text:
    V. M. HARRY v. STATE
    No. A-9095.
    May 23, 1936.
    (58 Pac. [2d] 340.)

      W. Lee Johnson and McCollum & McCollum, for appellant.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Carl D. McGee, Co. Atty., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction and sentence to pay a fine of $1,000 and costs, pronounced and entered October 3, 1935, in the district court of Pawnee county upon a plea of guilty entered by appellant, Y. M. Harry, following his arraignment on an indictment presented in open court by the grand jury, and filed November 28, 1934, which indictment, omitting formal parts, reads as follows:

“in the name and by the authority of said state of Oklahoma, do present and find that in said county of Pawnee in said state of Oklahoma, on the 30th day of July, in the year of our Lord, One Thousand Nine Hundred and Thirty-two one V. M. Harry, a person then and there being did, then and there, knowingly, wilfully, unlawfully, feloniously commit the crime of receiving a deposit in an insolvent bank, in the manner and form as follows, to wit:
“That said defendant, V. M. Harry, being then and there a director and Chairman of the Board of Directors, and active managing officer of the First Commerce Bank, and the said First Commerce Bank being then and there a banking corporation, organized and existing under and by virtue of the laws of the State of Oklahoma, and engaged in transacting a general banking business at Ral-ston, Pawnee County, Oklahoma, did then and there unlawfully, wilfully and feloniously receive and accept a deposit in said bank and was accessory to, and did permit and connive at the receiving and accepting on deposit in said bank the sum of Twenty Two and 50/100 Dollars ($22.50) in money, bank bills, bank notes, United States Treasury Notes, gold certificates, silver certificates, currency, checks, drafts of the value of Twenty Two' and 50/100 Dollars ($22.50), the personal property of one George Price, when said bank was then and there insolvent, and the said defendant then and there knew said bank was insolvent, contrary to the form of the Statute and the Constitution of the State of Oklahoma in such case made and provided.”

The assignments of error are:

First. That the indictment was insufficient both as to form and substance to give the said district court jurisdiction over the person of said defendant, and insufficient to confer jurisdiction upon said court to pass the judgment and sentence herein appealed from.

Second. That the judgment and sentence of the court is excessive.

Counsel for appellant in their brief say:

“We submit two propositions to the court for its careful consideration:
“First. That the trial court did not have jurisdiction because the indictment is nothing more or less than a general letter written by the county attorney to the district court of Pawnee county, with the indorsement of the grand jury.
“Furthermore, the indictment is. duplicitous. It accuses the defendant with four separate and distinct things.
“First, receiving and accepting a deposit.
“Second, being an accessory to receiving and accepting a deposit.
“Third, that he permitted the receiving and accepting the deposit.
“Fourth, that he connived at the receiving. and accepting the deposit.”

It is strenuously insisted that the indictment fails to charge an offense because it does not allege the bank was insolvent at the time the deposit was received.

Upon the record in this case the only question presented is the sufficiency of the indictment to charge an offense.

The true test of the sufficiency of an indictment or information is not whether it might possibly have been made more certain, but whether it alleges every element of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet. Warren v. State, 24 Okla, Cr. 6, 215 Pac. 635; Martin v. State, 35 Okla. Cr. 248, 250 Pac. 552.

An indictment cannot be attacked upon appeal unless some foundation was laid therefor before final judgment was rendered. The defendant may take advantage of a defective indictment by demurring thereto before the trial, or by motion in arrest of judgment.

The function of a demurrer, which was not resorted to by the defendant in this case, is to defeat the indictment without a trial, whenever it appears upon the face thereof that it is subject to one or more of the five objections named in the statute. Section 2948, St. 1931. These objections can be taken only by demurrer, “except that the objection to the jurisdiction of the court over the subject of the indictment or information, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, and in arrest of judgment.” Section 2956. Stone v. State, 12 Okla. Cr. 313, 155 Pac. 701; Franklin v. State, 17 Okla. Cr. 348, 188 Pac. 686; Cotton v. State, 22 Okla. Cr. 252, 210 Pac. 739; Rhodes v. State, 58 Okla, Cr. 1, 49 Pac. (2d) 226.

If no crime is charged in the indictment, then none is confessed by pleading guilty thereto, and this question may be considered though for the first time raised on appeal as in this case.

It is an elementary principle in criminal jurisprudence that every material fact essential to the commission of a criminal offense must be alleged in the indictment or information.

There can be no conviction or punishment for a crime without a formal and sufficient accusation. In the absence thereof the court acquires no jurisdiction whatever, and if it assumes jurisdiction, the trial and conviction are a nullity. 31 C. J. 559.

Oür Procedure Criminal, St. 1931, § 2892, provides:

“No indictment or information is insufficient, nor can the trial, judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”

•So we see, by the express language of the statute the omission of any matter of form from an indictment which does not tend to the prejudice of the substantial rights of a defendant upon the merits does not affect the sufficiency of an indictment.

In McCarty v. State, 46 Okla. Cr. 332, 287 Pac. 1053, it is held:

“An information is sufficient if it pleads every element essential to charge the crime pleaded, in plain, concise, and intelligible language, and apprises the defendant in an intelligible way of precisely what he must be prepared to' meet.”

Upon the record before us we conclude, and it is our opinion, that the information was sufficient to apprise the defendant of the nature of the offense charged and the acts and circumstances' of its commission, and was sufficient to authorize the court to pronounce judgment on a conviction according to the right of the case.

It'appears from the transcript of the proceedings in the court below that when the defendant withdrew his plea of not guilty and interposed the plea of guilty, leave of court was asked and granted to introduce proof in mitigation.

Counsel in their brief say:

“We invite the court’s careful consideration of the record. It is short, concise, and to the point. We will not attempt to restate the evidence, but ask the court to read the testimony of plaintiff in error himself and the other .eleven witnesses. It shows that plaintiff in error is a member of an excellent family; that he is an excellent character himself; that he has lived in the community of Ralston, Oklahoma, practically all of his life and has at all times borne am excellent reputation; that he tried to save the bank; that he fought to gain through most of the depression, but he couldn’t save the ship. It finally sank. He and the Harry family broke themselves trying to save the bank. They are insolvent. Plaintiff in error has no money. He has no property. He is a mamed man, with a wife and family of children. He has exhausted his credit. To require him to pay a fine of $1,000 means incarceration for a long period of time. The law under which plaintiff in error was prosecuted was not intended to crush an honest banker. It was intended for the law violator. To permit this fine to stand means the ruin of plaintiff in error and his family! It he had the money with which to pay the fine it wouldn’t be so bad, but he hasn’t, and there is no way of getting it. This fine should be reduced to at least $50. This amount the plaintiff will be able to pay, together with the costs.
“We conclude, therefore,
“First. That the trial court was without jurisdiction.
“.Second. That the fine assessed in this case is grossly excessive. That if the fine is not set aside in toto by reason of the court not having jurisdiction, then the fine should be reduced not to exceed $50.”

Under our statute the plea of guilty may be entered in all criminal cases, and the effect of such a plea is to authorize a judgment of conviction and imposition of punishment as prescribed by law.

The general power of a court to reconsider its judgment and sentence and reverse, vacate, or modify it at any time during the term at which it was rendered, or to increase or diminish the sentence which it has imposed, where the original sentence has not -been executed or put in operation, is undeniable. This power is inherent in all courts of record. Rupert v. State, 9 Okla. Cr. 226, 131 Pac. 713, 45 L. R. A. (N. S.) 60.

The defendant was represented by able counsel, who it appears did not see fit, after judgment was rendered and sentence imposed, to file a motion to modify the judgment for the reasons stated, by reducing the fine imposed.

The power to pardon, parole, reprieve, or commute is vested in the chief executive of the state (Const, art. 6, § 10), and this is the source from which relief must be obtained in such cases as this. The judicial power to modify a judgment and sentence by reducing the punishment when deemed proper in furtherance of justice, and the executive power to pardon, parole, or commute are wholly distinct in their nature. The one is an award of justice, and the other an act of grace. Clemency is a matter of discretion and may be refused. Justice is imperative and must not be denied. In other words, the provision of our Criminal Procedure Act makes it the duty of this court to review the record, and in a proper case, if necessary in furtherance of justice, modify the judgment so as to prevent the imposition of punishment which the evidence will not warrant. Section 3204, St. 1931.

In the case of Ex parte Wagner, 58 Okla. Cr. 161, 50 Pac. (2d) 1135, this court held, where defendant is sentenced to pay fine and costs:

“The punishment or the penalty is the payment of the fine and costs. The commitment until the fine and costs are paid, or .satisfied, is no part of the punishment; it is the mode of executing the sentence, that is, of enforcing the payment of the fine and costs.”

In the opinion it is said:

“No one would deny the proposition that a person cannot be taken to the state penitentiary, and detained there as a punishment without an accusation, trial by jury, conviction, and sentence in the due and orderly course of law. Nothing less than these forms would amount to due process of law,- when an infamous punishment is to be imposed. No one would deny that such an act, done by ■the state, would be in direct defiance of the Constitution. When a defendant convicted in the due and orderly course of the law is adjudged to pay a fine and costs and the court in execution of the sentence orders the defendant, ‘to be taken to the state penitentiary at McAlester, Oklahoma, to be incarcerated in said penitentiary until the said fine and costs are paid or time served for the same/ such imprisonment would be another and separate punishment. The very statement of the proposition would seem to be its proof, and such imprisonment would not be due process of law. In such a case due process of law requires that a defendant shall not be subjected to a punishment infamous in character to enforce the payment of a fine and costs or until the same is satisfied.”

