text:
    BILL LIZAR v. STATE.

      No. A-9994.
    May 20, 1942.
    (126 P. 2d 552.)

      Brown Moore and Guy Horton, both of Stillwater, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Horace D. Ballaine, Co. Atty., of Pawnee, for defendant in error.
   JONES, J.

Bill Lizar was charged in the district court of Pawnee county with the crime of receiving stolen property, was tried, convicted and sentenced to serve five years in the State Penitentiary, and has appealed.

Counsel for defendant have presented 19 assignments of error. Under the view which we take of this case, it is only necessary in the disposition thereof to discuss two of the questions that are presented.

It is contended that the trial court erred in admitting evidence of other crimes in which the defendant was alleged toi have been involved. The defendant was charged Avith receiving one roan cow from Louis Brown and Sam Marrs on May 3, 1940. Both Brown and Marrs confessed to stealing the roan cow, together with a Durham cow from one Detweiler. They also testified that two' or three days after stealing the Detweiler cattle they stole five other cattle near Stillwater and placed them in the defendant’s pasture where they had left the Detweiler cattle. The witness Louis Brown testified that he had lived in the home with the defendant Lizar since he was 14 or 15 years of age. The county attorney, over the objection and exception of defendant, asked the following questions:

“Q. Did he (referring to defendant) teach you to steal? Did you and Bill gu out together and steal cattle at various times before this? A. We have stole calves together, and we have stole cows and butchered them. Q. How many times? A. I don’t know exactly how many times we have done that. Q. Well, approximately how many? A. Around 20 or 25 times. Q. Did you ever steal any harness together? A. Yes. Q. How many sets? A. I would say three or four sets.”

Later, after other witnesses for the state had testified, the witness Louis Brown was recalled by the county attorney, at which time the following occurred:

“Q. You are the same Louis Brown who testified yesterday? A. Yes, sir. Q. You testified yesterday that you had gone to live with Bill, and that you and Bill had stolen some cattle previously? A. Yes, sir. Mr. Moore: We object to this as improper re-direct examination, and leading and suggestive, not within the issues, and done for the purpose of prejudicing’ the rights of this defendant. Mr. Ballaine: That is just laying a foundation. The Court: Overruled. Mr. Moore: Exception. Q. How old were you when you stole the first cattle with Bill? Mr. Moore: Objected to as incompetent, irrelevant and immaterial, not within the issues in this lawsuit, and move the court to instruct the jury not to consider it. The Court: Overruled. Mr. Moore: Exception. Q. How old were you? A. I would say I was somewhere around 15, or just a little after that.”

Some contention is made by the county attorney that since counsel for defendant attempted to show by his cross-examination of Louis Brown that Brown had lived in the home of the defendant for 12 years, in which he had been treated as a member of the family, he, the county attorney, should be allowed on redirect examination to show that Bill Lizar did not teach him as a father should a son, but that he had taught him to steal and commit other crimes.

It is a fundamental principle of criminal law that the character of the defendant cannot be impeached or attacked by the state, unless he puts his character in issue by introducing evidence of good character. Porter v. State, 8 Okla. Cr. 64, 126 P. 699; Whitlow v. State, 24 Okla. Cr. 307, 218 P. 162; Holleman v. State, 74 Okla, Cr. 258, 125 P. 2d 239.

There could be nothing more dangerous than to place a man upon trial for the violation of some specific statute and then allow the prosecution, upon some slight pretext, to allow a witness to make the general statement that for the past 12 years he and the defendant had stolen cattle 20 or 25 times, and had stolen other things together. Regardless of the guilt or innocence of the accused of the offense with which he stands charged, no- man would be acquitted in the face of such testimony as this, if believed by a jury, as the average juror would conclude that if a man had stolen that many times he should be punished even though he might be innocent of the offense for which he is being’ tried.

Neither would the above statements be admissible in evidence to show unlawful intent or a common scheme or plan, embracing the commission of two or more crimes so related to each other that proof of one tends to- establish the other.

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. Miller v. State, 13 Okla. Cr. 176, 163 P. 131, L.R.A. 1917D, 383; Nemecek v. State, 72 Okla. Cr. 195, 114 P. 2d 492, 498, 135 A.L.R. 1149.

As an exception to this general rnle, evidence of other offenses recently committed, similar to that charged, is admissible when it tends to establish a common scheme or plan, embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, or when it shows guilty knowledge or intent in the commission of the offense charged, or where the other offenses are a part of the res gestae.

In Nemecek v. State, supra, it is stated:

“In any prosecution, when the state offers to prove other alleged offenses for the purpose of showing a common scheme, plan or intent, the proof must clearly come within the exception to- the general rule; and where they are distinct and unrelated offenses, or remote as to time, an objection by the defendant to this proof should be sustained. Perdue v. State, 40 Okla. Cr. 9, 266 P. 514; Ricker v. State, 39 Okla. Cr. 58, 263 P. 160; Stanfield v. State, 30 Okla. Cr. 82, 235 P. 256.”

There is no- contention that the offense alleged to have been committed by the defendant was a part of a common scheme or plan, for the prosecuting witness, Louis Brown, testified that when he left the defendant’s place about May 1st he told defendant he was going to- Oklahoma City to- get a job. The cattle were stolen that night according to the testimony of Brown and placed in Lizar’s pasture without the knowledge of Lizar. Brown and Marrs then took two o-f Brown’s cattle to Tulsa, sold them, took the money and came back to Oklahoma, City. While in Oklahoma City, Brown wrote a letter to- Lizar stating that he was fixing to go to- the Salt Plains to go to work and it was not until after he had stolen five other cattle two nights later near Stillwater that he had a talk with Lizar in which he told him about stealing the cattle. The next morning after the cattle had been stolen at Stillwater, the confessed thief, Brown, testified that he saw Lizar for the first time since any of the cattle were stolen. His testimony as to what occurred there is as follows:

“Q. (By Mr. Ballaine, county attorney) All right, go ahead, tell us what you said to Bill, and what Bill said to you, and so forth. A. Well, I drove up in the yard and stopped my truck, and Bill come out to the truck and met me, and he said, ‘Well, did Lucy tell you to come over?’ I said yes. Q. Who is Lucy? A. That is my wife. And he said, ‘I left word over there to tell you to come over, because I have been sold out.’ And he asked me about those two cattle. Q. And what did he say when he asked you about them? A. He said,- ‘Woody heard you boys’ truck up there’ — Woody Green, that is the colored boy — and he said ‘That roan cow you got was out.’ And he said that — ■ Q. Did you tell him at that time whether or not these cattle were stolen property? A. Well, I told him, yes, I stole two cattle. He asked me if I hadn’t stolen them, and he said that roan cow was out, and I said yes. Q. Did you tell him these two were the ones? A. Yes, the first two that I got, and he — -let’s see, he told me, he said, ‘Louis, I want you to tell me where you got these cattle.’ And then he said, ‘Wait a minute, I am going to tell you where you got them, and if I am right, you tell me, and if I ain’t, you tell me where you got them.’ And he told me where he thought I got them. Q. Where did he say he thought you got them? A. About five miles west of Pawnee, out at Brown’s, on the north side of the highway. Q. He was wrong about that? A. Yes, he was wrong about that. And I told him where I got them, over there about two miles this side of Perry. Q. All right. Go ahead and tell us what else was said. A. So I says, ‘Well, that ain’t all of it.’ I says, ‘I stole five more last night’ And he said, ‘My God, have you lost your mind?’ I said, ‘No.’ He said, ‘Where did you get them at?’ And I told him. * * * Q. After you told him you had stolen five more, then tell us what he said then. A. All right. He said, Now, Louis/ he says, ‘You just as well tell me — ’ He says, ‘Louis, what part of this is Sam getting out of that?’ He said, ‘You needn’t make light of me,’ he said, ‘You just as well tell me, because I know you didn’t get all them cattle yourself.’ So I told him then, I says, ‘Well, Bill,’ I said, ‘Sam agreed to pay all the expenses of the truck, and pay for half the license, and I would furnish the truck, and we would take half on it, and for your helping us get around with this stuff here, if you help us we will get you a cow or two for it.’ Q. What did he say about that? A. He said, ‘Well Louis,’ he said, ‘All I care about is that you get out of this and don’t get caught.’ And he said, ‘I am going to try to help you get out, and then I want you to stop it.’ He said, ‘I don’t care if I get any cows or not, if you want to give me any for that, that would be all right.’ ”

All of the state’s case is built around the testimony of Louis Brown. With the exception of the testimony that the five cattle stolen at Stillwater were brought to Lizar’s pasture where the first two were placed, there is nothing in the rest of the statements by Brown concerning the many alleged prior thefts to show a common scheme or plan and they are too remote to be admissible to show unlawful intent.

In the recent case of Cox v. State, 74 Okla. Cr. 186, 124 P. 2d 432, it is stated:

“In a prosecution for receiving stolen property, the possession by defendant of other recently stolen property is a circumstance that may be considered in determining the intent.”

The testimony regarding the five cattle stolen at Still-water we think is properly admissible as evidence because it is so> interrelated with the alleged transaction had between Louis Brown and the defendant as to be a part of the res gestae, and was a part of the common scheme or plan which, under the state’s theory, defendant had with Brown to aid him in the disposition of the stolen property. The testimony of Louis Brown in which he made the general statement that Lizar had taught him to steal and that they had stolen together 20 or 25 times, together with other testimony along the same line, was too remote and wholly disconnected with the odíense charged. We can find no theory of law by which such testimony is admissible. If this testimony was inadmissible it cannot be argued that the same is harmless- error as its prejudicial effect can hardly be overexaggerated. It is easy to perceive that the doctrine of harmless error would be intolerable if absolute fairness is not accorded defendants upon trial. We have no sympathy with the idea that because the county attorney is convinced that a defendant is guilty, it makes no difference how his conviction is obtained.

