text:
    FRANK JAMES v. STATE.
    No. A-6905.
    Opinion Filed April 12, 1930.
    Rehearing Denied April 26, 1930.
    (286 Pac. 912.)

      Claud Briggs, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Frank James, hereinafter called defendant, was convicted in the district court of Latimer county of the crime of assault with a dangerous weapon, as charged in the information, and his punishment assessed at imprisonment in the state penitentiary for 2% years.

The evidence of the state shows: That this defendant and one Butch Kelton had a fight at a dance and that the defendant left the place where the dance was being held and went to his home about three-fourths of a mile east; that this trouble occurred about midnight; that Butch Kelton had been cut several times by the defendant in the trouble that occurred at the dance; when the dance broke up Kelton left, going toward his home; after the defendant went to his home he got his father and his brother, Jesse James, and together they started back to the place where the dance had been held; that the father was armed with a shotgun and the defendant and his brother were armed with heavy clubs; that on the way back toward the place where the dance had been held this defendant and the codefendants, Mac James and Jesse James, met Butch Kelton and certain other parties who were returning home from the dance. Kelton was riding a horse and when defendant and his codefendants reached the point where Kelton and these people were, Mac James said, “There’s the son-of-a-bitch now,” and drew the shotgun on Kelton; that Kelton thereupon jumped from his horse and Jesse James struck him over the head with the club and knocked him down and this defendant, Frank James, thereafter struck him several times on the head with a club and this was the particular assault of which defendant was convicted.

The evidence of the defendant was that when he returned home and told his father and brother about the trouble, that they started to return to the dance for the purpose of getting’ defendant’s hat, Mac James taking the gun and the defendant and Jesse James being unarmed until they met Kelton; that thereupon Kelton jumped off his horse and started toward the Jameses threatening to injure them, and thereupon this defendant picked up a piece of plank, struck Kelton and knocked him down; that as Kelton continued to get up and come toward defendant, that he knocked him down the second and third times and that all he did was done in.his own necessary self-defense.

There is a sharp conflict between the evidence of the state and the defendant. The evidence of the state makes out a clear case of aggression on the part of the defendant and his codefendants and a clear case of assault with a dangerous weapon. The jury heard this evidence, they saw the witnesses and observed their manner of testifying and their demeanor while on the witness stand and were in a proper position to' judge the credibility of the witness and weigh the evidence. Having found the issues of fact in favor of the state, and the evidence being sufficient to support the verdict of the jury, the cause must be affirmed unless the errors complained of by defendant are sufficient to require a reversal.

The defendant first contends that the trial court erred in overruling the demurrer to the information, the charging part of which reads as follows:

“* * * That Jess James, Frank James and Mac James did, in Latimer County, and in the State of Oklahoma, on or about the 25th day of July, in the year of our Lord One Thousand Nine Hundred and twenty-five and anterior to the presentment thereof, commit the crime of Assault with a dangerous weapon in the manner and form as follows, to-wit: that in the county and state aforesaid on or about the date aforesaid the aforesaid defendants, did, wilfully, wrongfully, unlawfully and feloniously make an assault upon the person of Butch Kelton, with the intent on the part of said defendants to do bodily harm to the said Butch Kelton, with dangerous weapons, to-wit: a shot gun and clubs or pieces of plank said gun being held in the hands of Mac James and the wooden clubs about four feet long and five inches wide and one inch thick being held in the hands of Jess James and Frank James and the said defendants with said dangerous weapons did commit an assault and battery upon the said Butch Kelton without justifiable or excusable cause and did beat and strike the said Butch Kelton inflicting upon the said Butch Kelton painful and serious wounds upon the head of said Butch Kelton inflicting serious injury and did as aforesaid commit the offense of assault with a dangerous weapon in the manner said weapons aforesaid were used by said defendants, with the intent on the part of said defendants to injure said Butch Kelton.”

The defendant contends that the facts stated do not constitute an offense under the statute and that the information is indefinite as to the subject-matter and the parties and is vague and uncertain. Defendant further contends that the information is not sufficient to state an offense under section 1764, C. O. S. 1921, which is as follows:

“Any person who, with intent to do bodily harm, and without justifiable or excusable cause commits any assault upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another, with any kind of firearm or airgun, or other means whatever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in the penitentiary not exceeding five years, or by imprisonment in a county jail not exceeding one year.”

In presenting this assignment of error defendant relies upon the decisions of this court in the cases of Parks v. State, 14 Okla. Cr. 413, 171 Pac. 1129; Polk v. State, 15 Okla. Cr. 324, 176 Pac. 538; Harris v. State, 15 Okla. Cr. 369, 177 Pac. 122. The doctrine announced in the Polk Case, supra, was later disapproved by this court in the case of Vineyard v. State, 22 Okla. Cr. 76, 209 Pac. 783; The Parks and Harris Cases, supra, were clearly distinguished by this court in the case of Cotton v. State, 22 Okla. Cr. 261, 210 Pac. 739. In this case this court passes on questions almost identical with that raised in the case at bar on the question of the sufficiency of the charging part of this information to< state an offense under section 1764, supra, and on the further questions of the variance between the allegations of the information and the proof adduced at the trial. Under the rule laid, down in Cotton v. State, the allegations of the information in the case at bar are sufficient and there is no- merit in the contention that there is any fatal variance between the allegations of the information and the proof.

Defendant next contends that the court erred in its instnxctions to the jury, arguing that the court should have instructed on the law applicable to the offense defined by section 1756, C. O. S. 1921, to wit: the offense of assault and battery with a dangerous weapon, or with such force likely to produce death. It appears from the information that it was the intention of the pleader to charge that grade of felonious assault defined by section 1764, supra. The proof, the instructions of the court, the verdict of the jury and the judgment of the court were all based on this statute. No additional or different instructions than those given by the court were ever requested by counsel for defendant, neither was any objection made or exception taken to any particular instruction given, or to the charge of the court as a whole. The instructions given by the court fairly cover the law of the case and were as favorable to the defendant as the evidence warranted.

The defendant next contends that the court erred in overruling his motion for a continuance on account of the absence of a certain alleged material witness. On the day the case was called for trial the defendant dictated into the record a verbal motion for a continuance. This motion in no wise complies with section 584, C. O. S. 1921. The court therefore did not err in overruling such application.

Defendant further complains of alleged prejudicial remarks of the trial judge. The record does not support the contention of the defendant. The trial was hotly contested, but there is nothing in the record to indicate bias or prejudice on the part of the trial judge, or that the defendant was in any ivise injured by anything the court might have said during the progress of the trial.

While the evidence is conflicting, it is sufficient to support the verdict of the jury. The errors of law complained of being without merit, the cause is affirmed.

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


source: Caselaw Access Project

author: DAVENPORT, J.

license: Public Domain

text:
    A. L. BROWN v. STATE.
    No. A-7134.
    Opinion Filed April 12, 1930.
    Rehearing Denied April 26, 1930.
    (286 Pac. 911.)

      H. A. J ohnson, for plaintiff in error.
    J. Berry King, Atty. Gen., and Ed Crossland, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was charged with willfully, unlawfully, feloniously, and wrongfully, while under the influence of intoxicating liquor, driving’ an automobile in and upon the public highways in the city of Perry, Noble county, Okl a., and sentenced to imprisonment in the penitentiary for six months and to pay a fine of $500; from which judgment the defendant has appealed.

The testimony on behalf of the state, in substance, shows that on or about the 5th day of July, 1927, the defendant was driving his car upon the streets of Perry, Oída., and that he drove over near the Santa Fe tracks where the officers came upon him; that he was under the influence of intoxicating liquor. One of the witnesses for the state testified he was riding with the defendant, and that he and the defendant took some drinks; other testimony tends to show that prior to the arrest of the defendant that he and a man by the name of Quick ran into the car of another party somewhere near the north line of the city of Perry. The defendant denies he was under the influence of intoxicating liquor and denies his action or conduct Avas such as to indicate he Avas intoxicated. It is not deemed necessary to set out the testimony in full.

The defendant assigns tAvelve errors alleged to have been committed by the trial court. In his tAvelfth assignment the defendant insists that the court erred in not holding the act under which the plaintiff in error was prosecuted and convicted as unconstitutional and void, for the reason that the contents of said section is not clearly stated in the title of said act. This prosecution is based upon section 8, c. 16, Session Laws 1923, which is in part as follows:

“It shall be unlawful for any person Avho is under the influence of intoxicating liquor * * * to- operate or drive a motor vehicle on any higlnvay within this state, * * * and any person violating the provisions of this section shall be deemed guilty of a felony and shall be punished by imprisonment in the penitentiary not more than one year, * * * or by imprisonment and fine.”

This section has been passed upon by this court and the constitutionality of the act sustained. Simpkins v. State, 35 Okla. Cr. 143, 249 Pac. 168.

