text:
    DENNIS HILL v. STATE.
    No. A-5940.
    Opinion Filed Nov. 12, 1927.
    (260 Pac. 1071.)
    McCollum & McCollum, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

On information charging that on August 24, 1925, Dennis Hill did unlawfully transport one pint of whisky from some point unknown to another point on the public highway, about half a mile north of the city of Pawnee, he was tried and convicted, the jury leaving the punishment to be assessed by the court. Motion for new trial was duly filed and overruled. Whereupon the court pronounced judgment and sentenced him to pay a fine of $200 and to be confined in the county jail for 60 days. To reverse the judgment he appeals.

When the case was called for trial, counsel for defendant interposed the following objection:

“We want to object to any testimony in this case relative to the seizure and search of the defendant’s automobile and the discovery of intoxicating liquor therein for the reason that it appears from the opening statement of the county attorney that the officers were acting without a search warrant and such testimony and evidence is inadmissible as in violation of defendant’s rights as guaranteed to him under sections 21 and 30 of the Bill of Rights, and the statutes of the state of Oklahoma, sections 2878 to. 2880, both inclusive.”

The objection was overruled and exception allowed.

The evidence shows that on the date alleged the sheriff, his jailer, and the chief of police of the city of Pawnee went to the north road to intercept the defendant and met him driving an automobile.

The sheriff testified:

“I said to Dennis, ‘Where is that whisky?’ and he says, ‘Boys, the man was not at home,’ and I says, ‘I want to look this car over,’ and he said, ‘All right, go ahead.’ ”

Roy Cook, jailer, testified:

“I jumped on the running board, and I says, ‘Dennis, it is too bad if you have got any Whisky, because we are going to search your car,’ and he says, ‘Well, I would have had the whisky but the man Was not at home.’ I was on the running board on the east side, and Richardson was standing on the west side, and Sheriff Jones said, ‘Go on look over the car,’ and Dennis says, ‘All right,’ that he didn’t have any whisky, and Allen Jones says, ‘Get out, Dennis, we want to look your car over good.’ I found the whisky back of him, and' I says, ‘Here ft is, boys,’ and Richardson reached over and got the whisky, and handed it to Allen Jones.”

On cross-examination he stated:

“I jumped on the running board to stop him and the car. I had possession of the car, and had a conversation with him before Jones got there; he never did tell me to search his car.”

When the pint bottle of whisky was offered in evidence, defendant objected for the reason that the liquor was seized without a search w'arrant, in violation of his constitutional and statutory rights. The objection was overruled.

When the state rested, the defendant moved “to withdraw from the consideration of the jury all of the testimony in the case, for the reasons heretofore assigned,” which was overruled.

The defendant then moved for a directed verdict in the form of a demurrer to the evidence on the ground that the same was obtained in violation of his constitutional and statutory rights, which was overruled.

In Klein v. State, 26 Okla. Cr. 173, 223 P. 201, it is said:

“This court has held that, where the possession of an unlawful thing is open and obvious, so that any one within reasonable distance can readily see it, no search w'arrant is necessary, and the evidence thus obtained may be received upon the trial of the accused. However, a search implies invasion and quest, and that implies some sort of force, actual or constructive, much or little. The right of the citizen to be secure in his person ¡and possessions from such unlawful search and seizure is as secure as the Bill of Rights can make it (Cons. art. 2, § 30), and this right should be respected by officers and courts.” Crossman v. State, 28 Okla. Cr. 198, 230 P. 291; Combest v. State, 32 Okla. Cr. 47, 239 P. 936; Thomas v. State, 32 Okla. Cr. 57, 240 P. 133.

It follows from what has been said that the court erred in overruling the objections interposed to the state's evidence and in overruling the demurrer to the same.

The judgment of the lower court is accordingly reversed.

EDWARDS and DAVENPORT, JJ., concur.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    SHERMAN MAGGARD et al. v. STATE.
    No. A-6285.
    Opinion Filed Nov. 12, 1927.
    (260 Pac. 1118.)
    Thos. Hudgens, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

On information charging that in Washita county, on or about the 17th day of October, 1925, the defendants, Sherman Maggard and Russell Fish, did “have in their possession and control certain intoxicating liquors, to wit, one-half gallon of wine, with the unlawful intent” to violate the prohibition laws, the defendants were convicted and their punishment fixed each at a fine of $50 and imprisonment in the county jail for 6 months. To reverse the judgments they appeal.

There are numerous assignments of error, only one of which need be noticed; that is, that the evidence does not support the verdict.

The substance of the state’s evidence was to the effect that three deputy sheriffs; in executing a search warrant, visited the home of the defendant Russell Fish, about 3 miles southeast of Colony, and searched his residence, finding a fruit jar containing wine in the kitchen cupboard or safe; that they saw Mrs. Russell Fish .pour about a pint of what they believed to be wine in a dish pan of dish water; that there was a cider press in the yard and two open head barrels, and it appeared that grapes had been recently pressed in the cider press; that they found defendant Maggard at the place and had been informed and supposed that he lived there.

The substance of the evidence for the defense was as follows: That the defendant Fish had the one-half gallon of wine for the use of his wife, who was pregnant and had been advised by the family physician that wine “would do her good”; that the wine had been purchased that day before the officers arrived; that the cider press had been used to press the juice out of grapes by the defendant Fish and his neighbors; that the defendant Maggard did not live at the home of the defendant Fish; that he merely happened ■ to be there on business at the time of the search and had no interest in the wine; that neither of the defendants had any wine for sale and had never offered any for sale.

In cases of this kind the specific intent to violate the prohibitory law being the gist of the offense, it follows that, before a conviction can be sustained, the state must allege and prove beyond a reasonable doubt, not only that the defendant had possession of intoxicating liquor, but also the unlawful intent to violate provisions of the liquor laws.

Upon a careful consideration of the record we are of opinion that it would be destroying the presumption which arises in favor of the innocence of the accused and permitting the subversion of the rule which requires the establishment of guilt beyond a reasonable doubt to allow this conviction to stand.

This conclusion renders it unnecessary to consider the other questions in the case.

Because the evidence is insufficient to support the verdict, the judgment of the lower court is reversed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    GEORGE LUCK v. STATE.
    No. A-5946.
    Opinion Filed Nov. 19, 1927.
    (260 Pac. 1118.)
    C. B. Leedy, for plaintiff in error.

      Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

The appellant, George Luck, was tried and convicted on an information charging that in Ellis county, October 6, 1924, he “did sell to B. E. Slagle, two pints of whisky”; the jury leaving the punishment to be fixed by the court. Motion for new trial was duly filed and overruled. On August 15, 1925, the court sentenced appellant to be confined in the county jail for 30 days and to pay a fine of $100. To reverse the judgment he appeals.

The main, if not the only, question presented is whether the evidence was sufficient to sustain the verdict.

B. E. Slagle, prosecuting witness, testified that he was employed and paid by certain citizens of Shat-tuck to come down there to get evidence against certain persons whose names had been furnished to him; that he was there about 15 days and met appellant the first time in Winter’s real estate office in Shattuck and made arrangement with him to buy some liquor, and appellant said that he Would have to go to the country for it; that in about 25 minutes he came back and called him into the .back room, and appellant delivered the whisky, for which he paid appellant $4, two pint beer bottles of whisky; that they drank one bottle up there and witness turned the other bottle over to the marshal of Shattuck. The state by other witnesses traced the bottle to its delivery to the sheriff, ■but did not introduce the bottle in evidence.

As a witness in his own behalf, anoellant testified that he had lived in Shattuck and on his farm near by for about 20 years; that he met the witness Slagle several times on the streets of Shattuck and each time Slagle said that he wanted to buy some whisky ; later he met him in Winter’s real estate office, and Slagle again wanted to buy some whisky; that he did not think that he could get him any whisky, but would try, and he went out and picked up a bottle in the alley and went into Brown’s garage and there filled it with water at the hydrant; that the garage is about a block from Winter’s office; that he returned with the bottle to Winter’s office and went with Slagle into the back room, turned over the bottle to him and Slagle gave him $2 and he walked out; that he never did sell Slagle any whisky :at any time.

For the defense, J. D. Thomas, sheriff, was recalled and identified the bottle as the one that was turned over to him. He was then asked to open the bottle and state what its contents was. He tasted it, and said, “It is spring water, a year old.” The bottle and its contents was then passed to the jury for their examination.

Aside from the testimony of B. E. Slagle, there is no evidence tending to show the commission of the offense.

In Smith v. State, 34 Okla. Cr. 396, 246 P. 1105, we said:

“The only evidence in the case against the defendant was the uncorroborated testimony of B. E. Slagle, who, as shown by numerous decisions of this court, has heretofore been successfully impeached and discredited as a witness.”

And see Phelps v. State, 33 Okla. Cr. 380, 244 P. 453; Gabler v. State, 33 Okla. Cr. 317, 243 P. 981; Prochneau v. State, 32 Okla. Cr. 210, 240 P. 1090.

Upon the record before us, we are of opinion that the trial court erred in refusing to grant the motion for a new trial on the ground that the verdict was contrary to the law and the evidence.

Because the evidence is insufficient to sustain a conviction, the judgment is reversed.

EDWARDS and DAVENPORT, JJ., concur.


author: EDWARDS, J.

text:
    STATE v. A. E. GRAHAM.
    No. A-6710.
    Opinion Filed Nov. 19, 1927.
    (261 Pac. 230.)
    A. N. Boatman, Co. Atty., and Chas A. Dickson, for the State.
    A. E. Graham, W. A. Barnett, V. V. Morgan, Sid White, and W. C. Alley, for defendant in error.
   EDWARDS, J.