This case involves the identity of a roan cow sold by the defendant to Henry Dallas. It was the contention of the prosecution that this roan cow was stolen by Brown from Detweiler. Detweiler identified the cow as the one which was stolen from him. 'On the other hand, the defendant put on proof by four witnesses tracing his ownership of the cow in which it developed that he had received the cow from one Ed Johnson as part payment on the building of a government lake. If the jury believed the testimony of defendant’s witnesses, then they would have necessarily acquitted the defendant. On the other hand, if they believed the testimony of the state’s witnesses that the cow defendant had traded to Henry Dallas was the Detweiler cow, then, likewise, it would have been their duty to return a verdict of guilty. It was not a case where the possession by defendant of stolen property is admitted by defendant and a claim of good faith is interposed by him. In this case defendant denies he ever had possession of the stolen property. He absolutely denies that he ever received any stolen property from Brown and the question resolves itself into a matter of the identity of the roan cow traded to Henry Dallas. There can be no doubt that the possession of property recently stolen is admissible against an accused to show the unlawful intent; especially would this be true where the possession of the stolen property is admitted by the defendant but his knowledge of the fact that it had been stolen is denied.

But the exception to the rule should not be enlarged so as to permit evidence that defendant and Brown, in years past, had stolen cattle 20 or 25 times together. The reason and justice of this ruling is apparent, and its observance is necessary to prevent injustice in criminal prosecutions. Bishop says that “to permit such evidence would be to put a man’s whole life in issue on a charge of a single wrongful act, and crush him by irrelevant matter, which he could not be prepared to meet.” 1 Bish. Crim. Proc. par. 1124.

It is next contended that the court erred in admitting in evidence a letter purportedly written by Louis Brown, while he was confined in the county jail at Perry, which letter was addressed to the defendant. , The record reveals the following:

“Q. (By Mr. Ballaine, county attorney) Did you or did you not try to protect Bill when you first were put in jail over at Perry? A. Yes, sir. Mr. Moore: Objected to as leading the witness, improper redirect examination. Mr. Ballaine: Here is the point, your Honor; he said that he was angry at Bill and tried to frame him. I want to try to show that he tried to' protect Bill over at Perry, as well as he could. The Court: Overruled. Mr. Moore: Exception. Q. Did you try to? A. Yes, sir. Q. Now, I hand you this exhibit, State’s Exhibit 2, and ask you whether or not you sent this letter to him in further-anee of that scheme? A. Yes, sir. Mr. Ballaine: We offer it in evidence. Mr. Moore: Objected to as incompetent, irrelevant and immaterial, self-serving, hearsay, not within the issues. The Court: Overruled. It will be admitted for one purpose and one purpose only, to show whether or not there was this feeling existing, between them.”

The letter thus admitted in evidence is as follows:

“Bill I don’t know how else to make an alibi for you. I have not let out a thing yet. I think Sam has said something about the brindle cow. I will hold out till the last. Try and trade Ed. J. out of that Roan 3 yr. old heifer for the one I traded for the bull. Fix up with Henry Dick that I sold the little Jersey heifer instead of you. They are not going to quit till I tell where they are. I don’t know what you have figured out.
“Louis Brown.”

This letter was allegedly found by the officers of Noble county on an inmate of the jail who was leaving the jail, and was never delivered to the defendant Lizar, and, so* far as the record shows, was never heard of by him until produced by the county attorney at the trial in the manner above set forth. As shown by the above record, it was admitted by the court solely for the purpose of showing whether there was ill-feeling between Brown and Lizar.

We think the expression used in the case of People v. Colburn, 105 Cal. 648, 38 P. 1105, is applicable to this case. The syllabus of that case is as follows:

“A letter found on the person of defendant when arrested for robbery, containing damaging statements and warnings to keep out of reach of the officers, and identified by a witness as having' been written by him to defendant, is inadmissible in the absence of evidence that defendant answered it or acted on the information contained therein.”

In the body of the opinion it is stated:

“That the letter contained damaging evidence against the defendant is quite apparent. It does not in direct terms state his guilt, but the fact that the writer regarded defendant and A. (Alie Knox) as being' guilty is plainly inferable from his solicitude and caution to them to avoid discovery of their whereabouts. All this was well calculated to impress a jury with the belief that defendant was guilty. This letter was clearly hearsay. Were such evidence admissible against a defendant charged with crime, there would be no limit to the power of designing persons to manufacture testimony against their neighbors. It will not do to say that Moore was a friend of the defendant, and hence that the evidence was admissible. It would be quite easy for an enemy, under the guise of friendship, to indict the most damaging epistles to a victim whose destruction he was seeking to encompass. The question of friendship or enmity does not properly constitute a factor in the problem. The letter was a statement of a third party, in no wise connected with defendant ; was not made under the sanction of an oath; and not admissible. The possession of unanswered letters is not such evidence of acquiescence in their contents as to make them admissible in a civil case, and a letter found upon a prisoner when arrested has been held to be no evidence of the facts stated in it. Rap. Cr. Law, § 283; Whart. Cr. Ev. § 682; People v. Green [1 Denio, N.Y., 614], 1 Parker, Cr. R. [N.Y] 11; Com. v. Edgerly, 10 Allen [Mass.] 184; Smith v. Shoemaker, 17 Wall. 630, [21 L. Ed. 717], There are exceptions to the rule, — as, for instance, where it is shown that the defendant has acted upon the information contained in the letter; or where he has answered it, in which case SO' much of the letter as is explanatory of his answer is admissible; or where the party receiving the letter has by his acts or conduct invited the sending of it to> him. There was no sufficient showing to render the letter admissible under any of these exceptions.”

This letter was hearsay and not competent for any purpose.

The county attorney has presented an excellent brief on the proposition that this letter is admissible as the acts of an accomplice done during the existence of a conspiracy and in furtherance thereof. However, we find the county attorney tailing' an inconsistent position in his brief concerning this question and another question which was presented. One of the alleged errors presented by defendant is that the court erred in not instructing the jury as a proposition of law that Sam Marrs and Louis Brown were accomplices of the defendant. In discussing that proposition the county attorney insists that the proof does not show that they are accomplices and we think, he is correct. In Yeargain v. State, 57 Okla. Cr. 136, 45 P. 2d 1113, it is stated:

“Ordinarily, the thief is not an accomplice of one who' receives the stolen property, knowing the same to have been stolen, but where there is a previous arrangement between the thief and the receiver for one to steal and the other to receive, and pursuant to such plan the property is stolen and received, they are principals, and the receiver is an accomplice of the thief, and the thief is an accomplice of the receiver.”

The proof does not show any previous arrangement for Brown and Marrs to steal and Lizar to receive stolen property. If it had done so, the court would have erred in not instructing the jury that Marrs and Brown were accomplices of the defendant Lizar. They were not accomplices engaged in a conspiracy to commit crime. The trial court did not admit the note in evidence as an act done by coconspirators, but limited its application solely to the proposition as to whether it showed there was ill-feeling between the parties. We have concluded that the admission of this note allegedly written by Brown was error.

If we were to- sustain the admissibility of this note in evidence, its tendency to abuse would be so great as might create an injustice in many future cases towardsi a person accused of crime. It would be very easy to frame an accused by having an alleged accomplice write damaging statements t-o be read as evidence against the accused to bolster the testimony of the alleged accomplice. This invitation to abuse is so great that we will not extend the exceptions to the hearsay rule for the purpose of authorizing the introduction of such evidence.

As to the proposition of the failure to give an instruction on accomplice testimony, in addition to what was stated above in discussing the other assignment of error, we think the court did not err in this regard for the reason that no> request for an instruction on accomplice testimony was presented by counsel for defendant. In a retrial of this case the court might properly submit this question of whether Brown and Marrs were accomplices as a question for determination by the jury. In Yeargain v. State, supra, it is stated:

“Where the evidence is conflicting as to' whether a witness participated in committing the crime charged, the question as to whether or not such witness is an accomplice is one of fact for the jury. But where the acts¡ and conduct of the witness are admitted, it becomes a question of law for the court to say whether or not those acts and facts make a witness an accomplice.”

The many other errors presented by counsel for defendant, including the alleged disqualification of the juror Hooper, the alleged error in overruling the motion to' quash the information, the alleged error in overruling the motion for continuance, and other assignments are not of sufficient merit to require discussion. The court’s ruling in all instances, except those herein discussed, appears to us to have been correct.

For the reasons, hereinabove stated, the judgment of the district court of Pawnee county is reversed and remanded with instructions to grant the defendant a new trial.

BAREFOOT, P. J., and DOYLE, J., concur.


source: Caselaw Access Project

author: BAREFOOT, P. J.

license: Public Domain

text:
    HUGH DENSMORE YOUNT v. STATE.
    No. A-10031.
    May 20, 1942.
    (126 P. 2d 549.)
    Mac Q. Williamson, Atty. Gen., and Lewis R. Morris, Co. Atty., of Oklahoma City, for the State.
    Jim B. Barnett, of Oklahoma City, for defendant.
   BAREFOOT, P. J.

