author: JONES, P. J.

text:
    Ex parte ARMOND SWAIN.
    No. A-11114.
    Jan. 12, 1949.
    (202 P. 2d 223.)

      Armond Swain, of McAlester, pro se.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for respondent.
   JONES, P. J.

This original action in habeas corpus was instituted by the petitioner, Armond Swain, for the purpose of securing his release from imprisonment in the State Penitentiary.

In the verified petition it is alleged that on April 4, 1945, the petitioner entered his plea of guilty to the crime of grand larceny in the district court of Logan county, Okla., and was sentenced to serve a term of three years imprisonment in the State Penitentiary, and at the same time and place the district court suspended the sentence of the petitioner.

The petitioner further alleges that on May 2, 1946, the petitioner enlisted in the United States Army under an agreement had with his parole advisor that if he would enlist in the United States Army it would constitute a full discharge of all his obligations and conditions under the suspended sentence; that on August 26, 1947, petitioner was discharged honorably with a medical discharge from the United States Army.

That thereafter, on February 27, 1948, the district court entered an order attempting to revoke the suspended sentence which had been granted to the defendant and in said order revoking the suspended sentence, the district court directed that petitioner be immediately committed to the State Penitentiary to serve the three year sentence pronounced against him on April 4, 1945, for the crime of grand larceny; that pursuant to the revocation of said suspended sentence, the sheriff of Logan county transported the petitioner to the penitentiary where he is now confined.

The petitioner further alleges that the trial court had lost all jurisdiction to revoke his suspended sentence and that the order revoking said suspended sentence was without authority and that his confinement in the State Penitentiary is illegal. .

At the hearing before this court, a photostatic copy of the judgment and sentence was introduced in evidence. This instrument shows that the defendant was sentenced to serve three years’ imprisonment in the State Penitentiary npon his plea of guilty to the crime of grand larceny. It was further ordered that the. sentence be suspended during the good behavior of said defendant and that said defendant be paroled to J. Wilbur Brown and J. F. Wolf. The judgment and sentence also contains these further provisions:

“It is the further order of the Court that said defendant be and he is hereby restrained from loafing in and about the town or city of Crescent, Logan County, Oklahoma, especially after 9 o’clock at night, unless specifically permitted to do so by the person to whom he is herein paroled; that said defendant be and he is hereby restrained and enjoined from attending public dances, frequenting pool halls, beer parlors, and all such places; that he is hereby restrained and enjoined from gambling, card-playing and specifically enjoined from the use of spirituous and vinous liquors.
“It is the further order of the Court that from and after the date of the parole herein provided that said defendant be- in all respects subject to the orders, admonitions and commands of the person to whom he is herein paroled. It is the further order of the Court that said defendant. report to the Judge of this Court on the second Saturday of January and on the second Saturday of July at each succeeding term during the pendency of said judgment, and prove to the satisfaction of said Judge by two citizens of said County of good reputation that said defendant has not violated any law, and has been a quiet, peaceful and law-abiding citizen.”

On January 30, 1948, the county attorney of Logan county filed a motion to set aside and revoke the order made on April 4, 1945, suspending the sentence of the defendant for the reason that defendant had been convicted in two different criminal actions filed in the county court of Logan county, and had received a sentence of 30 days imprisonment in the connty jail in each of said cases. In one of these cases, the defendant was charged with obtaining property by means of a bogus check in the sum of $4; and in the other, the defendant was charged with the offense of petit larceny, in which he was alleged to have stolen two cow hides of the approximate value of $9.40.

On February 27, 1948, the motion of -the county attorney to revoke and set aside the order suspending the! sentence of defendant came on for hearing and the order revoking the suspended sentence recites in part:

“The Court finds, and is satisfied from the evidence introduced, that. said defendant has violated the terms and conditions of the order heretofore made on the 4th day of April, 1945, and by reason thereof the Court finds that the said suspension of sentence should be set aside and the sentence carried out in full according to its terms.
“It- is therefore ordered, adjudged and decreed by the Court that the said order of this Court dated the 4th day of April, 1945, suspending the sentence of the defendant, Armón d Swain, be, and the same is hereby set aside and revoked.
“It is the further order of this Court that the Sheriff of Logan County, Oklahoma, take the defendant, Ar-mond Swain, and deliver him to the Warden of the State Penitentiary at McAlester, Oklahoma, and that the Warden receive and detain him according to the foregoing order, sentence and judgment.”

We once again emphasize that the statute, 22 O.S. 1941 §§ 991, 992, conferring the right on courts of record to suspend the sentence of a person convicted of crime does not authorize the court to treat said authority as giving them the right to pardon or parole the offender. Ex parte Boyd, 73 Okla. Cr. 441, 122 P. 2d 162.

The trial court does not have a right to enlarge upon the statute by prescribing conditions not named in the statute or by so wording the order of suspension of sentence that it could be construed as a pardon or a parole. Ex parte Banks, 74 Okla. Cr. 1, 122 P. 2d 181.

The power to grant reprieves, commutations, paroles and pardons for all offenses, except impeachment, is vested in the Governor, and any act attempting to place any of this authority in the courts would be unconstitutional. Okla. Const. art. 6, sec. 10.

The trial court in the instant case was greatly exceeding his authority when he entered an order paroling the accused to two individuals, and further providing that thereafter the accused should be subjected to the orders, admonitions, and commands of the persons to whom he was paroled.

The case of Ex parte Boyd, supra, was a test case involving the constitutionality of the act authorizing courts of record to suspend the judgment and sentence of a person convicted of crime. The constitutionality of said act was sustained by a majority of the court, with Judge Doyle vigorously dissenting. If the act is construed and treated by courts of record as authorizing them to parole offenders and to write different terms and conditions in the suspension other than those set forth in the statute, then said statute would certainly be unconstitutional as attempting to confer on courts of record a power which is vested exclusively in the Chief Executive subject to the recommendation of the pardon and parole board.

In the instant case, the trial court under the statute had the ■ legal right and accordingly did at the time of the pronouncement of the judgment and sentence enter an order suspending the execution of the sentence on certain conditions. In so far as the conditions inserted in the order were in excess of those set forth in the statute, they were not operative and were without legal force and effect.

It appears that in January, 1948, and before the three year sentence had elapsed, the defendant was guilty of committing certain acts which were a violation of the terms of the suspended sentence as set forth in the statutes, 22 O.S. 1941 §§ 991, 992, and the trial court had the authority to enter an order revoking the suspended sentence.

In Ex parte Boyd, supra [73 Okla. Cr. 441, 122 P. 2d 163], the following rules of law were adopted:

“The language of . the statute empowering court to suspend sentences is important in determining extent of court’s power, since such power did not exist at common law.
“Only those persons coming within terms of statute are eligible for suspended sentence, but they have no right to demand the same; and it may not be granted to them except at the discretion of the court.
“Where all constitutional and statutory guarantees have been observed in criminal prosecution, requirements of due process are fully satisfied, presumption of innocence is overcome, and hence suspension of sentence is not a matter of right, but purely within trial court’s discretion.
“One brought before court accused of violating conditions of suspended sentence is not entitled to benefit of counsel nor to a jury trial as a matter of right.
“When execution of a sentence is suspended, the judgment itself is not impaired or limited. The time for its execution is merely deferred, as a matter of grace, subject to being withdrawn by the court for a violation of some of the conditions named in statute.
“The revocation of a suspended sentence is a matter addressed to the sound judicial discretion of trial judge, and the hearing in connection therewith may be of a summary character.
“In habeas corpus proceeding by accused, attacking trial court’s revocation of suspended sentence, order of revocation reciting, that prisoner was present in court when hearing on accusation that conditions of suspension had been violated was held, and that court finds that defendant has violated conditions of suspended sentence, creates presumption that trial court found from facts brought to his attention that defendant had violated' conditions set forth in statute and is sufficient to sustain trial court’s action, in absence of proof that court acted -arbitrarily or through mere whim or caprice.”

From what has been hereinabove said, it is apparent that the court had authority to revoke the suspended sentence and that the commitment of the petitioner to the State Penitentiary was valid.

The writ of habeas corpus is denied.

BAREFOOT and BRETT, JJ., concur.


source: Caselaw Access Project

author: BRETT, J.

license: Public Domain

text:
    LEE JONES v. STATE.
    No. A-10918.
    Jan. 12, 1949.
    (202 P. 2d 228.)

      Hughes & Hughes, of Hobart, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

This is an appeal from the county court of Kiowa county by Lee Jones, defendant below, wherein on March 20, 1947, he was charged, tried and convicted for the crime of possession of intoxicating liquor and sentenced to pay a fine of $50 and costs and to confinement in the county jail for a period of 30 days. A motion for new trial was filed by the defendant, overruled by the court on April 26, 1947, to which the defendant excepted and from which action of the court this appeal has been perfected.