The defendant in error, A. E. Graham, with other defendants, was indicted by a grand jury of the district court of O'kmulgee county on a charge of criminal conspiracy. After the court had disposed of certain preliminary motions and proceedings, defendant filed his separate demurrer, assigning among other grounds that the indictment did not state facts sufficient to state a public offense. This demurrer was by the court sustained. The following then occurred:

“By the Court: Has the county attorney any request to make of the court in the premises?
“Mr. Boatman (the county attorney) : To which ruling of the court, the state of Oklahoma excepts, and gives notice of its intention to appeal to the Criminal Court of Appeals of the state of Oklahoma, and asks the court to fix time in which to make and serve case-made.
“The Court: Any other requests?
“Mr. Boatman: I think that's all.
“The Court: 60 — 10—5 granted.
“Mr. Boatman: There is just one other thing I would like, in order to save the record; that is, permission of the court to resubmit this case to another grand jury.
“The Court: Upon motion of the county attorney, it is directed by the court.
“Mr. Boatman: Wait a minute; I do not care for that.
“The Court: Let the record show that the request of the county attorney for a resubmission of the case to another grand jury is withdrawn.”

The defendant has filed a motion to dismiss this' appeal, for the reason that it appears from the record that it is not the intention of the court, nor the county attorney, to resubmit said case to another grand jury, and that the judgment of the court is a complete bar to further prosecution of defendant for the offense sought to be charged.

Section 2611, Comp. Stat. 1921, provides that upon the consideration of the demurrer, the court must give judgment either sustaining or overruling it, and an order to that effect must be entered upon the minutes. Section 2612, Comp. Stat. 1921, provides that, if the demurrer is sustained, the judgment is final, and is a bar to another prosecution for the same offense, unless the court directs the case to be resubmitted to another grand jury. Section 2613, Comp. Stat. 1921, provides that, if the court did not direct the ease to be further prosecuted, the defendant, if in custody, must be discharged; if admitted to bail, his bail exonerated; if he deposited money, instead of bail, the money must be refunded to him.

Under these provisions of the law, where the court renders judgment sustaining a demurrer to an indictment, it is as far-reaching and conclusive as to defendant’s liability for the crime charged as though it had been rendered upon a verdict of not guilty, unless the court directs a resubmission of the case to another grand jury, or directs that a new information be filed. This case having been disposed of by a final judgment, and it now being beyond the power of the county attorney or the court to again submit the matter to a grand jury, or to file an information, it is of no importance whether the indictment properly charges a crime. This view of the law has been frequently considered,- and the rule announced in decisions of this court. State v. Vaughn, 15 Okla. Cr. 187, 175 P. 731; State v. Wheatley, 20 Okla. Cr. 28, 200 P. 1004; State v. Robertson, 28 Okla. Cr. 234, 230 P. 932; State v. Walton, 30 Okla. Cr. 416, 236 P. 629.

The sufficiency of the indictment as to this defendant being now entirely moot, no purpose can be served by this court considering its sufficiency, and reviewing the judgment of the trial court in sustaining the demurrer.

The appeal is dismissed.

DOYLE, P. J., concurs.

DAVENPORT, ‘J., absent, not participating.


text:
    RUSSELL MOOREHEAD v. STATE.
    No. A-6115.
    Opinion Filed Nov. 19, 1927.
    (261 Pac. 231.)

      E. G. Avery and F. R. Burns, for plaintiff in error.
    Geo. F. Short, 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 district court of Ottawa county on a charge of rape in the first degree, and was sentenced to life imprisonment in the state penitentiary.

The record discloses that defendant at the time charged operated a pool hall in the town of Commerce. He was about 45 years of age, and had been twice married, but was not living with either wife. He owned a small residence house, in which Mrs. Clara Breeden, a widow with three or four children, resided and kept house for defendant, who reserved a room for his own use. One of the children, Evelyn Breeden, was a girl just under the age of 14. The testimony is that on several occasions defendant went to her bed and had intercourse with her, by which she became pregnant. The information charges the offense was committed “on the - day of January, 1925.” The evidence is that in the latter part of January, while the mother was away from home, with a younger daughter at the hospital, defendant went to the room of the prosecutrix, Evelyn Breeden, and had intercourse with her. So far as shown by the record, this is the only act of intercourse occurring during the month of January. The state offered in evidence a letter written by defendant while incarcerated in the county jail which in a measure corroborated the evidence of the prosecutrix. It was also shown that after his arrest defendant petitioned the court to permit him to marry the prosecutrix. This proceeding evidently was based on section 7490, Comp. St. 1921.

The principal contention argued is that, since there was evidence of different acts of intercourse, the court erred in failing to require the state to elect upon which particular act of intercourse it would rely upon for a conviction. If the record sustained this contention, it would require a reversal, for it is well settled that in ia- charge of rape, where there is proven more than one act of sexual intercourse between defendant and prosecutrix on which a conviction could be based, the trial court, upon motion, must require the state to elect upon which of such acts it will rely, or, if no motion be made, the trial court on its own initiative must either require the state to elect or must himself treat one of the acts shown by the state’s evidence as having been elected, and should by the instructions limit the jury to a consideration of this particular act as a basis for a conviction. The other acts proven should be limited to corroboration or as showing the relation of the parties. Montour v. State, 11 Okla. Cr. 376, 145 P. 811; Gracy v. State, 13 Okla. Cr. 643, 166 P. 442; Smith v. State, 20 Okla. Cr. 124, 201 P. 663; Pope v. State, 24 Okla. Cr. 213, 217 P. 498; Cooper v. State, 31 Okla. Cr. 217, 238 P. 503.

The record, while not entirely satisfactory, discloses a substantial compliance with this requirement. The court by his instructions 8 and 9 instructed the jury that they must find beyond a reasonable doubt that an act occurred “on the- day of January, 1925, as charged in the information”; otherwise they must acquit the defendant. Since, as stated, only one act of intercourse is .proven to have taken place in January, 1925, the date charged in the information, these instructions amount to an election of that particular act as a basis for conviction.

It is further urged that, in the event no reversible error is found, the punishment imposed under all the circumstances shown is excessive, and should be reduced by this court. The Attorney General, while not consenting to a reduction of punishment, states in substance that the prosecution is not averse to such modification as the court in its discretion may make. We have given this matter earnest consideration, and, while the crime is heinous, taking into consideration the age of the defendant and all the surrounding circumstances, we are of the opinion that justice requires that the sentence of life imprisonment be reduced to a term of 20 years, and, .as so modified, the case is affirmed.

DOjYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


text:
    D. W. HAYS v. STATE.
    No. A-6336.
    Opinion Filed Nov. 26, 1927.
    (261 Pac. 232.)

      Crump & Seawel, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error was charged by information in the district court of Muskogee county with the crime of receiving stolen property, :and upon his trial the jury returned a verdict finding him guilty as charged, leaving his punishment to be fixed by the court. Motion for new trial was duly filed and overruled, whereupon the court pronounced judgment, and sentenced him to imprisonment in the penitentiary for a term of four years. From that judgment he appeals.

In response to plaintiff in error’s brief, the Attorney General has filed the following confession of error:

