author:
DOYLE, J.
      BAREFOOT, J. JONES, P. J.

text:
    FRED SMITH v. STATE.
    No. A-10162.
    July 19, 1944.
    (151 P. 2d 74.)

      S. E. Dunn, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction, rendered in the district court of Tulsa county in accordance with the verdict of a jury finding the defendant, Fred Smith, guilty of “assault with a dangerous weapon as charged in the information”, and assessing his punishment at imprisonment in the State Penitentiary for a term of three years.

The assignments of error relied upon for a reversal of the judgment present two propositions of law: First, that the information is insufficient to support the judgment of conviction, because the facts stated are insufficient to charge a felony, and the insufficiency of the evidence to prove the commission of a felony, and that there is a fatal variance between the information and the proof on the part of the state, in that there was no evidence showing or tending to show that a dangerous weapon, or a weapon of any other kind was used by the defendant in the alleged assault and battery. Citing Moody v. State, 11 Okla. Cr. 471, 148 P. 1055; Wilcox v. State, 13 Okla. Cr. 599, 166 P. 74.

Counsel for the state in their brief say, that in the two cases referred to above, the language used in the information in the case at bar is entirely different, hence, there is no merit in this assignment of error, that this is all the more apparent when the attention of the court is directed to the following cases: Clemons v. State, 8 Okla. Cr. 452, 128 P. 739; Parks v. State, 14 Okla. Cr. 413, 171 P. 1129; Collins v. State, 22 Okla. Cr. 203, 210 P. 285, 30 A. L. R. 811.

In order to present understanding^ the propositions of law presented, the following sections of the Penal Code provide as follows:

“An assault is any wilful and unlawful attempt or offer with force or violence to do a corporal hurt to another.” 21 O. S. 1941 § 641.
“A battery is any wilful and unlawful use of force or violence upon the person of another.” 21 O. S. 1941 § 642.
“To use or to attempt to offer to use force or violence upon or toward the person of another is not unlawful in the following cases: * * *
“[Third]. When committed either by the party about to be injured, or by any other person in his aid or defense, in preventing or attempting to prevent an offense against his person, or any trespass or other unlawful interference with real or personal property in his lawful possession; provided the force or violence used is not more than sufficient to prevent such offense.” 21 O. S. 1941 § 643.
“Every person who, with intent to do bodily harm, and without justifiable or excusable cause commits any assault upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another, with any kind of firearm or air gun or other means whatever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in penitentiary not exceeding five years, or by imprisonment in a county jail not exceeding one year.” 21 O. S. 1941 § 645.
“Every person who intentionally and wrongfully shoots, shoots at, or attempts to shoot at another, with any kind of firearm, airgun or other means whatever, with intent to kiil any person, or who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death or in resisting the execution of any legal process is punishable by imprisonment in the penitentiary not exceeding ten -years.” 31 Q. S. 1941 § 652.
“'Every person who is guilty of an assault -with intent to kill any person the punishment for which is not prescribed by the foregoing section, is punishable by imprisonment in the penitentiary for a term not exceeding-five years, or in a county jail not exceeding one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment.” 21 O. S. 1941 § 653.

The only way in which any question was raised as l.o the sufficiency of the information was by the defendant’s motion at the close of the evidence for the state, requesting the court to instruct the jury to acquit him, for the following reasons:

“First: That the evidence does not prove or tend to prove the commission of a felony as alleged in the information ;
“Second: For the reason there is a fatal variance between the information and the proof on the part of the state;
“Third: That the evidence does not warrant the court in submitting the case to the jury for the offense charged in the information.”

—which motion was overruled and exception taken.

The defendant’s motion interposed at the close of the evidence for a directed verdict of acquittal because the evidence is insufficient to prove a felony, and because the crime charged has not been proven, challenges the evidence merely and not the information, and an exception to the overruling of such motion will not authorize a consideration upon appeal of the sufficiency of the information.

What constitutes a judgment roll or record proper is defined by 22 O. S. 1941 § 977, as follows:

“When judgment upon a conviction is rendered, the clerk must enter the same upon the minutes, stating briefly the offense for which the conviction has been had, and must immediately annex together and file the following papers, which constitute a record of the action:
“1st. The indictment and a copy of the minutes of the plea or demurrer.
“2nd. A copy of the minutes of the trial.
“3rd. The charges given or refused, and the indorsements, if any thereon; and,
“4th. A copy of the judgment.”

In drawing the information the pleader evidently intended to charge the crime defined by sec. 645, 21 O. S. 1941, supra.

In Odom v. State, 8 Okla. Cr. 540, 129 P. 445, it is said: :

“The jurisdiction of a district court over a felonious assault is not defeated because the information charging the offense may be duplicitous, nor on the theory that county courts under Const, art. 7, § 12, have exclusive jurisdiction of an offense, the commission of which is necessarily included in that charged in the information.”

In Wilcox v. State, 13 Okla. Cr. 599, 166 P. 74, 75, this court said:

“The use of a dangerous weapon is what distinguishes the crime of an assault with a dangerous weapon with intent to do bodily harm from a simple assault. A dangerous weapon is one likely to produce death or great bodily injury by the use made of it, or perhaps it is more accurately described as a weapon which in the manner it is used or attempted to be used endangers life or inflicts great bodily harm. A claw hammer is not per se a dangerous weapon, and especially is it not a dangerous weapon when considered without reference to its use, and a weapon cannot be said as a matter of law to be dangerous without reference to the manner of its use. Bourbonnais v. State, 7 Okla. Cr. 717, 122 P. 1131.
“In the case of Moody v. State, 11 Okla. Cr. 471, 148 P. 1055, it was held that:
“ ‘An information which intends to charge the offense of assault with a sharp and dangerous weapon with intent to do bodily harm should plead facts which, if conceded, would be sufficient to sustain a judgment of conviction.’
“In the opinion it is said:
“ ‘The charging part of the indictment was according to the contention of counsel for plaintiffs in error, too indefinite in that it did not describe the plank and designate in what manner it was used; it being their contention that a plank is not per se a deadly weapon; that, not being per se a deadly weapon, the county attorney was required to plead facts sufficient to show the character of the plank and the manner in which it was used, and that the facts so pleaded must show that the instrument used was of the character set out in the statute and used in such manner as to be reasonably calculated to produce serious bodily injury.’
“We are of opinion that the facts stated in the information are insufficient to charge the crime of assault with a dangerous weapon with intent to do bodily harm, and does not allege facts showing that the district court of Pawnee county had jurisdiction. It follows that the motion in arrest of judgment should have been sustained.
“The judgment of the district court is therefore reversed.”

In Castleberry v. State, 26 Okla. Cr. 59, 221 P. 1044, 1045, it is said:

“An assault and battery by means of a deadly weapon, in a manner likely to produce death, [as defined by 22 O. S. 1941 § 652] includes the lesser offense of felonious assault with a dangerous weapon, as defined by [21 O. S. 1941 § 645]. * * *
“The procedure so followed by the court was in accordance with the holding of this court in the case of Clemons v. State, 8 Okla. Cr. 452, 128 P. 739. The statute first above quoted includes the lesser degree of assault defined by the latter and also simple assault and battery, and the latter statute also includes simple assault. * * *
“To warrant a conviction based upon either of the statutes hereinbefore quoted, the burden of proof was on the state to show that the instrument used * * * was either a deadly weapon or a sharp and dangerous weapon. An undescribed pocketknife is not a deadly weapon or a dangerous weapon per se.”

In Clemons v. State, 8 Okla. Cr. 452, 128 P. 739, cited in the state’s brief, this court held:

“On an information based on section (see. 652, 21 O. S. 1941 supra) of the Penal Code, charging the defendant with assault and battery with a certain knife, said knife being then and there a deadly weapon, in a manner likely to produce death, and with felonious intent to kill, he may properly be convicted of the offense defined by section (21 O. S. 1941 § 653 supra) of 'assault with intent to kill,’ or the offense defined by section (21 O. S. 1941 § 645 supra) of 'assault with any sharp or dangerous weapon, with intent to do bodily harm,’ and the court should submit the case to the jury for consideration upon every degree of assault which the evidence in any reasonable view of it suggests.”

Further held:

“A verdict finding ‘the defendant guilty of assault with a deadly weapon as charged in the information’ is insufficient as to form, and is too vague and uncertain to support a judgment for the highest degree of the offense charged.”

In the opinion it is said:

“The language of the information is that the defendant did ‘commit the crime of assault with a deadly weapon.’ Counsel contend that the word ‘battery’ being left out of the information in the charging part, the information is not direct and certain as to the offense charged, and is not sufficient to charge the defendant with the offense of which he was convicted and sentenced. The omission of the word ‘battery’ might have been serious in the face of a demurrer if the battery had not been charged in the body of the information. The Constitution (section 20, Bill of Rights) and the statute [22 O. S. 1941 § 402, sec. 5746, R. L. 1910, 22 O. S. 1941 § 409] both declare the salutary rule of the common law that in a criminal prosecution the accused shall be informed of the nature and cause of the accusation against him, and that the indictment or information must be direct and certain, that is, that it must set forth the special manner of the whole fact, so that it can be clearly seen what particular offense, and not merely what nature of offense, is intended to be charged.”