Defendant, Hugh Densmore Yount, was charged in the court of common pleas of Oklahoma county, Oklahoma, with the crime of unlawful possession of intoxicating liquor, to wit, 24 pints of tax-paid liquor, was tried, convicted and sentenced to pay a fine of $50 and to' serve 30 days in the county jail, and has appealed.

A jury trial was waived by defendant and he was tried before the court. Motion to suppress the evidence for tbe reason that an illegal search of defendant’s automobile had been made, was heard and overruled by the court. It was agreed that the evidence taken upon the motion to suppress should be considered by the court as the evidence upon the trial. The state also introduced additional evidence.

An appeal from the judgment rendered was perfected by filing in this court on March 10, 1941, a petition in error, with the case-made attached.

No briefs have been filed and no appearance for oral argument has been made.

Where defendant appeals from the judgment of conviction, and no' briefs in support of the_ petition in error is filed, and no appearance for oral argument made, this court will examine the record for jurisdictional errors, and finding no fundamental error, the judgment will be affirmed.

We have examined the record and find the defendant had possession of 24 pints of tax-paid liquor, and that the officers observed a part of the liquor in defendant’s car and he was immediately arrested. A search of the car was then made and the balance of the liquor, amounting to one case, was found in the car.

An examination of the record discloses that no error which would warrant reversal of the judgment appears, and that the defendant was accorded a fair trial and was properly convicted, and the judgment of the court of common pleas of Oklahoma county, is therefore affirmed. Ferguson v. State, 71 Okla. Cr. 50, 107 P. 2d 808; Arnold v. State, 71 Okla. Cr. 166, 110 P. 2d 309; State v. Sisler, 71 Okla. Cr. 211, 110 P. 2d 321; Franklin v. State, 71 Okla. Cr. 115, 109 P. 2d 239.

JONES and DOYLE, JJ., concur.


author: BABEEOOT, P. J.

text:
    BILL TUCKER et al. v. STATE.
    No. A-10137.
    May 27, 1942.
    (126 P. 2d 551.)
    Bobert B. Bittenhouse, of Oklahoma City, for defendants.
    Mac Q. Williamson, Atty. Gen., and Lewis' B. Morris, Co. Atty., of Oklahoma City, for the State.
   BABEEOOT, P. J.

Defendants, Bill Tucker and Leonard Hopkins, were charged in the court of common pleas of Oklahoma county with the crime of unlawfully conveying intoxicating liquor, towit, 54 pints of tax-paid whisky, were tried, convicted, and each sentenced to- pay a fine of $75, and serve 45 days in the county jail, and have appealed.

An appeal from the judgment rendered was perfected by filing in this court on the 5th day of September, 1941, a petition in error with case-made attached. No briefs have been filed and no appearance for oral argument has been made.

Where a defendant appeals from a judgment and conviction, and no brief in support of the petition in error is filed, and no appearance for oral argument is made, the court will examine the record for jurisdictional errors, and finding no fundamental error, the judgment will be affirmed.

The only contention relied on for a reversal of this case is that the court erred in refusing to quash and hold for naught the information filed herein, and to’ suppress the evidence for the reason that the same was obtained as the result of an “illegal, wrongful, unlawful and unauthorized search of the property of these deféndants without the aid of a good and valid search warrant and in violation of the constitutional and statutory rights of these defendants.”

This contention is based upon the fact' that defendants were seen by officers driving their automobile into a public garage in Oklahoma City. That the officers drove up by the side of the car and saw bottles of whisky in the front and back seats and upon the floor. Most of the bottles were wrapped in brown paper with the initials of the kind of whisky thereon, such as is ordinarily used in wrapping whisky. Some of the packages had been broken and the bottles were exposed. These were observed by the officers prior to the arrest of defendants and the further search of their car. The defendants had not rented the car from the “Drive in”, but had gone in there when they thought someone was following them. It was about 1 a. m. The defendant Bill Tucker admitted that it was his ear which was conveying the whisky and that the whisky belonged to him, and that he had employed the defendant Leonard Hopkins to drive the car. There was no evidence that the liquor was to be used for a legitimate purpose. The place where it was found was a public place, where the officers had the right to' be, the same as the defendants.

Finding no fundamental error in the trial of this case, the judgment of the court of common pleas of Oklahoma county is affirmed.

JONES and DOYLE, JJ., concur.


author: JONES, J.

text:
    In re J. C. BENSON.
    No. A-10224.
    May 27, 1942.
    (126 P. 2d 550.)
    ¡Sid White, of Oklahoma City, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   JONES, J.

This is an original proceeding in habeas corpus wherein the petitioner, J. C. Benson, a minor, by J. D. Benson, his father and next of kin, seeks to obtain his release from the State Reformatory at Granite, Okla.

The verified petition filed herein alleges that on April 13, 1940, the petitioner was charged in the district court of Oklahoma county, by information, with the crime of larceny of an automobile. That the petitioner was unable to make bond and was incarcerated in jail for more than a month prior ü> the filing- of said information. That the petitioner and his father are both uneducated and inexperienced in legal proceedings and without understanding of the elements of the crime. That on May 9, 1940, the petitioner, after being induced by public officials of Oklahoma county, entered his plea of guilty and was sentenced to serve a term of seven years in the State Reformatory, but the execution of said sentence was suspended during good behavior.

That on June 9, 1940, the said J. 0. Benson, while riding a bicycle in Oklahoma Oity, was arrested by policemen and incarcerated in jail.

That the next morning, June 10, 1940, without permitting the petitioner to advise with relatives or friends, the said petitioner was taken before the Honorable Ben Arnold, district judge, and the order suspending his sentence was revoked and the petitioner was immediately taken to the State Reformatory at Granite, Okla., where he has since been incarcerated.

That no' cause or reason was ever given to the petitioner for said action, and no good or lawful reason existed for thus incarcerating the petitioner and the action of the said judge was arbitrary and governed solely by whim or caprice.

Upon the filing of this petition the court refused to issue the writ of habeas corpus, but the rule to show cause was issued and response filed by the warden in which he denied that the district court revoked the suspended sentence of the petitioner without lawful cause. Upon the issues thus being formed, a hearing was held before this court- in which evidence was presented both by the petitioner and the respondent.

It is not necessary in this opinion to review the evidence. It is sufficient to state that the respondent proved that the petitioner, subsequent to his plea of guilty, committed a series of petty thefts in Oklahoma City. The petitioner admitted that at the time of his arrest he had several articles of stolen personal property in his possession.

The petitioner has wholly failed to sustain the allegations of his petition, and the petition for writ of habeas corpus is accordingly denied.

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


text:
    VIRGIL McCANN v. STATE.

      No. A-10165.
    May 27, 1942.
    (126 P. 2d 559.)
    Robert R. Rittenhouse, of Oklahoma City, for defendant.
    Mac Q. Williamson, Atty. Gen., and Lewis R. Morris, Co. Atty., of Oklahoma City, for the State.
   BAREFOOT, P. J.

Defendant, Virgil McCann, was charged in the court of common pleas of Oklahoma county with the crime of unlaAvful possession of intoxicating liquor, to wit: Fifteen (15) pints and 3/5th tax-paid whis-ky and rum, was tried before the court without a jury by agreement, convicted and sentenced to pay a fine of $50 and serve a term of 30 days in the county jail, and has appealed.

A motion to suppress the evidence for the reason that an illegal search of defendant’s premises had been made, by reason of an invalid search warrant, was heard and overruled by the court.

An appeal from the judgment rendered was perfected by filing in this court on the 20th day of October, 1941, a petition in error with the case-made attached. No briefs have been filed and no appearance for oral argument has been made.

Where a defendant appeals from the judgment and conviction, and no brief in support of the petition in error filed, and no appearance for oral argument made, this court will examine the record for jurisdictional errors, and finding no fundamental error, the judgment will be affirmed.

The only contention relied on for a reversal of this case is that the court erred in overruling the demurrer to the information and the motion to suppress the evi-dencé obtained under the search warrant.

We have carefully examined the record and do not find that the court committed error in overruling the demurrer and the motion to suppress.

The evidence revealed that the defendant was found in possession of 15 3/5ths pints of tax-paid whisky and rum at his home. He admitted that it was his. He had three or four phones in his home. A card was found and introdnced in evidence advertising and soliciting business. The phone numbers on this card were identical with the numbers of his phones. There was no denial on his part that the liquor found was not for illegal sale. The only defense made was that the description in the search warrant was insufficient. Evidence was heard by the court. An examination of the same convinces us that the description was sufficient to justify the issuance of the search warrant.

Finding no> error which would warrant a reversal of the judgment and sentence, and that the defendant was accorded a fair trial, it is ordered that the judgment of the court of common pleas of Oklahoma county be affirmed. Yount v. State, 74 Okla. Cr. 382, 126 P. 2d 549, and cases cited therein.

JONES and BOYLE, JJ., concur.


text:
    Ex parte CLYDE FARRAR.
    No. A-10244.
    May 27, 1942.
    (126 P. 2d 545.)

      Sid White, of Oklahoma City, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   JONES, J.

This is an original proceeding in habeas corpus wherein the petitioner, Clyde Farrar, seeks 1» obtain his release from the State Penitentiary.

