author: PER CURIAM.

text:
    In re LEE SUNDAY.
    No. A-10112.
    March 3, 1943.
    (134 P. 2d 1041.)
    W. N. Redwine, of MeAlester, and W. J. Crump, of Muskogee, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   PER CURIAM.

This proceeding was commenced several months ago by filing in this court a petition for writ of habeas corpus to secure the release of Lee Sunday from confinement in the State Penitentiary.

The rule to show cause was issued and upon return being filed the cause was set for hearing and oral argument.

The evidence disclosed that petitioner was charged jointly with two- other parties in the district court of Muskogee county with the forgery of a check in the sum of $10. The petitioner, upon his arraignment in district court, entered a plea of guilty and was sentenced to serve five years in the penitentiary, but the execution of the judgment was suspended during good behavior of petitioner. A few months later petitioner pleaded guilty to the charge of public drunkenness. Subsequent to that time the county attorney of Muskogee county filed a motion to revoke the suspended sentence of petitioner, and on March 30, 1939, the district court of Muskogee county entered an order revoking the suspended sentence of petitioner and he ivas committed to the State Penitentiary where he has since been confined.

The evidence further disclosed that the two parties who were charged jointly with petitioner served about 30 days in the county jail while awaiting trial on said charges and then were released and never brought to trial. They were equally guilty with the petitioner.

After petitioner was committed to the penitentiary he Avas made a trusty and fled. After being apprehended by the officers the defendant entered a plea of guilty in the district court of Atoka county to the charge of escaping from the State Penitentiary and was sentenced to serve íavo years in the State Penitentiary.

The present county attorney, the former county attorney who prosecuted defendant, the district judge and many other parties familiar with him, testified in his behalf, but there Avas nothing in their testimony which showed that the judgment and sentence pronounced against petitioner Avas void. Rather, their appeal was in the nature of recommendation for clemency on account of the excessiveness of punishment rendered for the passing of a $10 check.

At the time of the oral argument, this court stated from the bench that the Avrit of habeas corpus would be denied but expressed itself as being in sympathy with the contention that petitioner had served enough time in the penitentiary for the offense which he had committed. Formal opinion of this court has been withheld in order to give the petitioner an opportunity to present his request for clemency to the Governor. Several months have passed and it is apparent that no clemency Avill be granted petitioner. This is no doubt due to the fact that his prison record discloses that he was an old offender.

Because of the reasons hereinabove stated, the writ of habeas corpus is denied.


source: Caselaw Access Project

author: JONES, P. J.

license: Public Domain

text:
    LECK WHITE v. STATE.
    No. A-10061.
    March 3, 1943.
    (134 P. 2d 1039.)

      Alvin G. Bruce, of Ardmore; for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Leek White, was charged by information in the district court of Murray county with the crime of driving an automobile while under the influence of intoxicating liquor, was tried, convicted and sentenced to pay a fine of $250 and costs, and has appealed.

When this case was called for trial counsel for defendant made the following motion:

“Comes now the defendant, L. F. Leek White, and asks this court to continue this case for the reason that he or his counsel either one did not have notice of the setting of this case on the docket until nearly noon on this date. That this defendant is not ready to proceed to trial, but will be ready if given a sufficient length of time within which to prepare and go to trial.”

This motion was denied and the court’s ruling thereon assigned as error.

Without some evidence in the record or further statement to' show more particularly in what way the defendant was being prejudiced by reason of being forced to trial on that date; we are unable to say that the court abused its discretion in refusing a continuance. The defendant had been charged with this crime on December 8, 1938. He was not brought to trial until December 5, 1940, about two years after he had been charged. During all of this period of time defendant and his counsel could have been preparing their case for trial. There was no showing made as to any particular witnesses necessary to the defense that defendant was unable to procure on account of being forced to trial on that date. An examination of the record shows that all of the people who were in a position to know any of the facts concerning the occurrence out of which the charges grew testified either for the state or defendant. Neither defendant nor the person who was present with him in his automobile on the date of the wreck out of which these charges arose testified.

It is next contended that the evidence is insufficient to sustain the conviction. This contention is ivithout merit. .Some of the witnesses for the state testified that in their opinion the defendant was very drunk. Others testified that his actions were abnormal, but refused to give an opinion as to whether he was drunk. There was ample evidence to prove that he was the driver of the automobile.

It is next contended that the court committed error in not sustaining the motion for a mistrial on account of the remarks of the county attorney in his closing argument to the jury which amounted to a comment on the fact that the defendant did not testify.

The record does not show the argument of the county attorney. It does contain a statement by counsel for defendant in the nature of an objection dictated into the record during the argument of the county attorney, which appears as follows:

“County Attorney Sadler, in his argument to the jury, made the following statements : That the testimony of these witnesses had not been contradicted by the defendant, and we objected to it.”