“In order to connect the plaintiff in error with the receiving of the particular goods alleged to have been previously stolen from the Bonicelli Wholesale Grocery Company, the state introduced evidence obtained from a search of the plaintiff in error’s grocery store located on South Fourteenth street in the city of Muskogee.
“The said search was made in the month of November, 1925, by one Tom Graves, a policeman of the city of Muskogee, assisted by R. A. Payne, a deputy sheriff of Muskogee county. These officers had no warrant for the search of the premises, nor any warrant for the arrest of the plaintiff in error, nor any process of any kind.
“At the time of the search the plaintiff in error’ was absent from his grocery store. The plaintiff in error is a negro, and, when the officers entered his place of business, they found therein two negro women. One of these women was behind the counter waiting on the other, who was apparently a customer in the place. The officers told the woman in charge that they wanted to look over the place for stolen goods. She replied: ‘All right, help yourself,’ or words to that effect. The officers then .proceeded, in the absence of plaintiff in error, to search the premises. The building in which the grocery store of plaintiff in error was located was divided into two rooms by a partition. In the front room was kept the groceries and meats, etc., and it was in this room that the search was first made. After finding nothing of a suspicious character in the front room, the officers then proceeded to search the rear room, in which was a bed and other furniture, and also some groceries stored under the bed and around the room. In this room the officers found an opening about three and one-half feet square in the beaver board ceiling. This opening was covered by some sort of a trap door, which the officers opened, and through which opening one officer entered a loft above the ceiling. In this loft a large quantity of snuff and other articles of personal property, such as is generally sold in grocery stores in this state, was found and taken into the possession of the officers. It was this stuff that it is alleged by the state was stolen from Bonieelli Wholesale Grocery Company, and it is upon the proof of the possession of this particular quantity of alleged stolen goods by this plaintiff in error that the state relies almost wholly for a conviction in this case. The facts, therefore, present squarely the issue of the admissibility in evidence of this snuff and other stuff obtained by virtue of the search of the grocery store of plaintiff in error, and also of the testimony of the two officers concerning the finding of said stuff in said grocery store.
“The issue was raised first by a motion to suppress this evidence, and subsequently by repeated objections to the introductions of evidence obtained by virtue of this search, and then again at the conclusion of the state’s case by a motion to strike and exclude from the consideration of the jury all of the evidence permitted to have been received relative to this alleged unlawful search and seizure.
“The trial court ruled adversely to plaintiff in error in every instance, and proper and timely exceptions were saved by plaintiff in error to these rulings by the trial court.
“It is undisputed that the search of plaintiff in error’s premises were made by these officers without a search warrant. This evidence was admitted on the theory that there was a waiver of a search warrant by the action of the person in charge of the grocery store teiling the officers, ‘all right,’ or ‘go ahead,’ when asked if there was any objection to their making a search of the premises for stolen goods.
“The question presented by the various assignments of error béaring upon the validity of the search of the plaintiff in error’s store is this: ‘Can the clerk of the accused, in his absence,' waive for him his constitutional privilege against an unlawful and unreasonable search of his premises?’
“That the accused himself may waive this privilege, :and by so doing will not be permitted to object to the introduction of evidence otherwise inadmissible, in effect is held by a uniform line of decisions of this court. Hurst v. State, 25 Okla. Cr. 102, 219 P. 151; White v. State, 23 Okla. Cr. 198, 214 P. 202; State v. Frisbee, 8 Okla. Cr. 406, 127 P. 1091; Hill v. State, 9 Okla. Cr. 629, 132 P. 950.
“The constitutional right against an unreasonable search or seizure is personal, and extends only to the person whose rights are invaded. Ratzell v. State, 27 Okla. Cr. 340, 228 P. 166; Williams v. State, 35 Okla. Cr. 171, 249 P. 433.
“A reasonable and lawful search and seizure is provided for in the Constitution by means of a search warrant, supported by oath or affirmation, and all others are unreasonable and unlawful. Levy v. State, 31 Okla. Cr. 199, 238 P. 235; Best v. State, 32 Okla. Cr. 89, 240 P. 159; McClary v. State, 34 Okla. Cr. 403, 246 P. 891; Whitford v. State, 35 Okla. Cr. 22, 247 P. 424; Ellis v. State, 34 Okla. Cr. 36, 244 P. 831.
“If the immunity against an unlawful search and seizure is personal to the one whose private rights are invaded, it follows, by analogy, that the right to waive such immunity is also a personal right, and is chargeable only to the one whose rights are invaded, or to some one who is shown to have specific authority to make a waiver of that right for the person affected, in the absence of the person affected by the search.
“If any one may indiscriminately waive this right for another, it follows that the right is not a personal one. In such event the privilege against unreasonable searches^ and seizures would not be secure, and the constitutional provision would be nothing more than a ‘scrap of paper,’ figuratively speaking.
“In this instance we think the clerk could act for the owner in his absence, and bind him as to such matters and things as would usually arise in, and be a part of, the duties of the employment.
“Cyc. lays down the general rule that ‘waiver is usually a matter of personal privilege, and must be made by the .person wrhose rights or remedies are to be affected or by some one duly authorized to act for him in the matter.’ 40 Cyc. 266.
“The search of the premises for stolen goods is an unusual procedure, and not such as would be expected to arise in the course of the business of keeping a grocery store, and, in the absence of proof that the owner of the store had duly authorized his clerk to waive his privilege of immunity against an unreasonable and unlawful search of his said store, the presumption of such authority to waive the privilege would not arise merely from the fact of such employment.
“In the case of W. R. Maupin v. State, 38 Okla. Cr. 241, 260 P. 92, this court said:
“ ‘The officers went to the residence while defendant was away and his wife met them at the door. They advised her they were officers and wanted to search the premises, and she said: “Go ahead.” Before going into trial defendant filed a motion to suppress the evidence as obtained by an unlawful search. The place searched was the private residence of defendant, occupied as such. * * *
“ ‘The statement of the wife to the officers made in the absence of her husband is not a waiver of his constitutional rights. The motion to suppress should have been sustained.’
“In the case of Rose v. State, 36 Okla. Cr. 333, 254 P. 509, this court said:
“ ‘The record shows that, while the county attorney was making his' opening statement, counsel for appellant interposed an objection for the reason that said search, so far as the statement of the county attorney now shows, was illegal and without authority of law, and the same was an invasion of the constitutional and statutory rights of the defendant. Whereupon the county attorney .stated that the evidence would show that Mrs. Rose told them to come in, and further stated: “I think I .properly predicated the Introduction of my evidence by my statement that the officers were invited into his home.”
“ ‘At the close of the' state’s evidence there was a motion by counsel for appellant for a directed verdict of acquittal on the ground that all the evidence offered in the case was obtained by an illegal invasion of the defendant’s constitutional and statutory rights, made in his absence and without his knowledge or consent, which motion was overruled.
“ ‘In the case of Carignano v. State, 31 Okla. Cr. 228, 238 P. 507, it was held:
“ ‘ “The constitutional right of a person to be secure against unreasonable searches and seizures and self-crimination were not waived when his wife in his absence failed to object to officers making a search of his premises under authority of an illegal search warrant.” ’
“In Carignano v. State, 31 Okla. Cr. 228, 238 P. 507, this court quoted with approval from the decision of the Supreme Court of the United States, as follows:
“ ‘The defendant was not present when the place was searched, and it does not appear that his wife made objection to the search of the premises by the officers.
“ In the case of Amos v. United States, 255 U. S. 313, 41 S. Ct. 266, 65 L. Ed. 654, it was held:
“ ‘ “The constitutional rights of a person to be secure against unreasonable searches and seizures and self-crimination were not waived when his wife admitted to his home federal officers, who came without warrant, demanding admission to make search of it under government authority, even assuming that it is possible for a wife, in the absence of her husband, thus to waive his constitutional rights, since, under the implied coercion here presented, no such waiver was intended or effected.” ’
“If the wife may not, for the husband, in his absence, waive his privilege of immunity against an unreasonable and unlawful search of the home, it follows, a'fortiori, that the clerk of a store, in the absence of the owner, may not waive his privilege against an unreasonable and unlawful search of his store.
“In view of the fact that the conviction of plaintiff in error is based, in so far as his connection with the possession of the alleged stolen goods, on evidence secured by the search of his premises, in his absence, without warrant, the Attorney General is impelled to confess error in this case, for otherwise there is no evidence to connect him with the commission of the crime.”

Upon an examination of the record and the questions of law involved we are of opinion that the confession of error is well founded. The confession of error is therefore sustained, and the judgment of the lower court is reversed.

EDWARDS and DAVENPORT, JiJ., concur.


text:
    E. D. HERNDON v. STATE.
    No. A-5915.
    Opinion Filed Nov. 26, 1927.
    (261 Pac. 378.)
    See, also, 30 Okla. Cr. 162, 234 P. 1116.
    Sigler & Jackson, for plaintiff in error.
    George F. Short, Atty. Gen., and Leverett Edwards, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The appellant, E. D. Herndon, was convicted of manslaughter in the second degree and his punishment fixed at confinement in the penitentiary for a term of four years.

The information, omitting formal parts, charges that in Carter county, March 1, 1925, “the above named defendant, E. D. (Doty) Herndon, did, then and there willfully, unlawfully and feloniously with a premeditated design to effect the death of Billie Bright, and by acts imminently dangerous to others and evincing a depraved mind, regardless of human life, operate, drive, and propel an automobile against, upon, and over the person and body of the said Billie Bright with such force as to throw, hurl and force the said Billie Bright upon and against the street and pavement of the city of Ardmore, Oklahoma, then and there and thereby inflicting upon the head and body of the said Billie Bright certain mortal wounds of which the said Billie Brijg/ht then and there immediately did die; that the '«aid E. D. (Doty) Herndon, in manner and form as aforesaid unlawfully and feloniously did, then and there kill and murder the said Billie Bright contrary to,” etc.

The main, if not the only, question on this appeal is whether the evidence was sufficient to sustain the verdict.

It is obvious that appellant was convicted of the crime defined in the Penal Code as follows:

“Any killing of one human being by the .act, procurement or culpable negligence of another, which, under the provisions of this chapter, is not murder, nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree.” Section 1745, C. S. 1921.

It appears that Douglas boulevard, in the city of Ardmore, is an avenue running north and south, with a parkway in the middle with driveways on each side about 18 feet wide. The home of Ernest Bright is situated on the east side of this street, facing west, and across the boulevard is the home of J. W. Skipworth. On the day of the tragedy which resulted in this prosecution, Billie Bright, age four years, was playing near the Skip-worth home. Mrs. Bright, his mother, called to him from her front porch, and the child started to cross the street, when appellant came driving down Douglas boulevard at a speed, as testified to by the witnesses for the state, of between 25 and 35 miles an hour. The automobile driven by appellant struck the child, killing him almost instantly. Appellant did not stop, but drove on.

Mrs. Ernest Bright testified that she was standing on her front porch: that when struck by appellant’s car her child was not more than a foot from the curbing.

The evidence tends to show that before the accident a Ford car had been parked in the street in front of the Skipworth home. All the witnesses for the state testified that this delivery truck had been gone from three to ten minutes and was not even in sight at the time the accident occurred.

C. J. Baker, the driver, testified that he wias a florist and had driven to the Skipworth home, and as he was leaving a child followed him out to his truck, and as he left the child went back towards the sidewalk; that he did not hear of the accident until late that afternoon. According to the testimony of appellant he was going up the street at a moderate rate of speed, 18 or 20 miles; a Ford car with a cab on the back of it was parked there, headed north; that the child ran from behind the truck and he whirled to the right to miss him, and the left front wheel struck him; that he stopped and then drove off. He further testified:

“It scared me, and the women screaming scared me; I knew Mr. Short lived there close, and if it was one of his childrep I wouldn’t live long enough to tell how it happened.”

It was the theory of the state that the death of Billie Bright occurred as a result of the gross and culpable negligence of the defendant, Herndon, in operating the automobile which killed the child.

The theory of the defense was that the defendant was using due care in driving the car, but that the child darted out from the curb and from behind a delivery truck and thus the accident was unavoidable. His testimony that the child darted out from behind the florist truck is not supported by other evidence. The physical facts of the accident are entirely inconsistent with his statement. The testimony shows that when hit by the ear the child was not more than a foot or two from the curb.

The evidence for the state shows that appellant at the time of the accident was driving an automobile on the streets of Ardmore at a rate of speed exceeding the limit fixed by a city ordinance, and his failure to stop after the accident tends to show a reckless disregard of consequences.

“Culpable negligence” may be defined as the omission to do something which a reasonable and prudent man would do, or the doing of something which such a man would not do, under the circumstances surrounding the particular case. If the death of the child was caused by culpable negligence, then it was not intentional.