The means prescribed in sections (21 O. S. 1941 § 652 supra, id., sec. 653) are in substance identical, and the material difference arises only in the punishment prescribed. In the first the punishment must be by imprisonment in the penitentiary not exceeding ten years; and the second the maximum is five years, and the punishment may be as for a misdemeanor. In the first, the essential element is an assault and battery by means of a deadly weapon or by such other means or force as is likely to produce death. In the second, the assault must he with intent to kill. In section 645, 21 O. S. 1911, the essential element is the intent to do bodily harm with any sharp or dangerous weapon. The offenses are of the same character. An assault with intent to kill necessarily includes an assault with intent to do bodily harm; for a person cannot be killed without bodily harm being done, and an assault and battery by means of a deadly weapon necessarily includes an assault with any sharp or dangerous weapon. In Clark v. State, 11 Okla. Cr. 494, 148 P. 676, this court held :

“The constitutional right of a defendant to be informed of the nature and cause of the accusation against him entitles him to insist at the outset, by demurrer and after verdict by motion in arrest of judgment, that the indictment or information shall apprise him of the crime charged with such reasonable certainty that he can make his defense. The question of the sufficiency of the indictment or information must usually be called in question by a motion to set aside or by demurrer before the trial. If the indictment or information states no offense within the jurisdiction of the court, the fact is fatal at any stage of the proceedings and is not waived by a failure to take advantage thereof by motion or demurrer.”

In Vineyard v. State, 22 Okla. Cr. 76, 209 P. 783, 784, the court said:

“The information in this case is based upon the second subdivision of section (21 O. S. 1911 § 652) and charges an assault and battery with intent to kill by cutting, stabbing, wounding, and injuring the prosecuting witness with a knife. That an assault and battery necessarily includes an assault needs the citation of no authority. That an intent to kill would necessarily include an intent to do bodily harm is equally apparent. It follows that, on a charge of assault and battery with intent to kill with a deadly weapon, or other means or force likely to produce death, as defined by section 2336, Revised Laws 1910 (21 O. S. 1941 § 652), one may be convicted of assault with intent to do bodily harm with any sharp or dangerous weapon, as defined by section 2344, Revised Laws 1910. (21 O. S. 1941 § 645.) The view here taken is supported by the opinion in the case of Russell v. State, 9 Okla. Cr. 692, 133 P. 475, and also by the opinion in Parks v. State, 14 Okla. Cr. 413, 171 P. 1129.” De Witt v. State, 58 Okla. Cr. 261, 52 P. 2d 88; Johnson v. State, 69 Okla. Cr. 51, 101 P. 2d 265.

In Gober v. State, 25 Okla. Cr. 145, 219 P. 173, 174, the information charged:

“ ‘That defendant wrongfully and feloniously committed an assault and battery upon G. A. Wahl by such means and force as is likely to produce death.’
“And the information proceeds to set out specifically the acts constituting such means and force in the following language, to wit:
“ ‘With heavy leather shoes on the feet of the said James R. Gober, he (the said James R. Gober) did violently kick and strike, beat and wound the stomach, bladder, intestines, groin, and body of the said G. A. Wahl, with such force as is likely to cause death, and with the intent of him (the said James R. Gober) to kill the said G. A. Wahl.’ ”

Matson, P. J., in the opinion says:

“It is immaterial under the statute whether or not a deadly or dangerous weapon is used provided, of course, that the force used is likely to produce death and the intent of the defendant at the time is to kill. It then becomes a question of fact for the jury to determine whether or not the force used is such as is likely to produce death, and whether or not the defendant intends to kill by the use of such force.
“We are of opinion, therefore, that the information sufficiently charges the crime of assault and battery with intent to kill by means other than a deadly weapon, but by snch force as is likely to produce death, and that it was sufficient, therefore, to confer jurisdiction upon the district court to try this offense.”

The jury returned their verdict finding the defendant guilty of assault and battery. Punishment was assessed at a fine of $50 and costs.

In the case of Parks v. State, supra, cited by counsel for the state, this court held:

“Where the information attempts to charge an assault with a dangerous weapon as provided in section 2344, Rev. Laws 1910 (sec. (545, 21 O. S. 1941), and the proof both on the part of the state and the defendant shows the commission of the felonious degree of assault and battery as defined by section 2336 (sec. 652, 21 O. S. 1941), or some lesser grade of assault and battery, there is a fatal variance between the allegations and the proof, and upon proper motion the court should advise the jury to acquit upon the ground of variance, and direct a prosecution to be commenced for the higher grade of offense.”

In the opinion, Judge Matson speaking for the court says:

“The first part of section 2344 (21 O. S. 1941 § 645, supra) makes it a felony to commit an assault upon a person with any sharp or dangerous weapon with intent to do bodily harm, and without justifiable or excusable cause; the second part makes it an offense to shoot at another, or to attempt to shoot at another, with any kind of firearm or air gun or other means whatever, with the same intent and without intent to kill and without justifiable or excusable cause. The language of said section, therefore, cannot with reason be construed as broad enough to include assaults and batteries, made with sharp and dangerous weapons, or by firearms, but such offenses would be included within section 2336, Revised Laws 1910, which provides.” Quoting 21 O. S. 1941 § 652, supra.

And concludes as follows:

“At the close of the introduction of evidence on the part of the state, the defendant interposed what was styled a ‘demurrer to the evidence’ on the grounds: ‘ (1) That the evidence did not warrant the court in submitting the case to the jury for any offense charged in the information; and (2) for the reason that there was a fatal variance between the information and the proof on the part of the state.’ We are of the opinion that the trial court, upon the presentation of said motion or demurrer, should have instructed the jury to return a verdict of ‘not guilty by reason of variance between charge and proof,’ as provided in section 5921, Revised Laws 1910 (22 O. S. 1941 § 914) and should have ordered defendant held for trial under a new information, as provided by section 5930, Revised Laws 1910” (22 O. S. 1941 § 923).

In Harris v. State, 15 Okla. Cr. 369, 177 P. 122, this court held:

“Where the information, by reasonable intendment only, charges an assault with intent to kill, and the proof both on the part of the state and the defendant shows that a battery was committed in addition to the felonious assault, upon proper motion, the court should advise the jury to acquit upon the ground of variance and direct that the defendant be held to answer the higher offense.”

In the opinion it is said:

“The motion interposed by counsel for the defendant, while not in proper form, was sufficient to call the attention of the trial court to the contention that there was a fatal variance between the allegations of the information and the proof adduced upon the trial. The court should have instructed the jury to return a verdict of not guilty by reason of a variance between the allegations of the information and the proof, and a new prosecution should have been commenced charging the defendant with the higher offense, which procedure is authorized by sections 5921 and 5930, Revised Laws 1910” (22 O. S. 1941 §§ 914 and 923).

In 4 Am. Jur., Assault and Battery, sec. 34, p. 145, it is said:

“The question most frequently arising on a prosecution for assault with a dangerous weapon is whether the weapon used comes within the meaning of a dangerous or deadly weapon. A dangerous or deadly weapon may be defined to be any instrument which will cause death or great bodily injury when used in the ordinary and usual manner contemplated by its design and construction. . . . There are many instruments that may be employed by one person in committing an assault or an assault and battery on another which, in their ordinary and usual use, are not likely to inflict death or great bodily injury, and when such instruments are used, their character in the particular instance must be determined by all the circumstances surrounding the transaction, for it is well settled that a weapon may be deadly or dangerous although not especially designed or constructed for offensive or defensive purposes, or for the destruction of life or the infliction of injury.”

In the case of Wilson v. State, 162 Ark. 494, 258 S. W. 972, 33 A. L. R. 1182, the Arkansas Supreme Court held:

“The fist, or foot covered with an ordinary shoe, is not a deadly weapon within the law of aggravated assault.”

In the opinion it is said:

“The only contention of appellant is that the evidence was not sufficient to sustain the verdict. The undisputed testimony tends to show that the appellant inflicted the injuries by striking and beating Post with his fist and by kicking him in the face and side. Appellant contends that this testimony does not sustain the verdict finding appellant guilty of an aggravated assault, for the reason that no deadly weapon was used. Appellant is correct in this contention.”

Annotation, Id. p. 1187, cites the case of Walden v. State, 89 Tex. Cr. R. 464, 232 S. W. 523.

In Collins v. State, 22 Okla. Cr. 203, 210 P. 285, 30 A. L. R. 811, cited in state’s brief, syllabus one is as follows :

“As a matter of law, a walking cane is not per se a deadly weapon. In this case it was a question of fact for the jury.”

In tbe opinion it is said:

“Axes, hammers, -whips, brickbats, canes, clubs, or sticks of wood, as a matter of law, are not ordinarily deadly weapons, but they may as a matter of fact become weapons of a very deadly character. Notes to Crow v. State, supra [55 Tex. Cr. 200, 116 S. W. 52, 21 L. R. A., N. S. 497]; Allen v. United States, 157 U. S. 675, 15 S. Ct. 720, 39 L. Ed. 854, 2 Words and Phrases, [First Series], 1853; 1 Words and Phrases, Second Series, 1203.
“Many and various definitions of the term ‘dangerous weapon’ may be found in the law books, but, like many other simple terms, we find no definition susceptible of general application that explains or elucidates the meaning of the term any better than the use of the words without explanation.”

