text:
    JACK MORRIS v. STATE.
    No. A-9472.
    Oct. 6, 1939.
    (94 P. 2d 842.)

      Joe S. Eaton and James K. Eaton, both of Okmulgee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment of conviction rendered on a verdict of a jury finding Jack Morris guilty of the crime of larceny of domestic animals, and fixing his punishment at two years’ imprisonment in the state penitentiary.

The information charges that Jack Morris, in Okmulgee county on or about the 23rd day of July, 1937, “did, unlawfully, willfully and feloniously, by fraud and stealth take, steal, and carry away two cows, ages about three and six years, the personal property of George Wittman, without his consent and against his will, and with the felonious intent to convert the said personal property to his own use and to permanently deprive the said owner thereof.”

Neither in the petition nor the brief is any complaint made of the instructions or of any ruling of the trial court in the admission or rejection of testimony. The sole ground urged for reversal of the judgment is that the verdict is not supported nor sustained by the evidence.

The evidence shows that on the date alleged George Wittman lived on a farm 15 miles west of Okmulgee, and kept his cattle, some on the farm and 46 head in a pasture five or six miles southwest of the city of Okmulgee.

Marion Thornburg was employed to take care and look after the cattle in the pasture. Thursday evening July 22, 1937, all the cattle were in the pasture; the next morning he found two of the cows missing, one a black motley faced cow, branded “W” on the left hip, the other a little red spotted, three year old, branded “W,” with short horns, and with an ear tag.

George Wittman testified that he had raised the two missing cows, that he went to the pasture, made an investigation and found where the cows had been driven from the pasture and loaded into a truck; that he learned that on the night before the cattle were missed an automobile with a two-wheel trailer had been seen by persons residing in the vicinity, and that there was a cow or cattle in the trailer; that he learned that defendant had conveyed two cows from his home near Preston to Tulsa on said 23rd day of July; that these cows were hauled in a trailer attached to a car driven by defendant; that he went to Tulsa and visited the stockyards and learned that said defendant had delivered two cows at the stockyards on July 23rd. The commission man who received the cows said he sold the same for defendant.

Frank Mitchell testified that he lived six miles west and six miles south of Okmulgee; on July 23rd he was at home, and was at Honey Creek Store that evening when he noticed a car with trailer going west. In describing the trailer he said: “A trailer like that is kind of out of the ordinary since pick-ups came into use. It was a two-wheeler trailer with a sort of stock bed on it.” He could not tell who the man was that was driving, because his back was to him.

Earl Baker testified that he lived about a mile west of Wittman’s pasture; that he had been at a neighbor’s house and was returning home about 2 o’clock in the morning, driving south and east, and noticed a car with a two-wheel trailer east of the Salt Creek Bridge, going west from the George Wittman’s pasture. The trailer had some cattle in it; the one next to him was a spotted cow.

Mrs. Earl Baker testified that on the 23rd day of July, between 2 and 3 o’clock in the morning, she noticed a car and trailer with a cow or some animal with spots on it; that the car was going north towards the Rocky Hill School.

D. Brooks testified that he lived a half a mile west and a mile and a half south of Rocky Hill School; on July 23rd he was awake during the night and about 20 minutes to 3 he saw a car and trailer pass; it was a bright moonlight night, and he noticed it was a two-wheel trailer, unpainted, and he saw a white faced cow; she had her head up.

Servilla Brooks, the wife of D. Brooks, testified that she was at home and noticed a car and a two-wheel unpainted trailer going by, and she decided to go to see if her cows were still in the pen; when she came back she looked at the clock and it was 3 o’clock; the trailer had a white faced cow in it.

James McFarland testified that he lived at Preston; that defendant Jack Morris lived a half a mile south of him; that he is familiar with the car that Jack Morris drives; had seen him pulling a two-wheel trailer and a four-wheel trailer; he was at home Friday night, July 23, and was awake about 4 o’clock; a car stopped in front of his house; he pushed the blind back and looked out and it was Jack Morris’ car, pulling a trailer with two head of cattle in it; the car went south towards Jack Morris’ place.

John Lenox, sheriff of Okmulgee county, testified that he was acquainted with Jack Morris and had occasion to go to his home and Monday afternoon following July 23rd; there saw Jack Morris; saw his car and noticed a two-wheel trailer, which had some indications of having been recently used setting in the yard; there was some rope in the trailer, showing it had been used to tie stock of some kind in the trailer.

On cross-examination he stated: Jack told him where he got the cows he hauled to Tulsa, and told him that a darkey delivered them to his house early Friday morning in a Y-8 pick-up and tried to describe him, but didn’t know who he was; that he bought the cows and took them to Tulsa that day; “the next day I arrested him, the next day I went up to the stockyards and investigated and found he had penned two cows there on Friday; they had been sold and shipped, I found there was no records kept of the brands or descriptions, just weight is the only record they keep at that Tulsa Stock Yards.”

When the state rested a demurrer to the evidence was interposed and overruled.

On the part of the defense Charles Forsythe testified that he was a cattle salesman at the Tulsa Stock Yards; that he was acquainted with Jack Morris, that on July 23rd sold two cows for him, to Niles; one weighed 805 pounds and the other 750 pounds; one was a big tall slim cow and the other a low cow, and both had horns.

M. E. Renfro testified that he lives near Sapulpa; that with two other fellows on a truck, he saw Jack Morris near Sapulpa, and he had two cows in a trailer, that had a flat tire, and they hauled the two cows to Tulsa Stock Yards for $3; one was a big tall dark red cow and the other was a smaller red cow, and they both had horns.

George Caddy testified that he lives at Grayson, had known Jack Morris four or five years; about two years ago sold Morris some cattle; at that time he sold him a red heifer and a red cow, and two or three yearlings.

Mable Morris testified that Jack Morris was her husband, and they lived half a mile south of Preston; that she remembers when Sheriff Lenox was at their place, and previous to that they had taken two of their cows to Tulsa and sold them; one was a pale red cow with long horns and the other was a little red cow with a few spots on her, with horns; that in the suburbs of Sapulpa they had a flat on the trailer; a truck came by and stopped and they looked the cows over and tried to buy them but could not agree on the price, so her husband had them to haul the cows on to Tulsa; they loaded them on the truck and took the cows on; they left the trailer set there and followed the truek on around by Sand Springs to Tulsa, and got there right about noon.

On cross-examination she stated:

“We bought one of the cows from the Central National Bank in Sapulpa last year, and bought one cow from a colored man, named Caddy, about two years ago.”

As a witness in his own behalf, Jack Morris testified that with his wife and little girl, and 13 year old boy, he took two cows to Tulsa, July 23, 1937; left home around 9 o’clock; had a flat at Sapulpa; went back to a filling station and got a man to fix the flat; a truck came by and asked if he wanted to sell the cows, and what he wanted for them; he said $65; the man said “I will give you $55”; he said “No,” the man said, “Well, I will haul them on to Tulsa for $3,” so they loaded them in the truck and he followed them to Tulsa; one was a dark red cow with horns, pretty long, about five years old, a little white on her; the other was a pale red cow, with tolerable long horns, about five years old; that he bought one from the Central National Bank about a year before, and the other from George Caddy about two years before. He further testified that on the following Monday the sheriff came to his place, and wanted to know the road to some man’s place and went on. The following day he came back and said, “Jack, I want you to go to town with me.” I said, “What is the matter, John?” He said: “You took a couple of cows Friday, you didn’t have a good title to.” “I don’t remember what I said. I saw he was serious and I asked him to let me explain where I got the cows, he said, ‘No, you will have to tell that to the judge and jury where you bought those cows.’ We started to town and he asked me where I got the cows, I told him several different places where I got the cows, I thought he was joking me, I told him where I got them finally.

Asked: “Have you ever been convicted of a felony and served time in the penitentiary?” Answered: “No. sir.”

