text:
    OSCAR PAUL REYNOLDS v. STATE.
    No. A-9059.
    Oct. 2, 1936.
    (61 Pac. [2d] 269.)
    James M. Hays, Jr., for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The parties in this opinion will be referred to as they appeared in the trial court. An indictment was returned by the grand jury of Okmulgee county, in which indictment the parties were named as Louis Bingham and John Doe. This defendant, Oscar Paul Reynolds, was tried separately, and convicted of robbery with firearms and his punishment fixed at 25 years at hard labor. Motion for new trial was filed, considered, overruled, and exceptions saved.

This appeal is by transcript. The minutes of the clerk of the court are shown by the transcript, and on page 5 for the first time the name of Oscar Paul Reynolds appears. The transcript shows that on July 3, 1935, Louis Bingham appeai*ed in person and by counsel, and the defendant, Oscar Paul Reynolds, was present in person and by counsel; defendants arraigned in open court and Louis Bing-ham states his true name is Louis Bingham, and the court ordered the clerk to correct the name. Each defendant waived the reading of the indictment and copies served; each defendant demanded severance, which was granted; each defendant took 24 hours to plead. The state elects to try Louis Bingham first

On the 5th day of July, 1935, the defendant, Oscar Paul Reynolds, filed his motion to quash the indictment, and on the 6th day of July, 1935, the defendant, Reynolds, filed an amended motion to quash the indictment, which amendment was assigned for hearing July 8, 1935, at 1 o’clock p. m., and the hearing was passed until July 9, 1935, at 9 o’clock a. m.

The transcript further shows that the hearing on the motion and amended motion to quash the indictment came up for trial on July 11, 1935. Testimony of Fred E. Brown, who was the only witness testifying before the grand jury, was called by tbe defendant, and testified in substance:

“My name is Fred E. Brown; I was before the grand jury and gave evidence in two cases; I was called there concerning Oscar Paul Reynolds; I did not testify as to any particular name, I described the other party that was in the kidnapping; I did not know the defendant’s name. The grand jury inquired into the question of my being high-jacked on March 20,1934; I don’t know whether I can give the evidence exactly as I gave it to the grand jury; I described the kidnapping as it took place; I identified one of the fellows, but did not get to see the other one, yet I just described him as I pictured him to be; they had not picked the other one up and I could not make any identification of him; as near as I could tell he was around five feet eight inches tall, and weighed about 150 to 160 pounds, and was around 29 years old; I might have told them what kind of clothes he had on; he had on a jacket, a light hat, and dark pair of pants; I described how he held the gun on me; he held the gun on me until we got on the other side of the Barnsdall plant; from the description I gave I could not positively stick my finger at him and say it was him.”

On cross-examination witness stated:

“I had been high-jacked; there were two of them, I described both parties as near as I could to the grand jury. Previous to the time I testified I had observed one of the defendants over at Okemah, in the sheriff’s office; I explained this to the grand jury. As near as I could remember the way I told it, I may vary, we walked in to the sheriff’s office and I expected to find the one I was looking for, but there were 12 men in there, and when I looked around I found one I knew to be the driver of the car, and told the sheriff it was the one in the window, and so it was definite, I had him pictured, I had seen him plain enough not to be mistaken about it; I told the grand jury this fellow drove the car and took my money out of my pocket. The description of the other fellow that bad not been arrested I gave tbe grand jury; I told tbe grand jury I beard one of tbe fellows was named Louis Bingbam. I gave a full description of one of tbe high-jackers, and the other I identified and stated be participated in tbe crime.
“Before tbe grand jury I described and identified Louis Bingbam; the other one I gave a description of, if I remember all right; be was not apprehended at that time; I told the grand jury they high-jacked me out of |12 in money; they had me get out of the car and went through my pockets and made a thorough search, the one that held the gun on me that has been described as Reynolds; Bingham was driving; he never put a gun on me. I can identify Oscar Paul Reynolds as looking like the description I gave of him. The reason I could not positively identify him is he kept his head down, with his hat over his eyes, and had the gun in my ribs; I would say he looks near enough to be him; I could not say positively that Reynolds was the man. I gave the grand jury all the description I possibly could, and the description I gave the grand jury is the description that fits the defendant Oscar Paul Reynolds.”

The foregoing is the substance of the testimony of the only witness examined by the defendant.

The motion and amended motion to quash the indictment was overruled, and defendant excepted.

The defendant in his brief insists his amended motion to quash the indictment should have been sustained by the trial court, and in support of his contention that his amended motion to quash should have been sustained, relies upon Hayes v. State, 3 Okla. Cr. 1, 103 Pac. 1061. An examination of the Hayes Case shows that the defendant had his counsel file a motion to set aside the indictment on the ground that it was not found by a legal grand jury, and that no witnesses appeared before and no evidence of any kind was returned, and that the court bad no" jurisdiction of tbe defendant, and made application to tbe trial court to' set a time for taking of testimony in support of bis motion, and tbe trial court refused to set a time for tbe defendant to present bis motion to quash tbe indictment, and this court held that it was reversible error for the court to refuse to let the defendant present bis testimony in support of bis motion to quash tbe indictment.

In Estill v. State, 48 Okla. Cr. 99, 277 Pac. 256, in tbe second paragraph of tbe syllabus, this court said:

“Where defendant’s motion to set aside tbe indictment, and his application to take testimony in support thereof, is in proper form, it presented a right to offer tbe proof in support of said motion and tbe right to be heard thereon. It was reversible error for tbe court to refuse to permit tbe defendant to examine the witnesses offered as to what evidence they gave, or, in tbe case of grand jurors, what evidence was heard by tbe grand jury.”

It will be seen from Hayes and Estill Cases, supra, that this court held it reversible error for tbe trial court to refuse to allow testimony to be offered in support of the motion to quash the indictment. Tbe facts in these cases relied on by the defendant are not the same as- in this case, for tbe reason that tbe transcript of tbe record shows when tbe defendant filed bis motion to quash the indictment, a date was fixed by tbe court for bearing tbe motion, and testimony was taken in support of tbe same. At tbe conclusion of the testimony and argument of counsel the motion to quash tbe indictment was denied by tbe court on tbe ground that tbe testimony offered in support of tbe same showed tbe grand jury bad testimony before it which authorized the return of tbe indictment against the party designated in tbe indictment as John Doe, but later on in the proceedings it was disclosed bis name was Oscar Paul Reynolds. The court did not err in overruling the motion of tbe defendant to quash the indictment.

The next and only question presented to this court by the transcript is the question as to whether or not the defendant had due process of law.. As shown by the transcript, the defendant was arraigned on July 5, 1935, and took time to plead; defendant then filed his motion to quash the indictment and on the 6th day of July, 1935, filed his amended motion to quash the indictment; the hearing on the motion was passed from time to time until July 11, 1935, when the same was heard, overruled, and defendant excepted. The record also shows that on July 11, 1935, the county attorney served a list of witnesses to be used against him in the trial of the case on. the defendant; the case was called for trial on the 15th day of July, 1935, and the transcript shows that Oscar Paul Reynolds was arraigned, entered his plea of not guilty, and objected to’ going to trial at once, for the reason that the issues were not joined 10 days prior to the day the case was called for trial. The defendant complains that he did not have time after he entered his plea of not guilty to prepare for trial, and in his motion for a continuance on that ground he states that Louis Bingham was in the county jail of Okmulgee county, and the sheriff and jailor would not permit him to talk to Louis Bing-ham until 1:30 p. m., the day the case was set for trial. These statements do not show sufficient diligence on the part of the defendant, as the record shows he was in custody and appeared in open court and was arraigned on the 3d day of July, 1935, and took time to plead, and on the 5th day of July, 1935, filed his motion to' quash the indictment. Testimony was taken on the motion of the defendant to quash the indictment, which was overruled, and exceptions saved.

The transcript further shows that on the 11th day of July, 1935, the defendant was served with a list of the witnesses, together with their post office and street address, that Avould be used against him in the trial of his case. The transcript further shows that on the 15th day of July, 1935, the defendant entered his plea of not guilty, the 15th of July being the day the case was set for trial.

The defendant insists that the overruling of his motion for a continuance on the ground that he did not have time to prepare for trial, and his attorney had not been able to talk with the witness Bingham, in the jail in Ok-mulgee county, is error requiring reversal of his case.

In Hogan v. State, 42 Okla. Cr. 188, 275 Pac. 355, in the second paragraph of the syllabus this court said:

“A person charged with crime is entitled to a reasonable time under all the circumstances to procure his witnesses and prepare for trial. He is required to exercise diligence in procuring or attempting to procure his witnesses and to make necessary preparation.”

Our statute does not fix the time in criminal cases which should intervene before a case should stand for trial after arraignment and plea of not guilty. A reasonable time should be allowed. What is a reasonable time will depend on the circumstances in a particular case.

In this case the defendant was arraigned 12 days before his case was called for trial. Testimony in support of his motion to quash heard, considered, and overruled. List of witnesses served on him four days before the case was called for trial. The defendant, in his motion asking time to prepare for trial, names only one witness, Louis Bingham, who was in the county jail in Okmulgee. If, as stated by the defendant, the sheriff and jailer refused to allow his attorney to consult Bingham, a codefendant, the attorney should have applied to the court for an order requiring the sheriff and the jailor to permit the defendant’s attorney to consult with Bingham. The defendant had known for several days that Bingham was in the jail at Okmulgee, and should have exercised more diligence than the transcript shows.

Counsel for the state and the defendant proceeded as if the plea of not guilty had been entered. Under the circumstances in this case, we think the defendant had sufficient time to prepare his case for trial before a formal plea of not guilty was entered.

Finding no errors in the record warranting a reversal, the judgment of the trial court is affirmed.

