text:
    DAN LANDON v. STATE.
    No. A-10526.
    Oct. 30. 1946.
    (174 P. 2d 266.)

      For former opinion, see 82 Okla. Cr. 336, 166 P. 2d 781.

      Carl C. Wever, of Pawhuska, and Hulsey and Hulsey, of McAlester, for plaintiff in error.
    Mac Q. Williamson, Atty Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

On February 27, 1946, the opinion of this court was rendered affirming the judgment and sentence pronounced by the district court of Osage county against the defendant. Landon v. State, 82 Okla. Cr. 336, 166 P. 2d 781.

A petition for rehearing was filed in which counsel for defendant complained especially of the opinion rendered by this court in that it did not discuss the alleged error of the court in refusing to require the state to elect upon which of the alleged acts of sexual intercourse the state was relying for a conviction, but instead, over the objection and exception of the defendant, the trial court gave a general instruction in which the jury was authorized to convict the defendant if they found beyond a reasonable doubt that he had had sexual intercourse with the prosecutrix at any time within three years prior to the filing of the information against the defendant on December 6, 1941.

After a consideration of this petition for rehearing, the same was denied for the reason that the proposition contended for was not presented in the brief of the defendant and such assignment of error not being presented in the brief was by this court deemed to have been waived by defendant. Upon this order being made in disposing of the petition for rehearing, counsel for the defendant appeared before the court and asked permission to file a second petition for rehearing and called our attention specifically to the fact that two briefs had been filed

on behalf of defendant, in one of which this assignment of error was presented. The court thereupon ■ granted permission to counsel for defendant to file a second petition for rehearing, and the same has been filed, together with a further brief urging the proposition above mentioned.

At the trial of the defendant he employed counsel who resided in his home county of Osage. After the conviction of defendant and his incarceration in the State Penitentiary, he employed additional counsel who resided at McAlester to assist in the presentation of his case on appeal. Each of the attorneys employed by the defendant filed a brief in defendant’s behalf, and a copy of each brief was served on the Attorney General. When the record was presented to this court by the clerk, only one of the briefs filed by defendant’s counsel was furnished to us, and the opinion of this court affirming the conviction was written after a full consideration and discussion of the assignments of error set forth in that brief. The question presented by the petition for rehearing was not mentioned in that brief. The brief of the state, as noted in the opinion, failed to discuss many of the assignments of error, including the one now presented for disposition and called to our attention in the petition for rehearing. For those reasons we were not advised until after the petition for rehearing was denied that counsel for defendant had fully briefed the assignment of error which will hereinafter be discussed.

Dorothy Landon, the prosecuting witness and daughter of defendant, testified that on the night of May 24, 1939, or May 24, 1940, the date of which she was not sure, that the defendant had two acts of sexual intercourse with her. One of these acts was committed in the living room and the other in the bedroom where she and her sister were sleeping. The act in the bedroom was committed in the presence of her sister who testified at the trial in corroboration of the testimony of the prosecutrix. After the testimony of the prosecutrix concerning the two acts which were committed while her mother and the other children had gone to Ponca City on May 24, 1939 or 1940, she testified as follows:

By Mr. Carman, county attorney:'

“Q. Dorothy, had your father previous to this night that you have related when your mother and the children went to Ponca City, had he had intercourse with you on previous occasions? A. Yes, sir. Q. Do you recall where the first occasion was? A. It was in the barn. Q. Do you know about how old you were then? A. Somewhere around six. Q. I will ask you to state whether or not his acts of intercourse with you occurred frequently or infrequently thereafter until November, 1941? A. Yes, sir. Q. Was it frequently? A. Yes, sir. Q. Where would these acts take place? A. Most anywhere.”

At the close of the case, counsel for defendant presented the following motion:

“Comes now the defendant, and moves the court to require the state to elect upon which specific act of intercourse the defendant had with the prosecuting witness, Dorothy Landon, it relies upon for the conviction of the defendant, Dan Landon.”

To which the county attorney replied:

“Mr. Carman: The state does elect to rely for conviction in this case on the occasion of the trip to Ponca City, concerning which all the proof in this case has been, when the defendant Landon and Dorothy and LeEtta and Stuart were at home that night.”

It is tbe contention of tbe defendant that since tbe prosecuting witness testified to two different acts of intercourse with tbe defendant upon tbe date tbe state relied upon for a conviction, tbe election of the state was not specific enough to inform tbe jury and the defendant which of the alleged acts the state was relying upon for a conviction. In no instruction was the jury advised of any specific act relied upon by the state for conviction, but the instructions pertaining thereto were general in their nature as will be hereinafter shown.

Counsel for the state excepted to instructions 6 and 7 which were given by the trial court, and which are as follows:

“If you find and believe from the evidence, facts and circumstances in proof, beyond a reasonable doubt, that in the County of Osage, State of Oklahoma, on or about the 24th day of May, 1939, or at any time within three years prior to the filing of the information herein, which information was filed on December 6th, 1941, tbe défendant herein engaged in any act of sexual intercourse with Dorothy Landon, who was not the wife of said defendant, but that at the time of the engaging in said act the said Dorothy Landon was under the age of 14 years, then and in that event you should find the defendant guilty of rape in tbe first degree, as charged in the information.”
“If you find and believe from the evidence, facts and circumstances in proof, beyond a reasonable doubt, that in the county of Osage, State of Oklahoma, and on a date after the Dorothy Landon had arrived at the age of fourteen years, and at any time within three years previous to the filing of the information herein, to wit, December 6, 1941, the defendant herein did engage in an act of sexual intercourse with Dorothy Landon, who was not the wife of the defendant, and that at the time of engaging in said act, as set forth in the information, the said Dorothy Landon was under the age of sixteen years, and over the age of fourteen years, then and in that event yon should find the defendant guilty of rape in the second degree.”

In the case of Kilpatrick v. State, 71 Okla. Cr. 129, 109 P. 2d 516, this court held:

“Since rape is not a continuous offense and every act of sexual intercourse is a separate and distinct offense, where there is testimony of more than one such act introduced by the prosecution, the trial court should either require the prosecution to elect upon which of such acts it would rely for a conviction, or else the court should treat the act of which the state first introduced evidence, tending in any degree to prove the offense, as an election and give a specific instruction limiting the jury to a consideration of this particular act as a basis for a conviction.
“In a trial upon a charge of rape, proof of other acts of intercourse may be shown for the purpose of corroboration and as showing the relation between the parties; but a conviction must be based on one act. Where, as in this case, the defendant is not tried with reference to one particular act, but two separate and distinct acts, reversible error is committed when the prosecution is not required to elect one specific act and the trial court fails to treat the first act proven as an election.”

In the body of the opinion it is stated:

“This court held in Smith v. State, 20 Okla. Cr. 124, 201 P. 663: ‘Rape is not a continuous offense. On the evidence in this case every act of sexual intercourse testified to by the prosecutrix constituted a distinct crime, and the trial court should either require the prosecution to elect upon which of such acts it would rely for a conviction, or else the court would have treated the act of which the state first introduced evidence to tend in any degree to prove the offense as an election and should have given a specific instruction limiting the jury to a consideration of this particular act as a basis for a conviction.’ Timmons v. State, 44 Okla. Cr. 200, 280 P. 314.
“In Cooper v. State, 31 Okla. Cr. 217, 238 P. 503, 504, this court stated: ‘The holdings of this court * * * may be summarized by saying that a person may be tried for and convicted for only one Qffense at a time; that rape is not a continuous offense, and while in a trial upon a charge for rape proof of other acts of intercourse may be proven for the purpose of corroboration, and as showing the intimate relation between the parties, a conviction must be based on one act. Here, the defendant was not tried with reference to any particular act, the prosecution was not required to elect any particular act, and the court did not treat the first act proven as an election. * * * The error is reversible.’ Moorehead v. State, 38 Okla. Cr. 328, 261 P. 231.
“This court said in Williams v. State, 40 Okla. Cr. 303, 268 P. 329: ‘It is not essential that such election be made until the close of the evidence, and, if not made by the prosecution, the court should by instruction limit the jury to a consideration of one particular act as a basis for a conviction and should limit proof of other acts as corroboration, or as showing the relation of the parties.’ ”

For other cases in support of this general rule, see Gracy v. State, 13 Okla. Cr. 643, 166 P. 442; Pope v. State, 24 Okla. Cr. 213, 217 P. 498; Lee v. State, 32 Okla. Cr. 117, 240 P. 148.

In Pope v. State, supra, it is held:

“In a prosecution for statutory rape where the prosecutrix testifies to eight different acts of sexual intercourse accomplished with her by the defendant, all within three years prior to the commencement of the prosecution, and the trial court by an instruction permits the jury to base its conviction on any one of such eight acts without requiring the state to elect and without treating the first act proved as an election, and the verdict is a general one finding defendant guilty of the crime charged without reference to the date of its commission, the judgment will be reversed, as it cannot be determined from the record upon which particular act of sexual intercourse the conviction is based.”

Under the instructions complained of by the defendant hereinabove set forth, the jury was authorized to convict the defendant if they found beyond a reasonable doubt that at any time within three years prior to the filing of the information on December 6, 1941, the defendant had sexual intercourse with the prosecutrix. Under the evidence the jury might not have believed that the defendant committed the acts as related by the prosecutrix on May 24, 1940, but they might have believed that he had committed an act or acts of sexual intercourse with her on some of the other occasions testified to by the prosecutrix. The giving of the general instructions hereinabove set forth was error. The court should have required the county attorney -to have made an election of one specific act and instructed the jury concerning such election, and advised them that if they did not believe beyond a reasonable doubt that the defendant committed the act relied upon by the state for conviction that it was their duty to acquit the defendant. Any other acts testified to by the prosecutrix other than the one which the state was required to elect as a basis for the conviction of defendant would merely be admissible in corroboration of the other. testimony of the prosecutrix and for the purpose of showing the relation between the parties.