The jury was. excused when the objection was made and the court asked the county attorney just what statement he had made, to which the county attorney replied that he stated:

“That the testimony of these witnesses was not contradicted by the defense witness, and I deny that the term Contradicted by the defendant’ was used, or any such reference used.”

The assistant county attorney also stated that the county attorney did not say what counsel for defendant alleges was stated, but that the county attorney did state that the testimony of the state was not contradicted by the defense witness. After this hearing the court overruled the motion for a mistrial, the jury was recalled and the county attorney finished with his argument.

During the trial of the case the state used several witnesses to prove their case. On behalf of the defendant only one witness, the county jailor, testified. He testified that when the defendant was brought to the jail by the highway patrolman he did not appear to be under the influence of intoxicating liquor. However, it was brought out by the state that this was apparently so long after the wreck had occurred that the defendant had time to recuperate. The testimony of this witness of the defense was not a direct contradiction of the state’s witnesses and it would not be improper to so state.

It is unfortunate that a dispute arose as to just Avhat the county attorney stated in his closing argument. The trial court should have been following the arguments closely enough so that he could have dictated into the record what had been said by the county attorney. Of course, his denying the motion for a mistrial after a hearing amounts to a finding that the county attorney did not directly or by inference refer to the fact that defendant did not take the witness stand. In the face of this finding this court will not reverse the case.

The county attorney should have been very careful in his argument not to malee a statement which might force the trial court to declare a mistrial. The statute (section 3068, O. S. 1931, 22 O. S. 1941 § 701) makes it mandatory on the trial court to grant' a new trial when the prosecutor comments on the fact that defendant did not testify. It is taking a great chance for the county attorney to make any statement which might, in any way, prejudice his case, especially where he has made out a good case against the defendant and there appears no reasonable probability that any jury could do other than return a verdict of guilty.

Lastly, it is contended that the verdict of the jury is excessive and oppressive. No one was injured; the defendant’s Buick car brushed against a truck driven by one Earl Morton. Morton’s truck was slightly damaged and defendant’s automobile suffered considerable damage to a fender. A jury of citizens heard the -witnesses, knew all the circumstances, and were in a far better position to fix the punishment than this court. It is only when the punishment assessed is so excessive that this court can readily determine from the record that it was rendered because of passion and prejudice that this court will interfere to modify a penalty imposed by a jury.

In examining the record we find one error not called to our attention in the brief of either the state or defendant. The judgment recites “that the defendant pay a fine of $250.00 and court costs and in his failure to pay same he wall be incarcerated in the State Penitentiary at Mc-Alester to satisfy same according to law.”

In the case of Ex parte Autry, 58 Okla. Cr. 88, 50 P. 2d 239; and Ex parte Wagner, 58 Okla. Cr. 161, 50 P. 2d 1135, it is settled that a person may not be committed to the State Penitentiary to satisfy a judgment for a fine and costs, but that payment should be enforced by imprisonment in the county jail until the same shall be satisfied.

The judgment and sentence of the district court of Murray county is affirmed and this cause is remanded with instructions to correct the judgment and sentence in conformity to the views herein expressed.

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


text:
    JIM WILKERSON v. STATE.
    No. A-10208.
    March 3, 1943.
    (134 P. 2d 998.)
    Holmes H. Colbert, of Sulphur, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   PER CURIAM.

The information in this case charged the defendant, Jim Wilkerson, with having on the 4th day o*f July, 1941, in Murray county, possession of 12 pints of intoxicating tax-paid liquor, with, the unlawful intention then and there of selling, bartering, giving away and otherwise furnishing the same to others. Upon his trial the jury found him guilty, and assessed his punishment at confinement for thirty days in the county jail and to pay a fine of $75. Motion for new trial was duly filed and overruled.

The judgment and sentence was pronounced August 27, 1941, from which judgment an appeal was attempted to be taken by filing with the clerk of this court on January 5, 1942, a petition in error with case-made.

The record shows that the case-made herein was signed and settled on the 15th day of December, 1941, and was filed in the lower court on said day, but said appeal was not filed in this court until January 5, 1942, more than 120 days from the date of the entering of the judgment and sentence.

The Code of Criminal Procedure provides in part as follows:

“In misdemeanor cases the appeal must be taken Avithin sixty days after the judgment is rendered: Provided, However, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days.” Section 3192, Sts. 1931, 22 Okla. St. Ann. § 1054.

