text:
    Ex parte LAWRENCE LYTTON.
    No. A-5815.
    Opinion Filed Sept. 26, 1925.
    (239 Pac. 270.)

      Moss & Farmer, for petitioner.
    Frank Hickman, Asst. Co. Atty., for the State.
   EDWARDS, J.

This is an original application by Lawrence Lytton for a writ of habeas corpus to be admitted to bail. Bail denied.

In the early morning hours of the 1st day of September, petitioner shot and killed Curley Lemmons near Tulsa. A complaint was filed and a preliminary examination had before a judge of the common pleas court of Tulsa county and the petitioner held without bail on a charge of murder. On the 15th of September an application by habeas corpus to be let to bail was filed in the district court before Hon. Luther James, a district judge of the district court of Tulsa county, and bail was denied. On the 18th day of September this application was filed; the petitioner contending that the record of the preliminary, supporting affidavits, and the oral evidence given on this application in this court, discloses that the offense for which the defendant stands charged is bailable, and that the proof is not evident, nor the presumption great, of his guilt of murder, and he prays that this court admit him to bail.

The record, consisting of a transcript of the evidence taken on the preliminary trial, of several affidavits filed in support of this application, and the oral evidence of the petitioner, discloses a state of facts about as follows: That on the 28th day of January, 1925, the petitioner was married to Fay Lemmons, the former wife of the deceased Curley Lemmons, and that said Fay. Lemmons, now Fay Lytton, was divorced from the deceased in July, 1924. The evidence discloses that she had been a dissolute character; that, subsequent to the marriage of petitioner with the said wife, the deceased associated with her, on one occasion took her riding, and was out on several occasions at the home of the defendant; that the deceased on the 31st day of August, the day prior to which he was killed, was released from the federal jail at Muskogee; and that the petitioner was released from the same jail some 20 days prior to that date. The killing took place at the Crazy Rock Inn, a lunch, sandwich, and soft drink emporium, some two miles or such a matter outside of the city of Tulsa.

The petitioner knew that the deceased was to be released from the Muskogee jail on that day. About 6 o’clock in the afternoon he went 'to the inn where the killing took place, stayed there until about 11:30, when he left and was gone some two hours, and during which time he drove back to Tulsa, drove about the streets, and then returned. Some 30 minutes before he returned to the inn, the deceased and the wife of defendant came there in a car, went into the lunchroom, seated themselves at a table, and ordered a lunch or drinks. On returning, the petitioner parked his car, took a pistol in his hand, and went to a screen door leading to the lunchroom, through which a waiter had just passed, and which had apparently become latched. Finding the door shut, he went around to a window some 2 or 3 feet from where his wife and deceased were sitting at a table, stepped up to the screen, pointed the pistol at the deceased, and, by his own testimony, said: “Sit still, Curley; don’t move.” The witness Kennedy, who appears friendly to the petitioner, and who had gone to the inn with petitioner, when he first went there that evening, testified that he said: “Curley, sit still, damn you; don’t move, or I will kill you.” Thereupon, according to the testimony of the petitioner, which is corroborated to some extent by other witnesses, the deceased jumped up and grabbed his hip, and the petitioner then fired; the bullet passing entirely through the body from one side to the other. The deceased fled to the back of the house, and petitioner stepped to the screen door and fired two more shots at the fleeing man, neither of which took effect. The deceased ran a short distance, fell, and expired without making any statement. The body and surroundings were not molested until the officers arrived. The deceased was unarmed. There was evidence, principally by the petitioner, that the deceased was a dangerous character and had made threats against the petitioner. The petitioner testifies that he believed the deceased was armed; that he commanded him to sit still, thinking that if he did so there would be no conflict; and that he fired because he believed the deceased was about to draw a weapon.

Offenses against the law are bailable, except capital offenses, when the proof of guilt is evident or the presumption thereof great. Where, in a charge of murder, an accused has been held without bail and application by habeas corpus is made to be let to bail, the burden is on the defendant to show that he is illegally deprived of his liberty; that is, to show that the facts and circumstances surrounding the commission of the offense, unless they appear from the evidence on the part of the state, do not make a case where the proof is evident or the presumption great. And if, upon a consideration of all of the evidence introduced on the application for bail, both for the state and the petitioner, a reasonable doubt is not generated of the applicant’s guilt of a capital offense, he is not entitled to bail. Even if there should be a reasonable doubt of the guilt of the accused, yet if, upon an examination of the entire record, the presumption is great that the accused is guilty of a capital offense, he is not entitled to bail.

Here the evidence discloses that the deceased, against the will of the petitioner, was associating with the wife of petitioner, and, although the wife is a witness for the petitioner in this proceeding, there is no evidence of criminal conduct between deceased and the said wife of petitioner. The petitioner certainly had the right to remonstrate against the association of his wife and the deceased and to take her from his company, but in the absence of any act of hostility, or act calculated to lead an ordinarily prudent person to believe that the deceased was about to assault him, there was nothing that would justify him in shooting and killing the deceased for mere association with his wife; and when the petitioner, with his pistol in his hand, approached deceased and killed him in the manner shown by the evidence, the presumption of the commission of a capital offense is great within the meaning of the law.

We do not mean to hold that upon the final trial of this case the evidence may not disclose a state of facts which would not warrant the court in submitting to the jury the element of manslaughter or of self-defense.

We refrain from commenting further on the evidence. Bail is denied.

BESSEY, P. J., and DOYLE, J., concur.


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    ARTHUR BROWNING v. STATE.
    No. A-4877.
    Opinion Filed Sept. 26, 1925.
    (239 Pac. 272.)

      Wright & Gill, for plaintiff in error.
    George F. Short, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the district court of Oklahoma county upon a charge of burglary in the second degree, the plaintiff in error, hereinafter called the defendant, has appealed.

Only 'two assignments of error are argued in the brief of defendant. First: That the court erred in overruling defendant’s motion to quash the information; second, insufficiency of the evidence. Upon the first assignment, it is argued that there was no showing made that the defendant had a preliminary examination. An examination of the case-made discloses that the motion to quash was not filed until long after plea had been entered, and not until the jury had been impaneled. Other parts of the record disclose that a preliminary had been had. It is well settled that when an information is filed in the district court charging a defendant with the commission of a felony, the law presumes that the defendant has had a preliminary examination or has waived it, and the information need not allege that fact. The burden of proof is on the defendant in such case if he contends that no preliminary examination has been had to raise the question by proper motion. Blair v. State, 4 Okla. Cr. 360, 111 P. 1003; Hughes v. State, 7 Okla. Cr. 117, 122 P. 554.

Even if there had been no preliminary, the objection came too late after announcement of ready for trial and the jury had been impaneled. Simpson v. State, 16 Okla. Cr. 533, 185 P. 116. The contention is wholly untenable.

Upon the second assignment argued, the record discloses that on the night of the 12th day of November, 1922, the store of Solts Bros., at Harrah, was broken into and about $300 worth of merchandise stolen therefrom. The following day, which was Sunday, a search warrant was procured and about the hour of 1 o’clock in the afternoon the premises of the mother of the defendant, with whom he lived, were searched, and in a garage near the residence the merchandise stolen, with a few minor exceptions, was found. The defendant was in the residence sleeping, and the following conversation between the defendant and Earl Breedlove, a deputy sheriff, is testified to:

“Q. And did he see this property? A. Well we had taken him out there then.
“Q. You took him out to where this property was? A. Yes.
“Q. What did he say, then? A. He wanted to know if we had a search warrant for the place, and we told him, ‘Yes.’
“Q. And what else? A. Well, that’s all, I believe; he said then, only me and him talking a little, for he said he was sick and he would like to walk a little, then, and I walked on around back with him to where they was getting the stuff altogether to go on up in town.
“Q. Well, while you was walking with him, what did he say, if anything? A. Well, he says to me, ‘You ain’t going to take me in unless you take Virg Waner, are you?’ I says, ‘Why, was he with you?’ He says, ‘Yes.’ I says, T will have to bump him, I guess.’ ”

The evidence also shows that the defendant and Virg Waner left a drug store at Harrah about midnight on the night of the burglary. Also during the period of his confinement in jail before trial the defendant, while denying the charge, offered to pay Solts Bros, the damages sustained by them if they would dismiss the charges against him.. There were various other circumstances, not necessary to detail, pointing to the guilt of the defendant, and his own testimony is a continued reiteration of the answer: “I don’t remember” or “I don’t know.” While the evidence is circumstantial, it points very conclusively to the guilt of the defendant, and the jury were fully warranted in finding him guilty. Where there is evidence from which the jury could reasonably arrive at the guilt of the defendant of the crime charged, this court will not set aside the verdict on the ground of insufficiency. Brimmage v. State, 17 Okla. Cr. 205, 187 P. 497; McLaughlin v. State, 18 Okla. Cr. 137, 193 P. 1010; Gunter v. State, 16 Okla. Cr. 476, 184 P. 797; Ravenscraft v. State, 23 Okla. Cr. 361, 214 P. 946.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    R. L. STEVENS v. STATE.
    No. A-5387.
    Opinion Filed Sept. 26, 1925.
    (239 Pac. 273.)