It was said in Kilpatrick v. State, supra:

“In rape prosecution, proof of other acts of intercourse may be shown for the purpose of corroboration and as showing the relation between the parties, but a conviction must be based on one act ”

• For the reasons hereinabove stated, the judgment of the district court of Osage county is reversed and remanded with instructions to grant the defendant a new tria!. ■

BAREFOOT, J., concurs. DOYLE J., not participating.


source: Caselaw Access Project

author: • BAREFOOT, J.

license: Public Domain

text:
    ELMER PETTY v. STATE.
    No. A-10620
    Oct. 30, 1946.
    (174 P. 2d 274.)
    Jerome Sullivan, of Duncan, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Hegel Branch, Co. Atty., Stephens County, of Duncan, for defendant in error.
   • BAREFOOT, J.

Defendant, Elmer Petty, was charged jointly with Lloyd Sheehan, R. D. Mooneyhan and David Jones in the district court of Stephens county with the crime of burglary; took a severance, was tried, convicted and sentenced to serve a term of two years in the State Penitentiary, and has appealed.

The disposition of the cases of the codefendants is as follows:

R. D. Mooneyhan entered a plea of guilty and his punishment was assessed at two years in the State Penitentiary. This sentence was suspended during good behavior, conditioned that the defendant join the Army before January 11,1943. This he did.

David Jones was convicted and sentenced to serve a term of two years in the State Penitentiary. His case was appealed to this court, and affirmed on August 1, 2945, Jones v. State, 81 Okla. Cr. 127, 161 P. 2d 89.

Lloyd Sheehan was tried, convicted and sentenced to two years in the State Penitentiary. He appealed to this court, and Ms case was affirmed on September 18, 1946, Sheehan v. State, 83 Okla. Cr. 41,172 P. 2d 809.

The jury fixed the punishment of the defendant in the case at bar at two years in the penitentiary, and recommended a suspended sentence, but the court refused to follow this recommendation.

The only question presented on this appeal is that the evidence is insufficient to sustain the judgment and sentence. Briefs have been filed by both the defendant and the state. Statements with reference to the evidence have been made to a limited extent in the cases involving the codefendants. We shall, therefore, only refer briefly to the evidence as it concerns this defendant.

Defendant was charged jointly with his codefendants with breaking and entering a building belonging to the Ice Service Company in the city of Duncan, and taking six cases of beer. He was a taxi driver in the city of Duncan. His codefendant David Jones worked for him, and drove a truck. Defendant had been acquainted with his other two codefendants for a period of only two weeks. He lived with his wife and three children at the home of his parents in Duncan. On the afternoon of December 22, 1942, defendant was hired by his eodefendant Mooneyhan to take him to the Ice Service Company, where Mooneyhan purchased a case of beer, which he took to the Wade Hotel. Defendant later went home to get his supper. His codefendant Jones also took his meals at the home of defendant’s parents, and was present. Just as supper was ready to be served, Mooneyhan and Sheehan came to his residence and made arrangements for defendant to take them to the El Rancho Night Club, just south of the city of Duncan. David Jones accompanied them. They went to the night club, and defendant remained in his taxicab. In a short while his codefendants returned to the taxi and had with them four girls, and all of them entered the taxi and they started báck to Duncan. One of the girls was taken to her home, and the codefendants Mooneyhan and Sheehan inquired of defendant what he would charge them to just drive them around, and defendant told them $3 an hour. In a short time they directed him to drive to the Ice Service Company, and Mooneyhan went to the side door, but returned without any beer. They then drove around through the park and town for about an hour, and Mooneyhan told defendant to drive back to the beer place, “there should be somebody there by this time.” Dedendant did as directed, and the three codefendants got ont of the taxi, defendant remaining in the car. They returned and put some beer in the turtleback of the car. Mooneyhan then told defendant to back up and go out Fifth street, and as he backed up, he struck' some mud and killed his engine, Mooneyhan told defendant to hurry, that he had not paid for the beer, and defendant testified that he immediately turned off the ignition of the car, and told Mooneyhan he was not moving until the beer was settled for.

Just about this time the owner of the premises, Mr. McCaw, and his wife drove up and stopped immediately in front of defendant’s car, and got out. Mr. McCaw was excited, and Mooneyhan offered to pay him for the -beer, but he refused, and told his wife to call the law. The three codedendants ran away, but defendant made no attempt to escape. The officers arrived and found that the door to the Ice Service Company had been broken open, and four cases of beer were found in the turtle back of defendant’s car. The defendant and the three girls were taken by the officers to the jail, where they remained until the next morning. The girls were discharged and charges were filed against the four boys, as above indicated.

Two of the girls, R. E. McCaw and the two police officers who made the arrest testified at the trial of defendant. There was no evidence on the part of the state that defendant was out of his taxicab at the time the building was entered, or that he in any way assisted in taking the beer, or placing the same in the car. One of the girls testified that she “reckoned” all of the boys got out of the car, but the other girl testified that they didn’t all get out. Mr. McCaw testified that defendant did not attempt to leave and that he said something about not leaving until the thing was settled.

This court seldom reverses a case on the insufficiency of the evidence where a verdict of guilty has been returned by a jury, but where the evidence is such that it only casts a suspicion against the accused, and there is no evidence of an intent on the part of a defendant to commit the crime, it becomes our duty under the law to set the judgment and sentence aside.

The evidence against this defendant is clearly insufficient to sustain the judgment and sentence. The evidence of the state when construed with the evidence of the defendant causes one to reach the conclusion that this defendant did not participate in this crime to that extent required by the law to make him guilty of the crime of burglary. There is nothing in the record to show that he had any previous record of crime. He testified in his own behalf, and no question was asked as to any previous convictions. He is a married man, and now has four children. He had lived in the city of Duncan all of his life. The evidence in this case is far from conclusive of defendant’s guilt, and not sufficient to exclude every other reasonable hypothesis consistent with defendant’s innocence. Lumpkin v. State, 25 Okla. Cr. 108, 219 P. 157; Richards v. State, 52 Okla. Cr. 436, 6 P. 2d 449; Dobbs v. State, 28 Okla. Cr. 371, 230 P. 939; McLaughlin v. State, 18 Okla. Cr. 137,193 P: 1010; Hubbard v. State, 71 Okla. Cr. 373, 112 P. 2d 174; Phillips v. State, 64 Okla. Cr. 454. 82 P. 2d 246; Clardy v. State, 64 Okla. Cr. 463, 82 P. 2d 239.

We have given the evidence as it appears in the record in this case. It may be further stated that at the beginning of the trial, defendant presented a motion for continuance by reason of the absence of R. D. Mooneyhan, one of the co-defendants, who a.t that time was serving in the United States Army. In the motion for continuance it was alleged that the witness was in the city of Duncan on leave and that the county attorney refused to waive the statutory time so that his deposition could be taken. He then made an affidavit which was attached to the motion for continuance. When this motion was presented, the county attorney agreed that the affidavit could be read as the evidence of the witness at the trial. The court admitted the affidavit and permitted it to be read to the jury. This question was not presented in the brief, but the affidavit of this witness corroborated the evidence of the defendant in every respect. He stated that he employed the defendant as a taxicab driver and that “he knew nothing about where or how we got the beer.” He further stated:

“Petty was only employed to drive for us in his taxicab and did not have anything to do with getting into the beer place, and did not know that we had stolen the beer or had entered the place for that purpose, and was in no way connected with us in what we did on that occasion.” He further stated: “I am willing to testify to the above facts if I am able to get here for the trial,” and “I have stated the above facts in order that justice may be done when Petty is tried and for no other purpose, nor do I expect to receive anything of value whatsoever for stating what I know about the above case and have made these statements voluntarily.”

For the reasons above stated, the judgment of the district court of Stephens county is reversed, and the district court is directed to enter an order discharging the defendant, unless the county attorney is of the opinion that he has other evidence sufficient to convict the defendant.

JONES, P. J., concurs. DOYLE, J., not participating


author: BAREFOOT, J.

text:
    DICK SAVAGE v. STATE.
    No. A-10706.
    Nov. 6. 1946.
    (174 P. 2d 272.)
    John W. Tyree, of Lawton, and Cruce, Satterfield & Franklin, of Oklahoma City, for plaintiff in error.
    Mae Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., and Ralph H. Cline, Co. Atty., of Lawton for defendant in error.
   BAREFOOT, J.

The defendant, Dick Savage, was county court of Comanche county of the crime of the unlawful possession of intoxicating liquor and sentenced to serve 60 days in the county jail, and to pay a fine of $100 and costs.

From the judgment rendered on October 5, 1945, an appeal was perfected by filing in this court, on December 20,1945, a petition in error with case-made attached.

On May 24, 1946, the Attorney General filed herein a motion to dismiss the appeal, for the reason that after the judgment and sentence was pronounced against the defendant, he left the State of Oklahoma without permission of the court; that he was on or about February 1,1946, arrested by Federal officers in Baltimore, Md., and charged in the United States District Court under the National Security and Property Act; that subsequent' thereto and on or about March 1, 1946, a charge of forgery under the laws of the State of Missouri was filed against the defendant in Kansas City, Jackson county, Mo.; that defendant was delivered by the federal authorities to the State of Missouri, and that on May 16,1946, the defendant entered a plea of guilty to the crime of forgery in the second degree, and was sentenced in Jackson county, Mo., to a term of two years in the Missouri State Prison. That defendant is now in the State Penitentiary of the State of Missouri, and beyond the jurisdiction of this court. That by reason of his absence from the state, he will be unable to respond to any order or judgment of the Criminal Court of Appeals, and prays that the appeal be dismissed. This motion' was served on the attorney for defendant on May 23, 1946, and no response has been filed thereto.