The law is regardful of human life and personal safety, and if one is grossly and wantonly reckless in exposing others to danger, it holds him to have intended the natural consequences of his act and treats him as guilty of a willful and intentional wrong. People v. Vasquez (Cal. App.) 259 P. 1005, and cases cited.

Where a person intentionally does an unlawful act, such as driving an automobile at a reckless rate of speed, and, without regard for the life and limb of others, runs into and kills another person, the rule seems to be that his conduct imputes to him the intention to do what in effect he does do, and, under such circumstances, the courts hold such person guilty of manslaughter. Mayse v. State, 38 Okla. Cr. 144, 259 P. 277.

It is obvious that the instant case was one for the consideration and determination of the jury.

The instructions given by the court fully covered the law of the case.

The trial was in all respects fair, and we are unable after a careful examination to find anything in the record sufficient to create a doubt as to the correctness of the result, or to warrant us interfering with the verdict.

The judgment is therefore affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    JOHN KELSO v. STATE.
    No. A-5870.
    Opinion Filed Dec. 3, 1927.
    (261 Pac. 377.)
    J. B. Pope, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Grady county on a charge of having the possession of a still and was sentenced to pay .a fine of $100 and to serve 30 days in the county jail.

The only assignment of error argued in the brief is that the evidence is insufficient to sustain the judgment. The record discloses that in June, 1925, certain officers went to the farm upon which defendant resided and had resided for about 12 years, and in a canyon about 250 yards from his residence discovered a still, together with a circular concrete vat about 6 feet in diameter and 7 or 8 feet deep, in which was mash. There was a well-defined trail leading from the residence down into the canyon to the immediate vicinity of the still. The evidence further shows that the cultivated land of defendant, and where at the time he was working, was beyond the still from the residence and about the same distance as the residence. Defendant testified in his own behalf that he did not own the still, had not seen the still or tank, and did not know it was on his premises.

Where circumstantial evidence is relied on for a conviction, the circumstances proved must be consistent with the guilt of defendant and inconsistent with his innocence. The circumstances here are consistent with his guilt. It seems wholly unreasonable that any other person could have gone into the premises of defendant so near to his residence and located between his farm lands and residence, with a trail leading from the residence to the place, and there have set up and have operated a still. These circumstances are inconsistent with the innocence of defendant and are sufficient to sustain the verdict and judgment.

The case is affirmed.

DOYLE, P. J., and DAVENPORT, J., concur.


text:
    TOM RUFFIN v. STATE.
    No. A-5949.
    Opinion Filed Dec. 3, 1927.
    (261 Pac. 378.)

      Joe Adwon and Jos. A. Ramsdale, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Ellis county on ,a joint charge with one Hendricks of selling intoxicating liquor, and was sentenced to pay a fine of $50 and to serve a term of 30 days in the county jail.

The conviction rests on the testimony of B. E. Slagle, who styled himself an undercover man. He testified, in substance, that he approached defendant and inquired where he could purchase liquor, and that defendant introduced him to Hendricks, from whom he bought a quart of whisky. He was not corroborated on the fact of this purchase.

In the course of the trial, over the objection of defendant, the court permitted evidence that two days prior to the date charged the witness Slagle had inquired where he could purchase whisky, and at that time had been introduced to defendant by one Hooks, from whom he purchased a quart of whisky. This evidence tended to prove a different offense at a different time with a different person to that charged in the information. This court has frequently held that the issue in a criminal case is single, and evidence of an independent crime, having no logical connection with the offense charged, is incompetent and inadmissible. The evidence was wholly incompetent, and its admission in this case constitutes reversible error. Miller v. State, 13 Okla. Cr. 176, 163 P. 131, L. R. A. 1917D, 383; Smith v. State, 14 Okla. Cr. 348, 171 P. 341; Wisdom v. State, 18 Okla. Cr. 119, 193 P. 1003; Newton v. State, 26 Okla. Cr. 65, 221 P. 1046; Wiederkehr v. State, 27 Okla. Cr. 326, 227 P. 893; Stanfield v. State, 30 Okla. Cr. 82, 235 P. 256. See, also, Alexander v. State, 24 Okla. Cr. 435, 218 P. 543.

The case is reversed and remanded.

DOYLE, P. J., and DAVENPORT, J., concur.


text:
    A. C. SHANAFELT v. STATE.
    No. A-5897.
    Opinion Filed Dec. 3, 1927.
    (261 Pac. 380.)
    Charles Skalnik, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Tulsa county on a charge of having the possession of intoxieating liquor and sentenced to pay fine of $500 and to serve a term of six months in the county jail.

Before entering upon the trial, a motion to suppress the evidence was presented and overruled, and objection to the admission of evidence as incompetent was properly made and overruled in the course of the trial. It is first argued that the affidavit, though positive in form, was in fact made on information and belief. This court has held that, where a proper affidavit is made positive in form, sufficient to show probable cause, an attack on its sufficiency for the reason that the affidavit, though positive in form, is in fact made on information and belief, cannot be sustained. Cahill v. State, 38 Okla. Cr. 236, 260 P. 91; Phelps et al. v. State, 36 Okla. Cr. 213, 253 P. 910.

It is also argued that, although the allegations in the affidavit are positive in form, they state mere conclusions, and are insufficient on which to base a finding of .probable cause, citing U. S. v. Kaplan, (D. C.) 286 F. 964; Giles v. U. S. (C. C. A.) 284 F. 208; Hannan v. State, 29 Okla. Cr. 203, 233 P. 249; and other authorities..

The rule announced by this court in the Hannan Case was somewhat restricted in its application by the later case of Smith v. State, 30 Okla. Cr. 134, 235 P. 273, and other cases.

The affidavit for search warrant in this case described the place to be searched as:

“* * * A certain five-room frame building located in Sec. 26, township 17, range 14, one mile northeast of Leonard, Oklahoma, Tulsa county, together with the curtilage thereof and appurtenances thereunto belonging. That said building is a private residence and is used as a place of public resort and for the furnishing and storage of intoxicating liquor.”

Section 7012, Comp. St. 1921, provides:

“No such -vyarrant shall issue but upon probable cause, supported by oath or affirmation describing as particularly as may be the .place to be searched, and the person or thing to be seized.”

It is well settled that the description must be sufficiently definite that no discretion is left to the searching . officer as to what place he is authorized, to search. It will be observed from the foregoing affidavit that the location of the place to be searched is made no more definite than “a mile northeast of Leonard in Sec. 26.” The mere section number is not sufficiently definite as a numeric description. The description may be made definite by particularly describing the location of the house in such manner that it could not be confused with any other house, as by describing the owner of the house, the occupant of the house, or the particular .place or location of the house in its relation to natural objects. In the case of Brandt v. State, 34 Okla. Cr. 400, 246 P. 1106, this court said:

“Affidavit for search warrant, describing the place to be searched as a certain section of land, and without naming the owner, is insufficient to furnish the particular description of the place to be searched, where it appeared that the land so designated was owned and occupied by several persons, so that it was in fact several places.”

Several other assignments of error are argued, but, since the affidavit and search Warrant do not conform to the requirements of section 701'2, supra, it is unnecessary to discuss them.

The case is reversed and remanded.

DOYLE, P. J., and DAVENPORT, J., concur.


text:
    CHARLEY CRANE et al. v. STATE.
    No. A-5991.
    Opinion Filed Dec. 5, 1927.
    (261 Pac. 982.)
    T. C. Greer and Hughes & Wells, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This was an information in the district court of Tillman county, against Charley Crane, J. F. Handley, and R. H. Selsor, in which the defendants were charged with a conspiracy to violate provisions of the prohibitory liquor law. The defendants were tried'jointly before a jury, which returned a verdict finding them guilty as charged in the information, and leaving their punishment to be fixed by the court. Motion for new trial was duly filed and overruled, and the court pronounced judgments and sentenced the defendant Crane to pay a fine of $500 and imprisonment in the penitentiary for a term of one year. The defendant Handley was sentenced to pay a fine of $10,000 and imprisonment in the penitentiary for a term of two years. The.defendant Selsor was sentenced to .pay a fine of $200. To reverse the judgments, they appeal.

The information in substance charges that in Tillman county, on or about the 13th day of June, 1925, the defendants did unlawfully, willfully, corruptly, and feloniously combine, confederate, and agree together, and with each other and divers other persons unknown, to engage in the business of manufacturing whisky, and further alleges overt acts in pursuance of the conspiracy. This is a companion case to that of Curtis Taylor v. State, 38 Okla. Cr. 350, 261 P. 978, this day , decided. The record in this case is the same as the record in that case, so far as the jurisdiction of the trial court is concerned.

Upon the authority of that case, the judgments herein appealed from are reversed.

DAVENPORT, J., concurs.

EDWARDS, J., concurs in conclusion.


text:
    WALTER D. CLINKSCALES v. STATE.
    No. A-6291.
    Opinion Filed Dec. 5, 1927.
    (261 Pac. 982.)
    Christian & Scott, and Morris & Tant, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This was an information in the district court of Tillman county against Walter Clinkscales, Carl Munkas, and Clifton Overton, in which the defendants were charged with conspiracy to violate provisions of the prohibitory liquor law. A severance was granted, and, upon his separate trial, appellant, Walter D. Clink-scales, was found guilty, the jury leaving the punishment to be fixed by the court. Motion for new trial was duly filed and overruled, and the court pronounced judgment and sentenced the defendant, Clinkscales, to confinement in the penitentiary for a term of two years, To reverse the judgment he appealed by filing in this court on July 2, 1926, petition in error with case-made.

The information, in substance, charges that in Tillman county, on or about the 1st day of November, 1925, the defendants did unlawfully, willfully, and corruptly and feloniously combine, confederate, conspire, and agree together and with each other and with divers other persons unknown to engage in the business of selling spirituous, vinous, fermented, malt, and intoxicating liquors, and further alleges overt acts in pursuance of said conspiracy.