The verified petition filed herein alleges, in substance, as follows:

“That on November 16, 1934, petitioner was charged, jointly with Courtney Clark Jordan, in the District Court of Oklahoma County with the crime of robbery with firearms. That on December 10, 1934, petitioner and said Jordan went to trial upon said charge before a jury with an assigned judge from another judicial district presiding. That upon conclusion of said trial, the jury returned a verdict of guilty and assessed the petitioner and said Jordan a term of twelve years in the State Penitentiary.
“That, thereafter, the said assigned judge did vacate and set said verdict aside for want of sufficient believable evidence to support same and petitioners were remanded to jail.
“That petitioner and said Jordan were each and both of them innocent of said charge, but, being unable to make bail, both continued to be incarcerated in jail until February 7, 1935. That on and prior to February 7, 1935, petitioner and said Jordan were approached by two assistant county attorneys of Oklahoma County who induced them to withdraw their pleas of not guilty and enter a plea of guilty to said charge and receive a ten-year suspended sentence.
“That petitioner and said Jordan had each been previously convicted of a felony in Oklahoma County and were not eligible for a suspended sentence, but they were uneducated and unlearned in the law and did not know they were not eligible to' receive a suspended sentence; and, acting solely on the advice and representation of the two assistant county attorneys did go before the court on February 7, 1935, and withdraw their previous pleas of not guilty and entered their plea of guilty. That the assistant county attorney recommended that each be given a sentence of ten years in the State Penitentiary, and recommended that each of said sentences be suspended. That the district judge before whom said petitioner and Jordan were taken was not the judge who had presided at the trial of said cause, but was one of the resident judges of Oklahoma County. That when he was informed by the assistant county attorney that the petitioner and said Jordan had each previously been convicted of a felony, he refused to give them a ten-year suspended sentence as recommended by the county attorney, but did sentence them to serve 25 years in the State Penitentiary and ordered said sentences suspended, and your petitioner was accordingly set at liberty.
“That thereafter on February 12, 1936, the petitioner was arrested for vagrancy and brought before the District Court of Oklahoma, County for revocation of said order of suspension of his sentence. That the petitioner at that time could have defended himself against said accusation upon which said order of suspension was sought to be revoked, but was advised by the judge that such defense would not avail him for the reason that the court had made a mistake in giving him a suspended sentence in the first instance as he was not entitled to a suspended sentence under the statute because of his former conviction. That said court did, at that time, accordingly, enter an order revoking the twenty-five year suspended sentence and your petitioner has, since that date, been incarcerated in the State Penitentiary at McAlester.”

This court issued a rule to show cause and a hearing was had upon said petition on the 6th day of May, 1942. Without detailing all of the evidence which was introduced at said hearing, it is sufficient to state that the proof on behalf of the petitioner, which was undisputed by the state, abundantly supported the allegations of his petition.

The district judge who presided at the trial of petitioner appeared before this court and testified that the petitioner and said Jordan were accused in the robbery case with taking some clothes from a prostitute in Oklahoma City. That the prosecutrix appeared to be a narcotic addict, in addition to being a prostitute, and that the story she related on the witness stand was so improbable that he could not believe the same. That he allowed the case to go to the jury thinking, the jury would acquit the petitioner and Jordan, but that the county attorney, in his closing argument to the jury, made a “vicious and inflammatory” argument, which, no doubt, caused the jury to return the verdict of guilty. That he set the ver-diet aside and would have dismissed the case had he been a resident judge of Oklahoma county.

We think the petitioner’s constitutional rights have been denied. It is undisputed that he and his codefendant, Jordan, entered their pleas of guilty after it had been represented to them that they were eligible for and would receive a ten-year suspended sentence and thus secure their release from confinement if they would enter their plea of guilty. It is easy for this court to see how these two-boys, who had remained in jail for approximately 60 days after the trial judge had set aside the verdict of guilty rendered by the jury because of the lack of sufficient believable evidence, would jump at the chance to secure their' liberty by obtaining a suspended sentence.

The statute under which the sentence was suspended is 22 O. S. 1941 § 991. Under the terms of this statute no person is eligible for a suspension of sentence “who has not, prior thereto1, borne a good reputation, or who may have been, prior thereto, convicted of any crime in any state or territory of the United States.”

The district court and county attorney were familiar with this statute. The petitioner was mistakenly informed as to his eligibility for a suspended sentence. There can be no doubt that the pleas of guilty would not have been entered if the court had informed them at the time they entered their plea that they were not eligible for a suspended sentence because of their prior conviction.

In Ex parte Robnett, 69 Okla, Cr. 235, 101 P. 2d 645, it is stated:

“Every person charged with a crime1, whether guilty or innocent, is entitled to a fair and impartial trial according to the due and orderly course of the law, and it is a duty resting upon the courts to see that the guaranty of such a trial, conferred by the laws upon every citizen, shall be upheld and sustained.
“The remedy of habeas corpus is available wherever it is found that the court in which the petitioner was tried had no jurisdiction to try him, or that in its proceedings his constitutional rights were denied.
“Under the Bill of Rights, an accused has the right to consult with counsel and to be fully advised as to his rights, and as to the consequences of his act before entering his plea to' the indictment or information.
“Where the evidence shows that the county attorney and district judge promised the defendant that if he would plead guilty to a charge then pending against him that the judgment and sentence which would be pronounced would run concurrently with a sentence which had theretofore been imposed upon the defendant, but suspended during his good behavior, and which promises were impossible to fulfill by the court for the reason the court was without authority to provide that said sentences should run concurrently, and where the evidence further shows that the defendant was without the advice of counsel and would not have entered his plea except for the representations made by the trial judge and county attorney, this court on a habeas corpus proceeding may inquire into the proceedings and order the defendant discharged from custody or vacate the judgment and remand the same to- the trial court for further proceedings thereon.”

In Howington v. State, 30 Okla. Cr. 243, 235 P. 931, this court held:

“A plea of guilty should be entirely voluntary, and should be made by one competent to know the consequences thereof, and should not be accepted until after the defendant has been fully advised by the court of his rights and the consequences of his plea.”

The pleas of guilty entered by petitioner and Jordan were induced by promises which could not lawfully be carried into execution, and we think a plea of guilty thus obtained is contrary to the spirit of the Bill of Rights of our Constitution. Under such circuumstances, it is our opinion that the judgment and sentence pronounced in cause numbered 9867 in the district court of Oklahoma county is void and that the petitioner, Clyde Farrar, is unlawfully restrained of his liberty and imprisoned by reason thereof without due process of law.

It is therefore ordered that the judgment and sentence pronounced in cause numbered 9867 in the district court in and for Oklahoma county, :State of Oklahoma, so far as it affects Clyde Farrar, be and the same isi hereby vacated and set aside.

It is further ordered that the writ of habeas corpus as prayed be issued, and that the warden of the State Penitentiary at McAlester, Okla., be and is hereby commanded forthwith to deliver into the custody of the sheriff of Oklahoma county, Okla., the petitioner, Clyde Farrar.

It is further ordered that the sheriff of Oklahoma county, Okla., hold the said Clyde Farrar pending the disposition of the crime alleged against him in cause numbered 9867 in the district court of Oklahoma county, or until he is discharged by the making of bail, or otherwise, in accordance with the law as provided in such cases.

BAREFOOT, P. J., and DOYLE, J., concur.


author: JONES. J.

text:
    Ex parte COURTNEY CLARK JORDAN.
    No. A-10245.
    May 27, 1942.
    (126 P. 2d 548.)

      Sid White, of Oklahoma City, for petitioner.
    Mac Q. Williamson, Atty. Oen., and Sam H. Latti-more, Asst. Atty. Oen., for respondent.
   JONES. J.

This is a companion case to the case of Ex parte Clyde Farrar, 74 Okla. Cr. 390, 126 P. 2d 545, this day decided. For a full statement of the facts and the law applicable to the instant case, reference is: made to that case. All that is said in the disposition of the Clyde Farrar case applies equally to' the case of Courtney Clark Jordan, petitioner herein.

It is therefore ordered that the judgment and sentence pronounced in cause numbered .9867 in the district court in and for Oklahoma county, State of Oklahoma, so far as it affects the petitioner, Courtney Clark Jordan, be and the same is hereby vacated and set aside.

It is further ordered that the writ of habeas corpus as prayed be issued, and that the warden of the State Penitentiary at McAlester, Okla., be and is hereby commanded forthwith to deliver into the custody of the sheriff of Oklahoma county, Okla., the petitioner, Courtney Clark Jordan.

It is further ordered that the sheriff of Oklahoma county, Okla., hold the said Courtney Clark Jordan pending the disposition of the crime alleged against him in cause numbered 9867 in the district court of Oklahoma county, or until he is discharged by the making of bail, or otherwise, in accordance with the law as provided in such cases.

BAREFOOT, P. J., and DOYLE-, J., concur.


text:
    HAROLD RICKEY v. STATE.
    No. A-9858.
    June 3, 1942.
    (126 P. 2d 753.)

      Blanton, Curtis & Blanton, of Pauls Yalley, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Harold Rickey, was convicted in the district court of Garvin county of the crime of seduction, and sentenced to serve one year in the State Penitentiary and pay a fine of $200.

The statute under which the defendant was convicted provides:

“Upon a trial * * * for having, under promise of marriage, seduced and had illicit connection with an unmarried female of previous chaste character, the defendant cannot be convicted upon testimony of the person injured unless she is corroborated by other evidence tending' to connect the defendant with the commission of the offense.” 1931 O. :S. § 3073; 22 O. S. 1941 § 744.

The' defendant admits the illicit relations had with the prosecutrix, but claims there was never any promise of marriage; while the prosecutrix testified that they had agreed to' be married and that she had submitted to his embraces because of the promise of marriage.

The acts of sexual intercourse being admitted, the sole question presented for consideration of this court is whether there has been sufficient corroboration of the testimony of the prosecutrix to the promise of marriage.

