text:
    JOHN GREINER v. CITY OF YALE.
    No. A-10228.
    July 7, 1943.
    (139 P. 2d 606.)

      Henry S. Griffing, of Oklahoma City, and Swank & Swank, of Stillwater, for plaintiff in error.
    I. O. Rambo, City Atty.., of Yale, for defendant in error.
   BAREFOOT, J.

Defendant, John Greiner, was charged in the municipal court of the city of Yale with the crime of distributing advertising circulars or handbills in violation of a city ordinance of said city, was tried, convicted and fined $5 and costs. He appealed to the county court of Payne county, was retried, found guilty and his punishment assessed at a fine of $5 and costs. From this judgment he has appealed.

' The assignment of error relied upon for a reversal of this case is that the ordinance under which defendant was charged and convicted is invalid on its face for1 the reason that it constitutes an infringement on the right of freedom of speech and freedom of the press which are protected by the First and Fourteenth Amendments1 to the Constitution of the United States.

The ordinance under which defendant was charged and convicted is as follows:

“An ordinance to preserve the peace and quietude of the City of Yale,County of Payne, State of Oklahoma: establishing officers and fixing the penalty for violation of same.
“Be it ordained by tbe board of trustees of tbe town now city of Ya.le, county of Payne, state of Oklahoma: * * *
“Section 22: It shall be unlawful in the City of Yale for any person to distribute any handbills, circulars, cards, papers printed in imitation of newspapers, or newspapers not admitted to the United States Mails, or any samples of patent medicine, or any advertising devise of any kind, by giving or handing any such article, herein mentioned, to any person passing along any side-walk or other thorough-fare of said City; or by throwing any such articles upon any public or private ground, or in any yard or inclosure, or in any hall-way, area-way, stairway or in any bos or receptical kept for the receipt or delivery of the United States mail; or in any automobile, carriage, wagon, or other vehicle, or in any store room or place occupied as a residence unless consent therefor shall be obtained so to do from the City Council, or delivery thereof shall be made to the person in charge of such premises.
“Section 56: The violation of this ordinance shall be punished by a fine of not less than One ($1.00) Dollar and not more than Twenty-five ($25.00) Dollars or by imprisonment in the City jail of not less than one (1) day, and not more than twenty-five (25) days, or both such fine and imprisonment, at the discretion of the court.
“Section 57: An emergency is hereby declared whereby for the preservation of the peace and quietude of the city of Yale, County of Payne, State of Oklahoma, that an emergency be declared and that this ordinance take effect upon its passage, approval and publication.
“Passed and approved this the 17th day of March, 1919.
“Ben Monnett, Mayor.
“Attest:
“This the 17th day of March, 1919.
“Geo. B. Gilder, City Clerk.”

The facts with reference to the violation of the ordinance are admitted by the defendant, who was an employee of the “Aggie,” “Mecca,” and “Campus” Theatres in Still-water, Okla. Handbills were distributed by defendant in person and by others whom he had employed, in the city of Yale without first obtaining a permit from the city council, or any other public official of the city They were distributed in the residence section by placing them- in screen doors, and by handing them out on the streets. Defendant was. arrested while in the performance of .these acts, with the results above stated.

We have carefully examined the authorities cited by the defendant and by the city; and from such examination have come to the conclusion that the ordinance, as above set forth, is clearly unconstitutional and cannot be sustained.

It has been the settled policy of this court to follow the decisions of the Supreme Court of the United States as the highest co-urt in this country, with reference to the construction and interpretation of the terms of the Constitution of the United States.

The Supreme Court has in recent cases definitely decided the issues here involved. Alma Lovell v. City of Griffin, 303 U. S. 444, 58 S. Ct. 666, 82 L. Ed. 949, Schneider v. Irvington, 308 U. S. 147, 60 S. Ct. 146, 84 L. Ed. 155; Largent v. Texas, 63 S. Ct. 667, 87 L. Ed. —; Jamison v. Texas, 63 S. Ct. 669, 87 L. Ed. —; Martin v. City of Struthers, Ohio, 63 S. Ct. 862, 87 L. Ed. —.

Our own court in elaborate opinions has also decided that ordinances very similar to the one here under consideration are invalid and in violation of the Constitution of the United States and of the State of Oklahoma. Ex parte E. F. Walrod, 73 Okla. Cr. 299, 120 P. 2d 783; Ex parte Winnett et al., 73 Okla. Cr. 332, 121 P. 2d 312; Emch v. City of Guymon, 75 Okla. 1, 127 P. 2d 855.

It is unnecessary for us to go into a detailed discussion of the decisions of the Supreme Court of the United States 'above cited. They have been reviewed by this court in the cases above referred, to. The Lovell Case was the first- decided by that court. It deals with the distribution of handbills by a member of the sect known as Jehovah’s Witnesses, without securing* a permit from the city officials, as provided by an ordinance. The ordinance was very similar to the one in the instant case. The court held that it was in conflict with the United States Constitution’s guarantee of freedom of speech and freedom of the press.

In the Schneider v. .Irvington Case, supra, the court consolidated four cases which involved the validity of ''ordinances from cities in four states. These various ordinances are set out in the opinion, and are very similar to the one here under consideration. The lower courts had sustained the validity of the different ordinances, and in each instance had distinguished between the ordinance involved and the one in the Lovell case on the ground that the ordinance there in question prohibited distribution of handbills or literature anywhere within the city; while the ordinances under consideration prohibited distribution in a very limited number1 of places. The Supreme Court overruled this contention, and held that all of the ordinances were invalid within the terms of the Constitution, guaranteeing the right of freedom of speech and freedom of the press.

The Schneider v. Irvington Case involved the distribution of literature with reference to religious views, the ordinance providing that before distributing handbills, one should secure a Avritten permit from the chief of police, or officer in charge of the police headquarters. In the Los Angeles case, 308 U. S. 154, 60 S. Ct. 148, 84 L. Ed. 161, the violation Avas the distribution of a handbill advertising a meeting at Avhich the speakers would discuss the war1 in 'Spain. In the Milwaukee case, 308 U. S. 155, 60 S. Ct. 148, 84 L. Ed. 162, one who was acting as a picket stood in the street in front of a meat market and distributed to passing pedestrians handbills which pertained to a labor dispute Avith the meat market. The City of Wocchester, Mass., case, 308 U. S. 156, 60 S. Ct. 149, 84 L. Ed. 162, Avas Avith reference to a protest in connection with the administration of state unemployment insurance.

Justice Roberts, in the opinion recognizes the right of every community to keep its streets, open and available for the movement of people and property, as the primary purpose for which the streets are dedicated, but states that this right does not abridge the constitutional liberty of one rightfully on the streets to' impart information through speech or the distribution of literature. In discussing the Irvington ordinance, he says [308 U. S. 147, 60 S. Ct. 146, at page 152, 84 L. Ed. 155] :

“While it affects others; the Irvington ordinance drawn in question No. 11, as construed below, affects, all those, who, like the petitioner; desire to impart information and opinion to citizens at their homes. If it covers the petitioner’s activities it equally applies to one who wishes to. present his views on political, social or economic questions. The ordinance is not limited to' those who canvass for private profit; nor is it merely the common type of ordinance requiring some form of registration or license of hawkers, or peddler's. It is not a general ordinance to prohibit trespassing. It bans unlicensed communication of any views or the advocacy of any cause from door to door, and permits canvassing only subject to the power of a police officer to determine, as a censor, what literature may be distributed from house to house and wlm may distribute it. The applicant must submit to that officer’s judgment evidence as to his good character and as to the absence of fraud in the ‘project’ he proposes to promote or the literature he intends to distribute, and must undergo a burdensome and inquisitorial examination, including photographing and fingerprinting. In the end, his liberty to communicate with the residents of the town at their homes depends upon the exercise of the officer’s discretion. As said in Lovell v. Griffin, [303 U. S. 444, 58 S. Ct. 666, 82 L. Ed, 949], supra, pamphlets have proved most effective instruments in the dissemination of opinion. And perhaps the most effective way of bringing them to the notice of individuals is their distribution at the homes of the people. On this method of communication the ordinance imposes censorship, abuse of which engendered the struggle in England which eventuated in the establishment of the doctrine of the freedom of the press embodied in our Constitution. To require a censorship through license which makes impossible the free and unhampered distribution of pamphlets strikes at the very heart of the constitutional guarantees.
“Conceding that fraudulent appeals may be made in the name of charity and religion, we hold a municipality cannot, for this reason, require all who wish to disseminate ideas to present them first to police authorities for their consideration and approval, with a discretion in the police to say some ideas may, while others may not, be carried' to the homes of citizens; some persons may, while others may not, disseminate information from house to house.”

It will be noted that the ordinance in question is very general in its terms. It prohibits the distribution of handbills, etc., by anyone in practically all of the city of Yale without the consent of the city council. As stated iri the opinion of the Supreme Court, this leaves, the matter to the discretion of the city council. If one should be opposed to the literature that was being distributed, it would be within their power to absolutely prohibit its distribution. It is true that in the instant case the distribution was of commercial advertisements, which could, by proper ordinance, be regulated in a proper manner, but by the broad terms of this or dinance,, it could easily be enforced against one who- was attempting to distribute literature for either political, social, economic or religious purposes. There was nothing to' show that the handbills contained anything offensive to the good morals or interests of the city of Yale. The ordinance is not even limited to those who distribute handbills to advertise their wares or merchandise. It falls clearly within the class which is prohibited by the terms of the Constitution of the United States

•For the reasons heretofore stated, the judgment and sentence of the county court- of Payne county is reversed ¡and remanded, with directions to discharge the defendant.