His cross-examination was in part as follows:

“Q. Have you ever been convicted of a felony? A. Explain to me what a felony is. Q. Like receiving stolen cattle? A. Yes, sir, I paid a fine for receiving stolen property. Q. Where were you convicted for that offense? A. Okemah. Q. How long ago has that been? A. It has been a year, I guess, something like that. Q. Anybody else ever seen these cows in your possession that you hauled up there that day ? A. I don’t know, they ought to; they have been running around there. Q. Did you tell the sheriff you bought them off a negro? Answer yes or no? A. No, I didn’t tell him that. Q. Did you tell him you did not know who the negro was, and that he was there at your house about daylight that morning? A. Well, I do not want to tell you wrong. I could not say I did, because I do not remember any such talk as that going on. Q. Now, Jack did you later attempt to identify a negro by the name of Elijah Nash as the negro you bought them off? A. They had a negro in jail there and Mr. Eaton wanted me to go to look at this negro, Mr. Eaton said, ‘Did you ever buy any cow of him?’ and I said I believe I had, but not these two particular cows I had to Tulsa. Q. I will ask you if you didn’t identify Elijah Nash as being the negro that had been to your house with those cows? A. No. Q. And I will ask you if you didn’t attempt to identify a negro that lives down here by the name of Claud Durham, or Arthur Johnson as being the negro you bought them off of? A. No, sir. Q. You never told anybody you bought these cattle off Elijah Nash or Arthur Johnson? A. No, sir, I told Mr. Eaton I bought cattle I thought from Nash, but not these two particular cows, I told him where I got the cows. By Mr. Eaton: Now we will introduce a stipulation. By Mr. Hays: It was his witness and we agreed to what he would testify and I want it introduced.”

Thereupon the following stipulation was read to the jury:

“It is stipulated in case No. 3891, State of Oklahoma v. Jack Morris, it is agreed and stipulated that if the witness, Antone Copenhaver, were present he would testify as follows: That on Wednesday previous to July 23rd, 1937, the defendant, Jack Morris, came to his sales barn in Okmulgee between sundown and dark; that the defendant, Jack Morris, wanted to rent a pickup car or truck from Antone Copenhaver to haul cattle which he said he was going to get from his brother at Weleetka; that witness told Jack Morris that he would rent him a truck but that witness insisted on furnishing the driver, and the defendant, Jack Morris, replied that he would see his brother and probably see witness later, but that he never came back; that witness has furnished a truck to defendant on other occasions but always furnished the driver.”

In rebuttal John Lenox, recalled, testified:

“Q. Did Jack Morris tell you that he bought these cattle in question of Mr. Henley at the bank and one off a negro at Grayson? A. No, sir, he didn’t say he bought them from those men. Q. Did he ever tell you he bought any cattle from the bank or a negro at Grayson? A. No, sir, he told me he didn’t know the negro’s name he bought them from.”

H. S. Christian, deputy sheriff, testified that he had known Jack Morris four or five years; went with Sheriff Lenox to Preston to bring him down; that after they arrived here he called lawyer Eaton to make his bond; they made the bond and he went home and came back the next morning; that Elijah Nash was in jail at that time, and Jack Morris asked to see him; he said he got a cow off a negro and could identify him if he could see the negro that sold him the cattle involved in this action. “I called the negro down and Jack Morris said he was the negro he got the cows from, he said he bought only-one cow from him that morning.”

At the close of all the evidence counsel for the defendant moved the court “to instruct the jury to return a verdict of not guilty for the reason that the state has wholly failed to make out a case against the defendant.” Which motion was overruled. Exception reserved.

The sole question to be considered is whether the facts proven warrant the conviction; in other words, is the evidence as a matter of law insufficient to sustain the verdict of the jury?

The commission of the crime was proved by uncontroverted evidence, and it is undisputed that the cows in question were taken from the owner’s pasture and loaded on to a two-wheel trailer; that between midnight and morning on the date alleged a car with a two-wheel trailer with two head of cattle in it was seen by several parties at separate places on the highway between the pasture and the defendant’s home near Preston. A witness for the state, James McFarland, testified that Jack Morris lived a half a mile south of him; that about four o’clock that morning he saw Jack Morris’ car pulling a two-wheel trailer with two head'of cattle in it, passing his home, going towards Jack Morris’ place.

The evidence for the state as to the defendant’s explanation of his possession of the two cows he sold at the stockyards at Tulsa on the date alleged, and his voluntary statements to the effect that he purchased said cows at his home place that morning from a negro whose name he did not know, was not directly denied.

We regard the circumstances established against the defendant amply sufficient to sustain the verdict. Where a conviction rests upon circumstantial evidence, and circumstances are proven from which the reasonable and logical inference of guilt clearly arises, and which exclude any reasonable hypothesis except the guilt of the accused, although the evidence is conflicting this court will not disturb the verdict for insufficiency of the evidence. Halbert v. State, 35 Okla. Cr. 329, 250 P. 436.

A question merely of fact is presented by the evidence, dependent wholly upon the credibility of the witnesses and the weight of their evidence. There could be no case suggested presenting a matter more proper for the decision of a jury. The jurors are the sole judges of the credibility of the witnesses who testified before them; and they are not bound to, nor can they be compelled to, credit the testimony of any witness, whether contradicted or not.

In the opinion of this court, there was sufficient evidence to warrant the jury in returning a verdict of guilty, and, the jury being the tribunal upon which by our Constitution and laws is especially imposed the duty of weighing the testimony, and having so weighed the testimony and found against the defendant, it is not the province of this court to disturb their verdict.

No other reason for reversing the judgment being urged, and no substantial error appearing in the record, the judgment of the district court of Okmulgee county herein is affirmed.

BAREFOOT and DAVENPORT, JJ., concur.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    ED BOOTH et al. v. STATE.
    No. A-9357.
    Oct. 6, 1939.
    (94 P. 2d 846.)

      A. L. Commons, H. E. Chandler, and J. G. Austin, all of Miami, for appellants.
    Mac Q. Williamson, Attorney General, and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

On information filed in the county court of Ottawa county, April 21, 1937, charging that Ed Booth and Roy Nance did in said county have in their possession in excess of thirty pints of whisky, gin, and other intoxicating liquors with the unlawful intent to sell the same, they were tried and convicted.

Separate motions for new trial were duly filed, presented and overruled. Motion in arrest of judgment was made and overruled.

May 22, 1937, the court rendered judgment in accordance with the verdict, and each defendant was sentenced to pay a fine of $125 and to be confined in the county jail for 30 days. To reverse the judgment they appeal.

A number of errors are assigned and argued, only two of which it is deemed necessary to consider.

That the court erred in overruling the defendants’ challenges for cause to jurors summoned as talesmen, and in overruling their challenge to the jury panel.

That the court erred in overruling the defendants’ motion to suppress the evidence alleged to have been obtained by an unreasonable search and seizure, by means of a search warrant issued without probable cause, for the reason that the affidavit upon which said search warrant issued was based upon hearsay information, belief and conclusions of the affiant, and that said affidavit and search warrant for the reasons herein stated are illegal, null and void.

The record discloses that on the day on which the information in this case was filed, an affidavit to secure a search warrant was made and signed by Walter L. Young, sheriff of Ottawa county, before John H. Venable, county judge. The search warrant was issued by said county judge, acting as a magistrate, and was served and a certain quantity of liquor found at the private residence occupied as the home of Ed Booth, he not being at home, but Mrs. Booth was there. The defendant Roy Nance being there, said Nance was arrested and the information filed. Indorsed thereon were the names of Walter L. Young, I. W. Ellis, Roy Denman, Joe Hobson and Milton McCullough. The first being sheriff of Ottawa county; Denman and Hobson being deputy sheriffs, Milton McCullough, undersheriff, and I. W. Ellis, chief of police.

The record shows that of the 18 notices sent out to report for jury service, one named was deceased, and one had left the state, which left a panel of 16 jurors; four of whom were excused the first court day, and five of whom were later excused; that before this case was called for trial the court ordered an open or special venire to be summoned by the sheriff from the body of the county.

It appears that after the state and the defendants had exercised their first peremptory challenges, the state waived its second, and the defendants exercised their second, and after the court had sustained certain challenges for cause, the court over the objection of the defendants made the following order:

“Mr. Young, it appears that what jurors we have are insufficient to complete the panel in this case. It becomes necessary for us to have probably two more jurors, and I ask you to go out and summon two jurors to report here at once.”

In response to the summons by the sheriff, two tales-men appeared and were duly sworn on their voir dire, thereupon each claimed exemption from jury services, as being over 60 years of age, and were excused. The court then made the following order:

“That the sheriff or some of his deputies is hereby instructed to go out and get from the body of the county two more who may be jurors in this case. The Court: Now, if any objection to that make it known at this time. Mr. Commons: Come now the defendants and each of them and object to the sheriff or his deputies, to wit: Milton McCullough, Joe Hobson and Roy Denman, summoning the jurors for the reason their names were indorsed upon the information as witnesses in this case.”

Objection overruled.

“The Court: Proceed, Mr. McCullough, and bring the jurors in, as I construe the law I have no authority to deputize any body. Mr. Commons: To the order and ruling of the court the defendants and each of them except.”