The defendant makes numerous assignments of error but it will be necessary for us to consider only one of them, to the effect that the “court erred in not sustaining the defendant’s motion to suppress the evidence’’. In support of said motion to suppress Sheriff R. T. Hood and Deputy Sheriff E. 0. Peters and the defendant testified. Their evidence in substance disclosed that the sheriff was standing in a filling station and saw the defendant drive by, that as he came out, he saw the defendant on the wide gravelled road going south driving at an excessive rate of speed about a quarter of a mile away. The speed at which the defendant was driving prompted him to follow him. In pursuing the defendant he passed the home of his deputy, E. O. Peters, a quarter of a mile from the south edge of Hobart. He signalled and Mr. Peters also took up the pursuit. The sheriff testified that though he had a speedometer he did not know exactly how fast he was going but judged it was between 65 and 70 miles per hour. He later said he would not swear to “anyways near” the speed the defendant was driving. The sheriff testified however that the defendant was driving in such manner as to endanger his life or the lives of other people, that the only way he could judge the rate of speed was by the great amount of dust that was being kicked up by the defendant’s automobile. He said that they were driving into a south wind. He testified that he never did see the defendant’s car out of control. He said the defendant’s vision might have been clear and that he “was not endangering other people’s lives, except the man behind him on account of the dust”. In other words, admittedly the defendant had his car under control and had a clear vision ahead of him. In fact, he says he would not say it was out of control because he did not see it out of control.and it was not swerving. He said that the defendant drove straight and that in his judgment he could have brought the car to a stop within the assured clear distance ahead of him. He said the defendant kicked up so much dust he dropped behind and Deputy Sheriff Peters passed him, and they continued the pursuit for about 13% miles until the defendant stopped.

On the motion to suppress Deputy Sheriff E. O. Peters testified in substance substantially to the same effect as did Sheriff C. T. Hood. In addition thereto said that he passed the sheriff during the chase and pursued the defendant until he turned west, slowed down some and crossed a one-way bridge, at which point he locked his front bumper on to the rear bumper of the defendant’s car and the defendant stopped within a space of fifteen feet. At this time he said they were driving between 70 and 75 miles per hour. In so doing it is obvious that he thus endangered the defendant’s life as well as his own. He testified his estimate of the speed was but a guess because his speedometer was broken. In this connection it is well to call attention to the fact the scientific tests reveal a car travelling at the rate of 70 miles an hour under favorable mechanical operation, best road and weather conditions may be stopped within a distance of 192 feet. This court will take judicial knowledge of the fact that a car. being driven 70 to 75 miles an hour could not be stopped within 15 feet under the conditions herein involved. He said that he never saw the defendant’s car swerve. After they stopped he placed defendant under arerst for reckless driving, notwithstanding he said he did not suspect the defendant of having committed a felony at the time he was arrested, in fact, he says he “did not know what he was wanted for or nothing”. He had no warrant for his arrest and no warrant to search his car. Thereafter they took the defendant to the county jail in Hobart, Oklahoma, and there searched his car and found therein approximately one case of whisky.

The defendant testified his car was mechanically in good shape, and equipped with practically new tires. He further testified that his car was under control at all times and he could have brought it to a stop within the assured clear distance ahead. He testified he did not know he was being followed. The defendant said that he ordinarily drove' 60 to 65 miles per hour, and did not believe he was exceeding that speed in the instant ease. In this connection, if the cloud of dust was as dense and thick as the officers testified while they were driving south in pursuit of the defendant, it is highly speculative if not a foregone conclusion that they could not have brought their cars to a stop within the assured clear distance ahead.

The officers and the defendant testified they met but one car in the 13 % miles travelled, and that they passed no other car on the road.

In the light of the foregoing facts, it appears that the evidence is wholly insufficient to support the charge of reckless driving, and that the arrest made therefor and the charge based thereon was purely a pretense and subterfuge for the real purpose of searching the automobile. We are of the opinion that the arrest and search was unlawful and the evidence obtained thereby should have been suppressed. Under the provisions of Title 22 O.S.A.1941 § 196:

“A peace officer may, without a warrant, arrest a person:
“1. For a public offense, committed or attempted in his presence. * * *”

This court has held that the right of a peace officer to arrest without a warrant is defined and limited by the aforesaid statute. Marple v. State, 51 Okla.Cr. 240, 1 P.2d 836; Matthews v. State, 45 Okla.Cr. 110, 282 P. 180; Altizer v. State, 21 Okla.Cr. 229, 205 P. 1106; Sunday v. State, 14 Okla. Cr. 620, 174 P. 1095; De Graff v. State, 2 Okla. Cr. 519, 103 P. 538. See page 234 of 21 Okla.Cr., page 1108 of 205 P. of Altizer v. State, supra, wherein this court said:

“ It is not the purpose or intention of this court to restrict or impede peace officers who make arrests or attempt to make arrests legally. The statute, in plain and unmistakable terms provides the circumstances under which officers can legally make arrests without a warrant.”

Moreover, in Collegenia v. State, 9 Okla.Cr. 425, 132 P. 375, 381, this court has said that:

“In making an arrest without a warrant for a misdemeanor committed in the presence of the officer, the fact that such an offense was committed or attempted must exist to authorize the officer to act.”

Here, the testimony of both Mr. Hood and Mr. Peters is insufficient to establish the fact of reckless driving. Therefore, the subsequent search of the automobile without a warrant based upon the charge of reckless driving is without authority of law. This must of necessity follow since at the time the charge of reckless driving was laid, there was no restriction by law limiting the speed at which one was permitted to drive an automobile except as provided in Title 47 O.S.A.1941 § 92, reading in part as follows :

“Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and no person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead.”

The foregoing provision places no limit on the speed of an automobile. Under the conditions herein involved we cannot say the defendant was driving his car at an excessive rate of speed. The evidence shows the defendant was operating his automobile within the provisions of the foregoing statute. Under the facts of this record it cannot be said the defendant committed an offense in the officers’ presence. Therefore, the arrest was without authority of law. In Bowdry v. State, 64 Okla.Cr. 86, 77 P.2d 753, 756, this court said:

“The patrolman’s effort to justify his unlawful act that the defendant was driving recklessly or intoxicated is not sustained by his own testimony, but there is no contention that the defendant was intoxicated or drunk at the time he stopped him. An officer seeking the enforcement of one law should not violate another in order to accomplish his purpose. Such conduct brings the administration of justice into disrepute and shows a subversion of peace and good order. When the officer stopped the defendant on the highway and searched his car, he did so without any legal authority and the search and seizure was an unlawful violation of the defendant’s rights as guaranteed him by the laws and the Constitution of the state of Oklahoma, Art. 2, § 30.
“Where an officer does not know of the act constituting the offense, it is not committed in his presence. The defendant may be guilty, but he is entitled to a fair and impartial trial and to have all incompetent testimony éx-cluded.”

Certainly under the testimony of Mr. Peters, he did not even know why he was in pursuit of the defendant. It therefore appears so far as he was concerned the charge of reckless driving was only an afterthought. In Tucker v. State, 62 Okla. Cr. 406, 71 P. 2d 1092, 1094, the defendant was arrested for reckless driving, and search made of his automobile, and he was likewise convicted on a charge of transporting intoxicating liquor. In the body of the opinion this court said:

“The defendant had a right to be on the highway, and while the witness Kerr attempts to say he stopped and arrested him for fast driving, the witness Agee contradicts Kerr and states positively he stopped the defendant, and the defendant was not violating the law when he stopped him and had not gotten out of his. car. There is no contention by either of the state’s witnesses that they could see the defendant had whisky in his car at the time they stopped him upon the public highway without a warrant for his arrest, or to search his car.
. “An officer seeking the enforcement of one law should not violate another in order to accomplish his purpose. Such conduct brings the administration of justice into disrepute and shows a subversion of peace and good order. When the. officers searched the car of the defendant and claimed to have found the whisky therein, they did so without any legal authority, and the search and seizure was unlawful and a violation of the defendant’s rights as guaranteed him by the laws and Constitution of Oklahoma.”

The facts in the case at bar are more favorable to the defendant than in the Tucker case, supra. In the case at bar neither of the officers testified to facts which would indicate the defendant was driving his car in a reckless manner, but to the contrary they testified that the defendant had his car under control, at all time, and that he was not driving his automobile at a speed greater than would permit him to stop within the assured clear distance ahead.

In Blair v. State, 75 Okla. Cr. 265, 130 P. 2d 545, this court said:

“Whether search of, and seizure from, an automobile upon a public highway, without a search warrant, is reasonable, is, in its final analysis, to be determined as a judicial question, in view of all the circumstances under which it is made.”

In the case of Ingraham v. State, 48 Okla.Cr. 178, 290. P. 344, this court said:

“ ‘Where a conviction is based solely on evidence obtained by means of an unauthorized search and seizure, and admitted over the defendant’s objection, the conviction will be reversed as contrary to law and the evidence.’ * * *
“It is fundamental that a citizen may not be stopped on mere .suspicion, and his person or his car searched in order to procure evidence against him. Evidence procured in this manner is hot admissible,” Section 80 of Art. 2 of the Constitution of the State of Oklahoma provides as follows:
“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no wárrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.”

To sustain this search and seizure would be to ignore the foregoing plain provisions of the Constitution, as well as the provisions of Title 22 0.S.A.1941 § 196, supra. This we will never knowingly do. As was said in Altizer v. State, supra [21 Okla.Cr. 229, 205 P. 1109] :

“The American people are very jealous of their fundamental right to personal liberty. They have ingrafted in every document of organic law, from the inception of this government to the present day, provisions against unreasonable searches and seizures, and when peace officers, in plain violation of these fundamental rights, assume authority in making arrests, not given by statute, their actions and conduct will receive close scrutiny by the courts and condemnation when deserved. The fact that they are peace officers, sworn to support and enforce the law, should caution them to be more careful in its observance. Either wanton disobedience of our laws or lack of observance of them by petty peace officers is ofttimes a moving cause for willful, disrespect for’ the law by unthinking persons, and leads to anarchy, mob violence, and a reign of terror in such communities.
“On the other hand, it is the plain duty of the judiciary to support and protect those peace officers who act within their authority in making arrests and otherwise attempting to enforce the penal statutes of this state. In no other way may the peace and dignity of the state be maintained and the judgments of its courts enforced. This court fully realizes the importance of lawful law enforcement and is ever ready to extend its protecting arm thereto, but illegal arrests or attempted arrests cannot be sanctioned or even tolerated merely under the cover of a peace officer’s commission.”

