text:
    CHARLES FILLMORE DAVIS v. STATE.
    No. A-8340.
    June 18, 1932.
    (12 Pac. [2d] 555.)

      Moman Pruiett and Wes Croy, for plaintiff in error.
    J. Berry King, Atty. Gen., Gus Rinehart, Asst. Atty. Gen., and Ted R. Fisher, Co. Atty., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Blaine county of murder, and his punishment fixed at death.

The information, in the usual form, charges murder in that defendant on June 25, 1931, did shoot and kill Guy Jarvis. At the time charged, Jarvis, a deputy sheriff, accompanied by another deputy, went to the residence of one Dobbins, a negro, at whose house defendant, also a negro, was at the time. Complaint had been made of the theft of some gasoline the night before, and the car in which the stolen gas apparently had been transported was tracked to this place. These officers stopped their car near the house. Jarvis went to the east door, the other deputy went to the north door; Jarvis knocked several times, and, no one answering, he put his head in the door and then immediately jumped back and ordered the defendant inside to lay down the gun. Defendant from within the house inquired who was there, and Jarvis informed him that he was an officer; that he wanted him for stealing gasoline, and again ordered him to lay the gun down and come out. Defendant parleyed with Jarvis and stated, in substance, he feared he would get shot if he came out ; Jarvis assured him that he did not want to harm any one; advised him to lay down his gun and come out. Just then a car came along the road, and Jarvis stopped it and instructed the occupants to call the sheriff. The car left, and a wagon drove up in which was Mrs. Dobbins, who resided at this house. She got out of the car and went into the house at the east door, and about that time a shot was fired inside the house. The woman went on through the house and came out at the north door. One of the shots passed through the door of the house, struck the deputy on the north side, but did not injure him. Defendant then said to Jarvis if he and the other deputy would lay down their guns he would, lay down his gun and come out and give up. Jarvis agreed, laid down his gun, and called for the other deputy to lay down his gun. He did that, and both stepped away from the guns; then defendant came out of the east door with a shotgun pointed, took about two steps, and shot Jarvis, who fell, and then turned his gun toward the other deputy who left the scene. Defendant then picked up the gun of both Jarvis and the other deputy and made his escape. He was apprehended July 17, at Drumright. Later, while incarcerated in the jail of Oklahoma county, he made a signed statement substantially as set out. Excerpts from this statement are as follows:

“* * * Q. Getting back to the morning when Guy was killed. How long had you waited in the house before Jarvis and George Gender drove up there? A. As near as I can think it must have been about 10.00 o’clock, I guess. * * * I was laying down when they stopped. I did not hear them drive in but when they stopped the brakes kind of squeaked and I raised up and I got over on the other bed and the door was open and it made me behind the door. * * * I was sitting on the bed and he walked in. * * * He told, me to come on' out. Q. What did you do? A. He stepped back out the door. Q. You have the gun in your hand then? A. Yes, sir. Q. What did you do after he stepped out? A. When he stepped out I shot. * * * Q. You shot right after Jarvis backed out? A. Yes. Q. What did he say to you when he got out? A. He told me to come out. Q. You have your gun pointed at him at the time? A. When he stepped in I had the gun laying like this. Q. Pointing toward the door? A. Yes, when he got in I raised it like this. Q. Then you shot through the door? A. Yes. Q. Then what happened?' A. He told me to come on out and I told him I was scared to come out, that he would shoot me. I said if you do not shoot ,1 will. * * * Well I stayed in the kitchen a long time and waited for Jarvis to change his position. I figured on giving up the deal and running out the kitchen door and running out in the pasture if he had moved from the north door. I figured he would go out in front but he stayed right there. Q. What did you do after you got in the kitchen? A. I stayed there a long time then went back in the other room. Q. Then where, did you go? A. I just stayed in there. A fellow come down the road in a Chevrolet with his wife and three children. He asked him if he would go back down the road and call up Mr. Law. Then he come on back. Who did? A. Jarvis — in the yard and 'stayed there. * * * Q. After he told you to come out what did you do? A. 1 told him I would come out. * * * Q. You tell him he would have to do anything? A. He said he would not shoot me and so I said I will put my gun down if you put yours down, and he laid it down. And I decided I would not pull the job, I will go on and let them take me, and he says I will lay my gun down, come on out here, and he laid it down. * * * Q. How far from him? A. Just a little ways. * * * Q. You pick your gun off the bed? A. Yes, I picked it up again. Q. He see you pick it up ? A. No, sir. * * * Q. How far did you step outside the door? A. I guess about as far as this table. * * * Q. You just stepped out and then what did you do? You have your gun in your hand? A. Yes. Q. What did you say? A. This other fellow Gender he was standing out by his car and he throwed his gun back toward me and went down the road. Q. Gender throwed his gun toward you before you shot? A. Yes. * * * A. After Gender throwed his gun down he went down the road. I started to run but I could see he had a gun or I could see what I thought was the print of a gun on his bosom, and I figured if I run he would shoot me anyway. Q. Was Jarvis looking at you when you shot him? A. Yes, sir. Q. Have his gun then? A. I could see what I thought was a print of a gun on his bosom, I started to run, thought I wouldn’t pull the deal but I thought he would shoot me anyway. * * * Q. His gun was laying on the ground? A. Yes, right by him. * * * Q. When you shot Jarvis, he was standing there looking at you? A. Yes, sir. * * *”

Defendant did not testify at the trial, and offered no testimony except one witness as to a matter of record.

Defendant was arraigned on July 27, entered a plea of not guilty, and, at the request of his counsel, trial was set for .September 21. On that date his counsel moved to quash the jury panel, alleging that the jury commissioners had excluded negroes because of their race. The motion is general in its terms, and must be construed liberally indeed to raise the constitutional question sought. This challenge presented a question of fact, and, though offered an opportunity to present evidence in support, no testimony was offered. The motion was properly overruled. McIntosh v. State, 8 Okla. Cr. 469, 128 Pac. 735; Scott v. State, 29 Okla. Cr. 324, 233 Pac. 776.

Following, the overruling of the motion to quash, an application for change of venue was filed stating in general terms that: On account of the bias and prejudice of the citizens against him, defendant could not have a fair trial in Blaine county; that counsel had endeavored to procure affidavits in support of this application, but had been unable to do so ; that they had talked to many citizens of the county who stated, in substance, that defendant could not have a fair trial, but they would not make an affidavit to that effect. No witnesses in support of this application were called. As a counter-showing, the state offered a large number! of affidavits from eighteen different localities in Blaine county, setting out the belief of affi-ants that defendant could have a fair and impartial trial in that county, and that they knew of no prejudice against him in their respective communities. In the matter of a change of venue, the burden is on a defendant. The granting or refusal of an application for change of venue is discretionary with the trial court, and, unless there is an abuse of discretion, this court will not reverse the ruling of the trial court denying a change of venue.

It is argued the court erred in overruling the challenge for cause interposed against two jurors who sat in the case, but the record discloses that defendant did not exhaust all of his peremptory challenges. He cannot complain of a juror whom he might have excluded by peremptory challenge. Tudor v. State, 14 Okla. Cr. 67, 167 Pac. 341.

Defendant alleges misconduct of the jury during the trial in separating in the lobby of the hotel and talking to persons there. Upon this point it appears, before the case was finally submitted to the jury, defendant’s counsel did talk to one of the jurors in the lobby of the hotel, but not on any subject connected with the trial. The others were standing about at the time. Before a case is finally submitted to the jury they may separate, and, if any misconduct is alleged as a result of such separation, the burden is on defendant to show it. While in the instant case the jury were not permitted to separate, yet, the alleged misconduct having occurred before the case was finally submitted, the burden is on him to show prejudice. This contention is without merit. Nowabbi v. State, 36 Okla. Cr. 97, 252 Pac. 442; Womble v. State. 50 Okla. Cr. 108, 296 Pac. 515.

It is also argued that the evidence does not sustain the judgment for the reason that at the time the deceased and his companion went to the Dobbins home, where defendant was to arrest him, they had no warrant, and that the offense for which they sought to arrest him was a misdemeanor not committed in the presence of the officer, and that the attempted arrest was illegal and defendant had a right to resist. This is the most serious contention presented. A peace officer may arrest without a warrant for a misdemeanor only when the misdemeanor is committed or attempted in his presence. Section 2471, Comp. Stat. 1921. A peace officer is a trespasser when he attempts to arrest without a warrant for a misdemeanor not committed or attempted in his presence, and the person sought to be arrested may resist arrest. Roberson v. U. S., 4 Okla. Cr. 336, 111 Pac. 984; Collegenia v. State, 9 Okla. Cr. 425, 132 Pac. 375; State v. Anselmo, 46 Utah, 137, 148 Pac. 1071; Sunday v. State, 14 Okla. Cr. 620, 174 Pac. 1095. See, also, Love v. State, 15 Okla. Cr. 429, 177 Pac. 387; Ballard v. State, 16 Okla. Cr. 263, 182 Pac. 524; Robsion v. State, 53 Okla. Cr. 178, 9 Pac. (2d) 54.

The right to resist an unlawful arrest is limited and varies with the circumstances. If the official character of the officer is known to the person sought to be arrested, or if the officer informs him of his official character and his reason for the arrest, and the person sought to be arrested has no reason to apprehend any treatment other than detention, he is not justified in the use of a deadly weapon, in resisting the arrest.

The statutes of the different states vary, but in substance there is a general uniformity. The general rule is stated in 29 C. J. 1093, § 68, thus:

“One who in resisting a lawful arrest intentionally kills a person seeking to arrest him is guilty of murder. * * * Even when an attempt to arrest is illegal, the killing of the officer with malice is murder. * *

To much the same effect is 2 R. C. L. p. 474, § 32. The law places too high a regard upon human life to justify the slaying of a human being in resisting a mere trespass, and the deliberate killing of another to prevent an illegal arrest is murder. Williams v. State, 44 Ala. 41; Rafferty v. People, 72 Ill. 37; Anderson v. State, 133 Wis. 601, 114 N. W. 112; Roberson v. State, 43 Fla. 156, 29 So. 535, 52 L. R. A. 751; Muscoe v. Com., 86 Va. 443, 10 S. E. 534.