(See note on this question 30 A. L. R. beginning on page 815.)

In Ex parte Carson, 33 Okla. Cr. 198, 243 P. 260, this court held:

“Under the rule of ‘ejusdem generis,’ as applied to statutory construction, where an enumeration of specific things is followed by some general word or phrase, such general word or phrase is restricted and explained by the specific things enumerated, and the general word or phrase refers to things of like character.”

In the case of Ingram v. State, 51 Okla. Cr. 143, 3 P. 2d 736, 737, syllabus one is as follows:

“Where words of general import and of specific and limited signification are followed by general words, the general words will be construed as embracing only such persons, places, and things as are of like kind or class to those designated by the specific words.”

We may here remark, that the Hon. James S. Davenport, one of the judges of this court, having disqualified in the Ingram Case, the Governor appointed Hon. Prentiss E. Rowe, special judge, who delivered the opinion of the court. Judge Rowe was presiding judge on the trial of this case.

Under the rule the words “other means whatever,” within section 645, supra, refer only to other weapons of like kind or class to those designated.

It will be observed that the language of the information is that the defendant did “Commit an assault with a dangerous weapon upon the person of another,” then in the charging part alleges a felonious assault and battery to haAre been committed by means other than any dangerous weapon, but with force and violence, and proceeds to set out specifically the acts constituting such assault and the battery inflicted, but fails to allege “although without intent to kill such person, or to commit any felony” as defined within the definitions of section 645 supra, which offense was not included within the allegations of the information in this case.

The Code of Criminal Procedure, sec. 402, 22 O. S. 1941, provides:

“The indictment or information must be direct and certain as it regards:
“1. The party charged.
“2. The offense charged.
“3. The particular circumstances of the offense charged, when they are necessary to constitute a complete offense. R. L. 1910, § 5739.”

The sixth and seventh subdivisions of section 409, id., provide:

“8. That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.
“7. That the act or omission charged as the offense, is stated with such a degree of certainty, as to enable the court to pronounce judgment upon a conviction according to the right of the case. R. L. 1910, § 5746.”

Section 916, 22 O. S. 1941, provides:

“The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense. R. L. 1910, § 5923.”

Under this section, the court has jurisdiction over any offense included in that set forth in the information, when such included offense is an essential element of the offense charged or of an attempt to commit the offense.

In Roddie v. State, 19 Okla. Cr. 63, 198 P. 342, 348, it is said:

“The phrase ‘great bodily injury,’ is difficult to define, for the reason that it well defines itself. It means a ‘great bodily injury,’ as distinguished from one that is slight or moderate, such as would ordinarily be inflicted by an assault and battery with the hand or fist without a weapon. . . .
“We think the better practice is for the courts not to attempt to define the words ‘great personal injury’ as used in the statute, or the phrase ‘serious bodily injury’ or ‘great bodily injury.’ These words and phrases define themselves and are used in their ordinary sense in common acceptance among the people, and need no explanation from the court in its charge to the jury.”

The information here is labeled and designated “Information for assault with a dangerous weapon,” and charges the offense to have been committed by means other than a dangerous weapon. It charges a felonious assault and battery upon the person of another by kicking with heavy shoes had and worn on his feet and with force and violence striking with his fist, breaking her jaw, and otherwise bruising and wounding her, he, the said Fred Smith, being a stout strong young man, Avith the unlawful and felonious intent to do Mrs. Charles E. Smith great bodily harm and injury. It will be observed that it does not allege “although without intent to kill such person or to commit any felony.”

For the reasons stated and the conclusions reached, we are of the opinion that the information sufficiently charged a felonious assault and battery by means other than a dangerous Aveapon, but by such force and violence as to inflict great bodily injury, or at least an attempt to commit the crime of assault and battery by such other meaos or force as is likely to produce death, under the Third proAdsion of section 652 supra. The information Avas sufficient, therefore, to confer jurisdiction upon the district court to try the case.

To authorize a judgment, a general verdict of guilty as charged in the information must respond to the issues submitted to the jury. Its sufficiency is determined by ascertaining Avhether it is responsive to or covers the offense charged, or an offense necessarily included in the information. It must contain by reference to the information, every material element of the offense charged. A general verdict of guilty, in manner and form as charged in the information, is a special finding of each element of the crime as charged, and is sufficient.

The motion interposed by the defendant at the close of the evidence on the part of the state, while not in proper form, was sufficient to call the attention of the trial court to the contention that there was a fatal variance between the allegations of the information and the proof adduced upon the trial.

Our Code of Procedure provides:

“When the defendant is acquitted on the ground of variance between the charge and the proof, the verdict must be ‘not guilty by reason of variance between charge and proof.’ ” 22 O.' S. 1941 § 914.

And further provides that when the acquittal is for a variance between the proof and the information, which may be obviated by a new information, the court may direct the defendant’s detention to the end that a new information may be preferred in the same manner and with like effect as provided in cases where the jury is discharged. 22 O. S. 1941 § 923.

It follows that the trial court should have sustained the defendant’s motion for a directed verdict of acquittal on the ground of variance between the allegations of the information and the proof on the part of the state, and should have instructed the jury to return a verdict of “not guilty by reason of variance between charge and proof”, as authorized by 22 O. S. 1941 §§ 914 and 923.

It is so well settled as to be elementary that questions involving the jurisdiction of the trial court may be raised for the first time on appeal. Signs v. State, 35 Okla. Cr. 340, 250 P. 938.

Fundamental error which can be considered on appeal without objection or exception is error which goes to the foundation of the case or which takes from a defendant a right essential for his defense. Where it appears, and justice requires, this court will consider it whether or not exceptions were taken in the court below, or whether or not it is assigned as error on appeal.

Where the defects as shown by the record proper, as in this case, go to the jurisdiction of the court, or the sufficiency of the information to support the judgment of' conviction, this court will examine into such questions, although presented for the first time in this court, unless they have been expressly waived by the accused.

It appears from the properly certified judgment roll or record proper (22 O. S. 1941 § 402, supra) that the information is clearly insufficient to support the judgment appealed from.

It follows, from the foregoing review, and what has been said, that this case was tried and submitted to the jury upon an erroneous theory of the law, prejudicial to the substantial rights of the defendant, in that the information does not state facts sufficient to constitute the offense of assault with a dangerous weapon with intent to do bodily harm, or of any offense which is necessarily included within said offense, as defined by Penal Code, sec. 645, supra.

Other questions are presented, but we forbear from further discussion of this case.

For the reasons stated, the judgment appealed from is reversed and the case remanded to the district court of Tulsa county for proceedings not inconsistent with this opinion.

BAREFOOT, J.

(concurring). I concur in the conclusion that this case should be reversed and remanded.

I am of the opinion that the evidence was insufficient to sustain the allegations of the information, as to an “assault with a dangerous weapon,” but am of the opinion, as stated in the opinion, that the district court had jurisdiction under the allegations of the information, as against a demurrer to the evidence, and that having obtained jurisdiction, the offense of assault and battery as an included offense could have been sustained. Moody v. State, 11 Okla. Cr. 471, 148 P. 1055.

That by reason of title 22, O. S. 1941 § 914, which provides: “A general verdict upon a plea of not guilty, is either ‘guilty,’ or ‘not guilty,’ which imports a conviction or acquittal of the offense charged. * * * When the defendant is acquitted on the ground of variance between the charge and the proof, the verdict must be ‘not guilty by reason of variance between charge and proof.’ ”, this case should be reversed and remanded to the end that an information may be filed by the county attorney against the defendant as he deems advisable. Harris v. State, 15 Okla. Cr. 369, 177 P. 122; Parks v. State, 14 Okla. Cr. 413, 171 P. 1129.

JONES, P. J.

(dissenting). I think the evidence on behalf of the state Avas sufficient to raise an issue of fact for the determination of the jury, under proper instructions, as to whether the injuries sustained by the prosecuting witness Avere of such nature that the Aveápon used by the accused avouM come under the definition of a “dangerous weapon” from the manner of its use, as has been many times defined by this court.

I agree that a pair of shoes are not dangerous weapons per se, but in this case the manner of their use in ►stomping and kicking an unarmed woman was sufficient, in my opinion, to require this court to hold that the evidence was sufficient to sustain the conviction.

I could unduly lengthen this dissent by presenting the arguments which are contrary to those stated in the opinion, but it is sufficient to refer to Ponkilla v. State, 69 Okla. Cr. 31, 99 P. 2d 910; Bean v. State, 77 Okla. Cr. 73, 138 P. 2d 563; Beck v. State, 73 Okla. Cr. 229, 119 P. 2d 865; Tipler v. State, 78 Okla. Cr. 85, 143 P. 2d 829.

For these reasons, I respectfully dissent.


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    GENE MURPHY v. STATE.
    No. A-10263.
    July 26, 1944.
    (151 P. 2d 69.)