This is a companion case to that of Curtis Taylor, 38 Okla. Cr. 350, 261 P. 978. The record in this case is the same as the record in that case so far as the jurisdiction of the trial court is concerned. Upon the authority of that case, the judgment appealed from is reversed.

DAVENPORT, J., concurs.

EDWARDS, J., concurs in the conclusion.


author: DOYLE, P. J. EDWARDS, J.

text:
    CURTIS TAYLOR v. STATE.
    No. A-6663.
    Opinion Filed Dec. 5, 1927.
    (261 Pac. 978.)

      W. H. Hussey, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Curtis Taylor, and George Reed were jointly informed against for conspiracy to violate provisions of the prohibitory liquor law, the defendant Reed was not prosecuted, and testified for the state on the trial of the defendant TayTor, who was found guilty as charged in the information, and, after his motion for a new trial was overruled, was sentenced in accordance with the verdict of the jury to pay a fine of $400 and to confinement in the penitentiary for the term of 2 years. To reverse the judgment he appeals.

The information charges that the defendant did on or about the 1st day of November, 1926, in Tillman county, Okla., “unlawfully, willfully, corruptly, and feloniously combine, confederate, conspire, and agree together, and with each other and divers other persons to informant unknown, to commit in said county and state a crime, that is to say, willfully, unlawfully, feloniously, and knowingly to engage in the business of selling intoxicating liquor;” and further alleges as overt acts in pursuance of the conspiracy deliveries' of whisky by the defendant, Taylor, to his codefendant, Reed.

The defendant interposed a demurrer on the grounds that the information does not charge a public offense, and that the court has no jurisdiction of the alleged offense sought to be charged, for, as shown on the face of the information, the same charges' a misdemeanor and not a felony.

The overruling of the demurrer is the first error assigned.

Criminal conspiracy is defined by section 1649, C. O. S. 1921, as follows:

“If two or more .persons conspire * * * to commit any crime, * * * they are guilty of a misdemeanor.”

The information in this case was based on an alleged violation of chapter 260, S. L. 1915 (sec. 1652, C. S. 1921), which reads as follows:

“Section 1. If two or more persons conspire either to commit any offense against the state of Oklahoma, or to defraud the state of Oklahoma in any manner or for any purpose, and if one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy are liable to a penalty of not more than ten thousand dollars ($10,000.00) or to imprisonment for not more than two years or to both fine and imprisonment in the discretion of the court or jury.
“Approved March 30, 1915.”

In the case of State v. Young, 20 Okla. Cr. 383, 203 P. 484, it is held that section 1'652, above quoted, creates and defines an offense that is ,a felony. The statute in question was adopted from the federal statutes. In the opinion of the Young Case it is said:

“It follows as a sound rule of statutory construction that, when a statute enacted by Congress is literally adopted by the Legislature of this state, the judicial construction already placed u,pon it by the Supreme Court of the United States accompanies the statute, and is to be treated as incorporated therein, unless such construction would be in derogation of some general law.”

In the case of Burtner v. State, 20 Okla. Cr. 469, 204 P. 135, it is held that:

“A conspiracy to defraud the state, as defined by statute (chapter 260, Sess. Laws 1915), is a felony of which the county court has no jurisdiction.”

In the opinion it is said:

“The information in this case, apparently predicated upon section” 1649 above quoted, “also states an offense under the 1915 statute last above quoted. It was held by this court in the case of State v. Young (supra) * * * that such an offense is a felony. If the offense charged is a felony, the county court for that reason would be without jurisdiction to try the cause. True, the complaint here does not specify that the acts complained. of were feloniously done, but the conspiracy to commit the offense of defrauding the school district was an offense against the state of Oklahoma, in that it affected the revenues of the state as well as the revenues of the school district.” Section 1649, “supra, makes it a misdemeanor to conspire to defraud ‘any person.’ The 1915 statute makes it a felony to conspire to defraud the state. A school district being a subdivision of the state, it would seem that the offense charged in the information comes within the latter statute rather than within the former.”

Counsel for appellant in the brief say:

“We wish to argue this case from this angle, that the law in question, should the construction prevail as placed upon it in the court below, that it would be flagrantly and dangerously unconstitutional in so far as the anti-liquor laws of this state are concerned.
“The prohibition legislation, as we have it, is one of the most outstanding and remarkable pieces of legislation ever enacted by any state. It is not only our law, but it is a part and parcel of our Constitution.
“We admit that the statute in question comes from the federal government and with it the construction placed upon it by the highest federal court, but, as this court has well said, ‘That adoption will be held good as to construction, unless it serves to repeal a positive law of the state.’ The adoption of the federal construction would serve to practically repeal, if not nullify, our liquor laws. In this way take the case at bar. The jury that tried this case could have, after finding the defendant guilty, fixed his penalty at anything less than $10,000 or the imprisonment in the penitentiary for any period less than two years, or to both such fine and imprisonment, in the discretion of the court or jury. That is, two or more persons could engage in the business of selling whisky together and their different sales up to as many as fifty or more, any one act could be designated as an overt act in providing such conspiracy — and for all these acts in keeping with this law could escape with a fine of $1 and ond day in jail, or no jail sentence at all, or a sentence of one day in jail and no fine at all.”

This prohibition provision of the state Constitution provides, in part, as follows:

“Any person, individual or corporate, who shall manufacture, sell, barter, give away, or otherwise furnish any intoxicating linuor of any Idnd, including beer, ale, and wine, contrary to provisions of this section, * * * shall be punished, on conviction thereof, by fine not less than fifty dollars and by imprisonment not less than thirty days for each offense: * * * Upon the admission of the state into the Union these provisions shall be immediately enforceable in the courts of the state.” Const, art. 1, § 7.

Nowakowski v. State, 6 Okla. Cr. 123, 116 P. 351, presents practically the same question as the one now under consideration. In that case it is held that:

“The prohibitory provision of the Oklahoma Constitution is self-executing, and declares that the unlawful sale of intoxicating liquor shall be punished by a fine of-not less than $50 and imprisonment for not less than 30 days. An act of the Legislature approved March 9, 1909, * * * provides that the punishment for selling intoxicating liquor to a minor shall be imprisonment in the penitentiary for a term of not less than one nor more than five years. Held, that the constitutional provision is.; all-embracing in its terms and includes a sale to a minor;' that the Legislature cannot remit the constitutional requirement that the offense shall be punished by a fine of’ not less than $50; that, while the Legislature may fix the maximum punishment for the offense, it cannot change the minimum punishment which the Constitution has’ fixed; and that the act is therefore unconstitutional and void.”

Judge Richardson, delivering the opinion of the court, used the following language:

“If our Constitution was silent upon the liquor question, or merely forbade its sale without prescribing any. punishment therefor, certainly the Legislature, its .authority extending ‘to all rightful subjects of legislation,’ would have power to make the sale of liquor a felony; and, that being true, why would a constitutional provision, which forbids the sale of liquor and fixes the minimum but not the maximum punishment therefor, prevent the Legislature from declaring the offense a felony? An enactment of that character ’ may be so drawn as not to take from the Constitution one item or term contained-therein, as not to authorize one thing which the Constitution forbids, or remit any of the punishment which the-Constitution imposes; and, should- it be so framed, then we fail to perceive wherein it would violate the Constitution. That instrument avowedly fixes only the minimum punishment for the offense, leaving the power to fix the maximum .punishment limited only by the provision that such punishment must not be cruel or unusual. * * *
“Certainly, if our Constitution had fixed the maximum, as it has fixed the minimum, punishment for this offense, the Legislature, would have no more power to change such maximum punishment than it now has to change the minimum punishment so fixed; but, the Constitution not having declared the maximum punishment, it is within the power of the Legislature to declare the same; and assuredly the solicitude which the state ought to feel for the welfare of its future citizenship is ample warrant for making_ felonious the furnishing of intoxicating liquors to a minor. * * *
“The Legislature may add to the stringency of this provision; but it cannot remit or repeal the requirement that a violation of the provision shall be punished by a fine, and that the fine shall be not less than $50, and make the offense punishable by imprisonment alone. If _ it could, then by the same reasoning it could remit the imprisonment and make the offense punishable by a fine alone; and, if it could remit either, then it could remit both and say to the man who thrives by the debauchery of children that he may do so with absolute impunity. The act in question remits the fine, and it fixes the minimum punishment at one year in the penitentiary. The Constitution has fixed the minimum punishment for this offense, and the Legislature, while it may fix the maximum punishment, is nevertheless powerless to change that which the Constitution has fixed.”

By section 3 of the Enabling Act (act of June 16, 1906) it was specifically provided by Congress that the Constitutional Convention to frame a Constitution for the proposed state of Oklahoma should provide therein that:

“The manufacture, sale, barter, giving away, or otherwise furnishing, except as hereinafter provided, of intoxicating liquors within those parts of said state now known as the Indian Territory and the Osage Indian Reservation and within any other parts of the said state which existed as Indian reservations on the 1st day of January, 1906, is prohibited for a- period of 21 years from the date of the admission of the state into the Union.”

In compliance with this restriction, such provision is incorporated in section 7, art. 1, of the Constitution. The Constitutional Convention submitted practically the same provision, separately, to the voters of the state for ratification or rejection at the same time the Constitution was voted on, which was adopted, thus extending such provision to the entire state.

The Constitution prescribes that the offender “shall be punished, on conviction thereof, by fine not less than $50 and by imprisonment not less than 30 days for each offense.” Const. art. 1, § 7. The prohibition enforcement act provides that:

“A violation of any provisions of this section shall be a misdemeanor, and shall be punished by a fine of not less than $50 nor more than $500, and by imprisonment for not less than 30 days, nor more than six months.” Section 7002, C. S. 1921.

It may be well for us to say here, in order to guard against a misapprehension, that the question in this case is not the constitutionality of the statute. Chapter 260, S. L. 1915, now section 1652. The question here is, Does the offense created by the statute include violations of the prohibition article and ordinance of the Constitution and the provisions of the prohibition enforcement act?