1'n the case of King v. State, 68 Okla. Cr. 145, 96 P. 2d 95, we said:

“It has been uniformly held that, in order to give this court jurisdiction, the appeal as prescribed by section 3192, supra, must be filed with the clerk of this court within the time which an appeal may be taken, and, where an appeal is not perfected by filing in this court a petition in error with case-made attached, or a transcript of the record, within the time prescribed by the statute, this court does not acquire jurisdiction of the appeal, and such appeal will be dismissed. Newton v. State, 38 Okla. Cr. 217, 260 P. 84.”

And see Swink v. State, 64 Okla. Cr. 466, 82 P. 2d 316.

For the reason stated in the cases cited, construing the foregoing statutory provision, we are of the opinion' that this court is without jurisdiction to entertain this appeal on its merits, and that the only jurisdiction possessed by this court upon the record before us is to dismiss the attempted appeal.

Unquestionably it is the duty of a court of last resort to see to it that a person convicted of crime- was accorded a fair and impartial trial, and the enjoyment of every legal right. However, to secure this determination by a court of last resort, an appeal must be taken in the manner prescribed by law.

In the instant case, the testimony taken upon the motion to suppress the evidence establishes the fact that the complaint and affidavit for a search warrant was filed with M. J. Pavlovitch, police judge of the city of Sulphur, and he issued the search warrant thereon.

It has been repeatedly held by this court that, where a search warrant, in a liquor case is issued by a police judge, it is a nullity, and evidence obtained by it should be excluded on timely objection. Whitford v. State, 35 Okla. Cr. 187, 249 P. 430; Boswell v. State, 36 Okla. Cr. 265, 254 P. 116; Hallmark v. State, 36 Okla. Cr. 236, 253 P. 513.

Thus, it appears that the defendant was not accorded a fair trial, in the due and orderly course of the law. However, upon the record in this case, for the reasons stated, this court is powerless to remand the case for any other proceeding other than to enforce its judgment.

The power to grant reprieves, commutations, paroles and pardons is vested in the Governor of the State. Const. Okla. St. Ann. art. 6, § 10. What has been said is a matter that may be urged in an application for executive clemency.

For the reasons stated, the purported appeal is hereby dismissed, and the cause remanded to the trial court with direction to cause the judgment to be carried into execution.


text:
    Ex parte BILL KIRK.
    No. A-10369.
    March 10, 1943.
    (135 P. 2d 65.)
    Bill Kirk, in pro. per.
    Mac Q. Williamson, Atty. Gen., and ,Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   JONES, P. J.

This is an original proceeding in habeas corpus by Bill Kirk to secure his release from the State Penitentiary at McAlester where he was committed from Tulsa county to serve a term of 35 years for the crime of robbery with firearms.

The only contention presented by petitioner1 is that the sentence assessed petitioner is excessive and in that connection alleges that a codefendant received a much lesser sentence and was paroled after serving three years. The petition further recites that petitioner' has¡ served ten years of the assessed judgment and should be released from custody.

Attached to the petition are a large number1 of letters recommending that the defendant be released.

There are no facts related in the petition which would give this court jurisdiction to grant the relief prayed. The question raised is purely one of clemency. In Oklahoma, by the provision of our Constitution, article 6, sec. 10, the power to grant clemency after conviction is vested solely in the Governor. The jurisdiction of this court in habeas corpus, matters is limited strictly to those cases where the judgment and sentence rendered against petitioner is clearly void.

The writ of habeas corpus is denied.

BAREFOOT and DOYLE, JJ., concur.


author: BAEEFOOT, J.

text:
    F. H. PHENIS v. STATE.
    No. A-10122.
    March 10, 1943.
    (135 P. 2d 62.)

      J. W. Burrow, of Gage, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and O. E. Enfield, Co. Atty., of Arnett, for defendant in error.
   BAEEFOOT, J.

Defendant, F. H. Phenis, was charged in the district court of Ellis county with the crime of driving a motor vehicle while under the influence of intoxicating liquor, was tried, convicted, and sentenced by the court to pay a fine of $100' and costs, and has appealed.

The only contention for reversal of this case is that the evidence was insufficient to sustain the judgment and sentence, and that the court erred in refusing to sustain a demurrer to the evidence of the state.

The statute upon which the charge is based, section 10324, Okla. Stats. 1931, 47 O. S. A. 1941 § 93, is as follows :

“It shall be unlawful for any person who is under the influence of intoxicating liquor, or who is a habitual user of narcotic drugs, and the having on or about one’s person or in said vehicle of said intoxicating liquor is prima facie evidence of a violation of this Act, to operate or drive a motor vehicle on any highway within this State, as defined in Section 1, of this Act, and any person violating the provisions of this section shall be deemed guilty of a felony and shall be punished by imprisonment in the penitentiary not more than one year’, or by fine of not more than Two Thousand ($2,000.00) Dollars, or by both imprisonment and fine.”'