In the light of the foregoing provisions of the Constitution, statutes of the State of Oklahoma, and the adjudicated cases, the trial court should have sustained the motion to suppress, and discharge the defendant. It was error for it so not to do. For all of the foregoing reasons the case is reversed, and the defendant ordered discharged.

JONES, P. J., and BAREFOOT, J., concur


author: BAREFOOT, J.

text:
    ROBERT FLOWERS v. STATE.
    No. A-10934.
    Jan. 12, 1949.
    (202 P. 2d 233.)

      Miskovsky & Miskovsky, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., and Warren H. Edwards, County Atty., Oklahoma County, of Oklahoma City, for defendant in error.
   BAREFOOT, J.

Defendant, Robert Flowers, was charged in the court of common pleas of Oklahoma county with the unlawful possession of intoxicating liquor, to wit: 78 pints of whisky; was tried, convicted and sentenced to pay a fine of $500 and to serve 30 days in the county jail, and has appealed.

Nine assignments of error are presented by the petition in error, but defendant in his brief states that only one proposition will be discussed, which is:

“The search of ones hotel room without a warrant of arrest, or a valid search warrant,' or knowledge by the officers that the room contained whisky, is illegal, and evidence obtained by such search and seizure should be excluded upon timely objection.”

For a proper consideration of this question, it is necessary to give a short statement of the facts as revealed by the record.

The evidence shows that on February 13, 1947, the proper officers of Oklahoma county procured a search warrant for the purpose of searching room No. 338, in the Oklahoma Hotel, located at 220% North Broadway, in Oklahoma City, Oklahoma county. On said date, pursuant to said warrant, the officers proceeded to execute the same by searching the said room No. 338. They found no whisky in this room. Upon completion of the search of this room, the officers went to the office of the hotel, and examined the hotel register, and found that room 338 was registered in the name of Freddie Powell, and that room 217 was registered in the name of Jack Powell. Defendant testified that Freddie Powell worked for him, but that he never heard of Jack Powell, that he was occupying room 217 as his living quarters, and that the same should have been registered in his name. The officers testified that they went to room 217 and found a padlock on the same. That the door stood ajar about one inch, and that by the aid of flashlight they could see through a crack, by placing their heads against the door, and when they did this, they saw boxes in the room marked “Whisky.” They then proceeded to remove the lock from the door at room 217, and about the time they had removed the lock, the defendant came up. The officers called to him, and he came to the door and was there when the officers entered the room. They found 78 pints of whisky in the boxes, as alleged in the information.

At the hearing on the motion to suppress the evidence, the defendant testified, as above stated, that he occupied and had possession of room 217, that the same was securely padlocked, and there were no cracks in the door. He admitted the ownership of the whisky,' but stated that the search of room 217 was made without his consent, and without a search warrant. He testified that he was on the lower floor, in the cafe, and someone notified him that the raid was in progress, and as he started up the steps to the second floor, the two officers were removing the padlock from room 217, motioned for him to come to them, and that he went and entered the room with the officers. That they searched the room, and found approximately three cases of whisky.

It has often been held by this court that under the statute permitting the issuance of search warrants for the purpose of searching premises, 22 O.S.1941 § 1221 et seq., the affidavit and search warrant should particularly describe .the premises to be searched, and that no discretion is left to the officer executing the warrant; and that the right to search under the warrant is limited to the place or premises therein described. Scogin v. State, 61 Okla. Cr. 348, 68 P.2d 111; Hill v. State, 80 Okla.Cr. 39, 156 P.2d 631; Herrion v. State, 79 Okla.Cr. 48, 150 P.2d 865.

In construing the above statute, it has been held that other places coming within the curtilage of the premises to be searched are included in the description. Bowdry v. State, 82 Okla. Cr. 119, 166 P. 2d 1018.

We have also had occasion to construe the statute with reference to the search of hotels and boarding houses. Flanagan v. State, 74 Okla.Cr. 127, 124 P.2d 270; Craigo v. State, 64 Okla.Cr. 362, 81 P.2d 336; Love v. State, 83 Okla.Cr. 403, 177 P.2d 846; Fitzgerald v. State, 80 Okla. Cr. 43, 156 P.2d 628; Perry v. State, 72 Okla.Cr. 149, 114 P.2d 185.

A hotel is a place of business, and the rule that search warrants should contain a particular description of the exact premises to be searched should be strictly construed. The description in the search warrant should be such that the officer serving the warrant will know the exact premises or rooms or part of the hotel to be searched. This to the end that premises or rooms occupied by innocent individuals, against whom no affidavit has been filed, may not be searched. To hold otherwise would be to deprive the individual citizen of his constitutional rights against search and seizure, a sacred right which has been recognized since the adoption of the Constitution of the United States, and the Constitution of this state. The facts in the instant case at once exemplify his rule. The officers made an affidavit and secured a search warrant for the purpose of searching room 338 in the Oklahoma Hotel, located at 220y2 North Broadway, in Oklahoma City. After completing the search of this room, which contained only a desk, a chair and three telephones, the officers proceeded to examine the hotel register, as hereinbefore stated, and then to search room 217, where the whisky in question was found. They had the same right to search any other numbered room in the hotel, as they did to search room 217. As above stated, this could have easily subjected many other persons to the search of their rooms, without the filing of an affidavit against them, and thus deprive them of their constitutional rights. The officers testified that when they appoached room 217 they observed that it was padlocked, but by the use of a flashlight, and holding their heads near a small crack, they could observe packages which were marked “Whisky.” Defendant denied that this condition existed. We have gone a long way in our decisions to uphold the legality of an arrest and search of the person, and the immediate premises where a misdemeanor is committed in the sight and presence of the officer, to the end that those guilty of the commission of an offense in the presence of the officer may be justly punished. But the facts in this case do not justify the application of this rule, and to do so would establish a rule which would deprive many innocent citizens of the right to be exempt from search and seizure, where there has been no violation of the law by them. How easy it would have been for the officers, after an examination of the hotel register, and finding the padlock on the door of room 217, to have made an affidavit for the purpose of searching that room, and secured a search warrant for that purpose.

For the reasons above stated, the judgment of the court of common pleas of Oklahoma county is reversed, with directions to sustain the motion to suppress the evidence upon which this conviction was had, and to discharge the defendant.

JONES, P. J., and BRETT, J., concur.


author: PER CURIAM.

text:
    Ex parte RAYMOND E. PIERCE.
    No. A-11178.
    Jan. 19, 1949.
    (202 P. 2d 433.)
    Ralph Samara and Harry Priest, both of Oklahoma City, for plaintiff in error, Raymond E. Pierce.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   PER CURIAM.

It appearing to the court that a petition for habeas corpus was filed in the above styled and entitled cause wherein petitioner sought reduction of bail in a case pending in the district court of Oklahoma county; that a hearing was had on said petition and the response thereto on December 8, 1948, at which time oral evidence was heard by the court. After said hearing, the case was taken under advisement. The court has now been advised that the matter pending in the district court of Oklahoma county has been fully settled, and defendant' has been discharged and is not in custody at this time.

It is therefore ordered that the petition for habeas corpus be and the same is dismissed.


text:
    Ex parte EDGAR WHITEAKER.
    No. A-11150.
    Jan. 19, 1949.
    (202 P. 2d 427.)
    Edgar Whiteaker, pro se.
    Mac Q. Williamson, Atty. Gen., for respondent.
   BAREFOOT, J.

Petitioner, Edgar Whiteaker, an inmate of tlie State Penitentiary at McAlester, has filed a petition for habeas corpus, seeldng his release.

It seems that on September 21, 1934, .in the district court of Garvin county, the petitioner, on his pleas of guilty in two different cases, was sentenced to serve 25 years in each case. In one case he was charged with robbery with firearms, and in the other with robbery with a dangerous weapon, both judgments providing: “It is ordered, adjudged and decreed that .this is a non-concurrent sentence.”

While the petition filed in this court, and the attached exhibits, are insufficient for this court to grant relief, yet they are persuasive for a further investigation by the Pardon and Parole Board, if they deem advisable. The records in the office of the Pardon and Parole Board reveal that the Board has heretofore made a full and complete investigation of this case, and presumably did not consider the application favorably. The record of this applicant is not without blemish. ' As hereinafter shown, the sentences he is now serving were the result of a jail break, and it appears that he was granted one 30 day leave from the penitentiary, and did not return. However, there are many facts surrounding his confinement at this time that are in his favor, although not sufficient as a matter of law for this court to grant relief by habeas corpus.

The record reveals that this petitioner had been picked up on suspicion of robbery in Garvin county, and had been held in the county jail for 26 days without any charge having been filed against him. (No charge was ever filed against him in that matter.) He was 20 years of age, and had served one previous term of one year in the penitentiary for rape in the second degree. Confined in the county jail at the time were two men, Pete Trammel and Clifton Brady, 22 and 32 years of age, respectively; one having served a previous term of five years in the penitentiary, and the other 25 years.