The undisputed facts in the instant case disclose that the killing was deliberate and malicious. Upon the appearance of the officer, and before he had uttered a word, defendant menaced him with a gun. The officer then informed defendant of his official character and the purpose for which he sought to arrest him and asked that he submit. This demand that defendant submit to arrest was illegal; yet defendant agreed that if the officer would lay down his gun he would submit to arrest. The officer readily agreed. He and his companion put their guns out of reach, disclosing that they had no purpose other than to arrest him for a misdemeanor. Defendant then deliberately shot and killed the officer who was standing unarmed before him. He was moved by no sudden passion. The officer had not laid hands upon him, and he was threatened by no violence. Under the law, such a killing is premeditated and malicious. We see no mitigation to reduce the degree of homicide.

The case is affirmed.

The original time for the execution having passed, owing to the pendency of this appeal, it is considered, ordered, and adjudged by this court that the judgment and sentence of the district court of Blaine county he carried out by the electrocution of the defendant on Friday, August 19, 1932.

DAVENPORT, P. J., and CHAPPELL, J., concur.


source: Caselaw Access Project

author: CHAPPELL, J.

license: Public Domain

text:
    L. M. MERRIWEATHER v. STATE.
    No. A-8355.
    June 24, 1932.
    (12 Pac. [2d] 707.)
    W. H. Hussey and Mounts & Chamberlin, for plaintiff in error.
    The Attorney General, A. C. Chaney, Co. Atty., and Houston Reeves, Asst. Co. Atty., for the State.
   CHAPPELL, J.

Plaintiff in error was convicted in the county court of Tillman county of the crime of unlawfully pointing a gun, and his punishment fixed by the court at a fine of $50 and imprisonment in the county jail for a period of 90 days.

It appears from the record that the defendant was charged with pointing a gun at certain men claiming to represent the highway department and the county commissioners, and who were cutting down and removing certain pecan trees from the highway in front of defendant’s premises.

Plaintiff in error contends first that the court erred in giving the following paragraph of instruction No. 4-A:

“And in this case if you find and believe from the evidence beyond a reasonable doubt that the defendant in this case had reasonable grounds to believe that he was the owner of the trees in question and that it was necessary for the protection of this property that he committed the actions as charged in this information, then the defendant would not be guilty.”

An instruction in this form, placing the burden of proof upon the defendant, has been condemned in the following cases: Clendenning v. State, 3 Okla. Cr. 379, 106 Pac. 540; Vaughn v. State, 9 Okla. Cr. 121, 130 Pac. 1100;Remillard v. State, 10 Okla. Cr. 438, 133 Pac. 1132, 137 Pac. 370 ; Wood v. State, 11 Okla. Cr. 176, 144 Pac. 391 ; Smith v. State, 12 Okla. Cr. 489, 159 Pac. 668; Findley v. State, 13 Okla. Cr. 128, 162 Pac. 680; Slate v. State, 15 Okla. Cr. 201, 175 Pac. 843; Stribling v. State, 18 Okla. Cr. 48, 192 Pac. 590 ; Tabor v. State, 23 Okla. Cr. 303, 214 Pac. 564.

It is the settled law of this state that defendant in a criminal case is presumed to be innocent until the contrary is proven by competent evidence, beyond a reasonable doubt, and it is not incumbent upon the defendant to show beyond a reasonable doubt or by a preponderance of the evidence that he did not do certain things. In case of a reasonable doubt, he is entitled to be acquitted.

Defendant next contends that the court further erred in instruction No. 4-A where the court said:

“Under the law of this state between all section lines it is reserved as a public highway which is under charge and control of the highway officials and no person has any right in or to said highway except for the uses and purposes of travel and any property upon said highway is at 'the disposal of highway officials and any person claiming any such property it would be necessary for them or the person claiming such to comply strictly with the conditions imposed upon him in giving him this right.”

29 Corpus Juris, pages 543, 544, states the law as follows:

“Trees. The ownership of the trees in the highway remains in the proprietor of the fee, and unless forbidden by statute, he may remove them at pleasure, having regard to the safety and convenience of public travel. The highway officers cannot remove or cut such trees except when it is necessary for the safe and free use of the highway, and it is said that even if their removal is necessary the owner should have an opportunity to transplant them.”

In Barclay et al. v. Howell, 6 Pet. 498, 8 L. Ed. page 498, it is said:

“By the common law, the fee in the soil remains in the original owner, where a public road is made upon it, but the use of the road is in the public; the owner parts with this use only; for if the road should be vacated by the public, he resumes the exclusive possession of the ground; and while it is used as a highway he is entitled to the timber and grass which may grow upon the surface, and to all minerals which may be found below it; he may bring an action of trespass against any one who^ obstructs the road.”

To the same effect is Banks v. Ogden, 2 Wall. 57, 17 L. Ed. page 818.

In Clark v. Dasso, 34 Mich. 86, it is said:

“It is to be remembered that the trees are the property of the adjacent owner, who cannot lawfully be deprived of any species of property in the summary mode which was adopted in this case. .If the trees must be removed, he may prefer to take them as living trees and transplant them elsewhere; perhaps in more suitable localities in the street, and he should not be compelled to cut them down where removal is preferred.”

See, also, People v. Foss, 80 Mich. 559. 45 N. W. 480, 8 L. R. A. 472, 20 Am. St. Rep. 537; 13 Ruling Case Law, pages 132, 133.

Section 8444, C. O. S. 1921, provides:

“An owner of land, bounded by a road or street is presumed to own to the center of the way, but the contrary may be shown.”

Under the authorities above cited, defendant owned the land to the center of the highway, and the trees growing thereon were his property. Hence no burden rested on him to show any ownership, or right upon such highway or to such trees; the burden being upon the state.

It was error, therefore, for the court to tell the jury in effect that the burden was upon defendant to show that he was the owner of the trees, and to further tell the jury that the officers could cut down and remove the trees, as they were attempting to do when defendant requested them to desist.

For the reasons stated, the cause is reversed.

EDWARDS, J., concur. DAVENPORT, P. J., absent.


author: PER CURIAM.

text:
    C. H. LABLANCHE v. STATE.
    No. A-8346.
    June 24, 1932.
    (12 Pac. [2d] 1118.)

      Floyd Wheeler and Eaton & Eaton, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Ok-mulgee county of manufacturing intoxicating liquor, and was sentenced to pay a fine of $100 and to serve 60 days in the county jail.

Judgment was rendered October 28, 1931, and the appeal lodged in this court in February, 1932. No briefs in support of the appeal have been filed. An examination of the record discloses that the evidence is sufficient to sustain the judgment, and no jurisdictional nor fundamental error appears.

The case is affirmed.


text:
    JACK POPPINO et al. v. STATE.
    No. A-8341.
    June 24, 1932.
    (12 Pac. [2d] 1118.)
    J. Van Long, for plaintiffs in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiffs in error, hereinafter called defendants, were convicted in the district court of Tulsa county of the crime of robbery, and their punishment fixed by the jury at imprisonment in the state penitentiary for five years for each of them.

The appeal was filed in this court on the 20th day of February, 1932. No briefs have been filed, and no appearance made, for oral argument.

As is usual in such cases, the record has been carefully examined for fundamental' errors and the evidence read to ascertain if it supports the verdict of the jury.

No fundamental error being found and the evidence being sufficient to support the verdict of the jury, the cause is affirmed.

EDWARDS, J., concurs. DAVENPORT, P. J., absent.


text:
    Ex parte FRED K. GRESHAM.
    No. A-8401.
    June 24, 1932.
    (12 Pac. [2d] 709.)
    Courtland M. Feuquay, for petitioner.
    Bruce B. Potter, Co. Atty., and Ralph G. Harder, Asst. Co. Atty., for respondent.
   CHAPPELL, J.

Fred K. Gresham filed his petition in this court for a writ of habeas corpus, alleging that he was illegally restrained of his liberty by J. E. McFadden, sheriff of Kay county, Okla., and confined in the county jail of said county.

Petitioner alleges that he is charged with the offense of bigamy in that on the 15th day of October, 1931, at Hunnewell, Kan., he married Velma Ebert and at the same time had a living wife, Fawnie I. Gresham, living in the state of Oklahoma.

The facts appear to be that on the 15th day of March, 1928, petitioner married one Fawnie I. Gresham (maiden name not given), and that on the 15th day of October, 1931, in Sumner county, Kan., he was married to Velma Ebert; that Fawnie I. Gresham had sued petitioner for divorce in Oklahoma county, but that the decree was not granted until the 24th day of October, 1931; that immediately after said marriage in Sumner county, Kan., and before the decree was granted, petitioner returned to Kay county, Okla., and there resided and cohabited with Velma Ebert as his wife.

“Bigamy” is defined by section 1862, C. O. S. 1921, as:
“Any person whn having been married to another who remains living, marries any other person except in the cases specified in the next section is guilty of bigamy.”

It is conceded by petitioner and respondent that none of the exceptions haye any application to this case.

In Wilson v. State, 16 Okla. Cr. 471, 184 Pac. 603, this court said:

“The penal provisions of section 4971, Revised Laws 1910, are directed solely against the remarriage of either party to a divorce proceeding to- any other person within six months immediately subsequent to' the rendition of the decree of divorce. Held, the jurisdiction of a prosecution under such statute is in the county where the second marriage takes place; and held, further, where one of the parties to such decree, within the prohibited period of six months, marries another person without the state, and subsequently returns and cohabits, with such person in this state, the subsequent cohabitation not being of the gist of the offense defined by said statute, there is no jurisdiction to prosecute thereunder in this state.”

To the same effect is Harvey v. State, 31 Okla. Cr. 299, 238 Pac. 862, 51 A. L. R. 321.