The defendant further complains that the court erred in giving its instructions to the jury, and in refusing to give the requested instructions of the defendant. From an examination of the instructions given by the court, and in the instructions requested and refused, we hold that the instructions of the court properly advised the jury as to the law, and the court did not err in refusing to give the instructions requested by the defendant. Welch v. State, 43 Okla. Cr. 47, 277 Pac. 280.

The defendant questions the sufficiency of the evidence to sustain the conviction. A careful examination of the record shows that the evidence is sufficient to sustain the judgment. The defendant further complains of the admission of immaterial and incompetent evidence. This court will not reverse a case on the ground of the admission of immaterial evidence unless from an examination of the record it appears the rights of the defendant were prejudiced thereby.

There are several other errors assigned by the defendant, but from an examination we find they do not possess sufficient merit to reverse this case. The defendant was accorded a fair and impartial trial. The court properly instructed the jury as to the law applicable to the facts in the case. Finding no prejudicial errors in the record sufficient to reverse the case, the judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


author: CHAPPELL, J.

text:
    MRS. FRANK NASH v. STATE.
    No. A-7172.
    Opinion Filed April 5, 1930.
    Rehearing Denied April 26, 1930.
    (286 Pac. 910.)

      O. H. Whitt, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

This is an appeal by a transcript of the record from a judgment, of conviction rendered in the district court of Pittsburg county against the plaintiff in error, hereinafter called defendant, on a charge of adultery, Avherein the defendant was sentenced to pay a fine of $100 and to pay the costs of the action taxed at $112.

The transcript includes only a copy of the information, the instructions of the court, the verdict of the jury, the motion for new trial, the minutes of the trial of the dates March 8 and 9, 1928, and March 24, 1928, the super-sedeas bond, notices of appeal, and the certificate of the court clerk to the transcript. That it is a full, true, correct and complete copy of all the pleadings, records, motions, orders, and demurrers in the cause.

But one question is attempted to be raised by this appeal, and that is that the trial court erred in pronouncing judgment against the defendant in her absence. The transcript does not contain a copy of the journal entry of judgment if one was entered in said cause. All the record bearing on the question is contained in the minutes of the court clerk on date of March 24, 1928, and is as follows:

“Motion for new trial overruled. Defendant Excepts. Judgment $100.00 and costs. Excepts. Motion given in open court of intention to; appeal to Criminal Court of Appeals. 60-10-5. Bond fixed at $425.00.”

It nowhere appears from such minutes, nor from any other part of such transcript, that the defendant was not present at the time judgment was rendered. On the contrary, such minutes show that the defendant on that date excepted to the action of the trial court in overruling the motion for new trial and in pronouncing sentence and gave notice in open court of her intention to appeal to the Criminal Court of Appeals. So that it appears from such minutes not that the defendant was absent at the time judgment and sentence was pronounced, but the minutes would indicate that she was present. In the absence of an affirmative showing to the contrary, this court will presume that the defendant was present throughout the proceedings, where it appears that the defendant was present when the trial began and throughout various stages thereof. The presumption as to the regularity of the proceedings in courts of record always obtains in the absence of a contrary showing. Johnson v. State, 1 Okla. Cr. 321, 97 Pac. 1059, 18 Ann. Cas. 300; Beatty v. State, 5 Okla. Cr. 105, 113 Pac. 237; Killough v. State, 6 Okla. Cr. 311, 118 Pac. 620; Burns v. State, 8 Okla. Cr. 554, 129 Pac. 657; Tucker v. State, 10 Okla. Cr. 565, 139 Pac. 998.

It not affirmatively appearing from the record that the defendant was absent at the time judgment and sentence was pronounced, the presumption of law 'is that she was there, and that all the proceedings were legal and regular. For the reasons stated the cause is affirmed.

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


text:
    HARRY MURPHY v. STATE.
    No. A-7041.
    Opinion Filed March 29, 1930.
    Rehearing Denied April 26, 1930.
    (286 Pac. 909.)
    Dan Huett, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter for convenience will be referred to1 as the defendant, was by information charged with the possession of intoxicating liquors with the unlawful and felonious intent to sell, barter, give away, and otherwise furnish the same to others, contrary to the prohibition laws (section 6999, Comp. St. Supp. 1926) of the state of Oklahoma, the charge being for the third offense; the defendant, having been previously fined on two violations of the prohibitory laws of the state, was tried and convicted by a jury, and the punishment left to the court. The court imposed a sentence of two years and six months in the penitentiary and a fine of f500. Motion for new tri'al was filed, considered, and overruled, and exceptions saved, and the defendant has appealed to this court. Before the case was called for trial, the defendant filed his motion to suppress the testimony of the state’s witnesses C. E. Baker, Ora Lincoln, Pete Flannegan, and Ray Van Buskirk, on the following grounds:

“Because the facts and circumstances about which each of the witnesses named will testify to were obtained under an unlawful search in the nighttime of the private car of the defendant, without a search warrant for said car, and without a warrant for the arrest of the defendant, or any other legal authority to search said car in violation of the constitutional rights of the defendant.”

Testimony was heard by the court on the motion of the defendant to suppress the testimony of the witnesses, at the conclusion of which the court overruled the defendant’s motion, and defendant duly excepted. Defendant demurred to the information, which demurrer was overruled, and defendant excepted.

The jury was impaneled, and the state introduced testimony of the conviction of the defendant prior to the calling of this case for trial. The state then called C. E. Baker, sheriff of Garfield county, who testified, in substance :

“I have known the defendant ten or twelve years; I saw the defendant on the 24th day of April, 1927, about fifty or sixty yards east of Sixteenth street on Willow street, with his car headed east; Ora Lincoln and Flanne-gan were with me; when I saw the defendant, he was sitting in his Oadallic car; there were other cars I was looking after, and when in about ten or twelve feet, and in front of the car, I throwed my flash light on the car and noticed Harry Murphy and his wife in the car, and a man got out on the south side of the car; I walked up closer, and noticed one of the back doors of the car was open a little ways and I could look in with my flash light; I saw a cardboard box setting in the car filled with fruit jars.”

Witness further testified he had his pistol in one hand and his flash light in the other; he got in the car and drove down to' the sheriff’s office, where he took two boxes out of the car in which were several jars of whisky. The state’s witness admitted he did not have any warrant for the arrest of the defendant or to search his car, but claimed when he approached defendant’s car he smelled whisky and saw fruit jars sitting in a pasteboard box.

The defendant assigns several errors — one being the court erred in overruling his motion for a new trial; second, the court erred in overruling his motion in arrest of judgment filed in the case; and, third, the court erred in overruling the motion of the defendant to suppress the evidence obtained in the search of defendant’s car without a search warrant.

The testimony of the witness for the state shows that the witness smelled whisky, and saw the fruit jars containing the whisky sitting in the defendant’s car. Ora Lincoln, who had gone up town with the witness Baker, had stopped at defendant’s car before Baker approached, and was talking to the defendant, testified that neither of the car doors were open, and that he saw Balter flash his light in the car, that the boxes in the defendant’s car were tied with cords, and that, after they were taken to the sheriff’s office, the witness Baker took his knife and cut the cords to find out what was in the boxes.

The testimony is in conflict, and the jury by its verdict decided the question in favor of the state, and found the defendant guilty, and left his punishment to the court. The court did not err in overruling the motion for a new trial and motion to suppress the evidence. The record examined, and evidence held sufficient to sustain the verdict.

The judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    EARL SMIDDY v. STATE.
    No. A-7148.
    Opinion Filed March 22, 1930.
    Rehearing Denied April 26, 1930.
    (286 Pac. 813.)
    Wells & Greer and Jones & Clift, for plaintiff in error.
    EdAvin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, Avas convicted in the district court of Seminole county on a charge of robbery with firearms, and his punishment fixed at twenty years’ imprisonment in the state penitentiary.

The evidence on the part of the state is that this defendant and another, who had not been apprehended at the time of the trial, held up and robbed one O. D. Jones of $25 in money. The robbery occurred Avhere Jones and others were engaged in drilling an oil well north of the city of Seminole in Seminole county. The state’s evidence shoAvs that the defendant and another appeared at this place at about 11:30 at night; that they first cut the electric wires that operated the lighting system in and around where the drilling was talcing place and then went in the door leading to the place where the drillers were at work. As soon as the lights went out, Jones opened the door to see what the trouble was, and one of the robbers who was standing outside the door ordered him to throw up his hands and get back into the place, which he did. The robbers then came in and robbed Jones of his money and sat down to wait for the night shift of drillers to come on duty. When the men who were to relieve Jones and his partner came, defendant and his partner robbed them of a watch, a small amount of money, and a pistol.

During the course of one of the robberies, the mask which the defendant was wearing fell down from over his face. Jones and the other men who were robbed positively identified the defendant as one of the men who robbed Jones, and testified that they could not be mistaken as to his identity. The defense interposed was an alibi. Defendant in his brief says:

“A number of specifications of error are set forth in the petition in error, and without waiving any errors assigned we will submit the matter on one proposition, that the verdict is not sustained by sufficient evidence and is contrary to law.”