      S. E. Dunn and W. S. Meyer, for plaintiff in error.
   EDWARDS, J.

From a conviction in the municipal criminal court of the city of Tulsa, upon an information charging the sale of intoxicating liquor, the plaintiff in error, hereinafter called defendant, has appealed.

The only assignment of error argued is that the evidence is insufficient to sustain the verdict. The evidence in brief is: Two officers went to the house of one Williams, and by arrangement Williams called the defendant by telephone. Defendant then came to the porch of the house and Williams there ordered two quarts of whisky. The defendant went away and returned in a short time, went into the house, and was arrested. Very soon thereafter, a Ford car was driven up in front of the house, the officers went out, searched the car, and found the whisky as ordered by Williams.

The inference to be drawn from the evidence is that upon the ordering of the whisky by Williams the defendant went away, arranged to have the whisky brought to the premises, and himself returned to the premises for the purpose of delivering it, and entered the house, and upon discovering the officers concealed therein was arrested before delivery was made. It will be observed that the charge is not for transporting whisky, but for selling. The facts disclosed by the record and the inferences reasonably to be drawn therefrom are not, we think, sufficient to prove a sale.

This court in the case of Reed v. State, 3 Okla. Cr. 16, 103 P. 1070, 24 L. R. A. (N. S.) 268, said:

“A sale is defined by the authorities to be ‘an agreement by which a title passes from one, and vests in another;’ ‘a transfer of property from seller to buyer for a price in money paid or promised.’ Anderson’s Law Dictionary. Butler v. Thompson, 92 U. S. 415, 23 L. Ed. 684; Benj. Sales, § 1.”

23 Cyc. 180 (b), upon the subject “Intoxicating Liquors,” is as follows:

“The offense of illegally selling liquor is not committed by a bargain or executory contract for a sale. There must be a completed sale, which passes the property, consummated by the act of the parties as distinguished from the operation of the law, and amounting to a vending and purchasing of the particular commodity. It is not necessary that the liquor should have been paid for by the purchaser, but there must have been a delivery of the liquor to him. * * *”

In the case of City of Iola v. Lederer, 86 Kan. 347, 120 P. 354, it is held:

“To constitute a sale, there must be a consideration or price, a seller, a purchaser, and a delivery of the thing sold.”

In the case before us, the evidence at the most shows only an executory contract to sell. There must be a consideration paid or promised by or in behalf of a purchaser to or in behalf of a seller and a delivery. There was no delivery of the thing sold, the arrest was prematurely made, and the sale agreed to be made was not consummated. For this reason the evidence is insufficient to sustain the verdict.

The case is reversed and remanded.

BESSEY, P. J., and DOYLE, J., concur.


text:
    G. A. LOVETT v. STATE.
    No. A-5012.
    Opinion Filed Sept. 26, 1925.
    (239 Pac. 274.)

      Howe & Howe, Warren & Welch, 0. A. Brewer, and Warren & Warren, for plaintiff in error.
    George F. Short, Atty. Gen., and Y. P. Crowe, Asst. Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the county court of Choctaw county on a charge of disturbing religious worship, the plaintiff in error, hereinafter called defendant, has appealed.

An information was filed charging the defendant, G. A. Lovett, and his wife, Mrs. G. A. Lovett, with the offense of disturbing religious worship. Upon the trial, Mrs. G. A. Lovett was acquitted, and the defendant, G. A. Lovett, convicted and his punishment fixed at a fine of $100. Two assignments of error are suggested to the court: First, that the information does not sufficiently charge an offense; second, that the evidence does not show the commission of an offense.

The information is drawn under sections 1832, 1833, C. O. S. 1921. It charges in subtsance that the defendant, G. A. Lovett, and Mrs, Lovett, during a session of Sabbath school at Rock Hill schoolhouse, engaged in a quarrel with one Tom Norris, and during said quarrel denounced him as a liar. It will be observed that section 1832, supra, uses the word “willfully” in defining the offense. The word “willfully” is not used in the information. It is argued that the word “willfully” is part of the definition of the statutory offense and an essential ingredient of disturbing religious worship; that the act charged to have been done must have been done with the specific intent expressed in the statute, citing Cline et al. v. State, 9 Okla. Cr. 40, 130 P. 510, 45 L. R. A. (N. S.) 108; Canard & Whitmire v. State, 2 Okla. Cr. 505, 103 P. 737, 881, 139 Am. St. Rep. 949; Buffo v. State, 4 Okla. Cr. 516, 113 P. 233; Miller v. State, 9 Okla. Cr. 55, 130 P. 813; U. S. Zinc Co. v. Ross, 87 Okla. 21, 208 P. 805.

It is generally said that an information is sufficient which informs an accused of the offense with which he is charged with such particularity as will enable him to prepare his defense, and so defines and identifies the crime sought to be charged that the accused, if convicted or acquitted, will be able to defend himself in case he be again charged with the same offense by pleading the record of such former conviction or acquittal.

It is also settled that all the essential elements of the crime intended to be charged must be alleged in the information, but it is not necessary that the words used in the statute be strictly pursued in an information, but other words conveying the same meaning may be used. In the information before us the acts done are specifically set out, and it is charged that they were done contrary to law, and a liberal construction of the statute is indulged in favor of the state in this class of cases. Cline v. State, supra.

In 31 Corpus Juris, 697, it is said:

“Where the act, if done at all, is done unlawfully, it need not be charged to have been done willfully.”

That is, even though the word “willfully” is used in defining the offense, where the acts and words charged clearly import an exercise of the will, and said acts are charged to have been done unlawfully, the use of the word “willfully” is not essential. 31 Corpus Juris, 698; Holsman v. United States, 248 F. 193, 160 C. C. A. 271, 12 A. L. R. 390. While the safer rule is to follow the language of the statute in defining offenses, yet, under the liberal rule of our statute, and particularly the harmless error statute (section 2822, Comp. St. 1921), we believe the information is not fatally defective.

Upon the second assignment, that the evidence does not show the commission of the offense charged, the record discloses a state of facts about as follows: The defendant, G. A. Lovett, was acting superintendent of a Sunday school at Rock Hill schoolhouse, near Hugo. His wife, Mrs. G. A. Lovett, was a teacher in one of the classes. The defendant had formerly been a minister and bore a high reputation for good character and standing in his community. Some time prior to the occasion in question, one Mr. Norris and his wife, who was a sister of Mrs. Lovett, had become estranged and had separated, and some talk apparently had connected the defendant, G. A. Lovett, with bringing about the separation. At the time charged, after the classes in Sunday school had concluded their lessons and while waiting for the report of the secretary, Mrs. Lov-ett arose and asked permission to make a statement. No objection being made by any one, she stated in substance that it was being reported that Mr. Lovett had been charged with having some connection with the separation of Norris and his wife, but that such reports were false, and that the separation was due to other difficulties arising from the children of the respective parties by former marriages, and quoted some statement attributed to Mr. Norris in reference to that matter. Whereupon a son of Mr. Norris, present, interrupted and stated that he did not believe that his father had made such a statement, and about this time the defendant arose and said in substance that any one who said he had anything to do with the separation of Norris and his wife was an “infernal liar.” Some other member of the congregation then arose and suggested that that was not a proper place to discuss such matters and proceeded to adjourn Sunday school. There is little conflict in the testimony as to what took place at the time charged. The question now is, Did the statements of the defendant fall within the definition of a disturbance of a religious meeting, as defined by section 1833, C. O. S. 1921? It can, under no possible view, fall under any part of it other than the first subdivision, which is as follows:

“First. Uttering any profane discourse, committing any rude or indecent act, or making any unnecessary noise, either within the place where such meeting is held, or so near it as to disturb the order and solemnity of the meeting.”

It is argued by the state that the language used is within the definition of an unnecessary noise. It is not, however, contended, nor does the evidence show, that the defendant acted other than in a quiet manner, and while the language used was vigorous and emphatic and inappropriate, it is not shown to have been said in a loud or threatening manner. It is the words rather than the manner of speaking that is complained of. But the undisputed evidence shows that the defendant, a former minister and at the time a prominent worker in the church of his community, had attacks on his character spread in the community. Without any act on his part it was openly called to the attention of the Sunday school in which he was at the time taking a leading part. The action imperatively required that he repel these aspersions, and he did so in the language quoted, and in so doing we think he was not guilty of any crime. We do not conceive that he was in any worse position by reason of the fact that his wife raised the question than if some other person had raised it. When the character of an individual is assailed or questioned in a public meeting, the individual assailed is not required to sit meekly by and submit to any inference of guilt that might arise from silence, but has a right to proclaim his innocence in no uncertain manner.

For the reasons assigned, the case is reversed and remanded, with instructions to the lower court to dismiss.