Under this section of the statute, at the time defendant was charged, on February 10, 1941, the punishment was as for a felony. Since that date, the Legislature has amended the statute and it now provides that the first conviction thereunder shall be a misdemeanor, and the second offense a felony, and is as follows (47 O. S. A. 1941 § 93 as amended, Laws 1941, p. 199, sec. 1) :

“It shall be unlawful for any person who is under the influence of intoxicating liquor, * * * to operate or drive a motor vehicle on any highway within this State, as defined in Section 1, of this Act (10322 [O. S. 1931, Sec. 91 hereof]) and any person violating the provisions of this Section shall be deemed guilty of a misdemeanor for the first offense and upon conviction therefor shall be punished by imprisonment in the county jail for a period of time not to exceed one (1) year, or by a fine of not more than Five Hundred ($500.00) Dollars or by both such fine and imprisonment. Any persons found guilty of a second offense under, the provisions of this Act shall be deemed guilty of a felony and upon conviction therefor shall be punished by imprisonment in the State Penitentiary for a period of time not to exceed two (2) years, or a fine of not more than One Thousand ($1,000.00) Dollars or by both such fine and imprisonment.”

This charge was the outgrowth of a minor automobile accident on the streets of the town of Shattuck, in Ellis county, on November 20, 1940. An attempt was made to back an automobile that was parked on the street out from the curb, and two cars were hit. No one was injured, and the record does not reveal that either car was more than slightly damaged. , Some time after this occurrence the defendant was arrested about five blocks from where the accident occurred. He was placed in jail and these charges were filed against him on December IT, 1940.

The two officers who arrested him were the only witnesses AvliO' testified that the defendant was under the influence of liquor. Neither of these parties saw him drive the car at any time. They arrested him at his place of business, and in his office. The arrest was made some time after the accident, and Avhile both officers testified that he was under the influence of liquor at the time of his arrest, between 4:30 and 5 o’clock in the afternoon, neither of them sarv him driving his car while in this condition.

The other witnesses for the state Avere Karl Kuf, Dave Siebenlist, and Kenneth Paul, and after the state had closed its case, it was permitted to place Tom Jackson, the sheriff of Ellis county, on the stand.

The first two of these witnesses testified to seeing the defendant back his car from the,curb, and strike a car and a truck; and while both witnesses identified the defendant, they were at some distance from him, and one of the witnesses only saw through the windshield of his car, and the back glass of the defendant’s car. Other witnesses testified that he afterwards told them that he was unable to say positively that it was the defendant who was backing the car.

But the main fact is that neither of these witnesses, nor any other witness, testified that whoever was driving the car was under1 the influence of intoxicating liquor. None of the other witnesses for the state identified the defendant, and while there may have been sufficient evidence offered by the state as to defendant being the party who was driving the car, there is absolutely no evidence that the one driving the car was under the .influence of liquor at the time the car was backed from where it was parked.

The testimony of the two' officers as to defendant being under the influence of intoxicating liquor was at a time long after the accident occurred, and defendant had ample opportunity to have become intoxicated after this occurred, as he himself testified.

Defendant, after his demurrer to the evidence was overruled, testified that he was not in the car at the time of the accident. He testified that there were two* “public drawings” in Shattuck on that afternoon. That one was at 2:30 and the other at 4 o’clock; that he attended the 2:30 drawing, but that he did not attend the 4 o’clock drawing. The accident occurred ten minutes after 4' o’clock, according to the evidence of the state’s witnesses. Defendant further testified that his car was parked back of the barber shop, and that he went through there about 3:30, got his car and drove to the sales bam where he worked. He was corroborated in this statement by the barber and Ms wife, who were both present when he went through their place of business at 3:30 to get Ms car. Both testified that they talked with him and that he was not under the influence of liquor at the time, and that they did not smell liquor on his breath. One other witness testified to seeing the defendant on the streets and talking with him prior to the time the accident occurred, and that he was not under the influence of liquor, and that he did not smell liquor on his breath.

It is not often that this court will set aside a verdict of guilty that has been assessed by a jury. If there is a conflict in the evidence, and the evidence of the state is sufficient to sustain the judgment and sentence, the same will not be set aside; but it is also true that where the evidence is insufficient to support the judgment and sentence, we will not hesitate to set the same aside. Hubbard v. State, 71 Okla. Cr. 373, 112 P. 2d 174, and cases cited therein.

Here there is a conflict, as above stated, as to whether the defendant was the party who backed the car out, and collided, with the other cars, but there is a clear absence of any testimony on the part of the state that the defendant or anyone else who drove the car was under the influence of intoxicating liquor at the time the car was driven. This is the essential and necessary fact to be proven when one is charged under the statute above quoted.

