text:
    JOHN SMITH v. STATE.
    No. A-4488.
    Opinion Filed Sept. 2, 1924.
    (228 Pac. 523.)
    (Syllabus.)
    1. Evidence — Corroboration Necessary If Evidence Raises Reasonable Doubt as to Whether Witness Accomplice.' It is error to instruct the jury that, if they find from the evidence, beyond a reasonable doubt, that a certain witness is an accomplice of the defendant, it is necessary for the state to corroborate such witness’ testimony. In this jurisdiction the rule is that, if the evidence raises a reasonable doubt of whether or not the witness is an accomplice of the defendant, it is necessary for the state to corroborate such witness’ testimony.
    2. Appeal and Error — Prejudicial Error — Instruction Authorizing Conviction for Sale of Liquor to Three Persons, or Any of Them. The information charged a sale of intoxicating liquors by the defendant, jointly, to T. C., C. S., and O. W. The evidence was conflicting as to whether the defendant sold the liquor to T. C. individually, or to T. C. and C. S., or whether he made a sale to anybody. The trial court instructed the jury that a conviction could result, should the jury find that the defendant sold the liquor to the parties, named,- collectively, or to either of them. Under the facts, if the sale was made to any person other than T. C., then T. C. became an accomplice of the defendant, and it was necessary for the state to corroborate T. C.’s testimony in the manner provided by the statute, on corroboration of an accomplice. The jury returned a general verdict of guilty. Held, inasmuch as the court cannot determine from the charge, the instructions, and the verdict whether or not the jury found the defendant guilty of a sale to T. C. alone, or of a sale to all parties collectively, or of a sale to C. S. alone, or of a sale to O. W. alone, the instruction above referred to, together with that given by the court on the necessity of the corroboration of an accomplice, is prejudicial error.
    Appeal from County Court, Jackson County; J. M. "Williams, Judge.
    John Smith was convicted of the unlawful sale of whis-ky and sentenced to pay a fine of $50 and to serve one month in the county jail, and he appeals.
    Reversed and remanded.
    E. E. Gore, for plaintiff in error.

      The Attorney General and J. Roy Orr, Asst. Atty. Gen., for the State.
   MATSON, P. J.

The plaintiff in error, John Smith, hereinafter referred to as defendant, was convicted on the 7th day of July, 1922, of having sold on the 16th day of December, 1921, certain intoxicating liquor, to wit, whisky. The information alleged the sale to have been made to Ted Carroll, Cecil Stovall, and Orb Woods. The jury returned the following verdict:

“We, the jury impaneled and sworn to try the issues in the above-entitled cause, do, upon our oath, find the defendant guilty and leave the assessment of his punishment to the court.”

The court rendered judgment on the verdict and assessed the punishment as above stated. Among the instructions given are the following:

“(2) In a criminal case the defendant is presumed to be innocent until his guilt is established by legal and competent evidence beyond a reasonable doubt, and if, upon a consideration of all the evidence, you still have a reasonable doubt as to the defendant’s guilt you must acquit him. This reasonable doubt pertains to every material issue raised in the case. Now, if you should find from the evidence beyond a reasonable doubt that the defendant, John Smith, did, on or about the 16th day of December, 1921, or within any time within one year prior to the filing of this information, sell intoxicating liquor, to wit, whisky to Ted Carroll, Cecil Stovall, and Orb Woods, or to either of them, then you should find the defendant guilty and so state by your verdict.
“(3) You are further instructed that if you should find from evidence beyond a reasonable doubt that Ted Carroll was engaged with the defendant in the purchase and sale of the liquor in question he would be what is known as an accomplice, as to the sale to Stovall and Woods, but not as -to Carroll. Now, an accomplice is one who is in any way concerned or engaged with another in the commission of a crime. You are instructed that a defendant cannot be convicted on the uncorroborated testimony of an accomplice. Now, if you should find from the evidence beyond a reasonable doubt that said Ted Carroll was engaged with the defendant, Smith, in the sale of whisky, then you could not find the defendant guilty as to the sale to Stovall or Woods on the uncorroborated testimony of Carroll, but that in order to convict the defendant, as to the sale to Stovall and Woods, the evidence of Carroll would have to be corroborated by other testimony, which, together with all the other evidence, must satisfy you of the guilt of the defendant. Such corroborating evidence need not be direct, but it should be such as would connect, or tend to connect, the defendant with the commission of the offense, and this corroborating evidence is not sufficient if it merely shows the commission of the offense. But, if there is other evidence of other witnesses who testified to facts substantially to the same effect as the witness Carroll, if you should find that they did so testify, then you must consider said evidence as corroborative of the witness, Carroll.”

To the giving of each of the foregoing instructions the defendant objected, and was allowed his exceptions.

Ted Carroll, the prosecuting witness, testified substantially that he, Orb Woods, and Cecil Stovall made up a sum of money, and that hd took this money and went with the defendant, John Smith, to a mail box, not far distant from a residence where there was then being held a country party and dance, in Jackson county, Okla., on or about the 16th day of December, 1921, and that the defendant, John Smith, ran his hand into the mail box and got a jar of whisky and handed it to him (Carroll) and that he (Carroll) paid John Smith the sum of $2.50 for the same; that Cecil Stovall was present at the time.

The defendant testified that Carroll, the prosecuting witness, spoke to him in the yard where the dance was being held, and said, “Come on, John, let’s go and see that party,” and that Carroll then took the defendant to the mail box and got the whisky and gave the defendant a drink of it; that the defendant never sold Carroll any whisky in the presence of Stovall or of anybody else; that the defendant never made any sale to Carroll, Stovall,' and "Woods jointly. Stovall was not present at the trial.

We deem it unnecessary to consider all the assignments of error. The information charged a sale jointly to Carroll, Stovall, and Woods. There is no evidence to support a sale by the defendant jointly to these three parties. There is evidence, however, to support a conviction for a sale made to Carroll alone. The allegations of the information are perhaps sufficient to support a conviction, had it been for a sale to Carroll alone, but such is not this case. The trial court did not limit the jury to a consideration of the evidence supporting a conviction of the defendant as to a sale to Carroll alone, as in the instructions given the court told the jury that they might convict the defendant if they believed, beyond a reasonable doubt, he sold whisky to Carroll, Stovall, and Woods, or to either of them. Further, the court in legal effect told the jury that before an acquittal should! result as to a sale by the defendant jointly to Carroll, Stovall, and Woods they must believe, beyond a reasonable doubt, that Carroll was an accomplice of the defendant in making such sale, in that he aided and abetted therein; that in such event it was necessary for the state to corroborate the testimony of the accomplice.

In this jurisdiction, proof beyond a reasonable doubt that one is an accomplice of the defendant is not required. If the evidence raises a reasonable doubt as to whether or not the witness is an accomplice of the defendant, it is necessary for the state to corroborate such witness’ testimony.

The jury returned a general verdict of guilty, so that it is impossible for this court to say whether the jury, under the instructions given, found the defendant guilty of a sale to Carroll individually, to Stovall individually, or to Woods individually, or whether the jury found the defendant guilty of a sale jointly to these three parties. If the jury had found the defendant guilty of a sale to Carroll alone, the error complained of in instruction No. 3 would have been cured by the verdict. Inasmuch as the jury did not return such a verdict, and inasmuch as this court cannot determine whether the jury found the defendant guilty of a sale to Carroll, or of a sale to all three of these defendants, in which event, under the evidence, Carroll would have been an accomplice. The error herein pointed out in the giving of instruction No. 3 cannot be said to be harmless.

For such reason the judgment is reversed, and the cause remanded to the trial court for further proceedings not inconsistent with this opinion.

BESSEY and DOYLE, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    PETE TRO v. STATE.
    No. A-4477.
    Opinion Filed Sept. 2, 1924.
    (228 Pac. 530.)
    (Syllabus.)
    Evidence — Intoxicating Liquors — Sufficiency of Circumstantial Evidence — Conviction for Unlawful Manufacture of Liquors not Sustained. Where circumstantial evidence alone is relied upon, the circumstances must be such as to preclude every reasonable hypothesis other than that of the guilt of the defendant of the offense charged to sustain the conviction. For evidence held insufficient to sustain a conviction for manufacturing beer and whisky, see body of opinion.
    Appeal from County Court, Roger Mills County; E. E. Tracy, Judge.

      Pete Tro was convicted of the unlawful manufacture of intoxicating liquor, and be appeals.
    Reversed.
    W. H. Mouser, for plaintiff in error.
    George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from the county court of Roger Mills county, wherein, on the 22d day of August, 1922, plaintiff in error, Pete Tro, was convicted of the crime of unlawful manufacture of intoxicating liquors, and his punishment fixed at a fine of $400 and imprisonment in the county jail for 30 days.

The information charged that the defendant manufactured intoxicating liquor, to wit, beer and whisky and other intoxicating liquors; the exact amount being unknown to the county attorney.