It is apparent from these authorities that petitioner cannot be prosecuted under section 1862, supra.

The county attorney in his brief says:

“The defendant in his brief relied largely upon the fact that in the charge in the criminal complaint and under the evidence as shown at the preliminary hearing, the defendant could not he charged under section 510, O. O. S. 1921. It was not our intention to so charge the defendant under such section, but we have at all times proceeded under sections 1862 and 2720 of the Compiled Statutes of Oklahoma, 1921.”

Section 2720, supra, reads as follows:

“Upon a trial for bigamy, it is not necessary to prove either of the marriages by the register, certificate or other record evidence thereof, but the same may be proved by such evidence as is admissible to prove a marriage in other cases, and when the second marriage took place out of the state, proof of that fact accompanied with proof of cohabitation thereafter in this state, is sufficient to sustain the charge.”

Section 1500, C. O. S. 1921, provides:

“No act or omission shall be deemed criminal or punishable except as prescribed or authorized by this code. The words ‘this code’ as used in the ‘penal code’ shall be construed to mean ‘statutes of this state.’ ”

In City of Shawnee v. Landon, 3 Okla. Cr. 440, 106 Pac. 652, this court said:

“Penal statutes cannot be enlarged by implication or extended by inference. No person can be convicted of a crime unless the act committed is within both the letter and the spirit of a penal statute.”

In State v. Clifford, 3 Okla. Cr. 419, 106 Pac. 557, 558, this court, in the body of the opinion, said:

“The doctrine is fundamental in American law that there can be no constructive offenses, and that statutes are not to be extended by construction to cases not fairly and clearly embraced within their terms. Before a man can be punished, his case must be clearly and unmistakably within the statute; and, if there be any fair doubt whether the statute embraces it, that doubt is to be resolved in favor of the defendant.”

Section 1500, C. O. S. 1921, provides that no act or omission shall be deemed criminal or punishable except as prescribed or authorized by the Code.

In U. S. Wiltberger, 5 Wheat. 76, 5 L. Ed. 37, Judge Marshall said:

“To determine that a case is within the intention of a statute, its language must authorize us to say so. It would be dangerous, indeed, to carry the principle, that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity, or of kindred character, with those which are enumerated.”

As was said in Wilson v. State, supra:

“Our statute [1862] is directed solely against the second marriage. The subsequent cohabitation in this state is no part of the offense.”

.Section 2720 is not a penal statute; it is only a rule of evidence. The crime of bigamy is not enlarged by such statute.

Following the decision of this court in Wilson v. State, supra, the Legislature, in chapter 119, Session Laws of 1925, amended section 510, C. O. ,S. 1921, to read as follows :

“A party desiring, to appeal from a judgment granting a divorce, must within ten days after such judgment is rendered file a written notice in the office of the clerk of the court, duly entitled in such action, stating that it is the intention of such party to appeal from such judgment. If notice be filed as aforesaid, the party filing the same may commence proceedings * * * at any time within four months from the date of the decree appealed from and not thereafter. And it shall be unlawful for any person who has a living husband or wife to marry another person in any other state, within six (6) months from date of decree of divorcement granted in this state and cohabit with such second husband or wife in this state during said period. It shall be unlawful in any event for either party to such divorce suit to marry any other person within six months from the date of the decree of divorcement; and if notice be filed and proceedings in error be commenced as hereinafter provided, then it shall be unlawful for either party to such cause to marry any other person until the expiration of thirty days from the day on which final judgment shall be rendered pursuant to such appeal. Any person marrying or otherwise violating the provisions of this section shall be deemed guilty of bigamy.”

This section enlarges the crime of bigamy in certain cases tO' include cohabitation within the state in addition to marriage outside of the state.

Under this section, two things must occur:

(1) There must be a marriage outside of the state after a divorce was granted and during tbe six months’ period before the decree becomes final.

(2) The offending parties must return to this state and cohabit with each other during said prohibited period.

It is evident from a reading- of this section that it has no application to a marriage outside of the state before a divorce is granted, even tbougb tbe parties thereafter return to this state within the prohibited period and cohabit with each other as husband and wife.

The Legislature might have made the act broad enough to cover marriage outside of the state before divorce was granted, based upon cohabitation afterward in this state,' but since they have not seen fit to do so, this court cannot extend its provisions to cover the case at bar.

In Stewart v. State, 4 Okla. Cr. 564, 109 Pac. 243, 32 L. R. A. (N. S.) 505, this court said:

“It is the exclusive province of the Legislature to declare what shall constitute a crime, but it is the duty of the courts to determine whether a particular act done or omitted is within the intendment of a general statute.”

Under the facts disclosed in this case, a prosecution for the crime of bigamy will only lie in the state of Kansas.

For the reasons stated, the writ is allowed.

EDWARDS, J., concurs. DAVENPORT, P. J., absent.


text:
    NEOMA BUNCH v. STATE.
    No. A-8332.
    June 24, 1932.
    (12 Pac. [2d] 704.)

      Mounts & Chamberlin, for plaintiff in error.
    The Attorney General and A. 0. Chaney, Co. Atty., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of. Tillman county of the crime of maintaining a public nuisance, and her punishment fixed by the court at a fine of f 100, and imprisonment in the county jail for a period of 30 days.

Defendant contends that the evidence of the state is insufficient to support the verdict of the jury.

The evidence of the state shows that C. F. Wilkes purchased liquor on two different occasions from defendant; that the place where the nuisance was alleged to have been maintained was the property of Fred Key and was occupied by the defendant, Neoma Bunch, who later became the wife of Fred Key; that this place had the reputation of being a bootlegging joint.

Defendant’s counsel briefs the case and argues the evidence of Wilkes as though the charge was one of sale instead of maintaining a public nuisance. The evidence of Wilkes was competent to go to the jury as proof of the purpose for which defendant kept the place, but two sales of liquor standing alone would not necessarily make the place a public nuisance, unless there was other accompanying competent evidence to' support the charge.

Defendant contends also that proof of reputation in this character of case is not admissible until the state shows that the place is a place of public resort.

The authorities cited by defendant to support his contention that proof of the reputation of the place was inadmissible are not in point. In those cases the charge was the possession of liquor with intent to sell the same, and there this court held that proof of reputation could not be made until after the place was first shown to be a place of public resort. But the rule is different where the charge is maintaining a public nuisance, and such proof of reputation is admissible without first showing that it is a place of public resort, although the fact that it is a place of public resort is one of the circumstances tending to establish the charge of maintaining a public nuisance.

In numerous cases this court has held that, where one is charged with keeping a place in such a manner as to constitute a public nuisance, its general reputation as such may be shown. Caffee v. State, 11 Okla. Cr. 263, 145 Pac. 499; Cameron v. State, 13 Okla. Cr. 692, 167 Pac. 339; Davis v. State, 16 Okla. Cr. 372, 182 Pac. 908; Sibenaler v. State, 16 Okla. Cr. 576, 185 Pac. 448; Bland v. State, 18 Okla. Cr. 514, 196 Pac. 732; Tindell v. State, 18 Okla. Cr. 721, 196 Pac. 555; Friedman v. State, 19 Okla. Cr. 124, 198 Pac. 350; Hurst v. State, 25 Okla. Cr. 102, 219 Pac. 151.

In Barngrover v. State, 28 Okla. Cr. 22, 229 Pac. 301, 304, this court said:

“In a prosecution in which the charge is made that the defendant kept and maintained ‘a public nuisance at his home and premises (describing its location), the same being a place where spirituous liquors are bartered, sold, and given away,’ it is competent to introduce evidence of the general reputation of the place as being a place where such liquor is kept or distributed in violation of law.”

In the case at bar, the charge was the maintaining of a public nuisance in the private residence of the defendant Key, being a place where spirituous, vinous, and malt liquors were kept, bartered, sold, or given away; but there was no proof upon this charge except the two sales. The county attorney asked each witness for the state if they knew the reputation of defendant’s residence as being a bootlegging joint, but made no inquiry as to its reputation for being a place where liquors were kept or sold, or where drunks congregated, or where bar fixtures were kept and used.

The term “bootlegger” has come to have a wide meaning; sometimes applied to the unlawful sale of liquor, but at other times is applied to persons engaged in the unlawful sale of gasoline, oil, or any other commodity.

The contention of defendant that the evidence is insufficient to support the verdict of the jury is well taken.

Unless the state in another trial of this case can produce some direct evidence, in addition to the sales testified to, tending to show that the residence of defendant was a place of public resort, or that it had the reputation of being a place where intoxicating' liquors were kept to be bartered, sold, or otherwise disposed of, or other direct proof of facts showing that defendant’s place was a public nuisance, this prosecution should abate.

The judgment of the trial court is reversed, and the case remanded for further proceedings in accordance with this opinion.

EDWARDS, J., concurs. DAVENPORT, P. J., absent.


text:
    CHARLIE HILL v. STATE.
    No. A-8345.
    June 11, 1932.
    Rehearing- Denied July 13, 1932.
    (18 Pac. [2d] 286.)
    Claude A. Niles and John W. Robertson, for plaintiff' in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter referred to as defendant, was convicted in the county court of McIntosh county of the unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $150 and imprisonment in the county jail for a period of 30 days.

Defendant raises but one question — the sufficiency of the evidence.

The officers testified that they had a search warrant to search defendant’s premises; that upon reaching the place and inquiring of his wife where he was, she called to defendant and advised him that the officers were there; that defendant was in the smokehouse; that the officers heard breaking glass and as one of them came up to the smokehouse he saw the defendant breaking a bottle; that two bottles had been broken and the whisky spilled in a soap kettle; that they found several fruit jars in the smokehouse which had contained whisky; that they found one case of pint bottles and half a case of new half-pint bottles; that they followed a track leading from defendant’s house about seventy-five yards across the road, and beside a post they found a half gallon of whisky; that when the officer rushed in the smokehouse and asked defendant what he was doing, he said, “I am breaking whisky but I might be a d--fool for doing, it.”