The court takes notice of the fact that the statute under which defendant was charged and prosecuted carries with it the conviction of a felony. It is true that the jury left the punishment to' the court, and that the trial judge assessed as punishment a fine of $100, yet we will also take notice of the fact that the conviction of this offense takes from defendant other valuable rights, such as a mandatory forfeiture of his driving license for a period of one year. Session Laws 1937, p. 344, 47 O. S. A. 1941 § 295; Ashcraft v. State, 68 Okla. Cr. 308, 98 P. 2d 60.

Defendant should not be convicted upon mere suspicion and guess. The evidence relied upon by the state should be such as to convince one beyond a reasonable doubt as to defendant’s guilt before he is convicted. Here the evidence only raises a suspicion, and even though defendant was the party who drove the car, one would have to guess that he was under the influence of intoxicating liquor at the time charged.

There is one other proposition we desire to mention. The trial court in this case did not instruct the jury as to the definition of the term, “driving while under the influence of intoxicating liquor.”

This no doubt was by reason of the fact that this court has heretofore held that it was unnecessary to define this term in the charge to the jury (Welch v. State, 43 Okla. Cr. 47, 277 P. 280); and the further fact that the defendant did not request this charge.

Under these facts, this might.not be cause for reversal of this case, but on the 1st day of July, 1938, which Avas prior to the trial of this case, this court, in the case of Luellen v. State, 64 Okla. Cr. 382, 81 P. 2d 323, stated that we uoav think in cases of this character this term should be defined to the jury. In that case we quoted an instruction Avhich we think fully covers the same. As stated in that opinion, this term constitutes the very gist of the charge. There is a great divergence of opinion among jurors as to what facts it takes to constitute one being under the influence of intoxicating liquor. If it is necessary to define the term “murder” when one is charged therewith, certainly it should be necessary to define what is meant by the term “under the influence of intoxicating liquor” when one is so charged.

For the reasons above stated, the judgment and sentence of the district court of Ellis county is reversed and remanded.

JONES, P. J., concurs. DOYLE, J., absent.


text:
    Ex parte ELMER COLLINS.
    No. A-10370.
    March 10, 1943.
    (135 P. 2d 61.)
    Elmer Collins, in pro per.
    Mac Q. Williamson, Atty. Gen., for respondent.
   JONES, P. J.

The petitioner, Elmer Collins, instituted this original proceeding in habeas corpus to secure his release from confinement in the State Penitentiary at MeA1ester.

In his verified petition he alleges that he was committed by the district court of Muskogee county to serve a term of 37 years in the State Penitentiary for the crime of attempted rape in the first degree. The petitioner alleges that there is no such crime as attempt to commit rape in the first degree, bnt that he should have been prosecuted for assault with intent to commit rape, under which the maximum punishment would have been five years imprisonment in the State Penitentiary.

Although the petitioner does not so recite, this court takes cognizance of its own records and is familiar with the fact that petitioner appealed his conviction to this court. The same issue was there raised and decided adversely to him. Collins v. State, 59 Okla. Cr. 18, 55 P. 2d 790.

It was therein stated:

“Rape in the first degree is punishable by imprisonment in the penitentiary for not less than 15 years. Section 2519, Okla. Stat. 193.1, 21 O. S. 1941, § 1115. One convicted of an attempt to1 commit rape in the first degree is punishable by imprisonment in the State Penitentiary for any term not exceeding one-half of the longest term of imprisonment fixed for a conviction of rape in the first degree. Section 1822, subd. 1, 21 O. S. 1941 § 42, subd. 1. Under these provisions of the law one convicted of an attempt' to commit rape in the first degree may be sentenced to a term of 37 years in the State Penitentiary.”

We see no reason to depart from our ruling in the above case.

The writ of habeas corpus is denied.

BAREFOOT, •!., and DOYLE, J., concur.


text:
    In re W. H. SEALE.
    No. A-10383.
    March 17, 1943.
    (135 P. 2d 346.)

      W. H. Seale, in pro per.
    Mac Q. Williamson, Atty. Gen., for respondent.
   JONES, P. J.

The petitioner, W. H. Seale, has filed his verified application for a writ of habeas corpus, wherein it is alleged that he is unlawfully imprisoned in the State Penitentiary at McAlester, under a commitment issued from the district court of Oklahoma county, upon a plea of guilty for the crime of murder.

The facts alleged in said petition are substantially the same as the facts alleged in the petition by the petitioner heretofore presented to this court and which was denied. Ex parte Seale, 75 Okla. Cr. 183, 129 P. 2d 862.

A demurrer to the petition was interposed on behalf of respondent.