      A. G. Windham and Clyde Followell, both of Poteau, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Foster Windham, Co. Atty., LeFlore County, and James Babb, both of Poteau, for defendant in error.
   BAREFOOT, J.

Defendant, Gene Murphy, was charged in the district court of LeFlore county jointly with Bill Richardson and others, with the crime of assault with intent to kill, demanded a severance, was tried and convicted of the included crime of assault with a dangerous weapon, and his punishment assessed by the jury at four years in the state penitentiary. From this judgment and sentence he has appealed.

To properly consider the errors assigned, it is best to give a short statement of the facts, as revealed by the record.

The defendant was charged with the crime of assault with intent to kill, under 21 O. S. A. 1941 § 652, which is as follows:

“Every person who intentionally and wrongfully shoots, shoots at, or attempts to shoot at another, with any kind of firearm, airgun or other means whatever, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death or in resisting the execution of any legal process is punishable by imprisonment in the penitentiary not exceeding ten years.”

Under the instructions of the court, he was convicted of assault with a dangerous weapon as an included offense, under 21 O. S. A. 1941 § 645, which is as follows:

“Every person who, with intent to do bodily harm, and without justifiable or excusable cause commits any assault upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another, with any kind of firearm or air gun or other means whatever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in the penitentiary not exceeding five years, or by imprisonment in a county jail not exceeding one year.”

Defendant and one of his codefendants, Bill Richardson, were constables in adjoining townships in LeFlore county. Allen Clack and Margaret Clack were husband and Avife, but had separated and a divorce suit was pending. On the evening of August 21, 1941, Margaret Clack and her sister Jessie Humes, and a cousin, Ben Hardaway, who lived in California and was visiting at the home of Mr. and Mrs. Alex Avery, the parents of Mrs. Clack and Mrs. Humes in LeFlore county, left the Avery home about 8 o’clock, in an automobile belonging to Ben Hardaway, and bearing a California license tag. They were presumably driving around to the different towns and cold drink stands in the vicinity. About 10 o’clock they drove to a place knoAvn as the “Three-Way” filling station and beer tavern, about two miles west of the toAvn of Spiro, but they did not get out of the car. While they were there, Allen Clack, the husband of Margaret, approached Gold Fry, the proprietor of the “Three-Way”, and told bim that his (Clack’s) wife was outside waiting for Fry. They had some conversation and Clack wanted Fry to go outside and fight. Fry testified that he did not know Mrs. Clack was out there, and did not go out. Hardaway, Margaret Clack and Jessie Humes left the “Three-Way” and drove around for some time, but returned soon after 12 o’clock and just as they were closing. Mr. Fry got in the car with them, getting in on the driver’s side, and driving, Mrs. Humes sitting to his right and Mr. Hardaway to her right, all in the front seat, and Mrs. Clack in the rear seat. They started to Poteau to get something to eat, decided it was too late, and drove to Spiro. They discovered that Allen Clack was following them in his car. They drove around for some time, and stopped at a filling station and talked with the night marshal, E. V. Sharp. Allen Clack stopped his car just across the street from the filling station. They left the filling station, and drove out of town, going west. Mr. Fry and Mrs. Humes testified that the Allen Clack car followed them, and that they observed another car with dim lights come out of a side street and fall in behind the Clack car, and both cars continued to follow them. They drove on for a quarter of a mile, and saw the car which had come from the side street drive up by the side of the Allen Clack car, drive alongside of it a short distance, then pull out in front of it to near the back of their car. The car then dropped back, and without warning the occupants fired three or four shots into the rear of the Hardaway car. They drove on to the Three Way station, circled it and went back to Spiro, and several more shots were fired, some of them passing through the back window, and two of them hitting the metal strip in the center of the front windshield. The occupants of the car ducked, and fortunately no one was injured. They returned to the filling station where they had talked with the night marshal, and the occupants of the car from where the shooting had come also drove up. It contained the defendant and Bill Bichardson, constables, and two women who were riding with them. The car driven by Allen Clack, one driven by his brother Arnold Clack, and another car in which Mr. and Mrs. Cloe Clark were riding, also immediately drove up to the filling station.

At the trial of the case Mrs. Humes and Gold Fry testified for the state. Mr. Hardaway had returned to his home in California, and Mrs. Margaret Clack was in Corpus Christi, Tex., she having secured a divorce, and neither of these parties testified.

Gold Fry and Mrs. Margaret Clack were arrested by the defendant and Mr. Bichardson, and taken to the jail in Poteau. They were turned over to the night jailer. A deputy sheriff was called, and after talking with them, he permitted them to go to their homes, with the understanding they would return the next morning. . There was some conflict as to just what Avas said by the defendant and Mr. Bichardson with reference to filing charges. The night jailer and others testified that Mr. Bichardson said, “He is a married man and she is a married woman.. .. Hold them for investigation.” The constables testified that they ordered them held for drunkenness, and intended filing charges against them the next morning. No charges of any kind were ever filed against either of them.

The defense offered Avas that on the evening of August 21, 1941, a burglary had been committed in the toAvn of Panama, in LeFlore county. That these officers, working together, had arrested a young boy who admitted committing the burglary, but told them that an older man was with him and had sent him into the house. Later the officers contacted a woman who conducted a cold drink stand and who informed them that a party answering the description given them by the boy had been picked up by a car bearing a California or Texas license in front of her place of business. They testified that they were looking-for this car, and when the Hardaway car with the California license passed, they followed it. They both testified that they drove up by the side of the car, threw their flashlight on the car, informed the occupants that they were officers, and that Constable Murphy got out of the car in front of the Hardaway car and the driver started up and came near running over him. They followed the car, and Mr. Murphy shot at the tires four times, only for the purpose of apprehending the parties in the car. They testified that they did not know who was in the automobile at the time of the shooting and Avere very much surprised and so expressed themselves that Gold Fry, whom they knew, was there. They testified that only four shots Avere fired.

Neither Allen Clack, his brother Arnold Clack, Mr. or Mrs. Clark, who were all present, testified in this case.

E. V. Sharp testified for the state. He was the night marshal at Spiro. He was acquainted with all the parties, and had seen Mrs. Margaret Clack, Mrs. Humes and Mr. HardaAvay at least four times that evening while they were driving around. He had also seen the constables between 6 and 7 o’clock when they were driving with Mr. Bice, the deputy sheriff, looking for the party who had burglarized the house in Panama. He testified that he Avas standing at a filling station in the town of Spiro when the Hardaman car drove up, with Gold Fry driving. About the same time he saw Allen Clack drive up and stop just across the street. The occupants of the Hardaway car had discovered that Allen Clack was following them, and they asked him to take Mrs. Humes and Mrs. Clack home, but he refused to do so. They then drove west out of Spiro, and Alien Clack in Ms car followed. A few minutes thereafter he heard the shooting and saw the cars coming from the west. One of the bullets hit the paved street in front of where he was standing. He heard four or five shots. Mr. Fry, driving the Hardaway car, pulled into the station, the constables followed, and Allen Clack, Arnold Clack, and Mr. and Mrs. Clark followed immediately. He saw constable Murphy put his gun in his holster as he got out of the car. He saw the officers single out Gold Fry and Margaret Clack and take them to jail. They did not take Hardaway and Mrs. Humes. This witness had talked with them immediately prior to the shooting, and they had no appearance of drinking and were not drunk.

Both Gold Fry and Mrs. Humes denied that defendant got out of his car and flashed his light on them and told them they were officers. They both testified that the back glass of the car Avas in perfect condition until shot out on the morning of August 22, 1941, and that the glass shattered all OATer the car and into the hair of the two women in the car.

Pictures of the automobile Avere introduced in evidence, and are attached to the case-made. The rear glass was entirely out, and the Avindshield shattered. The places where at least four of the shots hit the car are clearly discernible in the pictures. Another hit and glazed the top of the car.

It is contended by defendant that from the testimony as aboA’e set out, it does not show an “intent to injure any person although without intent to kill such person,” on the part of the defendant, and for this reason is insufficient under the statute to sustain a conviction. Where intent is necessary in the commission of a crime, it has been held that it may be proven by circumstances and by the action of the party at the time. The question of intent is a question for the jury. It may be inferred by them from what accused does and says and from ail the facts and circumstances involved in the transaction. Snider v. State, 71 Okla. Cr. 98, 108 P. 2d 552; Underhill on Criminal Evidence (4th Ed.) 683; People v. Pineda, 41 Cal. App. 2d 100, 106 P. 2d 25.

One will be held accountable for the logical and ordinary consequences resulting from his acts. Wilson v. State, 50 Okla. Cr. 310, 297 P. 826; State v. Myers, 154 Kan. 648, 121 P. 2d 286. As to the acts of the defendant, the evidence is very conflicting. Under the state’s evidence. the officers acted in a highly unlawful manner, and even under their own evidence were not justified in shooting as they did. In the case of Sharp v. United States, 6 Okla. Cr. 350, 118 P. 675, 676, this court in an early decision used this language:

“The defendant doubtless acted under the erroneous belief that as a peace officer he had a lawful right to shoot and kill the deceased when he failed to obey his command to halt. It is a common belief that erroneously prevails among petty peace officers that, if an offender runs from an officer attempting his arrest for a misdemeanor and does not stop on being commanded to halt, the officer may lawfully shoot him. Officers should know and understand that they have no authority to resort to the use of firearms or dangerous weapons in making arrests for offenses other than felonies, unless the offender resists the arresting officer. In that event all force necessary to overcome his resistance may be employed. Peace officers should always use great caution and prudence in the performance of their duties, and should never forget that it is only extreme necessity that will justify the taking of human life.”

