every possible question under the defendant’s theory of the case, when he has not requested such instruction.”

There being plenty of evidence in the record beside the circumstantial evidence, and the defendant having failed to present a written instruction and request the same to be given, it was not error for the trial court to fail to give the instruction.

Defendant’s fourth assignment of error is:

“The court erred in allowing to be introduced in evidence the transcript of the testimony of the witness, G-. O'. Quinn, given on the preliminary trial of the defendant for the reason that no sufficient predicate for the introduction of the transcript of the evidence, of such witness had been laid or proved by the state on this trial.”

In the case of Bryant v. State, 33 Okla. Cr. 383, 244 Pac. 453, in paragraph 1 of the syllabus, this court said:

“In a criminal action, where the testimony of a witness was given at the preliminary examination, and her testimony was taken by the reporter, in the presence of defendant 'and his counsel, who had opportunity to cross-examine her, and such testimony is transcribed, duly certified and filed with the court clerk, held, that, if the witness is not present at the final trial and the state shows that such witness cannot with due diligence be found within the judisdiction of the court, the testimony of the absent witness may be read to the jury.”

The defendant admits that a proper predicate was laid for the introduction of the transcript, but complains that no one testified that the witness, G-. C. Quinn, was duly sworn before he testified. At page 57 of the case-made appears the following recital in the transcript:

“H. C. Quinn, being first duly sworn on behalf of the State of Oklahoma, testified as follows, to-wit:”

The transcript being properly admitted in evidence and it appearing from the transcript that the witness was properly sworn, the objection to the admission of the transcript was without merit, and the same was properly admitted in evidence.

As a fifth ground of error the defendant alleges: “The court erred in refusing to permit the defendant to prove by the witness, Wilson, and the witness, Howry, that on Monday following the 4th of July, the defendant stated in substance to each of said witnesses that the casing which had been delivered to him at Braman was new casing and' that the casing which he had bought was second-hand casing and that he had not accepted and did not accept said new casing.”

In support of this ground, defendant contends: “Defendant may give in evidence statements made by him while the property alleged to be stolen was in his possession and before he knew that he was suspected of having stolen the same.”

At page 460 of the case-made, the defendant testified in his own behalf as follows:

“Q. You didn’t touch that pipe? A. No, sir; I didn’t.
“Q. Could you tell it was new pipe? A. You bet I could, the minute I walked up there, I said to Quinn, that is not my pipe, not your pipe; a man sold me secondhand pipe at Morrison; this is brand new pipe, I said, absolutely, I won’t have anything to do with this pipe.
“Q. Julius, why didn’t you go back? A. Because it wasn’t my business.
“Q. And look at this pipe? A. I didn’t want to have anything to' do with that pipe.
“Q. When did you see Quinn after that? A. I saw him Tuesday.
“Q. Did you have a conversation with Bill Quinn Tuesday, the following Tuesday? A. I did.
“Q. What was your conversation? A. I told him to get his men and take the pipe away, I am, oft of it; if I could have got hold of him, he would have 'been here.
“Q. Why did you tell him to take the pipe away? A. I was not interested in it.
“Q. When did you first learn that this was stolen pipe? A. I thought it was stolen pipe the minute I seen it was new pipe, I knew a man wouldn’t sell me secondhand pipe and deliver me new pipe, that didn’t look right to me, for a man to give me new pipe for second-hand pipe.”

In the case of Shields v. State, 32 Okla. Cr. 344, 240 Pac. 661, in paragraph 8 of the syllabus, this.court said:

“Where, in a larceny case, the theory and testimony of a defendant is to the effect that he had no connection with the larceny of the property, but purchased it without any knowledge that it was stolen, he is not entitled to an instruction on the law applicable to the evidence of an accomplice.”

The defendant having denied ever being in possession of the stolen property, it was not error for the court to refuse to permit the witnesses, Wilson and Howry, to testify to statements made to them by the defendant after the theft and before the arrest of the defendant. The defendant must be consistent, he cannot in one breath claim to be entitled to an instruction because he is in possession of stolen property and claim to have the right to introduce statements he made while in possession of the property, and in the next breath deny that he ever received or ever was in possession of the property.

In his last assignment of error the defendant contends: “That the court erred in giving instruction No. 9.” No. 9 is the usual instruction given upon the possession of recently stolen property, and the court did not err in giving the instruction. The defendant alleges that the state relied upon the possession of recently stolen property to prove the larceny. Possession of recently stolen property is just one of the many facts and circumstances surrounding this defendant and showing a guilty connection with this larceny.

In the case of Pruitt v. State, 33 Okla. Cr. 172, 242 Pac. 282, in paragraph 1 of the syllabus, this court said:

“Where the instructions of the court, though subject to criticism, taken as a whole are substantially correct and present the law as favorably for the defendant as the law warrants, the judgment will not be reversed for erroneous instructions.”

The instructions in this case fairly cover the law, and since defendant failed to request any additional instructions in writing, he is not now in a position to complain of error of the court in failing to give additional instruction. The defendant assigns other errors, but they are without merit.

The evidence being ample to sustain the verdict, the defendant having received a fair trial, and no substantial errors of law appearing upon the record, the cause is affirmed.

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