The rule of this court is that where an application for writ of habeas corpus has been denied, this court will not ordinarily entertain a subsequent application for a writ based on the same grounds and the same facts, or any other grounds or facts existing when the first application was made, whether presented then or not. Ex parte Berrie, 75 Okla. Cr. 115, 129 P. 2d 88; Ex parte Arthur, 75 Okla. Cr. 315, 131 P. 2d 135.

For the reasons above stated, the demurrer to the petition is sustained and the cause is dismissed.

BABEFOOT and DOYLE, JJ., concur.


author: BAREFOOT, J.

text:
    Ex parte WILLIAM GEORGE JOHNSON.
    No. A-10374.
    March 17, 1943.
    (135 P. 2d 346.)
    John J. Carney, of Oklahoma City, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   BAREFOOT, J.

The petitioner, William George Johnson, a minor, by his mother, Minnie Johnson, as next friend, filed in this court his application for 'writ of habeas corpus, alleging that he is illegally restrained of his liberty by the Honorable Edward P. O’Brien, warden of the Oklahoma State Reformatory, at Granite, Okla. That said illegal restraint is by reason of the following facts: That on September 25, 1941, he was adjudged guilty of a felony and sentenced to- serve three years in the State Reformatory at Granite, by the district court of Oklahoma county, Okla.; that said court immediately entered an order suspending said judgment and sentence; that thereafter, and on March 12, 1942, said suspended sentence was, by the court which imposed the same, revoked, and an order was made requiring, petitioner to serve the three-year sentence in prison, as hereinbefore stated.

Thereafter, towit, on September 1, 1942, the district court of Oklahoma county, being the same court which liad entered the original writ, entered an additional order by which the order entered on March 12, 1942, which revoked the suspended sentence as aforesaid, was vacated, annulled, and set aside, and petitioner was restored to all rights which existed before said order of revocation was made.

Petitioner further alleges that on September 23, 1942, he was delivered by the sheriff of Oklahoma county to the said Edward P. O’Brien, warden of the State Reformatory at Granite, and that said warden now holds such petitioner in said State Reformatory.

There is attached to the petition an order entered by the Honorable George H. Giddings, district judge, dated September 1, 1942, as stated in the petition filed by petitioner.

This matter was presented before this court, and the Attorney General stated in open court that in his opinion there are no grounds for holding the petitioner, and for that reason no resistance would be made to an order for his release.

After reading* the order of September 1, 1942, we are of the opinion that the Attorney General is correct in his conclusion. The court had the same right to enter an order vacating the former order as it did to make the original order, and for this reason the application for writ of habeas corpus is granted, and the Honorable Edward P. O’Brien, warden of the State Reformatory at Granite, is directed upon receipt of a copy of this opinion to release and discharge the petitioner, William George Johnson, from said State Reformatory. It is further ordered that upon the discharge of the said William George Johnson from the State Reformatory he again become subject to all the conditions of the suspended sentence in accordance with the order of the district court of Oklahoma county, entered September 25, 1941.

JONES, P. J., concurs. DOYLE, J., absent.


text:
    WILLIAM EDWARD DUGGINS v. STATE.
    No. A-10126.
    March 17, 1943.
    (135 P. 2d 347.)

      LaRue & Monroe, of Clinton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, William Edward Dug-gins, was charged jointly with one Preston McDowell with the crime of rape in the first degree, a severance was granted, the state elected to try Duggins first, he was tried, convicted, and sentenced to serve 15 years in the State Penitentiary, and has appealed.

The prosecutrix, Christine Allison, testified that she had known the codefendant, Preston McDowell, for about a year and a half before the rape is alleged to have occurred on March 9, 1941; that during this period of time she had been keeping company with McDowell; that on March 9, 1941, she went to the Rainbow Night Club, about two miles southwest of Clinton, with some other friends; that she saw McDowell at the night club and sat in a booth and visited with him; that about 1:30 a. m., she wanted to go home, but the friends who had brought her were not ready to go and she asked McDowell to take her home; that McDowell did not have an automobile but the defendant, Duggins, who was McDowell’s friend, also was present at the night club with his car and offered to let McDowell use his car to drive her home; that she and McDowell went outside and got into the back seat of the Ford Tudor sedan; that they sent a boy named Winkleback after Duggins while they sat in the ear; that Duggins came out and instead of taking her home he drove through Clinton and towards Weatherford on Highway 66 and parked on a country lane; that the defendant left the car, walked off, leaving prosecutrix and McDowell at the car; that while Duggjns was gone McDowell tried to force her to have sexual intercourse with him, but that she refused; that in a few minutes Duggins returned to the car, and, at the request of McDowell, held the hands of prosecutrix while McDowell had sexual intercourse with her across the front seat of the automobile.