Article 33, chapter 17, ,St. .1931, entitled “Execution of Judgment,” provides:

Section 3164. “When any poor convict shall have been confined in any prison for the space of six months, for non-payment of fine and costs only, or either of them, the sheriff of the county in which such person shall be imprisoned shall make a report thereof to any two justices of the peace for such county; if required by such justices, the said keeper shall bring such convict before them, either at the prison, or at such other convenient place thereto as they shall direct; the said justices shall proceed to inquire into the truth of said report, and if they shall be satisfied that the report is true, and the convict has not had since his conviction any estate, real or personal, with which he could have paid the sum for the non-payment of which he was committed, they shall make a certificate thereof to the sheriff of the county, and direct him to discharge such convict from prison and the sheriff shall forthwith discharge him.”

Upon a careful review of the record in connection with the foregoing statutory provision, we cannot say that the punishment imposed is excessive. Upon the record before us we think our duty is fully performed by an affirmance of the judgment of the trial court.

Judgment affirmed.

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


source: Caselaw Access Project

author: DAVENPORT, J.

license: Public Domain

text:
    MAY SMITH v. STATE.
    No. A-9057.
    May 29, 1936.
    (58 Pac. [2d] 347.)
    J. Weldon Cornett, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of illegal possession of intoxicating liquor, and sentenced to pay a fine of $100 and to be imprisoned in the county jail for sixty days, and has appealed by filing in this court her assignment of errors with case-made attached.

The testimony on behalf of the state, in substance, is that the defendant Della M. Cundiff was living Avith her husband, William C. Cundiff, at 325 NorthAvest Fifth street, Oklahoma City, Okla., on the 26th day of July, 1.935; that R. C. Bradford, a police officer, in company with another officer, Avent to the home of the defendant, stating he had a search warrant; he went into the house; the husband of the defendant was not at home, but there was another man in the house waiting, as the man informed him, to use the telephone.

The officer further testified this defendant Avas in the kitchen with the door fastened, and that he heard her pouring something, the defendant stating it Avas a vinegar bottle, and the witness that it was a bottle containing whisky. The police officer further testified he searched an old icebox in the corner of one of the rooms in the house, in Avhich icebox he found..seven pints of whisky; that he later on searched the basement, and under the floor near the basement or cellar he found five one-half gallon fruit jars of whisky. The defendant talked to him and wanted him to be lenient with her, “and I told her I could not, I would have to take her down and file her in the county court. She Avanted us to wait and let her husband come home and take him, and we said, ‘No, you are just as much interested as he is.’ ”

The man in the front room was in a normal condition. “We charged him with loitering around a place where intoxicating liquor was sold.”

Considerable testimony is contained in the record with reference to the description of. the house which it is not deemed necessary to set out in this opinion.

L. O. Bogstie testified in substance the same as did the state’s witness Bradford. R. C. Bradford was recalled by the state and was asked if he recalled the incident where there was a complaint made against the home of William C. Cundiff, and was permitted to answer that about 30 days previous to this raid a person came to the police office and complained about this place selling whisky; witness continued:

“I made a deal with him, and gave him 25 cents in silver, and marked the piece on the eagles neck,, and searched him before I sent him down to buy the whisky, and he brought back a half pint of whisky. He brought the whisky to my car; we watched him go in, and we drove down and searched the place. Just before we got thiere Mrs. Cundiff had gone to a restaurant, and I went in and looked in the middle room where he said I would find the money in a lady’s purse setting on the shelf back of an old clock, and I did so, and opened the purse and took out this marked quarter. We searched the room and found a half gallon of whisky and arrested her husband and took him down.”

The witness did not see the man buy the whisky from this defendant. The conversation which he detailed relating to the time was about 30 days prior to the date he arrested this defendant. He knew nothing about what the man he gave the marked quarter did with it. He went to the home of the defendant and found her husband there about the place, went in the house without any authority, so far as this record shows, and searched a purse of this defendant and claims to have found a quarter therein.

To all of this testimony the defendant objected. There is no competent testimony to show that this defendant was at home when the man the officer sent to buy the whisky went in the house,, nor is the man whom the officers claim bought the whisky called as a witness to prove he bought it from the defendant, and paid her the 25 cents and she put it in her purse in his presence. The officer does not state the name of the man he sent to buy the whisky.

The defendant testifying in her own behalf denied she had anything to do with the whisky, and stated she was living' there with her husband; she did not drink whisky, and had not been selling whisky, and had not been arrested prior to this time. She did not sell any whisky to any one at any time. The foregoing is in substance the testimony.

■Several errors have been assigned by the defendant The first assignment of error the court will discuss will be the third assignment:

“The court erred in admitting testimony that was incompetent, irrelevant and immaterial.”

It is clearly shown by the record that the defendant in this case was a married woman living with her husband at the place alleged to have been searched by the police officers, and it is not disputed that the defendant’s husband provided her with a home and maintenance. All the testimony shows that she had nothing to do with the whisky; that her husband was a man that would take a drink. The defendant in this case may be guilty, but she is entitled to a fair and impartial trial by an unbiased jury and competent testimony. From the record before us it is clear that the trial court permitted the county attorney to introduce any evidence he desired. R. C. Bradford, one of the witnesses, was recalled, and the court, over the objection of the defendant, permitted the state to prove that at some time prior to the date of the arrest, of the defendant on the charge for which she was being tried, the officers went near the home of the defendant and marked a quarter of a dollar and sent some man, whose name he does not mention, to the home of the defendant and her husband to buy whisky; that the man returned from her home with a small quantity of whisky claiming he had bought it from the defendant. When the officer received this word, he proceeded to the home and found somewhere around the premises the husband of this defendant, the defendant not being there. He hadi no warrant for the arrest of the defendant, and no warrant to search her person or her purse, yet he states he found the defendant’s purse and opened it, in which he claims to have found the marked quarter he had given this unnamed man, and he states positively the defendant sold this mysterious man the whisky. The defendant moved to strike all of this testimony from the record, which motion was overruled, and the defendant reserved an exception. The testimony is the rankest kind of hearsay testimony and violated every principle of the rules of evidence.

That this testimony was incompetent and prejudicial to the defendant we think there can be no doubt; if the minds of the jurors were wavering on the question of the innocence or guilt of the defendant, this incompetent testimony which the court had sanctioned with judicial approbation was sufficient to turn the scale against the defendant. This hearsay evidence was not admissible. Stamper v. State, 10 Okla. Cr. 674, 137 Pac. 1197; McKinney v. State, 19 Okla. Cr. 94, 198 Pac. 108.

A conviction based upon hearsay evidence or suspicion is not obtained by due process of law, and is contrary to the Constitution of Oklahoma and the United States Constitution. McRae v. State, 8 Okla. Cr. 483, 129 Pac. 71; Stamper v. State, supra.

In Moiser v. State, 59 Okla. Cr. 106, 56 Pac. (2d) 908, 909, this court said:

“We have no doubt that the search of the defendant, under the circumstances in the record, is unlawful. Some things are to be more deplored than the unlawful sale of whisky. One is the loss of liberty. Common as the event may be, it is a serious thing to arrest a citizen, and it is more serious to search his person, and whoever accomplishes it must do so in conformity with the laws of our state. There are two reasons for this, one to avoid bloodshed, and the other to preserve the liberty of the citizen.
“The fact of the possession of the dollar bill was proven by the forcible and unlawful search of the defendant’s purse to secure a veritable key of the offense. It is fundamental that the defendant may not be searched by the officers, without process, in order to secure testimony against her. It takes no- flight of imagination to picture what would happen if other officers clothed with some temporary authority might without restriction or hindrance at their will hold up a citizen on the highway and search him, or enter his home and search his person in an effort to- procure evidence against him. It results from what we have said that the action of the deputy sheriff and his party was wholly Avithout warrant of law, and the evidence thus found was wholly incompetent against defendant.”

In Williams v. State, 34 Okla. Cr. 359, 246 Pac. 895, this court said-:

“In a prosecution for unlawful possession of intoxicating liquor, defendant cannot be convicted on evidence obtained by unlawful search' of his person, Avithout a warrant for Ms arrest, and neither the liquor so seized, nor the evidence of the possession thereof so acquired is admissible against him.” Mosier v. State, supra.

Exclusive of the testimony of the officer as to the hiring of the man to buy the whisky from the defendant, who in her absence searched her purse, there is no evidence whatever to sustain a conviction. The admission of the evidence of the officer, over the objection of the defendant, with reference to the marking of the 25-cent piece, giving it to a man who is not named, and sending him to the defendant’s house, and his returning and reporting he bought some whisky from the defendant, and the officer going into defendant’s home where she had left her husband, and searching her purse in the absence of the defendant, was prejudicial and reversible error.

There are other errors in the record, but in the view we take of this record it is not necessary to consider them.

The judgment of the trial' court is reversed.

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


author: DOYLE, J.

text:
    JODIE McDONALD v. STATE
    No. A-9013.
    May 29, 1936.
    (58 Pac. [2d] 345.)

      Paul D. Sullivan and Wilkinson & Wilkinson, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error was tried and convicted in the district court of Stephens county of the larceny of an automobile, and in accordance with the verdict of the jury he was sentenced to imprisonment in the state penitentiary for the term of five years. A new trial having been denied, appeal is taken from the judgment.

The specific charge in the information was that in said county on the 24th day of February, 1935, he did take and steal one Chevrolet coupe automobile, the personal property of Temple Chronister, of the value of $350.

The first assignment is that'the verdict of the jury is contrary to law and is not supported by the evidence.