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


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    MAJOR SMITH v. STATE.
    No. A-10202.
    July 15, 1943.
    (140 P. 2d 237.)

      E. P. Hill and Geo. L. Hill, both of McAlester, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Paul Gotcher, Co. Atty., of McAlester, for defendant in error.
   BAREFOOT, J.

Defendant, Major Smith, was charged in the district court of Pittsburg county with the crime of murder, was tried, convicted and sentenced to serve a term of life imprisonment in the State Penitentiary* From this judgment and sentence, he has appealed.

It is first contended that the court erred in admitting, over the objection of defendant, a'confession made by him, for the reason that the same was involuntary.

In the case of Lyons v. State, 77 Okla. Cr. 197, 138 P. 2d 142, 149, we had occasion to fully discuss the question of voluntary and involuntary confessions. It is therefore unnecessary to again review the authorities, or quote therefrom. That case may be referred to by those interested.

The confession in the instant case was clearly a voluntary confession, under the terms of that decision. The defendant in this case sent for the county attorney, who prepared the statement at his request. The statement was twice read over by defendant. The defendant testified in his own behalf, and the testimony given by him at tbe trial was very little, if any, different from the written statement, or confession, made by him the day following his arrest and which was introduced in evidence by the state.

While the defendant testified that he had been hit with a gun by a deputy sheriff on the night before the statement was made, the sheriff and county attorney of Pittsburg county both testified that the defendant was not hit; that no promises of any kind were made to him; that he was informed that under the oral statement he had made theretofore to the county attorney he would be guilty of murder, and that any statement that he made would be used against him at his trial. After being so informed by the county attorney, he freely and voluntarily signed a statement which was prepared by the county attorney, after he had talked with defendant.

In this statement he gave the details leading up to the homicide, but attempted to justify himself by reason of the fact that he did not intend to shoot Mansfield Postum, but rather his father, Nathaniel Postum, and that he did not fire until he had been fired upon. This was the same evidence which he gave at the trial of the case. In the statement he said: “And I stood it so long and couldn’t stand it any longer, so last night I decided to have it out with Nathaniel.”

He then relates the taking of his shotgun and going to the scene of the homicide on that night for the purpose of meeting the father of the deceased, as above outlined. That part of the statement above quoted is the part of which defendant now complains. The evidence in the record, other than that of the defendant, fully justifies this statement.

In the Lyons case, above referred to, we said:

“There are very few instances when all the facts are taken together but will show one’s guilt, if he is guilty, and it is not necessary that a confession be obtained in every case to the end that the guilty party may be properly brought to justice. The facts in the instant case clearly demonstrate this.”'

As there stated, it is not always necessary to secure a confession in order to secure a conviction. The faots in this case emphasize this point even better than does the Lyons case. Here the state had two eyewitnesses to the homicide, and other evidence sufficient to connect the defendant therewith. While we thinlc the statement made by the defendant is clearly voluntary and admissible in evidence under the law, yet we again call the attention of county officers to the fact that it is not always necessary that a confession be had to' the end that persons may be successfully prosecuted, and they should be doubly careful that defendants who are in their custody are not mistreated and that by reason of such mistreatment statements or confessions are taken from them which are wholly involuntary and under the law cannot be introduced in evidence. Rv this statement we are not assuming that this defendant was in any way mistreated. The deputy sheriff whom the defendant testified struck him with his gun was present in the courtroom at the time of the trial. Defendant- had subpoenaed him as a witness, but did not place him on the stand.

The trial court, when the issue of the confession was presented, dismissed the jury, and out of their presence heard the evidence, which is the procedure followed in this state (see the Lyons case, supra), and first decided that the confession or statement made was voluntary, and therefore admissible. The jury was then recalled to the bo®, and all of the evidence surrounding the circumstances of the giving and signing of the statement was presented to the jury, and the court then instructed the jury that if they found that it had not been made in a voluntary maimer it was tbeir duty 'to disregard it. Tbis is tbe procedure approved by this court. It is first the duty of the court to> pass upon the question as a matter of law. The issue is then presented to' the jury for their consideration, giving them an opportunity to pass upon the facts, and disregard them if they are of the opinion the statement was not freely and voluntarily made, or was the result of mistreatment of the defendant such as to cause fear upon his part. By this procedure the rights of the defendant are first protected - by the court in deciding as a matter of law whether or not the confession is voluntary or involuntary. If he finds that it is voluntary, it is admissible; if involuntary, it is not admissible. The jury then is given an opportunity to pass upon the facts, as above outlined.

From the above statement, we find that the court did not err in admitting in evidence the statement or confession of this defendant.

It is next contended that the court erred in failing to give an instruction on manslaughter in the first and second degrees.

The record discloses that no written request was made by' the defendant for this instruction, but that when the county attorney had concluded his argument to the jury, the counsel for defendant orally requested as follows:

“Comes now the defendant and requests the court to submit forms of verdict for manslaughter in all degrees.
“By the Court: Overruled.
“Mr. Hill (for defendant) : Exceptions.”

Assuming that this was a -sufficient request for the court to submit to the jury the issue of manslaughter in the first and second degrees, we shall consider* the same with reference to the facts and the law.

Defendant in his brief does not cite any authorities upon this proposition, but only asserts that the court erred in not submitting this issue to- the jury.

This court has often had under* consideration the question of the duty of the trial court with reference to the submission of the different degrees of homicide. The general rule has been followed that in a murder case, the court should submit to the jury for* their consideration every degree of homicide which the evidence by any reasonable view suggests. Hopkins v. State, 4 Okla. Cr. 194, 108 P. 420, 111 P. 947; Williams v. State, 12 Okla. Cr. 39, 151 P. 900; Newby v. State, 17 Okla. Cr. 291, 188 P. 124; Fray v. State, 46 Okla. Cr. 260, 285 P. 142; Oglesby v. State, 56 Okla. Cr. 286, 38 P. 2d 32.

It is the duty of the trial court to give to the jury such instructions as he* deems necessary and the evidence warrants. This vests the trial court with discretion, which discretion is, subject to review on appeal, but it will not be disturbed unless the record presents a clear* case of abuse of discretion. As stated in the case of Updike v. State, 9 Okla. Cr. 124, 130 P. 1107, 1110:

“No conviction should be reversed for* the failure of the trial court to' instruct upon any given issue, unless from the testimony in the case it appears* that an honest and intelligent jury could legitimately arrive at a conclusion favorable to the defendant upon such issue.”

From the evidence in the instant case, the verdict could only have been murder or not guilty. Under the defendant’s testimony, if believed, it would have been justifiable homicide. We have often decided in cases of this character that the court did not err in refusing to instruct the jury upon the issue oí manslaughter. Updike v. State, supra; Akes v. State, 31 Okla. Cr. 386, 239 P. 187; Carle v. State, 34 Okla. Cr. 24, 244 P. 833; Tucker v. State, 66 Okla. Cr. 335, 92 P. 2d 595.

In the case of New v. Territory, 12 Okla. 172, 70 P. 198, 199, the Territorial Supreme Court had before it the question here under consideration. It was there said?

“First. Error in neglecting to instruct the jury as to the different degrees included in the charge, murder and manslaughter. The question is squarely raised here whether it is necessary in all cases of trial for homicide to instruct the jury not only upon the question of murder, but also' upon the question of manslaughter, whether the evidence does or does not tend to prove either of the degrees of manslaughter. We think the law is definitely settled that, where the evidence tends to prove only the higher, and does not tend to prove the lower offense, it is not necessary for the court to give an instruction to the effect that the defendant may be found guilty of the lower offense. Gatliff v. Territory, 2 Okla. 523, 37 P. 809; State v. Estep, [44 Kan. 572], 24 P. 986. And the rule is just as well settled that, where the evidence does tend to prove the lower offense, it is the duty of the court, when requested, to charge the jury as to the law of the lower offense which the evidence tends to prove. Lawson v. Territory, 8 Okla. 1, 56 P. 698. The only question, then, is to determine which one of these two rules applies in this case. By section 2078 of the Statutes of 1893 [21 O.S. 1941 § 701], homicide is defined to be 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.’ By section 2086 of the Statutes of 1893 [21 O.S. 1941 § 711], homicide is: made manslaughter in the first degree ‘when perpetrated unnecessarily either while resisting an attempt by the person killed to commit a crime, or after such attempt shall have failed.’ It is the province of the court to' determine whether there is or is not any evidence which tends to prove the lower degree of crime, and, when the court has determined that there is some evidence tending to prove the lower degree, then it is the duty of the court to instruct the jury, if requested, upon such lower degree. To apply the rule, we must consider the defendant’s testimony, as upon this alone can there be any claim of manslaughter.”