At no place in the examination of prosecutrix did she give her age, but her testimony showed that she had been working at various cafes in and around Clinton. There is no- evidence in the record as to her size, but considering the work that she had been doing and the age of some of her associates, she evidently was a girl between 18 and 21 years of age. She admitted that when she was taken home after the act was committed McDowell accompanied her to the door and kissed her goodnight. She testified that when she got in the house her mother asked what was wrong and she told her. That her dress was torn in front and that they notified the officers immediately what had happened. That it was then about 3:30 or 4 o’clock in the morning.

Dr. Harry A. Cushman testified that he examined the prosecutrix on March 10, 1941; that she had a bruised place on her thigh and his examination showed that the hymen had definitely been torn within the last few hours. That he found evidence of spermatozoa from a male which showed up on a smear examined under a microscope. He gave as his opinion that she had had sexual intercourse within the last few hours and that, in his opinion, prior to that time she was a virgin.

Preston McDowell testified for the defendant that he was in the C.C.C. Camp at Clinton. That about 2 o’clock a. in. the prosecutrix came to him at the nightclub and asked if he would take her to> town; that he spoke to Duggins and Duggins offered to let him have his automobile to take her to town; that he and prosecutrix got in the back of Duggins car and commenced loving each other; that after a few minutes she saw a boy by the name of Winkleback and told him to tell the defendant, Duggins, to come on out and drive them to town; that they stopped at a filling station in Clinton and got a half-gallon of oil; that they drove out east of town and stopped about a mile off the highway; that Duggins left the car and while he was gone he had sexual intercourse with the prosecutrix with her consent; after they had finished he honked the horn and Duggins came back and drove them home; that he got out of the car, walked to the door with prosecutrix, and kissed her goodnight; that the prosecutrix did not fight him any at all but seemed to enjoy it as much as he did; that the prosecutrix’s dress was tom when she jumped out of the car as it slowed down on Main street in Clinton just before they got to the filling station where they filled up with oil; that he did not know why the prosecutrix jumped out but that she skinned her knee and tore her dress a little, but apologized and got back in the car with him. (The prosecu-trix testified that she jumped out of the car because she was within a block of her home and wanted to go home; she admitted that she skinned her hands and knees in the jump and then got back in the car and drove to the filling station with the boys after oil.)

The testimony of defendant, Duggins, was in substance the same as McDowell’s. He was 21 years of age.

All of the boys and girls who accompanied the prose-cutrix to- the Rainbow Night Club testified on behalf of defendant to refute the statements of the prosecutrix that she was wanting to go home bnt that they were not ready. They each denied that this occurred.

It is insisted that the court erred in not sustaining the motion of the defendant for an instructed verdict of not guilty for the reason that there was noi proof that the prosecutrix was not the wife of Preston McDowell, the alleged perpetrator of the crime.

Section 2515, O. ;S. 1931, 21 O. S. 1941, § 1111, provides :

“Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstancesHere follows eight separate grounds for rape but all of the listed circumstances come under the enacting clause where the phrase “not the wife of the perpetrator” appears.)

Under this statute it would not be possible for the person who actually commits the act of sexual intercourse with the prosecutrix to be guilty if he were the husband. Myers v. State, 19 Okla. Cr. 129, 197 P. 884, 18 A.L.R. 1057; Parker v. Territory, 9 Okla. 109, 59 P. 9; Young v. Territory, 8 Okla. 525, 58 P. 724.

In the case of Myers v. State, supra [19 Okla. Cr. 129, 197 P. 885, 18 A.L.R. 1057], the court said:

“Unlike the statutes of many other states that adhere to> the common-law definition of rape, our statute provides that in eight different conditions or situations sexual intercourse with a female shall constitute rape, and all other situations must be excluded. It would seem, then, under our statute, under circumstances shown by the testimony in this case, that the crime of rape can be committed only on some female 'not the wife of the perpetrator/ except, as provided in subdivision 8, above quoted, the husband may be guilty of the offense perpetrated on the wife in any of the ways pointed out in the statute by collusion with the party actually committing the act, or by aiding or abetting the principal perpetrator to commit the act, and not otherwise.”

In Parker v. Territory, supra [9 Okla. 109, 59 P. 10], it is stated:

“It will be seen by an. examination of this statute that the language, ‘not the wife of the accused/ is made a part of the definition of the crime itself; and while this statement is negative in its character, it is nevertheless a negative averment necessary to charge the crime of rape. It is a well-recognized principle of common law that, in order to convict any person of any crime, every material element and necessary ingredient to constitute the crime must be proven to the satisfaction of the jury, beyond a reasonable doubt, and every material element and necessary ingredient incumbent upon the commonwealth to prove must be charged in the indictment. Hence, in this case, as the allegation that the prosecutrix was not the wife of the accused was a material and necessary part of the definition of the offense^ and the omission of which would render it impossible to make the charge of rape against the accused under the laws of this territory, we think there is no doubt that the failure to charge this fact in the indictment was fatal to the indictment, and that the demurrer should have been sustained by the court below.”