The undisputed testimony offered by the state shows that Temple Chronister lived at Comanche, was the owner of a 1935 Chevrolet coupe automobile; that on Sunday night, February 24th, about 7:30 p. m., he parked the ear in front of Mr. Davenport’s, a neighbor, and visited in the Davenport home; that he missed the car about 9 o’clock and notified the officer at Duncan; the car had a blanket, a bunch of tools, and a motor clock in it. The next time he saw his car was the following afternoon, about a half mile south of Dixie, on the road to Ringling, Dixie being about 30 miles east of Comanche; that the blanket he had in the car was missing.

J. C. Byrum testified that he operated a filling station at Dixie; that about 11 o’clock on that Sunday night two young- men called him out of bed and wanted some gasoline; they told him they lived at Lone Grove and had no money and wanted to deposit a blanket with him for some gasoline; they said the car was about one-half mile south of Dixie; that he gave them a couple of gallons of gasoline; they borrowed a bucket to carry it in, saying that they would bring the bucket back. He told them to take the blanket with them, as it was a cold night, and they did, but they did not return.

Mrs. M. B. Parsons testified she lives at Ringling; that on Sunday night, February 24th, the defendant, Jodie McDonald, and her nephew Ernest White came to her home about midnight and stayed all night; that she heard one of them remark that they would have frozen if they did not have the blanket; that they left her home about 9 o’clock Monday morning; that she found a blanket folded up in the room that they occupied. M. B. Allen, a deputy sheriff, came to her house and took the blanket.

Witness Chronister identified the blanket as the one he had in his car the night it was stolen. That when he found his car the battery was run down and one tire was flat. His blanket, tools, and motor clock were missing.

Henry Therlo testified that he was city marshal of Comanche; that on the Friday following February 24th, he'went to Ringling and secured the blanket from Mr. Allen and brought it to Comanche; that he arrested Jodie McDonald at his father’s home; that the defendant told him that he was in Comanche all of the night of February 24th.

Jim Skelton, deputy sheriff, testified that the defendant told him that he was in Comanche Sunday night, February 24th, and that about 9 o’clock he went home and stayed all night.

At the close of the evidence for the state the defendant interposed a general demurrer to the evidence which was overruled.

The defendant did not testify and offered no evidence.

Where a conviction is sought to be sustained by circumstantial evidence, the hypothesis of guilt should flow naturally from the facts and circumstances in evidence and be consistent with and point to guilt, and they must be inconsistent with innocence. However, it rarely happens the perpetrators of an offense, committed in the manner here proven, can be .shown by witnesses who saw and recognized the defendants in the act, and resort must therefore ordinarily be had to circumstantial evidence. The presumption arising from the possession of stolen property is one of fact, and not of law, and possession of property recently stolen, and unexplained, is a circumstance to be considered and given such weight as the jury may see fit.

An examination of the record leaves no reasonable question in our mind as to the sufficiency of the evidence to justify submitting to the jury the question as to the •defendant’s guilt. The jury saw the witnesses, heard the testimony, and by their verdict found the defendant guilty, and upon the undisputed facts and circumstances which evidence shows, we cannot resist the conclusion that the verdict was fully warranted by the evidence.

The only other assignment of error is the alleged misconduct of the assistant county attorney in his argument to the jury in using the following language: “What does the defense say about this? They don’t say anything, it is undisputed.”

The record does not contain the argument of counsel except the above excerpt and the closing argument of the county attorney. It appears from the record that the only objection made was interposed at the close of the argument, as follows:

“Comes now the defendant, Jodie McDonald, and moves the court to declare a mistrial for the reason that the county attorney in his closing argument commented upon the fact, and inferred to the jury that the defendant did not take the stand in this action.”

Our Code, section 3068, St. 1931, provides:

“In the trial of all indictments, informations, complaints and other proceedings against persons charged with the commission of a crime, offense or misdemeanor before any court or committing magistrate in this State, the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trial; if commented upon by counsel, it shall be ground for a new trial.”

It is contended that the statement of the assistant county attorney was equivalent to saying that the defendant had failed to take the stand to testify in his own behalf.

We cannot agree with counsel’s contention in this respect. Fairly interpreted, it is an assertion that there had been no evidence controverting that presented by the state.

The statute, section 3068, supra, is comprehensive in the extreme and this court will not enlarge nor extend its provisions so as to prevent a fair discussion of the evidence, even though the defendant did not testify and called no witnesses in his behalf. This statute will not be deemed to go to the extent of prohibiting comment upon inferences reasonably to be drawn from a failure to controvert the state’s evidence by proof other than that which might be given by the defendant personally. Murrell v. State, 34 Okla. Cr. 413, 246 Pac. 644; McDaniel v. State, 35 Okla. Cr. 425, 250 Pac. 804; Soper v. State, 22 Okla. Cr. 27, 208 Pac. 1044.

Ordinarily, error cannot be predicated upon mere unexplained excerpts from the remarks of counsel to the jury. Enough must appear of record to advise the appellate court of what preceded the alleged objectionable remarks and their meaning to be deduced from the context, and whether or not they were invited or provoked by remarks made by the opposing counsel. Wilson v. State, 24 Okla. Cr. 332, 217 Pac. 885.

Upon consideration of the entire record, we find no injustice done to the defendant and nothing that would warrant us in disturbing the verdict.

The judgment appealed from is accordingly affirmed.

EDWABDS, P. J., and DAYENPOBT, J., concur.


text:
    FLOYD MAPLES v. STATE.
    No. A-8965.
    June 4, 1936.
    (58 Pac. [2d] 963.)
    Tom Wallace, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

Upon an information filed in the district court of Tulsa county, appellant Floyd Maples and Bill Lowery were jointly charged with the crime of second-degree burglary. A severance was granted, and the state elected to try appellant, Maples, first. Upon the trial the jury returned their verdict finding him guilty as charged in the information and fixed his punishment at imprisonment in the state penitentiary for a term of two years. A new trial having been denied, he appeals from the judgment rendered on the verdict.

The specific charge in the information was that on the 15th day of November, 1934, the defendants broke and entered a certain garage in Tulsa county, owned by J. M. Cravins, with the felonious and burglarious intent to steal by taking without the consent of the owner certain personal property, of value, in said garage.

Several errors assigned challenge the sufficiency of the evidence to support the verdict.

The evidence is substantially as follows: J. M. Cravins testified he lived at Bruner Station on the Sand Springs line, and was the owner of a Ford car; that on the evening of November 15th he placed said car in his garage and locked the door with a padlock; the next morning he found the door of the garage open; the lock and hasp had been broken off; all four wheels of his car were missing, and it appeared that an attempt had been made to break the lock on the spare tire; that he immediately notified the officers of the county and city; a day or two later he was called by the officers and identified his wheels and tires by means of serial numbers which he had written down and submitted the same to the officers; that he knew this defendant and he lived in the same neighborhood.

Glen Larkin, deputy sheriff, testified that with George Terrill and Lynn Moss, police officers, he went to the 1100 block on East Admiral, and parked there about 7 o’clock the evening of November Í6, 1934; was called there by a man named Williams; that a few minutes after parking their car, Floyd Maples and Bill Lowery drove into the alley and took out of their car some tires and four car wheels; the defendant Maples got back in the car and drove on through the alley; the officers drove around the block, headed him off, arrested him, took him in their car, then drove back to where the wheels and tires were unloaded and there arrested Bill Lowery; they then took the wheels and tires and placed them in a service station across the street from the courthouse and notified J. M. Cravins.

Lynn Moss testified he Avas a police officer and went with Glen Larkin and George Terrill that evening to the 1100 block East Admiral. His further, testimony is the same as that of the witness Larkin as to what happened there.

The state rested. Counsel for the defendant interposed a demurrer to the evidence on the ground the same is not sufficient to warrant a conviction, which was overruled; exception.

At a witness in his own behalf, Floyd Maples testified that his age was 23 years, single; lives with his parents at Bruner Station; that he had never been convicted of a felony; that he had heard the testimony of Mr. Cravins, Mr. Larkin, and Mr. Moss, but didn’t know anything about the Avheels or tires; that he did not steal them; that he Avas at the Williams place that night for the purpose of buying whisky from Mr. Williams; that Bill Lowery was with him, but they did not unload any tires; that the night before he had a date with Lois Reed and stayed at her home from 7 o’clock in the evening until 4 o’clock the following morning; that he did not burglarize Mr. Cravins’ garage and did not steal his car wheels and tires; that he owned the car he was driving when the officers arrested him.

Mrs. Lois Reed Salmon testified that she lived at Vem Station on the Sand Springs road, and had been keeping company with Floyd Maples; that on the night of the 15th of November he came to her home between 7 and 8 o’clock and left between 4 and 5 the next morning; that she was not related to him in any way; that it was the. first time he ever stayed all night.

Bill Lowery, codefendant, testified that he lives at Medio Station; that it was dark and cloudy that night when they went out to Williams’ place to get some whisky, but did-not get it; that they drove into the alley from the west about 100 feet.

On cross-examination he stated that on July 2, 1928, he was convicted in the district court of Tulsa county on a plea of guilty to a charge of burglary and was sentenced to serve a term of seven years, and was later paroled.

Two witnesses qualified as character witnesses and testified that so far as they knew this defendant’s repu: tation as a law-abiding citizen was good.

It is insisted that the evidence is insufficient to connect this defendant with the burglary or the theft of the property from the garage in question.

We think this contention is without substantial merit.