The statute fixes the maximum punishment at a fine “of not more than ten thousand dollars,” or “to imprisonment for not more than two years, or to both fine and imprisonment in the discretion of the court or jury.” The statute does not fix the minimum punishment. It follows that said statute has no application to violations of the liquor laws.

We may here remark that it is a familiar rule of construction that, in determining the legislative intention, specific statutory provisions relating to a particular subject must govern in respect to such subject, as against general provisions and those which do not by a fair and reasonable interpretation include the offense charged. Warner v. Mathews, 11 Okla. Cr. 122, 143 P. 516.

In addition to this rule, it is provided by section 1509 of the Penal Code (Comp. St. 1921) as follows:

“If there be in any other chapter of the laws of this state a provision making any specific act criminal and providing the punishment therefor, and there be in this Penal Code any provision or section making the same act a criminal offense or prescribing the punishment therefor, that offense and the punishment thereof shall be governed by the special provisions made in relation thereto, and not by the provisions of this Penal Code.”

We think this provision of the Penal Code is also applicable. Hays v. State, 22 Okla. Cr. 100, 210 P. 728.

Our conclusion after ,a careful consideration of the whole record is that the district court was without jurisdiction of the offense sought to be charged. The judgment is reversed and cause remanded for further proceedings consistent with this opinion. The warden of the .penitentiary will surrender the plaintiff in error to the sheriff of Tillman county, who will hold him in custody until he shall be discharged by due course of law.

DAVENPORT, 'J., concurs.

EDWARDS, J.

(dissenting). I am not able to concur in the reasoning in this case. It is my view of the law that section 1649, Comp. Stat. 1921, defining a misdemeanor for two or more persons to conspire to commit any crime, is not repealed by section 1, c. 260, Session Laws 1915 (section 1652, Comp. Stat. 1921), which defines a conspiracy as a felony where two or more persons conspire to commit an offense against the state of Oklahoma or to defraud the state of Oklahoma. The latter section modifies the prior law only as to conspira des against the state of Oklahoma as such or as to conspiracies to defraud the state of Oklahoma, leaving the remainder of section 1649 unimpaired. That is to say, the act of 1915 defines as ,a felony and provides an enlarged punishment for the specific offenses therein mentioned. I am not unmindful of the decisions of the federal courts construing the federal statute from which section 1652, supra, was adopted. It is a sound rule of statutory construction that where a statute is. adopted from a sister state or from an act of Congress, the judicial construction already placed upon it by the state or the United States, as the case may 'be, accompanies the statute and is to be treated as incorporated therein unless such construction would be in derogation of some general law. This rule I think not applicable here, for the reason that at the time the federal conspiracy statute was enacted by Congress there was no federal statute defining a conspiracy as a misdemeanor as there was in this state when the act of 1915 (section 1652, supra) was enacted. This distinction requires that section 1649 and section 1652 be construed together. Under this aspect of the law the conviction in this case could not stand, as the conspiracy charged would be a misdemeanor, under section 1649, and not a felony as defined by section 1652. This view is in harmony with the case of State v. Young, 20 Okla. Cr. 383, 203 P. 484, and Burtner v. State, 20 Okla. Cr. 469, 204 P. 135.

There is, however, some conflict in the authorities as to whether a conspiracy to commit an offense is merged in the offense when the object of the conspiracy is accomplished. 12 C. J. 580, §§ 93-95, and authorities cited; 5 R. C. L. 1077, § 21, and authorities cited.

The majority opinion in effect holds that the conspiracy merges in the overt act. In my judgment, the conspiracy statute does not conflict with the constitutional provisions in reference to prohibition enforcement, that a conspiracy to violate the prohibition enforcement act is not the same offense as the violation of the act. Rambo v. State, 38 Okla. Cr. 192, 259 P. 602.


text:
    JOSE ALVARADO v. STATE.
    No. A-6318.
    Opinion Filed Dec. 17, 1927.
    (261 Pac. 983.)
    A. C. Brewster, for plaintiff in error.

      Edwin Dabney, 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 district court of Osage county on a charge of burglary and was sentenced to serve a term of seven years in the state penitentiary.

On the night of September IT, 1925, the store of Porter Williams at Burbank, Okla., was broken into and merchandise consisting of ladies’ coats, dresses, furs, and men’s hose, suits, gloves, shirts, and leather coats, of a total value of about $2,500, w'as stolen therefrom. The following day, a Mrs. Mamie Clifton, the janitress or housekeeper of the guest house of the Sinclair Oil & Gas Company at Shidler, discovered this merchandise in a closet in this house just across the hall from a room occupied part of the time by defendant. She called this discovery to the attention of J. W. Stoker, superintendent of the company, who went to the dormitory, .examined the merchandise, and then sent for defendant, who, in response to his message, came to the company office. At this time and for some five or six months defendant had been employed by the Sinclair Oil Company and several other oil companies to act somewhat in the capacity of policeman to guard the property of various companies against theft, and in such capacity he had a right to occupy one of the rooms at the dormitory. Stoker asked him about the merchandise and defendant informed him that it was stuff which had been confiscated and taken from some “crooks” up near Cooper; that he drove up to a house there and a car drove away; they took after it, and the stuff was thrown out and picked up along the road; that he then returned to the house from whence the car had driven and got the other stuff and brought it to the dormitory for evidence. Stoker required him to remove this merchandise from the company’s building and that night it was moved by defendant and Ben Hughes, Jr., generally referred to as Whitey Hughes. Before taking it away an inventory was made by defendant, who informed Stoker he was going to find the rightful owner and return it to him. On taking the merchandise from the dormitory defendant and Hughes moved it to a house about a mile south of Webb City on a lease of the Gypsy Oil Conypany. About this time defendant gave some nine or ten dresses, a coat, and possibly some other garments to Nora McGinnity, a young woman to whom he was engaged to be married. These garments defendant testified he procured ,at Oklahoma City, Tulsa, and different places, and they were in the nature of a “hope chest.” Numerous items of the property given by defendant to Miss McGinnity were identified as having been stolen at the time of the burglary. Some days after, Hughes made arrangement and returned a portion of this merchandise to Williams and received a reward of $250 in cash. Defendant and Hughes were jointly informed against, a severance was had, and Hughes is one of the principal witnesses for the state. He testified, in substance, that he and defendant agreed to burglarize the store in question; that they went there in defendant’s car about 2 o’clock a. m.; that he broke in the front door while defendant stood guard; they went in and broke open the back door, selected the merchandise to be stolen, and then drove the car to the entrance of the alley near the rear of the store, loaded in the merchandise, and took it to the dormitory of the Sinclair Company, where it was later discovered; that, after it was discovered and ordered removed from the dormitory, he and defendant took it to a house selected by defendant on the Gypsy lease; that defendant took a portion of this merchandise, and stated he intended to give it to his girl, and took another part of it for his own use; that he (Hughes) appropriated a part of the merchandise for his own use and gave some to his wife; that later he and defendant agreed that they would return the remainder of the merchandise to the owner and get a reward of $250 which was offered; that he returned it, received the reward, and gave a part of it to defendant. These various matters are testified at length; numerous matters were detailed which are not set out in this brief statement.

The first contention argued is that there is no sufficient corroboration of the testimony of the witness Hughes. The testimony of Hughes, if taken as true, fully establishes the state’s case; that is, it presents the theory of the state that defendant and Hughes were the burglars and thieves and that Hughes is an accomplice of defendant in the commission of the crime charged. Defendant cannot be convicted, unless there is testimony corroborating Hughes tending to connect defendant with the commission of the crime. The corroboration is not sufficient if it merely shows the commission of the crime'or the circumstances thereof, but must go further and tend to connect the defendant with its commission. Section 2701, Comp. St. 1921. The sufficiency of the corroboration of the testimony of an accomplice has had the consideration of this court in many cases. In some of these cases the corroboration has been held insufficient. Camp v. State, 7 Okla. Cr. 531, 124 P. 331; Flynn v. State, 10 Okla. Cr. 41, 133 P. 1133; Kirk v. State, 10 Okla. Cr. 281, 135 P. 1156; Hicks v. State, 18 Okla. Cr. 718, 196 P. 144; Jolliffee v. State, 21 Okla. Cr. 278, 207 P. 454; Smith v. State, 27 Okla. Cr. 206, 226 P. 390; Livingston v. State, 29 Okla. Cr. 247, 233 P. 235. In other cases the corroborating evidence has been held sufficient. Moody v. State, 13 Okla. Cr. 327, 164 P. 676; Davis v. State, 18 Okla. Cr. 453, 196 P. 146; Morrow v. State, 23 Okla. Cr. 98, 212 P. 1008; Blumhoff v. State, 29 Okla. Cr. 4, 231 P. 900; Davis v. State, 34 Okla. Cr. 415, 246 P. 651.

The authorities discussing the sufficiency of corroborating testimony can do no more than illustrate and state the rule of law applicable. ■ The sufficiency of the corroboration is a question of law for the court, and it is necessary here to scan the testimony to ascertain if it is sufficient to satisfy the requirement of the law. If it is, its credibility and weight is for the jury. It is said that the corroborating evidence need not cover every material point testified to by an accomplice; but, if there is independent evidence as to some material fact or facts tending to connect defendant with the commission of the crime, it is sufficient. Nor is it necessary that the corroborative evidence directly connect him with the crime; it may be circumstantial.

Bearing in mind that the accomplice, Hughes, has testified to a state of facts establishing all the elements of the offense charged, we scrutinize the record to ascertain wherein and to what extent he is corroborated by independent evidence. It may be considered admitted that the building alleged was broken into at the time alleged and a large quantity of merchandise stolen therefrom; that this merchandise was found the next day in the possession of defendant. This possession is an evidentiary fact which the jury may consider. Blumhoff v. State, supra; Davis v. State, supra; Morrow v. State, supra.