The evidence is substantially as follows: R. E. Brown testified that he was the.sheriff of Roger Mills county on the 8th day of February, 1922; that he searched Pete Tro’s place, which is located in said county; that a deputy sheriff was with him; that there were two houses on the place, one of them a part dugout; that he saw the defendant at the house, and told him he was there to search it, and the defendant said, “All right”; that the dugout was about 10 feet from the house; that witness went into the house to search, and when he came out of the house defendant was coming out of the dugout carrying a sack; that defendant ran off a piece with the sack and ripped the sack open; that witness got the sack and gathered up some of the stuff that had been poured out of it and then went into the dugout, where he found an old beer keg and some liquid on the floor of the dugout, which witness said he thought was choc beer. Further the witness testified as follows (quoting from the record):

“Q. You are prepared to tell this jury that that was choc beer? A. I am not sure, but that was what some claim it to be, but I’m not up on to those things very well.
“Q. In regard to that sack, was it wet at that time? A. Yes.
“Q. And the mash was also wet? A. Yes.
“Q. Now Mr. Brown, tell the jury the procedure of making intoxicating liquor. A. I couldn’t do it.
“Q. Well, state to the jury what is the purpose of the mash? A. I don’t know that.
“Q. In your experience in raiding distills you usually find mash? A. Yes, I usually do.
“Q. And the mash is usually put in barrels? A. Usually in barrels.
“Q. And by use of mash the intoxicating liquor is made is it not?
“By Mr. Mouser: Objected to as leading questions.
“By the Court: Sustained; that form of questions are leading.
“Q. Tell the jury how they make choc beer. A. I never made any.
“Q. The experience you have had.
“By Mr. Mouser: He said he didn’t know.
“By the Court: State what you know. A. They use different things, some corn and rye and wheat bran, but most of them use sugar and yeast cake.
“Q. And also this mash? A. Yes, I understand this grain is what they call mash.
“Q. And that was what you found in the sack? A. Yes, sir.
“Q. Where did you find the choc beer? A. Out on the floor.
“Q. I will get you to state whether or not it had the appearance of being recently tipped over? A. Yes, sir.
“Q. Did Mr. Tro say he tipped it over? A. No.
“Q. What land of floor in the dugout? A. I don’t remember.
“Q. And what would you say about how large a keg that was? A. I think a ten-gallon beer keg.
“Q. And did Mr. Tro live in Roger Mills county? A. Yes, at that time.
“Q. And state of Oklahoma? A. Yes.”

On cross-examination the witness testified that he did not drink any of the liquid; didn’t know the amount thereof, could not swear that it was whisky; that it was choc beer, but did not drink it, and was not prepared to tell the jury that it was intoxicating; that in addition to the defendant Jimmie Dennard and Charlie Lozer were present; that he thought it was wheat that defendant had in the sack, but they did not find any distillery nor sugar.

Bud Copeland testified that he was deputy sheriff and was with the sheriff when the search, was made of defendant’s premises on the 8th day of February, 1922; that he was in the dugout or cellar on the premises, and a keg of beer was tipped over by the defendant; that defendant hollered to Dennard to “break that whisky”; that Dennard broke some whisky; that the beer was choc beer and intoxicating. On cross-examination this witness testified in part as follows:

“Q. Did it smell like that stuff that they exhibited here a while ago? A. No, sir.
“Q. Like that that Mr. Tro spilled on the floor? A. Yes, sir.
“Q. Was it intoxicating? A. If that is beer, it is.
“Q. You can swear- that any of this was intoxicating? A. I don't know that it was.
“Q. You don’t know it was? A. It smelled like beer.
“Q. You also smelled some whisky? A. Yes.
“Q. Where was it? A. Over next to the window.
“Q. What was it in? A. A fruit jar. This keg was on the south side of the dugout, and the whisky on the north side.
“Q. How do you know it was whisky? A. I don’t know, only I smelled of it.
“Q. Who broke it? A. Mr. Dennard.
“Q. You know nothing about how much was in there? A. About one-half full.
“Q. A cement floor in this dugout? A. Yes; it seemed to me like this was; seemed a hard dirt floor or cement, I wouldn’t say positively.”

W. W. Peterson testified that he was the county attorney of Roger Mills county, and had some experience in assisting the sheriff in making raids on stills, and it was his experience in raiding of the stills and being with the officers, etc.; that in making of whisky the first that is done is to make the mash and put it to soak with different things, sugar and yeast, and after it got to a certain stage of fermentation it becomes choc beer, and the witness stated that he had drank considerable choc beer since he had been in the county attorney’s office, and from his observation that he knew it was intoxicating; and that after the mash has been put to soak and becomes choc beer it is ready to be run off by the still to make whisky. On cross-examination the witness testified that he was not prepared to swear that this particular stuff was intoxicating; that he did not drink any of it; but that he was only testifying to the process of making whisky.

Tbe foregoing was all tbe evidence in the case. Tbe court instructed the jury that under tbe charge the defendant could be either found guilty of manufacturing intoxicating liquor or of an attempt to manufacture the same or not guilty. The jury returned a verdict finding defendant guilty of manufacturing intoxicating liquor as charged in the information, and assessed his punishment at imprisonment in the county jail for 30 days, and that he be fined $400. It is strenuously contended that the evidence is wholly insufficient in law to sustain a conviction of manufacturing intoxicating liquor. This court is impelled to agree with this contention.

If the evidence in this case is sufficient to sustain a conviction for manufacturing beer and whisky, then any person who may have the possession of a small amount of whis-ky at his home, a sack of moist wheat, and a beer keg full of some kind of slop which smells like mash, without the possession of any of the utensils, such as a still and worm, out of which whisky is made, may be convicted of such offense.

The circumstantial evidence in this case, if it proves anything, proves that the 'defendant was possessed of a small amount of whisky in a fruit jar on his premises. The defendant was not charged with the unlawful possession of intoxicating liquor, and we surmise that such a charge was not placed against him because the quantity found was not sufficient to be presumptive evidence of an intent on his part to violate any of the provisions of the prohibitory liquor laws of this state. It appears evident that because of such fact the prosecuting attorney preferred to charge defendant with the unlawful manufacture of intoxicating liquor rather than to charge him with the unlawful possession thereof, because under the charge of manufacturing it was not necessary to prove tbe intent to sell, barter, or give away tbe same. Ofttimes tbe evidence will justify the filing of one Or more charges of violating tbe prohibitory liquor laws, and the county attorneys have a large discretion as to which of such offenses they will prosecute for, but the burden rests upon the state to prove the defendant guilty beyond a rea-onable doubt of the offense charged, and, where circumstantial evidence alone is relied upon, the circumstances must be such as to preclude every reasonable hypothesis other than that of the guilt of the defendant of the offense charged. The circumstances here relied upon do not meet this requirement; they fall far short thereof.

For such reason, the judgment of conviction is reversed.


text:
    HURLEY SLITT v. STATE.
    No. A-5163.
    Opinion Filed Sept. 4, 1924.
    (228 Pac. 1118.)
    Appeal from District Court, Oklahoma County; William H. Zwick, Judge.
    Hurley Slitt was convicted of the crime of manslaughter in the first degree, and sentenced to imprisonment in the state penitentiary for a term of ten years, and appeals.
    Appeal dismisse'd.
    Ned Looney, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error, Hurley Slitt, was, by information filed in the district court of Oklahoma county on the 31st of July, 1923, charged with the crime of murder. It is alleged that on or about the 23d day of July, 1923, in said county, he did kill and murder one Charley Pinkerton by shooting him with a revolver. Upon his trial the jury returned a verdict finding him guilty of manslaughter in the first degree and assessing the punishment as above stated. A motion for a new trial was duly filed and overruled. On the 18th day of February, 1924, judgment was rendered in accordance with the verdict. From such judgment an appeal was perfected by filing in this court on May 8, 1924, a petition in error, with case-made attached. Plaintiff in error, by his counsel of record, has filed a motion to dismiss his appeal. It is therefore considered and ordered that said motion be sustained. The appeal herein is therefore dismissed, and the cause remanded to the trial court, with directions to cause the judgment and sentence to be carried into execution. Mandate forthwith.


text:
    H. G. JONES v. STATE.
    No. A-4379.
    Opinion Filed Sept. 6, 1924.
    (228 Pac. 532.)
    Appeal from County Court, Washita County; J. T. Jackson, Judge.
    H. G. Jones was convicted of a misdemeanor, and he appeals.
    Appeal dismissed.
    E. L. Mitchell, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

On the 14th day of February, 1922, plaintiff in error was convicted in the county court of Washi-ta county of a violation of section 2287, Compiled Statutes 1921. The information charged acts alleged to “openly outrage public decency and to be injurious to public morals.” Punishment was assessed at a fine of $100 and imprisonment in the county jail for 30 days.

At the time of pronouncing judgment on the 14th day of February, 1922, the trial court allowed 60 days to defendant to make and serve the case-made, but made no order extending the time in which to file this appeal beyond the 60 days allowed by statute. On the 13th day of April, 1922, the trial court made an additional order granting the defendant a further period of 30 days to make and serve the case-made, but made no order extending the time in which to file the appeal in this court. Again, on the 7th day of May, 1922, the trial court made an additional order extending the time to make and serve the case-made 30 days, but made no order extending the time in which to file the appeal in this court. The petition in error and ease-made were not filed in this court until the 14th day of June, 1922, 120 days after the rendition of the judgment.

It has been repeatedly held by this court that an order extending the time in which to make and serve a case-made does not automatically extend the time in which to file the appeal in this court. Pinchback v. State, 14 Okla. Cr. 302, 170 Pac. 714, and cases cited.

The right to appeal is regulated by statute. The time within which an appeal must be filed and all of the privileges and duties of the person taking the appeal are defined by statute. Section 2808, Compiled Statutes 1921, governs the time within which an appeal must be taken in criminal eases. This statute in part provides:

"In misdemeanor eases the appeal must be taken within sixty days after the judgment is rendered: Provided, however, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days.”

The record before us does not disclose that the statute regulating the time within which an appeal must be taken in a misdemeanor case was complied with, and the appeal is therefore dismissed.


author: DOYLE, J.

text:
    FLYNN HARPER et al. v. STATE.
    No. A-4340.
    Opinion Filed Sept. 9, 1924.
    (228 Pac. 613.)
    (Syllabus.)
    Intoxicating Liquors — Circumstantial Evidence Insufficient to Sustain Conviction for Unlawful Transportation. In a prosecution for conveying intoxicating liquor, evidence considered, and held insufficient to sustain the verdict and judgments of conviction appealed from.
    Appeal from County Court, Harper County; A. H. •Walker, Judge.
    Flynn Harper and others were convicted of a violation of the prohibitory liquor law, and Harper and Collier appeal.
    Reversed.
    B. F. Willett, M. A. Holcomb, and J. L. Griffits, for plaintiffs in error.
    George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that defendants, Arthur Almandinger, Flynn Harper, and Dae Collier did on or about the 26th day of October, 1921, unlawfully “convey certain intoxicating liquor, to wit, about three quarts of whisky, from a point on the northwest quarter of section 13, township 27 north, of range 23 W. I. M., to a point in the middle of the road on the north side of said quarter section, a distance of about 60 feet.” Upon the trial they were found guilty, and the punishment of each fixed at a fine of $50 and confinement in the county jail for 30 days.