In the recent case of Hart v. State, 57 Okla. Cr. 372, 48 Pac. (2d) 337, 338, it is said:

“It has been held by this court, following the rule lecognized by the courts generally, that mere possession of property recently stolen is not sufficient to convict the possessor of a larceny of it. Shaw v. State, 14 Okla. Cr. 511, 165 Pac. 617; Graham v. State, 12 Okla. Cr. 84, 152 Pac. 136. When, however, this fact is supplemented by other facts inconsistent with the idea that the possession is honest, it then becomes a question of fact for the jury to determine.
“Where the charge is burglary, if property taken from the owner is soon thereafter found in possession of the person charged with the burglarious entry, proof of this fact, together with circumstances showing guilty conduct, is presumptive evidence, not only of the larceny, but also that he made use of the means by which the property was taken from the owner.
; “Burglary is one degree removed from larceny; but when the facts in evidence warrant the finding of the larceny, and the surrounding circumstances are such as to show that the larceny could not have been committed without the burglarious entry, the evidence is sufficient to warrant the finding of the burglary also.”

It rarely happens that perpetrators of an offense, committed in the manner here proven, can be shown by witnesses who saw and recognized the defendants in the act, and resort must therefore ordinarily be had to circumstantial evidence.

The jury evidently did not believe the testimony of the defendant and his codefendant nor the witness called to support his alibi defense.

The credibility of the witnesses was for the jury. The province of this court is to determine whether or not there was a reasonable basis in the evidence for the jury to determine, as reasonable men, that the defendant was guilty of the offense charged. We think there was. The case appears to have been fairly tried.

The judgment of the trial court is therefore affirmed.

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


text:
    Ex parte FRED BASSETT.
    No. A-9054.
    April 24, 1936.
    Rehearing Denied Aug. 7, 1936.
    (61 Pac. [2d] 1021.)
    Jeff H. Williams, for petitioner.
    Pruett & Wamsley and J. Kenneth Hogue, for respondent.
   DOYLE, J.

In his petition herein, Fred Bassett alleges that he is unlawfully imprisoned and restrained of his liberty in the town of Carnegie, by Watt Carruth, town marshal, for the alleged violation of a purported ordinance of said town; the same being Ordinance No. 13. That on the 18th day of January, 1936, your petitioner was tried and found guilty by the police judge of said town and was fined $11.50 and $7.50 costs, and upon his inability to pay said fine and costs was committed to the town jail for a period of 19 days.

That on the 18th day of September, 1935, the said town of Carnegie, acting through and by its trustees, did pass or attempt to pass said ordinance styled:

“Special Ordinance No. 13. An ordinance declaring all Pool and Billiard Halls, all Pool and Billiard Tables, all Pool or Billiard clubs or Club rooms, maintained or operated for liire or for charging the players a fee, all Snooker Games, and any other similar game, within the corporate limits of the Town of Carnegie, Caddo County, Oklahoma, to be a public nuisance, prescribing a penalty for the violation thereof, repealing all Ordinances in conflict herewith, and declaring an emergency.”

Petitioner avers that said Special Ordinance No. 13, by authority of which he was arrested, tried, found guilty, and committed, is void and of no force and effect, in that thereafter within ten days after the purported passage of said ordinance there was filed with the town clerk of said town a notice signed by several citizens and legal voters of said-town, notifying said board of trustees and the said clerk that they circulated a proper referendum petition demanding that said proposed Special Ordinance No. 13 be referred to the legal voters of said town of Carnegie, as provided by law.

That this referendum petition had the lawful effect of suspending the operation of said Ordinance No. 13 until the next general election at which public officials were to be elected. That for the reasons stated the police judge of said town was without jurisdiction to render the judgment and issue the commitment under which the petitioner is now held in custody.

Upon the filing of respondent’s answer the following stipulation as to facts was also filed:

‘It is hereby stipulated and agreed between the petitioner, Fred Bassett, and the respondent, Watt Carruth, that the facts and the evidence in this case are as follows:
“1. That .Special Ordinance No. 13 was duly and legally passed and published.
“2. That the referendum notice described in the petition of Fred Bassett was duly filed with the town clerk of Carnegie, Oklahoma, that referendum petitions were filed with the town clerk of the Town of Carnegie on September 21, 1935.
“3. That no formal objections were filed as to the sufficiency of the said referendum petitions and that Ordinance No-. 14 was duly passed and published by the Board of Trustees of the Town of Carnegie, Oklahoma, together with election proclamation published on October 2 and 9, 1935; that the election was held on said referendum petition on October 18, 1935, resulting in 315 votes being cast approving said Special Ordinance No. 13 and 133 votes being cast rejecting the said ordinance.
“4. That the said Fred Bassett was arrested upon proper complaint being filed on January 9, 1936; that he was tried and found guilty and fined on the 16th day of January, 193'6, and committed to jail in the town of Carnegie on that date for nonpayment of fine and costs.
“5. That said Special Ordinance No. 13 contained an emergency clause in the following words:
“ ‘Section 6. It being immediately necessary for the preservation of the public health, peace and safety an emergency is hereby declared to exist by reason whereof this ordinance shall take effect and be in full force and effect from and after its passage, approval and publication.’
“That the said emergency clause was in a separate section and the question of emergency was passed and ruled upon separately and by separate vote and was approved by the affirmative vote of more than three-fourths of all the members elected to the Board of Trustees of the Town of Carnegie, Oklahoma, and that the ayes and noes were duly taken thereon and shown in the minutes of the clerk, and the whole measure was approved by the president of the Board of Trustees of the Town of Carnegie, Oklahoma, and attested by O. L. Weaver, the town clerk, with seal attached.
“This stipulation of facts is not to be construed to prevent either party from proving additional facts and offering other evidence that may be material to the rights of either party.”

Counsel for petitioner in their brief say:

“That said stipulation of facts was in error wherein it was stipulated that an election was had on Special Ordinance No. 13, but that, in truth and in fact should recite that an election was had on A Proposition,’ and nothing more.
“We respectfully invite and direct attention to such proclamation calling said election, such examination will disclose that Special Ordinance No. 13 was not submitted but that the people of Carnegie were called upon to vote upon A Proposition.’ ”

A careful examination of the record in this case leads to the conclusion that the writ should be discharged, and the petitioner remanded to the custody of the respondent.

The record shows that Special Ordinance No. 13 was duly and legally passed; that the emergency clause was in a separate section and was approved by the affirmative vote of more than three-fourths of all members of the board of trustees taken by ayes and noes.

On the part of the respondent it is contended where such an emergency clause is attached to an ordinance the referendum law does not apply.

Upon the record before us in this case that question does not arise, because it appears that the petition seeking the referendum on said ordinance fails to comply with the requirements of the statute.

The question presented was before the Supreme Court of Oklahoma in the recent case of Whitson v. City of Kingfisher, 176 Okla. 145, 54 Pac. (2d) 616, 617, wherein it is held:

“A referendum, petition upon a city ordinance must be in substantial compliance with the Constitution of Oklahoma, article 18, §§ 4(a), 4(b), and with sections 5867, 5869, 5872, 5887, 5888, O. S. 1931, and an attempted referendum petition not in compliance with such constitutional provisions and such statutes is invalid and wiLl not suspend the operation of a city ordinance against which it has been filed.”

And see In re Jones, 4 Okla. Cr. 74, 109 Pac. 570, 31 L. R. A. (N.S.) 548, 140 Am. St. Rep. 655; Whitson v. City of Ada, 171 Okla. 491, 44 Pac. (2d) 829.

It is evident from the record that the petitioner is not entitled to the relief prayed for.

The writ of habeas corpus heretofore issued will accordingly be discharged, and the petitioner remanded to the custody of the town marshal of Carnegie.

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


text:
    G. M. COBURN v. STATE.
    No. A-9067.
    Aug. 7, 1936.
    (60 Pac. [2d] 399.)

      John W. Whipple, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error was convicted of maintaining a place where intoxicating liquor was sold, and sentenced to pay a fine of $50 and imprisonment in the county jail for 60 days. Motion for a new trial was filed, considered, and overruled, and plaintiff in error appeals. The plaintiff in error will hereinafter in this opinion be referred to as the defendant.

Before this case was called for trial, the defendant filed his motion to suppress the evidence secured by the state on the ground that it was secured by an unlawful search and seizure. In the hearing on the motion to suppress, the officers admitted they had no warrant for the arrest of the defendant or his wife, or to search his home or the curtilage of his home, or to search his garage or cellar.

The testimony on the motion to suppress shows that on the night the alleged search was made the defendant and his wife had retired, and that car lights were flashed in the window of their home, and the wife called the defendant and told him a car light was in their yard. The officers said they were driving by the defendant’s home and there was a car stopped in front- of the house and a cab in tbe driveway np near tbe defendant’s bouse. They stopped and got out and. entered upon the curtilage of tbe defendant’s borne for tbe purpose of investigating, and searched without a warrant for tbe arrest of tbe defendant or to search bis home or tbe curtilage. Tbe officers went to the door of tbe defendant’s home, and tbe defendant came to tbe door and tbe officers wanted to know what was going on there, and tbe defendant replied that be bad gotten up to see what tbe trouble was.

Tbe officer, in order to try to justify bis conduct and tbe search illegally started when be became a trespasser by entering upon tbe premises of tbe defendant without authority of law, undertakes to say tbe defendant said be could come in and search. The defendant says tbe officer told him be would have to search bis place and be replied that, “If you have to do so, go ahead and search,” or words to that effect.

The officers found about a pint and. a half of whisky in the home of the defendant. They claim to have found a pint of whisky in a barrel in tbe garage or somewhere around it, and, all told, they, found two and one-half pints of whisky in the defendant’s home, in bis garage and near it. . Some testimony was admitted showing they took a pint off of some fellow in a car on the defendant’s premises, in tbe driveway, and they found a pint in tbe yard. There was no evidence introduced by the state showing any crime was committed in tbe presence of tbe officers or any disturbance that would justify them in trespassing upon the premises of tbe defendant.