In response to the summons served by undersheriff, McCullough, John Blythe and Charles Kappel reported as jurors and qualified on their voir dire. The defendants, having exercised their third and final peremptory challenge, filed a motion to quash the jury panel herein on the ground that the last two jurors called were not summoned as provided by law, in that the officer who summoned the talesmen, who qualified as jurors, was a material witness against the defendants, and his name was indorsed upon the information. Which motion was overruled. Exceptions reserved.

Thereupon the jury was sworn to try the case.

Our Procedure Criminal provides, sec. 2987, 22 Okla. St. Ann. § 639:

“When the panel is formed from persons whose names are not drawn as jurors, a challenge may be taken to the panel on account of any bias of the officer who summoned them, which would be good ground of challenge to a juror. Such challenge must be made in the same form, and determined in the same manner as if made to a juror.”

It has been repeatedly decided by this court that:

“It is essential to the fair and impartial administration of justice that an open or special venire should be summoned by an officer who is not disqualified by reason of interest, bias, or prejudice.” Koontz v. State, 10 Okla. Cr. 553, 139 P. 842, Ann. Cas. 1916A, 689; Liddell v. State, 18 Okla. Cr. 87, 193 P. 52, 16 A.L.R. 405; Lyde v. State, 21 Okla. Cr. 426, 209 P. 226; Roof v. State, 34 Okla. Cr. 145, 245 P. 666; Leigh v. State, 34 Okla. Cr. 338, 246 P. 667; Hammock v. State, 52 Okla. Cr. 429, 6 P. 2d 16.

In the case of Lyde v. State, supra, it is said [21 Okla. Cr. 426, 209 P. 227]:

“This statute is well calculated to guard against hand-picked juries by officers who might be inclined to select individuals whose inclinations and prejudices would cause them to favor a conviction. This court has recently held, in the case of Liddell v. State, 18 Okla. Cr. 87, 193 P. 52, 16 A.L.R. 405, in a well-written opinion by Judge Matson, that it is essential to the fair and impartial administration of justice that an open or special venire of jurors should be summoned by an officer who is not disqualified by reason of interest, bias, or prejudice, and that where the sheriff who serves the open or special venire of jurors is a material witness for the state, and a challenge to the panel of such open venire is interposed, it is prejudicial and reversible error for the trial court to overrule such challenge, citing Koontz v. State, 10 Okla. Cr. 553, 139 P. 842, Ann. Cas. 1916A, 689. This principle has also been stated and upheld in Shepherd v. State [35 Okla. Cr. 405], 192 P. 235; Hisaw v. State, 13 Okla. Cr. 484, 165 P. 636; Harjo v. United States, 1 Okla. Cr. 590, 98 P. 1021, 20 L.R.A. (N.S.) 1013.” .

Constitutional provisions, sections 19 and 20 of the Bill of Rights, secure the right of one accused of crime to demand a trial by an impartial jury without regard to the name or grade of the offense.

The right of “trial by jury,” secured by the first clause in section 19 of the Bill of Rights, includes the elements of trial by jury as they were known and understood by the framers of the Constitution and the people when they adopted it.

The constitutional guaranty of an impartial jury is as follows:

“In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed.” Const. art. 2, sec. 20, Okla. St. Ann. Const. art. 2, § 20.

Under this provision the defendant in a criminal case has a constitutional right to the deliberation and determination of an impartial, unbiased and qualified juror, and not only of one such juror, nor eleven, but twelve men of that class. To deprive him of the legal right to an unbiased and impartial finding on the evidence, which may be in his favor, is to inflict upon him an injustice of the rankest kind, if he has not in some manner waived the departure from the legal course of procedure. Carr v. State, 65 Okla. Cr. 201, 84 P. 2d 42-47.

The framers of our Constitution, in which this right is so sedulously guarded, well knew that a trial by jury afforded the best protection for innocence and the surest mode of punishing guilt ever devised or conceived by the mind of man. Ex parte Johnson, 13 Okla. Cr. 30, 161 P. 1097.

It follows from what has been said that the trial court erred to the prejudice of the substantial rights of the defendants in overruling their challenges for cause and in overruling the motion to quash the panel of the special or open venires of jurors summoned by the sheriff and undersheriff.

The remaining question is whether or not the court erred in overruling the defendants’ motion to suppress the evidence.

The question involved is whether the case should be remanded for a new trial or with direction to dismiss.

When the case was called for trial the defendants filed a motion to suppress all the evidence which the state seeks to use on grounds which may be summarized as follows: That the evidence was illegally obtained by means of an unlawful search of the residence of the defendant, Ed Booth, in that the affidavit upon which the search warrant issued does not sufficiently describe the place to be searched or the thing to be seized, as required by law; that said affidavit is based upon information, belief and conclusions of the affiant, and is insufficient to show probable cause, supported by oath or affirmation; that the search and seizure in executing the search warrant issued thereon and the arrest thereunder were alike unlawful and made in contravention and violation of the constitutional rights of the defendants as declared in the provisions found in the Federal and State Constitutions against unreasonable searches and seizures. U.S.C.A. Const. Amend. 4; Okla. St. Ann. Const. art. 2, § 30. Which motion was by the court overruled.

In the recent case of Yeargain v. State, 67 Okla. Cr. 262, 93 P. 2d 1104, 1107, setting forth an affidavit almost identical, the court held that no facts were stated in the affidavit to support the issuance of the search warrant. In a well-considered opinion by Judge Barefoot, wherein numerous authorities are cited, the opinion concludes:

“The above decisions review the decisions of the Supreme Court of the United States, and other states, upon this question, -and we shall not review them here.
“We are clearly of the opinion, as expressed in the decisions heretofore cited, that where a search warrant is based upon an affidavit made merely upon ‘information and belief,’ and the party making the same has.no actual knowledge of the contents thereof, and no facts are stated in the affidavit to support the issuance of the same, that the search warrant issued thereon is void and that the evidence obtained thereunder cannot be introduced in evidence.
“The case of Ray v. State, 43 Okla. Cr. 1, 276 P. 785, insofar as it is in conflict with this decision, is hereby overruled.”

Under the provisions found in the federal and state Constitutions against unreasonable searches and seizures, it is uniformly held that a search warrant must conform strictly to the constitutional and statutory provisions for its issuance. And no presumptions of regularity are to be invoked in aid of the process under which an officer obeying its commands undertakes to justify.

It has been said that a paper purporting to be an affidavit, but upon which perjury could not be assigned, if it were false, is not in law an affidavit. 2 C.J.S., Affidavits, § 1.

The true test of the sufficiency of an affidavit is whether it has been drawn in such a manner that it might be the basis of a charge of perjury, if any material allegation contained therein is false. 1 Am. Jur. Affidavits, sec. 21.

In Uhlenhake v. State, 58 Okla. Cr. 248, 254, 52 P. 2d 117, 120, it is said:

“Probable cause for the issuance of a search warrant is a mixed question of law and fact, and the true test of sufficiency of the complaint or affidavit to warrant the issuance of a search warrant is whether it has been drawn in such a manner that perjury could be charged thereon if any material allegation contained therein is false.”

The affidavit amounts to the conclusion merely that the law has been violated. No evidential facts are shown. It is impossible to tell from the affidavit or complaint whether or not the place to be searched was the private residence of any person or persons or of a person unknown to affiant.

For the reasons stated the judgment of the county court of Ottawa county herein is reversed and case remanded, with direction to dismiss.

BAREFOOT and DAVENPORT, JJ., concur.


author: BAREFOOT, J.

text:
    E. N. JACKSON v. STATE.
    No. A-9531.
    Oct. 6, 1939.
    (94 P. 2d 851.)

      John M. Goldesberry and Gerald B. Klein, both of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Judson H. Pierce, Co. Atty., of Perry, for the State.
   BAREFOOT, J.

Defendant was charged with the crime of murder in Noble county; was tried, convicted and sentenced to the penitentiary for life, and has appealed.

Defendant was charged with the crime of murdering Carl Swart, his son-in-law, in Perry, Noble county, on the 25th day of June, 1937. The defendant and his wife resided at 725 Grove Street, in the city of Perry. The killing occurred in the street just in front of defendant’s home. The facts, as shown by the record, revealed that deceased had married the daughter of defendant about eight years prior to the time of the homicide. That he and his wife were the parents of three children, all girls. That he had lived in the city of Perry during that time. That defendant and his wife resided in Collinsville and Three Sands, and that about two years prior to the homicide, they had come to Perry, at the request of deceased and his wife. That the daughter had been sick, and they came to help her and assist in taking care of the three children. That for some time they lived in the home of deceased, who had a business in Perry. Afterwards, and at the time of the homicide they were living at 725 Grove street. There had been some estrangement between deceased and his wife, and the defendant and his wife had possession of the three children on the date of the killing, June 25, 1937.