BESSEY, P. J., and DOYLE, J., concur.


text:
    FRED CLARK v. STATE.
    No. A-5019.
    Opinion Filed Sept. 26, 1925.
    (239 Pac. 275.)
    McCollum & McCollum, for plaintiff in error.

      George F. Short, Atty. Gen., and V. P. Crowe, Asst. Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the county court of Pawnee county on a charge of selling whisky, the plaintiff in error, hereinafter called defendant, has appealed. Three assignments of error are alleged in the brief as ground for reversal. First: The admitting of incompetent evidence in behalf of the state; second, the excluding of competent evidence offered by the defendant; third, the giving of erroneous instructions.

The principal evidence for the state was that of two witnesses employed by the sheriff for the purpose of detecting offenders against the prohibition law, and in this instance the sheriff seems to have been unfortunate in selecting rather disreputable characters for this purpose. But, since the credibility of the witnesses is for the jury, and by its verdict it has indicated its belief in the witnesses for the state, this court will not disturb the verdict on that ground.

In the introduction of evidence on behalf of the state, the court, over the objection of the defendant, permitted the witness "Benham'to testify that he was directed to the defendant as a party from whom he could purchase whisky. This was obviously hearsay and not admissible. Again in the examination of this witness the defendant sought to develop rather fully the contract or agreement between the sheriff and the witness Benham in reference to the manner in which he was to be paid for his services in detecting violations of the prohibition law. The interest of a witness in a case is competent to be shown as affecting his credibility and as going to the weight and value to be given his testimony, and, where a witness against the defendant has testified that he is acting as a detective, a defendant should be allowed a rather wide latitude in examination as to the compensation and manner of payment, and particularly as to whether his compensation depends on a conviction. State v. Shew, 8 Kan. App. 679, 57 P. 137. An examination of the record convinces us that the trial court restricted too closely the cross-examination on this point.

The court’s instruction No. 6, in part, is as follows:

“* * * The prosecution of this offense is not an issue between the defendant and the officers of the law, but the defendant is being prosecuted for an offense against the state of Oklahoma.
“You are instructed, that it is no less an offense to sell intoxicating liquor for any purpose to a sheriff or prosecuting attorney, or to an agent, detective, or representative of either, than it is to sell to any one else; and a sale made to such officer or agent or detective, though solicited by him for the purpose of detecting the commission of the offense and of instituting prosecution therefor, and is punishable the same as if the sale had been made to any other person and for other purposes. * * *”

The germ of the instruction quoted is to be found in the case of Moss v. State, 4 Okla. Cr. 247, 111 P. 950, but it is not a statement of law proper to go to the jury as an instruction. Whether or not a sale Avas made was a controverted question of fact for the jury to determine. Nowhere is this instruction predicated on the necessity that the jury shall find the defendant guilty beyond a reasonable doubt, but it is assumed that the offense has been committed. This clearly denies to the defendant the right of the presumption of innocence, and it is further objectionable in other parts not quoted as singling out particular witnesses or class of witnesses and instructing on the manner of weighing their testimony instead of leaving their testimony to be governed by the general rules for the weighing of testimony of all witnesses. Brumbaugh v. State, 11 Okla. Cr. 596, 150 P. 88; Morris v. State, 11 Okla. Cr. 630, 150 P. 89; Fletcher v. State, 2 Okla. Cr. 301, 101 P. 599, 23 L. R. A. (N. S.) 581; Heacock et al. v. State, 4 Okla. Cr. 606, 112 P. 949.

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

BESSEY, P. J., and DOYLE, J., concur.


author: DOYLE, J.

text:
    CLEO AKES v. STATE.
    No. A-4924.
    Opinion Filed July 18, 1925.
    Rehearing Denied Sept. 26, 1925.
    (239 Pac. 187.)
    P. Mounts and W. H. Hussey, for plaintiff in error.

      The Attorney General, for the State.
   DOYLE, J.

In the information in this case, filed in the district court of Tillman county, Cleo Akes was charged with the crime of murder, alleged to have been committed in said county on the 25th day of January, 1923, by killing one Harry Herman Lauback, by shooting him with an automatic pistol. On the trial, the jury found him guilty of manslaughter in the second degree, and fixed the punishment at imprisonment in the penitentiary for a term of two years. From the judgment rendered on the verdict, May 25, 1923, an appeal was taken by filing in this court on November 23, 1923, a petition in error with case-made.

The defendant is not represented by counsel in this court, and no brief in support of the assignments of error has been filed.

It appears that the defendant, age 23 years, and the deceased, age 20 years, resided in the same neighborhood, three or four miles east of Manitou; that on the date alleged, in the evening, about 7 o’clock they had a difficulty in the town of Manitou, and the defendant shot the deceased with an automatic pistol, four shots taking effect, the fatal shot entered the right side at the belt line, passing through the intestines and the lower part of the stomach, from the effects of which the deceased died the following day.

The theory of the state was that the defendant, armed with an automatic pistol, sought the deceased and provoked the difficulty. The evidence for the state showed that the defendant fired four or five shots in rapid succession and then the deceased fired one shot.

The testimony of the defendant, in his own behalf, is as follows:

“I went to Manitou about 2 o’clock that afternoon; about sundown, I saw the deceased coming into town on a truck; about half an hour later I was standing in front of Stebben’s store with several others and he passed by then with three or four other boys. I walked down to the show and we went in; the deceased was there,, up towards the front. lA(hen the show was over I went outside and noticed the deceased standing on the street. I walked up to where he was and spoke to him; he turned around and I said to him,’ Herman, what did you mean by telling that Harmon boy that you were going to shoot me if I cussed you out?’ Mrs. Lauback came up about that time and said my mother and sister went over to Guthrie’s and told some lies; I said that anybody that says that my mother and sisters are liars are darn liars. He said, ‘Do you mean to call my mother a damn liar?’ and he fired a shot; it hit my side. I pulled my gun and went to shooting at him.”

He further testified that about a month before the deceased and a brother-in-law met him and told him that they wanted him to come to the house and talk to Martha; that they were armed; “I told them that I would go to the door, and when we got there she asked me what I was going to do about the child, and I told her I could not take it down to my mother’s; that she was too poorly to take care of it. He said: ‘Didn’t you promise to marry her?’ I told him, ‘No’; and she said, ‘No, Cleo, you never promised to marry me, never promised anything;’ that is what she said. The deceased then asked me if I wanted him to take me home, and I said, ‘No; I will just walk on down.’ ”

Several witnesses testified that the deceased fired the first shot. It is obvious that the case was one for the consideration of the jury, and we are unable after a careful examination to find any material error in the record. The •instructions were more favorable to the defendant than the law required.

If the defendant provoked the combat or produced the occasion in order to have a pretext for killing the deceased, or doing him great bodily harm, the killing was murder, no matter to what extremity he may have been reduced in the combat, but if he provoked the combat or produced the occasion without any felonious intent, the killing was not murder, but manslaughter in the first degree only.

Where the killing with a deadly weapon is admitted and there is no pretense that the killing was accidental, and where the defense is justifiable homicide in self-defense, there can 'be no issue of manslaughter in the second degree. However, it is a well-established doctrine in this state that a defendant, who has been convicted of manslaughter in the second degree, cannot complain that the evidence did not justify such a charge. Weatherholt v. State, 9 Okla. Cr. 161, 131 P. 185; Ballard v. State, 12 Okla. Cr. 277, 154 P. 1197.

We think the evidence is ample to have sustained a verdict against the defendant for a higher degree, and it seems to us that the jury was exceedingly lenient in fixing both the degree of the crime and the punishment. As shown by the record, the trial was in all respects fair, and, finding no prejudicial error, the judgment appealed from is affirmed.

BESSEY, P. J., concurs.

EDWARDS, J., disqualified.


author: BESSEY, P. J.

text:
    FARLEY WILSON v. STATE.
    No. A-5005.
    Opinion Filed July 25, 1925.
    Rehearing Denied Sept. 26, 1925.
    (239 Pac. 188.)

      W. R. Withington, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

Certain police officers, under authority of a search warrant, went to No. 415 W. Main street, in Oklahoma City, to search for intoxicating liquor. In a garage there they found whisky hidden in a box buried under the floor of the garage. The officers concealed themselves nearby until the defendant and a companion came up in a car and drove into the garage and closed the door. The officers then rushed in and found the defendant in the act of removing a gallon jug of whisky from the place where it was concealed in this receptacle under the floor. The officers then searched the car and found 11 gallons of whisky in the car.

The defendant claims that the search of the car was unauthorized and unreasonable and that the evidence so obtained was inadmissible. Both of these claims are untenable. The officers went to this place under lawful authority and there saw the defendant violate the law in their presence. Furthermore, we think the authority to search the premises included also the authority to search the automobile or other vehicles found there, and the lawful arrest for illegal possession carried with it the right to make this search. The evidence so obtained is also admissible upon another theory: It was part of the res gestae, according to the defendant’s own testimony.