After a bearing upon the motion to suppress the evidence, tbe court overruled tbe same, and tbe defendant duly excepted, was placed on trial, tried, and convicted. In tbe trial of the case the testimony was in substance the same as in the motion to suppress. The defendant objected to the introduction of the testimony in the trial, on the ground that it was unlawfully secured, which objection was by the court overruled and exceptions saved.

Eleven errors have been assigned by the defendant as grounds for reversal. The first and only assignment that it is deemed necessary to consider in this case is:

“That the court erred herein not sustaining the plaintiff in error’s motion to suppress the evidence.”

The admitted facts show that the officers became trespassers when they entered upon the premises of the defendant in the nighttime without a warrant for the arrest of the defendant, or to search his home, the cur-tilage, cellar, and garage.

The home of an individual is his castle, and he who enters the same must do so as provided by law (St. 1931, § 3221 et seq.), otherwise he becomes a law violator and trespasser and not entitled to* the protection of the law as an official. Officers of the law have no right, even though they may suspect that the party is violating' the law, to trespass upon the home and curtilage of the home unless armed with the proper legal authority to do- so.

This question has been before this court many times, and it would seem that men competent to be elected or appointed to an office would learn that, even though they may suspect a party has committed a crime, they cannot search his home, curtilage, garage, or cellar, without a search warrant, or until after he be placed under arrest.

In Strong v. State, 42 Okla. Cr. 114, 274 Pac. 890, this court in the first paragraph of the syllabus stated:

“The search of a car without warrant of arrest or search warrant or knowledge by the officer that it contained whisky held illegal, and evidence obtained should be excluded upon timely objection.”

In Whitford v. State, 35 Okla. Cr. 22, 247 Pac. 424, 425, in the fifth paragraph, of the syllabus, this court said:

“No search of the person or seizure of any article found thereon can be made on mere suspicion that the person is violating the prohibitory liquor laws in having intoxicating liquor in his possession, or without a search warrant, unless and until the alleged offender is in custody under a warrant of arrest, or' shall be lawfully arrested without a warrant as authorized by law.”

In this case the defendant may be guilty, but he is entitled to a fair and impartial trial according to law. Mosier v. State, 59 Okla. Cr. 106, 56 Pac. (2d) 908.

The defendant in this case is not charged with the possession of intoxicating liquor, nor is he charged with selling intoxicating liquor, but is charged under the statute with what is commonly known as maintaining a nuisance.

• There is no evidence of sale, and the quantity, of whisky claimed to have been found in his home is not sufficient to show a violation of the law, nor is the evidence of the finding of the small quantity of whisky at the defendant’s home sufficient to sustain a conviction of maintaining a public nuisance, in the absence of any evidence showing that on more than this occasion people were seen at defendant’s home or seen coming to and returning from defendant’s home at all hours of the day or night, or that people congregated at defendant’s home for the purpose of buying and drinking intoxicating liquors.

The testimony in this case is insufficient to sustain a conviction of maintaining a public nuisance. The motion óf the defendant to suppress the evidence of the state, on the ground that it was secured by an illegal search and seizure, should have been sustained, as it is clearly shown by all the evidence that the search and seizure was, unlawful.

There is no competent testimony to sustain a conviction. For the reasons herein stated, the case is reversed and remanded, with directions to discharge the defendant.

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


text:
    ARTHUR LOONEY v. STATE.
    No. A-9004.
    Aug. 7, 1936.
    (60 Pac. [2d] 214.)
    Holmes H. Colbert, for plaintiff in error;
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen and Owen J. Watts, Asst. Attys. Gen., J. H. Casteel, Co. Atty., and Lynn Norman, for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of burglary in the second degree, and sentenced to imprisonment in the state penitentiary for a term of five years. Motion for a new trial was filed, considered, and overruled, exceptions saved, and the case appealed to this court.

The state introduced Mrs. Ophelia Knapp to show that while she and her family were away from home her house and outbuildings were broken into, and honey, fruit juice, and several jars of fruit taken. ,She did not know who took it. The day previous to the entering of her home the defendant, who claims to have been an assistant game ranger, came to her house and visited with her, and discussed the question of robbers; leaving her home in the afternoon.

Buddy Massingill and J. R. Anderson each admitted they took part in the burglary, and said the defendant went with them and took part in the burglary. There is no evidence in the record that any of the property alleged to have been taken was found at the defendant’s home or at any other place.

The defendant, testifying in his own behalf, denies he had anything to do with the' taking of the stuff from Mrs. Knapp’s place, and showed by witnesses he left Davis for Sulphur late in the afternoon prior to the burglary and spent the night in Sulphur at the home of a party who testified as a witness for the defendant, and who stated the defendant arrived at his house in the early evening and was there the next morning when he went to work.

After the defendant introduced his testimony, the state called Massingill and Anderson in rebuttal to deny certain statements made by the defendant and his witnesses. The foregoing is the substance of the testimony.

The defendant’s first assignment of error is:

“Said court erred in overruling plaintiff in error’s motion for a new trial.”

The motion for a new trial contains all of the questions raised by the defendant, and among other things:

■ “That the court erred in overruling his demurrer to the state’s evidence.”

The state, in order to sustain its allegations, called only two' witnesses, Buddy Massingill and J. R. Anderson, both of whom are confessed accomplices, who gave the only testimony shown by the record attempting to connect the defendant with the burglary. The owner of the property knew it had been taken but did not know by whom it had been taken. None of the property was found, and the defendant denies any connection whatever with the taking of the property or that he was present at the place where the property was taken, or had anything to do with it being taken, and showed by witnesses where he spent the night it was alleged the property was taken.

In every criminal prosecution it is necessary for the state to prove, first, the corpus delicti; and, second, that the crime charged was committed by the accused. Green v. State, 7 Okla. Cr. 194, 122 Pac. 1108; Marston v. State, 9 Okla. Cr. 275, 131 Pac. 716; Blakemore v. State, 39 Okla. Cr. 355, 265 Pac. 152.

Michie on Homicide, vol. 2, § 228, (3) p. 1121, in part is as follows:

. “Neither the extrajudicial confession or admission of the defendant, nor the testimony of accomplices standing alone, without corroboration is sufficient proof of the corpus delicti.” Anderson v. State, 34 Tex. Cr. R. 546, 31 S.W. 673, 53 Am. St. Rep. 722.
•' “Where the crime is denied by the defendant the burden is on the prosecution to prove he took part in the commission of the same beyond a reasonable doubt.” State v. Teachey, 138 N. C. 587, 50 S. E. 232.

In this case the only effort made by the state to prove that the defendant took part in the commission of the burglary was by the accomplices, Buddy Massingill and J. B. Anderson.

We hold that, independent of the testimony of Mas-singill and Anderson, the confessed accomplices, there is no evidence, positive or circumstantial, of sufficient character to prove that the defendant in this case assisted in committing the burglary. Boggess v. State, 46 Okla. Cr. 283, 287 Pac. 764.

There is another reason why this case should be reversed. The information fails to state facts sufficient to charge the crime of burglary in the second degree. For the reasons stated herein, the case is reversed and remanded.

EDWAKDS, P. J., and DOYLE, J., concur.


author: PER CURIAM.

text:
    DICK JONES v. STATE.
    No. A-9027.
    Aug. 7, 1936.
    (60 Pac. [2d] 214.)
    Morrill & Snodgrass, for plaintiff in error.
    Mac Q. Williamson, Atty. Oen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called the defendant, was convicted of violating the liquor laws of the state, and sentenced to be confined in the Granite Reformatory for the period of one year and a day, and to pay a fine of $100.

The record in this case was filed in this court on November 18, 1935; no brief has been filed in support of the defendant’s assignment of errors. A careful examination of the record discloses no fundamental error. The evidence is sufficient to support the verdict of the jury. The case is therefore affirmed.


text:
    Ex parte NORMAN ORME.
    No. A-9168.
    Aug. 7, 1936.
    (60 Pac. [2d] 213.)

      A. J. Morris, for petitioner.
    Amos Stovall, Co. Atty., and Haskell Pngh, Asst. Co. Atty., for respondent.
   DOYLE, J.

In this proceeding the petitioner, Norman Orme, by his attorney has presented to this court a verified petition wherein he alleges that he is unlawfully imprisoned and restrained of his liberty in the county jail of Caddo county, at Anadarko, by the sheriff of said county; that the cause of his said restraint is that he has been committed to the said county jail by Oris L. Barney, judge of the county court of Caddo county, acting as an examining magistrate upon a preliminary examination, held by him at Anadarko upon a complaint jointly charging petitioner, Norman Orme, and Ed Spencer with the murder of Wayne Butterfield, alleged to have been committed in said county on March 23, 1936. Both said defendants were held to answer said charge to the district court of Caddo county.

Petitioner avers that he is not guilty of the crime of murder as charged, and that upon the evidence introduced at said preliminary examination and the further hearing before the committing magistrate on July 8,1936, together with the affidavits of certain other persons presented herewith, it is shown that the proof of guilt of the crime of murder is not evident nor the presumption thereof great, and that therefore petitioner is entitled to be let to bail pending the trial of said charge.

It is also shown that said defendants applied to Will C. Linn, judge of the district court of Caddo county, for Avrits of habeas corpus to be admitted to bail, and upon a hearing had bail was denied to petitioner, Norman Orme; and his codefendant, Ed Spencer, was admitted to bail, fixed in the sum of $5,000.

The evidence for the state taken upon the preliminary examination shows that on March 22, 1934, Sunday afternoon, between 3 and 4 o’clock, the petitioner, Norman Grme, did kill and murder Wayne Butterfield at a filling station on the corner of Main and Fifth streets, Anadarko, by shooting him with a pistol; that he stopped his car at Butterfield’s filling station, got out of the car with a gun in his hand and asked where is Wayne Butterfield, saying' that he was going to kill him, and when Wayne Butterfield came out of the station office he shot him; that the deceased was unarmed.