These men took the keys from the Garvin county jailer, who was a brother of the county sheriff, and escaped, and this defendant stole an automobile. Two cases were filed against this petitioner as a result of this jail break. In case No. 1827 he was charged jointly with Pete Trammel and Clifton Brady with “robbery with a dangerous weapon.” The information in that case reads:

“Edgar Whiteaker * - * did then and there unlawfully and willfully, feloniously, wrongfully, and with force and violence by the use of certain dangerous weapons, to-wit: Certain shoes with leather heels, sticks, clubs, iron pipes or- bars or blunt instrument the exact kind and character unknown, then and there held in the hands of them, the said Edgar Whiteaker, Pete Trammel and Clifton Brady, and thereby and therewith assault, strike, hit, beat, bruise, cut, wound and otherwise ill-treat him, the said John Barnhill, with said instruments, and by placing him in fear of immediate personal and unlawful injury, take, seize, and carry away from the possession of John Barnhill, the owner thereof, in whose presence and custody said property was at said time, certain moneys and property, to-wit: About eighty ($.80) cents of good and lawful money of the United States of America, and about seven jail keys belonging to Garvin County, Okla. value about $25.00 in good and lawful money of the U. S. A. the said money and property being then and there taken as aforesaid against the will and without the consent of him, the said John Barnhill, and with the unlawful, wilful, wrongful and felonious intent then and there on the part of them, the said Edgar Whiteaker, Pete Trammel and Clifton Brady, to rob and permanently deprive the said John Barnhill, the owner and possessor thereof, and to convert said property to their own use and benefit, and against the peace and dignity of tbe state.”

It will be noted that the personal property alleged to have been taken was 80 cents from the pocket of the jailer, and certain keys to the jail, the property of Gar-vin county, and of the value of about $25. Petitioner attaches to his petition an affidavit in which he states that at the time of the jail break he did not take any money from the pocket of the jailer, nor did he receive any part thereof, and did not know any money was taken. He admits in this affidavit that he took the keys from under the pillow of the jailer.

In this case, No. 1827 in Garvin county, Pete Trammel and Clifton Brady each received a sentence of ten years, and the petitioner, as above stated, on his plea of guilty, was given 25 years. Pete Trammel and Clifton Brady were charged jointly in case No. 1828 with assault with a dangerous weapon, and given five years each. Later the district judge made an order, directing that the 10 year sentence, and the 5 year sentence run concurrently.

On the day he was sentenced in case No. 1827, the petitioner herein entered a plea of guilty in case No. 1834, in which he was charged with “robbery with firearms”, which case involved the theft of the automobile taken at the time of the jail break, and received a sentence of 25 years, as hereinbefore stated.

At the time petitioner entered the penitentiary on the two sentences of 25 years each, a clerk at the penitentiary made a notation on petitioner’s file: “Ordered to run these cases as one of 50 years by Warden Hunt. T. M. Field.” Mr. Field was the record clerk at the penitentiary. The record discloses that petitioner has already served more than sufficient time prescribed by the rules of the penitentiary to satisfy one 25 year sentence.

Accompanying the petition is an affidavit by the Honorable W. O. Long, the district judge who sentenced petitioner, and a letter from the Honorable Clarence Bowie, who was the county attorney of Garvin county at the time petitioner was charged and sentenced. This affidavit and the letter are as follows:

“State of Oklahoma, j ¡■ss. Pontoto County. J
Affidavit.
“I, W. G. Long, the undersigned deponent, a resident of Pontotoc County, State of Oklahoma, make oath and say as follows:
“That I herewith subscribe to the following statements, devoid of coercion and without promise of material consideration or of any other gain whatsoever: and that it is my desire and express purpose to divulge certain pertinent facts and mitigating circumstances bearing directly upon ease No. 1827, in the District Court in and for Garvin County, Oklahoma, titled, The State of Oklahoma, plaintiff, vs. Edgar F. Whiteaker, defendant.
“The aforesaid Edgar F. Whiteaker is at present an inmate of the Oklahoma State Penitentiary at McAlester, Pittsburg County, Oklahoma. Further, the said Edgar F. Whiteaker is serving a term of twenty-five years (25) for the crime of robbery with a dangerous instrument.
“That I was the trial Judge at the time of the aforesaid action and passed sentence upon the said Edgar F. Whiteaker.
“That the aforesaid Edgar F. Whiteaker, accompanied by one Pete Trammel and oné Clifton Brady, did perpetrate the aforementioned act of Robbery with a Dangerous Instrument.
“However, at the time of tlie trial of the aforesaid Edgar F. Whiteaker, I was not aware of certain facts in the case, to-wit:
“That the said Edgar- F. Whiteaker was younger and less experienced in crime than the aforementioned Pete Trammel and Clifton Brady.
“That at the time of conviction, the said Peter Trammel was 22 years of age and had served one previous term of five (5) years for the crime of car theft in the Oklahoma State Reformatory at Granite, Greer County, Oklahoma. That upon entering a plea of guilty the said Pete Trammel received a term of ten (10) years in Garvin County case No. 1827; Robbery with a Dangerous Instrument.
“That at the time of conviction, the aforesaid Clifton Brady was thirty-two (32) years of age and had served one previous term of twenty-five (25) years for the crime of attempted rape in the Mississippi State Penitentiary at Parchman, Miss., as Prisoner No. 4212. That upon entering a plea of guilty, the aforesaid Clifton Brady received a term of ten (10) years in the State Penitentiary in the Garvin County case No. 1827, Robbery with a Dangerous Instrument.
“That at the time of conviction the aforementioned Edgar F. Whiteaker was twenty (20) years of age and had served one previous term in the Oklahoma State Penitentiary for the crime of second degree rape, one year. That upon entering a plea of guilty, the said Edgar F. Whiteaker received a term of tyenty-five years (25) in the Oklahoma State Penitentiary in Garvin County case No. 1827; Robbery with a Dangerous Instrument.
“In view of the aforementioned facts that have been brought out at this time, I believe that the sentence may well be reduced, if the proper authorities see fit, and most certainly with my approval and upon my recommendation.
“In lieu [view] of the foregoing facts, I hereby recommend that the said Edgar F. Whiteaker be accorded such clemency as the State’s Officials may deem fitting and proper to extend
“(Signed) W. G. Lo^g
(Former District Judge.)
“Deponent.”
“Pauls Valley, Okla.,
September 16, 1948.
“Mr. Edgar F. Whiteaker, No. 30324 * *
“Dear Sir:
“This is to acknowledge receipt of your letter dated September 14, 1948. You are informed that I have no hesitancy about recommending clemency for you but I am unable to sign the within affidavit for the reason that I have not checked the records and these matters, and therefore I do not have personal knowledge of these facts. These matters about which you request me to make an affidavit can be proven to the Pardon and Parole Board, if the same are true and I presume they are, by records, and the records would be the best evidence.”
“Yours truly,
“C. H. Bowie.”

We have given a full and complete statement of the facts in so far as they are revealed by the records before us. We cannot hold that under these facts and the applied law that relief can be given this petitioner by this court by the granting of a writ of habeas corpus, but there are many facts which in our opinion would warrant the Pardon and Parole Board of this state in making a further investigation, if they deem it advisable, as to whether mercy should be granted this petitioner, in view of the facts as above presented. It is true that petitioner had been convicted and served a previous term in the penitentiary, but it is also true that the codefend-ants who were charged with him had also served previous terms and were each given sentences of ten years. Under all the circumstances, it is our opinion that this petitioner is entitled to a further hearing before the Pardon and Parole Board, if they deem advisable, to the end that justice and mercy may be meted out to this petitioner, as the facts justify. This in view of the affidavit of the trial judge and the letter of the county attorney in which they recommend a parole for petitioner; and the many letters in the files of the Pardon and Parole Board which are highly in favor of petitioner receiving favorable consideration.

The petition for habeas corpus is denied for the reason that there has been no showing that the judgment and sentence rendered in this case is void.

JONES, P. J., and BRETT, J., concur.


text:
    CLARENCE HOWARD RICKETTS v. STATE.
    No. A-10949.
    Jan. 26, 1949.
    (202 P. 2d 431.)

      W. O. Moffett, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., and Elmer Adams, County Atty., Tulsa County, of Tulsa, for defendant in error.
   BAREFOOT, J.

Defendant, Clarence Howard Rick-etts, was charged in the court of common pleas of Tulsa county with the offense of disturbing the peace, waived a jury, and was tried by the court, found guilty and his punishment assessed at a fine of $75, and 20 days in the county jail, and has appealed.

The statute under which defendant was charged is Tit. 21 O.S. 1941 § 1363, which is as follows:

“If any person shall make use of any profane, violent, abusive or insultng language toward or about another person, in the presence or hearing, which language, in its common acceptation, is calculated to arouse to anger the person about or to whom it is spoken or addressed, or to cause a breach of the peace or an assault, every such person shall be deemed guilty of a breach of the peace, and, upon conviction thereof, shall be punished by a fine in any sum not to exceed $100.00, or by imprisonment in the county jail not to exceed thirty days, or by both such fine and imprisonment, at the discretion of the court or jury trying the same.”

■ It is contended by defendant, first, that the evidence was not sufficient to support the conviction, and that the demurrer to the evidence should have been sustained; and, second, that the court erred in permitting the wife of defendant to stay in the courtroom during the trial, and assist counsel for the state.

Defendant contends that the demurrer to the evidence should have been sustained for the reason that the. evidence failed to show that the defendant used any profane, abusive or insulting language toward the prosecuting witness.