This case presents the simple question of whether this court will permit the judgment to stand on conflicting evidence. Two of the state’s witnesses swore positively that defendant was one of the men who held a gun on them and robbed them. One of them pointed him out from a group in the jail, and both of them positively identified him in the courtroom as one of the robbers. The defendant denied that he had anything to do with the robbery, and produced witnesses to testify that he was in another place at the time the robbery was committed. All these witnesses were before the jury, they heard them testify, had a chance to observe their, demeanor on the witness stand, and were thus qualified to pass upon their credibility and the weight to be given their testimony, This court will not disturb a verdict of the jury where the evidence is conflicting and where there is competent evidence in the record supporting the verdict of the jury. Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360; Mayse v. State, 38 Okla. Cr. 144, 259 Pac. 277; Eslick v. State, 45 Okla. Cr. 388, 283 Pac. 578, Moore v. State, 45 Okla. Cr. 317, 283 Pac. 583.

There being sufficient evidence in the record to support the verdict of the jury, the cause is affirmed.

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


text:
    T. B. ROBERTS v. STATE.
    No. A-7321.
    Opinion Filed April 26, 1930.
    (287 Pac. 793.)

      Percy Powers and Roddie & Harrison, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of having possession of intoxicating liquor as charged in the information, and his punishment fixed at a fine of $50 and imprisonment in the county jail for thirty days. From which judgment the defendant has appealed to this court.

The testimony of the state, in substance, is that Sam D. Rude, on the 7th day of July, 1929, called at the home of a negro in the northeast part of town:

“I think T. B. Roberts is the name; I had information he was creating a great deal of trouble and beating up his family; I went into his house and found five gallon of home-brew; I found him and put him in jail; he was not at home when I arrested him; we found a five gallon crock jar almost level of stuff they were making home brew out of; in my judgment it was intoxicating.”

On cross-examination witness stated:

“The defendant was not at home, but parties there told me they were his family. This concoction had not been strained; I am not a chemist and did not have this analyzed.”

W. Scott testified he was one of the police officers at Mangum on the 7th day of July, 1929; that he knew the defendant:

“His wife came to the city hall for us to go- down to her house and showed us the five gallon jar of home brew; we took some of this brew and poured the rest out and brought the jar to the city hall, after that we went out to look for the defendant; we found him in Butch’s Cafe; I would say this was intoxicating; I believe if a man drank enough of it he would be under the influence of intoxicating liquor.”

Joe Chapman testified he lived a.t Mangum; he went to the defendant’s house and found five gallons of beer in the kitchen in a cabinet; that “his wife and kids were at home; we had no search warrant but the wife invited us in.” On cross-examination the witness stated that the defendant was not there when they went to his home; “this was home-brew, it was not like beer we had- before prohibition; it was made from malt you buy at the grocery, corn and everthing else; I don’t know whether it contained as much as one-half of one per cent, alcohol measured by volume or not.”

At the close of the state’s testimony the defendant demurred to the evidence of the state and asked the court to direct the jury to return a verdict of not guilty, for the reason that the evidence on the part of the state wholly fails to prove that a crime has been committed as alleged in the information, and wholly fails to- show that this defendant was guilty thereof, or that he was in any way whatever connected with the alleged home-brew, or that the said home-brew was intoxicating.

“The Court: Overruled. The court holds that it is unlawful to- manufacture any beer, wine or ale in this state. (The defendant excepted.) ”

The defendant assigns six errors alleged to have been committed by the trial court. The first assignment we will consider will be the second assignment, which is that the court erred in refusing and overruling the plaintiff in error’s requested instruction No. 1. The instruction No. 1 requested by the defendant is as follows:

“Under the statute it is a violation of law to possess for an unlawful purpose any beer, or any imitation or substitute therefor, whether medicated or not, capable of being used as a beverage, that contains as much as one-half of one per cent of alcohol when measured by volume, and unless you find and believe from the evidence beyond a reasonable doubt and that the alleged beer contained as much as one-half of one per cent of alcohol when measured by volume, you must acquit the defendant.”

The defendant insists that this requested instruction should have been given by the court, for the reason that all of the state’s evidence shows that the contents of the jar that was found at the home of the defendant was home-brew in the making. There is no testimony showing it was capable of being used as a beverage, and -no positive testimony that it was intoxicating. None of the contents of the jar was analyzed and two of the witnesses state as their conclusions that it was intoxicating if a party should drink a sufficient quantity.

In Owen v. State, 41 Okla. Cr. 67, 270 Pac. 337, this identical question was before the court, and at the close of the state’s evidence the defendant requested the same instruction as requested in this case, which was refused by the trial court, and, when the case came before this court, this court held that, under the facts in the case, the instruction requested by the defendant should have been given. Following the reasoning in the Owen Case we hold that the court erred in not giving the instruction requested by the defendant in this case.

It is further urged by the defendant that there was no competent testimony to go to the jury, for the reason that the officers went to the home of the defendant without a search warrant or without a warrant for his arrest.' The defendant was not at home. The officer did not find the defendant in possession of the brew alleged to have been found in defendant’s home. No statement made by his wife to officers in the absence of the defendant could hind him. The officers admit they went to defendant’s home, that the wife invited them in and told them where they could find the jar containing this concoction in the making, that has been designated by the witness as home-brew. The court erred in admitting this testimony. What the wife said was hearsay, and not competent evidence to go to the jury.

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

EDWABDS, P. J., and CHAPPELL, J., concur.


text:
    CARL SMITH et al. v. STATE.
    No. A-7216.
    Opinion Filed April 26, 1930.
    (287 Pac. 835.)

      Billingsley & Stanley and Hill & Banta, for plaintiffs in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiffs in error, hereinafter referred to as the defendants, were, by information filed in the district court of Seminole county, charged that the defendants did then and there unlawfully, willfully, and feloniously make a connection with a certain tank and pipe line used for the storage and conduct of gas, crude oil, naphtha, and casinghead gas, the property of the Magnolia Petroleum Co., a corporation; they were convicted, and the defendant Carl Smith was sentenced to be confined in the state penitentiary at McAlester, for a term of one year and six months, and the defendant L. B. North-cutt was sentenced to be confined in the state penitentiary at McAlester, for a period of one year. From the sentence and judgment, the defendants have appealed to this court.

The testimony on behalf of the state is in substance as follows: Charles L. Gladden testified he was superintendent of the Magnolia Petroleum Company, a corporation, for the Wewoka district; he had been superintendent for eight years; he had known Carl Smith for about three years, and Northcutt for about two- years; the gasoline plant, that is involved in this controversy, is located in 32 — 8—8, back of the cemetery. The - defendant Carl Smith Avas working for the Magnolia Company on the first of May, .1927; the defendant Northcutt had not been with the company for four or five months; the defendant Smith was working in the capacity of engineer in the gasoline plant. “On May 1st, and prior to- that time, there had been considerable shortage at the gasoline plant and I made an investigation; I had received information that the defendants were taking gasoline from the plant; I waylaid the gasoline plant several nights; I saAV Mr. Smith take gasoline from the gasoline tank and place it in the tank in the rear end of a Ford coupe; he carried the gasoline away from the plant.”

The testimony further shows that after the defendants were arrested, Charles L. Gladden had a conversation with the two defendants, in which the defendant Smith told him he got the gasoline out of a one-fourth inch connection on the tank used for taking samples. Mr. Northcutt said Mr. Smith furnished the gasoline and he took it to Mr. Morgan’s filling station and sold it and divided the money fifty-fifty.

The testimony further sIioavs that at different times the defendants, or one of them, had been selling small quantities of gasoline to the Morgan filling station. The only question which tends to connect the defendants with the taking of the gasoline from the tank of the Magnolia Petroleum Company, a corporation, is the alleged statements made to the superintendent of the company, Charles L. Gladden..

At the close of the state’s testimony, both of the defendants demurred to the evidence of the state for the reason that it was wholly insufficient to sustain the allegations in the information. The demurrer was considered by the court and overruled, and each of the defendants reserved an exception to the ruling of the court.

The defendants, in their twelfth assignment, contend that the court eirecl in refusing to instruct the jury to return a verdict of not guilty, because of a fatal variance between the allegations and the proof. A careful reading of the evidence in this case discloses the fact that Mr. Gladden, the superintendent of the Magnolia Petroleum Company, a corporation, testified to one fact within his knowledge, and that was the larceny of the gasoline from the tanks of the Magnolia Company, on the night of the arrest of the defendants. The witness made no contention that any connection was made to their tank or any pipe line on that occasion. The specific charge in this case is, “Tapping a pipe line.” We cannot find any evidence, in the record, tending to establish the fact that a connection was made with any pipe line or tank by either of these defendants, except what purports to be an extrajudicial confession of the defendants. The evidence tends to show that the defendants told the witness Gladden, after their arrest, that they did put a rubber hose on the vapor line which connects with the storage tank, and by putting pressure on the storage tank caused gasoline to flow through the rubber hose into the tank in the back of the car.