The court then considered the evidence which is in many ways similar to the facts in the instant case. It also analyzes the statutes on murder and manslaughter, finally coming to' the conclusion:

“'Viewing the evidence of the defendant alone from its most favorable standpoint, only one of two conclusions could have been arrived at by the jury: First, if the case for the prosecution was made out, the verdict must have been for murder. If the theory of the defendant was sustained, then the homicide was justifiable. As we view the defendant’s testimony, from the record, however, taking! it as a whole, and particularly the acts of the defendant from the beginning of the shooting until the end, we do not see how the jury could have arrived at any other conclusion than that the defendant was guilty of murder.”

The evidence of the state was that defendant had for a number of years kept a Negro woman by the name of Mary Hands in his home, and that he had had illicit relations with her. That some time prior to the homicide, Mary Harris left defendant’s home, and h'ad gone to the home of Nathaniel Postum, the father of the deceased, Mansfield Postum. That she had lived at his home for about two- years, and was living there at ¡the time of the homicide; that they were living together as man and wife and did not marry until one week prior to the trial of this case in the lower court. On the date of the homicide, October 25, 1940, Nathaniel Postum was working at the oil rniil in the city of McAlester, his hours being from 3 o’clock in the afternoon until .11 o’clock at night. He lived on a small acreage just east of the city of McAlester. When he left the oil mill, he walked down the highway a short distance, and then doAvn the railroad tracks. It Avas dark, and the only light Avas that reflected from the oil mill.

The evidence reveals that there was ill feeling on the part of the defendant towards the said Nathaniel Postum by reason of the said Mary Harris. That on the night of October 25, 1940, the defendant, knowing that Postum Avould leave his work at 11 o’clock, and knowing the route he Avonld take to his home, loaded his shotgun and went to a place near the railroad tracks, and, according to the witnesses for the state, laid in wait for the defendant to come along the tracks. The officers testified that they observed a place about 25 feet from the track where the grass had been mashed down, Avhere defendant had lain and where they found the shotgun shells and the Avadding, which were used when defendant’s gun was fired.

On the night in question Nathaniel Postum’s son, Mansfield Postum, age 13 years, had been to an entertainment at the school, and stopped at the oil mill to return home with his father. Mary Harris (noAV Mary Postum) also- went to the oil mill to walk home Avith Nathaniel. They started doAvn the railroad tracks, and Mansfield took his father’s dinner pail and walked on ahead of his father and M'ary Harris some 50 or 60. yards. Postum and Mary Harris heard a shot, and Mansfield called out, “Oh, oh Daddy.” Nathaniel ran to the boy and asked what Avas the matter, and the boy replied, “Daddy, I am shot.” Nathaniel started to pick the boy up, and another shot was fired, AAdiich barely missed him. He then fired three shots from his pistol, in the direction from Avhich the firing had come. He heard the party wlm fired the shots running from the scene. Mary Harris started running to the boy Avhen Nathaniel did, and he told her to go and call the law and the doctor. Mansfield was taken to a hospital, where he died in a few hours from the effects of the gunshot wounds. The testimony of Nathaniel Pos-tum was corroborated by Mary Harris.

The sheriff of Pittsburg county and a member of the highway patrol, who were called and examined the premises, gave detail evidence which revealed that the defendant had lain in wait for Nathaniel Postum to pass that way. This evidence was with reference to the condition of the grass, the finding of the shotgun shells and wadding from the gun which was fired, also the distance to- the railro'ad track.

Elizabeth McGill, who was a niece of the wife of the defendant and who lived in defendant’s home, testified that the defendant came to her bed in his home some time after 11 o’clock on the night of the homicide, and that she had been asleep, and defendant asked her to tell anyone who might come there for him, “that I rubbed his chest with some tallow and turpentine that night;” but stated that she had not done so.

Defendant testified admitting that he fired the shot that killed Mansfield Postum; that he had gone to the spot to see Nathaniel to ask him why he was carrying a gun for him as he had been told by Mary Harris, and to try to get him not to do so; that he carried his shotgun with' him so he could protect himself; that when he saw someone coming down the track carrying a dinner pail he thought it was Nathaniel and that he. said, “Nathaniel, I want to talk to you.” That the party fired at him, and he returned the fire, killing the boy, Mansfield Postum, who, he says, was between defendant and Nathaniel.

Prom the above statement of the evidence, and the reading of the authorities, it is revealed that the testimony of the state clearly shows a case of murder. The evidence of the defendant is based squarely upon justifiable homicide, his own testimony showing that he went to the scene of the difficulty at night, armed. It is probably true that he did not intend to kill the boy, Mansfield Postum. But if he intended to kill the father, Nathaniel Postum, as testified to by the state’s witnesses, his actions would constitute murder. If his testimony was true, he would not be guilty. This was the view taken by the trial court, and for this reason he did not submit the issue of manslaughter in the first or second degrees.

The statute provides (section 2223, O.S. 1931, Tit. 21 O.S.A. 1941 § 711) :

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

And section 2228, O.S. 1931, Tit. 21 O.S.A. 1941 § 716:

“Every killing of one human being by the act, procurement or culpable negligence of another, which, under the provisions of this chapter, is not murder, nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree.”

A careful analysis of these statutes has been made in the case of New v. Territory, supra. The court submitted to the jury an instruction on the law of self-defense which fully covered the issue of justifiable homicide. There was no evidence which warranted the submitting of the issue of manslaughter in the second degree.

We do not find from an examination of the facts in the case at bar that the trial court erred in failing to present- these issues to the jury.

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

JONES, P. J., and DOYLE, J., concur.


author: JONES, P. J.

text:
    SCOTT WORLEY v. STATE.
    No. A-10194.
    July 15, 1943.
    (140 P. 2d 246.)
    Paul & Paul, of Pauls Valley, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Scott Worley, was charged in the county court of Garvin county with the unlawful possession of intoxicating liquor, was tried, convicted and sentenced to serve 60 days in the county jail and pay a fine of $100.

This cause Avas submitted for an opinion upon the record, with petition in error attached. Oral argument and the right to fjle a brief on behalf of defendant were waived.

The only issue presented by the record is whether the court erred in overruling the motion to suppress evidence.

The defendant, testifying in his own behalf on the motion to suppress, stated that he had stopped his automobile on the highway a fow miles from Pauls Valley, with two wheels on the shoulder, but that the car was out of the line of traffic; that his lights were turned off; that he stopped for the purpose of taking a drink of whisky, and had been sitting there for about ten minutes Avhen two highway patrolmen stopped, approached his car, and inquired about his taillight, and asked whether he needed any assistance; that one of the officers then claimed to have seen a bottle of whisky in his shirt and ordered defendant out of the car; that the officers then took him to Pauls Valley, where he Avas placed in jail; that no warrant of arrest or search warrant was ever served upon him.

EdAAdn Brown, highway patrolman, testified that on the night in question he and his associate officer, Patrolman Ruess, Avere driving toward Elmore City .when they noticed a car parked on the highAvay, Avith headlights burning, but with no' taillight; that they stopped to warn the driver to have Ms tailligbt repaired, and offer bim assistance if it was needed; that when they reached the car they saw the defendant was in an intoxicated condition; that he had part of a pint bottle of whisky in' his shirt; that they arrested defendant, and upon searching his car found seven more pints of wMsky.

It was then stipulated that the testimony of Patrolman R. J. Ruess would be identical with that of Patrolman Brown.

In Sims v. State, 73 Okla. Cr. 321, 121 P. 2d 317, it is held:

“Whether the search and seizure from an automobile on a public highway without a warrant is unreasonable within the meaning of the constitutional provisions forbidding unreasonable searches and seizures is to be determined as a judicial question in view of all the circumstances under which it was made. * * *
“Where an accused while operating an automobile on a public highway is arrested by highway patrolmen for a crime committed .in their presence, the highway patrolmen may as an incident to such arrest search the automobile of the accused for contraband goods.”'

In Brown v. State, 74 Okla. Cr. 249, 125 P. 2d 234, this court said:

“Where highway patrolman stops automobile which was being operated in the nighttime on a public highway with only one headlight burning, approaches the automobile to issue a warning tag because of this illegal operation and sees a quantity of liquor in the car; which causes him to search the automobile and seize over 1100 pints of whisky, such search and seizure is not unlawful.”

In Hammonds v. State, 73 Okla. Cr. 287, 120 P. 2d 376, it is stated:

“Peace officers have the right to arrest without a warrant all persons who are guilty of a violation of the criminal law in their presence.
“As an incident to such legal arrest the person of the offender may without a warrant be searched for contraband goods.”

The patrolmen were justified in investigating defendant’s car, as he was violating a law of this state. Section 10331, O.S. 1931, 47 0,S. 1941 § 131.

After stopping at defendant’s car to inquire concerning the improper taillight and they saw defendant in an intoxicated condition, with a bottle of whisky sticking out of his shirt, the officers, under the authority of the above cases, had the right to arrest defendant and search his automobile for contraband whisky.

There is no' error apparent in the record. The judgment of the county court of Garvin county is accordingly affirmed.

BAREFOOT, J., concurs. DOYLE, J., absent.


author: PER CURIAM.

text:
    In re CLARENCE R. GREEN.
    No. A-10385.
    July 21, 1943.
    (140 P. 2d 245.)
    Earl E. James, of Oklahoma City, for plaintiff.

      Mac Q. Williamson, Atty. Gen., for defendant.
   PER CURIAM.