EDWARDS, P. J., and DOYLE, J., concur.


source: Caselaw Access Project

author: DAVENPORT, J.

license: Public Domain

text:
    BERT NEELY v. STATE.
    No. A-9084.
    Oct. 16, 1936.
    (61 Pac. [2d] 741.)

      Brown Moore, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error in this opinion, for convenience referred to as the defendant, was convicted of having possession of a whisky still capable of manufacturing and distilling intoxicating liquor, to wit, whisky, and sentenced to pay a fine of $50 and to be imprisoned in the county jail for a period of 30 days.

The testimony in this case shows the officers of Payne county went to the home of the defendant and searched his premises; about three-quarters of a mile from defendant’s home they found an old cave in which there were some barrels and other rubbish, but it showed no evidence of having been used for some time; they then went to the barn, which was about 50 yards from the house, and in the upper story of the barn found a still covered with hay; one of the officers stated they could smell the odor of mash or whisky in this still. The testimony of the two officers was all the testimony offered by the state.

Neither the defendant nor his witnesses denied the officers found the still in the barn loft on the premises where the defendant resided. The defendant, testifying for himself, denied he had any knowledge that the still wás in the loft; the hay in the loft belonged to' the landlord and was in the barn when he moved on the place.

The defendant’s landlord, Pat Penny, testified the hay had been in the barn loft for more than a year, and was there before the defendant moved on the place. One of the officers testified he did not see any baled hay in the loft. Two boys by the name.of Dorman, who had been to the hayloft some time previous to its being searched, stated that the defendant had agreed that the neighborhood boys might have a barn dance in the loft of the barn and they were there for the purpose of moving the hay and getting ready for the dance; in moving the hay they moved this still into one corner of the barn loft and piled the hay back over it.

Earl Large, testifying for the defendant, stated he knew where the cave was on the Penny place; he was over to the Neely place one time to get the still and take it away; that he was to do this for his father, but he did not get it. The foregoing is the substance of the testimony introduced by the state and the defendant.

The defendant has assigned five errors alleged to have been committed in the trial of his case, the fifth error being:

“The court erred in overruling the motion for a new trial which was filed by the plaintiff in error.”

This assignment covers all the errors that it is necessary to consider in this case. It is disclosed by the record that there is a conflict in the testimony. The officers testifying to the finding of the still in the barn loft located on the premises the defendant occupied. They knew nothing about- how it happened to be there, and only testified as to where they found it. On the other hand, the testimony of the defendant, the owner of the farm, two Dorman boys, and Earl Large, was that the still was in the barn loft when the Dorman boys started to move the hay while preparing for a barn dance. The Large boy said the still belonged to Ms father and had been there for some time.

The defendant, in his fifth assignment, alleges misconduct of the county attorney in ashing the following questions of the witnesses testifying for the defendant, in which questions he insinuated the defendant had pleaded guilty when such was not the case. While cross-examining the witness Pat Penny, the county attorney propounded the following questions:

“Q. Did you know he had been making whisky out there?”

Which question was objected to by the defendant, and Mr. Horton, the county attorney, said:

“The testimony of the sheriff is that he did admit to having whisky out there.”

This statement was objected to by the defendant and the court sustained the objection.

“Q. Do you know when he was arraigned on this charge he first plead guilty?”

This was objected to and the objection of the defendant was sustained. In rebuttal the state attempted to contradict the witness Pat Penny, and the Dorman boys, as to there being any baled hay in the loft, and the witness would only answer that if there was any baled hay they failed to see it; they admit there was kaffir corn hay, or some other kind of hay in the loft.

It is urged by the defendant that the court erred in permitting the state in rebuttal testimony of W. F. Belt-knap, when the following questions and answers were given:

“Q. Did you make a report in this case? A. Yes, sir.”

This was objected to by the defendant, objections were overruled, and exceptions allowed.

“Q. I hand you what has been identified as Exhibit 1, and ask you to state what it is? A. That is a report on the search made at the Neely place on June 26, 1935. Q. When did you make that report? A. On the 27th of June, 1935.”

This was objected to, overruled, and exceptions allowed. It is urged by the defendant with considerable force and justification that the testimony herein complained of by the defendant deprived him of having1: a fair and impartial trial as guaranteed to him by the Constitution of the United States, and the state of Oklahoma (Const. U. S. Amend. 6; Const. Okla. art. 2, § 20). With this contention we fully agree. This court has often held that it was improper for the county attorney to propound questions to witnesses on cross-examination indicating the defendant had committed other crimes unless he follows it up by offering proof tending to establish the facts he had inquired of the witness on cross-examination, and which had been denied by the witness.

Impeaching questions should not be propounded to a witness unless they are based on facts that the interrogator intends to present in refutation of adverse answering to the questions propounded. Such line of questioning should be done in good faith and not for the purpose of prejudice or arousing suspicion of the jury against the defendant. Klaassen v. State, 39 Okla. Cr. 402, 404, 266 Pac. 495.

In Cook v. State, 36 Okla. Cr. 285, 253 Pac. 1029, 1031, the court stated:

“It is an abuse of judicial discretion to allow questions to a witness which are manifestly calculated to create prejudice in the minds of the jury against the witness, and, if he be the defendant, influence them to find against him because of such prejudice.”

In this case there can be no question but the questions propounded to the witness Penny regarding the question of the sale of whisky, and of the defendant haying first pleaded guilty to it, were asked for the purpose ■ of creating prejudice in the minds of the jury against the defendant. The county attorney knew at the time he propounded the questions, or should have known, he had no testimony to contradict the witness if he answered the questions in the negative.

It is further contended that the question about the report of the officer having made the search was improper, and was not only improper but immaterial, as there was no question raised and no dispute that the search had been made. This was offered by the state for no other purpose than to attempt to create in the minds of the jurors bias and prejudice against the defendant.

In Smith v. State, 14 Okla. Cr. 348, 171 Pac. 341, 346, this court said:

“We are of the opinion that the cross-examination objected to was improper and highly prejudicial to the defendant, and the action of the special prosecutor in asking such .questions constituted misconduct on his part. The obvious purpose and the undoubted effect of such course of cross-examination was to degrade the defendant and prejudice the minds of the jury against him, and the rulings of the trial court in permitting the same and compelling the defendant to answer such questions constitutes prejudicial error.”

In Appleby v. State, 11 Okla. Cr. 284, 146 Pac. 228, 229, this court in part said:

“The repeated asking of incompetent questions, which clearly have for their purpose the intimation of something to the jury that' is either not true or not capable of being proven if true, is wrong, and such conduct of counsel is not cured because the court sustains objections to the questions.”

Further on the court said:

“In jury trials incalculable harm is often done by counsel in asking known incompetent questions in the hearing of the jury and thereby forcing the adverse party to object to1 them also in the hearing of the jury, which manifests a fear of the incompetent questions, and gives emphasis to1 the harmful matter they are supposed to contain.”

It is true that great latitude should be allowed attorneys in cross-examining witnesses, but their questions should not contain insinuations that the defendant is guilty of some other crime.

In Watson v. State, 7 Okla. Cr. 590, 124 Pac. 1101, this court said:

“When the record discloses that counsel for the state, in the prosecution of a person charged with crime, has been guilty of conduct calculated to arouse the prejudice or passion of the jury and prevent the accused from having a fair and impartial trial, a conviction had should be set aside by the trial court, and a new trial awarded.”

There are other cases wherein this court has passed upon the question, but we do not deem it necessary to quote any more opinions. In this case it is difficult to tell just how far the jury was influenced by the questions asked by the county attorney, which questions were answered in the negative, and the county attorney offered no proof to contradict or impeach the witness. A person accused of crime is entitled to a fair and impartial trial conducted according to established principles of law, the most important of which is, the verdict of the jury should be founded only upon competent evidence. If the defendant cannot be fairly convicted, he should not be convicted at all, and to hold otherwise would provide ways and means for the conviction of the innocent.

The testimony in this case on behalf of the state fails to connect the defendant with the still found in the barn loft on the premises where he was living. The testimony of the landlord and other witnesses shows conclusively that the still had been in the barn loft for some time and belonged to another party. No officer saw the defendant exercising any ownership or possession over the still. On the contrary, the evidence shows it was not the defendant’s still, and that he had never exercised any ownership or control over it.

In view of the insufficient testimony as to the possession of the still, and because of the action of the county attorney in asking insinuating questions of the witnesses on cross-examination which tended to prejudice the minds of the jurors against the defendant, the judgment of the trial court is reversed.

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


author: DOYLE, J.

text:
    JACK BRINKLEY v. STATE.
    No. A-9091.
    Oct. 2, 1936.
    Rehearing Denied Oct. 23, 1936.
    (61 Pac. [2d] 1023.)

      B. N. Linville, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

Upon an information charging that on or about the 13'th day of October, 1934, in Caddo county, Jack Brinkley did take, steal, and carry away about nine sacks of ear corn of the value of less than $20, the personal property of Francis Engles, the defendant on his trial was found guilty and his punishment assessed at a fine of $100 and imprisonment in the county jail for 30 days. A new trial having been denied, he appeals from the judgment entered in conformity with the verdict.

Yhe only ground relied upon for a reversal of the judgment is that the evidence is not legally sufficient to support the verdict.

The evidence on the part of the state is undisputed. It shows, or tends to show, the following facts:

That on the night of the date alleged between 8 and 9 o’clock Harry Cleveland, city marshal of Hinton, on his way to Binger, a few miles south of Hinton, passed a Ford car parked near a cornfield, he stopped, looked in the car and saw a bunch of tools, wrenches, a hack saw, and a pair of cowboy boots. The back seat and upholstering were gone, there was a blanket and two gunny sacks in the car. He went to Lookeba and inquired if anybody left the car out there, then returned with two other officers, and they trailed shoe tracks up to a barn and back through a cornfield to where the car was parked. About 11 o’clock the officers again went out to make another search, and found the car was gone. A car came over the hill and they followed it on to Hinton; there they stopped it. The defendant was in the car and had on the boots that were in the parked car. He said he saw the officer when he examined the parked car; that he was with a fellow that was drunk and did not come to the car because he was afraid the officer would arrest this fellow. The next morning, the officers returned to where the car had been parked and found nine sacks of corn by the side of the fence, 200 yards south of where the car was parked; they found tracks leading from where the car was parked out into the cornfield, found a sack in the cornfield that had a shoulder strap, and found a pair of shoes down the road a couple of miles from where the car was parked. The shoes were offered in evidence; they corresponded to and fitted the tracks found near the parked car and in the cornfield.