Defendant testifying for himself, when asked what his business was, said: “I farm and buy hogs and cattle and anything to make a dollar or two.” He testified that the bottles and liquor, if any, belonged to his brother-in-law; that he sometimes drank and sometimes kept whisky for himself, but this was not his liquor. The brother-in-law was not called and no other showing made that the liquor did not belong to defendant.

This evidence was sufficient to support the verdict of the jury.

The cause is therefore affirmed.

EDWARDS, J., concurs. DAVENPORT, P. J., absent, not participating.


text:
    Ex parte J. B. McDANIEL.
    No. A-8422.
    June 18, 1932.
    Rehearing Denied July 13, 1932.
    (18 Pac. [2d] 287.)

      J. M. Roberts and O. H. Whitt, for petitioner.
    J. Berry King, Atty. Gen., and Gus Rinehart, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

J. B. McDaniel, petitioner herein, was found guilty in the district court of Greer county of the crime of murder in the hilling of Mollie McDaniel, his wife, and sentenced to life imprisonment in the state penitentiary.

Thereafter he appealed said cause to this court, where it was affirmed on the 26th day of February, 1918, and is reported in 14 Okla. Cr. 219, 169 Pac. 1128.

The reasons alleged why petitioner should be discharged are:

(1) That he did not hare a public trial.

An examination of the exhibits attached to his application for the writ discloses that he did have a public trial.

(2) That the case-made does not speak the truth.

The record further discloses that his counsel stipulated that the case-made contained a true and correct transcript of all of the proceedings had in such trial, and the certificate of the trial judge attached to the case-made and made a part of the record attached to petitioner’s application is to the same effect.

(3) That the court was without competent jurisdiction.

A further examination of the exhibits attached to petitioner’s application for the writ discloses that the offense was committed in Greer county; that proper proceedings were taken by complaint, warrant, preliminary hearing, and the filing, of a sufficient information in the district court of Greer county to give said court jurisdiction over the person and subject-matter of the controversy. The exhibits attached to the application further disclose that a jury was duly and legally impaneled, and that defendant was given the fair and impartial trial required by the Constitution and laws of the state; that the verdict of the jury, the judgment of the court, and commitment are in proper form.

It further appears from the application that petitioner has been for fifteen years preparing his application and gathering the numerous authorities cited in his brief to support his application to this court.

Petitioner was convicted of a heinous crime and subjected to the severe punishment of life imprisonment. We have carefully examined the application and the authorities cited.

This court on habeas corpus will not look beyond the judgment and sentence of any court of competent jurisdiction as to mere irregularities of procedure, or errors in law on questions over which the court had jurisdiction. The writ of habeas corpus cannot be used to perform the office of a writ of error on appeal, and should be limited to cases in which the judgment and sentence of the court attacked is clearly void. Ex parte Justus, 3 Okla. Cr. 111, 104 Pac. 933, 25 L. R. A. (N. S.) 483; In re Talley, 4 Okla. Cr. 398, 112 Pac. 36, 31 L. R. A. (N.,S.) 805; Ex parte Rupert, 6 Okla. Cr. 90, 116 Pac. 350; Ex parte Hollingshead, 24 Okla. Cr. 131, 216 Pac. 486; Ex parte Lair, 29 Okla. Cr. 282, 233 Pac. 789; Ex parte Dunn, 33 Okla. Cr. 190, 242 Pac. 574.

Where a prisoner in custody under sentence and conviction seeks to be discharged on habeas corpus, the inquiry is limited to the question whether the court in which the prisoner was convicted had jurisdiction of the person of the defendant and the crime charged; and, if the trial court had jurisdiction and power to convict and sentence, a writ cannot issue to correct mere errors. In re McNaught, 1 Okla. Cr. 529, 99 Pac. 241; Ex parte Mingle, 2 Okla. Cr. 709, 104 Pac. 68; Ex parte Woods, 7 Okla. Cr. 645, 125 Pac. 440.

It appearing from the record that the court had jurisdiction of the offense and the person of petitioner, and that the judgment and sentence is according to law, the writ is denied.

EDWARDS, J., concurs. DAVENPORT, P. J., not participating.


author: DAVENPORT, P. J.

text:
    D. H. MANEY v. STATE.
    No. A-8202.
    Jan. 23, 1932.
    Rehearing Denied July 13, 1932.
    (13 Pac. [2d] 597.)

      White & White, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst Atty. Gen., for the State.
   DAVENPORT, P. J.

The .plaintiff in error, hereinafter referred to as the defendant, pleaded guilty to manslaughter in the first degree, and was sentenced to serve a term of five years in the state penitentiary at McAlester. From which judgment the defendant appeals.

The defendant demurred to the information, on the ground:

“That the same wholly failed to state facts sufficient to. constitute a crime or public offense within the jurisdiction of this court; that same is so vague, indefinite and uncertain that the defendant cannot properly prepare and interpose his defense thereto.” Which demurrer was overruled, and defendant excepted.

On January 10, 1931, the defendant was sentenced to serve a term of five years in the penitentiary. The defendant then filed a motion in arrest of judgment, on the ground:

“That no information charging the defendant with the commission of a crime or public offense was ever filed herein; that no information sufficient to confer jurisdiction upon the court was filed herein; that therefore this court is now wholly without jurisdiction to render any judgment or impose any punishment against this defendant.” Which motion in arrest of judgment was overruled, and defendant duly excepted.

It is urged by the defendant that the information in this case is wholly insufficient to charge the defendant with the commission of a crime or public offense, and that the judgment herein is not supported by any legally sufficient information or indictment, and that the court erred in overruling the defendant’s motion in arrest of judgment.

The only question to be determined in this case is, Does the information upon which the defendant was sentenced on a plea of guilty state facts sufficient to charge the offense for which the defendant entered his plea? The charging part of the information is as follows:

“On or about the first day of March in the year of our Lord, One Thousand Nine Hundred and 30 and anterior to the presentment hereof, commit the crime of murder in the manner and form as follows, to wit:
“That at and within the county and state aforesaid and on or about the day and year aforesaid D. H. Maney, then and there being, did then and there knowingly, willfully, unlawfully, wrongfully and feloniously, without a design to effect the death of one A. 0. Kelly, but while the said D. H. Maney was engaged in the commission of a felony, to wit: driving a motor vehicle on a public highway in the state of Oklahoma, to wit: A Buick sedan on highway No. 266 east of the town of Okemah, while he the said D. H. Maney was then and there under the influence of intoxicating liquor; and while driving and operating said Buick sedan the said D. H. Maney did unlawfully and feloniously kill and murder one A. G. Kelly by driving! said Buick sedan into and against a certain automobile within which the said A. G. Kelly was at said time and which the said A. 0. Kelly was at said time lawfully driving on said highway No. 266, thereby striking and colliding with said automobile, in which said A. C. Kelly was so riding and operating, and then and there inflicting certain mortal wounds on the said A. 0. Kelly, from which wounds the said A. C. Kelly did on the first day of March, 1930, die.”

It is urged by the defendant that the information only charges that the defendant, while engaged in the commission of a felony, did unlawfully and feloniously kill and murder one A. C. Kelly, while driving a Buick sedan against a certain automobile, in which A. C. Kelly was riding, inflicting mortal wounds on A. C. Kelly.

The defendant' further argues that the information utterly fails to charge that the commission of a felony was the cause or any part of the cause of the death of the deceased; that it fails to charge that the commission of the felony was any element tending to make up the offense bf murder, or in any way connected with or conducive to the death of the deceased; citing, in support of his contention, 13 R. C. L. 846; State v. Keerl, 29 Mont. 508, 75 Pac. 362, 101 Am. St. Rep. 581; State v. Godfrey, 24 Me. 232, 41 Am. Dec. 382.

We cannot agree with the contention of the defendant. After a careful reading and study of the information, while it cannot be classed as a model, we hold that it does state facts sufficient to sustain the sentence imposed upon a plea of guilty of the defendant. The language in the information clearly states the crime the defendant is charged with; and also states that he committed this offense while driving an automobile upon the highway, and while under the influence of intoxicating liquor.

An information is sufficient which states facts clear.ly and distinctly, in ordinary and concise language, which, construed under the ordinary rules and construction of the English language, would enable a person of common understanding to know what was meant and to apprise the defendant of the exact nature of the offense with which he was charged, although the same does not contain all the phraseology or technical language used in criminal pleadings. Star v. State, 9 Okla. Cr. 210, 131 Pac. 542; Reed v. State, 17 Okla. Cr. 662, 191 Pac. 1041; Martin v. State, 35 Okla. Cr. 248, 250 Pac. 552.

The information in this case is sufficient to advise the defendant of the crime charged against him. The defendant having entered his plea of guilty to the same, his motion in arrest of judgment was properly overruled.

The judgment is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    J. J. NARRELL v. STATE.

      No. A-8304.
    March 4, 1932.
    Rehearing Denied July 13, 1932.
    (13 Pac. [2d] 597.)
    S. H. Davis, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, entered his plea of guilty, and was sentenced by the court to pay a fine of $250, and to be imprisoned in the county jail for 60 days, and appeals.

The defendant urges that the punishment imposed is excessive, and that he should have received the same sentence as other parties who entered their pleas on the same day that the defendant entered his plea and received his sentence.

The defendant was by information charged with having possession of a still. There is nothing in the record to show any reason why the sentence of the court should be modified, or to show that the court erred in imposing the sentence upon the defendant. There is no testimony in the record, and the presumption is the court imposed such a sentence as it deemed commensurate with the crime committed.

Finding no error in the record sufficient to warrant a reversal, the judgment is affirmed.

CHAPPELL, J., concurs. EDWARDS, J., absent, not participating.


author: EDWARDS, J.

text:
    E. F. McDONALD v. STATE.
    No. A-8354.
    July 13, 1932.
    (13 Pac. [2d] 213.)

      Robert Bums and F. W. Church, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Ottawa county of transporting intoxicating liquor, and was sentenced to pay a fine of $500 and to serve six months in the county jail.