The petitioner, Clarence R. Green, filed in this court a petition for writ of habeas corpus on February 24, 194S, alleging that he was unlawfully restrained of his liberty by Frank Smith, Chief of Police of Oklahoma City. A response to the petition was filed on the 26th day of February, 1943, in which it is set up that petitioner was released from custody on the 25th day of February, 1943, at the hour of about 8:30 a.m., and about one hour before the writ to show cause was received by respondent.

It therefore appears that petitioner, having theretofore been discharged, that it is unnecessary to assume jurisdiction in this case.

For the reasons stated, the petition for writ of habeas corpus is denied.


author: PEE CUEIAM.

text:
    JACK EDORIN HARRISON v. STATE.
    No. A-10367.
    July 21, 1943.
    (140 P. 2d 247.)
    Hughes & Hughes, of Hobart, for plaintiff in error.

      Mac Q. Williamson, A tty. Gen., for defendant in error.
   PEE CUEIAM.

Tbe defendant, Jack Edorin Harrison, was charged in the county court of Kiowa county with the offense of transporting intoxicating liquor, was tried, convicted and sentenced to serve 60 days in the county jail and pay a fine of $>250, and has appealed.

Petition in error with case-made attached was filed in this court on December 14, 1942.

Eule VT of this court provides':

“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; in causes appealed from a conviction for a felony, counsel for plaintiff in error shall in like manner serve his brief upon the Attorney General within 60 days from the date of filing his petition in error, and • shall in appeals from both misdemeanor and felony cases, at the time of service on the Attorney General, file five copies of said brief with the clerk of this court.”

No brief has been filed on behalf of the defendant and no extension of time granted within which brief of the defendant might be filed.

Where defendant appeals from a judgment of conviction in a misdemeanor case and more than seven months elapse and no brief is filed, nor application for extension of time within which to brief is made, we do not consider it the duty of this court to< go> into a careful examination of the evidence to' determine whether or not the trial court erred in the admission or rejection of testimony. This court will examine the record for jurisdictional errors. If no fundamental error appears, the judgment will be affirmed.

We have examined the record and find that the information is sufficient to charge the offense of unlawful transportation of intoxicating liquor. The officer who made the arrest of defendant swore that the defendant passed him on the highway driving recklessly at a speed of approximately 75 miles per hour. That he had to drive 85 miles an hour to overtake defendant, who had 456 pints of whisky and gin in his automobile.

Defendant’s motion to suppress the evidence was properly overruled, the evidence is sufficient to sustain the judgment and sentence, and the court’s instructions were applicable to the law and facts. On the record before us we have discovered no error which would warrant a reversal of the judgment, and it appears that the defendant was accorded a fair and impartial trial.

The judgment of the county court of Kiowa county is accordingly affirmed.


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    ANDREW JACKSON v. STATE.
    No. A-10197.
    July 21, 1943.
    (140 P. 2d 606.)

      Paul V. Carlile, of Sallisaw, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error:
   BAREFOOT, J.

Defendant, Andrew Jackson, was charged in the district court of Sequoyah county with the crime of rape in the first degree, was tried, convicted and sentenced to serve a term of 15 years in the State Penitentiary, and has appealed. .

It is first contended that the judgment and sentence is contrary to the law and the evidence, and that the court erred in refusing to sustain a demurrer to the evidence. This makes necessary a short review of the evidence and the law applicable thereto.

The charge against the defendant was that of rape by force of Ida Whitney, age 33 years, in Sequoyah county, on the night of November 21, 1940.

Prosecutrix had been divorced, and ivas the mother of four small boys, who were living with her near Sallisaw, in Sequoyah county. On the date charged, she went to the home of a neighbor, Mrs. Elsie Lowe, for the purpose of getting a dress pattern. While there she asked Mrs. Lowe if she would go with her to the home of her uncle, who lived in the country and was sick, if they could get “The Old Stove Man” to take them in his car, and Mrs. Lowe agreed that she would go. She told Mrs. Lowe if she saw “The Old Stove Man” to' ask him to fake them. She then Avent to the home of Mrs. Jackson, the wife of the brother of defendant, for the purpose of having the dress made. 'She returned to the home of Mrs. Lowe, and then to her oavu home, and sent two of her sons to see “The Old! Stove Man” and get Mm to come to Mrs. Lowe’s and get them. She returned to Mrs. Lowe’s house, and just after dark Andrew Jackson, the defendant, came to' the Lowe home, driving the car of Bill Williamson, who was known as “The Old Stove Man.”

The evidence of prosecutrix, and of her son Jack Whitney and of Mrs. Lowe, was that defendant told them that Mr. Williamson could not come, but had sent him to take them to the uncle’s in the country. That defendant said it would be necessary to go to a near-by store and get some gasoline, and that he would arrange the tools in the back of the car so that the children could ride there. Prosecutrix testified that he asked her to go with' him for the gasoline, and said they would return in a few minutes and get Mrs. Lowe and her two children, and the cMldren of prosecutrix. They secured the gasoline, but instead of returning to get Mrs. Lowe and the children, defendant, despite the protests of the prosecutrix, drove into the country and, by force overcoming’ her resistance, had intercourse with her. She testified that when defendant became unduly familiar with her, she jumped from the car and started walking down the road. That he turned around and overtook her, and promised to take her to town, but that instead, he dragged her to the side of the road and by the exercise of force and fear overcame her resistance and had intercourse with her.

Defendant admitted having intercourse with pro-secutrix, but stated that it was voluntary on her part.

After the completion of the act, defendant drove with prosecutrix to Sallisaw, and they went to a restaurant. Food was ordered, but when the defendant went to the rear to wash his hands, the prosecutrix left the premises and contacted the officers, to whom she related the facts with reference to the assault that had been made upon her. Defendant was arrested the same night, and charges were filed against him.

Defendant admitted that he had been drinking during the day, and took two drinks from a bottle he had in the car just prior to the alleged offense. There is no evidence that prosecutrix had at any time drunk any liquor. Defendant also admitted that he had previously been convicted of the crime of burglary in Sequoyah county, and had served a term of 21 months in the State Penitentiary therefor.

The rules with reference to cases where one is charged with rape have hem so fully discussed in cases recently decided by this court, that we deem it unnecessary to again review the many cases that have been decided. Some of these cases are: Weston v. State, 77 Okla. Cr. 51, 138 P. 2d 553; Coppage v. State, 76 Okla Cr. 428, 137 P. 2d 797; McComas v. State, 75 Okla. Cr. 321, 131 P. 2d 488; Duggins v. State, 76 Okla. Cr. 168, 135 P. 2d 347; Gordon v. State, 75 Okla. Cr. 356, 131 P. 2d 503; and Kilpatrick v. State, 75 Okla. Cr. 28, 128 P. 2d 246; Williams v. State, 65 Okla. Cr. 336, 86 P. 2d 1015; Williams v. State, 68 Okla. Cr. 348, 98 P. 2d 937; Kitchen v. State, 61 Okla. Cr. 435, 69 P. 2d 411; Kitchen v. State, 66 Okla Cr. 423, 92 P. 2d 860; and Kilpatrick v. State, 71 Okla. Cr. 129, 109 P. 2d 516.

These cases review the early decisions and again state the rules that have been so well established: First, that one may be convicted on the uncorroborated testimony of the prosecutrix; second, th!a.t where her evidence is uncertain, contradictory or improbable, or she has been impeached, that it will be required that her testimony be corroborated; and third, that the court will review the whole record in cases of this character to see whether the evidence as a whole is sufficient to sustain the judgment and sentence to- the end that justice may prevail, and injustice be. avoided. In other words, that a case of this character is an exception to the general rule that where there is any evidence to sustain the same, the judgment and sentence will be upheld. This rule is sound in principle, because it gives to the court the right to correct an injustice, and at the same time to do justice, which is the true aim and purpose of the law. Weston v. State, supra; Sowers v. Territory, 6 Okla. 436, 50 P. 257.

Applying these rules to the evidence as revealed by the record in the instant case, we find that there is nothing which causes us to believe that the evidence of the pro-secutrix in this case was untrue, unbelievable, contradictory, or that she was in any way impeached. Her testimony is corroborated by the evidence of a number of witnesses. It is unnecessary to lengthen this opinion by going into detail. The evidence of defendant is contradicted in a number of details, and by some of the witnesses whom he placed upon the witness stand. We therefore cannot say that the judgment and sentence is contrary to the law or the evidence.

It is next contended that the court erred in overruling the motion for continuance. This is based upon the absence of the witness Bill Williamson, “The Old Stove Man,” and the fact that the attorney for defendant, the Hon. Paul V. Carlile, was a member of the Legislature and that 30 days had not expired from the time the Legislature had adjourned until the trial of defendant.

The motion for continuance by reason of the absence of the witness Bill Williamson does not comply with the terms of the Oklahoma statute. Sec. 3035 O.S. 1931, Tit. 22 O.S.A. 1941 § 768. There is nothing to show that diligence had been used to secure the attendance of the witness, or that his presence could be had at the next terra, of court. A copy of the subpoena, to show that one had been issued, was not attached to the motion or the affidavit. In fact, there was nothing to show that any subpoena.had been issued, and if so the díate thereof, in order that the court might determine whether due diligence had beeii used in procuring the subpoena. There is further reason that the evidence which the motion sets out is not of sufficient importance to justify the granting of a continuance.