In this contention, counsel overlooks the fact that the statute makes it a breach of the peace to cause an assault to be committed. This case arose by reason of defendant entering the home of the prosecuting witness, F. C. Speaker, whereupon a fight ensued between defendant and the said Speaker. In this fight the prosecuting witness was struck with a rock which defendant had in his hand at the time he entered the home of Speaker, on the evening of August 9, 1947.

On this date a divorce suit was pending between defendant and his wife, and she had been granted the temporary custody of the two minor children, whose exact ages are not shown by the record. The testimony of the state revealed that on the date above indicated the mother and father of prosecuting witness had been invited to his home for the evening meal. Mr. Speaker had been married and divorced, and his young daughter lived with him. She spent the vacations with her mother, and was not at home on the above date. Mrs. Speaker, the mother of prosecuting witness, before going to her son’s home had talked with the wife of the defendant over the telephone. They had previously been neighbors, and Mrs. Speaker asked Mrs. Ricketts to meet them at her son’s residence. She accepted, and with her two small children reached the home of the prosecuting witness about 15 minutes prior to the arrival of Mr. and Mrs. Speaker. After eating some sandwiches, they all decided to go to the rodeo, and Mrs. Speaker and her husband returned to their home to change clothes, and were to return to the home of their son, and they would all go to the rodeo. Mrs. Ricketts and her two children remained at the home of the prosecuting witness. During this time the defendant and his brother-in-law went to the home of prosecuting witness, and, looking through the windows which were open, saw his wife and children. Defendant testified that Mrs. Ricketts was lying on the divan and playing with one of her children, and the prosecuting witness was sitting in a chair. The evidence was that Mrs. Ricketts told Speaker that she wanted some watermelon, and they went into the kitchen to get it. As Mr: Speaker was in the act of taking the watermelon from the refrigerator, defendant entered the house with a rock in his hand. Mr. Speaker testified that he did not know the-defendant. Words passed about defendant entering the house, and about his taking the children, and, as expressed in the record, “the fight began.” Mr. Speaker testified that he was struck over the eye with the rock held by defendant. Defendant testified that the prosecuting witness struck the first blow. Both testified to the fight and the assault.

There can be no question from the facts above stated that there was a breach of the peace. The verdict of guilty by the court found all of the issues against the defendant, and the presumption is that the court properly applied the law to the facts.

There was testimony of other witnesses, but it is unnecessary to discuss it. The court did not commit error in refusing to sustain the demurrer to the evidence.

The proposition that the court erred in permitting the estranged wife of defendant to remain in the courtroom during the trial for the reason that Tit. 22 O.S. 1941 § 702 provides that the husband or wife may not testify against the other except under certain circumstances, cannot be sustained. This trial was before the court, and not before a jury. This was a matter within the discretion of the trial court, and the presumption, in the absence of a showing to the contrary, would be that the court was not influenced by her presence in the courtroom during the trial. The record discloses that when this question was raised, the court remarked: “I don’t think that is going to affect this court, but for the remainder of the proceeding, I will have her go to the other courtroom.” There is nothing to show that the defendant was in any way prejudiced by reason of the wife of defendant remaining in the courtroom for a part of the trial before the court.

Taking into consideration all of the facts presented in .this case, we have come to the conclusion that justice requires that the judgment and sentence be modified to a fine of $75 and costs, and the jail sentence eliminated.

As so modified, the judgment and sentence of the court of common pleas of Tulsa county is affirmed.

JONES, P. J., and BBETT, J., concur.


text:
    Ex parte JAMES F. BURNS.
    No. A-11158.
    Jan. 26, 1949.
    (202 P. 2d 433.)

      Milton Keen, of Clinton, for petitioner.
    Mac Q. Williamson, Atty. Gen., for respondent.
   JONES, P. J.

This action in habeas corpus was instituted by the petitioner, James F. Burns, in an effort to secure his release from confinement in the Oklahoma State Reformatory at Granite.

The verified petition alleges that on April 4, 1947, the petitioner entered pleas of guilty to two separate charges of burglary in the second degree in the district court of Kay county, and was sentenced to serve a term of two years’ imprisonment in the State Penitentiary at McAlester in one of said cases, and a term of two years and six months in the State Penitentiary at McAlester in the other case, said sentences to be consecutive and not concurrent; that thereafter the petitioner was delivered to the warden of the State Pententiary at McAlester, where he commenced the service of said sentences; that on November 22, 1947, without the consent and against the will of petitioner, he was transported and removed from the State Penitentiary at McAlester to the State Reformatory at Granite where he has. since been confined and restrained of his liberty.

The petition further alleges that the petitioner under the laws of Oklahoma is not the type and kind of a person who can be kept and confined at said reformatory for the reason that he is a confirmed criminal, and an habitual violator of the criminal laws; that he has been convicted of felonies on four different occasions.

This case is controlled by the decision of the Criminal Court of Appeals in the case of Ex parte Olden, 88 Okla. Cr. 56, 1948, 199 P. 2d 228, 229.

The syllabus of the points of law determined by that case is as follows:

“Where the Legislature takes up a whole subject anew, and covers the entire ground of the subject matter of a former statute, and evidently intend it as a substitute for it, the prior act will be repealed thereby, although there may be no express words to that effect, and there may be in the old act provisions not embraced in the new.
“In construing two statutes relating to same subject, later statute purporting to revise entire subject matter and containing additional provisions for carrying into effect same objects, will be-construed to repeal by implication the former statute although no reference is made thereto.
“Chapter 57, Session Laws 1915, a comprehensive act defining and regulating penal institutions in the State of Oklahoma, providing for the transfer of prisoners, and conferring certain authority upon the State Board of Public Affairs, repeals by implication, Chapter 217 of the Session Laws 1913, which likewise dealt with the same subject matter covered by the 1915 act.
“Where one was authorized to codify existing laws but the authority was expressly withheld to include any statute which had been ‘repealed’ or ‘held unconstitutional by the highest courts,’ and such a statute was inadvertently included, adoption of statutes did not have effect of validating the statute inadvertently included.
“Section 7, Chapter 217, Session Laws 1913 being repealed by Chapter 57, Session Laws 1915, the inclusion of said section in the 1941 statutes, Section 105, Tit. 57 O.S. 1941, did not have the effect of validating the statute inadvertently included.
“The construction placed on statutes or constitutional provisions by officers in the discharge of their duties, either at or near the time of the enactment, which has been, long acquiesced in, is a just medium for its judicial interpretation.
“Administrative construction by State Board of Public Affairs acting under opinion of Attorney General concerning statute authorizing transfer of prisoners from one penitentiary to another which has been acquiesced in by the Legislature for a period of over thirty years is entitled to great weight in interpreting said statute.
“All persons convicted of a felony shall be by the trial judge sentenced to serve such term for which he shall have been convicted to the nearest State Penitentiary. Section 133, Tit. 57 O.S. 1941.
“Under the statute, Tit. 57 O.S. 1941 § 132, the State Board of Public Affairs in its discretion may transfer prisoners from the State Penitentiary at McAlester to the Reformatory at Granite and may likewise transfer prisoners from the Reformatory at Granite to the Penitentiary at McAlester; to separate the confirmed and incorrigible criminals from those who do not require the restriction placed around them that the confirmed criminal requires. The only provision is that the authority thus given to transfer prisoners shall never be used to impair the efficiency, or to destroy either of said penal institutions.
“Where the State Board of Public Affairs makes transfer of prisoners within its discretionary power, granted by the legislature, such transfer constitutes a valid exercise of administrative power and is not a judicial act.
“The case of Ex parte Neighbors, 85 Okla. Cr. 183, 187 P. 2d 276, is expressly overruled in so far as it conflicts with the views expressed in this opinion.” •

In addition to what we have said in Ex parte Olden, supra, attention is also directed to the fact that section 105 of Tit. 57 Okla. Statutes 1941, which was section 7 of the 1913 act, is in plain and irreconcilable conflict with section 133 of said Title 57 Okla. Statutes 1941. Since said section 133 of Title 57 was adopted in 1915 and amended by said 1917 act as pointed out in the opinion in Ex parte Olden, supra, the rule of law set forth by the Supreme Cour.t of Oklahoma in the case of Hines v. Harmon, 178 Okla. 1, 61 P. 2d 641, 644, will apply.