The petitioner in his affidavit admits the shooting, but claimed that it was done in his necessary self-defense.

It is well settled that a mere conflict of the testimony, even upon a material issue, does not of itself entitle a prisoner held for murder to be admitted to bail. The evidence must be considered as a whole, and when so considered, unless a well-founded doubt of the prisoner’s guilt of murder is-generated, bail will he denied.

We have examined the record, and, without entering into a discussion of the facts, we deem it sufficient to^ say that upon a careful consideration of all the evidence presented in support of the application we are of opinion that the petitioner is not entitled to be admitted to hail as a matter of legal right. It is therefore considered and adjudged that the writ be denied- and bail refused.

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


text:
    ARTHUR HUDDLESTON v. STATE.
    No. A-9071.
    Aug. 7, 1936.
    (60 Pac. [2d] 212.)

      Carroll J. Moody, for plaintiff in error.
    Mac Q. Williamson, Atty: Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted of the crime of unlawful possession of intoxicating liquor, and his punishment assessed at- $50 and 30 days in jail.

A copy of the record and case-made was filed in this court on the 21st day of February, 1936. No brief has been filed in support of the defendant’s assignment of errors.

A careful examination of the record fails to disclose any fundamental or prejudicial errors. The evidence is sufficient to support the verdict. The case is therefore affirmed.


text:
    LAWRENCE MITCHELL v. STATE.
    No. A-9011.
    Aug. 7, 1936.
    (60 Pac. [2d] 631.)

      P. A. Chappelle and Amos T. Hall, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

Appellant, Lawrence Mitchell, was indicted, charged with the murder of James Williams. Upon a trial had, the jury found Lawrence Mitchell guilty of murder and fixed his punishment at death. Motion for new trial was duly filed and overruled, and in pursuance of the verdict of the jury he was sentenced to suffer death by electrocution as provided by law. The plaintiff in error in this opinion will be referred to as the defendant.

The testimony on behalf of the state shows the defendant Lawrence Mitchell and the deceased, James Williams, and Ernest Leslie were in a car together; Leslie stated the deceased and defendant had been arguing, and quarreling over 25 cents the defendant owed the deceased. He further states they drove to 316% Frankfort place.

“I was driving, we parked the car and I sat in the car about a minute and they continued to argue, the defendant finally told the deceased, £I know I owe you a quarter, there ain’t but one thing for you to do, get out and take two bits worth on me.’ ”

The witness refers to the parties as Bill, the deceased, and the defendant as Hatchett. Bill said: “No, there is no need of that, you can pay me my quarter.” The defendant got out of the car first, and the deceased shortly thereafter.

“While the defendant was standing by the car he started talking to Tommie Kelly and two more boys; the deceased started into the house; the deceased was in front of me; I heard some one say, look out, and just as I looked around Hatchett hit Bill, the deceased, over my shoulder, and deceased broke and ran into the house. He finally came out and asked me to do something for him, and I took him to the hospital on Pine and Greenwood Place.”

Other witnesses, testifying' for the state, in substance gave the same testimony as did the witness Ernest Leslie.

At the close of the state’s testimony, the defendant moved the court to acquit and discharge the defendant for the reason and upon the ground that the evidence is wholly insufficient to sustain and support the allegations in the indictment; which motion was overruled, and the defendant saved an exception.

Lawrence Mitchell, testifying in his own behalf, in substance stated:

“I knew James Williams in his lifetime; I know Ernest Leslie and Clarence Hairway: have known Clarence Hairway three or four years; I had trouble with the deceased on the 24th of April, 1935; deceased and I had a little friendly argument about two or three days before the killing occurred; he argued with me and attempted to cut me several times; the argument was about a quarter I borrowed from him; we had two or three arguments about the quarter; on the day of the homicide we came down to Mrs. Hughes, 316% Frankfort Place; we left there together in Rue Washington’s car; we were not drinking; we went to the Small Hotel, and were there about four or five minutes and returned to the place we had previously left; we stopped the car and deceased and I got out on the same side of the car, I got out first and Williams followed me; Ernest Leslie got out on the left side of the car. I was standing by the car talking to Tom Kelly; I said to Ernest Leslie, £I have a dollar, so if you have a dime we can go to the ball game/ and Bill said, ‘You got a dollar, why don’t you pay me my quarter?’ and I says, ‘I cau’t give it to- you today, Bill, I will give it to you tomorrow when I come’; Bill says, ‘You are going to pay me now’; I told him I could not pay him until tomorrow when I come to town. ‘You are going to pay me or pay Jackson one,’ and I replied, ‘You' don’t feel that way, do you?’ and he spoke and said, ‘Hell, yes, that is the way I feel about it,’ and we started walking-back and I called to- him and says, ‘Do you mean that sure enough?” and he says, ‘Yes, I mean it’; he whirled and got his knife, and I jumped back and got my knife and cut him; he did not say anything, just whirled and run. Ernest Leslie had just stepped up on the curb at the time.
“I heard Clarence Hairway testified that when I got out of the car I slammed the door. I was not the last one out. I did not see Clarence Hairway sitting in front of his business. The deceased had a little jar under his left arm when I cut him; I cut him only once; I turned around and he turned from me. I cut him because I was afraid. I would not have cut him for anything in the world, God knows I wouldn’t, but I was afraid of him. I did not tell witness Lynch when I was arrested that I had killed the deceased, and that I was going to kill another one I did not say anything like that.”

The foregoing is in substance the testimony of the state and the defendant.

The defendant, in his motion for a new trial and his first assignment of error, raises the following question:

“That the plaintiff in error did not have such a fair and impartial trial as is provided for and guaranteed by the Constitution of Oklahoma and the United States, in that the defendant is a negro, and members of his race, though qualified to serve as jurors in the trial court have been systematically excluded from the jury.”

The record discloses that when the case was called for trial both sides announced ready; a jury was called and examined, and the state waived its peremptory challenges, and the defendant exercised two of his; that the trial was had and a verdict of guilty returned by the jury imposing the death penalty; and for the first time the defendant in his motion for a new trial raises the question that negroes were excluded systematically from the panel in the county of Tulsa.

The defendant in his argument insists that the officers of Tulsa county knowingly discriminated against the African or negro race solely on the ground of their race and ■color, and had denied them the privilege accorded white citizens of participating as jurors in the administration of justice, and that by so doing they violated the Constitution of the United States and of the state of Oklahoma. The Fourteenth Amendment to the Constitution of the United States in part provides as follows:

“No state shall make or enforce any law which shall abridge the privileges or .immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The Constitution of the .State of Oklahoma (article 1, § 1) declares that:

“The Constitution of the United States is the supreme law of the land.”

The defendant urges that negroes were excluded from jury service in the county of Tulsa solely and only on the ground of their race and color, and that by so doing they were discriminated against and deprived him of his constitutional right, and that he did not have due process of law, citing in support of his contention: Strauder v. State of West Virginia, 100 U. S. 303, 25 L. Ed. 664; Gibson v. Mississippi, 162 U. S. 565, 16 S. Ct. 904, 40 L. Ed. 1075; Carter v. Texas, 177 U. S. 442, 20 S. Ct. 687, 44 L. Ed. 839; Norris v. State of Alabama, 294 U. S. 587, 600, 55 S. Ct. 579, 79 L. Ed. 1074.

The foregoing cases cited by the defendant have been carefully read and studied by this court, and in all of these cases the question as to whether or not negroes have been systematically and solely excluded in the county where the case is being tried .was raised by plea in abatement, or by motion to quash the panel of the jurors based upon that ground, and the motion was filed before the case was called for trial or a jury impaneled. The authorities cited by the defendant are not in point, the facts in this case being different from the facts in the cases cited. In each of the cases cited the question was raised by the defendants before the case was called for trial and the jury impaneled. As stated herein, when this case was called for trial, so far as the record shows, the jury called to try the defendant was entirely satisfactory and the requisite number of jurors were selected and accepted by both the state and the defendant, after the defendant had exercised only two of his peremptory challenges, and the question urged by the defendant is that he did not have due process of law, for the reason that members of the African or negro race were excluded systematically and solely from the jury panel from the county of Tulsa because of their race, color, and previous condition of servitude, and by reason of that fact he did not have a fair and impartial trial.

The courts are uniform in holding that where an eligible class of persons are excluded from the petit jury panel a challenge to the panel is the proper remedy of one whose interests are affected. In State v. Banner, 149 N. C. 519, 63 S. E. 84, this court said:

“A challenge to the array after plea of not guilty is too late.”

“A party cannot thus take chances on securing a favorable verdict, and afterwards object to the manner in which the jury was selected.” Ohio & M. Ry. Co. v. Stein, 140 Ind. 61, 39 N.E. 246, 247.

In Tarrance et al. v. State of Florida, 188 U. S. 519, 23 S. Ct. 402, 47 L. Ed. 572, the United States Supreme Court held:

“That the objections to the panel of grand juries because of alleged discriminations against negroes must be taken by pleas in abatement ih accordance with the decisions of the Supreme Court of the state of Florida.”

The procedure in this case has been fully settled in the case of Dumas v. State, 55 Okla. Cr. 43, 24 Pac. (2d) 359. The paragraph of the syllabus reads:

“Under section 2982, -Okla. Stat. 1931, a challenge to the panel must be taken before the jury is sworn, and must be in writing, specifying plainly and distinctly the facts constituting the grounds of challenge.” Watkins v. State, 49 Okla. Cr. 443, 295 Pac. 417; Roper v. State, 48 Okla. Cr. 301, 291 Pac. 157; Moore v. State, 48 Okla. Cr. 106, 289 Pac. 788.