This case was duly assigned for hearing on the motion to dismiss for October 19, 1946, but no appearance was made by counsel for defendant, although he had heretofore filed a brief on behalf of the defendant.

Title 22 O. S. 1941 § 1057 provides that if the crime for which defendant is convicted is bailable, an appeal bond may be made, and section 1058 sets out the conditions of such bond, and that the judgment of conviction shall not be superseded except upon the conditions named therein. Therefore, where a supersedeas bond is given, it is strictly upon the condition that the plaintiff in error shall fully observe the conditions named in such bond; and where it is shown, as in this case, that the defendant, after perfecting his appeal, without permission or proper order of the court, left the jurisdiction of the court, he voluntarily violated one of the conditions of his supersedeas bond, and thereby waived the right given him to have the judgment of conviction superseded.

While there is no express provision of the statute of this state authorizing the dismissal on the grounds stated, yet, in the absence of a statute to the contrary, it has been held to be a matter within the discretion of the court whether, under the facts and circumstances, the appeal will be considered and determined. When the defendant left the state, he was in the attitude of a fugitive from justice. This court has often held that an appeal will not be considered when the plaintiff in error is a fugitive from justice, or is otherwise beyond the jurisdiction of the court and cannot be made to respond to any judgment or order which might be made in the case. When such state of facts is made to appear by proper motion and showing, the appeal will be dismissed. Exline v. State, 48 Okla. Cr. 181, 290 P. 349; Hayes v. State, 50 Okla. Cr. 178, 296 P. 988; Kilpatrick v. State, 71 Okla. Cr. 125, 109 P. P. 2d 514; Kuykendall v. State, 82 Okla. Cr. 228,168 P. 2d 142.

The motion of the state to dismiss the appeal herein is therefore sustained, and the appeal is dismissed.

JONES, P. J., concurs. DOYLE, J., not participating.


author: JONES, P. J.

text:
    Ex parte JOHN CASSIDY.
    No. A-10771.
    Nov. 6, 1946.
    (174 P. 2d 271.)
    John Cassidy, pro se.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for respondent.
   JONES, P. J.

This original proceeding in habeas corpus was instituted by the petitioner John Cassidy to secure his release from confinement in the State Penitentia-

The petition for a writ of habeas corpus was prepared by the petitioner himself. It consisted mainly of conclusions of law, but after a consideration of the same and because of our desire to liberally construe any petition for a writ of habeas corpus in order to determine whether a person may be illegally confined, a rule to show cause was issued and a response has been filed on behalf of the warden by the Attorney General.

After the response of the warden was filed in which was attached a photostatic copy of the judgment and sentence of the district court of Craig county showing that the petitioner had been committed to the penitentiary from that county to serve a term of three years’ imprisonment upon a plea of guilty to an information charging the crime of larceny from a building, the petitioner then sent a letter to the clerk which was treated as an amendment to his petition in which apparently he abandons all grounds set forth in his petition except he contends in his letter that he “broke into the building in the daytime and took only two old worn-out suits of clothes and a pair of boots, the value at the most figures $7.00.1 am serving on my ninth month, second prison year, up to date my record is clear, I have been arrested several times, but always drunk petty larceny charges, don’t do them things only when crazy drunk.”

The response of the warden shows that the petitioner is serving his fourth term of imprisonment in the State Penitentiary.

This court has no jurisdiction in a habeas corpus proceeding to modify the punishment imposed upon the accused. Our jurisdiction in such proceeding is limited to the sole question as to whether or not the judgment and sentence pronounced against the defendant is void. Ex parte Vanderburg, 73 Okla. Cr. 21,117 P. 2d 550; Ex parte Cameron, 78 Okla. Cr. 42,143 P. 2d 164.

It has been said that if the court had jurisdiction of the accused and the crime charged, and did not exceed its lawful authority in passing sentence, its judgment is not void whatever errors may have occurred during the trial and habeas corpus will not lie. In re Knight, 75 Okla. Cr. 316, 131 P. 2d 506.

A similar case to the one at bar was the case of Ex parte Wright, 73 Okla. Cr. 167,119 P. 2d 97, 99. There the petitioner entered a plea of guilty to the charge of larceny of one 25 cent bottle of bay rum from a store and was sentenced to serve two years in the State Penitentiary In disposing of that case it is stated:

“Petitioner was given two-year sentence in the penitentiary for the larceny of a 25 cent bottle of bayrum. This being an application for writ of habeas corpus and not being here on appeal, we cannot modify the sentence. We will state, however, that had we the power, this sentence would be modified. The record reveals that petitioner has served twelve months in the penitentiary.
“Under the Constitution and laws of this state, the pardon and parole power is in the hands of the Governor of the state, and as stated in the case of Ex parte Gable (73 Okla. Cr. 155), 118 P. 2d 1035, * * *
“ ‘The question of righting this wrong is a matter that may be presented to the Governor under the Constitution and statutes of this state.’ ”

The writ of habeas corpus is denied.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    ORVILLE PERRY v. STATE.
    No. A-10625.
    Nov. 13, 1946.
    (174 P. 2d 388.)

      Cruce, Satterfield & Franklin and John W. Tyree, all of Lawton, for plaintiff in error.
    Mac Q. Williamson.' Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant Orville Perry was convicted in the county court of Comanche county of the offense of unlawful possession of intoxicating liquor and has appealed.

The same defendant has two other appeals pending in this court in cases 83 Okla. Cr. 168, 174 P. 2d 392 and 83 Okla. Cr. 170, 174 P. 2d 393. The issues involved in all three cases are identical, and by stipulation it is agreed that the three cases may be consolidated for briefing and argument.

It is first contended that the court erred in overruling defendant’s motion to suppress the evidence. This assignment of error is divided into three propositions: First, the affidavit for search warrant was a form search warrant and therefore illegal; second, the affidavit is not signed by the party purportedly making the affidavit; third, the search warrant was not served by the party to whom it is directed.

The affidavit for search warrant was on a printed form used by the justice of the peace in the preparation of affidavits for search warrants for intoxicating liquor issued out of his court. The only evidentiary facts other than those set forth in the printed form are as follows:

“I have seen numerous persons enter said premises in a sober condition and leave in an intoxicated condition, carrying packages which resemble packages of intoxicating liquor.”

The affidavit for the search warrant is sufficient on its face to authorize the issuance of a warrant, and the fact that a printed form is used does not of itself vitiate the proceedings. Key v. State, 69 Okla. Cr. 71, 100 P. 2d 291; Pitzer v. State, 69 Okla. Cr. 363, 103 P. 2d 109.

It is the settled rule that where the affidavit or complaint upon which a search warrant is based is sufficient on its face, the defendant will not be permitted to show that the statements in the affidavit are not true, or to raise any question as to the accuracy or source of the affiant’s information or the means by which it was obtained, Phillips v. State, 34 Okla. Cr. 52, 244 P. 451; Rausch v. State, 65 Okla. Cr. 52, 82 P. 2d 687.

In Phillips v. State, supra, (34 Okla. Cr. 52, 244 P. 452), it is stated:

“The sufficiency in form or substance of the affidavit for search warrant and the search warrant itself may be challenged by a motion to suppress evidence or by an objection to the admission of evidence. Such challenge is to be determined by the trial court. It is never a question for the jury. The purpose of the verified complaint for search warrant is to invoke the judicial power of the magistrate, and when filed, it is the duty of the magistrate to determine judicially if there is probable cause for believing the existence of the things stated in the affidavit. ‘ In so determining the magistrate exercises a judicial function. Whether or not he errs in his conclusion or whether or not the affidavit upon which the search warrant is obtained is true is not an issue under the trial of a case predicated upon evidence obtained by such search warrant.”

The affidavit discloses that the affiant signed the same on the same line where the justice of the peace placed his signature, just to the left of the signature of the justice of the peace and below the jurat.

The affidavit is styled as follows:

Affidavit For Search Warrant
In the Justice Court, City of Lawton District,
Comanche < Vunty, Oklahoma
Before John Manning, Justice'of the Peace
State of Oklahoma ’ ]

On this 8th day of December, 1944, before me the undersigned authority, personally appeared Bex Hawks, who being by me first duly sworn, did depose and say: (followed by the body of the affidavit) Subscribed and sworn to before me this 8th day of December, 1944.

Bex Hawks John Manning
Affiant Justice of the Peace

The defendant contends that this affidavit does not comply with the provision of our statute which states that:

“The magistrate must, before issuing the warrant, take, on oath, the complaint of the prosecuting witness in writing, which must set forth the facts tending to establish the grounds of the application, or probable cause for believing they exist.” 22 O. S. 1941 § 1224.

It is contended that the instrument in question is not an affidavit or written declaration by the complaining witness, but was merely a finding by a magistrate that the complainant swore orally before such magistrate certain facts regarding the premises in question.

We have been unable to find any decision by this court construing a similar affidavit, and counsel for the state and defendant have each stated that this question has never been determined by this court.