In that opinion the Supreme Court stated:

“It is the contention of the defendant in error, plaintiff below, that, if it be held that there is a conflict between said sections 9687 and 9967 [16 O.S. 1941 § 24; 23 O.S. 1941 § 25], said section 9687, having been enacted in 1897 at a later date than section 9967, which was enacted in 1890, would effect a modification of said section 9967 in so far as said section is in conflict with section 9687. Such is the rule. Ex parte Martin, 6 Okla. Cr. 224, 118 P. 155; School District No. 7 of Johnston County v. Cunningham, 51 Okla. 261, 151 P. 633; James v. Board of County Commissioners of McCurtain County, 103 Okla. 141, 229 P. 554.
“It is also the contention of plaintiffs in error that both of these statutes, having been brought into the Revised Statutes of 1910, have an equal status as having been simultaneously passed. The authorities do not sustain this contention but hold to the contrary. 59 C.J. 928; 25 R.C.L. 925; Wright v. Oakley, 5 Metc., Mass., 400; Scheftels v. Tabert, 46 Wis. 439, 1 N.W. 156; State v. Wimpfheimer, 69 N.H. 166, 38 A. 786; Commonwealth v. McNamara, 93 Pa. Super. 267; Jessee v. De Shong (Tex. Civ. App.) 105 S.W. 1011; State v. Prouty, 115 Iowa, 657, 84 N.W. 670; Pratt v. Swan, 16 Utah, 483, 52 P. 1092; State v. Ward, 328 Mo. 658, 40 S.W. 2d 1074; Hillsborough County Commissioners v. Jackson, 58 Fla. 210, 50 So. 423, 424, 138 Am. St. Rep. 110, 19 Ann. Cas. 148; Adkins v. Arnold, 235 U.S. 417, 35 S. Ct. 118, 119, 59 L. Ed. 294.
“In 59 C.J. 928, it is said: ‘A revision of a statute by re-enactment of a previous statute operates as a continuance of the former, instead of as a repeal and new enactment.’
“In 25 R.C.L. 925, it is said: ‘It has been held that where two inconsistent statutes are carried into the codified law, the one last passed, which is the later declaration of the legislative will, should prevail.’ * *
“In the case of Hillsborough County Commissioners v. Jackson, supra, the Supreme Court of Florida said: ‘Where there are two conflicting sections of a general compilation or code of statute laws, that section should prevail which is derived from a source that can be considered as the last expression of the lawmaking power in enacting separate statutes upon the same subject.’
“The Supreme Court of the United States in Adkins v. Arnold, supra, considered section 4621 of chapter 104 and section 648 of chapter 27 of Mansfield’s Digest of 1884 of Arkansas; the said section 4621 having been put into effect by the Act of Congress of May 2, 1890, c. 182, 26 Stat. 81, § 31, and said section 648 having been put into effect by the Act of February 19, 1903, c. 707, 32 Stat.. 841. The court said: ‘It is insisted that § 648 is inconsistent with § 4621 and should be treated as controlling because its adoption by Congress was the later in time. Assuming that the two sections are inconsistent, as claimed, we think § 4621 is controlling. While both were embodied in the Arkansas compilation known as’ Mansfield’s Digest of 1884, § 4621 was a later enactment than § 648, and superseded the latter in so far as they were in conflict.’ ”

The writ of habeas corpus is denied.

BAREFOOT and BRETT, JJ., concur.


text:
    FRANK SMITH v. STATE.
    No. A-10930.
    Feb. 2, 1949.
    (202 P. 2d 709.)
    Welch, Bounds & Kile, of Hugo, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Fred Hansen, Asst. Atty. Gen., and Ralph K. Jenner, County Atty. Choctaw County, of Hugo, for defendant in error.
   BAREFOOT, J.

Frank Smith was charged in the county court of Choctaw County with the offense of pointing a gun; was tried, convicted and sentenced to serve 120 days in the county jail, and to pay a fine of $100, and has appealed.

For reversal of this case, defendants sets out two errors :

“(1) The evidence is not sufficient to support the verdict of the jury.
“(2) The information charges two offenses.”

Defendant was charged with a violation of Tit. 21 O.S. 1941 § 1279, which provides:

“It shall be unlawful for any person to point any pistol or any other deadly weapon whether loaded or not, at any other person or persons either in anger or otherwise.”

The conclusion at which we have arrived necessitates that we consider only the first proposition, namely, that the evidence is not sufficient to support the verdict of the jury.

The Attorney General in his brief says:

“The above proposition of defendant, in our opinion, presents the most serious attack on the correctness of the verdict and judgment involved here.”

We have carefully examined the briefs and the record in this case, and find that not a single witness testified that the defendant pointed a gun which he had in his hands at any one of the parties as alleged in the information.

It is charged that the defendant pointed a shotgun at Jimmie Boone, Aubrey Davis and Fred Johnson. All of the parties involved in this case are Negroes, and the trouble grew out of a dice game at “The Chicken Shack”, in Hugo, on the night of May 29, 1947. Spurgeon Lee signed the information, and was the prosecuting witness. Jimmy Boone was the only one of the three men at whom defendant was charged with pointing the gun who testified.

The evidence disclosed that Spurgeon Lee and the defendant had an argument over the dice game. Jimmie Boone, A. B. Lennox and John Field took the defendant to Jimmie Boone’s borne. These three witnesses all testified that the defendant got ont of the car and went in the Boone home and came out with a 12-gauge shotgun, got in the Lennox automobile and wanted to go back to town.

It is evidently the contention of the state that defendant pointed the gun at the parties named at the time he came out of Boone’s house with the gun in his hand. Lee was not present at that time.

Boone testified that when defendant came out of the house “He was carrying the gun just like a man would going hunting, carrying it down in front of him”; and that the defendant “just got in the car with the gun, and sat down.” This witness did not testify that the defendant ever pointed the gun at him, or at any one else.

A. B. Lennox testified positively that the defendant did not point the gun at any of them. He testified:

“Q. Where did you first see him, with the shotgun? A. Sitting in my car * * *. Q. Did Jimmie Boone try to get him to leave the gun at home? A. He told him ‘you ought to leave it,’ and he said No, I ain’t going to do nothing with the gun.’ ”

John Field testified that he was present when defendant came out of the house with the gun. In answer to the question: “How was he carrying the gun when he came out?” this witness answered: “Had it in his hand. He got in the car and sat the gun down between him and the door and said £I am going back to town.’ ” He did not testify that defendant pointed the gun at anyone, or made any threats about what he intended to do, other than: “He said he was going back to town. He said, ‘I know what I will do, I will go in there and get that shotgnn and go back to town.’ ”

As stated-in the state’s brief, it is a well established rule of this court that where there is any competent evidence which reasonably sustains the verdict and judgment, a conviction will not be reversed, although the evidence may be conflicting, or different inferences may be drawn therefrom. The evidence in this case is not conflicting, but not one witness testified that the defendant ever pointed a gun at anyone. From the questions asked the witnesses by the county attorney, it appears that this is a case where the. state’s witnesses refused to testify as they had indicated they would prior to the trial.

From the above statement, it is unnecessary to discuss the second proposition presented by defendant.

The judgment of the county court of Choctaw county is reversed, ánd the defendant ordered discharged.

JONES, P. J., and BRETT, J., concur.


text:
    LONNIE GLASGOW v. STATE.
    No. A-10948.
    Feb. 2, 1949.
    (202 P. 2d 999.)

      Funston Flanagan, of Walters, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Lonnie Glasgow, was charged by information filed in the district court of Cotton county with the crime of assault with a dangerous weapon, allegedly committed upon one Henry Peel, was tried, convicted, and pursuant to the verdict of the jury, sentenced to serve a term of one year and one day in the State Penitentiary.

The evidence of the state showed that on the date of the alleged assault, March 31, 1947, the defendant and the complaining witness, Henry Peel, had been riding around in Peel’s automobile to various towns. Both of the parties had been drinking intoxicants. Peel was afflicted with palsy but was able to drive his automobile. They drove to Lawton, to Temple and back to Walters. Peel had about $847 in his billfold which was known to defendant. About 2:00 a.m., Peel drove defendant to the Emmitt Haynes’ place where defendant intended to spend the night. Haynes was the brother-in-law of defendant. Instead of parking in front of the house, Peel, at the direction of defendant, drove around to the alley and parked near the garage. Defendant said he had some whisky in the garage and that they would each take a drink before they parted. Defendant went into the garage and stayed several minutes. When he returned, he had something which was wrapped. Defendant asked Peel to get out of the automobile and . draw some water out of a hydrant. When Peel got out of. the automobile he was struck on the back of the head and knocked to the ground. Defendant struck Peel several blows but most of them were glancing blows as Peel was struggling with defendant and attempting to hold a hammer which defendant had concealed in a shirt and Avhich was being used by defendant as a weapon to strike Peel. During the struggle, Peel regained his feet and turned and ran to a neighbor’s house and this neighbor took Peel to the sheriff’s office and then to the hospital.

On cross-examination Peel testified that he was in the beer business at Walters and went to Lawton that morning with defendant to get a load of beer; that they returned to Peel’s place of business and defendant helped him stack the beer. Peel was in the hospital about two days.

The officers testified about receiving a report from Peel concerning the difficulty with G-lasgOAV. They stated that it was about 1:30 a.m., when they first saw Peel, and he was bloody, had a lot of cuts on his head, and a severe one on the base of his head. They arrested the defendant and then investigated the premises where the altercation was said to have occurred. They found lots of blood on the ground by the side of Peel’s automobile. They found the hat which was being worn by Peel and there was a hole through the hat and some skin and hair and blood on the inside of the hat. Neither Peel nor defendant appeared to be drunk. Later they found an army shirt in the garage with blood on it and a shop hammer. The shop hammer had some stains with appeared to be blood stains and was taken to the State Chemist for examination.

Taylor Rogers, Chief Chemist for the State Health Department, testified that he made an examination of the shop hammer brought to him by the sheriff and’ that Ms examination disclosed that the hammer had human blood'stains on it. The hammer was described as a two pound shop hammer.

Doctor C. F. Stauber testified that he treated Homer Peel at his hospital. Peel was suffering from shock and had lacerations and contusions on his scalp and on the right elbow. The Doctor described one laceration as being circular, which in his opinion was caused by some type of instrument that was circular in nature.