The prosecutrix testified at the time of trial that she was 20 years of age. That she started going with the defendant while they were students in Pauls Talley High School in 1936, and that they kept company continuously since that time until about April 1, 1939, at which time, the prosecutrix being in a pregnant condition, the defendant fled from his home in Pauls Valley and did not return for about six months, at which time this criminal action was instituted.

The defendant was about three years older than prose-cutrix. She testified that a few months after she and the defendant commenced going together he spoke often to her of marriage to her, and that she told him she was not old enough to marry and wanted to finish high school. That the defendant wanted her to marry him and go live with his family. That she agreed to marry the defendant as quickly as she finished high school. That they had sexual intercourse together in 1937 and continued such relations at various periods of time until she became pregnant in October, 1938'. That on Thanksgiving Day in 1938, after she had become pregnant, she ate dinner at defendant’s home with his family, they went to Ard-more to a football game that afternoon, and she returned to his home and ate supper with him that night. That they fixed the marriage definitely for January 10th at Ada, Okla., but that defendant got mad at her because she did not eat Christmas dinner at his house with him and refused to go- ahead with the marriage on that date. That defendant brought her some medicine to take for the .purpose of procuring an abortion, and just before defendant fled, about April 1st, he gave her $25 and told her to- go to Oklahoma City and procure an abortion. That in the month of July a girl baby was born to her and that the defendant, Harold Rickey, is the father of the child.

She further testified that she had never had sexual intercourse with any person other than defendant and did not go with any other person during the three years that she was going with the defendant, except for two or three months in the spring of 1938, during a “bust up” with defendant, she had some dates with a young man by the name of .Giddens.

The prosecutrix told of several gifts which she had received from defendant. Included among these were a house-coat, football sweater, wrist watch, and an engraved locket with the names “Leta and Harold” on a couple of hearts with an arrow connecting the names. The proof further showed that at one time in 1937, when prosecu-trix was confined to- hospital because of illness, the defendant visited her daily and brought her flowers on each occasion.

The father of prosecutrix testified that defendant had kept company with his daughter during the period of time related by prosecutrix. That he, together with the sheriff, went to see defendant after he learned Leta Mae was pregnant and talked to defendant; the defendant “acknowledged that he was the author of her condition.” That defendant said he was not able and did not want to- marry Leta and said he had gotten some medicine for her to cause an abortion.

Mrs. Tompkins testified that defendant spent a great deal of Ms time during 1937 and 1938, and up to February, 1939, calling on ber daughter; that he gave her many presents. That as soon as the defendant found out that witness and her husband had learned of her daughter’s pregnancy he quit coming to> their home.

James Cochran testified on behalf of defendant that he was a pal of defendant and had been on the football team with him at Pauls Valley. That he was frequently in the company of defendant and prosecutrix during the years 1937 and 1938. That he was not present when the date of January 10, 1939, was fixed for their marriage. He did not ever hear defendant ask prosecutrix to marry him, but he did hear the prosecuting witness say, many times, “Let’s get married,” but defendant did not ever, in his presence, indicate that he wanted to marry her.

Louis Ray Butler testified that he was 23 years old and had known defendant and Leta Mae Tompkins for several years. The testimony of this witness was similar to that of James Cochran.

The mother of defendant testified on direct examination that she knew of her son visiting with Leta Mae Tompkins and that she had visited at her house a few times. That neither Leta nor Harold had ever said a word to her about any contemplated marriage. However, on cross-examination, the question was asked: “Harold had told you he wanted to bring Leta Mae home and help you and marry her,” and the witness answered, “Yes, sir.” The witness further identified a letter which she had written to the prosecutrix after her son had left. In this letter she expressed sympathy for the condition of prose-cutrix. Among- other things stated in the letter appears the following: “As to his marrying, he had talked of it many times but never seriously, I thought, and as to his marrying and bringing any girl here to help me, I would positively not permit him to do such. It would not be fair to the girl.”

The defendant testified that he had been dating prose-cutrix for two- and one-half or three years; that he would go to see her two or three times a week, “sometimes more frequently and sometimes not so often.” That in 1938 prosecutrix also went with Gorneau Giddens. That in May, 1938, prosecutrix told him she was pregnant and asked him for money to procure an abortion and he gave her $17.50. That he thought she spent the money for new clothes. Defendant admitted having illicit relations with prosecutrix and admitted giving her money in April, 1939, for the purpose of procuring an abortion. Defendant specifically denied that he ever promised or intended to marry prosecutrix but stated that he left his home in April, 1939, for fear of personal violence from prosecu-trix’ folks and remained away for five and one-half or six months. He admitted giving prosecutrix the gifts which have been above enumerated, and also' a rug which he procured at the Fat Stock Show at Fort Worth, and many other lesser gifts, including flowers and candy.

Several witnesses testified to the good reputation of the defendant in the community where he resided.

This court has had occasion many times to consider cases similar to' the instant case. In Butts v. State, 12 Okla. Cr. 391, 157 P. 704, it is held:

“In a prosecution for seduction under a promise of marriage, it is not necessary that the promise should have been expressed in any set form or in any particular language. It is sufficient if language was used which implied such a promise, and was intended to convey that meaning, and was, in fact, so understood by the prosecu-trix.”

In the body of the opinion it is stated:

“Proof of facts and circumstances which usually attend an engagement of marriage is sufficient for the purpose of corroborating the testimony of the prosecutrix, and the corroboration, independent of the prosecutrix’s testimony, need only amount to proof of those circumstances usually concomitants of the main facts, and which are sufficiently strong and pertinent to satisfy the jury of the truthfulness of the prosecutrix’s testimony. In this case the carnal connection is admitted, but the promise of marriage is denied by the defendant. The prosecutrix testified positively that the defendant promised to marry her, and that by reason of his often-repeated promise to marry her he succeeded in seducing and having carnal connection with her. The corroborating circumstances relied upon by the state, independent of her testimony, consist mainly of evidence of attentions of the defendant upon the prosecutrix in the character of a suitor for a period of nearly two years', during which time the parties kept company and acted as lovers usually do. He admitted that his attentions were unremitting for a year previous to' December, 1912, when it is alleged that the offense was committed. During that interval he visited her two' or three times every week, and escorted her to church, and evinced for her such partiality by his attentions as to furnish evidence which the jury had the right to consider as bearing upon the alleged promise of marriage, and he continued to keep company with her for six months thereafter. Other circumstances are detailed in the evidence which the jury might properly regard as bearing upon the question of the alleged promise of marriage, all of which were competent in corroboration of this fact. It appears that this a case where actions speak louder than words, and the question of the sufficiency of the evidence to' establish the fact of a false promise of marriage in order to obtain her consent to sexual intercourse was for the jury.”

See, also, Cluck v. State, 9 Okla. Cr. 580, 132 P. 930; Robertson v. State, 53 Okla. Cr. 214, 9 P. 2d 963.

We have given this case very careful attention and have come to the conclusion that the actions of the defendant toward the prosecutrix corroborate her testimony, and that the sexual relations were indulged in because both parties contemplated marriage. The attention which the defendant paid to the prosecutrix while she was in the hospital, the frequent bestowal of gifts, the taking of her to his home for visits, are very strong circumstances which convince us that these two young persons were infatuated with each other. We think the record supports the conclusion that the defendant, at the time the sexual acts were commenced, actually intended to marry the prosecutrix. During the two-year period that these acts continued and which they had to wait until the prosecutrix had finished high school, something, occurred to' cause the defendant to lose the love and respect which he formerly held toward the young girl.

He is the father of her child. He sought to evade the legal and moral responsibility which was his in flight. This court places no credence at all in the attempt of the defense to inferentially show that one Griddens might possibly have been the father of the child. While, naturally, this court holds sympathy for the parties who will be affected by -the incarceration of this young man in the State Penitentiary, we can hold no sympathy toward the act which was committed. As stated in Cluck v. State, supra [9 Okla. Cr. 580, 132 P. 932] :

“There was no blacker and more deadly treachery in the heart of Judas Iscariot when he betrayed the Savior of mankind with a kiss than there is in the heart of the seducer, when in the sacred name of love he violates the body and crushes the soul of his unfortunate and trusting victim, merely to gratify his base animal passion.”

While the corroboration in this case is not what might be termed as overwhelming, it is sufficient to require the case to be submitted to tbe jury for their consideration. There is a clear conflict in the evidence, but it is a well-settled rule of this court that the jury is exclusive judge of the weight of the evidence. The defendant was ably represented and the record discloses that his counsel have not overlooked any point which might benefit his cause. A jury of local citizens who heard the evidence has spoken. No claim of passion or prejudice is presented or shown and the verdict should not be disturbed.

The judgment of the district court of Garvin county is accordingly affirmed.

BAREFOOT, P. J., and DOYLE, J., concur.


text:
    In re HANLEY ROYSTON BOOTH.
    No. A-10220.
    June 3, 1942.
    (126 P. 2d 761.)

      Bobert Burns, of Oklahoma City, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for respondent.
   JONES, J.

This is an original proceeding in habeas corpus wherein the petitioner seeks his release from the State Penitentiary.

The petitioner was convicted in the district court of Ouster county of the crime of obtaining money by false pretenses and sentenced to serve one year in the State Penitentiary. He took an appeal from that conviction to this court and the judgment was affirmed. Por a complete statement of the facts see Booth v. State, 73 Okla. Cr. 85, 118 P. 2d 274.