In.2 C. J. S., Affidavits, § 20, pp. 956 and 957, it is stated:

“The object of a signature or mark is to identify the person swearing to the affidavit, it being essential that an affidavit sufficiently identifies such person. Consequently, the practice has long been settled and uniform that an affiant should sign his affidavit. * * * The signature should ordinarily be placed at the foot of the body of the affidavit, but it need not be placed there if it appears in any other part, was placed there by the party, and is applicable to the whole circumstance of the affidavit. Accordingly signatures have been held sufficient where in the beginning of the affidavit rather than at the end or where placed in or below the jurat.”

In the case of Kohn v. Washer, 69 Tex. 67, 6 S. W. 551, 5 Am. St. Rep. 28, the Supreme Court of Texas held:

“Rev. St. Tex. art. 6 (Vernon’s Ann. Civ. St. art. 23, subd. 18). provides that all affidavits shall be in writing, and signed by the party making them. Held, where the maker signed below the jurat of the notary before whom it was taken, it was sufficient; the jurat reciting that affiant subscribed and swore to the same.”

In the body of the opinion it is stated:

“The ground of the exception to the affidavit is that the signature of the affiant, David A. Eohn, instead of being affixed below the body of the affidavit and above the jurat appears below the official signature of the notary. Waiving the question whether a common-law affidavit is not all that can be required under the act of congress, we are of opinion that the affidavit in controversy must be held good under our own laws. The statute provides that all affidavits ‘shall be in writing, and signed by the party making the same.’ Rev. St. art. 6. As to the place of tbe signature nothing is said. The jurat is in these words: ‘Subscribed by the said David A. Kohn and by him sworn to before me this the thirty-first day of August, A. D. 1885.’ The signature, ‘David A. Kohn,’ appearing immediately below the official designation of the notary, it is apparent that it was placed there by the affiant for the purpose of subscribing to the instrument. This meets fully the objects of the law, and is all that can be required.”

It appears to us that the common sense rule is as above stated, and that an affidavit should be held sufficient if the signature appears anywhere on the instrument, provided that it evidences the intent of the party to so sign and swear to the instrument.

There is no merit to the contention that the search warrant was not served by the party to whom it is directed. The search warrant was a printed form directed “to any sheriff, constable, marshal, or policeman in the County of Comanche.” In addition, there was typed into the direction the following: “Rex Hawks, Investigator for the Dept, of Public Safety of the State of Oklahoma, a State Officer.”

Under the provision of the statute, 74 O. S. 1941 § 149, investigators for the Department of Public Safety are given the authority of other peace officers, including the right of search and seizure. Mitchell v. State, 74 Okla. Cr. 416, 127 P. 2d 211; Bowdry v. State, 82 Okla. Cr. 119, 166 P. 2d 1018.

Since the search warrant designated Rex Hawks, Investigator for the Department of Public Safety, as one of the officers who might serve it, and he was the party who served the warrant, it is our conclusion that this contention of defendant cannot be sustained.

Likewise, the contention of defendant that the evidence is insufficient to sustain the conviction cannot be sustained. The proof showed that eight (8) pints and one (1) quart of tax-paid liquor were found by the officers. This was sufficient to make a prima facie case against the defendant. 37 O. S. 1941 § 82. No evidence was offered on behalf of defendant.

The judgment and sentence of the county court of Comanche county is affirmed.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    ORVILLE PERRY v. STATE.
    No. A-I0626.
    Nov. 13, 1946.
    (174 P. 2d 392.)

      John W. Tyree, of Lawton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

This is an appeal by the defendant Orville Perry from a conviction sustained in the county court of Comanche county for the offense of unlawful possessions of intoxicating liquor.

This case was submitted by stipulation' on the brief that was filed in the case of Perry v. State, 83 Okla. Cr. 388, 174 P. 2d 388, this date decided. The issues in the two cases are identical. The decision of this court in Perry y. State, 83 Okla. Cr. 388, 174 P. 2d 388, was adverse to the contention of the defendant. Since the same issues are involved, it is ordered that the judgment and sentence of the county court of Comanche county be and the same is hereby affirmed.

BAREFOOT, J., concurs. DOYLE, J., not participating.


author: Jones, P. J.

text:
    ORVILLE PERRY v. STATE
    No. A-10711.
    Nov. 13, 1946.
    (174 P. 2d 393.)

      John W, Tyree, of Lawton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   Jones, P. J.

This is an appeal by the defendant Orville Perry from a conviction sustained in the county court of Comanche county for the offense of unlawful possession of intoxicating liquor.

This case was submitted by stipulation on the brief that was filed in the case of Perry v. State (Tex. Cr. Appi.) 174 P. 2d 388, this date decided. The issues in the two cases are identical. The decision of this court in Perry v. State, 83 Okla. Cr. 388,174 P. 2d 388, was adverse to the contention of the defendant. Since the same issues are involved, it is ordered that the judgment and sentence of the county court of Comanche county be and the same is hereby affirmed.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    WALTER STEWART v. STATE.
    No. A-10604.
    Nov. 20. 1946.
    (174 P. 2d 926.)
    John W. Porter, of Muskogee, for plaintiff in error.

      Randell S. Cobb, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., and Douglas Garrett, County Atty. of Muskogee County, of Muskogee, for defendant in error.
   BAREFOOT, J.

Defendant, Walter Stewart, was charged in the county court of Muskogee county with the crime of operating a bawdy house, or a house of ill fame, was tried, convicted and sentenced to serve a term of 30 days in the county jail, and has appealed.

Defendant presents eight assignments of error. In his brief they are presented under two heads:

(a) That the court erred in refusing to suppress the evidence on the motion filed by defendant, on the ground that the officers did not have a search warrant at the time of searching defendant’s premises, (b) That the court erred in refusing to sustain defendant’s demurrer to the evidence, and that the verdict is contrary to the evidence.

By reason of the decision to be rendered in this case, we will consider the second assignment of error.

Defendant was the owner and manager of a tourist camp consisting of 12 cabins located in the city of Muskogee, in Muskogee county. He was charged with operating a bawdy house on November 17, 1944. On that date his tourist camp was raided between 2 and 3 o’clock in the morning by four policemen of the city of Muskogee and two military policemen from Camp Gruber, a nearby military camp.

At the trial of this case, three of the city policemen and the two military policemen testified for the state. They all testified to being present at the search, and that they had not previously secured and did not have a search warrant. That they went to each of the cabins and knocked and demanded entrance. In a number of the cabins they found soldiers and women occuping the same bed. In one of the cabins, one of the women attempted to escape through a back window, but was captured by the officers. In all, ten women were taken in charge and placed in the city jail at Muskogee. Eight soldiers were taken in charge by the military police and returned to the military camp.

After the search, or raid, had been completed and the girls or women placed in jail, two of the city policemen returned to the camp, and when they arrived the defendant was standing in the office door, where he lived with his family. Demand was made of him for his register, and it was turned over to the officers, and introduced in evidence showing the names registered from November 4th, up to and including November 17, 1944. Defendant did not object to the introduction of the register sheet for November 17th, the date of the raid, but did object to the introduction of the register sheets for other dates.

After testifying to the above facts by all of the officers the city policemen testified, and theirs was the only testimony, that they recognized some of the girls by their faces as having been previously arrested in the city of Muskogee for prostitution. An attempt was made by the state to introduce records from the police court, but they were withdrawn and not introduced in evidence. There was no evi dence by the state to connect the defendant with knowledge of the character of the parties arrested, or to show that he had any knowledge that prostitution was being carried on in the cottages. There was no evidence that the camp had the reputation of being a place where prostitution was carried on, or that defendant had any previous knowledge that it was being carried on. The only circumstance was that the names of a number of the girls or worn-en appeared upon the register at numerous dates between the 4th and the 17th of November. None of these names, however, appeared upon the register on the 17th of November, the date charged in the information, nor was there any direct evidence that these were there on November 17.

Defendant was charged under 21 O. S. 1941 § 1025, which reads:

“Every person who keeps any bawdy house, house of ill fame, of assignation, or of prostitution, or any other house or place for persons to visit for unlawful sexual intercourse, or for any other lewd, obscene or indecent purpose, is guilty of a misdemeanor and upon conviction shall be fined in any sum not less than one hundred dollars nor more than five hundred dollars for each offense.”

This statute has been in force in this state for many years, and its construction and application has been before' this court numerous times. Under the early decisions, it was held that evidence of the general reputation in the neighborhood of the house as to its being a place where, lewd persons of both sexes congregate for unlawful cohabitation or sexual intercourse was admissible in evidence where one was charged under the above statute. Carroll v. State, 4 Okla. Cr. 242, 111 P. 1021; Putman v. State, 9 Okla. Cr. 535, 132 P. 916, 46 L. R. A., N. S., 593; Patterson v. State, 9 Okla. Cr. 564,132 P. 693; Jones v. State, 10 Okla. Cr. 79,133 P. 1134.

No evidence was offered by the state in the case at bar to prove the general reputation of the place of business of the defendant. In fact, the testimony above stated was the only evidence offered against the defendant. The early cases were generally concerning rooming houses and hotels. Smith v. State, 6 Okla. Cr. 380, 118 P. 1003; Francis v. State, 16 Okla. Cr. 543,185 P. 126; Wells v. State, 27 Okla. Cr. 370, 228 P. 177; Bates v. State, 43 Okla. Cr. 195, 277 P. 676; Ridenhour v. State, 57 Okla. Cr. 167, 46 P. 2d 379; Flanagan v. State, 74 Okla. Cr. 127, 124 P. 2d 270; Hendrix v. State, 82 Okla. Cr. 110, 166 P. 2d 787.