It appears that defendant Almandinger paid his fine and served his time. The defendants Harper and Collier have appealed from the judgments rendered against them, and among other errors assign that the evidence is insufficient to support the verdict against them.

The evidence shows that F. L. Gall, undersheriff, had noticed a jug of whisky concealed in the grass and weeds inside the fence by the roadside, 2 or 3 miles southeast of Buffalo, and he and Shorm Cockrell, sheriff, secreted themselves near by. Gall testified that the three defendants drove up on the hill near the corner, stopped and looked both ways; that they then drove down and stopped the car near where the jug was hidden; that Flynn Harper was driving the car and Almandinger and Collier were riding in the back seat; that when the car stopped Almandinger jumped out and walked straight to where the jug was, near the fence; that he picked up the jug and carried it to the car; that just then witness and the sheriff jumped up and ran to the car, and commanded the defendants to throw up their hands; that defendant Collier started to pick up a 22 rifle which was in the car, and witnesses fired one shot through the car; that defendant Almandinger, when he saw the officers, grabbed the jug and threw it over the side of the car. The testimony of the sheriff is substantially the same as that of the undersheriff.

The defendants each testified, and explained their actions by saying that there was some sort of wager as to which one of them was the best target shooter, and they went out to the country to find a place to shoot this 22 rifle they had with them; that they stopped at the cossroads at the top of the hill, arguing’ which way to go, and then drove down the road to the point they were arrested; that defendant Collier fired one shot, which entered a post, which fact is undisputed. Defendant Almandinger testified:

“When we got in the bottom of the draw, I said to Collier: ‘This is a pretty good place to shoot. I see a knot in that post over there that I am going to shoot at.’ I looked around and saw a jug over there in the grass. I got out, and walked over there and got it, and started to put it in the car, and Flynn Harper said: ‘Don’t put that in the car, for we don’t know wbat is in it.’ Jnst about that time the law came up; I mean, tbe officers.”

It is contended for appellants that the case as to the defendants Harper and Collier should have been taken from the jury on the ground that there is no evidence that these two defendants conveyed intoxicating liquor as charged. Under the facts disclosed in evidence, it is clear that the conviction of these two defendants cannot be sustained. The only circumstance in evidence in any way tending to connect these defendants with the conveyance charged is their presence in the car when their codefendant Almandinger left the car and returned in their presence with the jug of whisky. It is undisputed that the defendant Almandinger conveyed the jug from the fence by the roadside to the car, but there was no evidence tending to show that he was acting under their direction.

It is a rule in this state, that, where a conviction is sought upon circumstantial evidence alone, the circumstances proved must not only be consistent with each other and with the hypothesis of the defendant’s guilt, but inconsistent with any rational hypothesis other than his guilt. Under this rule the evidence connecting these defendants with the offense charged is wholly insufficient to support the verdict as to them, and for this reason the judgments herein appealed from are reversed.

MATSON, P. J., and BESSEY, J., concur.


text:
    P. H. TOMLINSON v. STATE.
    No. A-4470.
    Opinion Filed Sept. 9, 1924.
    (228 Pac. 608.)
    (Syllabus.)
    1. Evidence —Circumstantial Evidence — Sufficiency to Convict. Where a conviction is sought upon circumstantial evidence, alone,- the circumstances proved must be consistent with each other, and inconsistent with any rational hypothesis other than defendant’s guilt.
    2. Intoxicating Liquors — Evidence Insufficient to Sustain Conviction of Unlawful Possession. In a prosecution for unlawful possession of intoxicating liquor, evidence considered, and held insufficient to support verdict and judgment of conviction.
    Appeal from County Court, Carter County; M. F. Winfrey, Judge.
    P. H. Tomlinson was convicted of a violation of tbe prohibitory liquor law, and he appeals.
    Reversed.
    James PI. Mathers, for plaintiff in error.
    George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that P. H. Tomlinson did have in his possession four pints of whisky with the unlawful intent to sell the same. Upon his trial he was found guilty, and his punishment fixed at a fine of $50 and confinement in the county jail for 30 days. He has appealed from the judgment rendered upon such conviction.

The errors assigned question the sufficiency of the evidence to support the verdict.

Con Kerzie, chief of police at Healdton and deputy sheriff, testified that he visited the defendant’s place of business on the roadside between the towns of Dillard and Rexroat, about 7 miles from Healdton, and with other officers found four pints of whisky hid in the weeds behind defendant’s place, and that the place had the reputation of being a bootlegger’s joint; that defendant and his wife and three children lived in the back part of the little store; that there were a number of oil derricks and a number of people just back of the place and within a short distance from where the whisky was found, and it might have been on Westheimer’s land.

Deputy Sheriff G-ravitt testified:

“We stopped to search the place; the other boys went in the house; I went on the outside, and found in the weeds four bottles of whisky, just across a ditch 20 or 25 feet back from this store; oil derricks and lots of roustabouts working there; never raided the place before.”

As a witness in his own behalf, P. H. Tomlinson testified that his wife and himself and three small children lived in this little store on the section line; that he and his wife measured with a tape from his home to where the officer claims to have found the whisky, and it was exactly 80 feet; that he worked as a tool dresser for the Carter Oil Company, and was never before arrested; that the whisky found was upon Westheimer’s land; that he had no control, possession or interest in said land; that it was not his whisky, and he had no knowledge that it was there; that he had never sold whisky or intoxicating liquors of any kind; that oil derricks and oil field workers in large numbers were closer to the place where the whisky was found than his home; that no whisky was ever found in his possession or on his property.

The testimony of Mrs. Tomlinson, his wife, was substantially the same.

Mr. Hutchinson, brother of defendant’s wife, testified that he lived with defendant, and that no whisky of any kind had ever been sold or kept by defendant, and that no person had ever drank any whisky in his place.

Under the facts disclosed in evidence, it is clear that this conviction cannot be sustained. It will be observed that there is not a scintilla of direct evidence tending to show that the defendant had possession of the whisky in question. The mere fact alone that it was found not far from his home is not significant, where it is shown that numerous oil field workers were nearby. Circumstantial evidence is legal evidence, and if it is of such a quantity and quality as to establish the defendant’s guilt beyond a reasonable doubt, it will sustain a conviction. It is the rule in this state, however, that, where a conviction is sought upon circumstantial evidence alone, the circumstances proved must not only be consistent wtih each other, and with the hypothesis of the defendant’s guilt, but inconsistent with any rational hypothesis other than his guilt. In our opinion the evidence is wholly insufficient to support this conviction.

The judgment of the lower court is therefore reversed.

MATSON, P. J., and BESSEY, J., concur.


text:
    Ex parte SAM A. WHITE.
    No. A-5011.
    Opinion Filed Sept. 11, 1924.
    (228 Pac. 1118.)
    Petition for writ of habeas corpus by Sam A. White.
    Writ denied.
    Crawford & Shaw, for petitioner.
    The Attorney General, for respondent.
   PER CURIAM.

This is a petition for writ of habeas corpus, filed on behalf of Sam A. White, wherein it is averred that he is illegally restrained of his liberty and unlawfully imprisoned by J. IT. Townsend, warden of the penitentiary at McAlester, filed in this court on February 5, 1924, at which time a rule to show cause was duly entered and issued, returnable before Judge Harve L. Melton, district judge, at McAlester, Pittsburg county, February 11, 1924. On February 20, 1924, he filed his report with the clerk of this court, showing that, upon a hearing had before him as said district judge, the writ was denied, and petitioner remanded to the custody of the respondent.


text:
    JACK SMART v. STATE.
    No. A-4468.
    Opinion Filed Sept. 12, 1924.
    (228 Pac. 611.)
    (Syllabus.)
    Evidence — When State May Attack Character of Accused. The state cannot attack the character or reputation of a defendant, unless he first puts that in issue by introducing evidence of his good character.
    Appeal from County Court, Carter County; M. F. Winfrey, Judge.
    Jack Smart was convicted of a violation of the prohibitory liquor law, and he appeals.
    Reversed and remanded.
    James H. Mathers, for plaintiff in error.
    George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction rendered on the verdict of a jury finding Jack Smart guilty of unlawful possession of corn whisky, and fixing his punishment at a fine of $50 and confinement in the county jail for 45 days.

The errors assigned relate to ruling of the court in the admission of alleged improper evidence and question the sufficiency of the evidence to support the conviction. The state relies on the testimony of two witnesses to sustain the conviction.

J. H. McKenzie testified that he was constable of Morgan township; that he went to defendant’s home in the oil fields 300 yards west of tbe town, of Zita; that he searched the house and found a quart of whisky in a cupboard in the kitchen, and found some fruit jars that had a little whisky in them, a little less than a spoonful; that defendant was not at home and he left word with his wife for him to come in, and defendant came in the next day; that 200 or 300 yards southwest of the house they found several sets where stills had been.

Against defendant’s objection, he further testified as follows:

“Q. Do you know the general reputation of Mr. Smart? A. Yes, sir.
“Q. Do you know his reputation with regard to liquor business? A. Bootlegger. (Exception reserved.)”

G. B. Salyer, deputy sheriff, testified:

“We had a search warrant for the place; we searched the place — McKenzie and two others; I searched around on the outside; two of them went on the inside; they found a quart of whisky in the house; I did not find anything; looked like a couple of fruit jars had been buried in the smokehouse ; through the woods about a quarter of a mile from the house we found three places looked like whisky had been cooked off.”