It is urged that the punishment assessed by the jury was excessive. Possession by a defendant of so large a quantity of liquor as is here shown justifies the penalty imposed, even though it may have been a first offense.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    ROBERT RICH v. STATE.
    No. A-5000.
    Opinion Filed Aug. 1, 1925.
    Rehearing Denied Sept. 26, 1925.
    (239 Pac. 183.)
    Utterback & Stinson, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

For the sake of brevity, the plaintiff in error will be referred to as the defendant. The defendant and Will Barker, the person killed, were neighbors,' living about four miles southwest of the town of Benning-ton, in Bryan county. About two or three weeks before the homicide, a male hog belonging to the deceased got out of his pen and strayed onto the premises of the defendant’s father, with whom the defendant made his home. The defendant caught this hog and castrated him. On Saturday following, Barker and the defendant met in the town of Bennington, and Barker asked the defendant if he had castrated his hog. The defendant replied that he had, whereupon Barker drew his knife, and the defendant, at the same time or a little later, drew his knife, and in the affray that ensued defendant was cut on one arm. Hostilities then ceased for a moment, and the defendant told Barker that he could whip him without a knife, whereupon both men put up their knives and engaged in a fist fight until they were separated. Barker then went to a store and bought an automatic shotgun. He then proceeded homewards in his wagon, with his daughter and another young woman accompanying him. Soon after Barker left town, the defendant got in a car with a man named Shumate, who said he would take the defendant home. Presently these two passed Barker in his wagon, near the Manning schoolhouse and also near a log house occupied by a man named Johnson ; they were then about a mile distant from defendant’s home and about two miles from Barker’s home. Defendant got out at Johnson’s house and borrowed an automatic pistol, directing Shumate, the driver of the car, to proceed on his way, and stating that he would walk the rest of the way. As Barker and the two young ladies approached the Johnson house, the defendant came out with the pistol in his hand and began cursing Barker and threatening his life. Barker jumped out of the wagon, and a gun fight followed between the two men, in which several shots were fired but no one injured.

On the morning of the homicide, Barker drove a hay-rake past the home of the defendant, on his way to deliver it to another neighbor. After delivering the rake, Barker returned, riding a horse and leading a mule, and just before he got in front of defendant’s home the defendant, riding a horse and armed with a shotgun, approached. When they met, or just before they met, the defendant fired at Barker at close range; the shots penetrating Barker’s chest. Barker, after riding about 50 feet farther, fell from his horse and presently expired. There was evidence tending to show that at the time Barker was shot he had a knife in his hand. The defendant claims that he closed his knife and was in the act of drawing a pistol when defendant fired, in his necessary self-defense. An hour or more after the tragedy, and after the place had been visited by the defendant’s father and others, a pistol was found at the scene of the shooting. The oificers to whom the defendant surrendered asked him whether Barker had a gun, and the defendant replied that he did not see any, but that Barker had made a gun play. There was testimony on the part of the state indicating that the only revolver owned by Barker was at his home, wrapped up in an old shirt in a dresser drawer, and that it was there found the afternoon of the tragedy.

The errors assigned by the defendant and argued in his brief relate to the instructions given by the court.

First, instruction No. 13 is challenged, wherein the court said:

“If, however, you believe from the evidence that the defendant, Eobert Eich, * * * armed himself with a deadly weapon for the purpose of meeting and encountering the said Will Barker, intending then and there to have a difficulty with him, and that when he did meet him he voluntarily entered into the difficulty with him and killed him during the course of it, then he would be guilty of murder, regardless of who made the first overt act or demonstration towards engaging in the difficulty, and under those circumstances, no matter how imminent the peril in which the defendant found himself, he could not justify the killing of the said Barker under the plea of self-defense.”

The defendant claims that this is a vicious instruction, because it states that the defendant could not plead justification no matter what the circumstances might be. This instruction, considered in connection with the other instructions given, is not subject to this criticism and does not come within the rule announced in Gibbons v. Territory, 5 Okla. Or. 214, 115 P. 129. The instruction in the Gibbons Case and the facts upon which it was predicated are different, as an examination of that case will disclose. In the case at bar the parties had had previous difficulties; threats had been made and communicated; there was no eyewitness in the immediate vicinity of the homicide. The instruction as given, considered along with the other instructions and the evidence supporting it, under the circumstances in this case, could not have operated to the prejudice of the defendant.

Instruction No. 13 is merely a continuation of instruction No. 12, which stated that if the jury believed from the evidence, or had a reasonable doubt thereof, that the defendant met Will Barker by chance, or without any intent to enter into a fatal difficulty with him, and that Will Barker then and there made such an overt act or demonstration as led the defendant, situated as he then was, viewed from the viewpoint of a reasonable man, to believe that he was about to be killed by Barker, or was about to receive some great personal injury at his hands, and that the defendant honestly believed that he was in danger, and that he shot and killed Barker to protect himself, the defendant in that event would be justified, and if the jury so found they should acquit him.

A constant repetition to the jury that they must find all facts beyond a reasonable doubt is not necessary, where it appears from the instructions as a whole that that feature of the law was sufficiently emphasized in the instructions considered as a whole. In a case like' this jurors are not expected to act upon or consider finespun distinctions of the law on reasonable doubt and burden of proof. Little v. State, 25 Okla. Cr. 190, 219 P. 424; Edwards v. State, 24 Okla. Cr. 169, 216 P. 947; Dorris, v. State, 27 Okla. Cr. 208, 226 P. 590.

In instruction No. 11, relating to justifiable homicide, or self-defense, the court made this statement:

“This rule of justifiable homicide, or self-defense, as stated in the foregoing paragraphs of these instructions, is given one for his protection, and is defensive in its nature and not offensive; it means that a person who is unlawfully attacked has a right to use force, and no more, as reasonably appears to him to be necessary under the circumstances-”

The defendant claims that this declaration is condemned in the case of Franks v. State, 8 Okla. Cr. 71, 126 P. 582. An examination of that case will disclose that the instruction there given and the facts to which it was meant to apply are different from those in the instant case. The clause, “as reasonably appears to him to be necessary under the circumstances” (for his protection), states the true rule, and this instruction is not subject to condemnation as pointed out in the Franks Case, or the case of Brown v. State, 15 Okla. Cr. 64, 175 P. 66.

Paragraphs 13 and 14 of the instructions are further challenged by defendant upon the ground that the two considered together shifted the burden of proof to the defendant. The court holds that his objection is not well taken. It would serve no good purpose to enter into a technical discussion on that point.

Next instruction No. 7 is challenged. This instruction reads as follows:

“You are further instructed that if you find and believe from the evidence beyond a reasonable doubt that the defendant, Robert Rich, while testifying as a witness in his own behalf, admitted that in the county of Bryan and state of Oklahoma, on or about the 22nd day of May, 1923, he shot and killed Will Barker with a shotgun, then it would be your duty to find the defendant guilty of murder, unless the defendant has shown facts and circumstances of mitigation which would tend to excuse or justify the killing, by some proof strong enough to create in the minds of the jury a reasonable doubt of his guilt of murder, or unless the proof upon the part of the state tends to show that the offense, if any, only amounts to manslaughter, or that the defendant was justified in the killing of the said Will Barker.”

The language used in the concluding part of this instruction might be improved upon, but considered along with the opening portion of the instruction and the other instructions given, we hold that this instruction was not misleading, and that reasonably construed and interpreted along with the other instructions, it did not shift to the defendant the necessity for any greater degree of proof than the law contemplates. From the instructions as a whole it is apparent that the jury was required to find that a culpable homicide was committed, beyond a reasonable doubt, deduced from all the evidence in the case.

Finally, the defendant says that the court erred in instructing the jury upon the issue of manslaughter. This court does not agree with that contention. The record shows that the defendant and the deceased had had numerous quarrels; that there was malice and hard feeling existing between them; that on two previous occasions they had engaged in mutual affrays. The circumstances surrounding the killing might indicate to the minds of impartial jurors that this fatal affray started without any premeditated intent to kill, but culminated in homicide, under heat of momentary passion. There was sufficient evidence to support this theory, calling for an instruction on manslaughter.

There was no error in refusing the instructions requested by the defendant. The instructions given substantially, and, considered all together, fairly, covered the law of the case.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    Ex parte LEE DAWES.
    No. A-5510.
    Opinion Filed Sept. 29, 1925.
    (239 Pac. 689.)

      Bruce L. Keenan, for petitioner.
    ¡George F. Short, Atty. Gen., and G;. B. Fulton, Asst. Atty. Gen., for respondent.
   DOYLE, J.

The petitioner, Lee Dawes, under the writ of habeas corpus issued herein seeks to obtain his release from the custody of the sheriff of Cherokee county.

The petitioner avers that the cause of his unlawful restraint is as follows: That J. T. Parks, district judge for the First judicial district, at Tahlequah, Cherokee county, February 6, 1925, as said district judge, sentenced petitioner to be imprisoned and to pay fines for alleged direct contempts of court, and ordered the sheriff to take him from the room to the county jail; that, after petitioner had been removed from the courtroom, the said J. T. Parks presumed to have filed certain charges in writing against him, by W. W. Miller, the county attorney, each of which charged him with the commission of the crime of direct contempt of court.