We do not find that the question of the modern tourist camp being a “bawdy house” has been before this court, but the same principles as applied to rooming houses and hotels would apply to tourist camps. We have carefully read the cases above cited. In a number of them the cases have been affirmed, and in others reversed by reason of the insufficiency of the evidence.

The case of Jones v. State, supra, was affirmed, but the evidence in that case was much stronger than in the instant case. In fact, there is practically no evidence here that defendant was knowingly conducting a bawdy house. In the Jones case, a very good instruction was given defining to the jury the facts necessary to be proven before one could be convicted under the above statute, and this instruction was given by the court in the instant case; but, as stated by defendant in his brief, the facts did not justify a conviction under the terms of this instruction.

It is possible that sufficient evidence to convict the defendant under the statute above quoted could have been obtained, but this evidence does not appear in the record, and for that reason it becomes our duty under the law to reverse this case.

From the above statement, it is unnecessary for us to pass upon the question of the overruling of the motion to suppress the evidence by reason of the search of defendant’s premises without a search warrant. However, it may be said that it would have been a very easy matter for the officers to have secured a search warrant before conducting this search. Had they done so, this question would not have been presented. Duffey v. State, 79 Okla. Cr. 218,153 P. 2d 629.

For the reasons above stated, the judgment of the county court of Muskogee county is reversed, and unless the county attorney has other evidence which in his opinion would justify a retrial of this ease, defendant should be discharged.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    W. F. (DINK) MYERS v. STATE.
    No. -A-10631.
    Nov. 13, 1946.
    (174 P. 2d 395.)

      D. S. McDonald, Jr., of Durant, for plaintiff in error.

      Mac Q. Williamson, Atty Gen., Sam H. Lattimore, Asst. Atty. Gen., and Victor C. Phillips, Co. Atty. of Bryan County, of Durant, for defendant in error.
   BAREFOOT, J.

Defendant, W. F. (Dink) Myers, was charged in the district court of Bryan county with the crime of murder. He was tried, found guilty, and his punishment assessed at life imprisonment in the State Penitentiary, and he has appealed.

Defendant is now confined in the penitentiary, and on motion of his counsel, his casé has been advanced. Defendant, by reason of poverty, being unable to pay the expenses of an appeal, and having made application in this court for an order requiring Bryan county to pay the expenses of a case-made, the application was granted on May 11, 1945, and the case-made with petition in error attached was duly filed.

Defendant being unable to employ counsel, the trial court, at the suggestion of the defendant, appointed the Honorable D. S. McDonald, Jr., of the Bryan county bar, to defend him. He tried the case in an excellent manner, without compensation, and has prepared the appeal in proper form and briefed and orally argued the case in this court. We commend him for the services rendered in this case, as a member of the bar of this state.

For a reversal of this case, it is contended

“The state’s evidence and uncontradicted testimony precluded a conviction for murder.
“The instructions given, as excepted to by defendant, were not warranted under the facts and did not recognize the uncontradicted facts and the instructions refused should have been given in substance or effect.
“Improper prejudicial questioning was permitted and juror was not excused for proper cause.”

The first proposition requires a short statement of the evidence as revealed by the record.

Defendant was charged with the crime of having murdered George Myers, who was his brother, in the city of Durant, Bryan county, on August 2, 1944, by shooting him with a certain U. S. Springfield Rifle containing a 45-60 caliber shell. The killing occurred at the home of deceased and while he was lying on a mattress on the floor in a room occupied also by his son and another party. The shot was fired from the outside of the house, and entered the room below the window facing, and struck the head of the bed, and was deflected and struck the body of deceased. He was taken to a hospital in an ambulance by his son and the undertaker, and died from the effect of the wound received soon after reaching the hospital.

Defendant was what is commonly known as a “dope fiend,” and was seen to take some kind of a tablet prior to the killing. The chief of police of the city of Durant testified that the defendant had been picked up “for being too drunk” 40 or 50 times in the past two years. Another son of deceased, who had returned from the armed services for the trial, testified for the defendant, and stated that his uncle had been on dope and whisky for the past seven or eight years.

It is contended by defendant that he could not have been guilty of murder for the reason that at the time of the killing his mental condition was such by reason of the taking of drugs (barbiturates) that he was incapable of forming a premeditated design to effect death.

The record reveals that the defendant lived alone in a trailer house a block or two from the home of the deceased. At the time of the killing Oscar Coffee was staying with defendant. Deceased lived alone, bnt on the night of the homicide his son Lee M. Myers, who lived in California, was at home on a visit; and a young woman by the name of Lucile Morgan, who was engaged to marry another son of deceased, and her small child, were also there.

On the morning of the homicide, defendant was in the town of Durant. He made an attempt to secure two different parties to go on his note so he could borrow money. Both refused, and he cursed and abused them, and said to one of them: “My brother George (the deceased), the Goddamned son of a bitch, I tried to get him to sign my note and he wouldn’t do it. I think I will go home and get my rifle and shoot the damn son of a bitch between the eyes.” After being refused by the second party, he said, “There is my brother, he woudn’t go my note, and I think I will go home and get my gun and shoot him.”

The record shows that the defendant' spent some time at the home of the deceased during the day preceding the killing. On the night of the killing, defendant and Oscar Coffee went to the home of deceased, and the defendant called his brother to come out, but this he refused to do. Lee M. Myers, son of deceased, went outside and told defendant that his father did not want to talk with him, and did not want to have anything to do with him. He asked defendant what he wanted, and defendant told him he had an ice pick he wanted to give his brother. Lee M. Myers offered to take the ice pick in for him, but defendant insisted on delivering it in person. He entered the room and was sitting by deceased on the bed. The witness Lee M. Myers testified :

“When I came back he was sitting on the bed talking to daddy and in some way they had gotten into an argument and dispute and he was going to draw this ice pick on daddy and daddy jumped up and put Ms clothes on and took the ice pick and daddy didn’t want to have him arrested and told him to go on home and get away from there. And he wouldn’t go and daddy told him to go on and he stumbled out of the door and got — one word brought on another a'nd he drew a knife on daddy and daddy pushed him out the door and locked the screen door. Q. Did you hear the defendant make any remark when your father put him out the door? A. After daddy put him on the porch he allowed he would come back and kill ‘all of you sons of bitches.’ That is what he said.”

Defendant returned to the street where Oscar Coffee who had come with him had been waiting, and they returned to the home of defendant. The testimony, of the witness Oscar Coffee was :

“Dink (the defendant) asked me to walk in front of him and show him the way. He can’t see very good and I did and when we got up there he went to Ms trailer house and went in and I thought he was fixing his bed and I stopped to get some water and I looked around and he come to the door with a gun and said to me, ‘don’t you see anything,’ and I said ‘OK,’ and he didn’t answer and I said, ‘Where are you going.’ and he said, ‘I am going to go and kill that dirty * * *.’ And I said, ‘Don’t do that Dink,’ and he said, ‘Shut your mouth and wait until I come back,’ and when he left I took off.”

This witness immediately went to a neighbor’s house to call the officers. On his way he heard a shot fired from the direction defendant had gone, and where the deceased George Myers lived.

The deceased and his son Lee M. Myers and Mrs. Moran had all retired after defendant left, and the lights had been turned out. They were fearful that defendant would return. The deceased and his son Lee M. Myers were lying on a mattress on the floor, and Mrs. Morgan and her baby were on the bed. All were in the same room. The testimony of Lee M. Myers was:

Q. Tell the jury what happened and explain it fully to them. A. Well, we was laying there talking about him wondering if he would come back, ánd daddy said, ‘No, I don’t believe he will. He is drunk;’ and said ‘I will see him in the morning and he will be all right,’ and we was just lying there talking and directly I said, ‘He might come back,’ and daddy said, ‘Well, he might come back at that,’ and said, ‘in case he does, I will tell you what we will do,’ and said, ‘he will come up and knock on the door and you open the screen door and when he comes in I will grab him.’ And— By Mr. McDonald: Objected to— By the Court: Sustained. Q. Tell what happened there. A. And daddy said, ‘We’ll — ’ and that is as much as he got out and the gun fired and I don’t know hardly what happened after that. Q. Did your father get up? A. No, sir. Q. Did you know your father was hit? A. Not for a second. As soon as the gun fired, I jumped up and run in the other room. Q. Did you come back? A. I grabbed the gun off the wall and started back and daddy said, ‘Son, don’t come in here, he has killed me and he will kill you too — ’ Mr. McDonald: Objected to, if the court please. By the Court: Overruled. Mr. McDonald: Exception. A. — that was the last thing that daddy said, ‘Son, don’t come in here, he will kill you too. He is after the whole bunch;’ and I run back in the other room to see if I could see him and by that time I hollered for help for somebody to call the police — call the police and the ambulance and the ambulance came and we took off to the hospital. Q. Did you go with your father to the hospital? A. Yes, sir. Q. On the road to the hospital did you hear your father make any statement? A. Yes, sir. By Mr. McDonald: We object for the same reasons heretofore stated. By the Court: Overruled. Mr. McDonald: Exception. A. Well, he said he knew that Dink done it and said — he kept complaining about his wind — losing his breath and couldn’t hardly breathe at all and was suffering and taking on. Q. Did he say whether he was going to die? A. He said he was going to die, and said, ‘I’m all done for.’ We got there at 12 o’clock and he died at 12.30. Q. You don’t know the exact time that the shot was fired? A. It must have been about 11.45.”