Against defendant’s objection, he further testified as follows :

“Q. Do you know his general reputation with relation to liquor? A. The general talk is he handles whisky, is a bootlegger. TIis reputation is that he handles whisky. (Exception reserved.)”

The state rested, and defendant asked the court to advise the jury to return a verdict of acquittal, which the court refused to do. Exception allowed.

The defendant, as a witness in his own behalf, testified that he moved np from Eanger, Texas, in April, and bought the house and lot, and he and his family were living there when it was searched; that he had the quart of whisky there for medical purposes, for his wife, who was sick; that he had no intent or desire to give away, sell, or otherwise furnish it to others; that his wife had kept her milk in the ground in the smokehouse to keep it cool, and that no whisky was ever kept there since he purchased the place, except the quart he then had in his home for medicine for his sick wife; that he did not know anything about the three places near Zita that the officers testified about; that was not on his place; that he never did make any whisky; that he worked putting in easing in the oil fields for four or five years; that he had never before been arrested or convicted.

It is a fundamental principle of criminal law that the character of a defendant cannot be impeached or attacked by the state, unless he puts his character in issue by introducing evidence of good character.

It has been repeatedly decided by this court that the fact that an offense has been committed cannot be proved by common rumor or general repute, and it is prejudicial error for the court to admit evidence of the general reputation of a defendant for the commission of the same or similar crimes to the one charged. Kirk v. State, 11 Okla. Cr. 203, 145 Pac. 307; Cantrell v. State, 12 Okla. Cr. 534, 159 Pac. 1092; Munson v. State, 23 Okla. Cr. 64, 212 Pac. 438; Morris v. State, 26 Okla. Cr. 399, 224 Pac. 377.

It follows that the court erred in admitting evidence of the general reputation of the defendant, as to being a bootlegger. We do not deem it necessary to consider the other assignments of error.

For the errors indicated, the judgment of the lower court is reversed, and the case remanded.

MATSON, P. J., and BESSET, J., concur.


text:
    DADE COPES v. STATE.
    No. A-4374.
    Opinion Filed Sept. 12, 1924.
    (228 Pac. 533.)
    (Syllabus.)
    1. Trial — Direction of Verdict of Acquittal Where Failure of Evidence. When the evidence introduced upon the trial of a criminal case fails to disclose the commission of the offense charged, the court should advise the jury to acquit the defendant.
    2. Intoxicating Liquors — Evidence Insufficient to Sustain .Conviction for Unlawful Transportation. Evidence on the trial of an information charging that the defendant did unlawfully convey intoxicating liquors considered, and held insufficient to sustain a conviction.
    Appeal from County Court, Washita County; J. L. Jackson, Judge.
    Dade Copes was convicted of the unlawful transportation of fermented liquor, and he appeals.
    Reversed.
    James W. Smith, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction rendered on a verdict of a jury finding Dade Copes guilty on a charge that on or about the 13th day of December, 1921, he did unlawfully transport a certain quantity of fermented liquors, to wit, 30 gallons of grape wine. The jury were unable to agree upon the punishment. February 13, 1922, the court rendered judgment and sentenced the defendant to pay a fine of $75 and be confined in the county jail for 30 days.

Of the various errors assigned, we deem it only necessary to consider the one, that the verdict is contrary to law and the evidence. The evidence shows that one Duncan bought some grapes from his father, put them in a barrel, mashed them up, and put some sugar in, and put the barrel in a corn bin in his barn; that on the date alleged the barrel was taken by defendant from the barn and placed in a pasture belonging to defendant’s brother.

The first witness for the state, A. H. Streley, deputy sheriff, testified that he saw the defendant get out of a car carrying a jug and go to where the barrel was; that he filled it up out of the contents of the barrel, and he arrested him; that the jug and the barrel contained grape wine; that defendant told him that he was at a party, and the Ramsey boy took him up to George Duncan’s and gave him a drink of this wine; that he took his girl home, and then went back by his home and got Spy Buck, an Indian, and they both went up to Duncan’s barn and took this barrel to this place. Witness was then asked what were the ingredients of this fluid, and answered that he could only name one that he knew, and that was water.

G. T. Duncan testified that he bought some grapes from his father, put them in a barrel, and let them sour three or four days, and put sugar in it, and then changed the contents to another barrel; that he drank a part of it, and his family had drank a part of it; that it did not make him drunk, and did not make his family drunk; that when he missed it he informed the county attorney that Dade Copes had taken it without his consent.

The state rested, and defendant demurred to the evidence, for the reason that the same is insufficient to prove the commission of an offense, which demurrer was overruled. Exception allowed.

Under our Code of Procedure it is made the duty of the court, at any time after the evidence on either side is closed, if the court deems it insufficient to warrant a conviction, to advise the jury to acquit. Section 2713, Comp. Stats. 1921. The court may undoubtedly do this of its own motion, and the defendant may present to the court his right to an acquittal as a matter of law under this section. However, the defendant is not confined to this formula, or to any form of words, in presenting to the court his right to be acquitted. All that it necessary is that in some intelligible form there shall be presented to the court, for its ruling and decision, the question that there is no evidence for the jury, or not sufficient evidence, upon which to base a conviction.

That the liquid alleged to have been conveyed was intoxicating liquor is an essential element of the offense of unlawfully conveying intoxicating liquors. The proof on the part of the state wholly fails to show that the liquid in question was intoxicating liquor. On the contrary, the evidence for the state tended to show that it was not intoxicating.

The prohibition enforcement act (section 7002, Comp. Stats. 1921) provides in part as follows:

"Provides, however, that the provisions of this chapter shall not apply to the manufacture and sale of unfermented cider and wine made from apples, grapes, berries or other fruit grown in this state, and to the use of wine for sacramental purposes in religious bodies.”

The evidence on the part of the state having failed to show the commission of the offense charged, it follows that the court should have sustained the demurrer thereto, and should have advised the jury to acquit the defendant.

Because the evidence was insufficient as a matter of law to show the commission of the offense charged, the judgment of the lower court is reversed.

MATSON, P. J., and BBSSEY, J., concur.


text:
    W. H. BEAN v. STATE.
    No. A-4469.
    Opinion Filed Sept. 12, 1924.
    (228 Pac. 530.)
    (Syllabus.)
    Intoxicating Liquors — Unlawful Possession — Insufficient Evidence. Evidence upon the trial of an information charging that the defendant did have possession of intoxicating liquors with intent to sell the same considered, and held insufficient to sustain a conviction.
    Appeal from County Court, Carter County; M. F. Winfrey, Judge.
    W. H. Bean, convicted of violating the prohibitory liquor law, appeals.
    Reversed.
    J. H. Mathers, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction rendered on a verdict of a jury finding W. H. Bean guilty on a charge that on or about the 9th day of July, 1922, he did have in his possession intoxicating liquor with the unlawful intention of selling the same; the punishment having been assessed at a fine of $50 and confinement for 90 days in the county jail.

The errors assigned are that the verdict is not sustained by sufficient evidence, and is contrary to law and the evidence, and that the court erred in admitting incompetent evidence, which was excepted to at the time. The facts shown by the testimony of the state’s witnesses, Bob Short and Bob Bell, deputy sheriffs, are that they visited defendant’s home on the date alleged and searched the premises, and in an old post hole about 50 yards in front of the house found one-half a gallon of corn whisky; that the road there seemed much traveled in circles; that while they were there defendant returned to his home in a truck, and they arrested him; that the place had a bad reputation.

Testifying as a witness in his own behalf, defendant stated that he rented the house from Mr. Colbert, June 12, 1922, and had lived there with his wife and three children nearly a month; that he was the owner of a truck, and made his living trucking and hauling; that the tracks on the road were made by his car; that he had been to Texas for about a week or 10 days, returning while the officers were at his home; that he did not have possession of the place where the officers claimed to have found the whisky; that he never dug any post holes on the place, neyer did have any whisky on the place, never kept or sold whisky, and had never been charged with selling whisky; that he stepped the distance from his house to where the officers said they found the whisky, and it was 218 steps.

Tested by the rules of circumstantial evidence, the testimony does not, in our opinion, prove possession, and was insufficient as a matter of law to overcome the presumption of innocence.

The judgment of the lower court is accordingly reversed.

MATSON, P. J., and BESSEY, J., concur.


author: BESSEY, J.

text:
    R. L. DAVIS v. STATE.
    No. A-4467.
    Opinion Filed Sept. 13, 1924.
    (228 Pac. 612.)
    (Syllabus.) t

    1. Indictment and Information — First Paragraph of Information Mere Descriptive Label. The introductory paragraph of an information is ordinarily equivalent to a mere descriptive label; a brief outline of the real, essential charge following.

      2. Same — Information, Held to Charge Illegal' Possession Only. The information examined and held to charge but one offense, that of illegal possession of intoxicating liquor, and not of illegal sale.
    3. Judgment and Sentence — Conviction for Illegal Sale not Sustained on Information for Illegal1 Possession. A conviction for the illegal sale of intoxicating liquor cannot be sustained upon an information charging illegal possession.
    Appeal from County Court, Carter County; M. F. Winfrey, Judge.
    R. L. Davis was convicted of the unlawful sale of intoxicating liquor, and he appeals.
    Reversed' and remanded.
    Pardue & Davis, for plaintiff in error.
    The Attorney General and J. Roy Orr, Asst. Atty. Gen., for the State.
   BESSEY, J.

Plaintiff in error, R. L. Davis, was, on the 18th day of August, 1922, in the county court of Carter county, found guilty of the illegal sale of intoxicating liquor, and by verdict of a jury his punishment was fixed at confinement in the county jail for a period of three months and to pay a fine of $100.