The Attorney General in his brief makes the following statement:

“The Attorney General has carefully considered all the evidence in this case and has been unable to find any, either direct or circumstantial, other than the extra-judicial confessions of these defendants that tends to prove the corpus delicti of the crime for which they were convicted. There is ample evidence to sustain a larceny charge, but as we construe this evidence there is nothing shown, outside of the admissions and confessions of the defendants that proves any tapping or connecting by them with a storage tank or pipe line. The nearest approach to it, in our opinion, is the testimony of the witness Marsh that Smith took him to the plant and showed him just Avhere and how the connections were made, etc., but Marsh does not testify to any independent evidence of any such connection other than what Smith told him. In other Avords, there was no evidence by Marsh that he could tell a connection ever had been made except that Smith told him there had been one made. There was no- physical evidence of a connection.
“No rule of law is more thoroughly established in this jurisdiction than that a conviction may not be had on the extrajudicial confession of a defendant, without evidence aliunde of a corpus delicti. Shires v. State, 2 Okla. Cr. 89, 99 Pac. 1100; Choate v. State, 12 Okla. Cr. 560, 160 Pac. 34, L. R. A. 1917A, 1287; Waide v. State, 13 Okla. Cr. 165, 162 Pac. 1139; Henry v. State, 14 Okla. Cr. 189, 169 Pac. 658; Boyle v. State, 27 Okla. Cr. 196, 226 Pac. 389.
“One of the material elements of the offense of which these defendants were convicted was the tapping or connecting with a pipe line or storage tank used for conduct or storage of crude oil, etc. In view of the fact that no-such tapping or connecting was proved in this case independent of the extrajudicial confessions of these defendants, the Attorney General has reached the conclusion that the evidence is, in law, insufficient.”

Tlie confession of tlie Attorney General is approved, as an examination of the record clearly shows there is no testimony independent of the extrajudicial confession to sustain a conviction.

In view of the fact that this case will probably be tried again, it is deemed necessary to pass upon the question raised by the defendants on the constitutionality of the act under which they were tried and convicted. This prosecution is based on section 1, c. 105, Session Laws 1925. The title to said act is as folloAvs: “An act prohibiting the unlawful connecting to or tapping of any pipe line or other conduit through which crude oil, naphtha, gas, casinghead gas or any of the products thereof is transported, and declaring such acts to be felonies, and prohibiting the unlawful taking of any crude oil, gas or gasoline from any pipe line or receptacle in which same is being collected or transported, and declaring such acts to be misdemeanors, and fixing a punishment for the violation thereof, and declaring an emergency.”

Section 57, art. 5, of the Constitution of Oklahoma, provides as follows:

“Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title, except general appropriation bills, general revenue bills, and bills adopting a code, digest, or revision of statutes; and no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred shall be re-enacted and published at length: Provided, That if any subject be embraced in any act contrary to the provisions of this section, such act shall be void only as to so much of the law as may not be expressed in the title thereof.”

It is urged, , by the defendants, that under the Constitution, the title of an act of the Legislature must contain but one subject, and the defendants insist that the statute under which they were prosecuted clearly contains two subjects: First, the tapping of pipe lines, and second, the larceny of crude oil and its manufactured and natural products; and the defendants further insist that the act is unconstitutional, for the reason that one of the objects of the act is to make a felony of certain acts, and the second subject or object is to make a.misdemeanor of certain other unrelated acts. No authorities, other than section 57, art. 5, supra, are cited to sustain the position of the defendants that the act is unconstitutional for the reason that it embraces more than one subject in the title of the act. The intention of the Legislature, in the passing’ of this act, evidently, was for the protection of crude oil, gas, etc., in storage tanks or pipe lines. Section 1 of the act makes it a felony, or makes the connecting with tanks or pipe lines used to conduct or store crude oil, with the intent to deprive the owner thereof, of such products, a felony. Section 2 makes it a crime to take crude oil, or gasoline, or products thereof from any pipe line, tank, or receptacle, or container with intent to deprive the owner thereof.

In State v. Coyle, 7 Okla. Cr. 50, 122 Pac. 213, this court said:

“Every legislative act is presumed to be constitutional, and the courts should not declare an act to be unconstitutional unless it is clearly so-. If there is doubt, the expressed will of the Legislature should be sustained.”

In the case of People v. Sacramento Drainage District, 155 Cal. 373, 103 Pac. 207, 208, the Supreme Court said:

“The purpose of Const, art. 1, § "21, declaring that every act shall embrace but one subject, which shall be expressed in its title, was not to hamper legislation, but to check and prevent deception therein.”

In State v. Kolsem, 130 Ind. 434, 29 N. E. 595, 598, 14 L. R. A. 566, the Supreme Court of Indiana said:

“If the title covers a general subject the act is valid, no matter how minutely it may go into details germane to that general subject.”

The Supreme Court of Oregon, in State v. Miller, 54 Cr. 381, 103 Pac. 519, held:

“That a provision in an amendment to the act providing a board of pharmacy and the registration of pharmacists and regulating the sale of poisons which provided for the licensing itinerant vendors of drugs did not violate the section of the Constitution requiring every act to embrace one subject, which must be expressed in the title.”

There are many cases in support of this doctrine. In Griffin et al. v. Thomas, 86 Okla. 70, 206 Pac. 604, 609, the court in discussing constitutional provisions such as section 57, art. 5, supra, in 25 E. C. L. § 88, p. 842, quoted with approval the following:

“The term ‘subject/ as used in these provisions, is to be given a broad and extended meaning, so as to allow the Legislature full scope to include in one act all matters having a logical or natural connection. If all parts of an act relate directly or indirectly to the general subject of the act, it is not open to the objection of plurality. To-constitute duplicity of subject, an act must embrace two or more dissimilar and discordant subjects that by no- fair intendment can be considered as having any legitimate connection with or relation to each other. This constitutional provision does not contain any limitation on the comprehensiveness of the subject, which may be as comprehensive as the Legislature chooses to make it, provided it constitutes, in the constitutional sense, a single subject, and not several; it may include innumerable minor subjects, provided that all the minor subjects, when combined, form only one general subject or topic.”

And in section 90, p. 844, Id., it is said:

“The ‘subject’ of an act is the matter or thing forming the groundwork of the act, which may include many parts or things, so long as they are all germane to it and are such that if traced back they will lead the mind to the subject as the generic head. There can be no surer test of compliance with the constitutional requirements of singleness of subject than that none of the provisions of an act can be read as relating or germane to any other subject than the one named in the title. An act is not unconstitutional because more than one object is contained therein where the objects are germane to- the main subject, or they relate directly or indirectly to the main subject, and have a mutual connection with and are not foreign to the subject of such act, or when the provisions of the act are of the same nature and come legitimately under one subject.” Rea, County Clerk, v. State ex rel. Board of County Commissioners, Lincoln County, 29 Okla. 708, 119 Pac. 235; State ex rel. Caldwell v. Hooker, 22 Okla. 712, 98 Pac. 964; Dunlap v. Board County Commissioners, Carter County, 85 Okla. 295, 205 Pac. 1109.

The provisions of the act under consideration in this case are germane to each other and properly come under the subject of protection and theft of crude oil, gas, etc., while in storage and in pipe lines. We, therefore, reach the conclusion that the contention of these defendants, that the act under which they were informed against and tried was unconstitutional, is without merit. For the reasons heretofore stated, that the testimony fails to sustain the allegations, the confession of error of the Attorney General is approved, and the case reversed and remanded for further proceedings not inconsistent with this opinion.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    LEON DUNLAP v. STATE.
    No. A-7317.
    Opinion Filed April 26, 1930.
    (287 Pac. 750.)
    Hepburn & Hepburn, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was charged with the larceny of an automobile, convicted, and his punishment fixed at five years in the penitentiary. From which judgment and sentence the defendant has appealed.

The testimony on behalf of the state shows an automobile belonging to the Pickering Lumber Company, a corporation, was on the 19th day of February, 1927, taken from where the agent of the company had parked it in the city of Henryetta, Okla., and later on the defendant was found in possession of it somewhere near the city of Bris-tow, in Creek county, Okla. The automobile had been taken on the 19th day of February, 1927, and recovered about the 1st of April, 1927. The officers testify they asked the defendant where he got the car and the defendant stated he did not know who the man was lie got it from. The officers stated they had seen the ’wife of the defendant and Nellie Kimes driving in the car before it was found in front of Turley’s place, in Creek county. One of the officers testified that on the way from the jail in Creek county to Okmulgee county the defendant asked how they came to take him for stealing the car when he had bought it down in Seminole. . He stated he did not know from whom he bought the car. On cross-examination the witness stated he understood him to say he bought it but he might have said the man loaned it to him.

Two witnesses testify as to the good reputation of the defendant in the community in which he lived.