At the time charged an automobile driven by defendant and one driven by one Henry Austin had a collision. It does not appear, and is immaterial here, who, if any one, was to blame. A statement of the other party to the collision exonerating defendant from fault was offered in evidence, but was rejected. Soon after the collision, officers went to the scene, and Green, the deputy sheriff who arrested defendant, testified, in substance, he had no warrant, saw no violation of the law, and had no suspicion of the commission of any felony; that defendant was arrested for the purpose of investigating the collision and, after the arrest, defendant’s car was searched and some whisky and beer found under the back seat.

The contention is made that the arrest was unlawful, the subsequent search of the automobile in violation of defendant’s constitutional rights, and the evidence obtained thereby inadmissible. The right of a peace officer to arrest without a warrant is limited to the grounds enumerated in section 2471, Comp. Stat. 1921, and sections immediately following. Except as authorized by these statutes, an arrest without a warrant is illegal. Graham et al. v. State, 31 Okla. Cr. 125, 237 Pac. 462; Condron v. State, 31 Okla. Cr. 130, 237 Pac. 465; Taylor v. State, 36 Okla. Cr. 431, 255 Pac. 157; Matthews v. State, 45 Okla. Cr. 110, 282 Pac. 180; Wallace v. State, 49 Okla. Cr. 281, 294 Pac. 198, 199.

In the latter case it was said:

“It is well settled that, if an arrest is unlawful, the incidental search of the person * * * arrested is likewise unlawful. Weeks v. U. S., 232 U. S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 19150, 1177.”

Upon a consideration of the entire record, we are satisfied the arrest of defendant was without authority of law. The search of the automobile not being incidental to a lawful arrest, the evidence obtained thereby was inadmissible.

The case is reversed and remanded, with instructions to dismiss.

DAYENPOET, P. J., and CHAPPELL, J., concur.


text:
    R. W. ORNSBY v. STATE.
    No. A-8424.
    July 22, 1932.
    (13 Pac. [2d] 596.)
    L. W. Harrod, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county of maintaining a public nuisance, and his punishment fixed by the jury at a fine of $150 and imprisonment in the county jail for a period of 60 days.

Defendant makes some contention as to the sufficiency of the description in the affidavit and search warrant. There is no' merit in this contention.

Defendant next contends that the evidence is insufficient to support the verdict of the jury.

The state called two witnesses, both deputy sheriffs, who testified that they had a search warrant and that defendant operated the Rock Island Hotel, located at 217% North Broadway, consisting of the second and third floors and containing twenty-two rooms; that they searched defendant’s office in the hotel under the search warrant; that in the room searched they found about three-fourths of a gallon of whisky and some people around a table drinking; that some of those arrested pleaded guilty to a charge of being drunk; that defendant said the whisky was his.

By the terms of section 7022, C. O. S. 1921, all places where spirituous, vinous, fermented, or malt liquors are manufactured, sold, bartered, given away, or otherwise furnished, and all places where any such liquor is kept or possessed by any person in violation of any provision of this act, or where persons congregate or resort for the purpose of drinking such liquor, are declared to be a public nuisance.

In Bunch v. State, 53 Okla. Cr. 430, 12 Pac. (2d) 704, this court said:

“Where one is charged with keeping a place in such manner as to constitute a public nuisance, its general reputation as such, may be shown; but evidence of reputation alone will not support a conviction.
“Where one is charged with keeping a place in such manner as to constitute a public nuisance, there must be evidence of a positive character that the place was a place of public resort, or that it contained bar fixtures or other paraphernalia indicating an intention to sell or dispose of liquor, or proof that the place was frequented by persons who habitually violated the liquor and gambling laws of the state, or proof of sale or sales of intoxicating liquor at or near the time of the charge, in addition to proof of general reputation.”

The Bunch Case was reversed by this court because the proof of the state only showed one sale of intoxicating liquor without other accompanying proof tending to show that the place constituted a public nuisance.

Proof by the state of the finding of three-fourths of a gallon of whisky in the office of the hotel, with several persons present in an intoxicated condition, without further proof that persons congregated there for the purpose of drinking intoxicating liqnor, or other proof to show more than one violation of the law, is insufficient to support a verdict of guilty of maintaining a public nuisance.

In the case at bar, if defendant is conducting a place where intoxicating liquors are stored or kept, or where such intoxicating liquors are sold, bartered, or given away, or where people congregate for the purpose of drinking such intoxicating liquors, or where people become boisterous and intoxicated, such place will have, in the community, the reputation of being a place where the prohibitory liquor laws are violated, and the state can, without any trouble, prove its charge.

If the state has no other proof, the case should be dismissed.

For the reasons stated, the canse is reversed and remanded.

EDWARDS, J., concurs. DAVENPORT, P. J., absent.


text:
    CLYDE RENIFF v. STATE.
    No. A-8383.
    July 22, 1932.
    (13 Pac. [2d] 592.)
    Mathers & Mathers and Owen F. Renegar, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., (Gus Rinehart, of counsel), for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Comanche county of forgery in the second degree, and was sentenced to serve a term of seven years in the state penitentiary.

Defendant was properly charged by information with passing a forged check. The record discloses that at the time charged defendant negotiated a forged check to the Lawton Tire Shop for an inner tube and money. The information charges it was negotiated with the Lawton Tire Company. It is argued the proof is insufficient, since it shows the check was delivered to the Lawton Tire Shop and not the Lawton Tire Company. The information pleads the check in full. Defendant could not have been misled as to the particular transaction. Section 2560, Comp. St. 1921, is:

“When an offense involves the commission of, or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material.”

This court has uniformly held that a variance such as shown by the testimony here is not material. Wells v. Territory, 1 Okla. Cr. 469, 98 Pac. 483; Gunter v. State, 16 Okla. Cr. 476, 184 Pac. 797; Ireton v. State, 29 Okla. Cr. 266, 233 Pac. 771; Leyerle v. State, 31 Okla. Cr. 179, 237 Pac. 871; Brashears v. State, 38 Okla. Cr. 175, 259 Pac. 665; Garner v. State, 51 Okla. Cr. 368, 1 Pac. (2d)

It is also argued that the court erred in admitting testimony of other offenses. There was testimony that defendant at about the same time under similar circumstances passed several other forged checks in the same manner as the check, and for approximately the same amount in this case. This was admitted under the well-settled rule that proof of other offenses of similar character, and near in point of time, is relevant and admissible to show a system of criminal action and the knowledge and intent of the accused and to- show the act charged was not an inadvertence. The testimony was clearly competent. State v. Rule, 11 Okla. Cr. 237, 144 Pac. 807; Harrell v. State, 43 Okla. Cr. 278, 278 Pac. 404; Carmichael v. State, 44 Okla. Cr. 160, 279 Pac. 515.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    CLYDE RENIFF v. STATE.
    No. A-8364.
    July 22, 1932.
    (13 Pac. [2d] 593.)
    Mathers & Mathers and Owen F. Renegar, for plaintiff in error.
    J. Berry King, Atty. Gen., and Gus Rinehart, for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Comanche county of forgery in the second degree in passing a forged check which was negotiated to Lewis and Allen, who operated a filling station at Lawton. We deem it unnecessary to recite the facts. They are very similar to those proven in the case of Reniff v. State, 53 Okla. Cr. 448, 13 Pac. (2d) 592, just decided, the same defendant as here.

Complaint is made that the court permitted too great a latitude in the cross-examination of defendant’s witnesses which tended to prejudice the jury against him. There is some merit in the contention, and we are of the opinion that justice will be served by reducing the punishment assessed to a term of two years in the state penitentiary, and, as modified, the case is affirmed.


text:
    JOE HUTSON v. STATE.
    No. A-8322.
    July 22, 1932.
    (13 Pac. [2d] 216.)
    Ridings & Drennan, for plaintiff in error.
    J. Berry King, Atty. Gen., and C. N. Ernest, Co. Atty., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Grant county on a charge of having the unlawful possession of intoxicating liquor and was sentenced to pay a fine of $250 and to serve 30 days in the county jail.

At the time charged, defendant while driving an automobile on the highway of Garfield county had a collision with another car. He left the scene. The sheriff and a deputy were called and appeared on the scene in about thirty minutes and followed defendant into Grant county and arrested him at the home of one McCart. They then searched the automobile which he had been driving and in which they found ten gallons of whisky and some empty containers. The officers were able to follow the car by reason of the fact that in the collision it had blown out a tire and left a mark on the pavement.