In tbe instant case the evidence reveals that the' occupants of the Hardaway car had not in any way violated the law, not even by the commission of a misdemeanor. The overwhelming evidence was that they were not intoxicated, nor under the influence of intoxicating liquor just prior to and at the time of the shooting and their arrest. It is not contended they were in any way violating the traffic law. While it may not be good morals or manners for a married man to be driving in the same car with a married woman late at night, there is no law that prohibits such action. The officers did not have a warrant for the arrest of any of the occupants of the car, or for any one else. 'While officers are to be commended for their zealous enforcement of the criminal laws, yet they should at all times act as careful and prudent officers, and the rights of the citizens of the community, as guaranteed by the Constitution and the statutes of this state, should be respected.

There is evidence in the record that Allen Clack had offered a rewrard of $50 to anyone catching his wife, Margaret Clack, with a man. It is revealed that Bill Richardson knew of this offer, but he testified that he had not been hired. Defendant testified that he did not have this information. The action of the officer Richardson in singling out and arresting Margaret Clack and Cold Fry, and placing them in jail and turning the other parties loose might have justified the jury in coming to the conclusion that this was the reason for their arrest.

The evidence in this case is highly conflicting. It was heard by a jury in the home county of the defendant. They decided against the defendant. This court will not set aside the verdict of the. jury when there is conflict in the evidence, and there is sufficient evidence on the part of the state to sustain it. It is only when the evidence is insufficient to sustain the judgment and sentence that this court will set the same aside.

Defendant contends that the court erred in giving instruction No. 5, which was as follows:

“Now, in this case, if you find and believe from the evidence, beyond a reasonable doubt, that the defendant Gene Murphy, either by himself or in connection with anyone else, unlawfully, wrongfully, unlawfully and feloniously, made an assault upon Gold Fry, Ben Hardaway, Margaret Clack and Jessie Humes, or either of them, with a certain deadly weapon, to-wit: a pistol, and did then and there with said pistol shoot at and attempt to shoot such person, or either of them, although without intent to kill such person, but with intent to injure such person, or to commit any felony, as charged in the information herein, then and in that event you will find the defendant guilty of the crime of assault with a dangerous weapon.”

This instruction is practically in the words of the statute. The contention of defendant is to place a technical construction on the statute. When this instruction is read in connection with instruction No. 4, which sets out the statute of assault with a dangerous weapon in full, there can be no question as to the correctness of instruction No. 5. The defendant could not have been denied any right to which he was entitled under this instruction.

We have carefully examined instructions Nos. 7 and 8. We find no error in the giving of these instructions. They were as favorable to the defendant as to the state, and. especially instruction No. 8. It is unnecessary to quote them. They did not deprive the defendant of any substantial right, and were upon the defendant’s theory of the shooting.

It is contended that the court erred in refusing to give three requested instructions. The first of these was not justified under the evidence, and was not an issue in the case. Requested instructions Nos. 3 and 4 were covered by the general instructions given by the court.

The contention of the defendant that the court erred in failing to submit to the jury the offense of assault and battery as defined by 21 O. S. A. 1941 § 641, as an included offense, cannot be sustained. It is true that it is the duty of the court to submit to the jury every degree of assault But there is nothing in the evidence here that indicates an which the evidence in any reasonable view of it suggests, assault and battery. The weapon here used was a deadly weapon per se. No requested instruction was submitted by defendant covering this question. Whittle v. State, 53 Okla. Cr. 242, 9 P. 2d 960; Watkins v. State, 25 Okla. Cr. 10, 218 P. 895; Crain v. State, 24 Okla. Cr. 343, 217 P. 888; Wheeler v. State, 66 Okla. Cr. 127, 90 P. 2d 49.

This case brings into view a wild night in LeFlore county. We have not discussed all of the evidence as revealed by the record, as it was unnecessary. It reveals that officers in their zeal sometimes overrun the law. It is regrettable that they should pay the penalty, but the law is so written that he who violates it shall suffer the consequences. This defendant had been an officer for a number of years. His experience and opportunity to know the law was no doubt a strong factor, taken into consideration by the jury, in his home county, in finding him guilty, and assessing the punishment they did.

Finding no error, the judgment of the district court of LeFlore county is affirmed.

JONES, P. J., and DOYLE, J., concur.


text:
    BILL RICHARDSON v. STATE.
    No. A-10262.
    July 26, 1944.
    (151 P. 2d 73.)
    A. G. Windham and Clyde Followell, both of Poteau, for plaintiff in error.

      Rand ell S. Cobb, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Foster Windham, Co. Atty., LeFlore County, and James Babb, both of Poteau, for defendant in error.
   BAREFOOT, J.

Defendant, Bill Richardson, Avas charged in the district court of LeFlore county jointly Avith Gene Murphy and others, with the crime of assault and attempt to kill; demanded a severance, Avas tried and convicted of the included crime of assault Avith a dangerous weapon, and his punishment assessed by the jury at two years in the state penitentiary. From this judgment and sentence, he has appealed.

This is a companion case of that of Gene Murphy v. State, 79 Okla. Cr. 31, 151 P. 2d 69, this day decided by this court. The facts and assignments of errors are the same. The only difference is that the codefendant Gene Murphy fired the shots, and this defendant was driving the car. The defendant in this case was given a sentence of tAvo years in the penitentiary, and his codefendant, Gene Murphy, Avas given four years. It is, therefore, unnecessary to revieAV the evidence and the laAV as announced in that. case.

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

JONES, P. J., and DOYLE, J., concur.


text:
    DEXTER RIDER v. STATE.
    No. A-10291,
    Aug. 2, 1944.
    (151 P. 2d 67.)

      Wall & Green, of Sallisaw, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and W. S. Agent, Co. Atty., of Sallisaw, for defendant in error.
   BAREFOOT, J.

Defendant, Dexter Rider, was charged in the district court of Sequoyah county with the crime of murder; was tried, convicted of the crime of mansi aughter in the first degree, by the court sentenced to serve a term of seven years in the penitentiary, and has appealed.

This charge was the outgrowth of the hilling by defendant of George Flute by shooting him with a pistol at a picnic near Sallisaw, in Sequoyah county, on the night of July 6, 1941.

The principal contention of defendant for a reversal of this case is that the evidence is insufficient to sustain the judgment and sentence.

A strong and well prepared brief has been filed by counsel for defendant to uphold this contention, in which the testimony of each witness has been carefully analyzed, and an eloquent appeal made for the reversal of the case.

We have carefully read the briefs, the record, and the instructions of the court.

We find that the testimony of the several witnesses with reference to ivhat occurred at the exact time of the killing is in direct conflict. This killing occurred on or near a dance platform on the picnic grounds, and many parties were on the platform and near it at the time.

The defendant ivas a member of the Cherokee Tribe of Indians, as was also the deceased, George Flute, who was a deputy sheriff of Sequoyah county. Some time prior to the killing, two girls had been in a fight out in the road near the picnic grounds. Defendant was present and one of the girls, whose face was bleeding, asked for a handkerchief, and defendant gave her one. This apparently angered some of the crowd, and they started toward the defendant. As he backed away he told them to stop, and when they did not do so, he pulled a gun from his pocket and fired three shots in the ground in front of them. The deceased, who was also present, made some attempt to secure the gun from defendant, and in this was assisted by another party. The defendant got away, and, as he testified, was going home. On the way he came to the dance platform and stopped, and went up on the platform. The deceased also approached the platform from another direction, and was undoubtedly, from all the testimony, going toward the defendant for the’purpose of arresting him, or securing his gun, the defendant having reloaded his gun and placed it in his pocket.

As to what happened from this time on, there is an unequivocal conflict in the evidence. A number of state witnesses testified that defendant shot at deceased twice before deceased attempted to get his gun, and that deceased fired his gun once, and defendant then fired two other shots, killing deceased. Several of the state witnesses testified that defendant shot deceased after he was lying on the ground. A number of witnesses for defendant testified that the deceased shot at defendant twice before defendant took his gun from his pocket, and before he fired. The gun of deceased was introduced in evidence, and the party who took possession of same immediately after the killing testified that only one shot had been fired, and the four loaded and one empty shells were introduced in evidence. The gun of defendant, together with five empty shells, were also introduced in evidence.

Defendant testified that he did not know deceased was an officer at the time, but knew he had been. Evidence of the state was that it was generally known in the community that deceased was a deputy sheriff.

Tinder the above statement, it is unnecessary for us to give a detailed statement of all the evidence offered in this case.