It is further averred that on the said 6th day of February the only matters before the court were the contempt accusations against petitioner; that the first-mentioned charge was for an alleged statement by petitioner at a prior term of the court, and the second charge was for his statement to the court on February 5, 1925.

A duly certified transcript of the proceedings, attached to the petition and made a part thereof, is as follows:

“The Court: The reporter will take the proceedings. This is a matter of contempt proceedings before the district court against Lee Dawes. On yesterday, the 5th of February, 1925, Lee Dawes appeared in this court when it was duly and regularly convened at the February, 1925, term of said court and during the trial of causes appeared in the courtroom and addressed remarks to the judge of this court as follows: ‘That you are the one that ought to go to jail, and I will see that you go there.’ Previous to this time, and during the regular term of court in September, 1924, Lee Dawes, at that time appeared before this court, and asserted, in the presence of the court and in the presence of the people who were then in court in the courtroom, and during the regular September, 1924, term of court, and when this court was regularly and duly convened, and made the remark to this court: ‘You are not honest. You can’t look me in the eye.’ For this attitude towards the court and the language used by the said Lee Dawes constitutes and appears to be direct contejmpt. Lee Dawes, now being before the court, is asked what he has to say to the charge herein contained.
“Lee Dawes: Your honor, Lee Dawes is the defendant in the said cause, and asks this judge to be disqualified, as he is prejudiced towards the defendant now, and has been throughout the entire trial of all cases pending against him in said court.
“The Court: Anything further?
“Lee Dawes: No, sir.
“The Court: This case being a contempt case, it is not one to be tried or submitted to any other court under the law; and it is the sentence, and judgment of this court that Lee Dawes be committed to confinement in the county jail and there remain for a period of 90 days, and in addition thereto a fine of $500 is imposed upon him, and, if not paid, to be served out in the county jail at $1 per day, and he is placed in charge of the sheriff of Cherokee county at this time, to be thus confined and to begin his sentence at once, and it is so ordered, and the sheriff will take charge of him and confine him in the county jail.
“Lee Dawes: If I had paid you $300, everything would have been all right.
“The Court: Just a minute. Lee Dawes at this time states that, if he had paid this court $300, everything would be all right. Do you know any reason why you should not be held in contempt for this assertion and this contemptuous remark before this court at this time? For this remark before this court at this time and this contempt Lee Dawes is sentenced and ordered to be confined on the sentence in the county jail for the term of six months from the date of the expiration of the 90 days given in the previous case and fined in the sum of $250 in addition thereto; thus making three charges and offenses of contempt that have been committed by the said Lee Dawes before this court. (Lee Dawes taken into custody by sheriff and taken from courtroom.)
“The Court: The record should show, in rendering judgment in the Lee Dawes Case — it should be modified so as to show $250 fine and 30 days in jail on the September, 1924, offense of contempt; and a fine of $250 and 60 days in jail on the February 5, 1925, offense, that was yesterday, and then 6 months in jail and a fine of $500 on the offense committed to-day.”

It is further averred that, after he was taken from the courtroom, and wholly without his knowledge, there now seem to have been made three charges of contempt against him, each entitled “State of Oklahoma v. Lee Dawes,” and numbered 1348, 1349, and 1350, as the transcript attached hereto and made a part hereof shows.

It is further averred:

“That, for the failure of the court to punish the alleged direct contempts summarily at the time the court condoned and lost jurisdiction to punish on said 6th day of February for the direct contempt alleged to have been committed on the 15th day of September, 1924, and neither would the court have jurisdiction to punish on the 6th day of February for a contempt committed on the 5th day of February, unless the court noticed the contempt and summarily laid the foundation at that time for contempt proceedings.”

It is further averred:

That the judgments of conviction and commitments thereon are void:

“First. Because made apparently from separate and distinct charges of a crime committed against the peace and dignity of the state of Oklahoma, without notice or knowledge of him and not in his presence, and upon which he has never had a hearing.
“Second. Because the several commitments do not state the substance of the offense required by the statute to be set forth to give them any validity.”

That his detention and imprisonment is in violation of his constitutional rights, and he is deprived of his liberty without due process of law.

Respondent, J. T. Powell, sheriff of Cherokee county, interposed a general demurrer to this petition, and the same was overruled. Thereupon said sheriff made return thereto, wherein it appears that, on an information charging statutory rape, petitioner was tried and convicted, the punishment having been left to the court by the jury, and on September 15, 1924, the court sentenced the said Lee Dawes to imprisonment in the penitentiary for a term of 14 years.; that an appeal from said conviction was duly perfected and is now pénding in this court; that on February 5, 1925, said Lee Dawes by order of the court was placed in his custody pending an investigation involving the said Lee Dawes in hiding a witness who was the prosecutrix in another rape case against said Lee Dawes, which case was called for trial on said day, and wherein the county attorney had filed a motion for continuance on account of the absence of said witness; that said Lee Dawes was again placed in his custody on the 6th day of February, 1925, by the judge of said district court, and that he held said Lee Dawes in custody by virtue of three judgments of the district court for contempts of court and sentencing him to terms of imprisonment in the county jail and commitments issued thereon, certified copies of the commitments being attached to the return, which, omitting title, venue, and attestation, are as follows:

“The State of Oklahoma to the Sheriff of said County, Greeting: No. 1348. Whereas on the 6th day of February, 1925, before the district judge of Cherokee county and state aforesaid, the above-named defendant, Lee Dawes, was adjudged guilty of the crime of direct contempt of said court, and on the 6th day of February, 1925, was by said court adjudged to pay a fine of $250 and costs $3.50, and to serve thirty days in the county jail at hard labor:
“Now, therefore, you are hereby commanded to take the said Lee Dawes into your custody and confine him in the jail of said county for thirty days and upon failure to pay the costs to be paid, said fine and cost, defendant to serve one day in jail at hard labor for each one dollar of such fine and costs until such fine and costs are paid; sentence to begin this day.
“In testimony whereof, witness my hand and seal this 6th day of February, 1925.
“J. T. Parks, District Judge.”

The other two commitments are alike in form, and differ only in the penalty imposed. No 1349 recites, “To pay a fine of $250 and costs of $3.50, and to serve 60 days in the county jail at hard labor,” with the further recital, “Sentence to begin at expiration of case No. 1348.” No. 1350 recites, “to pay a fine of $250 and costs of $3.50, and to serve six months in the county jail at hard labor,” with the further recital, “Sentence to begin at the expiration of sentence in case No. 1349.”

Several questions are presented for decision; however it would serve no useful purpose to review all these questions. Contempts of court in this state are governed by constitutional and statutory provisions, and not by common-law rules. It is essential to the validity of proceedings in contempt, subjecting a party to a fine and imprisonment, that they show a case in point of jurisdiction within the provisions of the law by which such proceedings are authorized. Cress v. State, 14 Okla. Cr. 521, 173 P. 854.

In cases of direct contempt under the constitutional and statutory provisions, the contemner being present in court, neither a formal charge against him in writing or process is required; only an opportunity to be heard is given. No record is made other than the judgment, in this, as the statute provides, “the substance of the offense shall be set forth in the order for his confinement, and made a matter of record in the court.” Section 1700, C. S. 1921. This provision can only mean that the order of commitment must contain a recital of those facts which make it a direct contempt, and is mandatory in its terms.

In Ex parte Sullivan, 10 Okla. Cr. 465, 138 P. 815, Ann. Cas. 1916A, 719, it is held:

“Under the clause of section 25 of the Bill of Rights, providing, Tn no case shall a penalty or punishment be imposed for contempt, until an opportunity to be heard is given/ an opportunity to be heard before a penalty or punishment is imposed for contempt is án indispensable essential to the administration of due process of law as contemplated by the constitutional inhibition that ‘No person shall be deprived of life, liberty, or property without due process of law.’ Section 7, Bill of Rights.”

In the opinion we said:

“When a person is held under a commitment for contempt of court, such person may, by habeas corpus, secure a determination as to the jurisdiction of the court in ordering the commitment. It matters not what the general powers and jurisdiction of the court may be, if it acts without authority in the particular case, its judgment and order is a mere nullity. And if it be adjudged that the committing court had no jurisdiction, and that the order of commitment was made without authority of law, the person will be entitled to a discharge from custody, in order to preserve the constitutional right of all persons not to be deprived of liberty without due process of law.”

In Hosmer v. State, 24 Okla. Cr. 312, 218 P. 164, it was held:

“The constitutional ‘right to be heard,’ in a contempt proceeding, means the right of the accused to introduce evidence in a formal, orderly manner in justification or in mitigation of the offense, and to have such evidence considered before judgment in contempt is rendered.”