The eyewitnesses to the killing were the defendant, his daughter, the wife of deceased, who did not testify in the case, and three ladies, who testified for the state. These witnesses were Mrs. Daisy Hayes, Mrs. Ted Mullica, and Helen Mosena. Mrs. Mullica lived directly opposite, and on the south side of the street from where defendant resided. Mrs. Daisy Hayes worked for Mrs. Mullica, and Helen Mosena worked for Mr. and Mrs. H. L. Johnson, who resided on the south side of the street, and the second door east of the Mullica residence.

Mrs. Hayes was sitting near the front door at the time of the killing. She saw all of it, and Mrs. Mullica came to the door, and saw practically all of it. Helen Mosena was working in the yard during the afternoon, and witnessed all of the events leading up to the killing of deceased by defendant.

The testimony of Mrs. Daisy Hayes was, that she had been to town in the forepart of the afternoon, but returned about 4:00 p. m. That she was sitting looking out at the door and rocking the baby when she saw a Chevrolet pick-up drive up in front of the home of the defendant, E. N. Jackson, between 5:30 and 6:00 o’clock, on the evening of June 25, 1937. That she did not notice anyone get out of the car, but that in a very short time she saw the wife of deceased and defendant come out of the front door of defendant’s home. That there was an apparent scuffle between them, and defendant proceeded toward the automobile in which deceased was sitting in the street, and near the curb. That defendant was walking fast. That he went to the right hand, or north side, of the car opposite where deceased was seated. That he leaned over into the car, but did not get into same. As he leaned into the car his daughter took hold of him and he jerked away. That he then went to the front of the car and to the west around the hood of the car, and was standing just to the right of the left front wheel. That deceased got out of the pick-up backwards and with his left side toward defendant, and looked as though he was having trouble shutting the door of the car. Just as deceased got out of the car she saw defendant raise his hand and shoot deceased with a pistol which he held in his hands. She saw the shot hit deceased, and saw his left hand fall limp. The deceased then started toward the back of the pick-up, with his back turned toward defendant, and she saw defendant fire the second time, and defendant began to fall. Another shot was fired after defendant had fallen. She could not say whether four shots were fired. There might have been two of them close together. She did not see the deceased with anything in his hand, nor did she see him make any demonstration of any kind toward defendant, and did not see him start toward defendant. She saw the body of deceased, which was about twelve feet from the back of the Chevrolet pick-up and to the east. It was lying on the side with his head to the north near the parking. She saw the wife of deceased go to the body and pick him up and place him on his back. She also saw some party pick up the iron bar, about four feet long, and which was used as a tool to take tires from automobile wheels, lying near the body of deceased.

The testimony of Mrs. Hayes was corroborated almost in every detail by Mrs. Mullica. She was sitting in the same room with Mrs. Hayes, and when her attention was called, she went to the front door and witnessed all of the difficulty. She witnessed the shooting, and saw no demonstration of any kind by the deceased. She saw defendant fire the first shot that struck deceased in the left arm, and then saw two shots in rapid succession while deceased had his back to defendant and was attempting to get away to the east. She heard deceased say: “My God, give me a chance.”

Helen Mosena was standing in the yard about 2:30 p. m., on the date of the homicide, changing the water. She saw a Chevrolet pick-up drive up in front of the Jackson home and stop. She saw the wife of deceased get out of the car and go into the house and stay a few minutes, and return and get in the car and they drove away. She was again in the yard changing the water when the same pick-up drove to the front of the house and stopped between 5:30 and 6:00 p. m., on the same date. She saw the wife of deceased get out and go into the house and in a few minutes saw defendant come out of the door and in a fast walk or run go toward the car. She thought defendant got into the car on the right or north side, but she saw him walk around the hood of the car to the west, and saw deceased get out of the car, and saw defendant shoot deceased with a pistol. She testified that deceased was running away from defendant at the time the shots were fired, and that he had his back to defendant. She did not see anything in the hands of deceased, and did not see any demonstration of any kind on his part toward defendant. She did not go to the scene of the difficulty at any time.

Fred Peden, a police officer, answered a telephone call, and arrived at the scene of the difficulty a very few minutes after the shooting. He saw the body of deceased, and it was lying on its back in the street about 12 feet from the back of the pick-up, with his head to the north just resting on the edge of the parking. He saw a piece of iron about four feet in length, that was used to take casings from automobile wheels laying by the side of the deceased. He immediately went into the house of defendant, and told him it would be necessary for him to go with him to jail. That defendant was changing clothes. That he asked defendant for the gun, and that defendant went to a dresser drawer and got the same and gave it to him, and that he delivered the gun and the defendant to Deputy Sheriff De Vilbiss, who had come to the scene of the difficulty. The iron bar was also delivered to the deputy sheriff. Defendant was immediately placed in the county jail.

Deputy Sheriff De Vilbiss testified to the general surroundings, and to seeing the body of deceased lying in the street, and seeing the iron bar lying by the side of the body of deceased. He also testified that the gun had four empty shells in it that had been fired, and two that had not been fired. One of these had been snapped and had failed to fire.

A plat drawn by an engineer showing the proper location of the premises was introduced in evidence.

Certain photographs which were taken subsequent to the killing were offered in evidence, but excluded by the court.

The undertaker, Mr. Bernhart, and Dr. Driver testified as to the location of the wounds on the body of deceased. They did this by illustrating on the body of the county attorney, and from the record it is hard to state the exact locations. But from their testimony it is shown that one of the shots entered the left arm, and was found in the center of the chest. Another entered the left side of the body, and came out on the opposite or right side. One entered under the right shoulder blade. Its location or exit was not shown.

The defendant testified that he had lived in Oklahoma for more than 40 years. That he had been a farmer, stock raiser, and in the cattle business until 1920, when the crash broke him. That he was married and had two children, a boy named John, and a girl named Zella, who had married deceased, and that they had three little girls. That he and his wife moved from Collinsville to Perry at the request of deceased and his wife, principally to be with and help take care of his daughter and her children. That he worked at anything he could get to do. That he had been working for a Mr. Leatherock from the 15th of March to the date of the killing. That on that date his daughter, the wife of deceased and her three children were staying at his home, and had been there for a couple of weeks. That about 2 or 3 p. m. he received information by telephone from Mrs. Miller, a neighbor, that deceased was at his home and that his wife desired him to come home. That he went immediately but he had left. That he returned to his work and came home a little after 5 o’clock, and went to the grocery store, and when he returned home, and while his wife was preparing supper, the deceased drove up in his Chevrolet pick-up in front of his home. That he saw his daughter get out of the car and come into the house and she was talking to her mother. That he was watching deceased, and that he walked to the dresser behind the door and took the gun out of the dresser drawer, and put it in his pocket, and walked out to the car. That he walked up to the north side of the car, and the door was standing wide open. That he said to deceased: “Carl, I told you and told you time after time I wanted you to stay away from here,” and that deceased said: “I will come up here whenever I want to,” and started to get out of the car on the south side, just backing out. That he had his hand under the cushion as he was getting out, and that he thought he was going to get a gun, and that he immediately went to the front of the car thinking if deceased shot that it would not go toward where his family was. That deceased had gotten out of the car when he got past the car, and was coming toward him with the tire tool raised in his hands, and that he then shot deceased. That deceased was within four to six feet of him with the tire tool raised in his hands, and that he shot him to keep deceased from striking him. That he did not know how many shots were fired. That during the time of the shooting deceased was between the car door and the back of the car. That he did not fire any shots into the body of deceased after he fell. That during the shooting deceased was facing him most of the time. That he did not shoot deceased in the back intentionally. That after the shooting he went back to his house, put his gun back in the dresser drawer, and asked his wife to call the law, and when they did not come immediately he went over to Mrs. Miller’s house and called himself. That he then went back to his home and changed his clothes, and when the police officer arrived he gave him the gun, and went with the deputy sheriff, De Vilbiss, to the county jail.

Mrs. E. N. Jackson, wife of defendant, testified. She did not see any part of the real difficulty. She testified to the deceased coming to the home at 2 p. m., on the date of the killing, and that she requested Mrs. Miller to phone her husband. That he came home and she told him of deceased having been there. She also testified as to the treatment of her daughter by deceased, and of defendant having on several different occasions warned him not to come there. That she saw defendant as he was coming to the house after the shooting, and that she observed the tire tool by the side of deceased.