The witness Cleveland testified that he noticed the car they were following that night slowed down near where the shoes were found.

Francis Engles testified that be lives near Lookeba; that with tbe officers he fonnd nine sacks of corn piled np by tbe roadside fence on his place; that tbe com had been pulled from tbe stalks in bis field about 50 yards from tbe fence and bad been taken from tbe stalks on 20 rows; that it was worth 75 cents a bushel. On cross-examination be stated that he did not own tbe farm; that with bis mother be was a share-crop renter, but be managed tbe place and it was his corn; that it was stacked inside tbe fence.

At the close of the evidence tbe defendant interposed a demurrer to tbe same on tbe ground that it wholly fails to support tbe allegations in tbe information and moved tbe court to instruct tbe jury to return a verdict of not guilty. Tbe same being overruled, exceptions were taken.

There was no testimony offered on tbe part of tbe defendant.

It is insisted on tbe part of the defendant that the evidence wholly failed to connect tbe defendant with tbe crime charged and that the facts and circumstances in evidence are insufficient to establish tbe commission of tbe crime charged, in that tbe com in question was not taken from tbe possession of tbe owner and no asportation is shown.

Our Penal Code defines larceny as follows:

“Larceny is the taking of personal property accomplished by fraud or stealth, and with intent to deprive another thereof.” Section 2253, St. 1931.

It is our opinion that the crime of larceny was complete Avben tbe ear corn was pulled from tbe stalks and put in tbe sacks and carried to tbe roadside fence.

The rule as stated in 36 C. J. p. 749, par. 48, is:

“To constitute an asportation or carrying away of goods it is not necessary that they should be removed from the building or yard in which they are stored or from the vehicle in which they are being transported. The act of a thief in putting an article into his pocket or into a basket Avhich he carries is an asportation, even though he never leaves the owner’s premises.”
“All that the law requires is that there should be a trespass upon the possessory right of the owner of the thing taken. Any taking, therefore, which constitutes a trespass is sufficient whether it is done forcibly, by actual trespass, or fraudulently by constructive trespass, personally or through the agency of another.” 36 C. J. 751, par. 55.

In Warnke v. State, 89 Ind. App. 683, 167 N. E. 138, the Appellate Court of Indiana held:

“Crime of larceny was complete at time chickens were taken from roost and put into sack, regardless of fact that one taking them was shot before he succeeded in removing chickens from premises, in that there was more than an intent to steal.”

In Blakley v. State, 49 Okla. Cr. 10, 292 Pac. 878, this court held:

“To constitute larceny there must be a complete severance of the chattel from the possession of the person from whom it was taken, and an assumption of actual control by the taker; and if complete control is assumed and the goods are actually carried away the least distance, it is enough, although the possession of the taker is immediately interrupted.”

Upon the record before us there is proof of circumstances from which a reasonable and logical inference arises that the defendant committed the offense charged. Altogether, we think the circumstances point to his guilt and exclude every other reasonable hypothesis, and, in the absence of any explanation by the defendant, was sufficient beyond a reasonable doubt to establish his guilt.

Prom what has been said, it follows that the judgment should be, and it accordingly is, affirmed.

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


text:
    Ex parte DAVID NOWABBI.
    No. A-9055.
    Oct. 26, 1936.
    (61 Pac. [2d] 1139.)

      Hamilton & Howard, for petitioner.
    Mac Q. Williamson, Atty. Gen., and F. M. Dudley, Asst. Atty. Gen., for respondent.
   DOYLE, J.

(after stating the facts as above). This is an application for discharge from imprisonment in the state penitentiary by writ of habeas corpus on the part of David Nowabbi. The petitioner is in the custody of the warden of the state penitentiary, under sentence of imprisonment at hard labor for life, pronounced and entered November 15, 1923, by the district court of Push-mataha county, in pursuance of the verdict of a jury finding him guilty of murder and assessing, his punishment at imprisonment in the state penitentiary for life. The information filed in said district court September 19,1923, omitting merely formal parts, charges: “That Nelson Cooper and David Nowabbi did, in Pushmataha county in the state of Oklahoma on or about the 23 day of April, 1923, commit the crime of murder in manner and form as follows, to wit: Did then and there willfully, wrongfully, and unlawfully, and feloniously, with premeditated design to effect the death of a human being, shoot and kill Davidson Houston with a certain rifle, with a premeditated design and intent to kill and murder him the said Davidson Houston, contrary to,” etc.

The judgment and sentence against petitioner upon his separate trial was on appeal to this court affirmed. See Nowabbi v. State, 31 Okla. Cr. 158, 237 Pac. 868.

It is claimed on behalf of the petitioner that the crime of murder of which he stands convicted having been committed on the Restricted Indian Allotment of the said Davidson Houston, deceased, a full-blood Choctaw Indian, the petitioner also being a full-blood Choctaw Indian, it was committed on land in the Indian country under the exclusive jurisdiction of the United States, and being a crime committed then and there in violation of the laws of the United States, the sole and exclusive jurisdiction thereof was in the United States District Court for the Eastern District of Oklahoma. “Therefore: The trial, conviction and sentence in the district court of Pushma-taha county, Oklahoma, were illegal, null and void.”

Wherefore petitioner was deprived of his liberty without due process of law, and his confinement is in contravention to the Constitution and laws of the United States.

The sixth article of the Constitution of the United States declares:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

The Tenth Amendment, thereto declares:

“The powers not delegated to' the United States by the Constitution, nor prohibited by it to' the States, are reserved to the States respectively, or to the people.”

And section 1 of article 1 of the Oklahoma Constitution declares that:

“The Constitution of the United States is the supreme law of the land.”

The language of article 6 and the aforesaid section is direct and certain, and the adjudications of the United States Supreme Court on this question are conclusive on the state courts.

By the Enabling Act of June 16, 1906, 34 Stat. 267, Congress provided for the admission of Oklahoma into the Union as a state on an equal footing with the original states. Compliance with stated conditions were made a prerequisite to the admission and these conditions were complied with. On November 13, 1907, by proclamation of the President, Oklahoma was admitted into the Union as a state with all of the powers of sovereignty, dominion, and jurisdiction which pertain to the original states, subject like them only to the Constitution of the United .States.

Several of the conditions of the Enabling Act relate to Indians and Indian lands and to the respective relations thereto of the United States and the state are as follows:

Section 1 of the Enabling Act provides:

“That nothing contained in the said Constitution shall be construed to limit or impair the rights of person or property pertaining to the Indians of said Territories (so long as such rights shall remain unextinguished) or to limit or affect the authority of the Government of the United States to' malee any law or regulation respecting such Indians, their lands, property, or other rights by treaties, agreement, law, or otherwise, which it would have been competent to make if this Act had never been passed.”

.Section 2 provides:

“That all male persons over the age of twenty-one years, who are members of any Indian nation or tribe in said Indian Territory and Oklahoma, and who have resided within the limits of said proposed state for at least six months next preceding the election, are hereby authorized to vote for and choose delegates to1 form a constitutional convention for said proposed state; and all persons qualified to vote for said delegates shall be eligible to serve as delegates.”

Section 3 provides:

“The Constitution shall be republican in form, and make no distinction in civil or political rights on account of race or color.”

Subdivision 2, § 3, requires that the Constitution shall prohibit the manufacture and sale of intoxicating liquors within those parts of the proposed state known as the Indian Territory and the Osage Indian Reservation, and within any other parts of said state which existed as Indian reservations on January 1, 1906, and shall prohibit the shipment or conveyance of such liquors from other parts of the state into the portions just described; the prohibition to continue for a period of 21 years, and thereafter until the people shall otherwise provide by constitutional amendment and proper state legislation; with a proviso for the establishment of state agencies for the sale of liquors for medicinal purposes and to bonded apothecaries, or denaturized alcohol for industrial purposes and of alcohol for scientific purposes; and with elaborate provisions for carrying the prohibition into effect and preventing any abuse of the limited privileges conferred; it being declared, at the same time, that “upon the admission of said state into the Union these provisions shall be immediately enforceable in the courts of said state.”

Subdivision 3 provides:

“That the people inhabiting said proposed state do agree and declare that they forever disclaim all right and title in or to any unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian, tribe, or nation; and that until the title to any such public land shall have been extinguished by the United States, the same shall be and remain subject to the jurisdiction, disposal, and control of the United States. That land belonging to citizens of the United States residing without the limits of said state shall never be taxed at a higher rate than the land belonging, to residents thereof; that no taxes shall be imposed by the state on lands or property belonging to' or which may hereafter be purchased by the United States or reserved for its use.”

Under the provisions of Act of July 1, 1902, 32 Stat. 641, entitled:

“An act to ratify and confirm an agreement with the Choctaw and Chickasaw tribes of Indians, and for other purposes,” the two tribes ceded and conveyed to the United States certain lands in the Chickasaw Nation, to be known as the Sulphur Springs Reservation.

Section 7 Enabling Act (see 16 U.S.C.A. § 153) in part provides:

“That nothing in this act contained shall repeal or affect any act of Congress relating to the Sulphur Springs Reservation as now defined or as may be hereafter defined or extended, or the power of the United States over it or any other lands embraced in the .State hereafter set aside by Congress as a national park, game preserve, or for the preservation of objects of archaeological or ethnological interest; and nothing contained in this act shall interfere with the rights and ownership of the United States in any land hereafter set aside by Congress as national park, game preserve, or other reservation, or in the said Snlphur Springs Eeservation, as it now is or may be hereafter defined or extended by law; but exclusive legislation, in all cases whatsoever, shall be exercised by the United States, which shall have exclusive control and jurisdiction over the same.”