The shot fired into the house disturbed many of the neighbors, and the defendant was recognized by several different parties as he left the premises. They were able to do this by reason of the electric lights in the street, and the bright moonlight night. Defendant was seen by one of these parties standing at the window of deceased’s home just after the shot was fired. All saw the gun in his hand. As he passed one of the houses he was seen by a witness and his wife to throw something into the weeds, and the officers found a number of gun shells, and a large butcher knife which defendant had thrown away. He had also attempted to hide his gun in the weeds, but it was found by the officers, and had one empty shell in the barrel. Defendant, when taken to jail, denied to the officers that he had a gun. While in jail he attempted to get the witness Oscar Coffee, who was also in jail, to testify that he (Coffee) was at home in bed at the time of the shooting.

The above statement certainly refutes any contention that the evidence is insufficient to sustain the judgment and sentence.

Counsel for defendant in his brief recognizes the rule of law often announced by this court with reference to the defense of voluntary or involuntary intoxication in murder cases, and the plea of insanity as a result thereof. Adair v. State, 6 Okla. Cr. 284,118 P. 416, 44 L. R. A., N. S., 119; Collier v. State, 17 Okla. Cr. 139, 186 P. 963, 12 A. L. R. 839; Choate ,v. State, 19 Okla. Cr. 169, 197 P. 1060, 1061; Cheadle v. State, 11 Okla. Cr. 566, 149 P. 919, L. R. A. 1915 E. 1031; Tubby v. State, 15 Okla. Cr. 496, 178 P. 491; Perryman v. State, 12 Okla. Cr. 500, 159 P. 937; Sweet v. State, 68 Okla. Cr. 44, 95 P. 2d 242.

The early case of Collier y. State, supra, announces the rule that has always been followed by this court with reference to introduction of evidence, its determination by the jury, and the instructions of the court. The syllabus reads:

“1. In a prosecution for murder, alcoholic insanity, or mental incapacity produced by voluntary intoxication existing only temporarily at the time of the homicide, is no justification or excuse therefor. To constitute insanity, caused by intoxication, a defense in a trial for murder, it must be insanity caused by chronic alcoholism, and not a mere temporary mental condition.
“2 Insanity, though superinduced by excessive and long-continued indulgence in alcoholic liquors and known as ‘delirium tremens/ or ‘mania a potu/ renders a person so afflicted irresponsible for his acts, if it be of such a character as to deprive him of the mental capacity to distinguish between right and wrong, as applied to the particular act, whether he be under the influence of liquor at the time of the commission of the act or not; but, to do so, his affliction must be settled or fixed insanity, not a mere fit of drunkenness. A person, not previously laboring under such a disease or affliction, who voluntarily becomes intoxicated to such an intent and for such a period of time as to cause unconsciousness of his acts, is not irresponsible under the law for the acts done by him while in such mental condition.
“3 Under Okla. Penal Code section 2313, Rev. Laws 1910, (Tit. 21 O. S. 1941 § 701,) homicide is murder ‘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/ and evidence of intoxication is admissible to show an absence of the premeditated design to kill, for the purpose of determining whether the offense was murder or manslaughter, and a state of intoxication which will reduce homicide from murder to manslaughter in the first degree must be of such character and extent as to render the defendant incapable of entertaining or forming a design to effect death. And this question is for the jury to determine.
“I. Intoxication, either voluntary or involuntary, is to be considered by the jury in a prosecution for murder in which a premeditated design to effect death is essential, with reference to its effect upon the ability of the defendant at the time to form and entertain such a design, not because, per se, it either excuses or mitigates the crime, but because, in connection with other facts, an absence of malice or premeditation may appear.”

It may be stated that the courts, in so far as voluntary intoxication is concerned, have drawn no distinction between one being intoxicated by reason of the consumption of alcohol or intoxicating liquor, or narcotic drugs.

It is contended by defendant that the rule of law as heretofore announced which permits the jury to pass upon the question of temporary insanity after hearing the evidence should be changed and the court should consider this matter as a question of law; that the question of whether the defendant knew “right frofn wrong”, was a question of law and should be determined by the court, ánd not by the jury. Counsel in his brief says:

“The same principles which have carried our criterion of guilt or innocence for centuries are creaking with venerable age and seeking assistance at the hands of an enlightened court which stands in full view of modern scientific advance. We have here a man whose mental processes have been so deranged that he has killed his own brother. Could any case better serve as a vehicle for transporting onward that principle which science has long since recognized, but with which the courts have been unwilling to stand in accord that a man may be clever, know right from wrong and yet be insane according to the most violent principles covering insanity. From the most clever minds known to man have come thoughts controlled by insane minds, but this argument is used by those who would retard future progress. This Honorable Court in this case has an opportunity to say that when such circumstances exist and are produced in an undeniable form by the very prosecuting witnesses, defendant under such circumstances cannot be found guilty of murder.”

No authority is cited for this position. Nor do we think that any can be produced. We do not deem it advisable to overturn the judicial decisions of this state and of the Nation and announce such a new doctrine. The facts as above stated would not justify its application in the instant case. While the evidence revealed that defendant was a user of some kind of dope and had been for several years, it also reveals a clear premeditated design on the part of the defendant to take the life of deceased. It is true that it was his own brother, but the statements he had made in the presence of others on the morning of the homicide when attempting to have them sign his note, that he intended to get his gun and kill deceased, because he had refused to sign his note; his securing Ms gun just prior to the homicide and stating that he was going to kill his brother; his attempt to hide the gun, the knife and the shells immediately following the killing was all strong evidence that he not only was acting with a premeditated design to commit murder, but that he knew what he was doing, and that he knew it was “wrong.”

The fact that he stood under the lights in the streets, and apparently made no attempt to prevent his identification, is not considered proof of even temporary insanity. It was so light by reason of the moon and the electric lights that he would have had a difficult time in preventing being recognized even if he had tried to do so.

We have carefully examined the instructions given by the court, and they are full and complete. The question of temporary insanity by reason of voluntary and involuntary intoxication, or by the use of drugs, was presented to the jury in strict conformity to the law, as announced by the former decisions of this court. It therefore becomes unnecessary to discuss these instructions at length. The thought expressed in the requested instructions was included in the general instructions, and we find nothing in the refusal of the requested instructions that would justify a reversal of this case.

We have carefully examined the record with reference to the disqualification of the prospective juror, C. L. Morgan. There is nothing to show that this juror was disqualified or that the defendant would in any way be prejudiced by his sitting on the jury. In fact, the record does not reveal that he was a member of the jury, but' it does show that defendant had another challenge left at the time he was interrogated, and he could have been challenged.

An examination of this record does not reveal any reversible error, and we find no reason for a modification of the judgment and sentence rendered by the trial court.

For the reasons above stated, the judgment and sentence of the district court of Bryan county is affirmed.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    STATE v. JUNE SMITH.
    No. A-10772.
    Nov. 20, 1946.
    (174 P. 2d 932.)

      J. M. Springer, Co. Atty., of Nowata, Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for plaintiff in error.
    June Smith, pro se.
   JONES, P. J.

This is an appeal by the state from an order of the'county court of Nowata county suspending a 30-day jail sentence pronounced against defendant upon the condition that defendant pay a fine of $75 and costs of prosecution.

On June 29, 1946, the defendant June Smith was arraigned before the county court of Nowata county upon an information charging him with the unlawful possession of intoxicating liquor. The defendant entered a plea of guilty to said charge, and thereupon the court rendered judgment sentencing the defendant to serve 30 days in the county jail and to pay a fine of $75 and costs of prosecution, and at the same time the court made an order suspending the jail sentence upon the condition that the defendant pay the fine and costs assessed against him.

The county attorney, as representative of the state, objected to the jail sentence being suspended, saved his exception to the court’s action in suspending the jail sentence and has perfected his appeal to this court by filing a transcript of the record with petition in error attached.

Two questions are presented by the state in its appeal. First, the Prohibition Ordinance of the Constitution of the State of Oklahoma makes it mandatory upon the trial court to sentence an accused in a prohibition case to a term of imprisonment in the county jail for not less than 30 days and to pay a fine of not less than $50 and the court is wholly without authority to suspend a sentence thus fixed by the Constitution. Second, the trial court has no authority to suspend part of a sentence pronounced against an accused upon his conviction.

It is unnecessary for us to decide the first proposition as the charge against the defendant in this case was for illegal possession of intoxicating liquor, and such crime is not included in the prohibition amendment to our State Constitution. The possession of intoxicating liquor is made a crime solely by reason of the statute, 37 O. S. 1941 § § 1, 31. The prohibition ordinance adopted by the people and made a part of our Constitution prohibits the manufacture, sale, barter, giving away, or otherwise furnishing, or the conveyance of intoxicating liquors from one place within this state to another place therein. In no part of this prohibition ordinance is it made unlawful to have the possession of intoxicating liquor.

Since the crime charged to the defendant is not one of those included in the prohibition ordinance of the Constitution, the question raised in proposition one is not properly before this court for determination and any statement we might make in reference thereto would be dicta.

In the case of Ex parte Banks, 74 Okla. Cr. 1, 122 P. 2d 181, 183, this court held:

“When an accused is convicted of an offense which carries with an imprisonment in the county jail and the payment of costs, the payment of costs of the prosecution is made a part of the punishment, and payment shall be enforced by imprisonment in the county jail until the same shall be satisfied. § 3166, O. S. 1931, 28 Okla. St. Ann. § 101; Ex parte Autry, 58 Okla. Cr. 88, 50 P. 2d 239. * * *
“Where accused is convicted of an offense which carries with it imprisonment in the county jail and payment of costs, and trial court suspends execution of sentence, such order suspends not only the confinement to the county jail but the payment of costs.”