The transcript of the proceedings shows that only two judgments of conviction were pronounced by the court against the petitioner while he was present in open court, and it is impossible to ascertain from the transcript whether the first sentence was for the contempt committed at the previous term of court or on account of the language and conduct of the petitioner in open court on the previous day. It is also manifest that the petitioner was not accorded his constitutional “right to be heard” when the second sentence was imposed. The record shows that the three judgments of conviction pronounced in the absence of the petitioner are the judgments upon which the three commitments were issued.

One of the reasons for the rule of the common law, requiring that the defendant should be personally present before the court at the time he is sentenced, is that “he may have an opportunity to say why judgment should not be given against him.” It follows that a judgment or order committing to jail upon a charge of direct contempt, made in the absence of the contemner, is void, because he is denied his constitutional right to be heard.

In Ex parte O’Brien, 127 Mo. 477, 30 S. W. 158, the Supreme Court of Missouri held that a commitment issued by a court of one charged with a contempt committed in the immediate view and presence of the court is illegal, where no judgment was rendered, or ordered to be entered, before the commitment, adjudicating that the petitioner had been guilty of contempt.

In Ex parte Mettler, 50 Mont. 299, 146 P. 747, the Supreme Court of Montana held that, under the statute providing that where a contempt, committed in the court’s presence, is punished summarily, the order shall recite the facts as occurring in such presence; án order not stating such facts would preclude review by the Supreme Court and cannot stand.

In Ex parte Lake, 65 Cal. App. 420, 224 P. 126, it was held that, in a case of direct contempt, the order of commitment must set forth facts constituting the contempt, and is void unless it shows on its face facts sufficient to constitute a legal contempt; mere conclusions being insufficient.

In State v. Plese, 235 P. 961, the Supreme Court of Washington held that:

“Judgment in contempt proceedings, reciting that court found defendant guilty of contempt as charged in affidavit filed in case, held not to make findings of fact.”

And further that:

“Defendant did not waive failure of court to make findings of fact in contempt proceedings, though he did not request them until long after judgment had been made.”

It will be observed that the transcript of the proceedings herein set out is a transcript of the stenographic notes of the court reporter and no part of the record proper. The statute (section 2777, C. S. 1921) provides what shall con-statute a record of the action to be made by the court clerk when judgment upon a conviction is rendered, and such record includes a copy of the judgment. In the sheriff’s return are included certified copies of the judgments of conviction which were filed by the court clerk after the writ in this case issued; however these judgments do not recite any of the facts upon which the judgments are based, and are identical in their recitals with the orders of commitment.

Without considering other objections to the sufficiency of the judgments in question and the orders of commitment issued thereon, it follows from what has been said that, in failing to state facts which constituted the alleged contempt, making the same a matter of record in the court, and in failing to set forth the substance of the offense in the orders of commitment, said judgments of conviction and orders of commitment are void.

The writ of habeas corpus is therefore allowed, and the petitioner discharged.

By order of this court petitioner was admitted to bail pending the final determination of this proceeding. The bond furnished in response to that order is discharged, and the sureties thereon exonerated.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    GUY LINDSEY et al. v. STATE.
    No. A-5162.
    Opinion Filed Oct. 1, 1925.
    (239 Pac. 684.)

      R. C. Roland, for plaintiffs in error. •j
    The Attorney General, for the State.
   DOYLE, J.

Plaintiffs in error, Guy Lindsey and Sid Giles, were convicted on an information charging that in Carter county, October 26, 1922, they did have in their possession five gallons of whisky with the willful and unlawful intent to sell the same. The jury returned two verdicts, one finding the defendant Lindsey'guilty as charged, and fixing his punishment at a fine of $100, and imprisonment in the county jail for 60 days; the other finding the defendant Giles guilty as charged, and fixing his punishment at a fine of $50, and imprisonment in the county jail for 30 days.

From the judgments rendered January 9, 1924, an appeal was perfected by filing in this court on May 8, 1924, petition in error with case-made, but no brief has been filed, and no appearance made in behalf of plaintiffs in error in this court.

The evidence shows that two officers went to the home of the defendant Guy Lindsey, and about daylight found a still about 400 yards east of Guy Lindsey’s house, nearby were a couple of barrels of mash; they followed tracks to the house, and found four boys eating breakfast; one of them pushed over a four-gallon crock full of corn whisky; they found another half-gallon jar in the kitchen over half full of whisky.

The defendant Guy Lindsey did not testify.

As a witness in his behalf, the defendant Giles testified that he did not have any interest in the whisky; that Guy Lindsey invited him out to his place and the night before he was arrested he left Ardmore and drove in a Ford roadster to Lindsey’s place, meeting the two officers about two miles outside the city, he spoke to them; that about daylight he got up to go hunting and laid his shotgun aside and was eating breakfast when the officers came in; that Fount Franklin turned over a jar containing whisky.

In rebuttal the state called Officer Ginn, and against the defendant’s objections he testified as follows:

“Q. Mr. Ginn, how long have you known Sid Giles? A. I have known him 10 or 15 years.
“Q. State whether or not you are acquainted with his general reputation in the community in which he has lived as being a man who handles whisky or otherwise? A. Yes, sir; I do.
“Q. State whether that reputation is good or bad? A. Bad.
“Mr. Roland: The defendant moves to strike the testimony. (Overruled.) ”

By numerous decisions of this court it is held that the state cannot attack the character of a defendant, unless he puts his character in issue by introducing evidence of good character. Kirk v. State, 11 Okla. Cr. 203, 135 P. 307; Cantrell v. State, 12 Okla. Cr. 534, 159 P. 1092; Upton v. State, 12 Okla. Cr. 593, 160 P. 1134; Salyer v. State, 25 Okla. Cr. 433, 221 P. 118.

For the error above indicated, the judgment as to the defendant Sid Giles is reversed.

Finding no material error in the record affecting the rights of the defendant Guy Lindsey, the judgment appealed from herein against him is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    SAM FUHR v. STATE.
    No. A-4875.
    Opinion Filed Oct. 1, 1925.
    (239 Pac. 679.)
    J. Q. A. Hkrrod, for plaintiff in error.
    George F. Short, Atty. Gen., and Y. P. Crowe, Asst. Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the county court of Oklahoma county on a charge of maintaining a public nuisance, the plaintiff in error has attempted to appeal. An examination of the record discloses that the judgment and sentence was rendered in the county court on the 4th day of June, 1923, and the attempted appeal was not lodged in this court until the 5th day of October, more than 120 days after the rendition of the judgment. The state has filed a motion to dismiss the appeal, which must be sustained. The longest period of time in which an appeal from a conviction for a misdemeanor may be lodged in this court is 120 days. Section 2808, Comp. St. 1921.

This appeal not having been lodged within 120 days, this court does not acquire jurisdiction. Farmer v. State, 5 Okla. Cr. 151, 114 P. 753; Cook v. State, 5 Okla. Cr. 678, 114 P. 1129; Jones v. State, 4 Okla. Cr. 660, 112 P. 760; Scott v. State, 4 Okla. Cr. 657, 112 P. 763; Lundy v. State, 8 Okla. Cr. 291, 127 P. 707; Place v. State, 28 Okla. Cr. 149, 229 P. 651.

The appeal is dismissed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    E. M. McKENNON v. STATE.
    No. A-5160.
    Opinion Filed Oct. 1, 1925.
    (239 Pac. 680.)

      H. J. Mackey, for plaintiff in error.
    George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charged that in Oklahoma county, November 28th, E. M. Mc-Kennon and John Doe did then and there unlawfully transport eight gallons of whisky from a point in said county unknown to the intersection of Main street and Broadway, Oklahoma City. Upon his separate trial, the jury found the defendant McKennon guilty and fixed his punishment at a fine of $50 and confinement for 30 days in the county jail. From the judgment rendered on the verdict, he appeals.

It is assigned as error that the verdict was contrary to law and the evidence, and that the court erred in instructing the jury as to the law of the case.

The evidence shows, that on the date alleged a Ford car stalled near the middle of the street near the corner of Broadway and Main street.

E. W. Cantrell, traffic officer, testified that said car began to jamb the traffic and he went to the car to see what was the matter and smelt whisky; that he looked in behind the curtains and the defendant McKennon was sitting in the back seat, and there was a five-gallon jar and a one-gallon jar and other smaller jars between the seats; the jars were full of com whisky. The driver of the car left and could not be found. That he called Captain J. B. Ryan, who arrested the defendant Mc-Kennon.

Captain Ryan testified as to the whisky found in the car, and that the defendant McKennon was drunk.

The defendant as a witness in his own behalf denied ownership of the whisky, and stated that a man driving an automobile overtook him east on Twenty-third street and asked him if he wanted to ride to town; that another man riding with the driver in the front seat got out of the car before they reached Broadway and the driver told him not to get out and expose the “stuff”; that he had not seen the men who were driving the car in question before that day.

It is an elementary rule that in every criminal prosecution the guilt of the accused of the offense charged must be established by the evidence beyond a reasonable doubt, however, it is an equally well-recognized rule that the conviction of the defendant may be had upon circumstantial evidence alone, when it is of such force as to exclude every reasonable hypothesis of his innocence. And this is especially true of violations of the liquor laws, which are nearly always committed by methods that often make detection difficult.