The Snlphur Springs Eeservation was designated the “Platt National Park” by resolution of June 29, 1906, 34 Stat. 837.

Section 21 in part provides: That the Constitutional Convention “shall constitute the Osage Indian Eeservation a separate county, and provide that it shall remain a separate county until the lands in the Osage Indian Eeservation are allotted in severalty and until changed by the Legislature of Oklahoma.”

The Constitution of Oklahoma (article 1, § 3) declares :

“The people inhabiting the state do agree and declare that they forever disclaim all right and title in or to any unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian, tribe, or nation; and that until the title to any such public land shall have been extinguished by the United States, the same shall be and remain subject to the jurisdiction, disposal, and control of the United States. Land belonging to citizens of the United .States residing without the limits of the State shall never be taxed at a higher rate than the land belonging to residents thereof. No taxes shall be imposed by the state on lands or property belonging to or which may hereafter be purchased by the United States or reserved for its use.”

For present purposes it is admitted, but not conceded, that the homicide charged in the information was committed on a restricted Indian allotment in what was formerly the Choctaw Nation.

The question thus presented is whether the courts of the United -States or the state courts have jurisdiction to try, convict, and punish an Indian for committing- the crime of murder upon the person of another Indian, upon a restricted Indian allotment, within the boundaries of the former Choctaw Nation of the Indian Territory.

The petitioner in support of his contention that the state courts were without jurisdiction and that the offense alleged was one in violation of the laws of the United States and within the exclusive jurisdiction of the federal courts relies upon the following provisions of law:

Section 2145, Rev. Stats, (section 217, title 25, U. S. C.A.) :

“Except as to crimes the punishment of which is expressly provided for in this title, the general laws of the United States as to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country.”

And Act of March 8, 1885, 23 St. 385, c. 341, § 9, as amended Criminal Code, § 328 (section 548, title 18, U. S. C.A.) :

“All Indians committing against the person or property of another Indian or other person any of the following- crimes, namely — murder, manslaughter, rape, assault with intent to kill, assault with a dangerous weapon, arson, burglary, and larceny, within any territory of the United States, and either within or without an Indian reservation, shall be subject therefor to- the laws of such territory relating to said crimes, and shall be tried therefor in tbe same courts and in the same manner and shall be subject to the same penalties as are all other persons charged with the commission of said crimes, respectively; and the said courts are hereby given jurisdiction in all such cases. And all such Indians committing any of the above-named crimes against the person or property of another Indian or other person within the boundaries of any state of the United States, and within the limite of any Indian reservation, shall be subject to the same laws, tried in the same courts and in the same manner, and be subject to the same penalties as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States. Any Indian who shall commit the offense of rape upon any female Indian within the limits of any Indian reservation shall be imprisoned at the discretion of the court. (Mar. 3, 1885, c. 341, § 9, 23 Stat. 385; Jan. 15, 1897, c. 29, § 5, 29 Stat. 487; Mar. 4, 1909, c. 321, § 328, 35 Stat. 1151.)”

The constitutionality of this act was challenged in the case of United States v. Kagama, 118 U.S. 375, 6 S. Ct. 1109, 1110, 30 L. Ed. 228. In that case the defendant was indicted for the murder of another Indian in Humboldt county, in the state of California, within the limits of the Hoopa Valley Reservation. The Supreme Court held said act to be valid and constitutional in both of its branches.

Mr. Justice Miller, spealdng for the court, said:

“The above enactment is clearly separable into two distinct definitions of the conditions under which Indians may be punished for the same crimes as defined by the common law. The first of these is where the offense is committed within the limits of a territorial government, whether on or off an Indian reservation. In this class of cases the Indian charged with the crime shall be judged by the laws of the territory on that subject, and tried by its courts. This proposition itself is new in legislation of Congress, Avhich has heretofore only undertaken to punish an Indian who sustains the usual relation to his tribe, and the offense is committed in the Indian country, or on an Indian reservation, in exceptional cases; as where the offense was against the person or property of a white man, or is some violation of the trade and intercourse regulations imposed by Congress on the Indian tribes. It is new, because it now proposes to punish these offenses when they are committed by one Indian on the person or property of another.
“The second is where the offense is committed by one Indian against the person or property of another, within the limits of a state of the Union, but on an Indian reservation. In this case, of which the state and its tribunals would have jurisdiction if the offense was committed by a white man outside an Indian reservation, the courts of the United .States are to exercise jurisdiction as if the offense had been committed at some place within the exclusive jurisdiction of the United States. The first clause subjects all Indians, guilty of these crimes committed within the limits of a territory, to the laws of that territory, and to its courts for trial. The second, which applies solely to offenses by Indians which are committed within the limits of a state and the limits of a reservation, subjects the offenders to the laws of the United States passed for the government of places under the exclusive jurisdiction of those laws, and to trial by the courts of the United States.”

In the case of Ex parte Wilson, 140 U.S. 575, 11 S. Ct. 870, 871, 35 L. Ed. 513, the court said:

“The words ‘sole and exclusive,’ in section 2145 do not apply to the jurisdiction extended over the Indian country, but are only used in the description of the laws which are extended to it.”

Reference is made to the case of Donnelly v. U. S. (Cal.) 228 U.S. 243, 33 S. Ct. 449, 57 L. Ed. 820, Ann. Cas. 1913E, 710, holding:

“The term ‘Indian country,’ as used in U.S.Rev.Stat. § 2545 [title 25 U.S.C.A. § 215], which extended to that country certain general laws of the United States as to the punishment of crime, is not confined to lands to which the Indians retained their original right of possession, but includes a tract of land lawfully set apart for an Indian reservation out of the public domain, and not previously occupied by the Indians.”

And to the case of U. S. v. Ramsey, 271 U. S. 467, 46 S. Ct. 559, 70 L. Ed. 1039, holding:

“Land formerly a part of the Osage Indian Reservation, which is in possession under a restricted allotment of an Indian who is not authorized to' alienate it, is Indian country within the meaning of U. S. Rev. Stat., § 2145, extending the general laws of the United States to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States, to the Indian country.”

Mr. Justice Sutherland delivered the opinion as follows :

“The defendants in error, two white men, were charged by an indictment returned in court below, with the murder of one Henry Roan, a full-blood Osage Indian and a legal member of the Osage Tribe, committed ‘in Osage county, in said district, in the Indian country, and in and upon the reservation theretofore and then established by law of the United .States for the Osage Tribe of Indians, on and in a certain tract of land therein which was then and there under the exclusive jurisdiction of the United States and comprised a restricted surplus allotment, theretofore made under and according to the Act of Congress approved June 28, 1906, * * * the title to Avhich said allotment * * * was held in trust by the United States and was inalienable’ by the allottee, who had never had issued to- her a certificate of competency authorizing her to sell the allotment. . The indictment is drawn under section 2145, Rev. St. (Comp. St. § 4148 [25 U.S.C.A. § 217]), which extends the general laws of the United States as to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States, to the Indian country, with certain exceptions not material here.
“The court below sustained a demurrer to this indictment upon the ground that the allotment described in the indictment as the locus of the crime was not Indian country within the meaning of the section 2145. Thereupon, the construction of the statute upon which the indictment is drawn being, involved, the case was brought here on writ of error under the Criminal Appeals Act of March 2, 1907, c. 2564, 34 Stat. 1246 (Comp. St. § 1704 [18 U.S.C.A. § 682]).
“The authority of the United States under section 2145 to punish crimes occurring within the state of Oklahoma, not committed by or against Indians, was ended by the grant of statehood. United States v. McBratney, 104 U.S. 621, 624, 26 L. Ed. 869 [870]; Draper v. United States, 164 U.S. 240, 17 S. Ct. 107, 41 L. Ed. 419. But authority in respect of crimes committed by or against Indians continued after the admission of the state as it was before (Donnelly v. United States, 228 U.S. 243, 271, 33 S. Ct. 449, 57 L. Ed. 820 [832], Ann. Cas. 1913E, 710), in virtue of the long-settled rule that such Indians are wards of the nation, in respect of whom there is devolved upon the federal government ‘the duty of protection and with the power’ (United States v. Kagama, 118 U.S. 375, 384, 6 S. Ct. 1109, 30 L. Ed. 228 [231]). The guardianship of the United States over the Osage Indians has not been abandoned; they are still the wards of the nation (United States v. Board of Com’rs of Osage County, 251 U. S. 128, 133, 40 S. Ct. 100, 64 L.Ed. 184 [187]; United States v. Nice, 241 U. S. 591, 598, 36 S. Ct. 696, 60 L. Ed. 1192 [1195]; and it rests with Congress alone to determine when that relationship shall cease (Re Heff, 197 U. S. 488, 499, 25 S. Ct. 506, 49 L. Ed. 848 [853]; United States v. Celestine, 215 U. S. 278, 290, 30 S. Ct. 93, 54 L. Ed. 195 [199]).
“The sole question for our determination, therefore, is whether the place of the crime is Indian country within the meaning of section 2145. The place is a tract of land constituting an Indian allotment, carved out of the Osage Indian reservation and conveyed in fee to the allottee named in the indictment, subject to a restriction against alienation for a period of 25 years. That period has not elapsed, nor has the allottee ever received a certificate of competency authorizing her to sell. As pointed out in United States v. Bowling, 256 U.S. 484, 486, 41 S. Ct. 561, 65 L. Ed. 1054 [1055], there are two modes by which Indians are prevented from improvidently disposing of their allotments. One is by means of a certificate, called a trust patent, by the terms of which the government holds the land for a period of years in trust for the allottee with an agreement to convey at the end of the trust period. The other mode is to issue a patent conveying to the allot-tee the land in fee, but prohibiting its alienation for a stated period. Both have the same effect, so far as the power of alienation is concerned, but one is commonly called a trust allotment, and the other a restricted allotment. The judgment of the court below turns upon this narrow difference.
“In United States v. Pelican, 232 U. S. 442, at page 449, 34 S. Ct. 396, 58 L. Ed. 676, a case involving the murder of an Indian upon a trust allotment, this court held that trust allotments retain ‘during the trust period a distinctively Indian character, being devoted to Indian occupancy under the limitations imposed by federal legislation,’ and that they are embraced within the term ‘Indian country’ as used in section 2145. But the opinion makes it clear that the difference between a trust allotment and a restricted allotment, so far as that difference may affect the status of the allotment as Indian country, was not regarded as important. The court said:
“ ‘The explicit provision in the act of [January 30] 1897, as to allotments, we do not regard as pointing a distinction, but rather as emphasizing the intent of Congress in carrying out its policy with respect to allotments in severalty, where these have been accompanied with restrictions npon alienation or provision for trusteeship on the part of the government. * * * The allottees were permitted to enjoy a more secure tenure, and provision was made for their ultimate ownership without restrictions. But, meanwhile, the lands remained Indian lands, set apart for Indians under government care, and we are unable to find ground for the conclusion that they became other than Indian country through the distribution into separate holdings, the government retaining control.’
“The essential identity of the two kinds of allotments —so far as the question here under consideration may be affected — was recognized in the Bowling Case, where it was said [256 U. S. 484, at page 487, 41 S. Ct. 561, 65 L. Ed. 1054] that in one class as much as the other The United States possesses a supervisory control over the land and may take appropriate measures to make sure that it inures to the sole use and benefit of the allottee and his heirs throughout the original or any extended period of restriction.’ In practical effect, the control of Congress, until the expiration of the trust or the restricted period, is the same.
“Since Congress possesses the broad power of legislating for the protection of the Indians wherever they may be within the territory of the United States, the question presented is not one of power but wholly one of statutory construction. Viewed from that premise, it would be quite unreasonable to attribute to Congress an intention to extend the protection of the criminal law to an Indian upon a trust allotment and withhold it from one upon a restricted allotment, and we find nothing in the nature of the subject-matter or in the words of the statute which would justify us in applying the term ‘Indian country’ to one and not to the other.
“It follows that the judgment sustaining the demurrer to the indictment is erroneous, and must be reversed.”