The verified petition alleges that after the jury had returned their verdict of guilty against the defendant, leaving the punishment to be fixed by the court, that the trial judge, in open court, postponed the pronouncement of judgment and sentence to November 16, 1937, and told the petitioner that if he would make restitution of the sum of $115, which was the sum of money petitioner had been convicted of obtaining by false pretenses, that the court would sentence the petitioner to pay a fine of $100 and the costs of the action.

That an attorney at Clinton had been employed by the prosecutrix as special prosecutor, and the court directed that the defendant pay to this special prosecutor the various sums above set forth, and that the judgment and sentence would be postponed from time to time to enable the defendant to raise this money. Various minutes, of the court proceedings are set forth in the verified petition showing continuances of the time for pronouncement of judgment and sentence upon application of defendant to> certain definite fixed periods of time. On June 21, 1938, the minute reads, as follows:

“This matter came on for hearing this 21st day of June, 1938, upon the defendant’s Motion For a New Trial, and for Judgment and Sentence; and the defendant, Han-ley Royston Booth, failed to appear, and the Court directed the issuance of a bench warrant for the arrest of said Hanley Royston Booth.”

The next minute of the court reads:

“Pursuant to the bench warrant issued herein on the 21st day of June, 1938, the defendant, Hanley Royston Booth, was brought before the Court on the 19th day of July, 1938. Upon the oral application of the defendant, Hanley Royston Booth, the ruling on Defendant’s Motion for a New Trial, and the judgment and sentence was continued until the 20th day of September, 1938.”

Later, various other postponements of the pronouncement of judgment and sentence were made by the court, until sentence was pronounced on November 21, 1939, sentencing the petitioner to one year in the State Penitentiary. The verified petition and the proof shows that petitioner paid to the special prosecutor the sum of $155, but was unable to raise the additional amount, which, under the alleged agreement, would have been necessary to have secured the imposition of a fine instead of a prison sentence. The petition further alleges that before judgment and sentence was pronounced against petitioner, the court directed the special prosecutor to' return the money which had been paid to him back to the petitioner.

It is the contention of petitioner that the court lost jurisdiction to pronounce judgment and sentence by reason of the failure of the court to pronounce judgment and sentence on June 21, 1938, or to continue the pronouncement of the judgment and sentence at that time to a definite date.

With this contention we cannot agree. It is doubtful if the court could have made an order postponing the pronouncement of the judgment and sentence to a definite date without the defendant being personally present, as this was a felony case. On that date the court did all that it was authorized to do under the facts. The defendant failed to appear for sentencing and a bench warrant was issued. It is well settled that the court may postpone the imposition of sentence as an incident to the administration of justice within its conceded powers, even after the term at which the conviction is had. Ex parte Coley, 67 Okla. Cr. 482, 94 P. 2d 968.

To sustain petitioner’s contention would place it within the poAver of every person convicted of crime to absent himself on the date that sentence is to be pronounced, and thus, through the fault of the accused, cause the court to lose jurisdiction to pronounce the sentence. This position is untenable. The authorities cited by petitioner in support of his contention are all cases where the delays in pronouncing sentence were through no fault of the accused.

The other facts stated in the petition concerning the alleged agreement with the trial court will not be considered as they are not such as are sufficient, even if true, to deprive the court of jurisdiction.

There is another reason why the petition herein will be denied. Everything set forth in the petition filed herein was in existence and known to defendant and his counsel at the time the appeal herein was filed. As was stated in the case of Ex parte Herren, 74 Okla. Cr. 154, 124 P. 2d 276, 277:

“This court will not permit an accused to appeal his judgment of conviction and speculate upon his chances of securing a reversal and then, after the judgment of conviction is affirmed, come into court in a habeas corpus proceeding and raise the same or other ground which might entitle the petitioner to a new trial or his release from custody. To- do so- would not be conducive to the efficient administration of our criminal laws. If this were not so, then a criminal case would never end, but after trial and conviction the court would be called upon to again try the issues by habeas corpus.”

For the reasons hereinabove stated, the writ is denied.

BAREFOOT, P. J., and DOYLE, J., concur.


text:
    BILL PULLINS v. STATE.
    No. A-10003.
    June 3, 1942.
    (126 P. 2d 750.)
    Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and W. W. Godlove, Co. Atty., of Law-ton, for the State.

      Burton & Harper, of Lawton, for plaintiff in error.
   BAREFOOT, P. J.

Defendant, Bill Pullins, wasl charged in the county court of Comanche county with the crime of unlawful possession of intoxicating liquor, to-wit, one-half gallon white com whisky, was tried, convicted and sentenced to pay a fine of $500 and to serve six months in the county jail, and has appealed.

For a reversal of this case, it is contended:

(1) That the evidence is insufficient to convict the defendant of the crime charged in the information.

(2) That the court failed to instruct the jury upon the fundamental principles of law involved in this case, and also' failed to’ instruct the jury on its powers and duties, and the method of arriving at a verdict.

(3) That the sentence is excessive and unreasonable.

All of these may he considered together.

This charge arose by reason of the search of defendant’s premises in the city of Lawton, by two constables. On the night of the 31st day of July, 1940, these constables were in the neighborhood of defendant’s home. It was being used as a public place for the sale of sandwiches and cold drinks. Numbers of people were seen going to and from the premises, some of them were intoxicated after coming, therefrom. They procured a search warrant and as one of the officers entered the door, someone said “Here comes the law.” The defendant was seen to grab a gallon jar and throw it into a five-gallon can of water. The officer grabbed the jar, which still contained a part of the liquid. He smelled of it and said it smelled like corn whisky. It was placed on a table and either the defendant or someone else knocked it from the table and a part of the contents was spilled. The jar was recovered and taken by the officers • to the sheriff’s office and was produced at the trial and examined by the jury. The evidence also revealed that a woman was taken from the premises in a drunken condition and others were there who had been drinking. The defendant’s place of business was near a night club, and the defendant admitted that he had been previously convicted of a violation of the prohibition laws in the federal court.

The evidence on behalf of the defendant and several parties who were present was that defendant had just opened this place of business, and that this was the first night he had operated. They all testified that he did not sell any whisky and that they did not see anybody drinking liquor there. The evidence taken as a whole was not so very strong. Very little of the liquor was recovered. The evidence was based partly upon circumstantial evidence, but was sufficient for the jury to find that the defendant had possession of the liquor with the intent to sell the same.

This case was tried just after the Oklahoma National Guard had been called into service at Ft. Sill. This fact was mentioned by the county attorney in his argument to the jury.

From an examination of the whole record, we are of the opinion that justice would be subserved by modifying this judgment and sentence to a fine of f 100 and 60 days in jail, and as so modified, the judgment and sentence of the county court of Comanche county is affirmed.

JONES and DOYLE, JJ., concur.


text:
    GOLDIE IOLA STEWART v. STATE.
    No. A-10008.
    June 10, 1942.
    (127 P. 2d 209.)

      Laynie W. Harrod, of Oklahoma City, for appellant.
    Mac Q. Willimason, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Lewis R. Morris, Co. Atty., of Oklahoma City, for the State.
   BAREFOOT, P. J.

Defendant, Goldie lola Stewart, was charged in the court of common pleas of Oklahoma county with the crime of unlawful possession of intoxicating liquor, was tried, convicted and sentenced to pay a fine of $50 and to serve a term of 30 days in jail, and has appealed.

The charges in this case are the result of the search of premises at 10 S'. Klein street in Oklahoma City, which was the home of defendant and her husband, Johnnie Stewart. This search was made by two police officers of Oklahoma City and was on the night of February 14, 1941. Each of the officers testified that defendant was present in the front part of her home at the time the search was made, and there was found a pint of corn whisky sitting on the table in the kitchen, and that one of the officers found a plant on the outside of the building in which there were 25 pints of corn whisky. A colored boy by the name of Ocie Love, who occupied a room at these premises, which was shown by the evidence to have been rented from the husband of defendant, was asleep at the time of the search. The officers, when they found the liquor, questioned Ocie Love, who- denied the ownership or possession of the liquor, and defendant also denied the possession and stated to the officers that she had just returned to her home from Cushing, Okla., where she had been visiting her mother for the past week. Her husband had gone to Cushing to get her, but had just left the house prior to the search and was not present at the time it was made. The officers informed the defendant that if she did not tell them to- whom the whisky belonged, they would take her down to the station. She borrowed money from some parties who- were at her home, and made a |20 cash bond at the police station. This bond was forfeited by her upon advice from one of the police officers. This charge was then filed against her in the court of common pleas.

After the state had closed its case, the defendant testified in her own behalf as above outlined and denied the ownership or possession of the liquor. She stated that she had returned to her home with her husband about 30 minutes before the search was made. She introduced several witnesses, including her mother, who- corroborated her testimony. She also introduced a number of witnesses who testified to- her good reputation and character. This evidence was in no- way contradicted by the state. The court did not give any charge to the jury upon the question of good character and reputation. Two witnesses testified for defendant, one who had attended her place and her chickens during the time she was in Cushing, and another who had stayed at her home, that they saw Ocie Love place the liquor in the plant where it was found. The evidence also revealed that Ocie Love was in the federal reformatory at El Eeno, where he was serving a term for a violation of the federal prohibition law. Her husband 'was also in the Enid jail, where he was serving a term for a violation of the federal liquor law. From the above statement, it is clear that the court should have sustained a motion to direct a verdict in favor of the defendant.