The courts have universally held that the objections to a jury panel are waived where not made until after the close of the state’s evidence. State v. McGhee, 336 Mo. 1082, 83 S. W. (2d) 98.

If taken advantage of by the proper proceedings before the jury was called and impaneled, there may have been merit in the defendant’s contention that negroes were excluded from the jury panels in Tulsa county solely and only on the ground of their color and previous condition of servitude; but counsel chose to submit his case to the jury that had been summoned to try the case and apparently was quite satisfied with the jurors in the box.

In Hicks v. State, 143 Ark. 158, 220 S.W. 308, in the first paragraph of the syllabus the Supreme Court of Arkansas said:

“The claim that defendants were discriminated against in that members of their race were not summoned to serve on either the grand or petit juries, and had not served for many years, was raised too' late when first presented by the motion for a. new trial.” Tillman v. State, 121 Ark. 322, 181 S.W. 890.

In Hicks v. State, supra, a writ of certiorari was denied by the United States Supreme Court. Hicks, Petitioner, v. State of Arkansas, 254 U. S. 630, 41 S. Ct. 7, 65 L. Ed. 447.

The mere fact that there was no person of African descent on the jury summoned for the purpose of trying the accused does not of itself show the exclusion of such person because of race or color. A person of African descent charged with crime cannot of right demand the kind of jury, some of which shall be of his or her race, nor is a jury of that kind guaranteed by the Fourteenth Amendment to any race. We hold that the failure of the defendant to raise the question until his motion for a new trial came too late to be now considered.

This court has carefully studied the evidence against the defendant. The court correctly advised the jury as to the law applicable to the facts. The defendant was accorded a fair and impartial trial. The evidence is sufficient to sustain a conviction of murder, but in view of the circumstances surrounding the killing, and the fact that the deceased and the defendant had been having an argument and quarreling about a quarter the defendant owed the deceased, showing that the deceased and the defendant were angry with each other, and the defendant in his testimony stated the deceased started to cut him with a knife, while all of the state witnesses contradicted the statement, we believe that the death penalty imposed should be modified to imprisonment in the state penitentiary for life, and as modified the judgment of the trial court is affirmed.

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


text:
    WALTER McKEE v. STATE.
    No. A-8923.
    Aug. 10, 1936.
    (60 Pac. [2d] 216.)

      H. A. Johnson, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter in this opinion referred to as the defendant, was convicted as an habitual violator of the prohibitory liquor laws of the state of Oklahoma, for having possession of intoxicating liquor with intent to barter, sell, give away, or otherwise furnish to others, and sentenced to three years in the state penitentiary and to pay a fine of $300. Motion for new trial was filed, considered, and overruled, and the defendant prosecutes this appeal by petition in error with case-made attached.

Before the case was called for trial, the defendant demurred to the information, which demurrer was overruled and exceptions saved. The defendant then filed his motion to suppress the evidence of the state on the ground that it had been obtained by an illegal search and seizure, which motion to suppress was by the court overruled, and the defendant duly excepted.

By stipulation between the counsel for the state and the defendant, the evidence that was taken on the motion of the defendant to suppress the evidence was accepted as the evidence in the case.

The state called O. O. DeVilbiss, a deputy sheriff, who stated he knew the defendant, Walter McKee; he knew that Walter McKee prior to the trial of this case had been convicted of a violation of the prohibitory liquor laws of the state of Oklahoma; the witness had been told that the defendant had some time in the past been convicted in Payne county, but he had no personal knowledge of a conviction of the defendant in Payne county; the witness said he had information that the defendant was hauling liquor; the first time he saw the defendant the evening he was arrested was out north of town on highway 77.

“I met him coming from the north at the edge of town; I turned my car around and pursued him through town but lost sight of him; I then came back and picked up Mr. Cavitt, another deputy sheriff, and we drove back out south and met the defendant at the southwest corner of the square; he drove to his home on F. street; we drove up to the back of his car and asked him if he had ever reported to the county attorney about that quart of gin we got down there in July, and he said he hadn’t; I had seen him around town but had not talked with him. Q. By the Court: What did .you arrest him for? A. Arrested him for not reporting to the county attorney on this quart of gin we got at his house.”

That “undersheriff got in his car, and I got in my car, and we drove down to the court house; he told us he did not have a key to his roadster; it had not been opened in about five weeks; he finally gave us the keys; we found about 23 pints of liquor in the back of the car.”

When the defendant came into town he was driving slowly:

“We had information he was bringing whisky; Avhen I saw him coming from the north I turned and followed him to see where he Avas going.” This >vas objected to by the defendant, the objection was overruled, and the defendant excepted. “Q. Did you think he had whisky in the car? A. It looked very suspicious to me from what I had heard. I was following him because I wanted to know where he was going.”

On cross-examination Avitness stated:

“I had ho sworn information the defendant was violating the law; I did not have a search Avar rant, nor a warrant for the arrest of the defendant.”

The first assignment of error is, the court erred in overruling the motion of the defendant for a new trial. The second assignment, the court erred in overruling the motion of the plaintiff in error to suppress the evidence obtained by the illegal search and seizure without a search warrant or other lawful authority in violation of the Constitution and legal rights of the plaintiff in error. These two assignments will be considered together. The state witness undertakes to say he had some kind of information that the defendant might have some whisky in his car, and when he met the defendant on the north side of the city of Perry, he turned and pursued him. He says the defendant was driving leisurely along the highway, and he finally lost sight of him in the city and went and picked up another deputy, and while they were driving they saw the defendant again, and pursued him to his home, and when' he stopped and got out they approached him and asked him about the whisky. The officer stated in response to the question of the court, “I arrested him for not reporting to the county attorney on- this quart of gin Ave got at his house.”

They had been having complaints, and the evidence would further show they had been to the defendant’s place the month immediately preceding that and Walter McKee Avas not at home, but a man staying with him said he did not have anything but McKee had, and pulled out and gave the officers some gin, and the officers left word for Walter McKee to come up and see the county attorney.

The positive statement of the officer for the state is that he arrested the defendant for not reporting to the county attorney on what he claimed was a quart of gin that he had gotten from some other man at the home of the defendant McKee. He does not claim, or attempt to claim,, he arrested him on any information that he was transporting whisky. The state is bound by the testimony of the witness when he states positively that the defendant was arrested for failing to report to the county attorney.

There is nO' evidence in the record that any complaint had been filed against the defendant for the quart of gin claimed by the state witness to have been received by him from some man that wás at the home of the defendant, with the statement that it belonged to Walter McKee, nor is there any evidence that a warrant was issued for him. It is clearly shown by the testimony that the witness for the state did not have a warrant to' search the defendant or his car, or a warrant for his arrest. The state relies for a justification for arresting the defendant that he was arrested and taken to the courthouse for failure to report to the county attorney on the quart of gin claimed to have been received by the officer from some other man with the statement that it belonged to McKee.

The statement of the man the officers claim delivered him the gin saying it belonged to the defendant McKee was purely hearsay, and would not authorize a legal arrest of this defendant unless the officers secured a warrant for his arrest. The arrest in this case was unlawful and without authority of law and violated the constitutional rights of the defendant.

“Where the offense is not a felony, an officer cannot arrest without a Avarrant, unless the offense Avas committed or attempted in his presence.”
And:
“Where the officer does not know of the act constituting the offense, it is not committed in his ‘presence.’ ” Graham et al. v. State, 31 Okla. Cr, 125, 237 Pac. 462.

In this case there is no evidence positive to show that the defendant was in any way whatever connected with the gin that the officers claim was delivered to them by another man, or that he ever saw it or knew it was on the place.

“A search of the person, without a warrant and where no legal arrest has been made, and on mere suspicion, is a violation of section 30, art. 2, state Constitution, forbidding unreasonable searches.” Skinner v. State, 44 Okla. Cr. 271, 280 Pac. 851.
“Where a conviction is based solely on evidence obtained by means of an unauthorized search and seizure, and admitted over the defendant’s objection, the conviction will be reversed as contrary to law and the evidence.” Sullivan et al. v. State, 38 Okla. Cr. 200, 259 Pac. 654; Ingraham v. State, 48 Okla. Cr. 178, 290 Pac. 344.
“Where a person is unlawfully arrested and his person, possessions, and immediate surroundings searched, the fact of finding liquor by such search does not constitute a justification therefor.” Wallace v. State, 49 Okla. Cr. 281, 294 Pac. 198.

A search of an automobile without a search warrant and not as an incident of a legal arrest, not upon any probable cause of the commission of a felony, but upon mere suspicion, is a violation of article 2, § 30, state Constitution, and evidence obtained by such a search is inadmissible. Bowen v. State, 50 Okla. Cr. 36, 295 Pac. 623.

There being no legal arrest in this case, the search of the defendant’s person and his automobile was without authority of law, and was an unlawful search and seizure.

The judgment of the trial court is reversed, with directions to discharge the defendant.

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


text:
    JOHN EMERSON v. CITY OF TULSA.
    No. A-8980.
    May 1, 1936.
    Rehearing Denied Aug. 14, 1936.
    (61 Pac. [2d] 1023.)
    W. N. Maben for plaintiff in error.
   PER CURIAM.

Plaintiff in error, hereinafter called defendant, was convicted in the municipal criminal court of Tulsa of having possession of devices for receiving bets, wagers, etc., in a gambling game, and was sentenced to serve 20 days in the county jail and to pay a fine oí) $20. The prosecution was under section 16, chap. 33, Tulsa Ordinances, which defines a crime for any person to have in his possession any device for the purpose of receiving, accepting, recording, or registering any bet or wager. The judgment was entered on March 2, 1935, and the appeal was lodged in this court August 24, 1935. The extreme limit within which appeals from a conviction for a misdemeanor may be taken is 120 days. Section 3192, Okla, St. 1931; Conner v. State, 24 Okla. Cr. 194, 217 Pac. 226. The appeal not having been taken within the time fixed by law, it comes too late and this court does not acquire jurisdiction.