The argument that this court on appeal should attempt to judge the weight of the evidence and attempt to come to a conclusion as to who was testifying to the truth, and who was testifying falsely, would be in direct conflict with all the decisions of this court from its foundation. For us to attempt to determine that one witness had testified falsely because he did not testify at the preliminary examination, as argued, would be impossible. The weight of the testimony, the credibility of the witnesses, and the weight to be given to their testimony are questions exclusively for the consideration of the jury.

A careful reading of the record clearly reveals that the evidence was sufficient to sustain the judgment and sentence rendered in this case. The evidence of the state was sufficient to sustain a judgment and sentence of murder. The jury no doubt took into consideration the youth of the defendant, his being in the armed forces in the service of his country, and his testimony that he did not intend to kill deceased, and only found him guilty of manslaughter in the first degree. He was ably a.nd well defended.

The only other contention of defendant is that the court erred in giving instruction No. 5, which was as follows :

“Upon a trial for murder the commission of the homicide by the defendant being proven, the burden of proving circumstances of mitigation or that justify it devolves upon the defendant, unless the proof upon the part of the prosecution shows that the crime committed amounts only to manslaughter, or that the defendant was justifiable or excusable.”

in the first place, no exception was reserved to the giving of this instruction, and for this reason it may not be considered here, unless it was a fundamental error. The instruction is a direct quotation of 22 O. S. 1941 § 745. Under the law, it should be considered in connection with all the instructions as a whole. The court fully instructed the jury upon the law of reasonable doubt, and told them that if after a consideration of the whole case, “you entertain a reasonable doubt as to the guilt of the defendant, you will resolve that doubt in his favor and acquit him.” This same quotation was repeated a number of times in the general instructions. The court fully covered the law of self-defense in his instructions, and they were so favorable to the defendant that no exception was taken to them.

Finding no error in the record, it is ordered that the judgment and sentence of the district court of Sequoyah county be, and it is affirmed.

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


author: JONES, P. J.

text:
    ELBERT HERRION v. STATE.
    No. A-10190.
    July 26, 1944.
    (150 P. 2d 865.)
    Holmes H. Colbert, of Sulphur, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Elbert Herrion, was charged in the county court of Murray county with the crime of unlawful possession of intoxicating liquor, was tried, convicted and sentenced to serve 30 days in the county jail and pay a fine of $300, and has appealed.

In order to dispose of this case it is only necessary to Consider one of the many assignments of error presented in the brief of the defendant.

It is contended that the court erred in overruling the motion to suppress the evidence filed and presented by the defendant before the commencement of the trial, on the ground that the description of the place to be searched, as set forth in the affidavit for search warrant and the search warrant, was not sufficient to authorize a search of the premises of the defendant.

In support of the motion to suppress the evidence, the affidavit and search warrant were introduced in evidence, and they showed that the description of the premises searched by the officers, as set forth in those instruments, was as follows:

“Lots 1 and 2, in section 5, 1 south, 3 east, known as Alta Vista Cabins, occupied by Elbert Herrion.”

The deputy county clerk testified that the description set forth in the search warrant contained approximately SO acres of land, and was generally described as the north half of the northeast quarter of said section. The witness further testified that in addition to the cabins allegedly under the control of the defendant, there were four other farm houses located on this 80-acre tract of land. That each of those places had a separate description, as shown by the records in the county clerk’s office, but that all of them were located within the 80 acres described in the search warrant.

The state did not attempt to dispute the fact that the premises described in the search warrant were occupied by at least five separate families.

It is established lav/ that a search warrant must so particularly describe the place to be searched that the officers to whom it is directed may determine the place from the warrant, leaving no discretion as to the place to be searched. Young et al. v. State, 63 Okla. Cr. 196, 74 P. 2d 392; Weisband v. State, 69 Okla. Cr. 79, 100 P. 2d 297.

In construing the above principle of law, this court has held that an affidavit for search warrant describing the premises to be searched as certain property is insufficient to furnish a particular description of the place to be searched where it is shown that the premises so designated were owned and occupied by several persons, so that it was in fact several places. Lucas v. State, 58 Okla. Cr. 413, 41 P. 2d 131; Young v. State, supra; Stouse v. State, 62 Okla. Cr. 46, 70 P. 2d 145.

It "would ajipear from the record that the search warrant herein issued ivas a blanket search warrant, covering the homes of several separate families, and therefore void. The deputy county clerk in her testimony gave the proper description of defendant’s premises, which could have been obtained from a search of the records in the county clerk’s office, and the confusion over the alleged description set forth in the search warrant would have been avoided.

Under the uniform and consistent decisions of this court, it follows that the evidence procured by the search and seizure was improperly admitted, over the objection of the defendant, and for that reason the case should be reversed, and the defendant discharged.

It is so ordered.

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


text:
    HENRY JOHN v. STATE.
    No. A-10431.
    Sept. 6, 1944.
    (151 P. 2d 808.)

      C. II. Baskin, of Holdenville, for plaintiff in error.

      Bandell S. Cobb, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and George S. Turner, Co. Atty. Hughes County, of Holdenville, for defendant in error.
   BAREFOOT, J.

Defendant, Henry John, was charged in the district court of Hughes county with the crime of assault with a dangerous weapon; was tried, convicted, and sentenced by the court to serve a term of five years in the penitentiary, and has appealed.

Defendant being unable to make bond, and now being confined in the State Penitentiary, his case has been advanced.

An unusual procedure was followed in this case. In addition to the charge of assault with a dangerous weapon, this defendant was charged with the crime of rape upon the same party with whom he was charged with the assault. Both charges were of the same time, and by agreement of counsel, the two cases were consolidated and tried together, with the result that defendant was found guilty in the case charging assault with a dangerous weapon, and sentenced, as above stated. A notation in the record reveals that the jury did not agree in the rape case. No question of the above procedure is raised in any manner in this appeal.

The first question presented, by defendant for reversal is that three of the jurors who tried the defendant were not qualified jurors, and that therefore the defendant did not have a fair and impartial trial, as guaranteed him by the Bill of Rights, and as provided by the laws of the State of Oklahoma.

In his motion for new trial the defendant alleged that one of the jurors had assisted in securing evidence in the case at the time of the alleged offense; that one of them had previously been convicted of a felony; and that another of the jurors had not been a resident of the county for the length of time required by law.

Defendant later filed an amended motion for new trial, in which he alleged that one of the jurors (the one alleged to have been previously convicted of a felony) had been separated from the others during the noon recess of the court, and had been seen talking with one of the state witnesses in the case.

It may be stated that the voir dire examination of the jurors does not appear in the record, and the first time these questions were raised was on the motion for new trial, and the amended motion.

The court heard the motion for new trial and the amended motion at the same time. Testimony of witnesses was heard, and the court overruled the motions. This was a matter clearly within the discretion of the trial court, and this discretion not having been abused, the ruling of the court will not be set aside on appeal.

When the motion for new trial was presented, evidence was offered to show that a person of the same name as one of the jurors had been convicted of a felony in the Northern Federal District of Texas, and had served a term in the Federal Penitentiary. At the time this was presented, counsel for defendant admitted that he knew that the juror had been convicted, but stated that he had forgotten about it. The question was not raised in any way at the time the jury was impaneled, nor at the trial. In the case of Queenan v. Territory, 11 Okla. 261, 71 P. 218, 223, 61 L. R. A. 324, affirmed 190 U. S. 548, 23 S. Ct. 762, 47 L. Ed. 1175, it is said:

“In the absence of an express statute making a juror incompetent who has been convicted of a criminal offense punishable by imprisonment in a penitentiary in another state, such conviction and sentence can have no effect by the Aváy of penalty or of personal disability or disqualification beyond the limits of the state in Avhich the judgment Avas rendered.”

Defendant claimed that one of the jurors, Avho had formerly lived in Hughes county, had moAred aAvay to Grady county, later returning to Hughes county, but had not resided there the last time for a period of six months. As aboAre stated, this question Avas raised for the first time in the motion for nevv trial, and it is stated that the disqualification of this juror Avas unknoAvn prior to his selection. Do OAddence Avas presented to substantiate the allegations with reference to this juror. There was nothing to shoAV that the defendant was in any way prejudiced by reason of this juror serving upon the jury. The following-cases are decisive of this proposition: Cooper v. State, 27 Okla. Cr. 278, 226 P. 1066; Perry v. State, 38 Okla. Cr. 202, 259 P. 657; Spratt v. State, 55 Okla. Cr. 1, 23 P. 2d 223; Ball v. State, 47 Okla. Cr. 145, 286 P. 808; Stouse v. State, 6 Okla. Cr. 415, 119 P. 271.

With reference to the one juror separating from the remainder, the record reveals that the jury had not been kept together during the trial, and that at the noon recess on the last day of the trial, the court sent the jury out to dinner and the bailiff accompanied them. The attorney for defendant claimed that when he returned to the courthouse he saw 11 of the jurors on the first floor, and that he saw one of the jurors on the third floor, talking to one of the state witnesses. He did not hear any part of the conversation. He placed the witness with Avkom the juror Avas alleged to have been talking- on the stand when the motions for neAV trial were presented, and this witness testified that if he talked to any juror he did not know it, and that he neArer talked Avith any one about the case ex.cept the other witnesses. After he had seen this juror talking with the witness, counsel did not deem it of sufficient importance to call it to the attention of the court. The case had not been concluded, and other testimony was taken thereafter. Nor did he raise it in the motion for new trial, but it was first raised in the amended motion for new trial. There was no evidence offered to show that defendant was prejudiced. Under these facts, it occurs to us that the court did not err in overruling the motion and amended motion for new trial.