The general rule is that when criminal acts are committed by a married woman in the presence of her husband, she is presumed to' have acted under coercion. This rules applies to liquor law violations the same as any other law. Of course, this presumption may be overcome by evidence. This presumption is very slight and may be rebutted by slight circumstances, but there must be- some evidence to rebut it. Stewart v. State, 71 Okla. Cr. 292, 111 P. 2d 200; Davis v. State, 53 Okla. Cr. 85, 7 P. 2d 911; Sentell v. State, 61 Okla. Cr. 229, 67 P. 2d 466; Paris v. State, 66 Okla. Cr. 236, 90 P. 2d 1078.

In the instant case, the evidence of the defendant was not only not rebutted, but conclusively revealed that defendant was not guilty of the crime charged.

For the reasons above stated, the judgment and sentence of the court of common pleas of Oklahoma county is reversed, with directions to discharge the defendant.

JONES and DOYLE, JJ., concur.


text:
    STEVE MITCHELL v. STATE.
    No. A-9996.
    June 10, 1942.
    (127 P. 2d 211.)

      W. Y. Stanfield, of Ada, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Steve Mitchell, was charged in the county court of Pontotoc county with the unlawful possession of intoxicating liquor, was tried, convicted and sentenced to serve 30 days in the county jail, pay a fine of $200 and has appealed.

It is only necessary in the disposition of this case to discuss but one of the many assignments of error presented in the defendant’s brief.

It is insisted that the court erred in overruling the motion to suppress evidence presented by defendant prior to the commencement of the trial for the reason that the search warrant was not served by an officer to whom it was directed.

The search warrant was directed, “TO' any sheriff, constable, marshal or policeman in the county of Pon-totoc, and any peace officer in Pontotoc County, Oklahoma, Greeting:”

It was agreed at the hearing on the motion to suppress that the warrant was delivered to< Milo Beck, and served by him together with Buck Serán and Cliff Goldsmith. That none of these three men were officers of Pontotoc county, but all three were employed by the Division of Criminal Investigation in the Department of Public Safety at the State Capitol. No officer of Pon-totoc county was present at the time the raid was conducted and the liquor in question seized by said investigators.

This court has never had occasion to specifically pass upon the question here presented. It requires an examination of' the decisions of this court involving an interpretation of the statutes relating to the issuance and execution of search warrants together with a later statute not heretofore discussed, passed by the Oklahoma Legislature in 1939, vesting in the highway patrol and officers of the Department of Public Safety the right and power of search and seizure.

This court has many times held that a search warrant is process within the meaning of article 7, sec. 19, of the Constitution and that the search warrant must be directed and can only be seryed by a peace officer in the county in which it is issued for service. Bishop v. State, 47 Okla. Cr. 249, 288 P. 363; Eslick v. State, 70 Okla. Cr. 196, 105 P. 2d 554; Denton v. State, 62 Okla. Cr. 8, 70 P. 2d 135, 144.

The above decisions were based upon the statutes in effect at the time the decisions were rendered. Title 22, §§ 1226 and 1227, O. S. 1941, §§ 3226 and 3227, O. S. 1931; Title 37, § 84, O. S. 1941, § 2635, O. S. 1931.

The Legislature of 1939 passed an act specifically vesting in the officers of the Department of Public Safety the right and power of search and seizure. This statute provides:

“The officers and members of the State Highway Patrol and such other officers and investigators as the Commissioner of Public Safety shall designate to perform duties in the investigation and prevention of crime and the enforcement of the criminal laws of the State shall have and exercise all the powers and authority of other peace officers, including the right and power of search and seizure, but excluding the service of civil process.” Laws 1939, p. 78, § 4, Tit. 74, § 149, O. S. 1941.

It is argued by the Attorney General that since the search warrant in the instant case is directed “to the sheriff, marshal, policeman or any peace officer in Pon-totoc County” that under the statute (Tit. 74, § 149 supra) the investigators for the Department of Public Safety are peace officers and since they were in Pontotoc county at the time the raid was made that they could lawfully make the search.

We cannot concur in this line of reasoning. As was stated by Judge Barefoot in the case of Denton v. State, supra:

“It Avill thus be noted that the statute specifically states that the warrant should be directed to an officer of the county. If it is to be, then why should it not be directed to an officer of the county in which the search is to be made as the statute directs? Why should this clear provision of the statute be held to be directory? If-it is to be so held, why should this provision have been placed in the statute? If the warrant is directed to any officer in the state it would be possible for the sheriff, constable,- marshal, or policeman of one county to search the premises of a distant county, a people who had not elected him to office and to whom he owed no obligation.
“In our opinion, this was the very reason that caused the Legislature of this state to enact this statute directing that the search warrant should be directed to an officer of the county where the search was to be made. It is not sufficient to- say that the warrant was executed by a proper officer, as in the instant case. All of the authorities hold that the warrant should be executed by the officer to whom it is directed.”

Our Constitution (article 2, section 30) specifically prohibits unreasonable searches and seizures. The courts of this state and the federal courts, in their construction ’ of a similar provision of our Federal Constitution, Amendment 4, have uniformly held that any law which seeks to limit these sacred rights protected by the Constitution should be strictly construed and that a search warrant should be executed only in the manner and form as provided by the statute.

This court intends to give full effect to the legislative enactment conferring the right of search and seizure on state investigators 'and highway patrolmen in certain instances, hut it will not by inference extend the right of an investigator or patrolman to make such search and seizure where the warrant is not specifically directed to them.

The warrant as directed in the case herein could only be served by an officer of Pontotoc county or if an officer of Pontotoc county to whom the writ is directed was present and required it, under the statute, the investigators could have assisted in the search.

The search warrant herein could have lawfully been served by the man who conducted the search if the same had been directed to “Milo Beck” or “Milo Beck, a state peace officer” or “Milo Beck, investigator appointed by Commissioner of Public Safety.” Any of these three designations would have been sufficient.

It is significant that the search warrant herein was not served on the day it was issued, but six days thereafter and in the absence of a specific direction in the search warrant authorizing the investigators above named to make this search and seizure, we hold that they are without such authority.

For the reasons above stated, it is our opinion that the county court should have sustained defendant’s motion to suppress the evidence and the case is accordingly reversed with instructions to discharge the defendant.

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


author: J ONES, J.

text:
    STEVE MITCHELL v. STATE.
    No. A-10016.
    June 10, 1942.
    (127 P. 2d 213.)
    W. V. Stanfield, of Ada, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen. and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   J ONES, J.

The defendant, Steve Mitchell, was charged in the county court of Pontotoc county with the crime of unlawful transportation of intoxicating liquor, was tried, convicted and sentenced to serve 30 days in the county jail and to pay a fine of $250, from which judgment and sentence he has appealed to this court.

It is first contended that the court erred in overruling defendant’s motion to suppress the evidence for the reason that the search of defendant’s automobile and seizure of the liquor therein contained was unlawful.

In support of the motion to suppress, the defendant introduced the evidence of the officer who' made the arrest. This officer testified that together with other enforcement officers, he went out to the Broadway Tourist Camp and Filling Station, and that while the other officers were searching said premises, he remained outside of the buildings and at the edge of the driveway in front of the tourist cabins. That while he was standing there, a car drove up and stopped, that he walked toward the car, turned his flashlight on the driver and recognized the defendant, Steve Mitchell.' That he spoke to' the defendant and asked if he had any whisky and the defendant replied that he did. That the officer then looked through the glass in the rear door and saw a large quantity of Avhisky lying loose on the floor, some of it was covered and some of it was exposed showing the green bonded stamps which had been placed on the bottles, also the name of the brand of liquor; thereupon he arrested defendant, seized the whisky which he had seen and which constituted 56 or 57 pints. He was positive that he could readily see by the aid of the flashlight the whisky seals and federal stamps which were in plain sight in the back end of the car. On cross-examination, he stated that he did not stop the car, that it stopped voluntarily, and that he walked up to the car to see who the occupants were and he made no attempt to' arrest defendant prior to the time defendant informed him he had whisky in.the car and he had seen the whisky in the automobile. That he did not have a search warrant or warrant for arrest of defendant at the time the seizure was made.

The defendant testified on the motion to suppress but not at the trial. His testimony was that on the night in question he drive in at the Broadway Courts, that the officer stepped out on the driveway with a flashlight, and he recognized him and stopped his automobile. That the officer stepped up to the car and asked his name and he told him. That the officer asked for the car key and when defendant got ont of tbe automobile, tbe officer searched him. Defendant denied that be told the officer there was liquor in tbe car. Defendant testified that tbe officer took him in tbe bouse and be did not know whether tbe officer ever looked in bis automobile. Defendant admitted that be bad 57 pints of whisky in bis car, and that be bad turned in at tbe place for tbe purpose of stopping and seeing Barton Cox who was in charge of tbe place.

This evidence was clearly conflicting. Tbe testimony of tbe officer, if true, was sufficient to show a violation of tbe criminal law in bis presence. This conflicting testimony raised a question for determination of tbe trial court in tbe bearing on tbe motion to suppress. In such cases it is tbe rule of this court that tbe judgment of tbe trial court will not be disturbed where there is competent evidence reasonably tending to support bis judgment.

Under tbe testimony of tbe officer, the defendant admitted a violation of tbe criminal law. Furthermore, the liquor which was seized, under tbe testimony of tbe defendant, himself, was lying on the floor in tbe back of tbe car partially exposed. For recent cases involving a similar state of facts in which tbe judgment of conviction was affirmed see Brown v. State, 74 Okla. Cr. 246, 125 P. 2d 234; Hutchinson v. State, 74 Okla. Cr. 30, 122 P. 2d 395; Nott v. State, 70 Okla. Cr. 432, 107 P. 2d 366.