Several other witnesses testified to minor details, and to seeing the iron bar lying by the side of deceased.

About seven witnesses testified to having heard deceased make threats against defendant to the effect that he would kill him or do him bodily harm, some of which were communicated to defendant, and some that were not.

Counsel for defendant have prepared and filed an able and elaborate brief containing 134 pages. Twenty-nine assignments of error were presented in the motion for new trial. Some have been abandoned, others may be grouped and considered together. Every statement of the county attorney, the trial judge, and the admission or rejection of evidence has been closely contested. It would extend the opinion in this case to an undue length if every item was considered. Many of the assignments of error are so technical it is unnecessary to review them.

We have carefully read the briefs, the case-made, and it becomes necessary, under the law, to look at this case in a general way, and to take into consideration all of the facts and circumstances surrounding this homicide, to come to a correct conclusion, and not to look to some one circumstance or action that may have occurred in the trial thereof.

In the first error assigned it is contended that the action of the county attorney was cause for reversal. Many different acts are. complained of. It is contended that in the opening statement of the county attorney that he referred to deceased as follows: “That he has been raised up in Noble county; has been in business for a great number of years, has always been a peaceable law abiding citizen.” In the first place the opening statement of the county attorney is not evidence in the case, as has often been held by this court. Shacklett v. State, 23 Okla. Cr. 4, 211 P. 1063; Guest v. State, 56 Okla. Cr. 129, 34 P. 2d 1082. In the second place, when counsel for defendant objected the court sustained his objection. Under the circumstances there was no error. It is claimed the county attorney and special prosecutor asked questions out of time and when counsel for defendant was questioning witnesses. This was clearly within the discretion of the court, and we find no abuse of discretion.

In' the trial of the case counsel for the state attempted to introduce certain pictures which had been taken subsequent to the homicide. Many questions were asked of different witnesses in an attempt to lay a predicate for the introduction of the pictures. They were finally excluded by the court for the reason that the body of some one had been placed in the street behind the truck, and the court would not permit them to be introduced. We find nothing in the record to prejudice the rights of the defendant.

While the defendant was on the witness stand he was asked by counsel for the state if he had not made the statement to one A. E. Barnes: “I have a notion at times to go down and kill him.” The defendant denied making the statement,' and the state did not place the witness Barnes upon the witness stand. The record reveals that the name of the witness, A. E. Barnes, was served upon the defendant prior to the trial. It does not disclose why he was not placed upon the stand. No bad faith is shown by the state. While we think that it is improper for the state to ask this question and fail to place the witness upon the stand to whom it was said, if available, yet it is not such an error as to cause a reversal of this case in view of the record herein.

Also, upon cross-examination, counsel for state asked defendant if at the time of the difficulty, if his daughter did not say to him: “My God, what have you done, you are a murderer.” We do not think this was such error as to cause a reversal of this case. The same rule applies to this question as to the one heretofore stated, and we do not think that this was such error as to cause a reversal.

Many other minor questions are raised as to questions asked the defendant on cross-examination. Most of these are wholly without merit, and with reference to matters which were immaterial, and from a review of the whole record were not prejudicial to defendant’s rights. Special reference is made to the cross-examination of defendant, with reference to a certain statement made by him, in writing, to the county attorney, soon after the difficulty. We have carefully examined the record and do not find any substantial error in reference thereto.

It is also complained of the closing argument of the county attorney where he referred to “rattlesnakes and copperheads.” The court sustained an objection to this argument and instructed the jury to disregard and not consider the same. We do not find any error in this.

It is next assigned as error certain rulings of the court during the progress of the trial. While defendant was a witness in his own behalf, he was asked why he moved from Collinsville to Perry, and the court sustained an objection to this question. It was wholly immaterial as to the facts in this case. The court permitted his wife to testify to these facts and was clearly before the jury as to why they moved to Perry.

There was much testimony attempted to be offered as to quarrels and bickering and family disturbances between defendant and his wife and deceased. Also as to the treatment of the wife of deceased by him. Much of this testimony was permitted to be introduced. Much of it was excluded as immaterial. We have carefully examined the record, and do not find any substantial error in excluding the testimony offered by defendant.

As the trial court stated:

“* * * Assuming all of the things mentioned in the offer of the defendant are true, it would do no more than to establish that there was ill feeling between the defendant and the deceased, and that is already in evidence; that is, that there was bad feeling between the defendant and the deceased for some time prior to and up to the time of the fatal difficulty.”

It is next urged that the court erred in certain statements made at the trial, and in commenting on the evidence to the prejudice of defendant. In the trial of the case the witness Mrs. Daisy Hayes was asked:

“You have no personal interest in this case one way or the other?”

It is seriously contended by counsel that this question alone should cause a reversal of this case, because no reference had been made that she had a personal interest.

This is clearly without merit as are many of the objections and exceptions of counsel for defendant.

In this case, as heretofore noted, there were three lady witnesses for the state, who were eyewitnesses. During the trial, one of these witnesses was being asked as to her best judgment as to a certain distance, as follows:

“Q. Well, we are entitled to have your best judgment about it. I will ask the court to instruct you to give us your best judgment. The Court: In the first place, it is a matter of common knowledge in court circles and has been my observation, that no lady witness can give time or distance, and I don’t like to force them to try to do so. Now, she has described how it happened, and — you know the difference between a second and a minute? A. Yes. Q. A minute is a long time under circumstances like we have talked about? A. Yes. Q. With that in mind, can you tell the attorney in response to his question how many seconds it was? A. No, I couldn’t. Mr. Goldesberry: I want to respectfully except to the statement of the court with reference to the court’s experience with lady witnesses, as being prejudicial to the rights of the defendant. The Court: You may have an exception, I would like for the Supreme Court to pass on that; it is such a well-known thing among lawyers and judges, I would just like to know if the Supreme Court would criticize this court for that expression. Mr. Goldesberry: All the object I had was just trying to get the facts. The Court: I know what your object'is, you don’t have to explain it at all, and I sometimes engage in a little humor in a trial, T claim that privilege; to break the monotony of the trial I sometimes engage in a little humor and it was more or less humor involved in that, yet I stand on that proposition.”

It is seriously contended that this was such error as to cause a reversal of this case. It is so patent on its face that this was not error that the court should not discuss it, but merely to show the contentions made for a reversal of this case. Many similar objections and exceptions are urged, but we consider it unnecessary to refer to them.

As before stated, we have carefully read the record and briefs in this case. The trial court was exceedingly fair to the defendant during the trial. If there was any doubt in his mind as to the admission of evidence the defendant was given the benefit of the doubt and the evidence was permitted to go to the jury. It is true that there were some discrepancies as to how different witnesses saw this difficulty, but there is no substantial difference in the testimony of the eyewitnesses, except that the witness Helen Mosena testified, in her opinion the deceased was running away from defendant at the time all of the shots were fired. These were all proper questions for the jury, under proper instructions of the court. It is universally known that all parties do not see difficulties in the same way.

The testimony of the state was such that if believed by the jury, and they evidently did believe it, defendant was guilty of murder. It is for this court to say from the record in this case that the jury was mistaken. The jury heard defendant’s statement, the evidence of his witnesses, and especially his witnesses as to good character, and those who testified as to threats of deceased toward him. After hearing and seeing those witnesses, and taking into consideration the physical facts, and the witnesses offered by the state, they found the defendant guilty of murder and assessed his punishment in the penitentiary for life. Under the law and the facts this judgment cannot be set aside by this court.

Defendant has excepted to certain instructions given by the court. No requested instructions were asked. We have carefully examined the instructions given in this case. They are exceptional, and cover every phase of the law and protect the rights of the defendant in every respect. It is unnecessary for them to be discussed in detail.

For the reasons above stated the judgment of the district court of Noble county is affirmed.

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


text:
    STATE v. ROY LINTHICUM.
    No. A-9498.
    Oct. 6, 1939.
    (94 P. 2d 857.)

      Lewis R. Morris, Co. Atty., and Phil E. Daugherty, Asst. Co. Atty., both of Oklahoma City, for the State.
    Joe Adwon and Don Cameron, both of Oklahoma City, for defendant in error.
   DOYLE, P. J.

This is an appeal taken by the state from the common pleas court of Oklahoma county, upon a question of law reserved by the state for decision of this court in the trial of one Roy Linthicum, who by information filed in said court September 20, 1937, was charged with the illegal possession of half a pint of tax paid whisky, in said county on September 18, 1937.