That part of the motion for continuance by reason of the fact that the Hon. Paul V. Carlile, attorney for defendant, was a member of the State Senate, and that the session of the Legislature for the year 1941 had not been adjourned for a period of 30 days at the time of the trial of defendant, is based upon that provision of Oklahoma Statutes Annotated, 1941, Title 12, § 667, which is as follows:

“The court may, for good cause shown, continue an action at any stage of the proceedings upon terms as may be just; provided, that if a party or his attorney of record .is serving as a member of the Legislature or the Senate, sitting as a court of impeachment, or within thirty (30) days after an adjournment of a session of the Legislature, such fact shall constitute cause for continuance of the case, and all motions, demurrers and preliminary matters to be heard by the court, the refusal to grant which shall constitute error, and entitle such party to a new trial as a matter of right. * *

This court will take judicial knowledge of the fact that the session of the Legislature which convened in January, 1941, adjourned on May 23, 1941, only 24 days prior to the commencement of the trial of defendant; also that the Hon. 1’anl Y. Carlile was a member of the State Senate.

The facts with reference to the filing and trial of this cause as shown by the record reveal that the information was filed December 11, 1940. On June 3, 1941, the Judge of the district court of Sequoyah county entered the following order (omitting the caption) :

“Defendant present in person without counsel and announces he is financially unable to employ counsel. Paul Carlile, a member of the bar, is appointed to represent the defendant. The defendant waives arraignment, time to plead, and pleads not guilty; served with a copy of information and a list of state’s witnesses. Case set for tidal Wednesday, June 18th, 1941.”

That on June 16, 1941, a motion for continuance was filed, the second paragraph of which is as follows:

“That Paul Carlile, attorney of record for Andrew Jackson, defendant, is serving as a member of the Legislature of the State of Oklahoma, and that the 30 days allowed by law before any member of the Legislature can be forced to- trial has not yet expired, after adjournment.”

At the time the court overruled the motion for continuance, he gave as a reason therefor the following:

“The Court: The record may show that counsel for defendant has filed his motion for a continuance herein for the reason and on the ground that he is a member of the State Senate and 60 days has not at this time expired since the adjournment of the recent session of the Legislature. The record may further show in this connection that at the time defendant was arraigned, this; docket had been set with the defendant to be tried on this date, and that upon the application and request of the defendant, Senator Carlile was appointed to defend him as a poor person. At the time of his appointment both the defendant and Ms appointed counsel knew that the case was expected to be tried on its setting and no objection was made by counsel at the time to the fact that his legislative exemption would not have expired on tMs date, nor did he ask to be relieved of the appointment on that account, nor does he now do so, but he accepted the appointment and witnesses for the state have been summoned and arel in attendance, and the court does not think that counsel is in a position to> insist upon his legislative exemption from forced trial under all the circumstances,, but that his Legislative exemption must be deemed to have been waived. Not only so, but counsel’s Legislative exemption of 60 days will expire during the time of tMs setting and while the jury is still in attendance, and if his counsel had] asked that the case stand over to a later day of the setting, and until his 60 days had expired, same could be done andi the witnesses brought back and defendant tried on this setting, but counsel does not ask this, but only asks a general continuance, wMch the court does not feel is justified or required under all the facts surrounding the arraignment, appointment of counsel, and setting of the case.
“The record may further show that the motion of defendant for a continuance on the ground of the absence of material witnesses is also denied for the reason that the defendant does not show that he even knows where Ms alleged witness lives, nor is there any showing made that he would ever be able to obtain service of subpoena upon this witness for his attendance upon a trial wMch might be set at any future time. A subpoena was issued for the witness Bill Williamson, directed to, the sheriff of this county and the same was returned Mot found.’ The motion for a continuance will therefore be overruled on all grounds, and the defendant allowed an exception.” (Note: In this statement it will be observed that the court refers to the Legislative exemption of “sixty” days, which is probably a typographical error, as it should be “thirty” days.)

This court has had occasion to construe the statute aboye quoted upon numerous occasions, both before and after the amendment by the Legislature in 1937, when the period of time of exemption was increased from 10 to- 30 days after the adjournment of the Legislature. This is the first instance where we have been called upon to construe the section with reference to' the “adjournment” clause of the statute.

It will be noted from the record that the appointment of Senator Carlile was after the adjournment of the Legislature. It was not in session at the time of the appointment, nor was he in attendance upon the Legislature at the time of his appointment, or at the time of the trial of the case. The Legislature had been adjourned for 24' days, which left only six days before the expiration of the 30 days.

From the record, and the statement made by the trial court at the time of passing upon the motion, we are of the opinion that the rule announced by the majority of the court in the e'ase of Holloway v. State, 37 Okla. Cr. 24, 255 P. 1022, 1023, should be applied in this case. It is there said:

“The purpose of this statute was, no doubt, to encourage members of the bar to become candidates for the lawmaking body of the state, and. to protect 'a defendant whose attorney, presumably familiar with his case, could not attend his trial by reason of official duty, and to protect members in their business while serving the state in this capacity by preventing trials of cases where they are attorneys of record during a session of the Legislature and for ten days thereafter; that during this time they should not be disturbed in their duties as lawmakers. The privilege of a continuance as a matter of right applies only to a defendant whose attorney of record is a member of the Legislature. A member of the Legislature, during a session of the Legislature, also' b'as the right to contract for any new business presented to him, and, if such business arises during a session of the Legislature, and he is employed, he would then be entitled to the benefits conferred by this statute. But, where an accused against whom a prosecution is pending prior to the convening of the Legislature, and who prior to such time has employed counsel as his attorney of record, he may not during a legislative session, by employing a member of the Legislature, procure a continuance on that ground as a matter of right. To give the statute the construction here contended for would put it in the power of every defendant at his pleasure to continue his case during a session of the Legislature. This we think is contrary to the spirit and meaning of the act in question.
“Under the facts presented in this case defendant’s application did not entitle him to a continuance as a matter of right, but such application was. addressed to. the sound discretion of the trial judge, and, no abuse of such discretion being apparent, the overruling of such application is not error.”

The opinion in this case was written by Judge Edwards, and concurred in by Judge Doyle. Judge Davenport wrote a dissenting opinion in which' he held that a continuance should have been granted as a matter of right.

In the case at bar, the appointment of Senator Car-lile was made after the adjournment of the Legislature. At the time of the appointment, June S, 1941, the case was assigned for trial for June 18. No. objection or escep-was falten, and it was not until June 16th that a motion for continuance was filed. This statute should be construed liberally and with reference to the intent of the Legislature at the time of the passage of the same. One of the main purposes was that the members of that body should not be interfered with in their official duties. It was not intended that the act should be construed in such manner that it would defeat justice. This has been the interpretation placed upon the act by this court. In all of the cases where the statute has: been held applicable, the Legislature was in session at the time of the trial, and the member had become counsel prior to the convening of the Legislature. In the instant case, neither of these Icondítions ¡existed. Counsel wap appointed after the Legislature adjourned, and no showing was made that he could not act by reason of his official duties. We are, therefore, of the opinion that the construction placed upon this statute by the trial court was right, and that by reason of the facts, as they here exist, the court was vested with the discretion of deciding whether a continuance should be granted, and that this discretion was not abused.

It is next contended that the court erred in admitting certain evidence of the witness Bert Cotton, undersheriff of Sehuoyah county.

When the prosecutrix left the restaurant on the night of the assault, she went to a drugstore and asked for the officers of the law. This witness came, and took her home. He testified to her appearance and condition, and that she told him of the assault that 'had been made upon her by the defendant. This evidence was ciearly admissible under the law. Coppage v. State, supra, 44 Am. Jur. p. 953, § 84, and cases cited.

The court then permitted the witness to give a somewhat detailed account of what prosecutrix said as to how the offense was committed. This part of the evidence of this witness was incompetent. The trial court admitted it upon the theory that it was a part of the res gestae, but in our opinion the length of time was too great for it to be considered as a part of the res gestae. The prosecutrix had left the scene of the alleged assault and had gone with the defendant to the city of Sallisaw, a distance of some six miles. She had then entered a restaurant and ordered food, and afterwards left and went to a drugstore and called the officers. This detailed conversation was given some time thereafter. We have found no case or authority which would justify the admission of this evidence as a part of the res gestae under the circumstances such as existed here. Price v. State, 1 Okla. Cr. 358, 98 P. 447; 44 Am. Jur. p. 955, § 85; Regnier v. Territory, 15 Okla. 652, 82 P. 509; Womack v. State, 36 Okla. Cr. 44, 253 P. 1027.

This question was fully reviewed and the authorities cited in the Coppage Case, supra. In that ’case we held that the evidence was prejudicial to the defendant. The case was reversed for this and other reasons. Here the evidence is sufficient to sustain the conviction without this evidence, and there is no reason to believe that he was prejudiced by reason thereof. In the Coppage Case we said: “Each case to some extent must stand on the facts of that particular case.” This statement is supported by the authorities in general. By reason of the extensive review in the Coppage Case, it is unnecessary to further discuss it here.

It is provided by Oklahoma Statutes, 3206, O.S. 1931, Tit. 22 O.S.A. 1941 § 1068:

“No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.”