It is next contended that tbe court erred in overruling tbe defendant’s challenge for cause as to five members of tbe jury who> returned tbe verdict against defendant. Counsel for defendant states in bis brief that tbe challenge was made because these five jurors were present in the courtroom when another jury returned a verdict of guilty in another liquor case against the same defendant.

The voir dire examination of the jurors is not set forth in the record. There is nothing in the record to show that the jurors challenged heard the other verdict or heard the evidence in the other case or were in anyway prejudiced against the defendant. The chief defense presented was that the search was unlawful. There is no question about the guilt of defendant and there is nothing in the size of the verdict which was returned which would indicate prejudice. In the absence of a record sustaining the allegations urged by defendant and in the absence of a showing of prejudice, we shall not hold that the court erred in refusing to sustain the challenge for cause.

There are other questions raised in the petition in error but they are not of sufficient importance to merit a discussion.

For the reasons herein above given, the judgment of the county court of Pontotoc county is affirmed.

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


text:
    LESTER HERREN v. STATE.
    No. A-10049.
    June 17, 1942.
    (127 P. 2d 215.)

      Matbers & Matbers, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

Tbe defendant, Lester Herren, was charged with Earl Herren, Walter Brady, and others, with tbe crime of burglary, in the district court of Johnston county. Tbe accused were separately tried; tbe defendant Lester Herren was convicted and sentenced to serve four years in tbe State Penitentiary, and has appealed.

Counsel for defendant in their brief have presented four assignments of error: First, the evidence was insufficient to sustain tbe verdict; second, the court erred in refusing to give certain instructions requested by defendant ; third, error of the court in admitting in evidence, over the objection of the defendant, certain of the stolen articles recovered at Lee Herren’s and Earl Herren’s; fourth, improper argument on the part of the prosecution which allegedly prejudiced the rights of the defendant.

As to the first assignment of error a careful review of the record discloses the following facts established by the prosecution:

Willie Holmes owned and operated a general mercantile store at Pontotoc in Johnston county, Oklahoma-On the night of the 26th of October; 1939, his store was broken into and entered and many articles of merchandise, totaling in value about $500, were taken. Latex*, a part of this merchandise was located at the store of Lee Herren, an uncle of defendant, and another large part thereof at Earl Herren’s place, who was also an uncle of defendant. These articles which were recovered were positively identified by various cost marks and other means of identification on said goods.

The proof by several witnesses further showed that on the afternoon of October 26th a dark-colored sedan automobile in which Earl Herren, defendant Lester Hela-ren, and Walter Brady were riding stopped in front of the Holmes store; Walter Brady entered the Holmes store, purchased a bottle of soda-pop, left the store, re-entered the automobile, and drove off with the defendant and Earl Herren.

Tildie Greenway testified that in October, 1939, she was the housekeeper for Mrs. Lee Herren. That she saw Earl Herren, Lester Herren and Walter Brady at Lee Herren’s early in the morning of October 27th. They were in a dark automobile which was piled with merchandise. The three men came into Lee Herren’s house and lay down on the bed. Ida Herren, daughter of Lee Her-ren, came in and, in the presence of the witness, told the three men to get off the bed so she conld make up the bed, and Earl Herren there stated to' Ida Herren, in the presence of the witness and Lester Herren and Walter Brady, that he had been up> all night and was dead-tired. The witness saw some shirts and stockings and several boxes and sacks of merchandise piled in the car. A box of the stockings was taken out of the car and into the house, where the stockings were removed and laid across the bed.

An Oklahoma City policeman testified that he arrested defendant in Oklahoma City and found among, his effects a pair of Star Brand shoes. That he returned defendant and the shoes to Johnston county. Willie Holmes identified the shoes as a pair which were taken from his store in the burglary.

The undersheriff of Johnston county testified that he made an investigation of the premises at the Holmes store the morning after the burglary. In the building he found a piece of mud with the imprint of a shoe heel plainly imbedded therein and called for an officer from Carter county to come over and take a picture of the imprint. When Lester Herren was returned to Johnston county, witness removed defendant’s shoes and delivered them to the officer of Carter county for the purpose of comparison with the heel print which was shown in the mud found in the Holmes store.

Dick Rabun testified that he was an officer of Carter county and experienced in taking pictures and making impressions of fingerprints, footprints and tracks of various kinds. He identified a picture taken of a heel print found in mud in the Holmes store, and stated that in his opinion the mud came from the heel of the shoe which came off from the heel of one of Lester Herren’s shoes or “off a heel of a shoe identical to that one.”

The defendant offered no testimony.

A reading of this record shows that there is abundant evidence to connect defendant with the commission of the burglary. He was seen at the store building just a few hours before the burglary was committed, tracks which were left at the building by the burglars were identified as being made by him, a part of the stolen goods was identified as being, found in his possession, and it is shown that he was with Earl Herren at Lee Herren’s place of business where a large part of the stolen property was recovered.

It is well settled by the numerous decisions of this court that where there is evidence in the record from which the jury could legitimately conclude that defendant was guilty of the crime charged, the conviction will not- be set aside because of the alleged insufficiency of the evidence. The evidence here, though circumstantial in its nature, was abundantly sufficient to sustain the conviction.

Defendant complains of the refusal of the court to give a requested instruction of defendant. This question is not properly before us for the reason that neither in the motion for a new trial nor in the petition in error filed in this court was this question ever raised. The question is not jurisdictional in its nature.

In the case of Ballew et al. v. State, 55 Okla. Cr. 247, 28 P. 2d 993, it is stated:

“Only those questions which were raised in the trial court and an adverse ruling thereon, exceptions taken, and then incorporated in a motion for new trial, and assigned as error in the petition in error, will be considered on appeal, except that jurisdictional questions may be raised at any step of the case.”

See, also, Mobbs v. State, 52 Okla. Cr. 64, 2 P. 2d 974; Langley v. State, 53 Okla. Cr. 401, 12 P. 2d 254; Ellis v. State, 51 Okla. Cr. 449, 2 P. 2d 282.

There is no merit to the third assignment of error. The defendant was seen in company with Earl Herren jnst preceding and just after the burglary was committed. They were at Lee Herren’s place early the next morning with a carload of merchandise. A sufficient predicate had been laid for the introduction in evidence of the goods found in Lee Herren’s and also in Earl Herren’s place. Those exhibits were admissible as circumstances in connection with the commission of the crime which' might tend to connect the defendant with the burglary.

It is next urged that the county attorney was guilty of improper argument when he stated: “If you had been arrested and had a pair of shoes taken from you, you would personally tell where you got the shoes.” Counsel for defendant insists that this is a comment by the county attorney on the fact that the defendant did not take the witness stand. On the other hand, the state contends that the argument was legitimate and had reference to the fact that the defendant did not tell the policeman who took the shoes from him in Oklahoma City where he had obtained the shoes.

With no other statement appearing in the record and nothing to advise this court as to just what preceded the alleged objectionable remarks, we cannot say that such statement, standing alone, was error. The trial court heard the testimony of the witnesses and the argument presented by counsel and knew what had preceded the alleged objectionable remarks. In order for this court to say that the trial court erred in his ruling on this question, there must be a sufficient showing in the record to convince us that the trial court erred in his ruling. No such showing, is made.

Finding no substantial error in the record and it appearing that the defendant had a fair ’and impartial trial, the judgment of the district court of Johnston county is affirmed.

BAREFOOT, P. J., and DOYLE, J., concur.


text:
    JEAN KEENEY v. STATE.
    No. A-10002.
    June 24, 1942.
    (127 P. 2d 387.)
    Burton & Harper, of Lawton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Jean Keeney, was charged in the county court of Comanche county with the unlawful possession of intoxicating liquor; was tried, convicted and sentenced to serve 90 days in the county jail and pay a fine of $250.

It is argued that the evidence is insufficient to sustain the conviction for the reason that the defendant is a married woman and the liquor was found in her home, and the presumption is that it belonged to her husband.

The defendant did not testify and the record, as disclosed by the testimony of the officers who made the search of defendant’s home, shows that her husband had been incarcerated for some period of time in the county jail. The officers found several whisky glasses and mixers and some bottles which had been recently emptied. In a hidden place in the bathroom the liquor in question, consisting of 23 pints of various assorted liquors, was found. The officers further testified that the defendant said that the intoxciating liquor was hers and that she thought she had it hidden to where the officers would not find it.

The statute on coverture, 21 O. S. 1941 § 157, sec. 1802, O. S. 1931, provides:

“A subjection sufficient to excuse from punishment may be inferred in favor of a wife from the fact of cover-ture whenever she committed the act- charged in the presence and with the assent of her husband, * *

Said statute has been discussed several times by this court. In the recent case of O’Donnell v. State, 73 Okla. Cr. 1, 117 P. 2d 139, the various decisions were reviewed and said statute discussed at length. It is well settled that where the wife commits the act out of the presence of the husband and independent of him, the doctrine of subjection by reason of coverture will not apply.

It is further urged that the punishment assessed against defendant is excessive. We are inclined to- agree with counsel that the ends of justice will be met by modifying the punishment which has been imposed.

It is therefore ordered that the judgment and sentence of the county court of Comanche county be reduced from 90 days in the county jail and a $250 fine, to 30 days in the county jail and a $150 fine, and the judgment and sentence as thus modified is affirmed.

BABEFOOT, P. J., and DOYLE, J., concur.