Defendant testified in his own behalf that his home was in Temple. His testimony concerning the trips made with Peel was substantially the same as that related by Peel. He further testified that during the evening Peel became intoxicated. He testified that when they arrived at defendant’s brother-in-law’s house where defendant intended to spend the night, that he and Peel had an argument in which Peel wanted defendant to start selling whisky with him and that defendant refused; that Peel then insisted that defendant spend the night with him and made some indecent proposals to him; that when this was done, defendant started to get out of the car and was struck on the nose and mouth by Peel; that a general fight started during which they rolled, on the ground up to the garage entrance.

Defendant then testified concerning the shop hammer as follows:

“Well, when I found it, I didn’t know whether it was a hammer or hatchet or what it was. It was dark and you couldn’t see nothing and he had me kinda clinched and I grabbed something and I just kept pounding him like that (Indicating) with the hammer. I tried to get loose from him, and how many times I hit him, I don’t know, I couldn’t tell, but I was trying to get loose, get away.”

Doctor Frank Stickney, an osteopathic physician, testified that on April 5, 1947, he had occasion to treat the defendant; that defendant had a laceration on the inside of the lower lip and complained of a back injury; that he taped up defendant’s back; that defendant had a swelling of the muscles of the middle of the back on each side of the spinal column; that he took an X-ray picture of the injury but the X-ray did not disclose any bone involvement.

W. H.. Glasgow, father of defendant, testified that on the night the altercation occurred, Peel came by his home in Temple and was drunk and cursing.

Other witnesses testified who saw Henry Peel the night in question, and they stated that in their opinion Peel was in an intoxicated condition.

The first assignment of error is that the evidence is insufficient to sustain the conviction. The evidence of the state, if believed by the jury, was sufficient to show an unprovoked attack upon the complaining witness, and is sufficient to sustain the verdict of the jury.

The next assignment of error is that' the trial court erred in overruling the motion of defendant for a mistrial because of the failure of the county attorney in his opening statement to the jury to state the plea of the defendant.

The record discloses that the county attorney read the information to the jury and then reviewed briefly the evidence which the state intended to produce to sustain the allegations of the information. He did not state to the jury that the defendant had entered a plea of not guilty to the information.

By statute it is provided:

“The jury having been impaneled and sworn, the trial must proceed in the following order:
“1. If the indictment or information is for a felony, the clerk or county attorney must read it, and state the plea of the defendant to the jury. In other cases this formality may he dispensed with. * * *” Title 22 O.S. 1941 § 881.

Immediately after the county attorney had finished with his opening statement, counsel for defendant arose and moved the court to quash the information for the reason that the county attorney in his opening statement had failed to comply with the statutes, which motion was overruled with an exception allowed to defendant. Counsel for defendant then made his opening statement to the jury and at the very beginning he stated:

“The defendant has plead not guilty to the charge. The county attorney neglected to tell you.that. It was his duty to tell you that under the law. He failed to do it.” ■

In the instruction to the jury, the trial court properly stated the allegations of the information and instructed the jury that the defendant had' entered a plea of not guilty to the charge set out in the information; that defendant was presumed to be innocent and the burden of proof was upon the state to introduce evidence to prove the guilt of the defendant beyond a reasonable doubt. Under such circumstances, it is our conclusion that the failure of the county attorney to state the plea of the defendant to the jury was error, but was not reversible error for the reason that, the defendant suffered no injury by reason of this failure of the county attorney.

In Brannon v. State, 39 Okla. Cr. 207, 264 P. 835, it is held:

“In the trial of a criminal case after the jury is impaneled and sworn, the clerk or county attorney must read the .information and state the plea of defendant. Where the plea of defendant is not stated but the case is tried upon his plea of not guilty, the failure to state the plea is error without injury and presents no ground for reversal.’’

It is further argued that the trial court erred in permitting testimony that the witness, Henry Peel, had $847 in currency on his person at the time of the alleged crime, as there was no connection between said sum of money and the alleged assault. We think the testimony concerning this sum of money being on the person of the complaining witness was competent evidence for whatever weight the jury might see fit to give it as indicating a possible motive for the alleged assault made by the defendant. The motive with which a crime is committed is always material and a proper subject of inquiry. Hall v. State, 37 Okla. Cr. 4, 255 P. 716; Kiker v. State, 46 Okla. Cr. 346, 285 P. 987; McClendon v. State, 19 Okla. Cr. 382, 200 P. 464.

It is contended that the trial court erred in overruling counsel’s motion for a mistrial because of a statement made by the county attorney while he was on the witness stand after being called as a witness by counsel for the defendant.

The record discloses that the county attorney was asked by counsel for the defendant if he made a trip to Temple to the beer parlor where the defendant was employed about two months before the trial to try to force the defendant to close his bar on Sunday. The county attorney admitted that he and the sheriff had gone to Temple and talked to the defendant, had told him about some complaints they had received and asked him to close his beer place on Sunday, and defendant promised that be would. Counsel for defendant then asked: “Had you talked with Mm somewhere before the day you were down there?-’’ To which the county attorney replied:

“No sir; no, sir; in fact, I don’t recall haying seen him. I didn’t know he was down in that neighborhood at all. .1 had a ’phone call, once before, that time he got away with — when that lady at Waurika called me to come down, when he had pawned a watch of hers and wouldn’t give it back.”

The record then discloses the following proceedings:

“Mr. Flanagan: Now just a minute. We object to that. Now, Your Honor, we move the court that a mistrial be granted and that this jury be discharged and this case remain held up for further proceedings. The Court: Overruled. The jury will be admonished not to consider the question and the answer last given by the county attorney. By Mr. Flanagan: We don’t — I don’t mean any disrespect for the court, but I would like to insist on that just a little. I don’t want to go into the right of the county attorney here, a slip of the tongue on his part. However, it is highly prejudicial to the defendant and it is prohibited by the law and against the statutes, and I honestly believe it is error. The Court: Well, I think this, that the jury understands that the answer was improper, and it might have been provoked in a measure by the attorney here for the defendant, and I think the jury understands, at least, they should understand that the answer has no bearing on this lawsuit one way or the other, and you should not consider the answer against this defendant. With that admonition, you may proceed. You will have your exception, however, to the ruling of the court.”

We shall consider this assignment of error together with the assignment of error that the county attorney was guilty of making prejudicial and improper remarks in his argument to the jury and that there was further error because of a statement made by the trial court in connection with an objection interposed by counsel for defendant during the closing argument of the county attorney.

The record discloses that the arguments of the county attorney and counsel for the defendant were taken by the court reporter and transcribed as a part of the record. Each of the counsel stated that it was their first case to ever try to a jury. Each of the counsel made an excellent argument and considering that it was their first appearance before a jury, each of them did a good job. However, each of these young men was eager to win and each of them at times made remarks which were not relevant to the issues. There was some testify- ' ing by each of the attorneys in their closing arguments which is not unusual, especially for attorneys engaged in the trial of their first case. During the argument of counsel for defendant, the county attorney interposed an objection or two to the argument and then when the closing argument of the county attorney commenced, counsel for the defendant commenced to make a series of objections to what he evidently thought was improper argument on the part of the county attorney. After some of these objections had been made and ruled upon, the counsel for defendant made an objection to a certain argument being made by the county attorney on the ground that it was outside of the record to which the court made this remark:

“I say, the jury knows, certainly should know better than the court what the evidence in the case is. I assume that they will hear what the county attorney has to say, and I assume further if they get out of line, that they will not hold the defendant responsible for it, and for that reason I suggest that you do not make any other objections, unless clearly out of tbe record and unless highly prejudicial and against the interest of the defendant.”

It is contended by the defendant that this remark of the trial court was improper and prejudicial to the defendant.

In the closing argument of the county attorney, he stated among other things:

“I don’t know what your verdict will be. I believe it is going to be a verdict of guilty, but in the event you turn this man loose, the sheriff is anxious to know that, because the next time somebody calls him out of bed the next time because somebody is hit with a dangerous instrument, he can hang up the receiver and go to bed, because he don’t need to. I believe it beyond a reasonable doubt that this man assaulted him with that two pound sledge hammer and hit him in the back of the head.
“We want to know what you good men of this county think about it, how you want the law enforced. It is up to you fellows. If you believe a man has got a right to go out with a hammer and beat another over the head with it, that is your privilege. You are the makers of the law, you are the sole judges. We bring them up here and just give everything we had. We have put everything in this case we have got, and we believe the man is guilty and I believe he should go to the penitentiary, and I believe you fellows are honest, so whether I should or not, we have done what we think is right under our oaths, having made a presentation of our case, and I leave it up to you fellows.”

It has been held that it is improper for the prosecuting attorney to state his personal opinion as to the defendant’s guilt or state facts not proved by evidence, or otherwise get before the jury that which amounts to his own testimony. Cline v. State, 57 Okla. Cr. 206, 47 P. 2d 191.

In considering these last two assignments of error together, we are giving the defendant the benefit of any doubt there might be as to whether such conduct was in the least prejudicial to his rights. While the actions and statements of counsel for defendant might be said to have induced some of the statements which were made by the county attorney and also the admonition given by the court to the jury hereinabove quoted, we can see that there is a possibility that such conduct might have affected the jury. We do not see how it can reasonably be said that these acts caused the jury to return a verdict of guilty. The defendant himself states that he struck this palsied individual with a shop hammer. His explanation for his conduct is weak and apparently was not believed at all by the jury, nor is it believed by this court. The blows which were struck were evidently glancing blows because if the complaining witness had been struck by the direct force of a two pound hammer his skull would evidently have been fractured and he easily could have been killed. The only thing the statements complained of might have done was to have caused the jury to give defendant more punishment than they might have otherwise done if the statements complained of had been omitted.