In construing this statute it has often been held that a case will not always be reversed because of “improper admission or rejection of evidence,” unless “after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.” Wilcox v. State, 69 Okla. Cr. 1, 99 P. 2d 531; Johnson v. State, 70 Okla. Cr. 270, 106 P. 2d 149; Rickman v. State, 70 Okla. Cr. 355, 106 P. 2d 280; Knox v. State, 34 Okla. Cr. 300, 246 P. 665; Carter v. State, 6 Okla. Cr. 232, 118 P. 264; McKee v. State, 75 Okla. Cr. 389, 132 P. 2d 173.

The minimum punishment under the statute is 15 years in the penitentiary, 21 O.S. 1941 § 1115, and as we have often stated, this court is not permitted to reduce the punishment where the minimum is assessed. We have no hesitancy in stating that under the circumstances in' this case, we would be very much inclined to modify the punishment if permitted to do so. This, however, is a matter for the Legislature to consider if desired, or by executive clemency of the Governor under the power given him by the Constitution. Art. 6, § 10.

■Finding no substantial error in the record, and that defendant was not prejudiced by any error that may have been committed, the judgment and sentence of the district court of Sequoyah county is affirmed.

JONES, P. J., and DOYLE, J., concur.


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    H. B. (WHITTLE) LONG v. STATE.
    No. A-10140.
    July 21, 1943.
    (140 P. 2d 600.)

      A. W. Billings, of Woodward, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

H. B. (Whittie) Long was convicted in the district court of Woodward county of the crime of unlawful transportation of intoxicating liquor, after a former conviction of violating the prohibitory liquor laws, and pursuant to the verdict of the jury was sentenced to serve two years and six months in the State Penitentiary and pay a fine of $50.

R. W. Pierson, court clerk of Woodward' county, as a witness for the state, identified certain records in his custody pertaining to the alleged previous convictions of the defendant. These instruments included the information, verdict of the jury finding defendant guilty, the judgment and sentence pursuant to> the verdict of the jury. These instruments were identified in two different cases wherein the defendant was convicted of unlawful possession of intoxicating liquor. This witness further identified the defendant as the particular person who was charged and convicted in said cases.

Witness Pañi H. White testified that he lived on Eighth street in the city of Woodward. That on the evening of December 11, 1940, he properly parked his Chevrolet automobile in front of his residence; that some time during the night a Ford Y-8 coupe had run into the back of his car and knocked it about 50 feet across the curb and onto the sidewalk. That he did not know of the collision, until the next morning about 7:15. That he took the tag number of the Ford car and found that it was registered in the name of the defendant. That he then went to see defendant and had a conversation with him wherein defendant stated that he could not do- anything about repairing the car. The witness further testified that defendant admitted hitting his car and that he was driving, but that he was not drunk but was going about 50 miles an hour and had fallen asleep..

The other testimony of the state consisted of evidence of four officers who testified that they received a call about 2:30 a.m. on December 12, 1940, advising them that there had been a wreck on Eighth street. That they went immediately to the scene of the wreck and found where a Ford Y-8 coupe had run into the back end of a Chevrolet, leaving the cars in about the same position as described by the witness White. Some of the officers testified concerning skid marks made by the Ford just prior to the time it collided with the Chevrolet which showed that it had skidded about 50 feet. Several broken bottles from which whisky was dripping were found in the front and back of the Ford car. They also found 33 pints of whisky which had not been broken in the collision. Some of the officers recognized the car of defendant, as they had seen defendant driving the automobile prior to- that date and also recognized his tag number. The officers then went to a hospital to see whether the man who had been in the car was there, and they there learned that a man had been there a short time before and had his face bandaged. They then went to the residence of defendant, where they found him in bed with his injuries bandaged.

Policeman Flaherty testified that when they found defendant in bed, they inquired of him whether he had been in a wreck, and lie told them he had and that the automobile found by the officers on Eighth street belonged to him. “He said it was his car and that he had been driving it that night.” He told the officers he had been driving all day, that the whisky was his, but that he had just had a bad day.

Deputy sheriff Carlisle testified that, in a conversation with defendant, defendant stated that he had been driving all day and all night, that he was not drinking but had just gone to sleep, which caused him to hit the other car. He told the officers at that time that he had 66 pints of whisky in his car at the time of the wreck.

At the close of the state’s case the defendant moved 'for an instructed verdict of acquittal and when said motion was overruled defendant rested his case.

It is first insisted that there is, a fatal variance between, the allegations of the information and proof of the state in this, to wit, the information alleges two former convictions for a violation of the liquor laws, and in reference to one of the convictions the information alleges that the defendant was sentenced to serve 30 days in the county jail and pay a fíne of $150 and costs. That in reference to said case the proof of the state showed that the defendant was sentenced to serve 60 days in the county jail and pay a fine of $150 and costs. The correct case number, the correct date of the conviction, and all other allegations with reference to this particular conviction are correct except the information erroneously recited a sentence of 30 days in the county jail, when in fact the defendant was sentenced to 60 days in the county jail.

In O’Neil v. State, 76 Okla. Cr. 107, 134 P. 2d 1033, it is held:

“In order to subject an accused to the enhanced punishment for a second or subsequent offense or as a habitual criminal, it is necessary to allege in the indictment the fact of a prior conviction or convictions. 21 O.S. 1941 § 51.
“A ‘variance’ in a criminal case is an essential difference between the information and proof, and a ‘variance’ is not ‘material’ unless it is such as might mislead the defense or expose the defendant to the injury of being put twice in jeopardy for the same offense.
“In prosecution for second-degree forgery after former conviction of a felony, fact that information alleged that former conviction was on July 29, 1936, and evidence showed that it was on September 29,1936, did not prejudice defendant or constitute a ‘material variance’. 21 O.S. 1941 §§ 51, 1577. * * *
“In prosecution for second-degree forgery where information charged that check was signed by J. W. Singleton and proof showed that check was signed by J. M. Singleton, the variance was not ‘material’. 21 O.S. 1941 § 1577.”

This was a well-considered opinion by Judge Barefoot in which he reviews extensively the various authorities on this proposition. In the body of the opinion, after quoting from other cases, it is stated:

“But such an averment of prior conviction does not charge an offense. As stated by Lord Campbell in the case of Reg. v. Clark, 20 Eng. L. & Eq. Rep. 582: ‘It is only the averment of a fact which may affect the punishment. The jury do not find the person guilty of the previous offense; they only find that he was previously convicted of it, as an historical fact.’ * * *
“The essential thing is that the jury determine whether defendant has been previously convicted.”

See, also, White v. State, 58 Okla. Cr. 401, 54 P. 2d 214, wherein it was held that where the information charged a prior conviction of grand larceny and the proof showed that the prior conviction was for burglary, the same did not constitute a material variance .

In view of these two authorities and the cases therein cited, it is our conclusion that the variance herein was immaterial.

It is next contended that there is no proof of the corpus delicti except by the extrajudicial statement of the defendant, and for that reason the court erred in not sustaining the demurrer to the evidence.

' In the early case of Shires v. State, 2 Okla. Cr. 89, 99 P. 1100, this court held:

“In a criminal case, a conviction cannot be had on the extrajudicial confessions of the defendant, without evidence aliunde of the corpus delicti, but direct and positive proof of that fact is not indispensable.”

In Brown v. State, 9 Okla. Cr. 382, 132 P. 359, we held:

“While it is true that the corpus delicti must be established as an independent fact, beyond a reasonable doubt, yet it is not necessary that it should be proven by direct and positive proof. It may be proven by circumstantial: evidence if from all the circumstances the jury are satisfied of the defendant’s guilt beyond a reasonable doubt.”

In Davis v. State, 57 Okla. Cr. 367, 48 P. 2d 339, we stated that:

“The ‘corpus delicti’ means, when applied' to any particular offense, the actual commission by some one of the particular offense charged.” In the body of the opinion it is stated: “The corpus delicti simply means that the crime charged has been committed by some one. When that has been proved, then in order to warrant a conviction the state must prove the accused committed it. .The latter proposition is distinct from the proof of corpus delicti * *

There is ample evidence, although circumstantial, that the Ford V-8 coupe had conveyed a quantity of intoxicating liquor from a point unknown to a point on Eighth street in the city of Woodward in front of the house of the witness White. The skid marks of the Ford were plainly visible on the pavement. It crashed into the Chevrolet car of White and then, being propelled at such a rapid rate of speed, both of the automobiles moved several feet on the curb and across the sidewalk. The circumstances of the many bottles of whisky being broken and dripping from the car, together with the fact that many other bottles full of whisky were found in the car, are sufficient circumstances to show that intoxicating liquors were conveyed in the Ford coupe. It thus being shown that a crime had been committed, the confession of the defendant was admissible to connect the defendant with the commission of the crime.

A similar state of facts was before this court for consideration in the case of Gorum v. State, 60 Okla. Cr. 248, 63 P. 2d 765, 766. In that case certain officers of Seminole county searched a farm four miles, west of Seminole and found a large quantity of whisky. The house in which the whisky was found was unoccupied. A day or two later the defendant Gorum came to the jail, claimed the liquor and accused the officers of being five cases short. Judge Doyle, in disposing of the contention of defendant that the corpus delicti had not been proved' save and except for the extrajudicial statement of the defendant, stated:

“In the instant case the evidence clearly establishes the actual commission of the offense charged. The confessions of the defendant were voluntarily made and were properly admitted. The corpus delicti may be established without showing that the crime charged was committed by the defendant.”