The defendant has assigned several errors alleged to have been committed by the trial court. We will first consider the eighth assignment of the defendant, which relates to the giving of the eighth instruction, which is as follows:

“You are further instructed that before you can convict the defendant, Leon Dunlap, you must find, beyond a reasonable doubt, from all the evidence, facts and circumstances proven in this case, that he is guilty of, or in complicity with the original taking of said automobile; and any subsequent connection, after the taking would not be larceny of a motor vehicle in him, whether in good or bad faith. And if you find from all the evidence, facts and circumstances, beyond a reasonable doubt, that the defendant, Leon Dunlap, received the Ford Coupe in question from any other parties, after the felonious taking thereof, whether in good or bad faith, he is not guilty of larceny of an automobile and you must acquit him.”

It is urged by the defendant that the objectionable part of the instruction is as MIoavs:

“And if you find from all the evidence, facts and circumstances, beyond a reasonable doubt, that the defendant, Leon Dunlap, received the Ford Coupe in question from any other parties, after the felonious taking thereof, whether in good or bad faith, he is not guilty.”

The defense of the defendant is that he received this car from a man in Seminole. It is fundamental in criminal law that the burden of proof is upon the prosecution to prove beyond a reasonable doubt each and every material element of the crime charged in the indictment or information before the jury is warranted in finding the defendant guilty. The defendant is never required to establish any material element of his defense beyond a reasonable doubt. This rule was laid down in Mahaffey v. Ind. Ter., 11 Okla. 213, 66 Pac. 342, and has been uniformly followed ever since.

In Havill v. State, 11 Okla. Cr. 483, 148 Pac. 683, it is said:

“If, in the course of the trial, the court submits to the jury an instruction which has the effect of requiring the accused to establish his innocence or any other material fact beyond a reasonable doubt, and a conviction is had, a reversal will follow on appeal.”

In the Havill Case the court instructed the jury on the law of self-defense, which concluded as follows:

“On the contrary, if you do not so believe beyond a reasonable doubt, you will not acquit the defendant on the grounds of justifiable self-defense.”

A confession of error was filed by the Attorney General in Havill v. State, supra. The confession of error was sustained and the case reversed.

In Carter v. State, 12 Okla. Cr. 164, 162 Pac. 1132, the court said:

“Instructions which, tend to shift the burden of proof by requiring the defendant to establish his defense by a preponderance of the evidence should not be given in any criminal case.”

The Attorney General in his brief makes the following statement:

“Counsel for the. defendant have cited numerous authorities to the effect that this court has held the giving of similar instruction to be reversible error. If this were a case in which the defendant took the witness stand and testified himself to any facts which entitled him to an acquittal, the Attorney General would not hesitate to confess that the giving of such an instruction was a reversible error.”

The defendant has a perfect right to stand upon the testimony of the state and instructions of the court to the jury if he believes the same are not sufficient to sustain the allegations in the indictment or information. It is the duty of the court to' properly declare the law as applied to the testimony in the case, and, if the court in instructing the jury does not correctly state the law to the jury, the defendant has the right to take advantage of that error. In this case it clearly appears that the court erred in giving its instruction 8 to the jury.

There are other errors assigned which possess considerable merit, but, in the view we take of this record, we do not deem it necessary to consider them. The case is reversed and remanded.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    ORVILLE CROWDER v. STATE.
    No. A-7267.
    Opinion Filed April 26, 1930.
    (287 Pac. 739.)
    F. R. Blosser, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was jointly informed against with Verner Davis and Ray McDonald, charged with the possession of intoxicating liquor with intent to sell, barter, give away, or otherwise furnish the same to others contrary to the law; was tried separately and convicted; and sentenced to pay a fine of $75 and be imprisoned in the county jail for thirty days. From the judgment the defendant has appealed to this court.

H. B. Hibler, a witness for the state, in substance testified he was a deputy sheriff on the 10th day of February, 1928; he was out to the place- where the defendant lived looking for Bessie bank robbers. Over the objections of the defendants, he claimed they found a dugout; a pump, furnace, and vats were in the dugout; the dugout had not been used for the manufacture of whisky. Then witness testified as to the lay of the land, and that they went across from the defendant’s place about a quarter of a mile, and about the same distance from the dugout, and found a keg containing about six gallons of whisky. “There was no one at home when we went on the premises, but later on a man by the name of Davis and his wife came. Witness stated it was something like a month after the search before I saw the defendant and had a talk with him,” and defendant told him his brother-in-law Davis and his wife had nothing to do with the outfit; that he would take full responsibility for it himself. The defendant did not admit that the whisky found belonged to him; “we talked some little bit, but nothing more was said about the whisky; .we followed some tracks that went into the field; there was not a well-beaten path.” The witness stated the defendant had been gone a day or two> before the officers were out there; that the whisky found was not on the place occupied by the defendant; when the defendant was talking to witness, “he did not admit any knowledge or ownership of the whisky we found; he just said that he took full responsibility for what was found on his place. I just arrested him, and he told me he would come in; it was not a plain path to where we found the whisky; the track going toward where we found the whisky had been made a short time; I would not say how long; about a week at most. The tracks we found were made by small boots; I never have seen Mr. Crowder wear boots, and I do not know who made the tracks.”

Burnam Davis testified he was acquainted with the defendant; that he moved on the place some time in June, 1927; he bought the crop from a man by the name of Fred Lucas; that after he moved there Orville Crowder was not there very much of the time; that after he liyed on the place a short while he left and went to Arkansas City; the defendant was in charge of the place while he was gone;

“I was in Arkansas City about a month and a half or two months; I had been back on the farm about a week prior to the 10th day of February, 1928; I never saw anything the officers found, or if they found anything I do' not know to whom it belonged; I do not know who built the dugout; it was something like a quarter of a mile from where I lived to the dugout; the defendant Orville Crowd-er said the. dugout was his; I do not know where they claimed to have found the whisky; the defendant never did tell me anything about taking full responsibility for the whisky that was found by the officers; I never saw the defendant operating a still, nor did I ever see him have any parts of a still. I do not know where the officers found the whisky, but they told me they found it on the adjoining place.”

The defendant has filed five assignments of error alleged to have been committed by the court in the trial of his case. The first assignment is error of the court in overruling plaintiff in error’s motion for a new trial; second, the court erred in not sustaining the plaintiff in error’s demurrer to the evidence and motion for an instructed verdict. These two assignments are all that are necessary to arrive at a proper decision in this case.

The defendant contends that there is no testimony connecting him with the possession of the whisky alleged to have been found on the adjoining place, about a quarter of a mile from the place the defendant had in control which was occupied by Davis and his wife, and within a quarter of a mile from what has been designated in the testimony as a dugout.

The testimony of the only witness for the state that knows anything about where the whisky was alleged to have been found on the adjoining place, about a quarter of a mile from the defendant’s house, is that tracks leading to where the whisky Avas found Avere made by small boots, and that he had never seen the defendant Crowder wear boots, and that he did not knoAV Avho made the tracks.

The testimony further sIioavs that the defendant was not at the place at the time the officers made the search, and that it Avas about a month after they made the search before the defendant talked to the deputy sheriff, and the deputy sheriff states that the defendant did not admit that he had anything to do with the whisky that Avas found on the adjoining farm a distance of a quarter of a mile from the defendant’s house. There is no testimony in the record connecting the defendant in any way whatever with the possession of the whisky alleged to have been found on the adjoining farm about a quarter of a mile from the house.

In Mater v. State, 9 Okla. Cr. 380, 132 Pac. 383, in the second paragraph of the syllabus, this court said:

“In a prosecution for having possession of intoxicating liquors with intent to sell same, the burden was on the state to prove that the place where the liquor was found Avas in defendant’s possession or under his control, or that the intoxicating liquor was his, or that he had possession of same either as OAvner or employee.”

In Taylor et al. v. State, 37 Okla. Cr. 23, 255 Pac. 714, in the first paragraph of the syllabus, this court said:

“Evidence that defendants were seen coming out of a vacant 40-acre tract of land, near center of which were a still and various trails leading in different directions, held insufficient to sustain conviction for unlawful possession of intoxicating liquor.”

In the body of the opinion, in discussing the weight of the evidence, the court said:

“The evidence that defendants were in possession of the whisky found is not clearly made to appear. There should be some proof that defendants were in possession of the intoxicating liquor found or such circumstances from which it may be reasonably and logically inferred, such as proof of the ownership, or control of the land where it was found, or such connection with it that it can be said that there is proof of possession.”

In White et al. v. State, 13 Okla. Cr. 76, 162 Pac. 232, 233, in the body of the opinion it is said:

“A new trial shall be granted, ‘when the verdict is contrary to law or evidence.’ Under this provision the responsibility of -determining whether or not there has been adduced before the jury a sufficient amount of legal and competent evidence to render it safe to allow the verdict to stand is imposed upon the trial court in the first instance, and on appeal upon this court. The performance of this duty on the part of the court is the exercise of legal discretion and judgment as to the sufficiency, of the evidence to overcome the legal presumption of innocence to which every one is entitled who is put upon his trial for an offense. Benson v. State, 10 Okla. Cr. 16, 133 Pac. 271.”