The only contention made is that the officers of Garfield county were without authority in Grant county and in arresting defendant were acting only in the capacity of private persons; that the arrest was unlawful and the subsequent search therefore unlawful and the evidence inadmissible. The question presented goes only to the admissibility of the evidence and not to the jurisdiction of the court over the person of defendant. The legality of the arrest to give the court jurisdiction of the person of defendant appears not to have been raised, but the validity of the arrest as a basis for the admissibility of the evidence procured by search after arrest is questioned. The legality of the arrest was not a matter for the consideration of the jury, but a question for the court to pass on when an objection to the evidence was raised by a motion to suppress. As stated, the court heard testimony on that point and must have arrived at the conclusion that the arrest was legal and the evidence admissible. The presumption being that a public officer does his duty, it was incumbent on defendant to show the arrest was illegal and the subsequent search illegal. There is no direct statutory authority for the arrest. Defendant objected to' the introduction of the state’s testimony of the finding of the whisky in his car. In the hearing on the motion to suppress, the deputy sheriff testified he was called and informed of the wreck by one of the parties in the other car. The sheriff testified he arrested defendant for a felony, driving a car while drunk, and that he searched the car after having made the arrest. Defendant did not take the stand and offered no- testimony. There is a surprising dearth of authority on the question raised. Some of the books lay down a rule which is hardly borne out by the cases cited. 2 R. C. L. 470, n. 1. Some of the cases touching the question are cases in which eiYil liability only is involved. This is so of the case of McCaslin v. McCord, 116 Tenn. 693, 94 S. W. 79, 83, 8 Ann. Cas. 245. The statute there is the same as onrs. The court said:

“* * * It will be observed that an officer, in addition to the right conferred upon a private citizen, is given the right to arrest without a warrant, ‘on a charge made, upon a reasonable cause, of the commission of a felony by the person arrested.’ Section 6997, subsec. 4. In respect of private persons, the language is, ‘when the person arrested has committed a felony’ (7002 [2], and, ‘when a felony has been committed’ (section 7002 [709 (3)]). The difference in phraseology is significant. A private person making an arrest for an offense not committed in his presence, in order to justify must be able to show by a preponderance of the evidence that a felony has been committed; on proving this, he may complete his justification, by showing that he had reasonable cause to believe that the person arrested committed it. .Section 7002 (3). On .the other hand, an officer may justify by showing that a charge had been made of the commission of a felony, and that he had reasonable cause to believe that such felony had been committed and that the person arrested had committed it. * * *
“We deem it proper to say that we do not think it was within the contemplation of our statutes that private citizens of one county should take it upon themselves to go into other counties, without a warrant, in search of criminals, except in cases of fresh pursuit of a fleeing felon endeavoring to avoid immediate capture, in an original arrest, or on immediate pursuit after arrest and escape. * * *
“It is true the person the defendants were searching for [710] had been previously arrested and lodged in the jail of Henderson county upon a charge of arson, a felony, and was there awaiting his trial on appeal to the Supreme Court, when he escaped, and went over into Benton county and thence into Gibson county; but the defendants in the latter county occupied the status only of private citizens, they had no warrant, the person they were seeking to arrest had never been in their custody, had not escaped from them, and they were not in fresh pursuit, and the dwelling they entered was not that of the person to be arrested, but the home of a stranger. * * *”

This language is strong, but it recognizes an exception in the case of “fresh pursuit.”

In the case of State v. Cody, 116 Or. 509, 241 Pac. 983, under a statute substantially the same as ours, the defendant killed a sheriff who was attempting to arrest him, was convicted of murder, and sentenced to death; the court, in affirming the judgment, in syllabus 5 held:

“Under Or. L. §§ 1763, 1768, where sheriff was informed that accused was charged with having committed a felony, and had reason to believe accused had committed the crime, he was authorized to arrest accused, though he had no warrant, and was not in the county of which he was sheriff at the time.”

The court in that case also gives consideration to the fact that defendant submitted to arrest, before committing the homicide.

The right of an officer to arrest without warrant is defined and limited by sections 2471, 2473, 2474, 2478, 2482, and 5900, Comp. St. 1921. The right of a private person to arrest without a warrant is defined and limited by section 2477, Comp. Ct. 1921.

An officer within the limits or geographical subdivision of which he is an officer has more authority than a private citizen in at least one particular. This authority is conferred by the fourth division of section 2471, Comp. St. 1921, as follows:

“* * * Fourth. On a charge, made upon reasonable cause, of the commission of a felony by the party arrested.”

This authority is in excess and in addition to the authority given a private person to make an arrest. In all other particulars, sections 2471 and 2477 are identical. Outside the geographical limits of the officer’s authority the officer acts as a private person, except it is generally held that in a fresh pursuit or in case of escape an officer need not stop at the boundary of his bailiwick.

Surely it was never the intention of the Legislature to forbid arrest outside his county by a peace officer who is informed of the commission of a felony and who proceeds at once to the scene and within as short a space of time as shown by the evidence in this case pursues the person committing the crime. To say the officer in such a case shall not pursue beyond the boundary of his county is absurd. To follow such a contention to its logical conclusion might result thus: A felonious homicide is committed, an officer appears at the scene within a few minutes and is informed of the crime and of the direction of flight of the perpetrator. He pursues and is in sight of the fleeing criminal only to see him cross the imaginary line, the boundary of his county. In such case, shall it be said that a peace officer of the state is so impotent that he must cease his pursuit and let the criminal escape? This is not the law. Where a felony has been committed and a sheriff makes a fresh pursuit of the person, whom he has reasonable cause to believe committed the crime, he may make lawful arrest of such person at any place he may apprehend him in the state as a result of such fresh pursuit. What constitutes a fresh pursuit will depend upon the particular circumstances in each case. Under the circumstances shown we are of the opinion the arrest followed a fresh and continuous pursuit and was lawful, and the search following such arrest was likewise lawful and the evidence obtained thereby admissible.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    W. E. (BLACKIE) WHITWORTH v. STATE.
    No. A-8327.
    July 22, 1932.
    (13 Pac. [2d] 216.)
    L. C. McLean, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter referred to as defendant, was convicted in the county court of Garfield county on a charge of transportation of intoxicating liquor, and his punishment fixed by the court at a fine of flOO and imprisonment in the county jail for a period of 30 days.

Defendant raises but one question: The sufficiency of the evidence.

The evidence of the state was that Roy Lincoln was a patrolman of the police department of the city of Enid; that he was at the Pittman Coal Yard to serve some papers on a man who worked there; that defendant drove up and parked his Ford coupe at the curb in front of No. 113 East Cherokee; that Carrie Alexander, a Negro woman, lived there; that defendant got out of his car and put a package contained in a sack under his arm and started towards this house; that as soon as defendant saw the officer, he ran east 10 or 12 feet; that he raised this package up and threw it and bursted it on the sidewalk; that the officer placed defendant under arrest and gathered up some of the broken glass and liquor and took it to the police station; that the package contained a half gallon fruit jar of whisky; that at the time of his arrest defendant asked the officer to run his case through police court and not turn him over to the county; that he was willing to pay a $20 fine.

Defendant, testifying for himself, admitted that at the time testified to by the officer he was at the place and arrested by the officer, but denied that he had any sack or broke any liquor.

This court has many times held that the jury are the exclusive judges of the credibility of the witnesses and the weight to- be given their testimony. When there is a clear conflict in the evidence, this court will not reverse the case for insufficiency of the evidence.

There being sufficient evidence in the record to support the verdict of the jury, the cause is affirmed.

EDWARDS, J., concurs. DAVENPORT, P. J., absent.


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    RAY CADWELL v. STATE.
    No. A-8372.
    July 22, 1932.
    (13 Pac. [2d] 214.)

      C. B. Leedy, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter referred to as defendant, was convicted in the district court of Ellis county of the crime of stealing two hogs, the property of one O. M. Metz, and his punishment fixed by the jury at imprisonment in the state penitentiary for a term of three years.

But two questions áre involved in this appeal:

First, the sufficiency of the evidence to support the verdict of the jury;

Second, whether the trial court erred in admitting certain alleged incompetent evidence.

The evidence of the state was that C. M. Metz was the owner of two red and black female pigs weighing about 50 or 60 pounds each; that Metz lived in sight of and about 200 yards from the house of defendant; that Metz’s pigs ran with the hogs of defendant’s father; that on the 4th of April, 1931, Metz went to Fargo to buy his auto license; that on the same day defendant caught two spotted pigs answering the description of Metz’s pigs, put them in sacks, and put them in an automobile belonging to William Habekott and hauled them to the home of one Dobbs, the father-in-law of defendant, south of the .South Canadian river, in Beckham county; that the pigs were kept that night in a barn and hanled the next day, which was Sunday, to Elk City, where defendant disposed of them to one Shepherd as part payment for a mattress; that these pigs were taken out to Shepherd’s farm a mile from Elk City and kept for about a month in charge of Mr. Fink; that the officers, learning of the larceny of the pigs and of the sale to Shepherd by defendant, attempted to locate the pigs, but on going to Shepherd’s farm learned from Fink that a man representing himself as Mr. Jones had come to the place at about 4 o’clock in the morning of that day and taken the pigs away. Other witnesses testified that the supposed “Mr. Jones” vas Guy Cadwell, a brother of defendant, and that Guy Cadwell took these pigs several miles from Shepherd’s place in a car and killed them and threw them out at the side of the road.

Defendant admitted that he took the pigs and sold them to Shepherd at the time and place alleged in the complaint, but sought to show that they belonged to defendant’s father and were taken and sold with his permission.

There is considerable discrepancy between the testimony of defendant and his father on this particular point. This is what defendant said about it:

“Q. At that time do you know of your father advising you to sell any of his hogs or authorizing you to do it? A. He did. Q. All right, tell the jury what he did. A. He told me to take the hogs down and sell them and bring him the money back,, he had to have it. Q. What did the hogs bring? A. I believe it was flO.”

This is what the father said about it:

“Q. Did you authorize anyone to sell any of your hogs in April, 1931? A. I let my boy have a couple of mine. I guess he sold them. I wasn’t there when he left with them. Q. Do you know where he sold them? A. I think he sold them to Elk. Q. How many did he sell? A. Two, he said. That was what I let him have. Q. What kind of hogs were they? A. They were red with black spots.”

Defendant, in substance,, said he was selling the hogs for his father, because he had to have money. The father in substance said that he guessed the boy sold them.

Shepherd, the buyer, testified that he bought two shoats from defendant on Easter Sunday; that defendant owed him and he took them in on a mattress.

The evidence of the state and the admissions and attempted explanations of defendant constitute sufficient evidence to support the verdict of the jury.

Defendant’s second contention is that the court committed reversible error in admitting incompetent and prejudicial evidence.

It appears from the record that the sheriff and Metz, having information that defendant accompanied by William Habekott had sold pigs similar to the ones stolen from Metz, to Shepherd, had interviewed Habekott and were preparing to go to Shepherd’s to see if the pigs sold by defendant were the ones taken from Metz; that Frank Donnell, Guy Cadwell, who was jointly charged with defendant, and' Clyde Cadwell, with Virgil Habekott, a brother of William Habekott, went to the home of Jack Brown looking for defendant; that Donnell wanted Guy Cadwell to go with him to the home of one Dobbs, who was the father-in-law of defendant, and see defendant, who had his saddle; that on reaching Dobbs’ place at about 10 o’clock at night, Guy Cadwell went in the house and left the others outside; that later they all went in the house; that while in the house Guy Cadwell went upstairs: that they left in a two-seated car and went toward Elk City; that the ear stopped about three miles from Elk City and all got out except Guy Cadwell, who went away and was gone until about 4 o’clock in the morning; that when he returned he had two hogs in the back of the car; that Guy killed the hogs with a hammer and threw them out by the side of the road.