The law of that case, as stated in the syllabus, reads:

“The corpus delicti may be established without showing that the offense charged was committed by the accused.
“An extrajudicial confession of the defendant is not sufficient to warrant his. conviction without additional proof that the crime charged has been committed. There must be, in addition to the confession, proof of the corpus delicti, and, where the corpus delicti is established by independent evidence, a conviction based upon the defendant’s voluntary confession is warranted.”

To' the same effect is the case of Hopkins v. State, 75 Okla. Cr. 268, 130 P. 2d 543. In that case the officers searched an empty automobile and seized 390 pints of whisky. Two. days later the defendant appeared at the sheriff’s office inquiring about his .automobile. At that time, in a conversation with the officers, he told them the automobile was his although the title was in the name of L. W. Fisher, but that the whisky and car in fact belonged to defendant. The conviction based on those facts was affirmed in a unanimous opinion by this court.

It is next contended that the court erred in refusing to give the defendant’s requested instruction on circumstantial evidence.

It is. well settled that where the state relies, wholly upon circumstantial evidence for conviction, it is error for the court to refuse to instruct on circumstantial evidence. Birkley v. State, 66 Okla. Cr. 144, 90 P. 2d 464; Hess v. State, 35 Okla. Cr. 410, 250 P. 938; Bock v. State, 34 Okla. Cr. 313, 246 P. 642; Breedlove v. State, 49 Okla. Cr. 428, 295 P. 239.

It is equally well settled that where the prosecution do not rely wholly upon circumstantial evidence for a conviction, the accused is not, as a matter of right, entitled to have the jury instructed upon the law of circumstantial evidence. Hagerty v. State, 22 Okla. Cr. 136, 210 P. 300; Foster v. State, 8 Okla. Cr. 139, 126 P. 835; Parnell v. State, 39 Okla. Cr. 361, 265 P. 660; Meier v. State, 39 Okla. Cr. 104, 263 P. 165.

In this case the facts are all circumstantial unless the admissions of the defendant are such as would constitute direct evidence. The testimony, of the officers is to the effect that the defendant told them the car belonged! to him, that he had been driving it at the time the wreck occurred, that he was going about 50 miles an hour and had fallen asleep. These statements of defendant are direct admissions of guilt.

In Flanagan v. State, 74 Okla. Cr. 127, 124 P. 2d 270, this court had before it for determination for the first time the question as to whether a confession is direct or circumstantial evidence. The law, as fixed by that decision, is recited in the fifth syllabus, as follows:

“The testimony of a confession is direct evidence and not circumstantial; where there is direct evidence of a confession of an accused that he committed the crime, in addition to' circumstantial evidence, an instruction on the law of circumstantial evidence is not necessary.”

Lastly, it is urged that the court committed error in making a statement in the presence of the jury as to what the witness Flaherty had testified.

The record discloses the following in connection with this assignment of error:

“Q. (By Mr. Smith, County Attorney) Did he tell you he had been driving that car? (By Mr. Billings, Attorney for Defendant) That is objected to as incompetent, irrelevant and immaterial, leading and suggestive, putting words in the witness’ month. The Court: His answer was that Mr. Long told him it was his car, and that he had been driving it that night, is that right? The Witness: Yes, sir, he said it was his car and that he had been driving it and he had bandages on his head that the doctor put on there and he told us he had been driving it and it was his whisky and that he had just had a bad day.”

This court has often said that trial courts should be very careful and not make any statement in the presence of the jury that would give any intimation to them as to what weight should be given to any evidence, or say anything which might influence them in arriving at a verdict. Counsel insists that the court misquoted the direct examination of this witness and that his statement was an invasion of the province of the jury as to Avhat defendant testified.

We have carefully read all of the testimony of this witness and while the statement of the trial court is not literally the testimony of the witness, it was substantially correct. But we have considered this statement of the trial court in connection with the question as to whether the punishment assessed by the jury is excessive. Trial courts have no right to comment on the evidence as. members of the jury are generally eagerly watching for some sign from the trial judge which might indicate to them what action they should take.

While we think it very doubtful that the statement of the trial court contributed in any measure to the size of the verdict, it is evident to us that the verdict is excessive under the facts of this particular case, and we feel that the interests of justice require a modification.

It is therefore ordered that the judgment of the district court of Woodward county be modified by reducing the punishment assessed the defendant from two and one-half years imprisonment in the State Penitentiary and a fine of $50, to imprisonment in the State Penitentiary for one year and a fine of $50, and the judgment and sentence of the district court of Woodward county, as thus modified, is accordingly affirmed.

DOYLE, J., dissents.


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    MRS. W. H. DAVIS v. CITY OF ARDMORE.
    No. A-10193.
    July 28, 1943.
    (140 P. 2d 598.)

      Kenneth B. Kienzle, of Shawnee, for plaintiff in error.
    J. B. Moore, City Atty., of Ardmore, for defendant in error.
   PER CURIAM.

Plaintiff in error was. tried and convicted in the municipal court of the city of Ardmore of a violation of a certain city ordinance, defining vagrancy, and it appears from the record that an appeal was attempted to be taken to- the county court of Carter county, and tbe appeal to this court was taken from the order and judgment of the county court made on the 27th day of August, 1941, dismissing the appeal, by filing in this court petition in error, and case-made on December 3,1941.

Omitting formal parts, the order dismissing appeal is as follows:

“On this the 27th day of August, 1941, the above styled and numbered cause coming on for hearing upon the motion of the City of Ardmore through its attorney to dismiss the appeal, the same having formerly been presented by oral argument and submitted on briefs, and taken under advisement, the court at this time, after •having considered, the argument of counsel and being) fully advised in the premises finds that this court has no jurisdiction due to the fact that the appellant failed to give notice in the Municipal Court of her intention to appeal, and the court is of the opinion that the motion of the appellee, the City of Ardmore to dismiss should be sustained.
“It is therefore ordered, adjudged and decreed by the court that the motion of the City of Ardmore be and is hereby sustained, and said appeal be and is hereby dismissed.
“John E. McCain, County Judge.”

It appears from the transcript of the record that the original complaint was filed in the municipal court of the city of- Ardmore charging that she “did then and there unlawfully commit the crime of vagrancy by strolling and loitering idly about the streets of the city of Ardmore, having no local habitation and no honest business or employment (between the hours of midnight and 5 A. M.) ■contrary to section 503 of the ordinance of said city, in such cases made and provided, and against the peace and dignity of the said city.”

Ási shown by the transcript: .

“On the 30th day of June 1940, complaint was duly filed against defendant, Mrs. W. H. Davis by Ned T. Prator charging said defendant with the offense of vagrancy under Ordinance No. 3804.
“On the 1st day of July, 1940, the cause came regularly on for hearing before said court, a,t which time evidence was heard against said defendant upon said charge and defendant was found guilty as charged in the said complaint, and his punishment fixed at a fine of $10.00 and I-costs.”

An appeal was attempted to be taken to the county court, appeal bond was duly approved July 8, 1940, by T. E. Roland, police judge.

Counsel for said defendant filed a demurrer to the complaint in the county court on the ground that “said ordinance, as attempted to be applied to and enforced against this defendant, is in violation of article I [II], sec. 2 of the Constitution of the State of Oklahoma.”

And: “That the attempt to enforce the vagrancy ordinance of said city of Ardmore against this defendant is in violation of the First and Fourteenth Amendments of the Constitution of the United States.”

Omitting title, the city of Ardmore filed the following motion to dismiss the appeal:

“Now come® the city of Ardmore, and for the purpose of this motion, and for this purpose only, moves the court to dismiss the attempted appeal in this matter for the reason this court has no jurisdiction in said cause for the following .reasons, towit:
“a. No appeal bond was filed as required 'by law?
“b. No written notice of appeal was given as required by law.
“3. B. Moore, Attorney for plaintiff.”

The only question presented is: Did the said plaintiff in error comply with the statute and give the proper notice in order to perfect her appeal to the county court of Carter county?

The statute in question provides:

“Such appeal shall be allowed upon the filing of a written demand by the defendant, at any time within ten days after the rendition of such judgment, provided, that such appeal shall not stay the execution of such judgment unless within said ten days the defendant shall enter into recognizance payable to said municipality, to be approved as to amount, form and sureties by the trial judge in the penal sum double the amount of fine and costs, but not less than fifty dollars ($50.00)”. Laws 1915, ch. 147, § B; Laws 1917, ch. 127, p. 191, § 2. Sec. 6454, Okla. St. 1931, 11 O.S. 1941 § 753.

There is nothing in the case-made or transcript to show that the plaintiff in error filed any written demand at any time within ten days after the rendition of the judgment in the municipal court of the city of Ardmore of her intention to appeal from the judgment.

Tbe transcript shpws that an appeal bond was tendered, approved and filed.

In the case of Wilkerson v. City of Lawton, 44 Okla. Cr. 53, 279 P. 972, this court held under the provisions of the statute, 11 O.S. 1941 § 753, a defendant desiring to appeal from the municipal court must file a written demand with the municipal court of his intention to appeal to the county court, and unless such written demand is filed the county court is without jurisdiction and the motion to dismiss the appeal is properly sustained.