It is next contended that the court erred in permitting the county attorney to read an original statement made by one of the witnesses in the presence of the jury. In order to consider this assignment of error, it is necessary to consider some of the facts and circumstances surrounding this case.

The witness Eaymond Bronner was a negro boy 17 years of age. The morning following the commission of this offense, he with five others, including the defendant, were arrested and placed in jail for investigation. All of them had been in a car with Emma Harjo, a full-blood Indian girl and the prosecuting witness, just before the alleged offense. Pour of these parties, including Bronner, made statements to the county attorney, and in addition thereto testified a.t the preliminary hearing. In each of these statements, and by their testimony at the preliminary examination, these witnesses implicated the defendant as the party who had assaulted the prosecuting witness, Emma Harjo, by striking and raping her, and deliberately running over her body with a Ford automobile which he was driving, and in which they were riding, each testifying that he was present when this happened.

At the final trial, John (Ulerease and Bronner were placed upon the witness stand by the state, and Jack Harjo by the defense. Gilcrease testified at first that he did not see Emma Harjo after she had disappeared from the mail box, but when confronted with his testimony at the preliminary examination he testified that he was present at the time the defendant struck her and ran over her with the Ford car, after raping her. When the witness Bronner was placed on the stand by the state he denied that he was present at the time defendant struck Emma Harjo, and that they did not find her after she left the mail box. The county attorney then first presented his testimony at the preliminary examination, and asked him each question that was there asked him, and he stated that he had testified in that way at the preliminary, but that he was afraid because they had told him they would send him to the penitentiary. He was then confronted with the written statement he had made admitting that he was present at the time the defendant struck Emma Harjo, raped her, and then ran over her with the Ford automobile; and that defendant had asked him not to tell it, but to tell that he had stayed at the mail box, and that they did not find Emma Harjo.

When the county attorney made reference to the statement, counsel for defendant objected. The court overruled the objection, but evidently had reference to the question asked by the county attorney. The county attorney then read the statement in the presence of the jury, and further questioned the witness with reference thereto. Of course, the statement could not be introduced as original testimony, but in view of the facts as above stated, and that the witness was testifying directly contrary to the evidence he had given at the preliminary hearing and that contained in the written statement he had made to the county attorney, the county attorney had the right to plead surprise and cross-examine the witness with reference to both his testimony at the preliminary hearing and the written statement he had made.

The jury had the right to hear all of this evidence, and under the circumstances we do not think the defendant was prejudiced by the reading of the previous statement of this witness. Certainly there was a direct conflict in the evidence and the jury was entitled to hear all of the facts. For the very reason that these witnesses were attempting to change their testimony, the jury was entitled to all of the facts surrounding the transaction, in order to arrive at a correct verdict. Under the evidence, the jury was justified in coming to the conclusion that these witnesses had told the truth at the preliminary examination, and were now attempting to change their testimony, and make it favorable to the defendant.

We are therefore of the opinion that the defendant was not prejudiced by the reading of the written statement in the presence of the jury. The rule with reference to the introduction of voluntary and involuntary statements has no application in the instant case. There is not sufficient evidence that tbe statement made by this witness was an involuntary one.

We have examined the evidence given by the witness Dr. C. S. Wallace, and do not find that the same was incompetent. He only testified to the facts within his own knowledge.

The refusal of the court to permit the defense to offer in evidence newspaper accounts of the difficulty, which accounts purported to include statements made by the witnesses and by the county attorney to the reporters at tbe time witnesses were in jail, was proper.

Attached to defendant’s amended motion for new trial was an affidavit of one Claude Jenkins. It is claimed that this is newly discovered evidence. He was with certain parties who discovered the body of Emma Harjo lying in the road, and reported the same. It seems that this witness was well known to*the defendant and his counsel. He had been called to the army. No effort had been made to secure this evidence prior to the trial. No motion for continuance was made. We have examined the affidavit and do not find therein any evidence which to our minds would change the result of this trial. This was a matter under the law that was within the discretion of the trial court, and certainly under the facts and circumstances, there was no abuse of discretion. It seemed to be the theory of the defense that the car in which this witness was riding was the one that ran over Emma'Harjo, but this theory is denied in the affidavit.

The evidence in this case is highly conflicting. It is one of those cases where a jury who sees all of the witnesses on the stand and observes their demeanor, is in a much' better position to pass upon the truth of their testimony than is an appellate court.

The prosecuting witness testified positively to the assault made upon her by the defendant. She positively identified him. In addition to the testimony of other witnesses, the bruises upon her body are strong corroboration of the evidence which she gave.

We have carefully examined this record, and are of the opinion that the jury came to the right conclusion in finding the defendant guilty in this case.

The judgment of the district court of Hughes county is therefore affirmed.

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


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    EMIL WIRTH v. STATE.
    No. A-10326.
    Sept. 6, 1944.
    (151 P. 2d 819.)

      J. G. Aubuchon and Wilson & Wilson, all of Enid, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Hugh Conway, Co. Atty., of Enid, for defendant in error.
   BAREFOOT, J.

Emil Wirth was charged in the county court of Garfield county with the crime of driving a motor vehicle upon the public highway while under the influence of intoxicating liquor, was tried, convicted, sentenced to pay a fine of $50 and costs, and has appealed.

In his petition, defendant sets out ten assignments of error, but in his brief urges only three, as follows:

“First proposition: Error of the trial court in overruling defendant’s motion to suppress the evidence.
“Second proposition: Error of the court in failing to give the instructions Nos. 1 and 2 requested by the defendant.
“Third proposition: Alleged error of the court in permitting attorney for the State, in his cross-examination of the defendant, and his witnesses, to prove other misdemeanors and offenses other than the one for which defendant was on trial.”

As to the first proposition, it is revealed by the record that defendant filed a motion to suppress the evidence, but no evidence was submitted to sustain the motion. The record shows that the court overruled the motion, after hearing thereon, and gave defendant an exception. In the absence of any testimony in the record, the presumption would be that the overruling of the motion by the trial court was not error.

The facts in the case were that two police officers arrested defendant in the city of Enid, between 5 and 5:30 in the afternoon of December 6, 1941. They were driving their car north on Tenth street, and defendant was coming south on the same street, in a truck. With him was his ex-wife, from whom he had previously been divorced. The evidence of the officers was that defendant was on the east side, or wrong side, of the street. In order to keep him from running into their car, it was necessary for them to turn into a private driveway. They recognized the defendant, and turned and followed his car for two blocks. He made a long swing to the right-hand side of the street, which would be the west side, and then made a swing to the left-hand side, across the center line; and then turned Avest on Maple street. The officers followed him and sounded their horn. When he did not stop they turned on the siren, and defendant stopped. They asked Mm to get out of the car. He had to hold to the car to steady himself, and from his general appearance, and the odor of intoxicating liquor on his breath, they determined that he Avas drunk, and unable to properly drive a car. They placed him in the police car and took him to the police station. The other officer drove the truck of defendant, and took his ex-wife, who Avas also under the influence of intoxicating liquor, to the police station. The two police officers Avho made the arrest, the police sergeant, another policeman, a newspaper reporter, and the police matron all testified that they saAV defendant, and that in their opinion he Avas drunk. They testified that he staggered Avhen he Avalked; that he talked with a thick tongue, and had all the appearance of being under the influence of intoxicating liquor. He Avas placed in the city jail, and the officers took his ex-wife to her home so she could be with her small children, who were there. All of the officers testified that she was under the influence of intoxicating liquor.

The arrest was made on Saturday evening, and on the following Monday this charge was filed against the defendant in the county court of Garfield county. No charge was filed in the municipal court of the city of Enid.

The contention of defendant is that he was arrested without a search warrant, and for this reason the court should have sustained a motion to suppress the evidence and discharged the defendant. Under the above statement, it will at once be observed that this contention cannot be sustained. The defendant, according to the evidence of the officers, was committing several crimes, which justified the officers in arresting him. It could certainly not be expected of officers that when they in the course of their duty observe a violation of the law in their presence, should be forced to leave the scene for the purpose of securing a search warrant. Such a construction as this would make a farce of the law. Brown v. State, 74 Okla. Cr. 246, 125 P. 2d 234; Nott v. State, 70 Okla. Cr. 432, 107 P. 2d 366; Barfield v. State, 68 Okla. Cr. 455, 99 P. 2d 544; Matthews v. State, 67 Okla. Cr. 203, 93 P. 2d 549.

It is true that the defendant and Ms companion testified tha.t he was not drunk, nor under the influence of intoxicating liquor, and he testified that he had only drunk two bottles of beer. He also testified that he thought the arresting officers “had it in for me” because of previous arrests and convictions.

This conflicting evidence was a question for the jury, and not an appellate court. The evidence of the state was not only sufficient to justify the overruling of the motion of defendant to suppress the evidence, but was also sufficient to sustain the judgment.