In Cover v. Commonwealth (Pa.) 8 A. 196, that court held: Evidence of criminal acts committed by the defendant, intended to thwart and prevent a conviction of the particular crime charged upon which he is being tried, is admissible upon trial under such indictment. To the same effect are Williams v. State, 15 Tex. App. 104; People v. Place, 157 N. Y. 584, 52 N. E. 576; Roberson v. State, 40 Fla. 509, 24 ,So. 474.

In a case of larceny of live stock, evidence of the destruction of the stolen animals to prevent their discovery and introduction in evidence is always relevant, but where such destruction is done by a brother of defendant, or by others, in order to make such evidence admissible against defendant, the state must show that the brother of defendant, or other parties acting, were acting for defendant and by his direction and authority. Cecil v. Territory, 16 Okla. 197, 82 Pac. 654, 8 Ann Cas. 457.

If the state had proved directly that defendant went to Elk City, got these pigs from Fink, and killed them and threw their carcasses away, there would be no question about the admissibility of the evidence under the rule above stated; or, if the state had shown by its evidence that the defendant aided and abetted his brother, Guy Cadwell, to do it, he would be guilty as a principal, and the evidence would likewise be admissible.

The difficulty about this question is that the state’s evidence merely creates a suspicion that defendant aided and abetted in the destruction of the pigs, and does not rise to that degree of proof required by the rule above stated. It was error, therefore, for the trial court to admit such evidence.

When an error has been committed upon the trial of a case, it is the duty of the court, upon an inspection of the entire record, to determine whether or not defendant suffered any material injury from such error. Unless such injury appears, the error will not be ground for reversal. Offitt v. State, 5 Okla. Cr. 48, 113 Pac. 554; Coleman v. State, 6 Okla. Cr. 253, 118 Pac. 594; Swartz v. State, 6 Okla. Cr. 590, 120 Pac. 1029; Hooper v. State, 7 Okla. Cr. 43, 121 Pac. 1087; Knox v. State, 34 Okla. Cr. 300, 246 Pac. 665; Ray v. State, 35 Okla. Cr. 322, 250 Pac. 438.

In Crowell v. State, 42 Okla. Cr. 392, 276 Pac. 518, this court said:

“Where the guilt of the defendant is clearly and conclusively established and there is no' good reason to believe that upon a second trial an intelligent and honest jury could, or would, with reason and propriety arrive at any other verdict than that of guilt, a new trial will not be granted except for fundamental error.”

In the case at bar, the evidence of the state with the admissions of the defendant establish the guilt of defendant beyond a reasonable doubt.

The jury fixed defendant’s punishment at imprisonment for three years in the penitentiary. The statute under which he was prosecuted fixes the minimum punishment at two years’ imprisonment.

Because the admission of this erroneous testimony might have influenced the jury in fixing, the punishment at three years, the judgment is modified and the punishment reduced to imprisonment in the state penitentiary for two years, and, as modified, the cause is affirmed.

EDWARDS, J., concurs. DAVENPORT, P. J., absent.


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    WALTER WILLIAMS v. STATE.
    No. A-8366.
    Aug. 16, 1932.
    (13 Pac. [2d] 1118.)
    John W. .Scott and S. H. Singleton, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called the defendant, was convicted of petit larceny, second offense, and sentenced to serve a term of three years in the state penitentiary, and appeals.

The record in this case was filed in this court on March 21, 1932; no brief has been filed in support of the defendant’s assignment of errors. A careful examination of the record discloses no fundamental error, and the evidence is sufficient to support the verdict of the jury.

The case is therefore affirmed


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    C. H. HODGE v. STATE.
    No. A-8360.
    Aug. 16, 1932.
    (13 Pac. [2d] 1118.)
    Don Cameron, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called the defendant, was convicted of burglary in the second degree, and sentenced to confinement in the state penitentiary for two years, and appeals.

The record in this case was filed in this court on March 14, 1932; no brief has been filed in support of the defendant’s assignment of errors. A careful examination of the record discloses no fundamental error, and the evidence is sufficient to support the verdict of the jury.

The case is therefore affirmed.


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    O. W. (RED) PIXLER v. STATE.
    No. A-8371.
    Aug. 16, 1932.
    (13 Pac. [2d] 875.)
    R. N. Linville, for plaintiff in error.

      J. Berry King, Atty. Gen., and Gus Rinehart, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Beckham county on a charge of having the unlawful possession of whisky, and was sentenced to serve a term of 90 days in the county jail and to pay a fine of $200.

At the time charged, officers with a search warrant searched the residence of defendant and found about three quarts of whisky. Defendant moved to suppress the evidence for the reason that the affidavit for search warrant and the search warrant failed to describe the premises searched. The affidavit and warrant describe the premises as a building:

“On the northwest Cor. in Block ‘A,’ Robinson Addition in the City or Town of Elk City (Cor 9th & Oliver Sts. Beckham county, state of Oklahoma.) ”

The proof is conclusive that defendant resided on and the building searched was on lot 22 of block A, which is near the center of the block. The proof is that by the original plot block A was a part of a tract without streets and not subdivided into lots; thereafter it was by a revised plat modified in area, and Ninth street and Oliver street crossed near the center of the block. The description does not conform to the requirements of section 3223, Okla. Stat. 1931, which requires that a search warrant shall describe the place to be searched as particularly as may he.

Also there is error in instruction No. 5, wherein the . court tells the jury that, if they find defendant had possession of the whisky charged, they should find him guilty, which instruction omits the material element that the possession must have been with intent to sell, barter, or give away. However, no exception was reserved to this instruction.

The case is reversed.


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    EMORY STONE v. STATE.
    No. A-8386.
    Aug. 16, 1932.
    (13 Pac. [2d] 873.)
    Orban Patterson, Karl Cunningham, and Kenneth Kienzle, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was by information jointly charged with Charles Crawford of the larceny of an automobile; was tried separately, convicted and sentenced to serve ten years in the state penitentiary, and has appealed.

It is conceded by the state that Charles Crawford is an accomplice of the defendant Emory Stone. The testimony tends to show that Joe Sheulen, of Hennessey, Okla., lost a Chevrolet car on or about the 6th day of July, 1931; that on or about the 14th or 15th day of July, 1931, the officers were at the home of Charley Crawford in Oklahoma county, when Charley Crawford, Haskell Hulen, and the defendant drove up in the car that was afterwards identified as the car stolen from Joe Sheulen at Hennessey. Haskell Hulin was driving the car. Charley Crawford detailed at length what he and Haskell Hulin had been doing with reference to stealing cars, and stated the defendant in this case had been changing the numbers and overhauling, them, and, if he had a chance to sell them, he sold them; they had been paying the defendant, when he had overhauled the cars, from $50 to $75, and, if they had two cars, they gave the defendant one for overhauling the other. Crawford further stated they intended to turn over the Sheulen car to the defendant; they had agreed to that a few minutes before the officers put them under arrest. He further stated he and Hulin were still in possession of the car at the time they were arrested. The defendant was riding in the car when they drove up to the Crawford home.

It is not disputed that Haskell Hulin and the accomplice, Charley Crawford, who testified for the state, had stolen Sheulen’s car at Hennessey, Okla. The only testimony in the record that tends in any way whatever to connect the defendant Stone with the larceny of the car is his presence with Hulin and Crawford when they drove up to the defendant Crawford’s home, which was six or eight days after the car had been stolen.

Crawford claims they were to turn the car over to the defendant for what they owed him. The testimony further tends to show that Haskell Hulin’s whereabouts was unknown. The testimony of the witness Crawford further tends to show that the defendant Stone did not know Crawford and Hulin intended to steal the Sheulen car; witness stated they drove to Enid and back by way of Hennessey and saw the car; that Hulin opened the door of the car. This is in substance the testimony.

Several errors are alleged to have been committed by the trial court court sufficient to warrant a reversal. The only error it is deemed necessary to consider is the first:

“That the court erred in denying the plaintiff in error’s motion for a new trial.”

The defendant in his brief urges the failure of the state to corroborate the testimony of Charley Crawford, who1 is an admitted accomplice, and insists that the state has wholly failed by any independent testimony to corroborate Crawford.

Section 2701, C. O. ,S. 1921, is as follows:

“A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.”

There is no statement of the owner of the car or either of the officers which tends to show that the defendant had any knowledge that the Sheulen car was going to be taken, or that he knew the witness Crawford was in the Hennessey neighborhood, nor is there any evidence other than the accomplice’s that defendant had any knowledge the car in which he was riding when the defendant Crawford and Hnlin were arrested at the Crawford home was a stolen car.

This court has repeatedly held that the defendant cannot be convicted upon the uncorroborated testimony of an accomplice. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. Boggess v. State, 52 Okla. Cr. 266, 4 Pac. (2d) 697, and cases therein cited.

The evidence tends to show that the defendant had received cars and changed the numbers on them in Oklahoma county, knowing, the cars to have been stolen, but from a careful reading of the record in this case we are convinced that the evidence is insufficient to warrant a conviction for theft of this car, for the reason there is not sufficient corroboration of the accomplice.

The judgment of the trial court is reversed.

EDWARDS and CHAPPELL, JJ., concur.


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    E. K. JONES v. STATE.
    No. A-8365.
    Aug. 16, 1932.
    (13 Pac. [2d] 872.)

      Sigler & Jackson, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

At the time charged, officers with a search warrant searched the place of business of defendant, a barber shop, and found three pints and two half pints of whisky. Defendant offered proof of good reputation, and testified that the whisky found was for his own use.