In Hall v. State, 68 Okla. Cr. 367, 99 P. 2d 163, this Court held:

“Where the guilt of the defendant is clear, and there is no reason to believe that the jury could have arrived at any other verdict than guilty, this court will not reverse the ease because of the improper conduct of the county attorney, but in the exercise of its discretion will modify the penalty imposed and affirm the judgment of the lower court.”

Under all the circumstances as disclosed by this record, we have come to the conclusion that justice will be served by modifying the sentence imposed against the defendant for a term of one year and one day of imprisonment in the State Penitentiary to a term of six months imprisonment in the State Penitentiary.

It is therefore ordered that the judgment and sentence of the district court of Cotton county be modified by reducing the sentence from one year and one day in the State Penitentiary to a sentence of six months in the State Penitentiary, and the judgment and sentence as thus modified is affirmed.

BAREFOOT and BRETT, JJ., concur.


text:
    ELLA EWING WEEKS v. STATE.
    No. A-10951.
    Feb. 9, 1949.
    (202 P. 2d 1005.)

      Roy Paul, of Durant, and E. Moore, of Coalgate, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Ella Ewing Weeks, was charged by information filed in the county court of Coal county with the offense of driving an automobile on a public highway while under the influence of intoxicating liquor, was tried, convicted, and sentenced to pay a fine of $50 and costs, and has appealed.

Three assignments of error are presented:

(1) Error of the court in overruling the motion for continuance.

(2) The motion to quash the information and demurrer to information should have been sustained because the information was not signed by the county attorney.

(3) Error of the court in admitting in evidence a copy of the report of the highway patrolman who arrested defendant.

We shall consider these assignments of error in their reverse order.

The defendant was arrested about midnight, August 4, 1946, while driving upon TJ. S. highway 75 south of Coalgate. In the automobile with her at the time of her arrest were her niece, nephew, and the husband of her niece. The fact as to whether she was under the influence of intoxicating liquor was strongly disputed at the trial. The arresting officer was O. O. Campbell, a member of the highway patrol. When he was called as a witness in chief to testify on behalf of the state, he testified that in his opinion the defendant was under the influence of intoxicating liquor at the time he arrested her. He further testified that the defendant told him at the time of her arrest that she had taken two drinks of whis-ky before she left her home.

The defendant testifying in bier own behalf specifically denied that she drank any whisky before she left her home and further denied that she told the highway patrolman that she had taken two drinks of whisky before she left her home.

A large number of witnesses from Atoka county testified to the excellent reputation which the defendant bore in the community where she resided.

In rebuttal the state called Mr. Campbell, the highway patrolman, and had him identify a copy of a report which he had made to his superior officers after he had arrested the defendant; this copy of the report of the patrolman was admitted in evidence for the purpose as stated by the county attorney “of bolstering his testimony.”

The report stated:

“The subject was driving a 1937 Chevrolet Sedan, bearing a 1946 Oklahoma license #47-875, upon U. S. Highway #75 from a point unknown to a point 2 miles south of Lehigh, Oklahoma, 12:30 A.M. August 4, 1946, while under the influence of intoxicating liquor.
“The accused was first observed operating the above vehicle without proper lights and at that time was driving down the center of the road and before I conld stop her, she had forced 4 vehicles off of the road that she was meeting. I stopped the accused to inquire the reason for her actions, and at that time she had the odor of alcohol on her breath and her speech was incoherent and her actions impaired, which indicated that she was intoxicated and she also admitted that she had a drink or two before leaving home.”

So far as our research has disclosed, this court has never had a case where there had been an effort to introduce in evidence the report of the highway patrolman in a prosecution for the alleged commission of a crime where the highway patrolman was present in court to testify as a witness.

The Attorney General in his brief has stated:

“The basic question for decision was whether the report was admissible in evidence under the provisions of 12 O.S. 1941 § 486, authorizing duly certified copies of papers and records, required by law to be made or kept in a public office, to be received in evidence.”

12 O.S. 1941 § 502 provides, in part:

“The books and records required by law to be kept by any county judge * * * or other public officers, may be received in evidence in any court; * * *.”

12 O.S. 1941 § 486, provides as follows:

“Copies of all papers authorized or required by law to be filed or recorded in any public office, or of any record required by law to be made or kept in any such office, duly certified by the officer having the legal custody of such paper or record, under his official seal, if he have one, may be received in evidence with the same effect as the original when such original is not in the possession or under the control of the party desiring to use the same.”

The Supreme Court of Oklahoma, in the case of Hadley et al. v. Ross, 195 Okla. 89, 154 P. 2d 939, had under consideration the question as to whether a certified copy of the report of a highway patrolman was admissible in evidence in a personal injury suit, arising out of a collision on a public highway.

In disposing of that case, the Supreme Court laid down the following rules of law as shown by the syllabus:

“Records made by a public official voluntarily or pursuant to official duty, based entirely upon hearsay, are not admissible in evidence to prove any fact' disclosed therein in a negligence action.
“Expressions of opinion or conclusions purporting determine cause and effect or expressions involving the exercise of judgment and discretion contained in records of investigations conducted by public officers, either voluntarily or pursuant to requirement of law, are inadmissible in evidence in a negligence action.”

The Department of. Public Safety was created by the Legislature, and as a part of the comprehensive plan of reducing hazards incident to the operation of motor vehicles on the public highway, it was made the duty of highway patrolmen to investigate and report on motor vehicle accidents on the highway system. 47 O.S. 1941 § 366. These reports made by the patrolmen are kept in a permanent file of the Department.

The copy of the report offered in evidence was not a certified copy of a report from a' permanent file of the State Department of Public Safety, but was evidently a copy retained by the patrolman detailing the circumstances surrounding the arrest of accused.

The statutes hereinabove quoted which are relied upon as authority for the admission of such report authorizes the admission of a duly certified copy of the report only if the • original would have been admissible in evidence. We cannot comprehend any basis for the admission of the original of said report in evidence. It is true that, as the county attorney said, the report bolstered the testimony of the highway patrolman as it related facts substantially the same as those testified to by the patrolman.

The only report required by law of the highway patrolmen is a report of motor vehicle accidents on the public highway outside of municipalities. 47 O.S. 1941 § 366, supra. There is no requirement in the statute creating the highway patrol and defining its duties which provides that the patrolman shall make a report to the Department of Public Safety, of the facts pertaining to an arrest by the patrolman. Although the Commissioner of Public Safety may have himself directed the patrolmen to make reports of arrests, it would not be such a report as is required by law to be kept by the Department of Public Safety, unless a highway accident was involved, and accordingly, even under the theory of the state, such instrument in the instant case would not be admissible in evidence as there was no highway accident involved. However, in such a case, under the authority of Hadley v. Ross, supra, the certified copy of the report would have been inadmissible. This was a closely contested case and one where the jury might reasonably have come to the conclusion to render a verdict of not guilty. In such a close case the admission in evidence of a copy of the patrolman’s report might reasonably have been the evidence which caused the jury to return a verdict of guilty, and its admission as we review the law was reversible error.

As to the second assignment of error, the defendant at the time of arraignment showed by the testimony of the court clerk that at the time the information against the defendant was filed in the office of the court clerk, it was only signed by the assistant county attorney, and he cites the case of McGarrah v. State, 10 Okla. Cr. 21, 133 P. 260; and Heintz v. State, 49 Okla. Cr. 148, 295 P. 402, to sustain his contention.

Under the statute, 22 O.S. 1941 § 303, it is provided that the county attorney shall subscribe his name to in-formations filed in the county, superior, or district courts. It has been held that the county attorney must subscribe his name to the information either in person or by his legally appointed assistant. Tiller v. State, 35 Okla. Cr. 31, 247 P. 421.

It is evident that at the time the information was filed, it was signed only by Lavern Fishel, assistant county attorney, but at the time of the arraignment of the defendant it had been signed H. M. Shirley, county attorney, by Lavern Fishel, assistant county attorney.

It appears therefore that the information had been corrected by amendment before the motion to quash the information was filed.

22 O.S. 1941 § 304 provides:

“An information may be amended in matter of substance or form at any time before the defendant pleads, without leave, and may be amended after plea on order of the court where the same can be done without material prejudice to the right of the defendant; no amendment shall cause any delay of the trial, unless for good cause shown by affidavit. R.L. 1910, § 5695.”

The record does not show any order granting permission to amend the information, but it has been held that an amendment may be made without leave under the above statute at any time before the defendant pleads. Burks v. State, 64 Okla. Cr. 285, 79 P. 2d 619.

In Tiller v. State, supra, this court held:

“The county attorney shall subscribe his name to informations either in person or by some legally appointed assistant. Where the name of the county attorney is not signed to an information, it may be amended before plea by signing the name of the county attorney either by the county attorney in person or by some legally appointed assistant.”

The third assignment of error is that the court erred in overruling the motion for continuance filed by the defendant on the account of the absence of witnesses whose testimony was material to the defense. The absent witnesses were the three persons who were passengers in the automobile with the defendant at the time of her arrest, and the sheriff of Coal county, who allegedly saw defendant in the jail where she was taken by the highway patrolman. A good showing was made by affidavit entitling her to a continuance, but it is unnecessary to enlarge this opinion by discussing this question for the reason that, upon another trial, the defendant will have ample opportunity to obtain the presence of these witnesses.

For the reasons hereinabove stated, the judgment of the county court of Coal county is reversed and remanded for new trial.

BAREFOOT and BRETT, JJ., concur.