It is next contended that the court erred in refusing to give requested instructions Nos. 1 and 2.

The first requested instruction was a definition of what is meant by “being under the influence of intoxicating liquor.” The court gave this instruction in the exact language as referred to in the case of Luellen v. State, 64 Okla. Cr. 382, 81 P. 2d 323, decided by this court on July 1, 1938. The court used the exact language of this approved instruction.

It is insisted that the court failed to instruct the jury upon the defendant’s theory of defense. The only defense was that the defendant was not under the influence of intoxicating liquor at the time he was arrested. This issue was fairly presented to the jury in the instructions given by the court.

Instruction No. 2 was purely a question of law for the court to decide. It was for the court to determine as a matter of law whether the evidence should be suppressed, and the court did not err in refusing to submit this issue to the jury.

The third contention of defendant is not sustained by the record. Counsel for defendant on cross-examination interrogated certain witnesses with reference to the arrest of the defendant on another occasion, for an offense identical with the one with which he stood charged. It developed that he had been convicted in the municipal court, the case wras appealed to the district court, and the district judge quashed the evidence by reason of the officers not having a search warrant. The court permitted the county attorney to cross-examine the witness with reference to this conviction, and which had been developed on direct examination by counsel for defendant. The trial court also permitted the county attorney to cross-examine the defendant as to a former conviction in the municipal court of an offense similar to the one here presented. The court limited this evidence as only to effect the credibility of the witness, and so instructed the jury. We do not find that the court committed any error in the procedure above indicated.

The record reveals that defendant had a fair and impartial trial. The trial court was extra cautious in his rulings on the admission of evidence, and his instructions were very fair.

Finding no error in the record, the judgment of the county court of Garfield county is affirmed.

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


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    HORACE H. CANADY v. STATE.
    No. A-10296.
    Sept. 6, 1944.
    (151 P. 2d 817.)

      Glen O. Morris and E. O. Swimmer, both of Oklahoma City, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Horace H. Canady, was charged in the court of common pleas of Oklahoma county with the unlawful possession of intoxicating liquor; was tried, convicted, and sentenced to serve 30 days in the county jail and pay a fine of $50 and costs, and has appealed.

It is first contended that the court erred in overruling the motion to suppress evidence because the search warrant under which the officers were acting at the time the search was made of defendant’s premises failed to state the number of the street and the location of the defendant’s place.

After the motion to suppress was filed, a hearing was had at which counsel for defendant introduced what was purported to be the copy of the search warrant which was served on the defendant. This warrant gave a house number, but did not recite the street in Oklahoma City. It Avas contended by the state that some one had erased the name of the street from the copy of the warrant which had been served on the defendant, and the state introduced in evidence what was purported to be the original warrant which showed that the premises to be searched were located at 4001 N. W. 10th Street, in Oklahoma City. Photostatic copies of each of these two warrants were attached to the ease-made. An examination of them shows that there is considerable merit to the argument of both the state and the defendant. The search warrant introduced by defendant does show that there has been some erasures. On the other hand, the warrant introduced by the state shows that the figure “10” was inserted by pen or pencil after the search warrant was prepared. It could haye been inserted by the court which issued the warrant before it was delivered to the officers. The evidence in connection with this proposition was such that it presented a question of fact for determination of the trial court. There is sufficient evidence in the record to support any judgment on this question which might have been rendered by the court. Under such circumstances, we shall not interfere with the determination of this question by the trial court.

It is next insisted that the evidence is insufficient to sustain the conviction for the reason that the state wholly failed to prove that defendant had the possession with the unlawful intent to sell as provided by statute. In connection with this proposition, defendant argues that it is incumbent upon the state to prove that defendant’s home was a place of general and public resort as a condition precedent to supplying the intent necessary for a conviction.

There is no legal authority to sustain this position of defendant. Thirty-three pints of whisky were found in defendant’s possession. Defendant testified on the motion to suppress that the whisky was his. He admitted to the officers that the whisky belonged to him. We have a statute, 37 O. S. 1941 § 82, which provides that “the keeping, in excess of one quart of any spirituous . . . liquors . . . shall be prima facie evidence of an intention to convey, sell or otherwise dispose of. such liquors.” This statute has been given approval by many decisions of this court. Weisband v. State, 69 Okla. Cr. 79, 100 P. 2d 297; Smith v. State, 62 Okla. Cr. 33, 69 P. 2d 671; Crim v. State, 68 Okla. Cr. 390, 99 P. 2d 185; Dean v. State, 63 Okla. Cr. 385, 75 P. 2d 900.

Of course, we do not mean that where the state makes a prima facie case, it is incumbent upon the jury to return a verdict of guilty, but by prima facie evidence of unlawful intent is meant that degree of proof which unexplained or uncontradieted is alone sufficient to establish unlawful intent if it be credited by the jury.

There is no material error in the record, and the judgment of the court of common pleas of Oklahoma county is accordingly affirmed.

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


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    In re LUVEANIA THREATT.
    No. A-10551.
    Sept. 6, 1944.
    (151 P. 2d 816.)
    Ross N. Lillard and David Tant, both of Oklahoma City, for petitioner.
    Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondents.
   JONES, P. J.

This is an original proceeding in habeas corpus instituted by the petitioner, Luveania Threatt, also known as Luvenia Beatrice Simpson, through her attorneys to secure hes release from confinement in the Rapid Treatment Hospital, at Rush Springs, Okla.

The petition was verified by one of petitioner’s attorneys and alleged that the petitioner was a colored girl of about 18 years of age and employed as a fountain girl by a drug company in Oklahoma City; that she was illegally arrested on July 20, 1944, by a policeman of Oklahoma City, and incarcerated in the city jail and charged with vagrancy; that on the 21st day of July, 1944, she was found guilt}" by the municipal court of Oklahoma City of the offense of vagrancy and assessed a fine; that, thereafter, without her consent and over her protest, the State Superintendent of Health transferred her to the Rapid Treatment Hospital for treatment of venereal disease, located at Rush Springs, Okla., where she is now confined.

Said petition further alleged that the pretended conviction in the municipal court was void, and that petitioner was arrested without a warrant and, in fact, had committed no offense against the ordinances of Oklahoma City or the laws of the State of Oklahoma; that the pretended order upon which petitioner was transferred to the Rapid Treatment Hospital was without authority of law; that the petitioner is not infected with any venereal disease; that application for a writ of habeas corpus was filed in the district court of Oklahoma county, and denied by one of the judges of said court.

The State Superintendent of Health and the Superintendent of the Rapid Treatment Hospital filed a joint response in which they alleged that subsequent to the arrest of petitioner on tlie charge of vagrancy an examination was made of her person pursuant to law to disclose whether she was infected with a venereal or other contagious or infectious disease; that said examination disclosed that the petitioner was suffering from a venereal disease; that a report of said examination was made to the State Superintendent of Health, and, pursuant to the duties imposed upon him by statute, and, pursuant to a voluntary application signed by the petitioner, the State Superintendent of Health entered an order quarantining the said petitioner and designating the Rapid Treatment Hospital, located at Rush Springs, Oída., as the place of quarantine and treatment of said petitioner.

A hearing was had before this court, and the evidence showed that the petitioner was suffering from a chronic case of gonorrhea which had been overlooked by her physician when he issued her a health certificate which enabled her to secure employment with the drug company. Also, there was introduced in evidence on the part of the respondents an application for treatment which was admittedly signed by the petitioner and which reads as follows :

“I, Luvenia Beatrice Simpson, 18, hereby voluntarily make application to the Rush Springs Rapid Treatment Hospital to receive such treatment for venereal disease, as, in the opinion of the attending physician may be indicated in my case. The procedure, potential benefits, and risks of receiving the treatment have been explained to me by the attending physician, Charles A. Shumate, M.D., and are understood by me.
“In consideration of my receiving this treatment, I hereby assume all risks of such treatment and release the United States Public Health Service, the Oklahoma State Department, of Health, and their personnel from all liability which may result from the treatment.
“July 24, 1944.
“(Signed) Luvenia Beatrice Simpson.”

This application was never withdrawn and petitioner had not expressed a desire to be released. Counsel who appeared for petitioner did so at the request of petitioner’s family who live in Oklahoma City.

The procedure followed in the commitment of petitioner to the Rapid Treatment Hospital, the nature of the treatments given, the length of time necessary for a cure of the disease were detailed by the Superintendent of the Hospital. It was also shown that the petitioner had exposed a sailor to the said venereal disease, and that to allow her discharge from the Hospital before being cured would be dangerous to the public health.

The purpose of the writ of habeas corpus being to release from unlawful restraint those persons being held contrary to their will and without legal authority, it is also true that where the record discloses that the petitioner is not being restrained contrary to her will and without legal authority, that the writ will be denied. Here the petitioner is confined for treatment at her own voluntary request, and, being so confined, it becomes unnecessary to consider the many other issues raised by counsel for petitioner as to the lawfulness of the arrest of petitioner and the validity of the rules and regulations of the State Department of Health where they quarantine and order committed to institutions for treatment those persons whose names have been certified to them as being afflicted with a venereal disease.

The writ of habeas corpus is denied.

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