Counsel for the petitioner cite United States v. Celestine, 215 U. S. 278, 30 S. Ct. 93, 97, 54 L. Ed. 195. There the Indian committed murder within the limits of the Tnlalip Indian Reservation, and the patent the Indian had received for land was within that reservation. Jursdiction was challenged upon the ground that when the offense was committed there had been allotted to Ce-lestine certain lands on the Tnlalip Indian Reservation within the Territory of Washington under the provisions of the Treaty of January 22, 1885, 12 ,Stat. 927, and that in accordance with executive order patent had been issued in May, 1885; that the Indian was then a member of the Tulalip Tribe and was a citizen of the United States, and therefore subject to the laws of the state of Washington. The court held that, although Celestine had received a patent for the land within the Tulalip Indian Reservation, and although the woman he murdered was the owner of another tract within such limits, also patented, both tracts remained within the reservation until Congress excluded them therefrom. The court also held that, although Celestine was made a citizen of the United States and of the state of Washington, it did not follow that the United States lost jurisdiction over him for offenses committed within the limits of the reservation.

Mr. Justice Brewer, delivering the opinion of the court, in conclusion said:

“Notwithstanding the gift of citizenship, both the defendant and the murdered woman remained Indians by race, and the crime was committed by one Indian upon the person of another, and within the limits of a reservation. Bearing in mind the rule that the legislation of Congress is to be construed in the interest of the Indian, it may fairly be held that the statute does not contemplate a surrender of jurisdiction over an offense committed by one Indian upon the person of another Indian within the limits of a reservation; a,t any rate, it cannot be said to be clear that Congress intended, by the mere grant of citizenship, to renounce entirely its jurisdiction over the individual members of this dependent race. There is not in this case in terms a subjection of the individual Indian to- the laws, both civil and criminal, of the state; no' grant to him of the benefit of those laws; no denial of the personal jurisdiction of the United States.
“The act of May 8, 1906 (84 Stat. at L. 182, chap. 2348 [25 U.S.C.A. § 349]), extending to the expiration of the trust period the time when the allottees of the act of 1887 shall be subject to state laws, is worthy of note as suggesting that Congress, in granting full rights of citizenship to Indians, believed that it had been hasty.”

In their brief in support of the petition, counsel say:

“In the case of Ex parte Van Moore (D.C.) 221 P. 954, 970, the court considered an almost identical set of facts as is disclosed by the case at bar. Moore had been convicted in the state court of South Dakota for the crime of murder; sentenced to life imprisonment. The murder was committed on the allotment of an Indian, Walking Eagle, and within the boundaries of the Great reservation of the Sioux Nation; and had been confined in the state penitentiary of South Dakota for apparently about as long as Nowabbi had been confined in the state penitentiary at McAlester. A petition for writ of habeas corpus was filed on September 24, 1914, and alleged that he had been confined in the penitentiary on a life sentence from the state court, from the 12th of July, 1900. The federal court granted the writ and ordered the defendant released, over the contention of the Attorney Gen eral that the state court had jurisdiction and the federal court did not. The allotment on which this crime was committed was a trust patent, as distinguished from a restricted allotment. The court reviews most of the cases that we have quoted from above, and the court said:
“ 'The word “reservation” is not used. The provision is not made that the Indian “reservation,” but the Indian “lands,” shall remain, etc., and the lands are not limited to those of an Indian tribe, bnt include also those that are held or owned by any Indian.
“ ‘It is manifest that Indian lands, or the lands of an Indian within a, reservation or on the public domain, all come in the same category, all such lands are equally Indian country, and, if so, no state court had jurisdiction to try or sentence the petitioner upon the charge of committing the crime of murder of one Indian by another on this tract of land. U. S. v. Pelican, 232 U. S. 442, 34 S. Ct. 396, 58 L. Ed. 676.’ ”

It will be observed that the decisions in the cases of U. S. v. Ramsey and Ex parte Van Moore, supra, follow the holding of the court in the Pelican Case.

In U. S. v. Pelican, 232 U. S. 442, 34 S. Ct. 396, 399, 58 L. Ed. 676, the indictment was for the murder, on August 30, 1913, of Ed Louie, a full-blood Indian and a member of the Colville tribe, committed upon the allotment of one Agnes, an Indian, said land being then and there held in trust by the United States for the said Agnes.

The indictment was based upon section 2145, Rev. Stats. (25 U.S.C.A. § 217).

A demurrer was filed upon the ground that it did not appear that the crime had been committed within the “Indian country,” and hence that the court was without jurisdiction.

The district court, holding that the Agnes allotment was not a part of “the Indian country” within the meaning. of the statute, sustained the demurrer. On writ of error, the order sustaining the demurrer was reversed.

Mr. Justice Hughes, now Chief Justice, delivered the opinion of the coprt. That portion of the opinion pertinent to the question under consideration in this case is as follows:

“It must be remembered that the fundamental consideration is the protection of a dependent people. As the court said in United States v. Rickert, 188 U. S. 432, 437, 23 S. Ct. 478, 47 L. Ed. 532, 536, where allotments had been made under the conditions provided by the act of February 8, 1887 (and it was found that the agreement with the Indians, 26 Stat. at L. 1035-1038, chap. 543, did not indicate any different relation of the United States to the allotted lands from that created or recognized by that act) : 'These Indians are yet wards of the nation, and a condition of pupilage or dependency, and have not been discharged for that condition. They occupy these lands with the consent and authority of the United States; and the holding of them by the United States under the act of 1887, and the agreement of 1889, ratified by the act of 1891, is part of the national policy by which the Indians are to be maintained as well as prepared for assuming the habits of civilized life, and ultimately the privileges of citizenship.’
“It is true that by § 6 of the act of 1887 [25 U.S.C.A. § 349 note] it Avas provided that upon the completion of the allotments and the patenting of the lands to the al-lottees under that act, every allottee should 'have the benefit of and be subject to the laws, both civil and criminal, of the state or territory’ in which he resided. See Re Heff, 197 U. S. 488, 25 S. Ct. 506, 49 L. Ed. 848. But, by the act of May 8, 1906, chap. 2348 (34 Stat. at L. 182 [25 U.S.C.A. § 349]), Congress amended this section so as distinctly to postpone to the expiration of the trust period the subjection of allottees under that act to state laws. The first part of the section, as amended, is: 'That at the expiration of the trust period, and when the lands have been conveyed to the Indians by patent in fee, as provided in § 5 of this act, then each and every allottee shall have the benefit of and be subject to the laws, both civil and criminal, of the state or territory in which they may reside.’ And, at the same time, there was added to the section the explicit proviso: 'That until the issuance of fee-simple patents all allottees to whom trust patents shall hereafter be issued shall be subject to the exclusive jurisdiction of the United .States. We deem it to be clear that Congress had the power thus to continue that guardianship of the government (United States v. Kagama, 118 U. S. 375, 388, 384, 6 S. Ct. 1109, 30 L. Ed. 228, 231; United States v. Celestine, 215 U.S. 278, 290, 291, 30 S.Ct. 93, 54 L. Ed. 195, 199, 200; Marchie Tiger v. Western Invest. Co., 221 U. S. 286, 315, 316, 31 S. Ct. 578, 55 L. Ed. 738, 749, 750; Hallowell v. United States [221 U. S. 317, 31 S. Ct. 587, 55 L. Ed. 750], supra; Heckman v. United States, 224 U. S. 413, 437, 32 S. Ct. 424, 56 L. Ed. 820, 829; Ex parte Webb, 225 U. S. 663, 32 S. Ct. 769, 56 L. Ed. 1248, 1256; United States v. Wright, 229 U. S. 226, 237, 33 S. Ct. 630, 57 L. Ed. 1160, 1166; United States v. Sandoval, 231 U. S. 28, 46, 34 S. Ct. 1, 58 L. Ed. 107, 114; Perrin v. United States, decided this day (232 U. S. 478, 34 S. Ct. 387, 58 L. Ed. 691) ; and these provisions leave no room for doubt as to the intent of Congress with respect to the maintenance of the federal jurisdiction over the allotted lands described in the indictment.”