The precise question was before this court in the case of Eisiminger v. Oklahoma City, 67 Okla. Cr. 271, 69 P. 2d 1046, 1049, opinion by Barefoot, Judge, reviewing the statute and decisions of this court, construing the same, concludes as follows:

‘Under the provisions of section 4655, Comp. St. 1921, 11 Okla. St. Ann. § 754, a written demand of the intention of the defendant to appeal from the municipal court is mandatory, and, unless that written demand is filed, the county court is without jurisdiction, and motion to dismiss the appeal is properly sustained.’
“It will thus be noted that these cases are really not in conflict. But should it be considered they were in conflict, we think the decision in the Wilkerson case is in harmony with the construction we have placed upon the statutes involved in this case.”

It follows, therefore, that the order and judgment of the county court of Carter county dismissing the appeal should be affirmed.


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    DAN LANDON v. STATE.
    No. A-10333.
    July 28, 1943.
    (140 P. 2d 242.)
    Carl C. Wever, of Pawhuska, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Dan Landon, was charged in the district court of Osage county with the crime of rape in the first degree, was tried, convicted and sentenced to serve forty years in the State Penitentiary and has appealed.

The information filed against the defendant alleged that he committed the crime of rape upon hisi daughter, Dorothy Landon, on May 24, 1939, at a time when she was 13 years of age.

The defendant has filed a lengthy brief in support of many different assignments of error. No answer brief has been filed on behalf of the state.

It is insisted that the court erred in admitting certain evidence over the objection and exception of defendant. This assignment of error is directed chiefly at the testimony of the former wife of defendant concerning an alleged assault upon an eight-year-old daughter of defendant, approximately two and one-half years after the date of the alleged offense upon which the information herein is based.

After the institution of these charges against defendant, his wife obtained a divorce. She was the first witness called by the state to testify against defendant. She testified at length concerning an incident that happened about 2 o’clock, a.m., on November 9, 1941, at the home of herself and defendant. She related that ■ defendant came home after midnight. That he lighted the lamp and turned the radio up loud. That in a little while she became suspicious of defendant’s actions and tiptoed to a door leading into the front room, and there saw defendant in a large chair with his eight-year-old daughter in front of him “working over her.” She gives a lurid description of what she saw on that occasion and when asked to state what she did, she said that she told defendant “he should be ashamed.” That they then went into the bedroom. That after they had gone to bed an argument started between herself and defendant and defendant caught her by the throat and said he would choke her to death. • That she screamed and two of her other girls came running over to the bed and tried to help her. That defendant struck both of these girls with Ms fists and knocked them down and slapped them repeatedly. That the defendant tried to find a gun, stating that he had been wanting to kill all of them for a long time and if he could find a gun he was going to do it right then. The testimony of this witness was extended at considerable length and was devoted chiefly to this occurrence on the night of November 9,1911.

It should be borne in mind that defendant was accused of the crime of rape committed upon Dorothy Landon, age 13, on May 24, 1939. The edght-year-old daughter involved in the alleged assault about which the wife testified is another person than the one upon whom the crime of rape is alleged to have been committed. It is not contended, by the state that defendant raped the eight-year-old girl upon the night in question, but all of tMs evidence concerning the happenings on November 9, 1941, was admitted in evidence over the objection of defendant that they were wholly disconnected with the offense upon which he was standing trial. TMs evidence was introduced by the state before there was ever any testimony to show that defendant had committed a rape upon Dorothy Landon.

Defendant also complains that the court erred in admitting evidence by La Etta Landon, another daughter, that defendant at different times, had sexual intercourse with her, and further that the court erred in admitting evidence of other acts of sexual intercourse with Dorothy Landon besides the one specifically named in the information.

The general rule is that when a defendant is put upon trial for one offense, he should be convicted, if at all, by evidence which shows that he is guilty of that offense alone; and evidence which in any manner shows, or tends to show, that he has committed another crime wholly independent, even though it be a crime of the same sort, is irrelevant and inadmissible. Nemecek v. State, 72 Okla. Cr. 195, 114 P. 2d 492, 135 A.L.R. 1149.

As an exception to the general rule, the courts have been very liberal in permitting evidence of other offenses involving carnal intercourse of the sexes where it is between the same parties, whether prior or subsequent to the offense charged in the information, for a reason peculiar to sexual crimes. This exception to the general rule is founded not so much upon the desire to show the intent with which the offense was committed, hut more upon the broader ground of showing sexual inclination or lustful disposition of defendant toward the prosecuting witness’ and making it more probable that the offense charged was committed. Wharton’s Criminal Evidence, (11th Ed.) voL 1, § 356.

In Morris v. State, 9 Okla. Cr. 241, 131 P. 731, 734, it is stated:

“On reason and: by the great weight of authority, we think the correct rule is that, in a prosecution for ‘statutory’ rape, evidence of other acts of sexual intercourse between the same parties is admissible, including evidence of acts committed subsequent to the particular act relied upon for conviction, even though it proves other and dis;-tinctive offenses as relevant to show the true relation of the parties to each other, and to characterize and explain the act for which the defendant is on trial. It is the general desire to satisfy lust that is involved in this, class of cases, and this character of evidence tends to show lustful desire and disposition by showing continuousness of the illicit relation. However the limits of time over whichj evidence of this land may range is largely within the( legal discretion of the trial court. In so far asi the case of Cecil v. Territory of Oklahoma, supra, [16 Okla. 197, 82 P. 654, 8 Ann. Cas. 457] conflicts with this opinion, it is overruled.”

See, also, Ellsworth v. State, 10 Okla. Cr.452, 137 P. 1188, 1189; Dunscombe v. State, 19 Okla. Cr. 45, 197 P. 1073; Williams v. State, 14 Okla. Cr. 195, 169 P. 655; Pruett v. State, 35 Okla. Cr. 359, 250 P. 1029, 1030.

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

“The general rule that proof of other offenses, is inadmissible unless a part of the res gestae does not apply to offenses involving illicit sexual intercourse, and evidence of other acts between the same parties is. admissible, not as affording proof of a substantial offense in themselves, but as corroborating other' evidence of the act charged, and as tending to show the relations- existing between the parties as bearing upon the probability of the commission of the crime charged.
“In a prosecution for incest, evidence tending to establish acts of incest at times other than, and prior to., that relied on for the conviction is admissible, as indicating continuousness of the illicit relation and as tending to corroborate the testimony of the prosecutrix as to the particular act relied on for conviction.”

The above cases are ample authority for the admission of the evidence of Dorothy Landon concerning other acts of carnal intercourse between berself and defendant. The testimony of La Etta Landon that defendant, on thé date alleged in the information, came to the bed where she and Dorothy Landon were sleeping and there had sexual intercourse .with each of them, is admissible as a part of the res gestae. The other acts of sexual intercourse related by La Etta Landon and all of the testimony of the mother concerning the alleged assault upon the eight year old daughter two- and one-half years subsequent to the date of the alleged rape of Dorothy Landon, and the mother’s testimony concerning the threats made with a gun and his treatment of the family on the night in question, are wholly unrelated to the offense charged and were distinctly prejudicial, and the admission of this evidence over objection of defendant is reversible error.

In Quinn v. State, 54 Okla. Cr. 179, 16 P. 2d 591, the trial court permitted the state to prove over the objection of the defendant that about 30 days prior to the date of the crime alleged against defendant the defendant committed rape upon one Myrtle Patton at about the same place and. in the same manner as the act alleged to> have been committed by the accused' upon the Griffith sisters. On appeal to this court it was held that the action of the court in admitting the evidence of the rape of Myrtle Patton, being a wholly unrelated offense, was inadmissible and not so closely linked and connected as to form a part of the res gestae, or tending to establish a systematic scheme or plan embracing the commission of two or more offenses so related to each other that proof of one tends to establish the other.

In view of the fact that no statement was made by Dorothy- Landon concerning the alleged rape on May 24, 1939, until more than two and one-half years had elapsed, it is evident that the testimony of the wife concerning the acts of defendant on November 9, 1941, and the other inadmissible evidence hereinabove referred to, contributed greatly to the verdict of guilty returned by the jury.

We shall not attempt to analyze the evidence nor comment upon the same as it is evident because of the admission of this evidence the cause must be reversed and remanded for a new trial.

Without discussing the motion for continuance in detail, it is sufficient to state that the same failed to allege facts which would be sufficient on its face to entitle defendant to a continuance. Much of the brief of defendant is devoted to a presentation of the alleged error in overruling the motion for a continuance. Counsel for defendant evidently did not have sufficient time to prepare for trial. In view of the fact that former counsel for defendant has now withdrawn from the case, we suggest that upon the appointment of other counsel by the trial court, such appointment be made a sufficient length of time ahead of the trial to give counsel an opportunity to consult with the large number of witnesses whose testimony the defendant claims would establish his innocence.

With the exception of the evidence hereinabove discussed, the court’s ruling on all other matters about which complaint is made appears to have been correct.

For the reasons hereinabove stated, the judgment of the district court of Osage county is reversed and the cause is remanded for further proceedings in accordance with this opinion.

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