It also appears that, when questioned about his possession of this property by Mr. Stoker, defendant did not answer truthfully, or at least not fully so. It is admitted that, on the night after its discovery in the ■ dormitory, this merchandise was, by defendant and Hughes, removed and stored at another place. There is also evidence that a portion of this merchandise was appropriated by defendant and given by him to another person or persons; a considerable volume of it being given to Nora McGinnity. Upon this point defendant admits giving considerable wearing apparel to this young woman, but claims he purchased it at other places: He is not corroborated in any particular in his explanation that he procured the merchandise given this woman elsewhere. There is evidence that defendant sent a suit of clothes and an overcoat of this merchandise to John O’Fallon. Hughes testified defendant sent them and he gave them to O’Fallon; and O’Fallon testified Hughes gave them to him with a message, and that the next day defendant asked him if he received the suit and overcoat he sent; that for reasons detailed defendant was under obligations to him. There is some corroboration by the wife of Hughes that defendant was present when Hughes gave her some of this stolen merchandise and that defendant made statements indicating that he knew it was stolen. There was also testimony that at the time of his arrest defendant was wearing one of the shirts stolen at the time of the burglary. Defendant claimed he purchased this shirt from the Osage Mercantile Company in Pawhuska in October, but the buyer for that firm testified in rebuttal that his firm never handled such a shirt. Then there is this circumstantial evidence: Defendant did not report his possession of this stolen property to any officer of Osage county and the further circumstance that, while defendant claimed he was holding the stolen property to acquire further evidence to prosecute the thieves, no complaint was made at the return of the property by Hughes to Williams.

It is fair to say that several of the witnesses for the state do not appear to be paragons of rectitude. Hughes is an ex-convict; in fact, the writer of this opinion, as trial judge, sentenced him for the theft of an automobile, the conviction referred to. in the evidence. It was also disclosed that the witness O’Fallon had been convicted in the federal court and had been sentenced for a term of seven years, from which conviction he had an appeal pending. These matters, however, were called to the attention of the jury. The credibility of the witnesses is within their province. It was for them to say whom they would believe or disbelieve.

There are some other facts and circumstances not detailed which might be construed as having a tendency to connect defendant with the commission of the crime. Upon a consideration of the entire evidence we are thoroughly convinced there is sufficient corroboration to satisfy the requirement of the law.

The argument is made that the court’s instructions Nos. 7, 8, 9, and 10 are prejudicially erroneous. Instruction 7 is that, if the jury find from the evidence beyond a reasonable doubt that defendant alone or with any other person broke into and entered the building, as alleged, with the intent to steal the personal property kept therein, or to commit any felony, then and in that event he would be guilty of burglary in the second degree; but, if after a careful consideration of all the evidence, facts, and circumstances the jury entertained a reasonable doubt, that doubt should be resolved in favor of defendant and he should be acquitted. Defendant insists this instruction is erroneous, in that the jury are not further told that the' breaking and entering must be with the intent to convert the property to the use of the taker and to deprive the owner thereof, or that the taking of the property must be without the consent of the owner, citing Sullivan v. State, 7 Okla. Cr. 307, 123 P. 569; Parker v. State, 13 Okla. Cr. 460, 165 P. 622; Lockhart v. State, 10 Okla. Cr. 582, 139 P. 1156.

No objection by demurrer or otherwise was made to the sufficiency of the information. It alleges a breaking and entering with the unlawful, burglarious, and felonious intent to commit the crime of grand larceny, to wit, to take, steal, and carry away certain personal property of a value of $2,500 with the intent to deprive the owner thereof and to convert the same to the taker’s own use. This court in the Sullivan Case held that,, where an information charges a burglary for an unlawful breaking and entering with intent to steal, in alleging the intent it is necessary to set out the elements required to constitute the crime of stealing at common law. This was followed in the Parker Case. In both of these cases the question goes to the sufficiency of the information, and not to any instruction. Defendant contends that the instruction defines a misdemeanor under section 2066, Comp. St. 1921, and not a felony under section 2063, Comp. St. 1921. There was no request for a more specific instruction upon this,point and the exception to the instruction is general and no particular objection is pointed out. It cannot be said that this instruction defines a misdemeanor as defined by section 2066. That section does not apply to a “breaking and entering,” but merely to an “entering.” Instruction 7 requires that it be found beyond a reasonable doubt that defendant broke and entered with the intent to steal or commit a felony before a verdict of guilty could be returned, clearly within the terms of section 2063. The word “steal” had a uniform significance both in legal parlance and in common understanding. It means the felonious taking and carrying away of the goods of another without right and without leave or consent of the owner. Underwood v. State, 23 Okla. Cr. 119 212 P. 1010; Cope v. State, 23 Okla. Cr. 161, 213 P. 753; Goertz v. State, 29 Okla. Cr. 261, 233 P. 768; Pearce v. State, 33 Okla. Cr. 273, 243 P. 761.

The court iri instruction 7 used the word “steal” as applying to the necessity to .prove a. crinr'nnl intent and in the sense and with the signification stated. While we do not approve the instruction as a model, it is not prejudicially erroneous.

Instruction 8 informs the jury that the witness Hughes by his own testimony is an accomplice and that a conviction cannot be had on his testimony unless it is corroborated by independent evidence tending to connect defendant with the commission of the crime charged. Defendant argues that the court should have submitted to the jury the question whether or not Hughes is an accomplice. Since the jury in several of the instructions are told, in substance, that, if they have a reasonable doubt of the guilt of defendant, they must give him the benefit of the ’doubt and acquit, and are told that all the instructions must be considered and construed together, instruction 8 states the law more favorably for defendant than the instruction he now contends for. Instructions 9 and 10 inform the jury the purpose and consideration to be given evidence of the good or bad character of defendant; they fairly state the law.

Complaint is also made that the court did not define a “forcible breaking” such as would constitute burglary. There was no request for any instruction upon this point. The term is as well understood by the jury as any definition would have been. The evidence was of the forcible breaking with a pipe wrench and the prying open of the door with an iron-wrecking bar, and no question of the sufficiency of the breaking to constitute burglary was suggested at the trial. It is also set out as error that the court did not give an instruction upon impeachment of a witness. No authorities to support this assignment are cited. No request for such instruction was made, and the general instruction as to the credibility of the witnesses and the weight and value to be given their testimony and the rules by which their testimony should be weighed and considered is sufficient.

Lastly, it is argued that the court erred in failing to give an instruction on alibi. The defendant testified to a state of facts amounting to an alibi. The mother of defendant also gave testimony tending to corroborate defendant, although her testimony does not absolutely preclude the presence of the defendant at the time and place of the burglary. No request for an instruction on the law of alibi was made. This court, in the case of Inklebarger v. State, 8 Okla. Cr. 316, 127 P. 707, said:

“Where a defendant is upon trial, and the defense of an alibi is relied upon, and the defendant does not request a special instruction upon this subject, and does not except to the action of the court in not charging on alibi, a conviction will not be reversed where such instruction is not given, unless it clearly appears from the record that the defendant was injured thereby.”

In that case, however, the evidence of alibi was less prominent than in this case. This court, in the case of Spess v. State, 20 Okla. Cr. 84, 201 P. 395, said:

“The defense of alibi is not an involved one. The adult with ordinary intelligence and limited experience is fully able to understand and comprehend that if a person (whose presence at the scene of the crime Is relied upon for conviction) was at another, different and distinct place at that time, it was a physical, as well as legal, impossibility for such person to have committed the offense. Alibi is not an extrinsic defense. It amounts to nothing more than a mere traverse of the material averments of the information or indictment. It is introduced for the .purpose of creating a reasonable doubt of guilt, and we think its nature is fairly understood by the average juror. Apparently it has been more of a nightmare to the courts than to the juries. As this defense involves a clearcut issue of fact, practical men (such as compose a trial jury) can more readily comprehend and truthfully decide the issue than can the courts, trained in technicalities, establish uniform principles of law applicable to such defense in every jurisdiction. It may be seriously doubted if any instruction on alibi should be given beyond the general instructions ‘that the defendant is presumed to be innocent,’ and ‘that the burden rests upon the state to prove his guilt beyond a reasonable doubt.’ . The views herein expressed result from a consideration of the numerous and conflicting decisions construing instructions on alibi and the varied reasons given for such holdings.
“In some jurisdictions the burden is upon the defendant to establish this defense ‘to the satisfaction of the jury,’ in others ‘by a preponderance of the evidence,’ in others ‘by evidence tending to raise a reasonable doubt of guilt.’ Why these various holdings? Certainly such confusion could never have.arisen had no specific instruction on alibi been given. In all these jurisdictions the state is required to establish guilt ‘beyond a reasonable doubt’; if the burden never shifts to the defendant to establish his innocence, then it is apparent that any evidence (be it that of alibi or weakness of the state’s case) which creates a reasonable doubt is sufficient to authorize an acquittal.
“The general instruction on ‘reasonable doubt’ ought to be sufficient to cover a simple issue of fact such as an alibi, any other instruction on the subject, if correctly stated in this jurisdiction, would be nothing more in its final analysis than stating the same burden in different language.”

Upon a consideration of the entire record it conclusively appears that defendant was properly charged; that there is ample evidence sustaining the charge; that the issues were fairly submitted and no prejudicial errors affecting the rights of defendant are made to appear. No reason to disturb the verdict is made to appear.

DOYLE, P. J., and DAVENPORT, J., concur.


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    J. P. WILLIAMS v. STATE.
    No. A-6283.
    Opinion Filed Dec. 17, 1927.
    (261 Pac. 977.)

      B. F. Garrett, for plaintiff in error.
    Edwin .Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

Appellant, J. P. Williams, and Richard Williams were jointly charged with having in their possession “5 gallons of Choc beer, testing more than one-half of 1 per cent, of alcohol,” with the unlawful intent to violate the prohibitory liquor laws. They were tried together before a jury, and the defendant Richard Williams was acquitted. Appellant, J. P. Williams, was found guilty and his punishment fixed at a fine of $250 and imprisonment in the county jail for 90 days.