The holding, of the court in the Pelican Case and cases therein cited is based upon the second proviso of the Act of May 8, 1906 (25 U.S.C.A. § 349) that:

“Until the issuance of fee-simple patents all allottees to whom trust patents shall be issued shall be subject to the exclusive jurisdiction of the United States.”

At the same time, there was added another and final proviso to the section as follows (25 U.S.C.A. § 349) :

“And provided further, That the provisions of this-act shall not extend to any Indians in the former Indian Territory.”

In this case we are concerned with the construction of this final provision of said act in so far as it involves the jurisdictional question. And the question for our determination is whether the place of the crime, a restricted allotment in what was formerly the Choctaw Nation, is Indian country within the meaning of section 2145, Rev. Stats. (25 U.S.C.A. § 217). In all of the cases cited hy counsel in support of their contention that the allotment of the deceased was Indian country, there is no reference made to this additional and final proviso of the Act of May 8, 1906. Under this provision the case is wholly different as regards Indians in what was formerly the Indian Territory, and Indian allotments within the lands of the Five Civilized Nations or Tribes. The scope and effect of this provision have not been settled by any of the decisions in the cases cited.

A proviso in a statute often has an effect which restricts or enlarges the scope of the entire act. The application of such provisions is not always limited to' the matters only in the section in which they appear. They some time have as much force even when attached or subjoined to a paragraph of a statute as they would if standing alone in an independent paragraph. Black Constr. and Interpretation of Laws, par. 110.

Upon consideration of the various acts of Congress, relating to the government of the Indian country, and of the decisions of the Supreme Court of the United States construing the same in connection with U. S. Rev. Stat. § 2145, and Act of March 3, 1885, reserving to the federal courts jurisdiction over certain crimes enumerated in section 9 of said act, as amended (Cr. Code, § 328 [18 U.S.C.A. § 548)] committed against the person or property of another Indian or other person, within the boundaries, of any state and within the limits of any Indian Reservation, and Act of May 8, 1906, c. 2348, second proviso (25 U.S.C.A. § 349) :

“That until the issuance of fee-simple patents all al-lottees to whom trust patents shall be issued shall be subject to the exclusive jurisdiction of the United States.”

It may be said that under this provision of said act all Indian allottees and their allotments in that part of the state of Oklahoma that was formerly Oklahoma Territory, are lands in the Indian country within the meaning of section 2145, Rev. Stat., and subject to the exclusive jurisdiction of the United States, until the issuance of fee-simple patents. And the jurisdiction of the courts of the United States over the crimes named in Act of March 3, 1885, to wit, murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny when committed on Indian reservations within the boundaries of a state on trust or restricted allotments therein, by whomsoever committed, without distinction as to race or color, is we think no longer open to discussion. It has passed beyond the stage of controversy.

The question here is not what Congress can do, but what has it done. And this extension of the exclusive jurisdiction of the United States over all allottees until the issuance of fee-simple patents, is limited by the final proviso above quoted.

It follows that the question in this case turns on the construction of this final proviso of said act, as limiting, and qualifying that which has gone before in the same section.

We think the obvious purpose of the final and explicit proviso of said act was to take the Indians in the Indian Territory out of the category of Reservation Indians. And it shows a clear and unmistakable intention on the part of Congress to limit the jurisdiction of the United .States over allotments in the Indian Territory.

Our attention has not been called to any act of Congress which reserved to the federal courts the jurisdiction to punish for the crimes enumerated in the Act of March 3, 1885, when committed within the limits of the former Indian Territory part of the state. We look in vain for authority upon the precise question here involved.

In the case of Higgins v. Brown, Judge, 20 Okla. 355, 94 Pac. 703; Id., 1 Okla. Cr. 33, 94 Pac. 703, the Supreme Court of Oklahoma construing sections 16 and 20 inclusive of the Enabling Act of Oklahoma, concurred in by the adoption of sections 27 and 28 of the Schedule to the Constitution, held:

“An indictment for the crime of murder, alleged to have been committed within the jurisdiction of the United States court for the Northern District of the Indian Territory, and pending in said court on the admission of the state into the Union, is cognizable in the district court of the state, as its successor, in the county in which the offense was committed.”

It appears that relator, Elmer Higgins, was on the 9th day of May, 1906, indicted in the United States court for the Northern District of the Indian Territory, at Claremore, charged with the crime of murder in having killed and murdered in said district on the 10th day of April, 1906, one John Hancock, and at the time of the admission of Oklahoma into the Union he was in the custody of the United States Marshal of said court, awaiting trial; that on December 3, 1907, he filed a petition in the United States Court for the Eastern District of Oklahoma, praying for his release and discharge, and the judge of said court upon said petition issued. an order directing the marshal to deliver the relator over to the proper officers of the district court of Rogers county. The respondents, T. L. Brown, as judge of said court refused to receive and entertain jurisdiction in said cause against the relator, and refused to permit the same to be filed and docketed and become a part of the records of said court.

His petition for writ of mandamus to issue from the Supreme Court of Oklahoma directed to the respondents requiring them to take jurisdiction was granted.

A reading of the opinion by Williams, Chief Justice, reveals that the conclusions arrived at were the result of an extended study of the various enabling acts and acts of admission of states into the Union, and the decisions of both the federal and state courts construing provisions of the same on questions of jurisdiction.

The opinion concludes as follows:

“The only other reservation as to jurisdiction in the Oklahoma enabling act is contained in the proviso' of section 7, to wit: [Quoting the same as hereinbefore set out.]
“By the same process of reasoning followed by the Supreme Court of the United States in cases of United .States v. McBratney, supra, and Draper v. United States, supra, Ave conclude that the Congress, upon the admission of Oklahoma as a state, where it has intended to except out of such state an Indian reservation, or the sole and exclusive jurisdiction over that reservation, it has done so by express words. It is not contended that the alleged crime was committed on any such excepted reservation, or in any place where the United States has the sole and exclusive jurisdiction since the admission of the state. Now, mark you the language, ‘had they been committed within a state would have been cognizable in the federal courts,’ contained in section 16, as amended March 4, 1907, of the Oklahoma enabling act. Does not that mean in a state similarly circumstanced as one with an enabling act like ours? When you consider this language in connection with section 39 of the same enabling act pertaining to Arizona and New Mexico, supra, it seems that Congress was recognizing the existing conditions and the bringing in of an organized and unorganized territory as one state, and that it was laying down the rule that if such offense had been committed after the admission of the state it would have been cognizable in the federal court, that then such federal court would have jurisdiction ; otherwise not. Any other conclusion can be reached only by reasoning against the apparent and reasonable literal meaning. * * * United States v. Kagama, 118 U. S. 375, 6 S. Ct. 1109, 30 L. Ed. 230; * * * Ward v. Race Horse, 163 U. S. 505, 16 S. Ct. 1076, 41 L. Ed. 244. * * *
“We necessarily conclude that the district court of the county of the state in which the offense was committed has jurisdiction of this offense.”

And see Vickers v. United States, 1 Okla. Cr. 452, 98 Pac. 467.

In the case of Underhill v. State, 31 Okla. Cr. 149, 237 Pac. 628, this court held:

“The courts of Oklahoma will take judicial notice of the fact that the Platt National Park was under the exclusive jurisdiction of the United States government at the time of the admission of Oklahoma into the Union, and that the jurisdiction of the United States government to punish for crimes committed within the boundaries of the Platt National Park was reserved in the act admitting Oklahoma into the Union.”

In the opinion it is said:

“The Constitution of Oklahoma acknowledges the sovereignty of the United States over the places named or referred to in the Enabling Act. The state through its legislative assembly had disclaimed any right, title, or interest in and to the lands now embraced in what is known as the Platt National Park, adjoining the city of Sulphur in the county of Murray. Section 8184, C. S. 1921 [Sec. 1225 St. 1931], effective Jan. 27, 1911.
“The laws above quoted show beyond all doubt that the legislative power of Congress is exclusive over lands; within the state of Oklahoma, set aside by Congress as. a National Park, game preserve or other reservation, and that the United States government has reserved exclusive' control and jurisdiction over the same, leaving to the state only the right to serve civil and criminal process. issued under the authority of the state, on any person amenable to the same within said Sulphur Springs Reservation, national parks, game preserves, and other reservations.
“Courts take judicial cognizance of the territorial extent of the sovereignty and jurisdiction exercised by their own government, and the courts of this state will take judicial notice of the fact that the Platt National Park is owned by the United States government, with exclusive control and jurisdiction, and that crimes committed within its boundaries are beyond the jurisdiction of the state courts.”

. Counsel for petitioner cite numerous cases involving violation of laws of the United .States prohibiting the introduction of intoxicating liquors to the Indian country and prohibiting possession of the same therein, also prohibiting traffic in such liquors with tribal Indians.

It is our opinion that this class of cases have no application to the question under consideration. The power of Congress to prohibit the introduction of intoxicating liquors into an Indian reservation and to prohibit the traffic in such liquors with tribal Indians, whether upon or off a reservation, or whether within or without the bounds of a state, does not admit of any doubt. It arises in part from the clause of the Constitution (article 1, § 8, cl. 3) investing Congress with authority “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes,” and in part from the recognized relation of Tribal Indians to the federal government.