The information in this case was carelessly drawn, being as follows:

“Now comes J. E. Bristow, the duly qualified and acting county attorney in and for Carter county, state of Oklahoma, and gives the judge of the county court of Carter county, state of Oklahoma, to know and be informed that R. L. Davis and M. W. Wise did, in Carter county and in the state of Oklahoma, on or about the 1st day of May, in the year of our Lord one thousand nine hundred and twenty-two, and before the presentment hereof, commit the crime of selling intoxicating liquor in the manner and form as follows, to-wit: That they, the said R. L. Davis and M. W. Wise, in the county and state aforesaid, and on the date aforesaid, did unlawfully and willfully, with the intention of bartering, selling, and giving away, have in their possession intoxicating liquor, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.
“J. E. Bristow, County Attorney.”

Before the trial no demurrer was filed or other objection made to this information. Upon the information as it appears above, the defendant was put upon trial, at the close of which the jury rendered the following verdict:

“We, the jury duly impaneled and sworn in the above-entitled cause, do upon our oaths find the defendant, R. L. Davis, guilty in the manner and form as charged in the information, and fix his punishment at a fine of $100 and costs, and imprisonment in the county jail for a period of three months. ’ ’

The record discloses that the defendant was probably guilty of selling intoxicating liquor; all the evidence introduced tended to prove sale, and all the instructions of the court were predicated upon that theory.

It has been held by this court that the introductory paragraph of an information is merely a descriptive label, outline of the vital charging part that follows. Vickers v. U. S., 1 Okla. Cr. 452, 98 Pac. 467. The introductory paragraph in this information concludes thus: “Did commit the crime of selling intoxicating liquor in the manner and form as follows, to wit,” followed by the charging part, in which the defendant was alleged to have had in his possession intoxicating liquors.

The court, in pronouncing judgment upon the verdict, adjudged the defendant guilty of having sold intoxicating liquor. It is apparent therefore that the judgment is not responsive to, and is at variance with, the allegations of the information which charged the defendant with illegal possession. It is an elementary principle of law that one cannot be charged with one offense and convicted of a different offense, unless it be one that is necessarily included in the offense charged. Vickers v. U. S., supra; Kelly v. State, 12 Okla. Cr. 208, 153 Pac. 1094; Polk v. State, 15 Okla. Cr. 324, 176 Pac. 538; Cochran v. State, 4 Okla. Cr. 379, 111 Pac. 974; Smith v. State, 7 Okla. Cr. 4, 120 Pac. 1031.

At the close of the testimony the defendant made a motion for an instructed verdict, on the ground that the proof did not sustain the allegations, which motion was by the court overruled. This was error, because all the proof indicated that the defendant, if guilty of any offense, was guilty of the offense of selling intoxicating liquor, whereas the allegations charged illegal possession, a fatal variance. This variance between the allegations and the proof was again urged in defendant’s motion for a hew trial, which was likewise by the court overruled.

The defendant, in his brief, urges a number of other reasons why this cause should be reversed, but these need not be analyzed for the reason that the error just treated must operate as a reversal of the judgment below.

The judgment of the trial court is reversed, and the cause remanded.

MATSON, P. J. and DOYLE, J., concur.


text:
    EDWARD BURLESON et al. v. STATE.
    No. A-4473.
    Opinion Filed Sept. 13, 1924.
    (228 Pac. 609.)
    (Syllabus.)
    1. Trial — Jury—Instructions—Whether Witness Accomplice and Sufficiently Corroborated. Whether or not a witness was an accomplice, and if an accomplice whether his testimony was sufficiently corroborated were both questions for the jury, under the circumstances in this case, governed by the instructions of the court.
    (a) The instructions on these features and other issues of law held sufficient.
    2. Larceny — Evidence Sustaining Conviction of Grand Larceny, The evidence, though conflicting, is sufficient to support the verdict.
    Appeal from District Court, Logan County; C. C. Smith, Judge.
    Edward Burleson and another were convicted of grand larceny, and they appeal.
    Affirmed.
    Freeman E. Miller, for plaintiffs in error.
    The Attorney General and J. Roy Orr, Asst. Atty. Gen., for the State.
   BESSEY, J.

This is an appeal from a judgment of conviction in the district court of Logan county, wherein Edward Burleson and Billie Gaines were found guilty of grand larceny. By the verdict of a. jury, rendered June 15, 1922, the punishment of both defendants was fixed at confinement in the penitentiary for a term of two years. For convenience the plaintiffs in error will be referred to as the defendants, as they appeared in the trial court.

All the persons implicated, including all the witnesses, except two officers, were negroes. Elijah Ayers was the proprietor of a general store in Langston, a negro settlement in Logan county. This store was burglarized in the nighttime; the perpetrators carrying away a large amount of silk and some other merchandise, which was soon afterwards recovered from the defendants, or members of their families. James Young and these defendants were charged with this offense. Young was tried first and found guilty, with his punishment assessed at two years in the penitentiary. Young was then used as a witness by these defendants, to support their claim that Young alone committed the crime, or that Young and one Hardiman committed it. Hardiman, who lived with Young, claimed that he was present in the pool hall of defendant Gaines in Cushing a few days prior to the burglary, and that he heard Young and defendants Gaines and Burleson plan the robbery.

The chief claim of the defendants is that the evidence is insufficient; that there was not sufficient corroboration of the witness Hardiman, said to be an accomplice; and that the instructions to the jury were insufficient. In order that these claims, may be understood, it becomes necessary to relate the facts at some length.

It appears from the testimony of the witnesses on both sides that these defendants — Gaines, a keeper of a pool hall in Cushing, and Burleson, a keeper of a negro restaurant— drove to Langston from Cushing and went to the home of Young, arriving there at about 1:30 a. m., as they claim, in search of corn whisky. There they awakened Young, and the three then drove out into the country to get the whisky. Along the road they picked up one Gaston Van Boss, and they all proceeded to a place where a man offered to furnish the whisky, but had no jugs or jars. Burleson, Young, and Yan Boss went back to get a jug, but Young did not return with the others when they came back with the jug. After getting the whisky the defendants again drove back into Langston, where Young joined them at about 4 o’clock a. m., as they were about »to start on their return drive to Cushing.

Gaines claims that when Young joined them he had a package (containing bolts of silk) under his arm, which he placed on the floor of the car and later delivered to Gaines’ wife in Cushing for safe-keeping. Burleson claims that he did not see the package placed in. the car, and did not know what Young did with it after arriving at Cushing. Gaines says he did not notice what Young did with this package after it was placed in the car, and that he knew nothing about its contents. Young says that he carried the package into Billie Gaines’ house, where they all were drinking, and that he doesn’t remember telling Mrs. Gaines to take care of it, but may have done so. Very soon after this Mrs. Gaines had some of this silk made into garments, and the garments and remnants left were seized by the officers, and the silks identified by the owner of the store and by the storekeeper’s wife.

The testimony of Young would indicate that he alone burglarized the store, and that he transported the goods to Cushing to conceal them from the officers. Young claims, and both these defendants claim, that Gaines and Burleson had nothing to do with the taking. The testimony of the defendants indicates that Sessmus Hardiman may have also been an accomplice. Hardiman’s testimony is about the only direct testimony implicating the defendants Gaines and Burleson, except their admitted connection with a portion of the stolen goods, the fact that the silks were so soon made into garments by their women folks, and the fact that they were all prowling about the town of Langston from 1 to 4 o’clock a. m. the night of the burglary, and all returned to Cushing together in a more or less drunken condition.

Whether or not Hardiman was an accomplice was a question for the jury. The only testimony tending to indicate that he was an accomplice was the testimony of the defendants themselves, and their testimony along this line, if true, would not necessarily implicate Hardiman in the commission of the crime; it was more in the nature of impeaching Hardiman’s story.

It is fair to assume that the jury found, as they had under the evidence a right to find, that Hardiman was not an accomplice. That being the case, his testimony was entitled to such credence as the jury might see fit to give it, without any corroboration. However, the jury probably concluded that the story told by Hardiman was corroborated by the proven facts; that they were all there in and about Langston together for several hours; that parts of the stolen property were conveyed to Cushing in defendant’s automobile, along with Young, a confessed thief; and that the stolen silks were so soon manufactured into garments found in the homes of these defendants in possession of their women folks.

We confess that from the mass of conflicting evidence, with several witnesses seeking to exonerate the defendants, it is difficult to determine just who, besides Young, participated in the burglary. The jury were better able than we, and it was their duty, and not the duty of this court, to weigh the evidence and pass upon the credibility of the witnesses.

The question of whether or not Hardiman was an accomplice, and, if an accomplice, whether his testimony was sufficiently corroborated, was also for the jury, under the instructions of the court, which upon that point correctly and sufficiently stated the law as applied to the facts in evidence. No exceptions were taken to any of the instructions given.

The judgment of the trial court is affirmed.

MATSON, P. J., and DOYLE, J., concur.


text:
    EARL BIDWELL v. STATE.
    No. A-4464.
    Opinion Filed Sept. 13, 1924.
    (228 Pac. 614.)
    (Syllabus.)
    Evidence — Larceny—Instruction as to Recently Stolen Property in Possession of Accused — Inference and Presumption of Guilt Distinguished. An instruction to the jury, which in effect states that the finding of recently stolen property in the possession of the accused is not alone sufficient to sustain a conviction of larceny, but amounts merely to an inference of guilt, which must, to warrant a conviction, be supported by other independent evidences of guilt, is sufficient under the circumstances in this case.
    (a) Inference of guilt and presumption of guilt distinguished.
    Appeal from District Court, Cotton County; A. S. Wells, Judge.
    Earl Bidwell was convicted of grand larceny, and he appeals.
    Affirmed.
    P. Mounts and P. K. Morrill, for plaintiff in error.
    The Attorney General, and N. W. Gore and J. Roy Orr, Asst. Attys. Gen., for the State.
   BESSEY, J.

Earl Bidwell, plaintiff in error, here designated the defendant, was on April 7, 1922, in the district court of Cotton county, convicted of grand larceny, with his punishment fixed at confinement in the penitentiary for a term of two years.