When the case was called for trial the defendant interposed motion to suppress the evidence. Upon the hearing had the trial court sustained the motion, to which the state excepted, and from said ruling and order of said court an appeal was perfected by filing in this court on April 20, 1938, petition in error with case-made.

No briefs have been filed, apparently for the reason that in the companion case of Linthicum v. State, 66 Okla. Cr. 327, 92 P. 2d 381, the question was answered, wherein this court held:

“Where place to be searched is described in complaint or affidavit and in search warrant issued thereon by a single street number, without naming the owner or any of the occupants, and two or more families reside in separate apartments therein, a search warrant directing the officers to search the premises designated by such single number is void, since in legal contemplation it describes more than one place.”

For the reasons stated, the order of said common pleas court sustaining the motion to suppress the evidence is affirmed and cause remanded with direction to dismiss.

BAREFOOT and DAVENPORT, JJ., concur.


author: PER CURIAM.

text:
    SMITH PARSONS v. STATE.
    No. A-9575.
    Oct. 12, 1939.
    (94 P. 2d 955.)
    Johnson & McGee, of Pawnee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State. ■
   PER CURIAM.

The plaintiff in error, for convenience hereinafter called the defendant, was by information charged in the district court of Pawnee county, Oklahoma, with the crime of drunken driving; was tried, convicted, and sentenced to serve one year in the state penitentiary and to pay a fine of $250.

Motion for a new trial was filed, considered by the court, overruled, and exceptions duly saved; and the defendant appeals.

The record in this case was filed in this court on October 5, 1938. No briefs have been filed in support of the contentions of the defendant, notwithstanding the time for filing of briefs has long since passed. The case was submitted on September 28, 1939, on the record. Since the expiration of the time for filing the briefs, and since the case was submitted on the record, no request has been made, and no reason given why a brief has not been filed.

In the absence of any request to file briefs or a request for an extension of time to file a brief, the court assumes that the appeal has been abandoned, or that counsel representing the defendant has reached the conclusion there are no errors in the record sufficient to warrant a reversal.-

The court has carefully examined the record; and the examination fails to disclose any fundamental errors.

The evidence in the case shows that the defendant was driving on the highway about five or five and one-half miles southeast of Cleveland, Okla., in Pawnee county, and his car collided with a car driven by Lloyd Eisman. The collision demolished the Eisman car; and the defendant’s car was badly damaged. The defendant is a very large man, and had to be pulled out of his car after they succeeded in getting the doors, that were cramped, open. He was in a drunken condition, and had a quantity of whisky in his car.

The evidence is sufficient to sustain the verdict of the jury. The court correctly advised the jury as to the law applicable to the facts.

There being no fundamental errors in the record, the case is affirmed.


author: DAVENPORT, J.

text:
    Ex parte LESLIE DICKERSON.
    No. A-9749.
    Oct. 12, 1939.
    (94 P. 2d 951.)

      Sid White, of Oklahoma City, for petitioner.
    Mac Q. Williamson, Atty. Gen., Sam Lattimore, Asst. Atty. Gen., and Lewis R. Morris, Co. Atty., and Walter Marlin, Asst. Co. Atty., both of Oklahoma City, for respondent.
   DAVENPORT, J.

The petition for writ of habeas corpus is based upon the following facts as shown by the petition and response to a rule to show cause why the writ should not issue:

“Comes now the petitioner showing to the court:
“That this petitioner Leslie Dickerson is a minor, born on the 15th day of January, 1921, and that Edna Potter, nee Dickerson, who joins him herein is his mother and next friend.
“That heretofore and on December 23, 1936, the county attorney of Oklahoma county, Okla., charged or attempted to charge the petitioner Leslie Dickerson before Leo B. White, a justice of the peace, by preliminary information with the offense of burglary in the second degree, alleged to have been committed on the 17th day of December, 1936.
“That thereafter and on the 9th day of January, 1937, said justice of the peace filed with the clerk of the district court of Oklahoma county, Okla., his transcript certifying that the said Leslie Dickerson had waived a preliminary hearing upon said charge.
“That then immediately the county attorney of Oklahoma county, Okla., filed with the clerk of the district court of Oklahoma county, Oklahoma, an information charging or attempting to charge this petitioner with the offense of burglary in the second degree.
“That thereafter and on the 17th day of February, 1937, without any hearing or inquiry to determine the mental status of this petitioner, Honorable George H. Giddings, one of the Judges of said district court of Oklahoma county, Okla., permitted and accepted his plea of guilty, rendered judgment thereupon and by virtue thereof, the respondent Fred Hunt, warden of the State Reformatory at Granite, Okla., is now holding the petitioner confined in said penal institution.
“That said judgment is void and said confinement and restraint without authority of law for:
“That said justice of the peace was without jurisdiction to_ entertain said preliminary information or to commit this petitioner for trial in the district court.
“That the county attorney of Oklahoma county was without authority of law to file any information in the district court of Oklahoma county, Okla., predicated upon said justice’s transcript.
“That the district court of Oklahoma county, Okla., acquired no jurisdiction over the person of this petitioner by reason of said proceedings and was without authority of law to render any judgment based thereupon.
“That the records and files in the district court of Oklahoma county, Okla., fail to disclose any preliminary hearing accorded this petitioner before the Juvenile court of Oklahoma county, Okla.
“That this petitioner was never certified by the juvenile court of Oklahoma county, Okla., to the district court of Oklahoma county, Okla., for trial as by law required.
“That therefore, said district court of Oklahoma county, Okla., never had or acquired any jurisdiction of the person of this petitioner.
“Wherefore, petitioner prays:
“That the writ of habeas corpus issue herein and that upon the trial thereof petitioner’s confinement and incarceration be declared unlawful and he be restored to his freedom.”

It is not disputed that petitioner was under the age of 16 years at the time he was incarcerated; and the petitioner insists that his imprisonment in the State Reformatory at Granite is unlawful, and the said restraint is illegal for the reason that the district court of Oklahoma county had no jurisdiction at the time judgment was pronounced and said sentence imposed; that no certificate was filed with the district court by the juvenile court showing that the petitioner had had a preliminary hearing before the juvenile court, and that the juvenile court had found that he was competent to know the wrongfulness of his acts, and that the juvenile court had reason to believe, and did believe, that there was probable cause to believe him guilty.

In other words, the record fails to show that any certificate of a preliminary hearing, or finding made by the juvenile court was filed in the district court of Oklahoma county, before the information was filed.

There is no dispute as to the age of the petitioner at the time he was incarcerated; and the state does not insist that the juvenile court had filed a certificate of a preliminary hearing in the district court, showing the necessary facts as provided by section 1729, O. S. 1931, as amended by the Session Laws 1935, chapter 14, art. 1, p. 8 of said Session Laws, 10 Okla. St. Ann. § 101.

It is insisted by the petitioner that the purported transcript of the justice of the peace filed in the district court is void, and did not give the district court jurisdiction, where it is undisputed that petitioner is under the age of 16 years at the time the purported hearing was held.

In re John Powell, 6 Okla. Cr. 495, 120 P. 1022, 1023, the court, in considering a similar question to the one involved in this case, held as follows:

“Under the provisions of this act, the juvenile courts are the only courts having jurisdiction to commit children to the training school for boys, and are the only courts having jurisdiction to hear and determine complaints^ against children under 16 years of age for the infraction of any penal statute whatever, until after such juvenile court shall have held the child to be tried in the manner hereinbefore set out. This act repeals sections 8539 and 8543 of Snyder’s Statutes, 10 Okla. St. Ann. § 257, and provides complete proceedings for the disposition of cases arising hereunder.”

In Ex parte Jack Parnell, 19 Okla. Cr. 273, 200 P. 456, this court in the first syllabus stated:

“The act of March 24, 1909 (Laws 1909, c. 14, art. 8), creating the juvenile court and prescribing the jurisdiction thereof, places the jurisdiction to inquire into the matter of the probable guilt and capacity of a juvenile offender to commit crime under the sole original jurisdiction of the county court. In such a case a justice of the peace has no jurisdiction to hold a preliminary hearing, and the district court has no jurisdiction, to proceed against a child charged with a felony until after the juvenile court has affirmatively found that the child was in fact capable of committing the crime charged and that there was probable cause to believe him guilty.”