In all such cases, it is the province of the jury to pass upon the credibility of witnesses and determine from the evidence as a whole the guilt or innocence of the defendant, and in this case no reason whatever is apparent for defendant’s complaint that the evidence is insufficient to support a conviction.

There is nothing in the objections to the instructions.

Finding no reversible error in the record, the judgment appealed from herein is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


author: BESSEY P. J.

text:
    HARRY BARNETT et al. v. STATE.
    No. A-4966.
    Opinion Filed Oct. 1, 1925.
    (239 Pac. 680.)
    A. M. Stewart and Wm. M. Williams, for plaintiffs in error.
    The Attorney General and Fred Hansen, Asst. Atty. Gen., for the State.
   BESSEY P. J.

The plaintiffs in error named in the caption will be referred to herein as the defendants.

The defendants were jointly informed against in the county court of Greer county, charged with conveying one-half gallon of corn whisky from the home of Poley Cardin to a point near the public highway about a quarter of a mile east of Cardin’s home. No severance was asked, and all of the defendants were tried at the same time. The jury returned a verdict of guilty as to each of the defendants, but stated that they could not agree upon the punishment. The court, in rendering judgment upon the verdict, fixed the punishment of each of the defendants at confinement for a period of 5 months in the county jail and a fine of $300.

From the record it appears that on the 27th day of May, 1923, certain deputy sheriffs of Greer and Harmon counties were on the highway adjacent to the Cardin premises between 1 and 2 o’clock in the morning, when they saw a Ford car driven by the defendant Harry Barnett, with the other defendants in the car, coming from the Cardin home; that while there they also noticed a light or lights moving about the Cardin home, sometimes visible and sometimes not; that, as the Ford car approached the gate leading into the highway, deputy sheriffs mounted the running boards of the car, one on either side, and commanded the occupants of the car to throw up their hands, which they did. To this manner of arrest and search and seizure following, no objections were made in the trial court.

Almost immediately, the officers heard the crash of a bottle or jar in the front part of the car; they then required the defendants to alight and found a broken half-gallon fruit jar; some of the liquid contained in the jar was trickling out of the front part of the car; part of it was on the running board of the car and on the grass under it; and the lid of the jar and possibly •some of the fragments of broken glass contained what the officers said was corn whisky.

A little later the officers went to the Cardin home and there found some mash, 3 gallons of corn whisky hidden in a sand pit, and some other evidences of the manufacturing and disposing of whisky.

None of the defendants testified, either in his own behalf or in behalf of his codefendants.

There are eighteen assignments of error, but it will not be necessary to prolong this opinion by treating each separately. They will be grouped and treated thus: First, alleged errors of the court in the admission of evidence on the part of the state; second, alleged errors of the court in refusing requested instructions; third, alleged errors of the court in giving certain paragraphs of the instructions; fourth; that the punishment assessed by the court is unreasonable and excessive.

As stated above, no objection was interposed in the trial court to the admission of the evidence obtained by the officers in their irregular search and seizure of the liquor here involved, and this question cannot be raised in this court for the first time.

The defendants claim that the proof was insufficient to show that the liquid in question was whisky. Without analyzing the volume of testimony on this point, this court holds that the evidence, direct and circumstantial, was sufficient to establish the fact that it was whisky, and that the jury were justified from the evidence in concluding that all of the occupants of the car were implicated in its transportation, and that the place from which it was transported to the place where it was found by the officers was sufficiently shown.

The defendants in their brief claim that this whisky, if whisky it was, may have been intended merely for their own use, and that there was no sufficient proof of an illegal transportation. This contention is untenable, because the law makes no exceptions, and any transportation from one place to another, particularly where there is a change in the physical possession of the liquor, is illegal.

We find no error in the instructions given, or in the court’s refusal to give the instructions requested, sufficient to warrant a reversal of this cause. A portion of the requested instructions was incorporated in the instructions given in such manner as fairly to apprise the jury of the law applicable to the facts.

From the record it appears that these defendants were boys or young men (the exact ages are not shown), and that they were in fact probably transporting this liquor for their own use and entertainment, that they were not bootleggers nor otherwise implicated in the distribution of the liquor made and kept at this Cardin plant, and that, so far as the record discloses, this was their first offense. We think, therefore, that under all the circumstances the punishment assessed by the court was excessive, and it is ordered that the judgment of the trial court as to each defendant be modified to a fine of $50 and confinement in the county jail for a period of 30 days.

The judgment as so modified is affirmed.

DOYLE and EDWARDS, JJ., concur.


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    J. J. McADAMS v. STATE.
    No. A-5108.
    Opinion Filed Oct. 1, 1925.
    (239 Pac. 677.)

      Womack, Brown & Cund, and H. M. Carr, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The plaintiff in error, J. J. McAdams, was convicted on a charge of unlawfully conveying two pints of corn whisky from a place unknown to the corner of Thirteenth and Ash streets, in the city of Duncan. The jury failed to fix the punishment. By the judgment of the court, pronounced December 15, 1923, he was sentenced to pay a fine of $200 and to be confined in the county jail for 60 days. From the judgment, he appealed by filing in this court April 8, 1924, a petition in error with case-made, but no brief has been filed and no appearance made on his behalf in this court, When the case was called for final submission, it was submitted on the record.

The evidence for the state is uncontroverted.

An examination of the record discloses no error sufficient to warrant a reversal of the judgment, and the same is affirmed.

BESSEY, P. J., and EDWAEDS, J., concur.


text:
    J. J. McADAMS v. STATE.
    No. A-5109.
    Opinion Filed Oct. 1, 1925.
    (239 Pac. 677.)

      Womack, Brown & Cund and H. M. Carr, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charged that in Stephens county August 22, 1923, J. J. McAdams did unlawfully transport one-half gallon of corn whisky from a place unknown to a place one mile east and one-half mile south of the city of Duncan. On the trial, the jury returned a verdict finding him guilty and fixing his punishment at a fine of $250 and 60 days in the county jail. From the judgment rendered on the verdict, an appeal was perfected by filing in this court on April 8, 1924, a petition in error with case-made.

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

An examination of the record discloses that the testimony of E. R. Young, sheriff, and I. B. Gossett, chief of police of Duncan, is undisputed.

It appears that the instructions fairly covered the law of the case, and finding nothing in the record to indicate that the defendant did not have a fair trial, the judgment appealed from is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


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    E. M. BLANTON et al. v. STATE.
    No. A-4790.
    Opinion Filed Oct. 1, 1925.
    (239 Pac. 698.)

      Hatchett & Semple, O. R. Fowler, Williams & Fin-ney, and Victor C; Phillips, for plaintiffs in error.
    George F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen., for the State.
   EDWARDS, J.

For brevity and convenience, the plaintiffs in error will be referred to as defendants. This proceeding is an appeal from an order of the district court of Bryan county adjudging the defendants guilty of a direct contempt of court, and sentencing them to pay a fine of $50 and to serve 30 days in the county jail. The case arose in this manner: These defendants were served with a subpoena duces tecum to appear before the grand jury of Bryan county, the subponea containing an order as follows:

“And bring with you, on behalf of the state, all records of the membership, minutes of all regular or called meetings, and all other records, in your possession or under your control, of the Knights of the Ku Klux Klan, Durant Klan No. 42.”

The defendants • and E. G. Villers appeared before the grand jury and testified, but did not produce the records called for in the subpoena. Thereafter, the grand jury filed an “application' for order adjudging witnesses to be in contempt of court.” This instrument set forth that the defendants had failed to produce records as directed; that the records were needed by the grand jury in the investigation relating to the alleged whipping of one Ned Bates and Tom Mayo; that the witnesses had conspired to withhold and suppress these records and were depriving the grand jury of evidence it needed. The court was asked for an order committing the defendants and Villers for contempt, until they should purge themselves by producing the said records. The court then made an order to the effect that, unless defendants and Villers brought said records into court by 1:30 p. m. of that date, they would be adjudged guilty of contempt. At the hour of 1:30, defendants and Villers came into court without the records, and the court inquired if they were ready to comply with the order made upon them to produce the records requested by the grand jury, and the said defendants and Villers informed the court that they had not produced the records, and the court thereupon adjudged them guilty of contempt for refusing to comply with said order. At their request, the court held in suspension the passing of judgment and sentence until the Monday following. At that time, the parties appeared, made a written request for a trial by jury, which the court denied, and held the charge was for a direct contempt. The parties then requested leave to file a written answer, which was granted, and the written answer filed. The court further ruled that the burden was on the defendants and Villers to purge themselves of the contempt. The answer is joint, and is, in substance, that Villers is the chief officer, with the title “Exalted Cyclops of the Ku Klux Klan, Durant Klan No. 42.” The defendant Stephenson says he was at one time secretary of said Klan but had not been since June, 1923. The defendant Blanton denies that he is assistant secretary of the Klan. All deny that they have possession of any of the records or files of the said Klan, deny any knowledge of where said books, records, and files are, deny that they know who has said books, records, and files, and allege that it is not in their power to produce the same or to get them. State that in obedience to subpoenas issued by the grand jury they appeared before said grand jury and truthfully answered all questions concerning all matters whatsoever. The answer was verified by the parties.