Our conclusion is that Congress has not reserved to the federal courts the jurisdiction to punish Indians in the Indian Territory for the crimes enumerated in Act of March 3, 1885, even when committed upon a restricted Indian Allotment.

We have no doubt the criminal laws of the state apply to Indians in that part of the state that was formerly the Indian Territory, and that they are not subject to federal law, except in the cases where Congress has so expressly provided, as in the acts dealing with the subject of intoxicating liquors.

For the reasons stated, we hold that the jurisdiction of the state courts, as fixed by the Constitution and laws of the state, extends to the counties of that part of the state that was formerly the Indian Territory. It follows that the district court of Pushmataha county has jurisdiction of all felonious crimes committed within its borders.

We may say in passing that as courts take judicial knowledge of their own records and proceedings, we have carefully examined the record and case-made on the appeal in the case of Nowabbi v. State, supra, and while the proof shows the place of the crime to be in Pushma-taha county, we fail to find any evidence establishing or tending to establish that the crime charged was committed on a restricted Indian allotment. And furthermore, it nowhere appears in said record that the defendant, David Nowabbi, challenged either in the district court or in this court the jurisdiction of said courts. Said record fails to reveal that said petitioner had at any time raised the question or contended that the crime with which he was charged and convicted was committed on a restricted allotment and was one against the laws of the United States, within the exclusive jurisdiction of the federal courts. The question was raised and for the first time presented in his petition for writ of habeas corpus filed in this court.

For the reasons stated, the writ of habeas corpus will be denied. It is so ordered.

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


text:
    W. J. LUKER v. STATE.
    No. A-9089.
    Oct. 23, 1936.
    (62 Pac. [2d] 255.)
    J. Q. A. Harrod and Laynie W. Harrod, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State,
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of assault without justifiable or excusable cause with intent to injure, and sentenced to imprisonment in the state penitentiary for two years. Motion for new trial was filed, overruled, exceptions saved, and the defendant has appealed to this court.

The evidence in substance is as follows: B. F. Smith was owner and operator of a feed store in Olustee; the rear of the building was inclosed, and adjoining the main building and fronting, on the street was a large gate entering into the inclosure; on the night in question this gate was closed. On June 9, 1935, H. A. Savage, the sheriff of Jackson county, received information the Smith store was going to be burglarized that night; about midnight the sheriff, in company with two deputies, Rollins and Burnett, drove to Olustee, and J. L. Richards, the night watchman, went with them to the Smith building; Savage and Burnett took their position in the rear of the building within the inclosure, and Rollins and Richards took their position in weeds in a vacant lot across the street from the building, about forty-seven steps in a northwestern direction from the front door of the Smith building; Richards turned out the street light adjacent to the building and went across the street north for the purpose of turning, off another light when the shooting started, about thirty minutes after the officers had taken their positions. Rollins heard somebody walking up the road from the south, it was dark, and he could only see the dim outline of a person as they walked up the sidewalk. The parties walked up in front of the Smith building, on the sidewalk, and flashed a flashlight on the building; Richards and Rollins say they heard some kind of a noise like something had been hit or broken. Rollins raised up a little from his position, and immediately two shots were fired close together and the flash from the gun showed it was pointed toward Rollins, who at once fired three shots from his shotgun, the first shot being directed toward the man with the flashlight, and the others toward the spot from where the two shots came. ■Rollins and Richards heard the parties running away from the building. On investigation the officers found shot had struck the window in front of the building where the man with the flashlight was standing; they also found some blood and the flashlight; footprints were found at the corner of the building where some one had been standing and from which the two shots were fired. Shots from the shotgun also lodged in the corner of the building.

B. F. Smith stated: “I heard the shots; there two light shots followed by three heavy ones.” Dick Warren stated he heard two pistol shots, or revolver shots, followed by three shots. The sheriff and Deputy Burnett, who were in the rear of the building, heard the shots but did not see the parties. When the shooting was over, Sheriff Savage phoned to Altus, to the officers there, and advised them what had taken place at Olustee, and who he thought the parties were. The officers went to the home of the defendant Luker, and there found the defendant and Victor Loftin, and upon examination it was found both men were wounded, and had been shot in the back, as shown by the doctor’s testimony. They were ordered taken to the hospital.

It is further shown by the testimony that, after the defendant in this case and Loftin were placed under arrest and taken to the hospital, the car of the defendant, which was parked some distance from his home on the street, was examined and it had a flat tire.

A pistol was found in the car, which the defendant admitted was the pistol he had at Olustee, and a number of tools, some soap, and a case knife. The defendant admits he had gone to the town of Olustee, in company with Victor Loftin, on the night of the shooting; that he had been advised there was to be a poker game in the Smith building, or somewhere near there, and, as he had never been to Olustee before, he was using the flashlight to locate the Smith building, as the party advising him of the poker game told him to look for a certain advertisement of flour on the building, and they were using a flashlight to locate the Smith building in which the poker game was to be played. The defendant further states that he and Loftin parked their car two or three blocks from the building, as they had a flat, and had gone to one or more houses where they thought parties lived to secure information about the poker game and found no one at home, and they were walking down by the building and flashed their light on the building to see if they could see any one on the inside, and as they did that some one fired three shots and he drew his pistol and fired twice in the air, not trying to hit any one. The defendant states he did not fire his pistol until after he had been wounded by the shots admitted to have been fired by Deputy Rollins.

The defendant admits he had driven from Olustee to Altus on the flat, and had parked his car a short distance from his home a short time before the officers came up looking for him, and that the doctor ordered both Loftin and the defendant taken to the hospital, and goes into- detail as to the injuries received from the shots from the shotgun. He admits the pistol found in the car was the one he had used in Olustee; he also- accounts for the other tools and the soap and case knife found in the car by saying the children had the soap in the car when they had been to- Chickasha and had probably left it there, and the case knife had been used while eating a lunch and had not been taken out of the car; that he had bought the tools a few days before when he was tightening up a car for another party.

Several parties testified to the defendant’s good character while living in Greer county near the Jackson county line. There are a number of pages in the testimony of things that transpired which it is not deemed necessary to set out. The foregoing is the substance of all the testimony material to arrive at a proper opinion as to whether or not the defendant was accorded a fair and impartial trial, and as to whether or not there is sufficient evidence in the record to sustain a conviction.

Seven errors have been assigned by the defendant in which he alleges there are sufficient errors to warrant a reversal of this case. They will all be considered under the seventh assignment: “The trial court erred in overruling the motion for a new trial filed by the plaintiff in error, to which plaintiff in error excepted.”

The motion for a new trial contains all the other assignments. There is no conflict in the testimony as to the officers being at the Smith building in Olustee the night the sheriff contends the burglary was attempted. The defendant admits he was at the Smith building with the flashlight, and that the flashlight was thrown in the building, the state contending it was for the purpose of entering the building, and defendant contending it was for the purpose of trying to locate parties in a poker game. As shown by the record, information had been received by the sheriff of Jackson county that the Smith store was going to be burglarized that night, and, acting, upon that information, he had taken two of his deputies, and the town marshal of Olustee, and surrounded the building. After waiting about thirty minutes, the defendant and Victor Loftin came walking up the street, and walked up on the sidewalk in front of the Smith building, and flashed their light into the Smith building.

From this point the testimony is conflicting as to what took place at the building; the testimony of the state showing that Bollins raised up and two shots were fired, and the flash of the gun indicating it was pointed in his direction, and Bollins then fired three shots from his shotgun, and the parties ran off. The defendant contends three shots were fired before he fired his pistol twice in the air, after he had been shot, and did not try to hit any one. Later the defendant was found wounded, and the pistol he had used was found in his car, together with some tools, soap, and a case knife. The only conflict material to be settled is the question, Was the defendant at the building at the late hour of the night he says he was for the purpose of trying to locate a poker game, or had he and Victor Loftin gone there for the purpose of burglarizing the building, and did the officers fire three shots before he fired his pistol twice?

The defendant in his brief urges that his car was searched by the officers in Altus after he had returned from Olustee, without a search warrant, and that the search was unlawful and the testimony secured thereby was improperly admitted. The record shows that the admission of this testimony included some testimony as to the contents of the bottle found in the car, but afterwards withdrawn from the jury, and the jury advised not to consider the same; that by reason of the admission of the testimony of the articles found in the car he was improperly convicted, and his motion for a new trial should have been granted.

In Berg v. State, 29 Okla. Cr. 112, 233 Pac. 497, 498, in the eighth paragraph of the syllabus, this court said:

“In case of a lawful arrest, the arresting officer may take from the person arrested any instrument of crime or anything else reasonably deemed necessary to his own or the public safety, and the use of such things on the trial of the person arrested is not objectionable as obtained by unlawful search and seizure.”

In Foreman v. State, 38 Okla. Cr. 50, 259 Pac. 176, this court in the third paragraph of the syllabus said:

“Where a defendant is convicted and appeals to this court, the judgment should not be set aside or a new trial granted on account of the improper admission of evidence unless this court from an examination of the entire record is of the opinion that the error complained of has probably resulted in a miscarriage of justice, or that it constitutes a substantial violation of a constitutional or statutory right (section 2822, Comp. ,Stat 1921).” Crossman v. State, 28 Okla. Cr. 198, 230 Pac. 291; Welch v. State, 30 Okla. Cr. 330, 236 Pac. 68; Davis v. State, 30 Okla. Cr. 61, 234 Pac. 787.

The withdrawal of the evidence by the court as to the analysis of the contents of the bottle left only before the jury the question of the bottle. This court has often held that, where a defendant is convicted and appeals to this court, the judgment should not be set aside or a new trial granted on account of improper admission of evidence, unless this court from an examination of the entire record is of the opinion that the error complained of has probably resulted in the miscarriage of justice, or that it constitutes a substantial violation of a constitutional or statutory right.