In that case the petitioner Ollie Banks had been sentenced by the district court of Carter county to serve a term of imprisonment of one year in the county jail upon a plea of guilty to the charge of assault with a dangerous weapon. The journal entry of the judgment and sentence contains this recitation:

“It is the further order of the court that his sentence be suspended upon good behavior and payment of costs.”

Just ten days prior to the expiration of the sentence pronounced against the petitioner, the district court summarily and without notice to the petitioner Banks entered an order revoking the suspended sentence and remanded him to the custody of the sheriff of Carter county for the reason that the petitioner had failed to comply with that part of the order of the court requiring the petitioner, as a condition of the suspension of his sentence, to pay the costs of the proceedings.

In the body of the opinion it is stated:

“The matter of the granting of a suspension of the execution of a sentence is governed solely by statute; only those parties coming within the terms of the statute are eligible for suspended sentence, but they have no right to demand the same; and it may not be granted to them except at the discretion of the court. Ex parte Boyd, supra, (73 Okla. Cr. 441, 122 P. 2d 162); Todd v. State, 73 Okla. Cr. 18, 117 P. 2d 170; Martin v. State, 67 Okla Cr. 390, 94 P. 2d 270.
“The suspension of the execution of a sentence having once been granted, the suspension may not be revoked except for one of the conditions named in the statute. The conduct of the accused after receiving the suspended sentence is regulated by statute. The non-payment of costs is not properly one of the conditions upon which the revocation of a suspension of sentence may be based. * * *
“The payment of costs being a part of the punishment and a part of the sentence imposed against the defendant, the suspension of the execution of sentence carries with it the suspension of the entire sentence, which suspends not only the sentence to confinement in the county jail but the payment of costs.”

The constitutionality of the statute authorizing courts of record in Oklahoma to suspend the sentence of persons convicted of certain crimes named in the statute has been upheld. 22 O. S. 1941 § § 991 and 992. Ex parte Boyd, 73 Okla. Cr. 441, 122 P. 2d 162.

The granting of a suspended sentence is regulated solely by statute. This power did not exist in the court at common law. Ex parte Boyd, supra.

The statute provides:

“Whenever any person shall be convicted in any court of record for any crime other than murder, manslaughter or arson, the Judge trying said cause may, after sentence, suspend said judgment and sentence, and allow said person so convicted to be released upon his own recognizance. Provided, that no such person shall be so released who has not, prior thereto, borne a good reputation, or who may have been, prior thereto, convicted of any crime in any state or territory of the United States.” 22 O. S. 1941 § 991.

The trial court under this statute has a judicial discretion to determine whether the accused is eligible for a suspended sentence and whether the court in the exercise of its discretion chooses to suspend the sentence. The statute above quoted, however, only authorizes the trial court under the conditions therein named to suspend “said judgment and sentence.” It does not authorize the suspension of just a portion of the judgment and sentence, but the suspension must be granted of the entire judgment. The act of a county court in suspending a jail sentence in a conviction of an accused for a violation of the intoxicating liquor laws upon condition that he pay the fine and costs is a usurpation of authority not vested in it by our statute.

It follows that the' act of the county court of Nowata county in making an order suspending the jail sentence pronounced against the accused without at the same time suspending the payment of the fine and costs being without authority of law is vacated and set aside.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    ERNEST POWELL v. STATE.
    No. A-10632.
    Dec. 4, 1946.
    (174 P. 2d 929.)

      Sigler & Jackson, of Ardmore, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Haskell A. Holloman, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant Ernest Powell was convicted in the county court of Carter county of the offense of illegal transportation of intoxicating liquor, and has appealed.

The sheriff of Carter county and one of his deputies had secreted themselves near the Santa Fe depot in the town of Gene Autrey early in the morning of April 23, 1943. Just before the northbound train arrived, an automobile driven by one Leek White stopped just a few feet from where the sheriff was hiding. After the arrival of the train, the defendant got off the train on the side opposite the depot with a suitcase and a box with the word “whisky” printed on the outside thereof in his arms and proceeded toward the car of Leek White. After the defendant had walked a short distance toward the car, he set the box down on the ground, took the suitcase on to the automobile and then returned to get the box. The sheriff then approached the Leek White automobile and when the defendant retrieved the box which he had left on the ground and started toward the car, he recognized the sheriff, dropped the box and turned and started walking away very fast. The sheriff called to him to halt, but the defendant did not stop until a deputy who had come around the train grabbed him. A large quantity of whisky was found in the cardboard box.

The first assignment in error is that the information did not state the offense of illegal transportation of liquor.

The charging part of the information is as follows:

“That Ernest Powell in the county and State aforesaid, on the day and year aforesaid did knowingly, wilfully and unlawfully convey and transport certain intoxicating liquor, to-wit: 60 pints of whisky from a point unknown to your informant to a point near the Santa Fe station in the town of Gene Autrey, Oklahoma.”

This information purports to charge an offense under the statute which provides in part as follows:

“It shall be unlawful for any person, individual or corporation * * * to ship, or in any way convey, such liquor from one place within this state to another place therein.” Title 37 O. S. 1941 § 1.

The contention that the information is insufficient is based upon the holding of this court that the gist of an offense charged under the above statute is the conveyance from “one place to another place”. The word “place” has a variable meaning. As used in the statute, it means region or locality. Davis v. State, 38 Okla. Cr. 39, 259 P. 172; Wilder v. State, 34 Okla. Cr. 291, 246 P. 660.

The defendant, after citing this rule of law, states that an information charging the transportation of liquor from one place to another in the state must show a removal from one locality to another, and if the different localities are known they should be alleged.

The fallacy of defendant’s reasoning is based upon his contention that the transportation consisted of moving the whisky just a few feet on the depot platform. The record discloses, however, that the whisky was brought into the town on the train, and, under the proof of the officers, it was conveyed by the defendant to a point near the Santa Fe station in the town of Gene Autrey. Since the place from which it was conveyed on the train was not known by the officers, it was impossible for the county attorney to allege from what locality or region it was conveyed. Under such circumstances, it was proper to allege in the information that the whisky was conveyed from a point unknown to the point near the Santa Fe depot.

The information is sufficient to meet the test we have' often applied in criminal cases, that is that an information is sufficient where it definitely apprises an accused of the particular crime with which he is charged and enables him to prepare his defense and to protect him from jeopardy ^gainst another prosecution based on the same state of facts.

The second assignment of error is closely connected with the first assignment of error in that counsel for defendant contends that there was a fatal variance between the allegations of the information and the evidence of the state.

This proposition is based upon the allegation in the information that the defendant conveyed the liquor “from a point unknown to your informant” while the sheriff testified that he did know of his own knowledge that the defendant had transported the liquor from the steps of the train.

It is true that the sheriff testified that he saw the defendant get off the train with a box in his hands and start toward the parked automobile. However, as hereinabove pointed out, the state’s case was not based upon the short distance the intoxicating liquor was carried there where defendant left the train. It was based on the fact that there was a transportation by the defendant of the whisky on the train to that locality and its removal from the train and conveyance a few yards along the railroad right of way towards the automobile of Leek White.

In the case of Standerfer v. State, 75 Okla. Cr. 15, 128 P. 2d 238, the facts were similar to the case at bar, the information was almost identical in wording to that in the instant case, and this court there held that there was no variance in the allegations of the information and the evidence of the state.

It is next contended that the court erred in failing to fully define what was meant by transporting intoxicating liquors, but merely cited the statute and referred the jury to the information for a definition of the offense.

No requested instruction was presented by counsel for defendant. Moreover, we find that among other instructions the trial court gave the following:

“You are further instructed that it is unlawful for any person to ship or in any way convey any liquors or compounds of any description whatsoever either medicated or not which contain more than three and two-tenths (3.2%) per cent of alcohol measured by weight and which is capable of being used as a beverage, except prescriptions compounded by a licensed pharmacist, the sale of which would not subject him to the payment of the special tax as required by the laws of the United States, from one place within this state to another place therein.
“You are instructed. Gentlemen of the Jury, that if you find from the evidence beyond a reasonable doubt that the defendant, Ernest Powell, did in Carter county, Oklaboma, on or about the 23rd day of April, 1943, commit the crime of transporting intoxicating liquor as charged in the information filed herein, it will be your duty to convict the defendant and assess his punishment at a fine of not less than $50.00 nor more than $500.00 and not less than 30 days or more than six months in the county jail. If, on the other hand, you find from the evidence that the defendant is not guilty, or have a reasonable doubt thereof, you will so say by your verdict and acquit him.”

It has often been held that statutory offenses should be in the terms of the statute or in words of similar import. Barfield v. State, 71 Okla. Cr. 195, 110 P. 2d 316.

Since the court in the first of the instructions above quoted followed the exact language of the statute, the giving of such instruction certainly is not error, and in the absence of any request for the court to further define what is meant by the term “from one place within this state to another place therein,” the failure to enlarge upon the statutory definition of the offense would not constitute reversible error.

The judgment of the county court of Carter county is affirmed.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    Ex parte L. L. (JOE) SMITH.
    No. A-10746.
    Nov. 27, 1946.
    (174 P. 2d 851.)

      George L. Efill and Gotcher & Gotcher, all of McAlester3 for petitioner.
    Mac Q. Williamson, Atty. Gen., and Haskell A. Holloman and Owen J. Watts, Asst. Attys. Gen., for respondent.
   JONES, P. J.

This is an original action in habeas corpus instituted by the petitioner L. L. (Joe) Smith to secure Ms release from confinement in the State Penitentiary.