The principal contention made is that the court erred in his instruction 10, which attempts to define “reasonable doubt,” and which uses the words often condemned, as “* * * a doubt founded in reason, a doubt for which you can give a reason. * * *” This court has a number of times considered instructions in similar language. The holdings may he summarized thus: Where the evidence of guilt is conclusive and an honest jury could not arrive at any other verdict than that of guilt, such an instruction, while erroneous, is not sufficient ground for reversal, but, where a case is close, and such erroneous instruction may have influenced the verdict, the case should be reversed. In one case it was said:

“We do not think that the term ‘reasonable doubt’ is of such unknown, uncertain, or uncommon signification that a definition by the court in its charge to the jury is called for. Language that is within the comprehension of persons of ordinary intelligence can seldom be made plainer by further definition. It has been said that, ‘the expression itself seems to comprehend the whole subject-matter, “reasonable doubt,” and that the phrase is its own best definition, and any attempt to define the phrase is likely to leave in the minds of the jury, “a reasonable doubt as to what a reasonable doubt is.” ’ Jurors are presumed to have common sense, and to understand common English, and all persons who possess the qualifications of jurors know that a ‘doubt’ of the guilt of the defendant, honestly entertained, is a reasonable doubt. # -X*

The following cases are enlightening: Gragg v. State, 3 Okla. Cr. 409, 106 Pac. 350; Nelson v. State, 5 Okla. Cr. 368, 114 Pac. 1124; Morgan v. State, 7 Okla. Cr. 45, 121 Pac. 1088; Harris v. State, 10 Okla. Cr. 417, 137 Pac. 365, 139 Pac. 846; Gransden v. State, 12 Okla. Cr. 417, 158 Pac. 157; Mayfield v. State, 17 Okla. Cr. 503, 190 Pac. 276; Soper v. State, 22 Okla. Cr. 27, 208 Pac. 1044. See, also, Pettine v. New Mexico (C. C. A.) 201 F. 489; Siberry v. State, 133 Ind. 677, 33 N. E. 681.

Possession without intent to sell, etc., is not a crime. Williams v. State, 34 Okla. Cr. 1, 244 Pac. 202; Russell v. State, 34 Okla. Cr. 259, 246 Pac. 489; Frazier v. State, 34 Okla. Cr. 375, 246 Pac. 652.

The guilt of defendant in this case, therefore, rests solely upon the presumption arising from the amount of whisky found; same being in excess of one quart. Section 2626, Okla. St. 1931. The erroneous instruction in this case may well have influenced the jury. Instructions attempting to define a reasonable doubt should not be given. Wise v. State, 34 Okla. Cr. 284, 246 Pac. 656.

The case is reversed and remanded.

DAVENPORT. P. J.. and CHAPPELL. J.. concur.


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    ED MILLER v. STATE.
    No. A-8373.
    Aug. 16, 1932.
    (13 Pac. [2d] 699.)
    Holliman, Bailey & Brewer, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Washington county of the larceny of an automobile, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of five years.

The evidence of the state was that W. E. Clay, who resided in Cherryvale, Kan., was the owner of a model A Ford sport roadster, engine No. 2207338; that this automobile was stolen on the 22d day of October, 1931, and found in the possession of defendant, at Bartlesville, Okla., on the 6th day of November, 1931; that, when the officers questioned defendant before his arrest, he said that the car had been left by the side of the road near his place for several days; that he concluded it was a stolen car and thought he might as well have it as anybody; that after his arrest, when questioned by the county attorney in the presence of the officers, he said he had not told the truth about how he obtained the car; that he had purchased it from W. K. Pamer and had the papers for the same; that he gave the officers an order to go to the rooming house and get a suitcase belonging to him, and said they would find the papers in the suitcase; that the officers went to the place indicated, and there found a bill of sale executed by W. K. Pamer to defendant for a model A Ford roadster, engine No. 1644587, also application of Pamer for registration of the same automobile, statement of ownership by Pamer to the county treasurer of Montgomery county, Kan., with $4.25 license fee, also' certificate of registration by the secretary of state of Kansas for a Ford roadster, engine No. 1644587, model A, with license tag No. 497-809; that the officers exhibited these papers to defendant, and he said they were the papers he had sent them for; that, when the officers first noticed the car, the license plate was bent up so that the numbers could not be read; that they stopped defendant and told him to straighten out the tag, but that the next time they saw the car the tag was still bent up; that the engine number on the car had been changed from 2207338 to 2207888; that a die had been used and the figure “8” cut over the figure “3.”

Defendant, testifying for himself, denied that he made these conflicting statements to the officers, and claimed he had purchased the car from Pamer.

He earnestly urges that this evidence is insufficient to support the verdict of the jury.

This court has held in numerous cases that the possession of recently stolen property is not in itself sufficient to authorize a conviction for the crime of larceny; but that the possession of recently stolen property creates an inference of fact, Avhich, together with other facts and incriminating circumstances, is sufficient to sustain a conviction. Bidwell v. State, 28 Okla. Cr. 1, 228 Pac. 614.

This court has held that the onus is on the defendant to explain the possession of recently stolen property, Whitten v. State, 25 Okla. Cr. 447, 221 Pac. 115; Buford v. State, 27 Okla. Cr. 138, 225 Pac. 568; Foust v. State, 36 Okla. Cr. 390, 25 4 Pac. 982.

This court, in McHenry v. State, 52 Okla. Cr. 20, 2 Pac. (2d) 597, said:

“Whether the interval of time between the larceny of the property and its possession by accused is sufficiently short or long to render the possession recent or remote depends upon the facts of the particular case, including the character of the property stolen, its salability, and the readiness with which it will pass from hand to hand. In the case of property which does not pass readily from hand to hand, the presumption arises at a time more remote from the theft than in the case of property readily transferable.”

In the case at bar, defendant attempted to explain his possession of the automobile, but his explanation is entirely incredible, and is one that no reasonable person would accept. His bill of sale did not cover the car stolen. His attempted explanation was a strong incriminating circumstance for the jury to consider in connection with the question of possession.

The evidence is sufficient to support the verdict of the jury.

Defendant complains that the court erred in giving instruction No. 8. He cites no authority, and points out no material defect in the instruction. An examination of the instruction reveals that it is as favorable to the defendant as the evidence in the case would warrant.

No fundamental error appearing in the record, and the evidence being sufficient to support the verdict of the jury, the cause is affirmed.

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


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    PAUL MITCHELL v. STATE.
    No. A-8243.
    Aug. 16, 1932.
    (13 Pac. [2d] 595.)
    A. C. Brewster and P. D. Mitchell, (Leverett Edwards and T. Murray Robinson, on the brief), for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Mayes county of the crime of manslaughter in the first degree, and his punishment fixed by the court at confinement in the state penitentiary for a period of eight years.

Defendant was charged with the murder of one S. D. C. Edwards by striking him with his fist. The difficulty occurred in the little town of Strang, and from the record it appears that the defendant had been away from this neighborhood about six years, most of this time outside the state, but had returned to visit his brother. The state supported its case by the testimony of one witness who saw the difficulty or part of the difficulty, one Braden, who testified that he walked up to the defendant and deceased and saw what took place after he arrived there; that deceased twice beckoned to him with his head; that he heard defendant say that he ought to knock deceased’s head off, using an oath; that he got up about six or eight feet and defendant said again, “I ought to knock your head off,” and witness asked defendant not to hit the old man; that defendant caught deceased with his right hand and struck him about three times on the jaw with his left fist; that he then turned him loose and deceased dropped; that he then assisted in carrying the body into the telephone office. There was also testimony that after the homicide defendant fled from the state.

The testimony for the defendant is that he was talking to1 one Peyton when deceased came up, took the defendant by the arm, and asked what he was doing there, and the defendant in answering inquired, “Haven’t I got a right to be here?” and deceased said, in substance, it was about time he was leaving, with some other words which were not understood. Defendant cautioned deceased to let him alone or he would knock his head off.

Defendant testified that deceased then put his hand inside his overcoat and threatened to shoot him, and he then struck several times with his fist. There was testimony that some six years prior to this time, and before the defendant left the neighborhood, there had been ill feeling between them. Various contentions are made by the defendant, most of which are without merit. Defendant assigns error of the court in allowing the state to lead its witness Esther Barlow. This witness was a half-niece of the deceased. She was permitted to testify that a day or two before the trial commenced in an effort to interview her, that she was not at home; that defendant made assertions that he would see her some place before the trial began; that witness was told defendant was drinking at the time; that she became frightened and did not testify fully or in accordance with a statement she had made soon after the homicide, which was in the possession of the county attorney who was permitted to lead the witness as to her former statement and in doing so introduced hearsay evidence. There is some merit in this contention. The witness was willing and friendly to the state. The state was permitted to prove statements of hostility of defendant toward deceased made six years previously. In view of the fact that defendant did not seek the deceased and did not provoke the difficulty, these statements are remote.

Defendant complains that the court excluded competent evidence in his behalf. This refers to testimony offered to show specific acts of deceased in support of defendant’s theory that he was a violent and dangerous character. This offer was that deceased some forty years before had killed a man, and some fifteen years before had shot at and attempted to kill another man, and of other acts of violence, and that in recent years he had been in the habit of carrying concealed weapons, all of which was known to the defendant. Most of this evidence was too remote. The latter item was admissible.

Defendant argues that the court erred in refusing his requested instruction No. 10. This request purports to inform the jury the purpose and consideration to be given the testimony as to the reputation of deceased, as a quarrelsome and dangerous man and the probable effect of such knowledge on defendant. The instruction is not correct in form and contents, but the principle it embodies should have been covered by the proper instruction.

No one of the various errors alone would justify a reversal, but altogether they deprived defendant of a fair trial and no doubt account for the severe judgment.

A consideration of the entire record convinces us that the evidence does not support a conviction for manslaughter in the first degree.

The case is reversed and remanded for further proceedings not inconsistent with this opinion.

EDWARDS and CHAPPELL, JJ., concur.