Motion for new trial was duly filed and overruled. From the judgment pronounced in pursuance of the verdict, he appeals.

The evidence for the state shows that officers in executing a search warrant visited the home of the defendant and there found a keg containing about 5 gallons of what they termed “Choc beer,” in a garage.

Sheriff Boggess testified that he saved about a quart and poured the rest out; that he tested this with a hydrometer, “and it tested about 20 proof, about between 9 and 10 test.”

On cross-examination, he stated that the defendants were there, also appellant’s son, Denver, who was sick, and Denver claimed that the stuff was his, and that it was for his own use.

All the evidence for the state wias admitted over the objection of appellant on the ground that the search warrant was void because the affidavit was insufficient to show .probable cause, and that the warrant did not run in the name of “the state of Oklahoma.”

When the state rested, appellant moved for an acquittal on the ground that the evidence was insufficient to sustain a verdict of guilty, which was overruled, and exception allowed.

The testimony of four or five witnesses on the part of the defense was, in substance, to the effect that Denver Williams was .the owner of the garage; that it was occupied with his car; that he told the officers that the stuff in the keg belonged to him; that he was the owner and had a deed to the lot the garage was on; and that he was sick at that time and went to Arizona'for his health.

Appellant testified that he knew nothing about the keg or its contents and did not know that it was in his son’s garage until the officers told him; that the car in the garage was his son’s car, and he heard Denver say to the officers that it was his Choc in the keg.

Mary P. Johnson testified that she lived on the lot adjoining the garage and saw Denver Williams putting the stuff in the keg and she asked him what he was doing, and he said, “Making some Choc for his own use.”

One or two other witnesses testified that they saw Denver Williams mixing up the Choc, beer that was in the keg found by the officers.

Of the various errors assigned we deem it only necessary to consider the one, that the evidence is insufficient to sustain a conviction.

The conviction in this case rests entirely on circumstantial evidence. The general rule in criminal cases is, where the evidence is circumstantial, the facts shown must not only be consistent with and point to the guilt of the defendant, but must be inconsistent with his innocence.

After fully considering all of the evidence, we are clearly of the opinion that the verdict is contrary to the evidence, and for this reason the trial court should have sustained the motion of the defendant for a directed verdict of acquittal.

Because the evidence is insufficient to sustain a conviction, the judgment is reversed.

EDWARDS and DAVENPORT, JJ., concur.


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    TOBE SHAW v. STATE.
    No. A-5939.
    Opinion Filed Dec. 17, 1927.
    (261 Pac. 977.)
    McCollum & McCollum, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error was convicted on a charge of unlawfully transporting three pints of whisky from a point unknown to a certain place in the town of Masham, in Pawnee county, and in accordance with the verdict of the jury w¡as sentenced to pay a fine of $50, and to be confined in the county jail for 30 days. To reverse the judgment, he appeals.

The evidence shows that a deputy sheriff and the jailor of Pawnee county were in the town of Masham, and the defendant drove up in his ear, a Ford coupe; that they searched the car, and found about three pints of whisky in the turtle-back of the car. They each testified that they told the defendant that they wanted to search his car, and he siaid, “All right,” but that he did not give them the key to the turtle-back, so they forced it open. The bottles containing the whisky were introduced in evidence.

The evidence in the case was introduced against the defendant’s objections on the ground that the search was made without a search warrant in violation of the constitutional rights of the defendant, and in violation of sections 2876 to 2880, both inclusive, C. S. 1921.

At the close of the state’s evidence there was a motion to strike and a motion for ,a directed verdict on the same ground, both of which were overruled.

It is contended that the court committed reversible error in admitting the evidence of the officers relative to the search and seizure of the defendant’s car, and in refusing to withdraw from the consideration of the jury all the testimony relative to the search and seizure, and in admitting, over the objections of the defendant, the state’s exhibits; the same being certain bottles of liquor.

An examination of the record discloses that the objections were well taken. The questions presented were passed upon in the case of Hill v. State, 38 Okla. Cr. 317, 260 P. 1071, wherein it is held that:

“Where a conviction is based solely on evidence obtained by an unreasonable search and seizure, admitted over timely objection and exception, the judgment will be reversed.”

And further that:

“In a prosecution for transporting intoxicating liquor, evidence, obtained by search of defendant’s automobile without a search warrant, held inadmissible, in view of Const. art. 2, § 30.”

Upon the authority of that ease, we hold that the court erred in overruling the defendant’s objections to the introduction of the state’s evidence and in overruling the demurrer to the same.

The judgment of the low’er court is accordingly reversed.

EDWARDS' and DAVENPORT, JiJ., concur.


author: DAVENPORT, J.

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    BUD FORD v. STATE.
    No. A-5732.
    Opinion Filed Dec. 29, 1927.
    (262 Pac. 504.)

      Frank Petree, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was charged by information in the county court of Jackson county with having intoxicating liquor in his possession, with the willful" and unlawful intent then and there on the part of the said defendant to barter, sell, and furnish said intoxicating liquor to other persons in violation of the prohibitory laws of the state of Oklahoma. To this information the defendant entered his plea of not guilty.

The defendant filed his motion to quash the information and warrant issued in this cause, setting forth various reasons, among others, that the affidavit for the search warrant stated conclusion or belief, and was not based upon the actual knowledge of J. L. English, who made the affidavit for the search warrant, and that the search and seizure made in this case is void, without force, and amounted to nothing more than a trespass.

Testimony was taken by the court upon the motion, ■ and the court, after hearing the testimony and argument, overruled defendant’s motion to quash, and defendant duly excepted. A jury was impaneled and sworn to try the issues, and, after hearing the evidence introduced, over the objection of the defendant, and argument of counsel and instruction of the court, returned a verdict finding the defendant guilty, and fixing his punishment at 30 days in the county jail, and a fine of $200. Motion for a new trial was filed, considered, and overruled, and defendant reserved exceptions. All the evidence introduced by the state was procured by reason of a search warrant issued upon an affidavit of J. L. English, who made the affidavit on information and belief, and without any actual knowledge of affiant that the defendant was violating the prohibitory laws of the state of Oklahoma. The record shows that the sheriff, in executing the search warrant, found whisky, which he seized; and the record further shows that, ,at the close of the state’s evidence, the defendant moved for a directed verdict of acquittal, for the reason that the testimony was insufficient to sustain a verdict of guilty.

The defendant, for his third assignment of error alleged to have been committed by the court, states as follows:

“Error of the court in admitting evidence obtained under the search warrant, over the defendant’s objection.”

Discussing the third assignment of error, the defendant complains that the affidavit upon which the search warrant was based was illegally made on information and belief, and that the evidence obtained thereby was improperly admitted, because the search warrant was based upon an affidavit that did not state sufficient facts to warrant the issuing of the search warrant. The ques-ion as to what is necessary to be stated by an affiant to obtain a search warrant has been raised so often and passed on bv this court that it seems almost unnecessary to refer to the decisions.

In Gore v. State, 24 Okla. Cr. 394, 218 P. 545, in passing on a question similar to this, the court said:

“A search warrant must not be issued except upon a showing of probable cause, supported by oath or affirmation, which must set forth the facts tending to establish probable cause. An affidavit stating mere conclusions, or made on belief without stating facts,' is insufficient, and a search warrant based upon such a showing is void.”

In this case the party making the affidavit for the search warrant, when called as a witness in support of the motion to suppress the evidence of the state, admitted that he had no personal knowledge .of any violation by the defendant, and in making the affidavit it was based upon hearsay and belief.

In Hannan v. State, 29 Okla. Cr. 203, 233 P. 249, this court, in .passing on a similar question involved here, says:

“It is insufficient for the issuance of a search warrant that an affiant or deponent shall swear, ever so positively, to the conclusion that liquor is stored or kept in violation of law in a described building, without affirmatively stating the facts upon which his knowledge is founded. * * *
“The facts stated in an affidavit for a search warrant should be of such nature and kind as might be competent for the consideration of a jury in a prosecution for possession of liquor in violation of law. (a) Facts should be shown indicative of an illegal purpose, as well as of .possession.” Magin v. State, 25 Okla. Cr. 361, 220 P. 666; Committi v. State, 28 Okla. Cr. 385, 231 P. 317; Baker v. State, 28 Okla. Cr. 408, 231 P. 320; Ashbrook v. State; 92 Okla. 287, 219 P. 347; Dooley v. State, 25 Okla. Cr. 437, 221 P. 112; Whitehead v. State, 28 Okla. Cr. 193, 230 P. 291; Luster v. State, 30 Okla. Cr. 342, 235 P. 935; Stogsdill v. State, 36 Okla. Cr. 194, 253 P. 309.

At the close of the state’s evidence, defendant interposed a demurrer on the ground that the state had failed to prove an offense against the defendant, and that the state failed by competent evidence to prove the allegation in the information, and moved the court to instruct the jury to return a verdict of not guilty, which motion was overruled by the court, and defendant duly excepted. The defendant urges that the affidavit upon'which the search warrant was based was void and insufficient, not being in. compliance with the Constitution of the state relating to search and seizure; that the statement made in the affidavit “that affiant had probable cause for believing, and does believe, that intoxicating liquor is being manufactured,” etc., amounts to a complaint made on information and belief only, and does not set forth facts sufficient to establish ground for probable cause for believing they exist, as provided in our statute.

This court is of the opinion that the objection of the defendant to the introduction of the testimony procured under the search warrant based upon the affidavit was well taken, and that the only testimony that the state had was testimony unlawfully procured.

There are other assignments of error argued by the defendant, but, in the view we take of this case, we do not deem it necessary to discuss them. We hold there is no legal testimony to support the verdict of the jury and judgment of the court based thereon.

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

DOYLE, P. J., and EDWARDS, J., concur.