In Davis et al. v. State, 39 Okla. Cr. 380, 265 Pac. 651, 652, this court in the opinion said: “When the verdict is manifestly contrary to the evidence, or a conviction is based on entirely insufficient evidence, the judgment or conviction will be reversed.”

We are of the opinion that the judgment in this case is contrary to the evidence, and that the trial court erred in refusing to advise the jury to bring in a verdict of acquittal, and in overruling the defendant’s motion for á new trial.

It follows that the judgment should be, and the same is hereby, reversed.

EDWABDS, P. J., and CHAPPELL, J., concur.


text:
    R. R. STANTON v. STATE.
    No. A-7313.
    Opinion Filed April 26, 1930.
    (287 Pac. 730.)
    Bridges & Ivy, for plaintiff in error.
    The Attorney General and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error was convicted in the district court of Jefferson county of the crime of assault with a dangerous weapon and his punishment fixed at imprisonment in the state penitentiary for a term of eighteen months. He appeals from this conviction.

But one question is presented by this appeal, and that is the sufficiency of the evidence to* support the verdict of the jury. From a careful examination of the record we find there is sufficient competent evidence in the record to support the verdict. No error being apparent, the cause is affirmed.

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


text:
    BILL BORCHER v. STATE.
    No. A-7222.
    Opinion Filed April 26, 1930.
    (287 Pac. 727.)
    J. A. Rinehart, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was jointly charged with Bud Payne with the offense of unlawfully having in their possession mash capable of being used in the manufacture of intoxicating liquor, to wit, corn whisky, by distillation. The defendant was put upon trial and a verdict of guilty returned by the jury, and he Avas sentenced to 90 days in the county jail and to pay a fine of $100.

The defendant contends, first, that the court erred in admitting evidence of the finding of a still and empty bottles, which smelled strongly of whisky, in evidence. The officers séarched the premises of the defendant and found one barrel full of mash and another partly full concealed in a hole under the barn. About 150 yards from the barn they found a still, parts of which were buried in three separate places and in the house they found the empty whisky bottles. The still and the empty bottles not being found with the mash and not being necessarily connected with them in the offense charged, the trial court should have sustained objections and excluded this evidence.

The defendant next contends that the court erred in refusing to give a requested instruction on circumstantial evidence. This court has repeatedly held that, where the evidence of the state is wholly circumstantial, it is reversible error for the trial court to refuse to give the instruction. The instruction tendered by the defendant was not properly drawn, and did not fully cover the law of circumstantial evidence, but it was the duty of the trial court, when requested, to give proper instruction, where the evidence was wholly circumstantial.

Because the court erred in refusing to give an instruction on circumstantial evidence, the cause is reversed and remanded for a new trial in accordance with this opinion.

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


author: EDWARDS, P. J.

text:
    MELVIN BASHAM v. STATE.
    No. A-7320.
    Opinion Filed April 26, 1930.
    (287 Pac. 761.)

      Howe & Douglass and J. H. Warren, for plaintiff in error.
    Edivin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, 'was convicted in the district court of Choctaw county of the crime of murder, and his punishment fixed at life imprisonment.

Defendant presents but one question by this appeal; that is, the contention that the information charges manslaughter and not murder, and that the court was without jurisdiction to submit the crime of murder or. to rendev judgment upon the verdict of the jury finding defendant guilty of murder. The charging part of the information is as follows:

a* * * That he, the said Melvin Basham, did then and there wilfully, wrongfully, unlawfully, intentionally and feloniously malee an assault upon the person of one Jim Gladden with a deadly weapon, to-wit: a shotgun, with the unlawful and felonious intent upon the part of him the said Melvin Basham, then and there to kill and murder the said Jim Gladden, and he, the said Melvin Basham, did then and there wilfully, wrongfully, unlawfully, intentionally and feloniously shoot and mortally wound him, the said Jim Gladden with said shotgun, with the unlawful and felonious intent upon the part of him, the said defendant then and there to kill and murder him, the said Jim Gladden, from the effects of which wounds, he the said Jim Gladden, did die, as was intended by the said Melvin Basham he should do, contrary,” etc.

Section 1733, Comp. Stat. 1921, subdivision 1, defines murder as follows:

“Homicide is murder in the following cases: First. When perpetrated without authority of law and with a premeditated design to effect the death of the person killed, or of any other human being.”

The other subdivisions of this section are not applicable. Section 1740, Comp. Stat. 1921, defines manslaughter in the first degree as follows:

“* * * First. When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor.
“Second. When perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as constitute excusable or justifiable homicide.
“Third. When perpetrated unnecessarily either while resisting an attempt by the person killed to commit a crime, or after such attempt shall have failed.”

Section 1735, Comp. Stat. 1921, reads:

“A design to effect death sufficient to constitute murder may be formed instantly before committing the act by which it is carried into execution.”

The trial court instructed the jury on the law of murder. Defendant did not except, but during the second argument of counsel for defendant, he presented a request for an instruction advising the jury that defendant could not be convicted of murder, but could be convicted of no higher crime than manslaughter in the first degree, or that he be acquitted. This was refused, and defendant excepted, and the point was next raised in a motion in arrest of judgment.

The information in the instant case does not follow the language of the statute and allege that the homicide was committed “with a premeditated design to effect the death,” etc., but does allege that it was committed “with a deadly weapon * * * with the unlawful and felonious intent upon the part of him the said Melvin Basham * * * to hill and murder the said Jim Gladden * * * and did mortally wound him * * * from * * * which * * * said Jim Gladden did die as was intended by the said Melvin Basham he should do.”

Defendant contends that an allegation of premeditated design is essential to charge the crime of murder under the first subdivision of section 1733, Comp. Stat. 1921, supra, citing numerous authorities, among them: Jewell v. Territory, 4 Okla. 53, 43 Pac. 1075; Barker v. Territory, 15 Okla. 22, 78 Pac. 81; Pamplin v. State, 21 Okla. Cr. 140, 205 Pac. 521. It is necessary to allege a premeditated design in order to charge the crime of murder, yet it is not necessary that the words “premeditated design” be used; the allegation may be made by.Avords of similar import. Fooshee v. State, 3 Okla. Cr. 666, 108 Pac. 554; State v. Underwood, 17 Okla. Cr. 443, 190 Pac. 281; Martin v. State, 35 Okla. Cr. 248, 250 Pac. 552. It is better pleading to follow the approved forms, but, if the language used is equivalent to, or is of the same import as, the phrase “with a premeditated design to effect the death,” as used in the statute, the information sufficiently charges murder.

We have not traced the history of the term “premeditated design” from its first use in criminal statutes, but an examination of the decisions in the United States discloses that the term formerly was- used to describe the state of mind of one who had deliberated or thought over or meditated on a homicide before it was committed; that is, a killing with a “premeditated design” differed from an “intentional” killing, in that the former involved a greater degree of deliberation and forethought than the latter. State v. Brown, 12 Minn. 538 (Gil. 448) ; State v. Hoyt, 13 Minn. 132 (Gil. 125); People v. Clark, 11 N. Y. Leg. Obs. 4, 13. In Clifford v. State, 58 Wis. 477, 17 N. W. 304, it is said in substance that a premeditated killing implies a lying in wait and settled design. In Craft v. State, 3 Kan. 450, 481, it is said in substance that the word “pre-meditatedly,” used in defining murder, means planned, contrived, or schemed beforehand. See, also, State v. Yarborough, 39 Kan. 581, 18 Pac. 474; State v. Dale, 108 Mo. 205, 18 S. W. 976. A premeditated design under our law need not be entertained for any appreciable length of time. It may be a design formed instantly before committing the act by which it is carried into execution. Section 1735, supra. The time requisite to constitute premeditated design may not be distinguishable from the act of the killing, although it may be said to precede the act. I Michie, § 14 (2), p. 97; Fouts v. State, 4 G. Greene (Iowa) 500; State v. Harris, 76 Mo. 361; People v. Brunt, 11 N. Y. St. Rep. 59. Premeditation is an intent before the act of killing'. It means entertainment by the mind of a design to kill, and is often defined as “thought .of beforehand, any length of time, however short.” However, the word “premeditatedly” does not mean “thought of” in the sense of “thought over.” 1 Michie, § 13 (1), p. 86, notes.

In the case of Ernest v. State, 20 Fla. 383, it is held:

“ ‘Premeditation’ is defined as meaning, intent before the act, but not necessarily existing any extended time before the act. ‘Premeditated design,’ as used in the statutes relating to homicide, means an intent to kill, design means ‘intent,’ and both words imply premeditation.”

The case, however, was reversed for error in the instructions.

In Radej v. State, 152 Wis. 503, 140 N. W. 21, 22, it is held:

“The premeditated design of our statutory murder in the first degree is no more nor less than mental purpose to take human life, formable on the instant preceding the fatal act or some time theretofore, it being sufficient that there be a precedent existence of the purpose and per-sistency of it to and inclusive of such fatal act.”