The evidence indicates that the defendant, by stealth and without the consent of the owners, took and carried away a number of automobile casings and tubes, of the aggregate value of $200. This property was found under lock and key in the rear compartment of the automobile belonging to the defendant. The defendant claimed that he had no knowledge as to who placed the property in his car or the circumstances surrounding the theft.

The testimony discloses that the defendant went to an automobile repair shop, where these and other tires and tubes were, and requested the persons there in charge to repair a tire for him, marking the tire with an assumed name. Later a number of tires and tubes were found to be missing from the rack of shelves where they were kept, and when the defendant, at about 10 o’clock that night, sought to drive away with his automobile, he was detained and his car searched. Upon sawing off the lock to the rear compartment of the car, these stolen tires and tubes were found in the compartment, and upon further search the key to the lock was found hidden in the lining of the car.

The jury, under all the circumstances, were fully justified in believing the witnesses for the state and rejecting the explanation of the defendant, to the effect that he knew nothing about how this property happened to be locked in the rear of his car.

Practically the only question presented for this court’s consideration upon this appeal is the alleged error in instruction No. 6 given by the court, excepted to by the defendant at the time, as follows:

“You are instructed that the possession of property recently stolen, unexplained, does not constitute a presumption of guilt, but creates an inference of guilt which may be' sufficient, with other criminating circumstances tending to connect the defendant with the larceny, to warrant a conviction. And you are instructed that, if the property was stolen, and placed in the accused’s car after being stolen, his failure to account for such possession is a circumstance tending to show guilt, and he must explain the possession in order to remove its effect as a circumstance to be considered with other suspicious facts, if the evidence show any; but the mere finding of the property recently stolen in the defendant’s car is not sufficient alone to warrant a conviction.”

By this instruction the trial court told the jury that the possession alone was not sufficient to warrant a conviction, and sufficiently drew a distinction between a presumption of guilt and a mere inference. To state this distinction clearly is often difficult; whether the court’s statement was the clearest statement that could have been made need not here be decided. The instruction as given, under all the circumstances, was fair to the defendant. The circumstances as a whole amounted to more than an inference; there was proof of facts and circumstances indicative of guilty knowledge and actual personal participation in the felonious taking of the property. And in reaching this conclusion we have not overlooked the cases of Cox v. Territory, 2 Okla. Cr. 668, 104 Pac. 378, Pickering v. U. S., 2 Okla. Cr. 197, 101 Pac. 123, and Askew v. U. S., 2 Okla. Cr. 155, 101 Pac. 121, in all of which the expressions “presumption of guilt” and “prima facie evidence” were used in instructions without qualification.

The judgment of the trial court is affirmed.

MATSON, P. J., and DOYLE, J., concur.


text:
    W. T. REED v. STATE.
    No. A-4489.
    Opinion Filed Sept. 13, 1924.
    (228 Pac. 529.)
    (Syllabus.)
    Intoxicating Liquors — Evidence Sustaining Conviction for Illegal Sale. Evidence tending to show that the accused sold alcoholic commercial flavoring extract, to be used as an intoxicating beverage, held sufficient to support the charge and verdict of the illegal sale of intoxicating liquor.
    Appeal from County Court, Jefferson County; E. L. Dillard, Judge.
    W. T. Reed was convicted of the illegal possession of intoxicating liquor, and he appeals.
    Affirmed.
    Bridges & Yertrees, for plaintiff in error.
    The Attorney General and J. Roy Orr, Asst. Atty. Gen., for the State.
   BESSEY, J.

W. T. Reed, plaintiff in error, here designated the defendant, was in the county court of Jefferson county found guilty of the illegal possession of intoxicating liquor, with his punishment fixed by the jury at confinement in the county jail for a period of 30 days and to pay a fine of $150.

The defendant, by his counsel, argues that the evidence on the part of the state was insufficient to support the verdict and that the court erred in not so instructing the jury. The first witness for the state, a peace officer, testified in part as follows:

“I went down to Ryan and into Mr. Reed’s grocery store. I met him at the door; he was out at the front door, like. I asked him, did he have any lemon extract with a kick to it; he said he did, and he’d warrant that it wouldn’t give you the ‘bust head’ either. I told him I wanted a bottle; told him I’d diink it, and if it proved good I would come back and get more. He said, ‘All right, old top; got two or three cases back there, think I can supply you.’ I went in and got one bottle, and went back to where Mr. Grimes was in the car; left the bottle with Mr. Grimes, and came back to the grocery store, and said, ‘That was pretty good stuff; give me two more bottles.’ He said, ‘The boys in town here all drink it; it’s a lot better kind than you usually get; it don’t give you the bust head.’ ”

Later other officers went to defendant’s grocery store and found 257 bottles of lemon extract and a pint of corn whisky. In and about the premises they found a large number of empty bottles and containers, bearing evidence of having contained extract and corn whisky. The extract-bottles were of the usual commercial size and variety, with a label and directions printed thereon, also the words, “Fifty per cent, alcohol.”

It is argued that there was no specific proof that the extract contained more than V/2 per cent, of alcohol, measured by volume; that this court cannot take judicial notice that extract is intoxicating, and that the whisky found was in the desk of the defendant and evidently there for his own personal use. As suggested, the one pint of corn whisky may be eliminated from the case. We may also concede that the fact that the bottles of extract bore a printed label stating that the alcoholic content of the extract was 50 per cent, is not conclusive proof of the amount of alcohol in the bottles. But that printed declaration on the bottles, together with defendant’s statement that it had a “kick,” and that “the boys here in town all drink it,” and “it will not give you a bust head,” and the fact that so many empties were there in evidence, all considered together, are sufficient to sustain the verdict, based on the theory of the state that the extract was intoxicating and was being sold as an intoxicating beverage. It might be true that some of those empty bottles were left on the premises without the knowledge or consent of the defendant; but a wheelbarrow load of such empty bottles indicates that the place was a place where intoxicating beverages were being sold on rather a large scale and being consumed on the premises, presumably with the consent of the defendant. These being legitimate conclusions deduced from the evidence, the verdict will not be disturbed.

The judgment of the trial court is affirmed.

MATSON, P. 3-, and DOYLE, J., concur.


text:
    H. A. FORD et al. v. STATE.
    No. A-4234.
    Opinion Filed Sept. 18, 1924.
    (228 Pac. 785.)
    (Syllabus.)
    Gaming — Evidence Insufficient as to Certain Defendants, and Sufficient as to Others. In a prosecution of eight defendants, jointly informed against for gambling, evidence reviewed, and held insufficient to support the verdict of guilty against four of said defendants, and sufficient to sustain the verdict of guilty against four other defendants.
    Appeal from County Court, Stephens County; G. T. Burrows, Judge.
    H. A. Ford, W. T. McKinney, C. Spears, W. W. Lude-well, O. E. Williams, Geo. Idlett, Doyle Spencer, and Dan Beasley were convicted of gambling, and they appeal.
    Affirmed as to H. A. Ford, C. Spears, W. W. Ludewell, and Dan Beasley. Reversed as to W. T. McKinney, 0. E. Williams, Geo. Idlett, and Doyle Spencer.
    Bond & Morris, for plaintiffs in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

In the information in this case, H. A. Ford, W. T. McKinney, C. Spears, W. W. Ludewell, O. E. "Williams, Geo. Idlett, Doyle Spencer, and Dan Beasley were charged with gambling, in that “the said defendants above named, on or about the date aforesaid, did willfully and unlawfully play at a certain card game, commonly called ‘poker,’ for money, cheeks and other representatives of value.” On the trial of the case the jury returned a verdict of guilty against each of the defendants, and the punishment submitted to the court. The court assessed a fine of $25 and costs against each of the defendants. They have appealed from the judgments rendered upon such conviction. The errors assigned are that the court erred in overruling the demurrer to the evidence introduced by the state, and that the evidence is insufficient to support the verdict.

W. E. Cleveland, deputy sheriff, testified that on the date alleged, between 11 and 12 o’clock at night, in company with four or five other deputy sheriffs, he raided what is known as the Johnson Hotel, in the town Marlow, and after placing guards at the entrances to the hotel he, with another deputy, went upstairs to room No. 10; that he had noticed that this room had the windows blinded, that paper was tacked over the transom; that he stood and listened at the door, then looked through the keyhole and saw several men sitting around the table, over which was spread a blanket, playing cards and using poker chips; that he saw some of them deal the cards, and heard one of them say, ‘‘I bet one and a half;” after which he forced open the door, which was locked. He further testified:

‘‘It looked to me like six or eight men were in the room and that six of them were playing cards, but could not see all six;” that some of the men attempted to escape through another room, but were apprehended by deputies on guard; that he found five or six decks of cards in the room and some poker chips, red, blue, and white,- that the men he observed through' the keyhole were playing poker.

The cards and 103 poker chips, also a blanket and bed sheet that were hung over the windows, were introduced in evidence.

H. R. Gandy, deputy sheriff, testified that defendants Spencer and Idlett were not in room No. 10 when he went in, but he saw them in the hallway. L. L. Brisco, deputy sheriff, testified that he did not go upstairs, that defendants Doyle, Spencer, and C. Spears came running down and started out the door, and he arrested them.

The state rested, and the defendants and each of them interposed a demurrer to the evidence, for the reason that the same was insufficient to prove the commission of the offense charged, which demurrer was overruled and exceptions allowed.

The testimony of the defendant Ludewell in his own behalf is as follows: That he had been occupying room No. 10 for about a week, and that he was playing pitch with defendants Ford, Beasley and Spears when the officers forced open the door; that they did not play for money and were using the chips to keep count of the game, and that the chips did not represent anything of value; that they did not play poker; that defendant "Williams was lying on the bed, apparently asleep; that none of the other defendants were in the room when the raid was made.

The defendants Ford, Beasley, and Spears each testified that they, together with Ludewell, were playing pitch for pastime in his room; that they did not play for money and did not play poker. They all testified that defendant Williams was apparently asleep and did not play; that defendant McKinney was in bed in the adjoining room No. 12, and that he did not play cards; and that defendants Idlett and Spencer were not in the room while they were there.