The attempted appeal is dismissed.


text:
    ARCHIE LAMB v. STATE.
    No. A-9068.
    Aug. 14, 1936.
    (60 Pac. [2d] 219.)
    John W. Whipple, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the .State. .
   DAVENPORT, J.

The plaintiff in error was tried and convicted of possession of intoxicating liquors, and sentenced to pay a fine of $75 and to be imprisoned in the county jail for a period of 60 days. Motion in arrest of judgment and a new trial was filed, considered,. overruled, exceptions saved, and the plaintiff in error appeals. The plaintiff in error will be referred to as the defendant in .this opinion.

Before the defendant was placed on trial he filed his motion to suppress the evidence on the ground that it was secured by an unlawful search and seizure. Testimony was taken and his motion, to suppress was overruled, and defendant duly excepted. The same testimony in substance as was given in the trial of the case was 'given on Ids motion to .suppress tlie evidence. The officers admit they had no warrant for the arrest of the defendant, or to search his person or his car. They state they were on the street and saw the defendant drive by and followed him to see where he was going, and to see what he was going to do, if he stopped any place.

The testimony further shows he stopped at a place, leaving his car out in front, and was standing talking to a man who lived at the place; the officers got out, and one of them went over to' talk with the defendant, and the other went to the car; it was dark and they could see nothing in the car before the door was opened by the officer and he flashed his light inside and said he saw something in a sack that looked like bottles, and they took it out and the bottles contained whisky.

The sheriff, in order to try to make his search legal, says he was talking with the defendant, and defendant told him to go ahead and search the car; but the testimony shows that the search was being made before the defendant said anything to the sheriff about searching the car.

The officers admit they had no authority to search his car unless defendant had waived his right to search, and the defendant denies positively he gave his consent to search the car, and denies he told any one to search it. It is clear from the testimony that the defendant had been followed by the officers for the purpose of searching his car to where, he stopped his car and got out to talk with a man, and the officers searched the car before any question arose with the defendant about searching it.

This question has been before this court so many times that it would seem, the officers would learn that even though they may suspect the party was committing a crime, that they could not search his car* or his person without a search warrant or until after he was placed under arrest.

The first assignment of error of the defendant is the only one that it is necessary for this court to consider, and that is:

“That the court erred herein in not sustaining plaintiff in error’s motion to suppress the evidence.”

In Strong et al. v. State, 42 Okla. Cr. 114, 274 Pac. 890, this court in the first paragraph of the syllabus stated:

“The search of a car without warrant of arrest or search warrant or knowledge by the officer that it contained whisky held illegal, and evidence obtained should be excluded upon timely objection.”

The officer who made the search of the defendant’s car admits he did not see anything in the car until after he had opened the door of the car and flashed his light in, and by that time the sheriff and defendant came over to where he was. The evidence is insufficient to show the defendant waived his right and granted permission to search the car.

In Whitford v. State, 35 Okla. Cr. 22, 247 Pac. 424, in the second paragraph of the syllabus this court said:

“Where the officer does not know of the act constituting the offense it is not committed in his ‘presence.’ ”

In the fifth paragraph of the syllabus the court said:

“No search of the person or seizure of any article found thereon can be made on mere suspicion that the person is violating the prohibitory liquor laws in having intoxicating liquor in his possession, or without a search warrant, unless and until the alleged offender is in custody under a warrant of arrest, or shall be lawfully arrested without a warrant as authorized by law.”

The defendant may be guilty, but he is entitled to have a fair and impartial trial according to law. This court in the case of Mosier v. State, 59 Okla. Cr. 106, 56 Pac. (2d) 908, 909, said:

“Some things are to be more deplored than the unlawful sale of whisky. One is the loss of liberty. Common as the event may be, it is a serious thing to arrest a citizen, and it is more serious to search his person, and whoever accomplishes it must do so in conformity with the laws of our state. There are two reasons for this, one to avoid bloodshed, and the other to preserve the liberty of the citizen.”

The defendant having made timely objection by filing his motion to suppress the evidence, the court should have sustained the motion and excluded the evidence.

Without prolonging this opinion further, we hold that the search and seizure in this case was unlawful, and made without authority of law. There being no competent evidence to sustain the conviction, the judgment of the trial court is reversed, with directions to discharge the defendant.

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


text:
    Ex parte ADDIE KIMBROUGH.
    No. A-9185.
    Aug. 14, 1936.
    (60 Pac. [2d] 216.)
    Eaton & Wheeler, for petitioner.

      Mac Q. Williamson, Atty. Gen., and Sam Lattimore, Asst, Atty. Gen., for the State.
   PER CURIAM.

This is an original proceeding in habeas corpus for bail. Petitioner alleges he is unlawfully restrained by the sheriff of Okmulgee county; that he is charged with murder in said county and has been held by a committing magistrate without bail. That the proof of the commission of the capital offense is not evident nor the presumption great, and that he is entitled to bail.

The case is presented on a stipulation of facts and on oral testimony. Upon a consideration thereof, the court is of the opinion that the proof of the capital offense is not evident nor the presumption great, and that the petitioner is entitled to bail.

It is therefore ordered that petitioner be granted bail, and the same is fixed at the sum of fl5,000, sureties to be approved by the court clerk of Okmulgee county. That upon the execution and approval of said bail the petitioner be discharged.


author: PER. CURIAM.

text:
    TRAVIS ROBERTS v. STATE.
    No. A-9015.
    Aug. 14, 1936.
    (60 Pac. [2d] 212.)
    Morrill & .Snodgrass, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   PER. CURIAM.

The plaintiff in error was convicted of the crime of burglary in the second degree, and his punishment fixed at a term of two years in the Granite Reformatory, and appeals.

A copy of the record and case-made was filed in this court on October 21, 1935. No brief has been filed in, support of the defendant’s assignment of errors.

- A careful examination of the record fails to disclose any fundamental or prejudicial errors. The evidence is sufficient to support the verdict. The case is therefore affirmed.


text:
    EARL CLANTON v. STATE.
    No. A-9044.
    Aug. 21, 1936.
    (60 Pac. [2d] 415.)
    J. J. Smith, for plaintiff in error.
    Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charged that in Ottawa county on the 9th day of August, 1935, Earl Clanton did unlawfully have in his possession five and one-half pints of alcohol with the unlawful intent to sell, or otherwise furnish the same. Upon the trial the jury returned their verdict finding him guilty as charged and fixed his punishment at 30 days in jail and a fine of $50. A new trial having been denied, he appeals.

It appears that said defendant conducted a filling station between Seventh and Eighth streets on Southj Main, city of Miami, known as the Wilcox Service Station. In a brick building apart from the station he operated a cafe, which was known as “Trigg’s Place.”

It appears from the record that the chief of police of Miami and three police officers in executing a search warrant searched the cafe and the surrounding premises. The testimony of these three officers shows that they found five half pints of alcohol in the cafe building. Against the defendant’s objections the officers were permitted to testify to these facts.

The defendant as a witness in his own behalf denied ever having possession of the alcohol there found.

The affidavit of I. W. Ellis, affiant, made before C. C. Haley, justice of the peace, recites that intoxicating liquors are being kept for the purpose of being sold or otherwise furnished “by one John Doe, name unknown, on the following described premises, to wit: What is known as the Wilcox Filling Station on South Main St., Miami, Okla. between 7th and 8th on the east side of Main St., all of which is situated in the county of Ottawa, state of Oklahoma.” The search warrant issued thereon contains the same recitals.

When the case was called for trial, counsel for defendant filed a motion to suppress the evidence of the finding of alcohol because illegally obtained. The motion challenged the sufficiency of the affidavit for the search warrant made and filed as well as the warrant issued thereupon. Upon the hearing, the affidavit and search warrant were offered in evidence. The assistant county attorney confessed the motion to suppress, and the motion was sustained. Whereupon the county attorney objected to the minutes reciting his confession to the motion and dismissing the case. Thereupon the court vacated the order and denied the motion to suppress.

It is urged that the affidavit is insufficient, in that it does not describe the place where the officers searched, and that it fails to show probable cause supported by oath or affirmation, required by section 30, article 2 of the state Constitution, and did not conform to the provisions of section 2638, St. 1931, which reads:

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

In conformity to this statute and to the authorities generally, it has been many times held by this court that a search warrant must so particularly describe the place to be searched that the officer to whom it is directed may determine it from the warrant, and that no discretion as to the place to be searched is left to the officer. Smith v. State, 40 Okla. Cr. 366, 269 Pac. 376; Hall v. State, 34 Okla. Cr. 334, 246 Pac. 642; Phelps et al. v. State, 36 Okla. Cr. 213, 253 Pac. 910; Cahill v. State, 38 Okla. Cr. 236, 260 Pac. 91; Shanafelt v. State, 38 Okla. Cr. 345, 261 Pac. 380.

Obviously, the place to be searched described in the search warrant as the “Wilcox Filling Station” was insufficient to justify the search of the lunchroom in the cafe.

It follows that tbe search and seizure shown in this case was an unlawful trespass and an invasion of the constitutional rights of the defendant, and that all evidence with reference to liquor secured thereby should have been excluded on the defendant’s objections.

Because of the conclusion reached that the search warrant was insufficient to authorize a search of the defendant’s cafe, it will not be necessary to consider the other assignments of error.

For the reasons stated, the judgment of the trial court is reversed.

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