The petitioner, age 44, entered a plea of guilty in the district court of Oklahoma county on May 12, 1938, to an information charging him with the crime of murder, alleged to have been committed on December 25, 1930. The information charged the petitioner jointly with Ted Geariepy with having taken the life of Pat J. Durkin. The co-defendant Geariepy was apprehended shortly after the alleged crime was committed, he entered a plea of guilty and received a sentence of life imprisonment in the State Penitentiary. The petitioner Smith eluded the officers and remained a fugitive for several months before being arrested in the State of Texas where he was charged with the crime of forgery. He entered a plea of guilty in the State of Texas to the said charge and was sentenced to serve seven years in the State Penitentiary. After his release from the State Penitentiary in Texas, he was delivered to the officers of Oklahoma county for return to that county to answer the charge of murder which was pending against him. At that time the petitioner had already served in three different penitentiaries for crimes committed by him.

The verified petition alleges that the petitioner was returned to Oklahoma county on May 10, 1938. That a criminal complaint was pending against him before justice of the peace, Everett Chrismore; that on May 11,1938, he was arraigned before Carl J. Traub, in the absence of Everett Chrismore, and was asked several questions; that later that same day he was again taken before Carl J. Traub, at which time an order was made stating that defendant had waived preliminary examination and was ordered held for trial in the district court, although the petitioner denies he knew that such procedure was being followed at the time of his arraignment before the justice of the peace. That after he was bound over to the district court for trial, he had a conversation with the county attorney in which the county attorney told him if he did not plead guilty he was going to file another murder charge against him and try to get him to the electric chair. That he agreed to plead guilty and was taken the next day before the district judge where he entered his plea of guilty to the charge of murder and was sentenced to serve a term of life imprisonment in the State Penitentiary. That when the petitioner was taken before the district judge, the information was not read to him, no copy of the information was furnished to him, he was not advised of his right to counsel and did not have counsel representing him. That he was not advised of his right to have 48 hours additional time after his plea was entered before sentence was pronounced upon the plea, and that he was inexperienced in court matters and did not know that he was entitled to all these rights.

The response controverts all of the material matters alleged in the petition which are contrary to the records in the office of the court clerk of Oklahoma county, including the judgment and sentence that was pronounced against the petitioner. It was further alleged that Carl J. Traub was the duly elected and qualified justice of the peace in and for Oklahoma county at the time of the arraignment of the petitioner before said justice of the peace, and that as such justice of the peace he had full authority to take all the actions which were preformed in relation to petitioner’s case.

A copy of the evidence taken before the district court of Pittsburg county in a habeas corpus proceeding before that court was admitted in evidence at the hearing before this court. In addition, the certified records of Oklahoma county pertaining to the arrest, plea of guilty and commitment of the accused were admitted in evidence before this court.

The testimony of the petitioner as to what occurred at the time he was brought before the district court of Oklahoma county for arraignment upon said charge of murder is as follows:

“Q. Tell the court what happened in the district court room when you were taken there. A. Well, we went in. There was some kind of court in session, and they discontinued the proceedings that was going on, and I went before the judge and he asked me if I was going to plead guilty, and I told him ‘yes’ and he asked me if I had been promised any favors or clemency for pleading guilty, and I told him ‘no,’ as I was advised. He started all over again and said, ' ‘You are charged with murder.’ ‘How do you plead’ and I said, ‘Guilty’ and he gave me a sentence.”

He further testified in connection with the conversation had with the county attorney prior to his arraignment in the district court as follows:

“Q. You told the county attorney you were willing to plead guilty? A. He showed me all the records in this other fellow’s trial and I read over all those and he told me if .1 would plead guilty he would give me the same the other fellow got.”

In the case of Ex parte Meadows, 70 Okla. Cr. 304,106 P. 2d 139, 141, it is stated:

“Under Bill of Rights, section 20, Okla. St. Ann. Const., an accused has the right to consult with counsel and to be fully advised as to his rights, and as to the consequences of his act before entering his plea to the indictment or information.
“A plea of guilty should be entirely voluntary, and should be made by one competent to know the consequences thereof, and should not be accepted until after the defendant has been fully advised by the court of his rights and the consequences of his plea. * * *
“A person prosecuted for a crime may waive the rights guaranteed to him by bill or rights, relating to trial by jury, right to be heard by counsel, etc. * * *
“Whether one accused of crime has waived his right to the assistance of counsel for his defense must depend in each case upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.”

In Ex parte Vanderburg, 73 Okla. Cr. 21, 117 P. 2d 550, 551, this court stated:

“Where a prisoner in custody under sentence of conviction seeks to be discharged on habeas corpus, the inquiry is limited to the questions whether the court in which the prisoner was convicted had jurisdiction of the person of the defendant and of the crime charged, and did the court have jurisdiction to render the particular judgment. * * *
“The question as to whether one accused of crime has waived his right to counsel must depend in each case upon the particular facts and circumstances surrounding that case, including the background and experience of accused, and no abstract rules of law may be set forth which will be applicable to every case. * * *
“An accused who has been before various courts forty times on different charges of law violation is not inexperienced in court procedure and did not plead guilty to the charge filed against him in ignorance of his legal rights.”

In the recent case of In re George, 83 Okla. Cr. 99,173 P. 2d 454, 457, decided October 9, 1946, it is said:

“Courts do not look with favor upon a case where a person acquiesces in a sentence pronounced against him for a long period of time and then seeks to have the judgment, regular on its face, set aside by asserting that his constitutional rights were denied him in the proceedings before the trial court, especially where the proof consists wholly of testimony of petitioner.”

In the instant case the judgment and sentence is regular on its face. A strong presumption arises in favor of the legality of all proceedings leading to the pronouncement of the judgment and sentence. In order to overthrow this strong presumption, the proof of the petitioner must be so clear and convincing that this court will be bound to know from the evidence that in the proceedings before the trial court the conviction was obtained without due process of law. The age of the petitioner at the time he is arraigned, his education, background and experience are all factors to be considered in this connection. Where a person has prior thereto served a term of imprisonment in the State Penitentiary, the burden upon the petitioner to show that he was not acquainted with court procedure is even greater than it is for one who has never been in the courtroom before his arraignment. This court knows from the experience gained in reviewing hundreds of eases and from reading letters from a large number of inmates addressed to this court setting forth their grievances, that a person incarcerated in the State Penitentiary quickly learns all about the legal rights given by our statutes and the Constitution to one accused of crime.

In the instant case, the petitioner had served three different terms of imprisonment in the penitentiary, and under such circumstances it is almost inconceivable to this court that he was not familiar with court procedure and of his right to have an attorney consult with him before entering Ms plea. It is our conclusion that the petitioner in his conversation with the prosecuting attorney was attempting to ascertain just how much proof the state had of his guilt of the charge filed against him and could further learn just what were the best terms he could secure if he entered his plea of guilty.

As we view the record, the petitioner has wholly failed to sustain the burden of showing the trial court was without jurisdiction to pronounce the judgment and sentence against him, and for that reason the writ of habeas corpus is denied.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    VIRGIL PINKSTON McCANN v. STATE.
    No. A-10677.
    Nov. 27. 1946.
    (174 P. 2d 855.)

      Eobt. E. Eittenbou.se, of Oklahoma City, for plaintiff in error.
    Mae Q. Williamson, Atty. Gen., and Warren EL Edwards, County Atty., of Oklahoma City, for defendant in error.
   BAREFOOT, J.

The defendant, Virgil Pinkston Mc-Cann, was charged by information filed in the court of common pleas of Oklahoma county with the illegal possession of intoxicating liquors, to wit: “47 pints of tax-paid liquor, and three 4-5ths of a quart bottle of tax-paid liquor.” He was tried before the court without a jury, found guilty and sentenced to pay a fine of $50 and to serve 30 days in the county jail, and has appealed.

The case-made with petition in error was filed in this court on September 4,1945.

Eule 6 of the Criminal Court of Appeals provides, in part:

“In each cause filed in this court, appealed from a lower court from a conviction for a misdemeanor, counsel for plaintiff in error, unless otherwise ordered by the court, shall serve his brief upon the Attorney General within 30 days from the date of filing his petition in error.”

Defendant has filed no brief in this case, and no application for an extension of time within which to do so has been made. The case was assigned for oral argument on September 11, 1946, and no appearance on behalf of accused was made at that time.

Eule 9 of this court provides:

“When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court, and the exception taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment.”

There was filed on behalf of the defenddnt a motion to quash the information. It was the contention that the information alleged that the defendant did unlawfully have possession of “a certain quantity of intoxicating liquors, to wit: Forty-seven pints of tax paid liquor and three (3) four-fifths of a quart bottle of tax-paid liquor” etc. That by reason of the fact that the word “whisky” was not used instead of “liquor,” the charge did not constitute a crime.

No authority has been submitted to sustain this contention. It occurs to us that when the term “tax-paid liquor” is used, the court will take knowledge of the fact that this was whisky upon which the federal tax has been paid, and especially when the words “intoxicating liquor” are taken into consideration.

A motion to suppress the evidence obtained under the search warrant issued to search defendant’s premises was presented. The contention was that by reason of the fact that part of the affidavit was in printed form, that it was insufficient under the law. No brief or citation of authorities are presented upon this question. We think it is wholly without merit.

Defendant, by the agreed statement of facts dictated into the record, admitted that he was the owner and in possession of the premises where the whisky was found, and that he was the owner and in possession of the whisky. He did not take the witness stand or offer any evidence.

The judgment and sentence of the court of common pleas of Oklahoma county is affirmed.

JONES. P. J., concurs. DOYLE, J., not participating.