O. E. Williams testified that he went to Mr. Ludewell’s room about 9 o’clock, looking for O’Quinn, to borrow his horse; that he laid down on the bed and went to sleep, and did not play cards.

W. T. McKinney testified that he had lived in Marlow since leaving the navy in June, 1918, was engaged in the banking and cattle business, and was asleep in room No. 12 when the raid was made, which room was Walter 0’Quinn’s, his partner in the cattle business.

The defendants Idlett and Spencer each testified that Idlett ran a cafe in Marlow and Spencer worked for him; that after they closed the cafe that night they went to Spencer’s room No. 22 in the Johnson Hotel, and had been there but a few minutes when they heard a racket up the hall, the defendant Ludewell ran down the hall; that they were not in room Ño. 10 at any time, and did not play cards.

This court has uniformly held that, when in a criminal case the inference of guilt can be reasonably drawn from the evidence, it will not interfere with the verdict on the ground of want of evidence to support it. Here there is no direct evidence that the defendants W. T. McKinney, 0. E. Williams, Geo. Idlett, and Doyle Spencer participated in the card game that was raided by the officers, and, tested by the rules of circumstantial evidence, the testimony is wholly insufficient to connect these defendants with the offense charged, and for this reason the trial court erred in refusing to direct a verdict of acquittal as to these defendants.

As to the other defendants, considering the facts and circumstances in evidence, the' testimony for the state, and the admission of these defendants that they were playing cards, it was for the jury to judge of the weight of the evidence and the credibility of the witnesses, taking into consideration the jury’s opportunity to observe the witnesses and hear them tell their stories, and the right of the jury to believe and accept some of the testimony as true, and to disbelieve other parts of it as false, and thus to reconcile conflicts and contradictions, we think the testimony is ample to sustain their conviction.

Our conclusion is that the judgments of conviction as to the defendants W. T. McKinney, O. E. Williams, Geo. Idlett, and Doyle Spencer should be reversed, because, as a matter of law, the evidence is insufficient to sustain their conviction, and the judgments of the lower court as to the defendants H. A. Ford, C. Spears, W. W. Ludewell, and Dan Beasley are affirmed.

MATSON, F. J., and BESSEY, J., concur.


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    J. W. RALF et al. v. STATE.
    No. A-4531.
    Opinion Filed Sept. 20, 1924.
    (228 Pac. 787.)
    Appeal from County Court, Oklahoma County; C. C. Christison, Judge.
    J. W. Ralf and others were convicted of maintaining a public, nuisance, and they appeal.
    Affirmed.
    Orban C. Patterson, for plaintiffs in error.
    The Attorney General, and J. Roy Orr, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from a judgment of the county court of Oklahoma county, in the case wherein the defendants were convicted of the crime of maintaining a pub-lie nuisance, and the judgment assessed against each as confinement in the county jail for a period of 30 days and to pay a fine of $50.

The appeal was filed in this court on December 26, 1922.

No question is presented as to the sufficiency of the evidence. Counsel relies solely upon two propositions for reversal of this judgment: First, that the trial court erred in refusing to grant a severance to the defendants; second, that the trial court erred in refusing to grant to the defendants an additional peremptory challenge to the jurors after the number of peremptory challenges allowed by law had been exhausted.

To the first assignment of error section 2695, Compiled Statutes 1921, is' applicable, and reads as follows:

“When two or more defendants are jointly prosecuted for a felony, any defendant requiring it must be tried separately. In other cases defendants jointly prosecuted may be tried separately or jointly, in the discretion of the court.”

The record applicable to this assignment of error is as follows:

“Come now the defendants J. W. Ralf, Jr., Pearl Ralf, and Hopping Ralf, and respectively request this court to grant each of them a severance from the others, and that they be tried separate and alone, and for grounds herein stated: That the interests of each of these defendants will be antagonized in said trial, and that if they are granted a severance, there will be testimony that can be introduced on behalf of one that cannot be introduced on behalf of the other, and that there will be evidence that will be admissible in the prosecution of one that will not be admissible in the prosecution of the others, and that, if' these defendants be required to be tried together, they evidently will be convicted, while, if the court in its discretion, will grant them a severance, they will evidently be found not guilty. Wherefore defendants, and each of them, pray that they be granted a separate trial from each of the others. ’ ’

Said application for a severance was not sworn to by any of the defendants, nor was any oral testimony offered in support thereof. In Steen v. State, 4 Oída. Cr. 309, 111 Pac. 1097, in construing the foregoing section, this court held that:

“Where two or more persons are jointly charged with a misdemeanor, the granting or refusal of a severance rests in the discretion of the court. The exercise of such discretion is reviewable; but to be reviewed, the case-made or bill of exceptions must show an application for a severance, setting out sufficient grounds therefor, and supported by affidavits or oral testimony, and the application must be made before the impaneling of the jury is begun.”

The Steen Case has been followed in other cases, and among which are Cruzan et al. v. State, 13 Okla. Cr. 73, 161 Pac. 1179, and Murphy et al. v. State, 13 Okla. Cr. 407, 164 Pac. 1000. It follows from what has heretofore been held in the foregoing cases, the charge here being a misdemeanor, that there was no abuse of discretion on the part of the trial court in refusing to grant a severance to these defendants.

The second assignment of error, more specifically stated, is to the effect that the defendants were compelled to exhaust a peremptory challenge on a prospective juror who said that he was a member of the Ku Klux Klan, and for such reason that they should have been allowed an additional peremptory challenge beyond that allowed by the statute. There is a .recital in the case-made to the effect that the defendants had exhausted their peremptory challenges, but the voir dire examination of the jurors is not set out. There is nothing in the record to show that the defendants peremptorily challenged any juror who stated that he was a member of the Ku Klux Klan, except as is contained in the statement of counsel requesting an additional challenge, and that the court overruled such motion. For what reason does not appear of record.

This is not a ease where the defendants were refused the right to ask prospective jurors if they were members of such organization. This alleged assignment of error is based solely upon the request of counsel, dictated to the court, for an additional peremptory challenge for the reason stated, without any proper showing that the defendants exercised a peremptory challenge for that reason, or that they did not obtain a fair and impartial jury possessing statutory qualifications to try the cause.

In the absence of such showing, there is no merit in this assignment. The judgment is affirmed.


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    JOHN J. ALLRED v. STATE.
    No. A-4526.
    Opinion Filed Sept. 20, 1924.
    (228 Pac. 788.)
    (Syllabus.)
    Parent and Child — Child Abandonment Properly Tried in County Where Children Become Dependent. One accused of abandoning his minor children in necessitous circumstances is properly tried for the offense in the county where the children become dependent, regardless of the residence of the father. The venue is at the place where the offense of failure to support is committed.
    Appeal from County Court, Johnston County; C. M. Crowell, Judge.
    John J. Allred was convicted of the abandonment of his minor children, and he appeals.
    Affirmed.
    Cornelius Hardy, for plaintiff in error.
    The Attorney General and J. Roy Orr, Asst. Atty. Gen., for the State.
   BESSEY, J.

John J. Allred, plaintiff in error, defendant in the trial court, was a barber, married, and the father of three small children. In the year 1919 he was pursuing his trade in Cushing, Okla. There, in the latter part of August of that year, domestic difficulties arose, and Allred left Cushing and went to some place unknown to his wife or her friends. From the sale of their joint property and money in the bank, the abandoned wife realized about $200. This sum was soon exhausted in earing for her three children, one of whom was sick. Soon thereafter the wife removed with her children to Tishomingo, in Johnston county, the home of her parents. There the oldest child died. The wife later procured a divorce; some time later she and her husband were reconciled and were remarried. Again domestic trouble arose, and a second separation and divorce followed. At the time of this trial both husband and wife were married to other persons.

There is evidence in the record indicating that the original separation and the abandonment of the wife and children by defendant was without justification, and that his failure to contribute towards the support of his children was wholly without excuse.

"The only issue in this appeal worthy of consideration is whether the trial court had territorial jurisdiction of the offense charged — whether the venue of the action was in Payne county, where the defendant first absented himself from his family, or whether it was in Johnston county, where he • neglected to provide for his children in necessitous circumstances.

A portion of the statute under which this prosecution was brought, section 1856, Comp. Stat. 1921, is as follows:

“Every person who shall without good cause abandon his wife and neglect and refuse to maintain and provide for her, and who shall abandon his or her minor child or children under the age of twelve years, in destitute or necessitous circumstances, and wilfully neglect or refuse to maintain or provide for such child or children, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the county jail, or at hard labor on the public roads of the county not less than one month nor more than twelve months, or by both such fine and imprisonment.”

Bearing in mind that the defendant, when he first went away, left his wife with money and property amounting to only about $200, and that this sum was sufficient to keep the wife and children from want for only a very short time, it was the most natural thing in the world for the abandoned wife to return to the home of her parents. It is a law of human nature that a wife, left under such circumstances, will return to her father’s home if it is at all possible for her to do so. The rule of civil law that the husband has the right to fix the domicile or residence of the wife will not apply where she has been deserted without sufficient cause. To hold to the contrary would be to take a stride backward toward the practices of the early barbarians, when the husband’s authority over the wife was absolute.

The manifest purposes of this statute are twofold — first, to make provision for the maintenance of abandoned wives and children, so that they may not become public charges on the state, and for humanitarian reasons; and, second, to punish those upon whom the moral and legal obligation for support rests when such person refuses or neglects to furnish appropriate support. This is a statute providing relief and punishment for the omission of a duty, as distinguished from punishment for the commission of an illegal act. The venue of the action would therefore appear to be in the county in which the failure to do the duty occurred; i. e., the failure to provide for the children.