After a careful examination of the record, we conclude that the admission of the evidence as to the analysis of the contents of the bottle, which evidence was afterwards withdrawn from the jury, did not result in a miscarriage of justice, or that it constitutes a substantial violation of the constitutional rights of the defendant. The defendant, in arguing the admission of the testimony of the witnesses stating in detail the articles found in the car of the defendant, after he was placed under arrest, insists that the evidence was improperly admitted because the officers were not armed with a search warrant to search the car of the defendant.

In Sallee v. State, 54 Okla. Cr. 217, 17 Pac. (2d) 520, in the first paragraph of the syllabus this court said:

“Where the officers have information that a felony has been committed, and where they have reasonable ground to believe that defendant has committed this felony, they may legally arrest him, and evidence obtained in a search of his premises after his arrest is admissible, notwithstanding defendant may have escaped from the officers shortly after his arrest.”

Prom an examination of this record it shows that the defendant was arrested by the officers at his home, and, after he was arrested and on his way to the hospital, officers searched the car of the defendant. It was not necessary for the officers to have a search warrant to search the premises of the defendant, his person, or his car after he had been placed under arrest upon the belief and information the officers had received that the defendant had committed a felony.

The next question urged by the defendant is that there is not sufficient evidence to sustain a conviction. The defendant in his argument urges that the testimony conclusively shows that the officers fired the first shots and that he was justified in firing the shots he fired as he did not know who had shot and wounded him and Lof-tin. On this conflicting evidence, the court, under proper instructions, submitted the conflict in the evidence to the jury, and the jury by its verdict found against the contention of the defendant.

In Tillery v. State, 23 Okla. Cr. 226, 214 Pac. 198, this court said:

“The verdict will not be set aside * * * where * * * there is some substantial evidence tending to support the verdict.”

The jury is the exclusive judge of the weight of the evidence, and if there is a clear conflict in the evidence, or it is such that different inferences can be drawn from it, this determination will not be interfered with unless it is clearly against the weight of the evidence or appears to have been influenced by passion or prejudice. In this case there is no indication that passion or prejudice entered into the consideration of the jury in arriving at its verdict. Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360; Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352; Evans v. State, 55 Okla. Cr. 157, 26 Pac. (2d) 767.

In Adams v. State, 54 Okla. Cr. 363, 21 Pac. (2d) 1075, in the first paragrah of the syllabus this court said:

“Conflicting issues of fact are for the sole determination of the jury. A conviction will not be disturbed on appeal because of conflicts in the evidence, if the evidence adduced reasonably tends to support the verdict and judgment.” Wagoner v. State, 60 Okla. Cr. 36, 61 Pac. (2d) 33.

The instructions of the court correctly advised the jury as to the law applicable to the facts, and the jury by its verdict found against the defendant, and this court is not inclined to disturb the verdict of the jury.

We hold there are no errors in the record warranting a reversal. The evidence is sufficient to sustain the verdict and judgment. The case is affirmed.

DOYLE, J., concurs. EDWARDS, P. J., absent, not participating.


author: PER CURIAM.

text:
    DON PASCHAL v. STATE.
    No. A-9115.
    Oct. 30, 1936.
    (62 Pac. [2d] 101.)
    Don Wilbanks, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted of the crime of embezzlement, and sentenced to be confined in the state penitentiary for a term of one year, and appeals.

The petition in error and case-made was filed in this court on April 15, 1936. No brief has been filed in support of the defendant’s assignment of errors.

A careful examination of the record fails to disclose any fundamental or prejudicial errors. The evidence is sufficient to support the verdict. The case is therefore affirmed.


text:
    CHARLES BARRETT v. STATE.
    No. A-9116.
    Oct. 30, 1936.
    (62 Pac. [2d] 101.)
    L. P. Melone, and Melone, Porter, Melone & Melone, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted of the crime of the unlawful possession of intoxicating liquor, and his punishment fixed at imprisonment in the county jail for a term of 30 days and a fine of $50, and appeals.

The petition in error and case-made was filed in this court on April 15, 1936. No brief has been filed in support of the defendant’s assignment of errors.

A careful examination of the record fails to disclose any fundamental or prejudicial errors. The evidence is sufficient to support the judgment.

The ease is therefore affirmed.


text:
    W. J. LUKER v. STATE.
    No. A-9166.
    Oct. 30, 1936.
    (62 Pac. [2d] 259.)
    J. Q. A. Harrod and Laynie W. Harrod, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, for convenience referred to as the defendant, was convicted of an attempt to commit burglary in the second, degree, and sentenced to be confined in the state penitentiary for a period of eighteen months. The record was properly saved and the defendant has appealed to this court.

This is a companion case to W. J. Luker v. State, 60 Okla. Cr. 151, 62 Pac. (2d) 255, recently decided by this court, wherein the defendant was charged with assault with intent to kill, in which the same facts as in this case are stated.

Briefly, the testimony shows that sheriff H. A. Savage, of Jackson county, received information that the B: P. Smith store in Olustee was to be burglarized on a certain night; the sheriff .took a deputy and went to Olustee, and got a deputy there and the night watchman, and went to guard the building; the sheriff and Deputy Burnett went to the back of the building and got on the inside of the inclosure; J. L. Richards and O. E. Rollins located themselves in some weeds in a vacant lot across the street in front of the building. Shortly after the parties took their places, Night Watchman Richards went up the street to turn out a street light, and in a short time some parties were heard coming along the street toward the Smith building, and stepped up on the sidewalk in front of the building, and a crash of something which sounded like glass was heard by Rollins and Richards, and a flashlight was flashed in the building, and Rollins raised up to see if he could see anything, when two shots from a pistol were fired, the flash from the pistol showing it had been pointed in the .direction of where Rollins was. Rollins then fired three shots from his shotgun and the parties ran off.

When the sheriff and his deputy heard the shots and came out from the rear of the building, the officers searched to see if they could find the parties but could not, and then examined the front of the building and found the shots from Rollins’ gun had. gone through the front of the building, the owner of the building testifying there was a hole in the glass almost large enough to put his hand through. The parties in front of the building ran off and the officers could not find them in town, and the sheriff phoned his office in Altus and advised them what had happened, and told them who he thought the parties were and to look out for them. The officers went to the home of Luker, and there found the defendant and a man by the name of Victor Loftin suffering from gunshot wounds in their back and limbs. They were taken by the officers to a hospital and a doctor waited on them and described the wounds and the number of shots that were in each of the parties.

After placing, the men under arrest and starting for the hospital, the officers stopped where the car of the defendant was parked, which car had a casing down, and in the car they found a pistol which upon examination showed that two shells in the pistol had been fired. There were also some tools and a bottle seen by the deputies as they went to the hospital, but, when they came back to the car, they failed to locate the bottle in the car, but later found it in a drain pipe, the contents of which were examined by a chemist, who testified it contained nitroglycerine.

The defendant admits the pistol was the one he had used at Olustee; admits being at the Smith building; but denies he attempted or intended to burglarize the building, saying he had been advised by parties that there was to be a poker game in Olustee, and the party telling him where the game was to be played described the Smith building, and also told him there was a sign on the building advertising flonr, and giving him the name of the flour; and further states that the tools found in the ear were bought by him to be used in repairing a car for some one a few days before the alleged burglary. The defendant says he did not fire the first shots, that they flashed the light on the Smith building for the purpose of seeing if there was any one in the building, and not with any intent of breaking into- the building and burglarizing the same, and, when they did that, some one fired the shots, and he fired his pistol twice in the air, not intending to hurt any one, and he further denies they had broken any part of the glass in the building.

There is no dispute in the testimony excepting the question as to whether or not the defendant was attempting to break into the Smith building and burglarize it, as they all agree the parties were at the building, and a number of shots were fired; the only question on that is as to who fired the first shots. The defendant admits he stopped his car within a block or two of the Smith building, and that it had a flat, and after the shooting, he drove from Olustee to Altus without fixing the flat. The foregoing is the substance of the testimony.

The defendant, in his petition in error, alleges seven errors were committed by the trial court; the seventh error is the only error it is deemed necessary to consider, which is as follows: “The trial co-urt erred in overruling plaintiff in error’s motion for a new trial, to which plaintiff in error excepted at the time.”

The motion for a new trial covers all the errors set forth in plaintiff’s petition, excepting the court erred in overruling his motion for a new trial.

The defendant, and the state, after reciting briefly the facts in this case, state they have fully discussed in their brief in the case of W. J. Luker v. State, 60 Okla. Okla. Cr. 151, 62 Pac. (2d) 255, decided by this court on October 23, 1936, this being a companion case to 60 Okla. Cr. 151, 62 Pac. (2d) 255, supra, the testimony being the same, as both crimes are alleged to have been committed at one and the same time, it is not deemed necessary to further discuss them in this case.

There are no errors in the record entitling the defendant to a reversal. He was accorded a fair and impartial trial, and the jury was correctly advised as to the law applicable to the facts. Following the holding, of the court in 60 Okla. Cr. 151, 62 Pac. (2d) 255, supra, the judgment of the trial court is affirmed.

DOYLE, J., concurs. EDWARDS, P. J., absent, not participating.


text:
    MRS. ED. BENNETT v. STATE.
    No. A-9106.
    Oct. 16, 1936.
    Rehearing Denied Nov. 6, 1936.
    (63 Pac. [2d] 771.)
    Justin Hinshaw, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted of the crime of the unlawful sale of intoxicating liquor, and her punishment fixed at a fine of $50 and 30 days’ confinement in the county jail.

A copy of the record and case-made was filed in this court on the 7th day of April, 1936. No brief has been filed in support of the defendant’s assignment of errors.

A careful examination of the record fails to disclose any fundamental or prejudicial errors. The evidence is sufficient to support the verdict. The case is therefore affirmed.