In Ex parte Dora Bonitz, 30 Okla. Cr. 45, 234 P. 780, this court in the third paragraph of the syllabus stated:

“Under the provisions of the statute establishing juvenile courts and prescribing their jurisdiction and control of delinquent children (sections 8070 to 8089, C. S. 1921, 10 Okla. St. Ann. §§ 101-114, 350, 355), a child under 16 years of age cannot be guilty of the commission of a crime except in cases wherein it is shown and determined by the juvenile court of the county wherein the crime is alleged to have been committed, that such child knew the wrongfulness of his acts at the time they were committed, and such a determination is a necessary prerequisite to the jurisdiction of the district court to try a child under the age of 16 years upon an information charging a felony.”

In Wilson v. State, 65 Okla. Cr. 10, 82 P. 2d 308, in the second paragraph of the syllabus, the court stated:

“Before a district court can obtain jurisdiction to try a male child under 16 years of age, or a female under the age of 18 years, who are charged with a felony, it is necessary for a preliminary hearing to be held by the juvenile court, and for this court to certify to the district court its findings that the child was in fact capable of committing the crime charged, and there was probable cause to believe him or her guilty.”

The question here before this court is whether the district court of Oklahoma county or the officers of the court issuing the process under which the defendant is detained had jurisdiction of the defendant and the subject matter involved, and acted within that jurisdiction in issuing and serving the commitment, incarcerating the defendant in the State Reformatory at Granite; or, in other words, whether the district court had jurisdiction to try the defendant, an infant under the age of 16 years, without first having filed in the district court clerk’s office, where the charge was pending against him, a certificate of a preliminary investigation by the juvenile court of Oklahoma county, showing the probable guilt of the defendant and his capacity to commit the crime.

As to all juvenile offenses, the district court is a court of limited or special jurisdiction, and not a court of general jurisdiction. 23 Cyc. 108, and cases therein cited; 15 R.C.L. 883; Furgeson v. Jones, 17 Ore. 204, 20 P. 842, 3 L.R.A. 620, 11 Am. St. Rep. 808.

The defendant in this case was an infant under the age of 16 years, and without the advantage of advice of counsel, guardian or parent. He was charged with and arrested for burglary in the second degree. He was arraigned on December 26, 1936; and on December 29, 1936, waived preliminary hearing to the charge of burglary in the second degree.

The record of the district court of Oklahoma county fails to show that there was filed in the district court of Oklahoma county a certificate of a hearing from the juvenile court, showing the defendant competent to know the wrongfulness of his acts, and that there was probable cause to believe that he had committed the crime.

Without this proceeding of the juvenile court being filed in the district court, the district court was without jurisdiction to pass on the defendant’s case, receive a plea, and sentence him to the State Reformatory at Granite, Okla.

The application for a writ of habeas corpus is, for the reasons stated in this opinion, allowed; and the warden of the penitentiary at Granite is ordered and directed to hold petitioner, Leslie Dickerson, for a period of 10 days to permit the juvenile court of Oklahoma county to take charge of and exercise jurisdiction over him as provided by law; and upon the failure of said juvenile court so to act within said period, the warden is directed to discharge and liberate said petitioner, Leslie Dickerson.

DOYLE, P. J., and BAREFOOT, J., concur.


text:
    W. H. HOWARD v. STATE.
    No. A-9539.
    Oct. 12, 1939.
    (94 P. 2d 947.)

      J. B. Maxey, of Atoka, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment of conviction rendered in the district court of Atoka county, in pursuance to the verdict of a jury finding W. H. Howard guilty as charged in the information and assessing his punishment at two years’ imprisonment in the state penitentiary. Appellant, W. H. Howard, was charged jointly with H. H. Howard of the crime of larceny of live stock. December 6, 1937, the case came on for trial and the defendants presented to the court their motion for continuance, which was overruled. Thereupon the defendants asked for a severance, which was granted, and the state elected to try defendant, W. H. Howard, first.

The information charges that in Atoka county, on or about the 6th day of July, 1937, “the defendants did in said county and state, at the date above named, willfully, unlawfully, wrongfully, knowingly, stealthily, fraudulently and feloniously take, steal and carry away from the possession of one J. W. Gibbons, one black sow, with one eye out, marked crop in right ear and crop and steeple fork in the left ear; and one white sow, marked crop and small underhack in the right ear and crop and steeple fork in left ear; and one red barrow hog, marked crop and underhack in the right ear and crop and steeple fork in the left ear, and bob tailed, the personal property of the said J. W. Gibbons, without the knowledge or consent and against the will of him, the said J. W. Gibbons, the true owner thereof.”

The evidence shows that on the date alleged, J. W. Gibbons lived on a farm in Atoka county, near the southeast corner of said county, and was the owner of several hogs; that on the evening of Tuesday, July 6, 1937, he missed the three hogs described in the information. He testified that on Friday he found where hogs had been loaded on a wagon; about a half or three quarters northeast of his home; that Saturday morning he went to the sheriff’s office in Atoka and reported the theft of his hogs. Marion Son, deputy sheriff, then went with him to the place where the hogs had been loaded, and they trailed a wagon something like a mile and a half through the woods to the highway. Sunday morning they talked with appellant. He said that on Tuesday he went in the Flower’s field and got some hogs. Marion Son asked him what he did with the hogs, and appellant said he sold the two sows and the bar to a fellow named Wilson, up at Oklahoma City, and cashed the check at Antlers; that he called Mr. Wilson at Oklahoma City and he came down there, and with Mr. Son went with him to see appellant; Mr. Wilson said to appellant: “I understand you say I bought some hogs from you.” Appellant said: T did sell you some.” Mr. Wilson said: “When did you sell them to me?” Appellant said, “About a week or ten days ago.” That on July 19th, Marion Son came to his place and said he had found my hogs at Antlers, and they went to Antlers and found the hogs in Bob Hill and Roy Akard’s lot, he identified them as his property and took them and now has them. That whoever took the hogs took them without his knowledge or consent.

Roy Akard testified that he lived at Antlers, engaged in the business of trading; that with Bob Hill they both looked at W. H. Howard’s hogs and Bob Hill decided he would buy them; that it was a little after sun up when they bought the hogs; that W. H. Howard lives a little south of Farris and it is 16 miles from Antlers to Farris.

R. W. Hill testified that he bought three hogs of appellant; Roy Akard went in on half of them; that he paid W. H. Howard $40 for the hogs; that three or four days later Marion Son came there with Mr. Gibbons; that Bill Barrow, deputy sheriff from this county, was with them, and Mr. Gibbons identified the hogs as being his property and they gave the hogs to him.

Marion Son, deputy sheriff, testified that he went with J. W. Gibbons to investigate the loss of his hogs, and went to see how far we could trail the wagon from where the hogs were loaded, and trailed the wide tire wagon tracks to the road, that he had information that the Howard boys had been down in the bottom on Tuesday, and the following Sunday he talked with appellant.

He further testified:

“I first went over to where he was and left Mr. Gibbons in the car and told him we were looking for some hogs that Mr. Gibbons lost, and told him what mark they had, and I just made the statement to him, The other day when you boys were in the bottom gathering these hogs, how many hogs did you get/ he looked at me a little while and said, ‘We got three’, and I said, ‘What did you do with the hogs/ and he said, ‘Well I sold the two piggy sows to a fellow named Wilson, out of Oklahoma City’; I asked him how he paid him, and he said he gave him a cheek for $14. I asked him if he didn’t remember the man’s name on the check, and he said he just remembered that it was Wilson. I asked him where he cashed the check; he said he cashed it at Antlers, and they charged him a dime for cashing the check, and I asked what kind of truck he was driving, and he said it was a blue International Pick-up. I asked him when he sold him those hogs, and he said, ‘Wednesday, before this Sunday/ ”

That he found that there was a hog buyer by the name of Wilson that lived down by Farris and talked to him, and found out that he had a brother by the name of Wilson that lived near Oklahoma City. That he had Mr. Wilson to come down there, and they went to appellant’s place, and appellant admitted that the Wilson at Oklahoma City had not bought any hogs, but that Bill Wilson, that lived near Farris, had bought some hogs from him and gave a check for $14, and that was a month before, and appellant said that was the last hogs that he had sold; that several days later he went to Antlers and located hogs that tallied with the description that Mr. Gibbons had given him, went to the sheriff’s office and got Bill Gardner to go with him, one of the hogs was in the sale lot and two were in the possession of Mr. Hill, that he told Mr. Hill that he was sure that those were the hogs that he had been looking for, then went straight out and came back with Mr. Gibbons, who identified the hogs as his, and told Mr. Hill the marks on the hogs before he looked at them, then they went back and looked at them and they agreed to turn the hogs to him, Mr. Hill mentioned about making an affidavit and Mr. Gibbons told him he was willing to do that any time he wanted him to.