The term “premeditated design,” as it is used in section 1733, supra, is restricted in meaning by section 1735, supra. This section may be said to be a definition of premeditated design. Thus the premeditated design does not have that limited meaning particularly applicable to a homicide committed by poisoning or by lying in wait, but to an intentional killing, even where the intent is formed instantly before committing the act which results in death. This view is further supported by section 1736, Comp. Stat. 1921, which provides that homicide committed with a design to effect death is not the less murder because the perpetrator was in a state of anger or voluntary intoxication at the time. We are led irresistibly to the conclusion that the term “premeditated design,” as the term is used in section 1733, supra, as limited by section 1735, supra, means simply a formed intent to kill, and such intent may be formed instantly preceding the act of killing, and that the allegation of “felonious intent to kill and murder,” coupled with the allegation of death “as was intended,” is equivalent in meaning and of the same import as an allegation of “premeditated design.”

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


author: PER CURIAM.

text:
    HUBERT DORSEY et al. v. STATE.
    No. A-7263.
    Opinion Filed April 26, 1930.
    (287 Pac. 1115.)
    Cochran & Williams, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of McCurtain county of disturbing an assemblage of people met for religious worship. The defendant Leonard Cren-shaw was sentenced to pay a fine of $50 and to serve 6 months in the county jail, and the other defendants were sentenced to pay a fine of $300 each and to serve 60 days in the county jail.

The record discloses that at the time charged the defendants at the village of 'Rockhill disturbed an assemblage which had met for the purpose of conducting a prayer meeting. The jury did not agree on the punishment, and the same was left to the trial court. The defendants were properly convicted and deserve punishment, but the punishment assessed is too severe under all the circumstances and should be modified by reducing the punishment of Leonard Crenshaw to a fine of $50 and 6.0 days in the county jail, and the other defendants at a fine of $100 each and 30 days in the county jail.

As modified, the judgment is ¿ffirmed.


text:
    VIRGIL DURHAM v. STATE.
    No. A-7302.
    Opinion Filed April 26, 1930.
    (287 Pac. 1115.)
    E. L. Dillard, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted of burglary in the second degree in the district court of Jefferson county, and was sentenced to serve a term of two* years in the state penitentiary.

The appeal was lodged in this court in March, 1929. No briefs in support of the appeal have been filed. We have examined the record, and ivhile the evidence is circumstantial, it is sufficient to sustain the verdict and judgment. No material error is apparent, and the punishment assessed is the minimum fixed by law.

The case is affirmed.


text:
    Ex parte RAY McCULLOUGH.
    No. A-6837.
    Opinion Filed April 26, 1930.
    (287 Pac. 1117.)
    M. L. Opperud and O. B. Martin, for petitioner.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

This is an original proceeding in habeas corpus. It is made to appear that the cause has been finally disposed of in the lower court and that the question sought to be raised is moot.

The case is dismissed.


text:
    JOHNNIE McKEY v. STATE.
    No. A-7282.
    Opinion Filed April 26, 1930.
    (287 Pac. 1117.)
    Bartlett & Bartlett, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kay county on a charge of assault and battery, and sentenced to serve a term of 30 days in the county jail.

No material error is made to appear. Tbe record discloses a case of assault and battery, but not an aggravated case. Upon a consideration of all tbe facts shown, tbe origin of tbe difficulty, and tbe age of tbe respective parties, we are of the opinion that the punishment assessed is too severe and that justice requires a modification. The judgment will be modified by reducing the punishment assessed from 30 days in the county jail to a fine of $50 and costs, and, as modified, the case is affirmed.


text:
    DICK TAYLOR v. STATE.
    No. A-7301.
    Opinion Filed April 26, 1930.
    (287 Pac. 1118.)
    A. A. Brown, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, ivas convicted in the district court of Roger Mills county on a charge of selling whisky to a minor, and was sentenced to pay a fine of $50 and to serve two years in the state penitentiary at Granite, Okla.

The case was lodged in this court in March, 1929. No briefs in support of the appeal have been filed. An examination of the record discloses that the evidence fully sustains the verdict and judgment. The defendant did not testify and offered no evidence. No material error is made to appear.

The case is affirmed.


text:
    ROBERT FELDER v. STATE.
    No. A-7211.
    Opinion Filed May 2, 1930.

    (287 Pac. 792.)
    Madden & Hubbell, for plaintiff in error.
    The Attorney General and Edward Crossland, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, ivas convicted in the district court of Cotton county of the crime of assault with a dangerous weapon and his punishment fixed by the jury at imprisonment in the penitentiary for a period of two years.

The evidence of the state shows that on October 4, 1927, Miss Belle Cox, in company with her brother and his wife, was traveling in a Ford automobile upon the public highway in Cotton county on their way to Wichita Falls, Tex.; that they overtook three boys, one of whom, was defendant, who carried a 22 rifle, walking in the same direction, preceded by several dogs, on their way hunting; the boys stepped to the left-hand side of the road to allow the automobile to pass, but one of the dogs failed to get out of the way and was hit by the automobile; that immediately thereafter a shot was fired from the defendant’s rifle and struck Miss Belle Cox in the neck. Mr. Cox testified that when he asked defendant what he meant by shooting into tbe ear, defendant replied: “Because you tried to run over my dog.”

Tbe defendant claimed that tbe shooting was accidental ; that tbe gun was a 22 Hammerless rifle which be held in bis right band; that be had a wound upon his left band and was unable to use it in holding the gun; that in his excitement when he saw the car was about to hit the dog, and without any intention on his part, he discharged the gun which caused the wound upon Miss Cox.

The defendant contends that the court erred in giving instruction No. 12 over his objection. He complains particularly because he claims that the court failed to give any instruction as to his defense that the shooting was accidental. In this particular instruction the court did not affirmatively instruct that should they find the shooting was accidental but he did negatively so instruct. However, the instructions must be considered as a whole,, and when considered all together, if they fairly and correctly state the law applicable to the case, they will be sufficient. A careful examination of the instructions in this case discloses that the tidal court fairly and correctly stated the laAV as applicable to the facts herein.

The defendant finally contends that the verdict and judgment is excessive. The defendant was charged in the information with the crime of assault with intent to kill. The jury found him guilty of the lesser crime of assault with a dangerous weapon. The defendant is a boy seventeen years of age, and inasmuch as there is a sharp conflict in the evidence and he was found guilty of the lesser crime, the ends of justice will be met by modifying the punishment inflicted by reducing his sentence in the penitentiary from two years to one year. As modified the cause is affirmed.

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


text:
    S. E. NAPIER v. STATE.
    No. A-.
    Opinion Filed May 2, 1930.
    (287 Pac. 791.)
    W. B. Toney, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Hughes county on a charge of having possession of intoxicating liquors, to wit, home brew, and his punishment fixed at a fine of $50 and confinement in the county jail for a period of 30 days.

No motion was made to suppress the evidence. Upon the trial of the case and while Manual La Valley, a deputy sheriff, was on the stand testifying, defendant’s counsel handed him the search warrant and had it identified. The officer testified that he served a copy of this warrant on the defendant and returned the warrant into court; that he did not search the house of defendant, but the outlying premises. Defendant’s counsel then handed the witness Defendant’s Exhibit B and had it identified as the affidavit for the search warrant. The officer testified that he made the affidavit. Thereupon defendant made the following objection:

“We "want to object to the testimony of this witness as to the search of the premises of the defendant for the reason that the affidavit upon which the search warrant was based, under which premises were searched, described the premises as block 15, in Hardage addition to the city of Holdenville, and did not properly describe the defendant’s home, and is a violation of the 4th Amendment of the Constitution of the United States, section 30, art. 2, of Oklahoma, which provides that no search warrant should issue to search the premises of a defendant until an affidavit has been filed showing the premises and describing the place to be searched and the person and thing to be seized.”

This objection was overruled, and the witness was permitted to testify that he found the liquor seized under the warrant in block 15, Hardage addition to the city of Holdenville. At the close of the evidence of the state, the defendant made the following motion:

“Comes now the defendant S. E. Napier, and moves the court to strike all the evidence of the witness M. C. La Yalley for the reason that no sufficient legal search warrant was issued and served upon him, and that it was his home that was searched.

“By the Court: Overruled. Exception.”

The defendant then called Claude Petree as a witness in his behalf. The defendant then had identified a drawing or plat of Hardage addition as being correct, and offered the same in evidence for the purpose of locating defendant’s place of residence with reference to block 15. Objection was made to the plat and this evidence, and the same was excluded by the court. Thereupon the defendant made the following offer of proof:

“Comes now the defendant and proposes to shoAV by the witness who has just left the stand, Claude Petree, that the home of S. E. Napier that was searched under the search warrant based upon affidavit describing his home as block 15, Hardage addition to the city of Holdenville, Oklahoma, is not located on block 15, but is located on Hickory street between block 11 and 14, a considerable distance from block 15 in Hardage addition.”