This defendant could not be punished for failing to furnish support and sustenance at the place where the abandonment actually occurred, because the offense was not complete until the children were in necessitous circumstances, which condition did not arise until after the children were taken by their mother to another county. An abandoned wife is under no legal or moral obligation to remain where her husband actually abandoned her. The venue of the action is therefore properly laid in the county in which the offense becomes complete — that is, in any county where the abandoned children are in necessitous circumstances. State v. Sanner, 81 Ohio St. 393, 90 N. R. 1007, 26 L. R. A. (N. S.) 1093; Re A. T. Fowles, 89 Kan. 430, 131 Pac. 598, 47 L. R. A. (N. S.) 227; Rogers v. State, 14 Okla. Cr. 235, 170 Pac. 269, L. R. A. 1918E, 742.

And in State v. Gillmore, 88 Kan. 835, 129 Pac. 1123, 47 L. R. A. (N. S.) 217, the court, in the third syllabus, said:

“The offense is committed either by deserting and leaving her in destitute or necessitous circumstances or by neglect or refusal to provide for her whenever after such desertion she becomes destitute or necessitous.”

And in the notes to the Gillmore Case, supra, the general rule is stated thus:

“Where a man deserts or abandons his wife or minor child, and where he himself subsequently removes to another jurisdiction, or where he sends the wife or child to another jurisdiction, he is properly indicted and tried for the offense in the jurisdiction where the wife or child becomes dependent, regardless of his nonresidence, for that is the place where the duty of support should be discharged, and consequently the place where the offense of failure to support is committed. ’ ’

Our statutes provide that, where an offense is committed partly in one county and partly in another, the venue is in either county. Section 2429, Comp. Stat. 1921. Applying a like statute in the case of State v. Dvoracek, 140 Iowa, 266, 118 N. W. 399, the court held:

"Where an offense is committed partly in one county and partly in another, or where the acts constituting the offense occur in two counties, jurisdiction is in either county, it is held that where the husband deserted his family without cause and had gone to another county within the state, the venue and trial were rightly in the county where the duty of providing for the family should be discharged, i. e., in the county where the wife and children reside.”

We hold, therefore, that the trial court in Johnston county had territorial jurisdiction of this offense. The judgment of the trial court is affirmed.

MATSON, P. J., and DOYLE, J., concur.


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    CHARLES F. POSTELWAIT v. STATE.
    No. A-4509.
    Opinion Filed Sept 20, 1924.
    (228 Pac. 789.)
    (Syllabus.)
    1. Fines — Legislative Power to Provide that Fine in Abandonment Case be for Benefit of Wife or Children. In the absence of any constitutional restriction, the Legislature may provide for such disposition of fines in criminal cases as it may deem advisable, and may in an abandonment case provide that the fine shall be for the use and benefit of the abandoned wife or children.
    2. Statutes — Valid Portion Upheld, Where. A statute may, for constitutional or other reasons, be in part valid and in part invalid; and, if the invalid portion can be eliminated without destroying or impairing the valid portion, the portion that is valid will be upheld and the invalid portion be disregarded.
    3. Constitutional Law — Constitutionality of Act, Who May Impeach. The constitutionality of an act cannot be impeached by one whose rights have not been invaded by the operation of the statute attacked.

      4. Fines — Sole Right of State to Interfere in Illegal Diversion of Fund. A fine, when paid, becomes “public funds,” and only the state would have a right to interfere to prevent the fine from being diverted illegally.
    Appeal from Comity Court, Cotton County; J. C. Norman, Judge.
    Charles F. Postelwait was convicted of wife abandonment, and he appeals.
    Affirmed.
    D. B. Madden and Walter Hubbell, for plaintiff in error.
    The Attorney General and J. Roy Orr, Asst. Atty. Gen., for the State.
   BESSEY, J.

Two children, Charles Postelwait, a boy 17 years of age, and Yera Coursey, a girl 15 years old, eloped and were secretly married. For several months they lived together in domestic harmony with the parents of the husband. After this they left the parental roof and moved to an unoccupied farm belonging to the husband’s father. In the course of a few days discord arose between the defendant and his wife, growing out of the discovery that the wife was pregnant. The wife went to her mother, who immediately, in company with the father, took her back to her husband. The husband then refused to continue the marital relation and refused to receive his wife, and has ever since failed to contribute to her support.

A suit for divorce and alimony was instituted by the wife, in which it appears that the attempt to procure alimony or maintenance money was futile. Then it was that the wife, as prosecuting witness, instituted this prosecution for abandonment, resulting in a conviction, with the punishment fixed by a jury at a fine of $500. The court, in pronouncing judgment on the verdict, ordered that the $500 fine be paid to the wife.

The statute under the provisions of which this prosecution'was brought (section 1856, Compiled Oklahoma Statutes 1921) is as follows:

“That every person who shall without good cause abandon his wife and neglect and refuse to maintain and provide for her, and who shall abandon his or her minor child or children under the age of twelve years, in destitute or necessitous circumstances, and willfully neglect or refuse to maintain or provide for such child or children, shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the county jail, or at hard labor on the public roads of the county not less than one month nor more than twelve months, or by both such fine and imprisonment; and should a fine be imposed it may be directed by the court to be paid, in whole or in part, to the wife, or to the guardian or custodian of the minor child or children, provided that before the trial (with the consent of the defendant), or after conviction, instead of imposing the punishment hereinbefore provided, or in addition thereto, the court in its discretion having regard to the circumstances and financial ability of the defendant, shall have the power to pass an order, which shall be subject to change by it from time to time as the circumstances may require, directing the defendant to pay a certain sum weekly for one year to the wife, guardian or custodian of the minor child or children, and to release the defendant from the custody, on probation, for the space of one year upon his or her entering into a recognizance with or without surety, in such sums as the court may direct. The conditions of the recognizance shall be such that if the defendant shall make his or her personal appearance in court whenever ordered to do so within a year, and shall further comply with the terms of the order, then the recognizance shall be void, otherwise in full force and effect. If the court be satisfied by information and due proof, under oath, that at any time during the year the defendant has violated the terms of such order, it may forthwith proceed with the trial of the defendant under the original indictment, or sentence him or her under the original conviction, as the case may be. In a case of forfeiture of a recognizance and enforcement thereof by execution the sum recovered may, in the discretion of the court, be paid in whole or in part to the wife, guardian or custodian of the minor child or children.”

This statute, enacted here in 1915, sfeems to have been borrowed from the statutes of Texas. The Court of Criminal Appeals of Texas in 1909 (by a divided opinion) declared the Texas statute void, as being in conflict with the Texas Constitution, forbidding the appropriation of state funds for the use of private individuals; also because it gave the court an option of substituting other punishment in lieu of the punishment assessed by the jury, thus in that emergency denying the right of trial by jury; and further because it empowered a court to suspend the operation of a criminal statute. Ex parte Smythe, 56 Tex. Cr. R. 375, 120 S. W. 200, 23 L. R. A. (N. S.) 854, 133 Am. St. Rep. 976, and Texas eases following.

Ordinarily a statute adopted from one state by another is interpreted and given the same force and effect in the state of its adoption as it had by judicial construction in the state of its origin, at the time of its adoption. But here we find that some of the provisions of the Texas Constitution pointed out in the Smythe Case and Texas cases following are not found in the Oklahoma Constitution. The Oklahoma Constitution contains no prohibition against the use of public money for individual, private use, except the provision that no public funds shall be devoted to any sect, church or system of religion, or for the use of any priest, preacher, or religious teacher, or dignitary as such. In the absence of a Constitutional restriction, the Legislature may by statute make such disposition of fines as it may deem advisable. Miller v. State, 18 Okla. Cr. 218, 194 Pac. 249; Miller v. State, 17 Okla. Cr. 284, 187 Pac. 1098; Palmer v. Fitts, 51 Ala. 489; People v. Heise, 257 Ill. 443, 100 N. E. 1000 (where fine assessed was to be paid to an abandoned wife); State v. Sayre, 90 Ohio St. 215, 107 N. E. 512; Howth v. Greer, 40 Tex. Civ. App. 552, 90 S. W. 211; 25 Corpus Juris, 1167.

The state may make provisions to prevent members of society from becoming charges on the state, from the proceeds of fines collected. Note, Ann. Cas. 1912B, p. 280. It would appear, therefore, that in this state the Legislature has the authority to provide, in a penal statute such as this, that the fine may, in the discretion of the court, be ordered paid to the injured person.

It is also well settled that a statute may, for constitutional or other reasons, be in part valid and in part invalid; and, if the invalid portion can be eliminated without destroying or impairing the valid portion, the portion that is valid will be upheld and the invalid portion disregarded. Applying this rule to this statute, the act, reading from the beginning to the first proviso, constitutes a complete, valid penal statute. That part of the act providing that the court may make orders subject to change, imposing obligations on the defendant after trial, for the support and maintenance of the person abandoned, is in conflict with the provisions of the Constitution guaranteeing the right to a trial by jury. This invalid portion of the act is a futile attempt to create a civil liability in a criminal case, in the nature of an obligation to pay alimony or money for support and maintenance, usually enforced by a suit in equity.

However, the constitutionality of an act cannot be impeached by one whose rights have not been invaded by the operation of the statute attacked. 12 Corpus Juris, 761, and cases cited. Here no attempt was made to enforce or create any obligation against the defendant arising under the invalid proviso.' The evidence shows that the defendant was guilty of abandonment. The jury fixed his punishment at a fine of $500, and the court, pursuant to the provisions of the valid portion of the statute, directed that the amount of the fine be paid to the injured spouse. And if it could be held that the order authorizing this disposition of the fine was not valid, we doubt whether the "defendant could take advantage of it. The fine, when paid, becomes public funds, and only the state would have the right to interfere to prevent the fine from being diverted illegally.

The objections to, and the findings made concerning, the constitutionality of this act, though interesting, are of minor importance, for the reason that the Legislature has substituted a new abandonment statute (chapter 78, Session Laws 1923"), superseding the one here construed.

The judgment of the trial court is affirmed.

MATSON, P. J., and DOYLE, J., concur.