Bill Wilson testified that he lives 12 miles east of Atoka; that in June he bought two hogs, sandy bars, from appellant and gave him a check for $14.

The defendant called eight witnesses, George Hamlett, Jewell Hamlett, Forney Burchfield, Calvin Standridge, Sam Wood, W. V. Esque, Elisha Parrish and Dave Howe. Their testimony was to the effect that the defendant’s hog mark was and had been for years, a crop to the right ear, crop and steeple fork to the left ear. Several qualified as character witnesses, and testified that W. H. Howard’s reputation in the community where he resided as to being an honest, law-abiding citizen was good.

The joint application of the defendants for a continuance was read to the jury as the deposition of the absent witness, in part as follows:

“That said witness, J. W. Wilkerson, if present, would testify that on about the 25 day of Sept. 1936 he moved into the house which had been formerly occupied by the defendant W. H. Howard. That the said Howard had recently removed from said house but had not yet taken his hogs away. That said hogs were in a pen at said place and witness examined said hogs and offered to buy them from said defendant, but that by reason of objection from the wife of witness at the price, he did not buy them. That witness examined said hogs closely, and there were several hogs in said pen, and among them a black sow marked crop in right ear and crop and steeple fork in left ear, with one eye either out or damaged. That there were also in said pen at said time a red barrow and a light sandy or white sow both marked in the same mark as said black sow. That said hogs were of the exact description of the hogs described in the information filed in this case. That thereafter said defendant hauled said hogs to the place to which he had removed. That thereafter said defendant hauled said hogs from the place to which he had removed to where his brother H. H. Howard lived near Boggy river, and that witness knew when he so hauled said hogs to said H. H. Howard, and knows the hogs described in the information were a part of the hogs he so hauled there. That witness knew the hogs of the said W. H. Howard, ana knew said Howard’s mark, and knows that all said Howards’ hogs were marked with a crop in right ear and crop and steeple fork in left ear.”

The defendant took the witness stand in his own behalf and testified that his mark was a crop to right ear and crop and steeple fork to left ear; that all of his hogs were marked in that way; that he let his brother keep twelve hogs on the halves, and he put an underhack in the right ear of six of his brother’s; that he knows where J. W. Gibbons lives and had seen him twice before this case came up; that the hogs had been turned out on the range and he was down there two or three times after he let his brother have them; that he got word that they were in George Hamlett’s field, and with his brother, Haskell, he went and got them; they caught them, tied them up and then went after the wagon and came and got them; that they caught them about one o’clock, and that night he carried them to Antlers and sold them the next morning; that they got to Antlers about 6 or 7 o’clock; that at that time he had 15 or 20 yet in the bottom, and seven or eight around the house, and he was the owner of the hogs described in the information. That he gave a mortgage on these hogs in which the mark of the hogs mortgaged was not the steeple fork; that the man who wrote it made a mistake and put down a swallow fork; that the hogs were actually marked a steeple fork; that when Marion Son and Mr. Gibbons came-to see him about these hogs Mr. Son called him off to one side and wanted to know if he had been in the bottom after any hogs, and he told him he was last week and caught some hogs in the bottom; that Mr. Son told him the mark, and wanted to know if he had caught any with that mark, and he told him he had. Then he asked: “Who did you sell to?” and he told him, “I sold some to Wilson.” That he never did tell him that he sold the hogs described in the information to Wilson, and he never did tell Mr. Son who he sold these hogs to. That he told Mr. Son he had the hogs caught and tied, and he hauled the hogs out of the bottom in a wagon, going through the bottoms until he hit the hill, and then followed the main road. That when he took these hogs from the range he knew they were his own hogs.

His cross-examination was in part as follows:

“Q. You told Marion Son you sold Wilson two sows? A. I thought they were at that time. Q. How come you didn’t tell him about this Antlers sale — he came back to you two or three times and these two or three times you never told him you sold some hogs at Antlers, did you? A. He got mad and I wouldn’t tell him anything. Q. Here is a chattel mortgage filed in the county clerk’s office, is that the one you have reference to where you have it ‘Swallow fork,’ date December 26, 1936, where it says ‘My entire bunch of hogs of various sizes, ages, colors and sex consisting of thirty head or more in all. Consists of 23 sows, 7 shoats. All marked crop in right and swallow fork in left’? A. I told him to put it ‘Steeple fork.’ Q. That is your mortgage and you signed it there? A. Yes.”

Chattel mortgage introduced as Exhibit “A.”

“Q. Here is another chattel mortgage February, 1935, back there before you signed that one (referring to other mortgage) you signed that? A. Yes. Q. In describing your hogs, ‘my entire bunch of hogs of various sizes, ages, colors, and sex, consisting of ten head or more in all. All marked crop off right and swallow hack and crop off of left ear.’ Do you know how it happened to be ‘Swallow fork’ in that one? A. I traded and bought an old sow that had that. Q. Did the bank make a mistake on that? A. I traded and bought them hogs on that one alright. It had the mark. Q. You say entire bunch of hogs — what about that under-hack in there, how come you didn’t tell the bank about that when you made those mortgages ? A. I let my brother take them on the halves.”

Chattel mortgage introduced Exhibit “B.”

“How far was this bottom from your house ? A. From where I live it was four or five miles, I guess. Q. Have you ever been convicted of a felony and served a term in any penal institution? A. Yes, sir, we was both in jail together right down here.”

Redirect:

“Q. What were you convicted for ? A. Selling liquor. Q. How long ago was that? A. 1935.”

The foregoing substantially shows both the state’s and the defendant’s theory of the case.

The first assignment of error is that the court erred in overruling the defendant’s joint motion for continuance, without requiring the county attorney to admit that the statement of facts in the motion were true. Citing Madison v. State, 6 Okla. Cr. 356, 118 P. 617, Ann. Cas. 1913C, 484.

That case sustained the contention made, but the rule there announced was long since overruled by this court. Hargis v. State, 33 Okla. Cr. 283, 243 P. 986.

It is also contended that the court erred in its rulings in the admission of incompetent evidence, prejudicial to the defendant, over the objection of the defendant. And it is argued that it was error to permit the state to show on defendant’s cross-examination that he had once been in a federal prison for selling intoxicating liquor, in that said offense does not carry with it that character of moral turpitude contemplated by law.

It is well established that conviction for a violation of the prohibitory liquor law may be shown for the purpose of affecting the credibility of the witness. Sec. 268, 12 Okla. St. Ann. § 381; Graham v. State, 28 Okla. Cr. 266, 230 P. 763; Gore v. State, 25 Okla. Cr. 214, 219 P. 153; Forester v. State, 36 Okla. Cr. 111, 252 P. 861.

It is also insisted that the court erred in giving certain instructions.

An examination of the record shows that no objection was made or exception taken to the instructions given by the court, and we find that the instructions so given fully and correctly covered the law of the case, and were as favorable to the defendant as he could have demanded.

Finally it is insisted that the verdict is contrary to law and is not sustained by the evidence.

This court has held repeatedly that it has no power to reverse a judgment of conviction upon the ground that the verdict is not supported by the evidence, unless there is no substantial evidence tending to show the guilt of the defendant, or that the evidence so far fails to support the verdict that the necessary inference is that the jury must have acted from passion or prejudice, or have been controlled in reaching their verdict by undue influence.

In this case there is a direct conflict in the testimony for the state and that for the defense. The evidence for the state is sufficient, if believed by the jury, to authorize the conclusion that the defendant stole, as charged in the information, the three hogs, the property of J. W. Gibbons. If the testimony for the defendant is true, he should have been acquitted.

The trial court and the jury had all the witnesses before them and heard them testify and they decided that the defendant was guilty. It was for the jury to judge of the weight of the evidence, and the credibility of the witnesses and it is not for this court to substitute its judgment on the question of the weight of the evidence for that either of the jury or the trial court.

As we view the evidence the hogs in question were sufficiently identified as the property of the alleged owner, and it cannot with propriety and due respect for the law be held that there is an absence of competent evidence on which to base the conviction. The case was ably prosecuted and ably defended. It is seldom a record so free from error is presented to this court for review.

Our conclusion is that appellant had a fair trial and no error requiring a reversal is shown. The judgment of the district court of Atoka county herein, is therefore affirmed.

BAREFOOT and DAVENPORT, JJ., concur.