Thereupon each of the parties, together with Jim Blanton, a brother of the defendant E. M. Blanton, testified before the court. The testimony of defendant Blanton is that he had been the secretary of Durant Klan, but his term expired in February preceding, and since that time he had not had custody of the records, and had no idea where they were; that the defendant Stephenson who succeeded him as secretary, told him at one time he was going to resign as secretary and wanted him (Blanton) to act, but had not turned over to him any records, though his brother had informed him that Stephenson had left a box of books at his place of business, but the witness had never seen them.

Defendant Stephenson testified that he resigned as secretary about June 25th, and that he left the books and records at Blanton’s store under the counter and told a brother of the defendant Blanton to give them to Ed, meaning the defendant E. M. Blanton, who was at that time out of the city. This testimony was corroborated by Jim Blanton, brother of the defendant Blanton.

Villers testified that he was Exalted Cyclops, that he knew nothing about the records, never had the custody of them, and had endeavored to get them, but was unable to find them.

All testified they were perfectly willing to deliver them to the grand jury, if in their power to do so. The evidence was further that the records contained nothing in reference to any whippings or which would throw any light on any alleged whippings.

The state offered no evidence to controvert the testimony of defendants. At the conclusion' of the evidence, the court made an order adjudging Blanton and Stephenson guilty of contempt and assessed a punishment of 30 days in jail and a fine of $50, and discharged Villers. Motion for a new trial was filed and overruled.

The defendants present the following assignments of error: First, that the judgment and sentence is contrary to the evidence and not supported thereby. Second, that if the acts complained of were a contempt, it was an indirect contempt and defendants were entitled to a jury trial. Third, that the court adjudged defendants guilty without hearing any evidence or giving them an opportunity to be heard. Fourth, that no charge or accusation was made against defendants. Fifth, that the subpoena duces tecum was unauthorized and void, and without a showing that the records contained material evidence and were too general. These assignments, so far as material to a decision, will be considered/ Article 2 of the state Constitution, § 25, provides:

“The Legislature shall pass laws defining contempts and regulating the proceedings and punishment in matters of contemnt: Provided, that any person accused of violating or disobeying, when not in the presence or hearing of the court, or judge sitting as such, any order of injunction, or restraint, made or entered by any court or judge of the state shall, before penalty or punishment is imposed, be entitled to a trial by jury as to the guilt or innocence of the accused. In no case shall a penalty or punishment be imposed for contempt, until an opportunity to be heard is given. (Bunn’s Ed. § 34.)”

And section 2 of the schedule continued in force all laws of Oklahoma territory then in force not repugnant to the Constitution; thereby sections 1697, 1698, 1699 and 1700, Comp. St. 1921, were continued in force as the law of contempt; said sections having been enacted by the territorial Legislature in 1895.

Contempts are classified and divided as “civil” con-tempts and “criminal” contempts. The distinction between “civil” and “criminal” contempts is this: The former consists in disobeying some judicial order made in the interest of another party to a proceeding. The latter consists of acts disrespectful to the court, or obstructive to the administration of justice, or calculated to bring the court into disrepute. In the case at bar, the order violated not being made for the benefit of any party to any litigation or matter pending in the court is not a “civil” contempt, but is an act obstructive to the administration of justice, and is a criminal contempt. Gudenoge v. State, 2 Okla. Cr. 110, 100 P. 39.

Contempts are further classified as direct and indirect contempts. Section 1697, Comp. St. 1921, is as follows:

“Contempts of court shall be divided into direct and indirect contempts. Direct contempts shall consist of disorderly or insolent behavior committed during the session of the court and in its immediate view and presence, and of the unlawful and willful refusal of any person to be sworn as a witness, and the refusal to answer any legal or proper question; and any breach of the peace, noise or disturbance so near to it as to interrupt its proceedings, shall be deemed direct contempt of court, and may be summarily punished as hereinafter-provided for. Indirect contempts of court shall consist of willful disobedience of any process or order lawfully issued or made by court; resistance willfully offered by any person to the execution of a lawful order or process of'a court.”

A civil contempt may be either direct or indirect, and a criminal contempt may be either direct or indirect. If a contempt is indirect, the person so charged, upon demand, has a right of trial by jury as to guilt or innocence. Section 25, art. 2, State Constitution. And, since the defendants in this case demanded a trial by jury, it is necessary that we determine whether the contempt charged was direct or indirect. For if indirect, defendants were denied a constitutional right in denying them a trial hy jury, and were denied a statutory right in being proceeded against without a written accusation. It will be observed that section 1697, Comp. St. 1921, above quoted, sets out what shall constitute a direct contempt, and a direct contempt is therein defined as; First. Disorderly or insolvent behavior during the session of the court in its immediate view and presence. Second. Unlawful and willful refusal of a person to be sworn as a witness, and the refusal to answer any legal or proper question. Third. Any breach of the peace, noise, or disturbance so near to the court as to interrupt its proceedings. The numbering of the subdivision do not appear in the statute, and are put here for our own convenience. The contempt charged certainly does not fall under the second and third subdivision, since defendants did not refuse to be sworn nor to answer any question, and committed no breach of the peace, noise, or disturbance near the court. Then, if the contempt charged is a direct contempt, it must fall under the first subdivision as disorderly or insolent behavior during the session and in the immediate presence of the court. “Disorderly” is defined as follows:

“Not complying with the restraints of order and law; tumultuous; unruly; lawless; turbulent; offensive to good morals and public decency; notoriously offensive; as disorderly conduct.” Webster.
“Insolent” is defined as follows:
“ ‘Insolent’ is defined to be anything said or done rudely; saucy, insulting, abusive, offensive.”

In our judgment the conduct, attitude, and bearing of the defendants before the court was neither disorderly nor insolent within the meaning of the law. The contempt charged was not a direct contempt. Our attention has been called to the case of Burnett et al. v. State, 8 Okla. Cr. 639, 129 P. 1110, 47 L. R. A. (N. S.) 1175. That case is not authority for the proceedings in this case. In the Burnett Case a written order was made by the trial judge ordering the employes of the Farmers’ and Merchants’ Bank to deliver to the bank commissioner certain books and papers. On their failure to do so, an information was filed by the Attorney General charging certain officers of the bank, defendants in that case, with contempt in failing to comply with the order. To this information a motion to quash, a demurrer, and finally an answer to the rule was filed, which, among other things, denied that the defendants had possession of said records or were able to produce them. To which answer the state filed a reply which formed the issue before the court. The proceeding there was clearly a proceeding to punish for an indirect contempt. No demand for a jury trial was ever made. A considerable volume of evidence was introduced by the state upon which the court rendered judgment holding the defendants in contempt, which judgment, we think, was eminently correct. See, also, Ex parte Nichols, 16 Okla. Cr. 159, 181 P. 518.

We are clearly of the opinion that the contempt here charged against the respondents is an indirect contempt. Since this was an indirect contempt, if the acts constituted contempt as being a willful disobedience of a process (the subpoena duces tecum), a contempt proceeding could not be had without the filing of an accusation against the defendants as provided by Comp. St. 1921, § 1699, which reads as follows:

“In all cases of indirect contempt the party charged with contempt shall be notified in writing of the accusation and have a reasonable time for defense; and the party so charged shall, upon demand, have a trial by jury.”

So even if it should be said that a jury trial was waived by defendants, in not demanding the same when first brought before the court, yet there being at that time no accusation as required, there was no proper proceeding upon which to predicate a trial for indirect contempt.

In Ex parte Nichols, supra, it is held:

“Any willful disobedience of any process or order lawfully issued or made by any court in this state, not committed in the immediate view and presence of the court, is an indirect contempt of court. In such cases, the contemner must be proceeded against by written accusation, and upon demand shall be granted a trial by jury.” Ex parte Plaistridge, 68 Okla. 257, 173 P. 646; Blanchard v. Bryan, 83 Okla. 33, 200 P. 444.

If a proceeding in contempt by accusation had been begun and a jury waived, the court might properly, under the evidence, have held that the testimony disclosed no reasonable excuse for the defendants not producing the records required by the subpoena duces tecum, or that the explanation given by them was evasive or showed they contributed to their inability to produce the records called for. • ■' ¡ •'>$'!

This court perceives that if the ability of a grand jury to procure records and documents necessary in matters under investigation before it be refused, such refusal may seriously hampér the administration of justice, and it appears desirable that the court should have power to deal summarily with any disobedience of a proper order. But the matter is one for the legislative branch of the government, and not the judicial. We are not at liberty to disregard the plain provision of the Constitution and the statute law.

The case is reversed and remanded.

BESSEY, P. J., and DOYLE, J., concur.