The defendant next, called Elo Sexton and made the same offer of proof as was made for the witness Claude Petree, which was also excluded. The sixth ground of error assigned by defendant is as follows:

“By refusing to permit Claude Petree and Elo Sexton, plaintiff in error’s witnesses, to testify as they would have done had they been permitted, that his home and premises searched by the officers was not located upon block 15, Hardage addition to Holdenville, Oklahoma, but was located on Hickory street between blocks 11 and 14, a great distance from said block 15, the property described in the information and search warrant under which his home and premises were searched.”

When this evidence was offered, the trial court should have excluded the jury and heard the same. If it was true that the officers had searched premises other than those described in the affidavit and warrant, and that the liquors seized were found at premises other than those described in the affidavit and warrant, then such search would be illegal and such evidence inadmissible. The question of whether the officers had searched the premises described in the affidavit and warrant Avas one for the court, and the court should have heard such evidence and summarily disposed of such objection in the absence of the jury. It was material to' the defense of defendant to show that the wrong premises bad been searched, and it was reversible error for the court to refuse to hear such evidence.

For the reasons stated, the cause is reversed and remanded, with instructions to proceed in accordance with this opinion.

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


text:
    JIM MURRAY v. STATE.
    No. A-7351.
    Opinion Filed May 2, 1930.
    (287 Pac. 781.)
    Sam S. Gill, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of maintaining and operating a public nuisance and his punishment fixed at a fine of $100 and confinement in the county jail for sixty days.

The defendant contends that the search warrant was void, and that therefore the evidence secured thereunder was inadmissible. The search warrant was particularly objected to, in that it did not run in the name of the state of Oklahoma. That part of the search warrant pertinent to this case reads as follows:

“State of Oklahoma j
}- ss. Search Warrant.
“Oklahoma County J
“In the Justice Court of Oklahoma City District.
“To any Sheriff, Constable, Marshal or Policeman in the County of Oklahoma, Greeting:
“Proof by affidavit having been made this day before me by a competent person, * * *”

Article 7, § 19, of the Constitution of Oklahoma, provides :

“The style of all writs and processes shall be ‘The State of Oklahoma.’ All prosecutions shall be carried on in the name and by authority of the State of Oklahoma. All indictments, informations, and complaints shall conclude, ‘Against the peace and dignity of the State.’ ”

Section 862, C. O. S. 1921, provides:

“The style of all process shall be: ‘The State of Oklahoma.’ It shall be under the seal of the court from whence the same shall issue, shall be signed by the clerk, and dated the day it is issued.”

In the case of McAdoo v. State, 36 Okla. Cr. 198, 253 Pac. 307, this court said:

“The provision of article 7, § 19, of the Constitution and section 862, Comp. Stat. 1921, requiring that process shall run in the name of the state of Oklahoma, is mandatory. A search warrant is ‘Process’ within the meaning of section 19, art. 7, of the Constitution and section 862, Comp. Stat. 1921, and must run in the name of the state of Oklahoma.” Dunn v. State, 40 Okla. Cr. 76, 267 Pac. 279; Myers v. State, 40 Okla. Cr. 170, 267 Pac. 867; Sloan v. State, 45 Okla. Cr. 228, 282 Pac. 898; Woods et al. v. State, 46 Okla. Cr. 288, 287 Pac. 769.

The search warrant conferring no authority on the officers to make the search and seizure, the same was illegal and the evidence obtained thereby inadmissible. For the reasons stated the cause is reversed.

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


text:
    B. O. WOOLBRIGHT v. STATE.
    No. A-7333.
    Opinion Filed May 2, 1930.
    Rehearing Denied June 5, 1930.
    (288 Pac. 499.)
    W. A. Woodruff and Pete Helton, for plaintiff in error.
    The Attorney General and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Adair county of the crime of stealing twenty-seven turkeys, and bis punishment fixed at imprisonment for one year in the state penitentiary at McAlester, Okla.

The evidence of the state was that the defendant lived at Lyons, Okla., and that the town consisted of one store owned by the mother-in-law of defendant, and which was at the time of the theft of the turkeys, which were claimed to have been stolen by defendant, run by him. The defendant stayed in the store at night just prior to the alleged theft. Lester and Andy Brashears were the owners of a bunch of turkeys which roosted together on the premises near the home of Andy Brashears; that they were all stolen at the same time and from the same place and by the same person or persons. The theft occurred on the night of September 5, 1928. On the morning, after the theft of the turkeys, Lester Brashears, having missed the turkeys, examined the ground near where they roosted, and found where a car had turned around, and found chicken feathers and a heavy wire with a hook on the end. The tracks of the car indicated that the car had come from the road leading from Lyons, and had returned the same way.

The stolen turkeys were sold on the morning of September 7th to the Clemons Produce Company at Stilwell, and the check made payable to “B. O. Woolbright,” the defendant herein. About one-half hour after the stolen turkeys had been sold, Lester Brashears came to the poultry house and identified the turkeys as his, and the officers immediately pursued the parties who had sold the turkeys to the Clemons Produce Company and arrested them and later arrested the defendant.

The defendant admitted that he had possession of the turkeys in question and that Bud Eads and John Gray, who had sold the turkeys to the Clemons Produce Company, had been employed by him to take the turkeys to Stilwell for the purpose of sale, and attempted to explain his possession of the turkeys by saying that he had purchased them from a man by the. name of Smith. He did not know where Smith lived, and had never seen him before the purchase, and had not seen him since. Defendant also admitted that he had never purchased turkeys prior to this time.

The defendant complains, first, that the court erred in overruling his demurrer to the information, for the reason that the same is duplicitous and is insufficient to charge an offense under the laws of the state. The charging part of the information is as follows:

“That is the said B. O. Woolbright in the county and state aforesaid on the day and year aforesaid, did, then and there unlawfully, wrongfully, stealthily, fraudulently and feloniously in the night time take, steal and carry away without the knowledge and consent and against the will of one Andy Brashears and Lester Brashears, twenty-seven turkeys the personal property of the said Andy Brashears and Lester Brashears with the unlawful, fraudulent and felonious intent then and there on the part of him the said B. 0. Woolbright to deprive the said Andy and Lester Brashears of said property and to convert the same to the use and benefit of him the said B. O. Wool-bright, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Oklahoma.”

The particular complaint which the defendant makes is that the information charges two offenses, in that it charges ownership in two different persons. In People v. Sichofsky, 58 Cal. App. 257, 208 Pac. 340, the rule is stated thus:

“Where several articles were stolen at the same time and from the same place, the offense may be charged as one crime, and in a single count, though the ownership is in different persons.”

In the case of Sanders v. State, 35 Okla. Cr. 139, 249 Pac. 356, this court said:

“Where the offense of grand larceny is charged in an information and it is alleged that the property, the subject of the larceny, belonged to three persons, proof that the three persons owned in severalty different items of the property sufficiently supports the allegation of ownership.”

In the body of the opinion at page 141 of 38 Okla. Cr., the court said:

“It is first argued that there is a fatal variance between the allegation of ownership of the stolen cotton and the proof. The allegations are that the cotton was oivned by Nickles, Boydston, and Sewell, and the proof is that the cotton belonged, one bale to Nickles, one bale to Boydston, and one to Sewell. Section 2560, Comp. Stat. 1921, provides that Avhen an offense involves the commission of a private injury, and is described with sufficient certainty in every respect to identify the act, an erroneous allegation as to the person injured is not material. Gunter v. State, 16 Okla. Cr. 476, 184 Pac. 797; Leyerle v. State, 31 Okla. Cr. 179, 237 Pac. 871; Carson v. State, 30 Okla. Cr. 438, 236 Pac. 627; Jackson et al. v. State, 31 Okla. Cr. 30, 237 Pac. 129.”
“The allegation of ownership and the proof in support of it are sufficient to satisfy the requirements of the law in this particular. There is no material variance.” Shuford v. State, 4 Okla. Cr. 513, 113 Pac. 211; State v. Butts, 42 Wash. 455, 85 Pac. 33.

It is true that on a rehearing this case was reversed for insufficient evidence and because of other errors occurring at the trial. See Sanders v. State, 43 Okla. Cr. 69, 277 Pac. 605. But, notwithstanding such reversal, the true rule by which the information in the case at bar should be tested is laid down in the original opinion in Sanders v. State, supra. The information in the case at bar was not duplicitous, and the demurrer of the defendant thereto was properly overruled.

Defendant next contends that the court erred in denying his motion to advise the jury to return a verdict of not guilty. There being sufficient competent evidence in the record to support a verdict of guilty, the motion was properly overruled.

The defendant next contends that the court erred in overruling the motion of defendant to require the state to elect upon which one of the two offenses' alleged in the information it would rely for a conviction. Since the information charged but one offense, the motion was properly overruled. The defendant complains of other errors, but an examination of the record discloses that none of the errors complained of are sufficient to require a reversal of the case.

For the reasons stated, the cause is affirmed.

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