The territorial law defining the crime of rape is in the same language as our present law under which this prosecution was instituted, above quoted. In the early case of Young v. Territory, supra [8 Okla. 525, 58 P. 725], construing this statute, the court stated:

“Under the old definition of the crime of rape, and under old forms of pleading, the fact of whether or not the prosecutrix was the wife of the accused did not necessarily enter into the case. But it will be observed that our statute has introduced a new element into the definition of the crime of rape, and such element constitutes one of the essential ingredients of the offense. The definition of rape, as contained in our statute, cannot be read, and eliminate the clause ‘not the wife of the perpetrator.’ This new element introduced into the crime is not a matter of excuse for the defendant, to be pleaded and proved by him, but is a necessary and essential element of the crime itself, which must be established by the prosecution in order to make the crime complete, and, if material to prove, then is required to be charged.”

Further in the opinion the court quoted with approval from the case of Rice v. State, 37 Tex. Cr. R. 36, 38 S.W. 801, 802, as follows:

“Applying this rule to the construction of this statute, it will be seen that the words ‘other than the wife of the person’ occur in the body of the enacting, clause. The offense cannot be read without reading this. It does not occur in any proviso or distinct, substantive clause, but is a part of the act itself, and, under the rule heretofore laid down, the indictment should negative the fact that the alleged injured female was the wife of the defendant. Of course, it is best that this negation be by direct and positive averment. However, there may be cases in which such negation might otherwise be set out by the pleader; but, if it is attempted, the allegation should be so certain as to exclude the idea which is intended to be negatived in the statute. As applied to' this case, the allegation, if not of a direct and positive character, must show by averment, in some way, to a certainty, that the alleged injured female was not the wife of the defendant; that is, it must absolutely exclude the idea that she ivas his wife. It may be contended that the use of another name than that borne by the defendant sufficiently negatives the idea that she was his wife. There is nothing in our statute requiring or compelling the wife to take or assume the name of her husband. While this is generally the case, yet the wife might retain her own name. She might be married to the defendant, and still be known by her maiden name, or some other name than his.”

In the brief of the state the Attorney General concedes that the information, must contain the negative averment that the prosecutrix “was not the wife of the perpetrator,” and that the proof of the state must sustain this material ingredient of the offense. He asserts that the case would have to be reversed because of the failure of the state to- make proof of this fact had it not been that defendant took the witness stand and swore that he was not married and never had been and this cured the error.

In the first place, as we construe the testimony of defendant, he did not testify that he was not married and never had been. The testimony on this point is as follows:

“Q. (By County Attorney) Do you go out in the country that way quite frequent? A. I have been out in the country, yes. Q. You live in the country? A. Yes, sir. Q. Not married and never have been? A. Yes.”

It would appear from the affirmative answer to this double-barreled question that the defendant was testifying that lie was married. Regardless of the interpretation which may be given to this testimony, it is evident that counsel for the state are confused concerning the application of the statute. It is wholly immaterial as to whether the defendant was married, but his guilt rests solely upon the question as to- whether Preston McDowell, the person who actually committed the act with prosecu-trix, was her husband. There is no contention that defendant committed the act of sexual intercourse with prosecutrix, but his guilt is determined solely by the question as to whether or not he aided and assisted Preston McDowell in making the alleged felonious assault. If McDowell was the husband, there would be no rape, even though defendant held prosecutrix’s hands as alleged. It is conceded that the record is wholly silent as to any direct proof that prosecutrix was not the wife of McDowell. This proof may be made by circumstantial evidence. There are no facts in this case such as to compel the assumption that there was no valid marriage between McDowell and the prosecutrix. There was ample opportunity for the prosecution to prove this element of the crime directly. But not only did they not offer direct proof that prosecutrix was not wife of McDowell, but there were not sufficient circumstances to justify the submission of this question to the jury.

We feel particularly inclined to this view as applied to the immediate case owing to the unsatisfactory facts as reflected by the record and admissions of counsel. When this case was called for trial, counsel for the defendants, Dug'gins and McDowell, asked for a severance. The state elected to try Duggins first. Since he was not the man who actually committed the act of sexual intercourse but was only a minor character under the strongest view of the evidence, we are at a loss to understand why this preference was made by the state. Although the record is silent as to what disposition was made of the case against McDowell, upon inquiry by this court the Assistant Attorney General has informed us that after the defendant Duggins was convicted the county attorney reduced the charge against McDowell from rape in the first degree to rape in the second degree and McDowell entered a plea of guilty and was given a term of three years’ imprisonment. The defendant Duggins, being sentenced to 15 years’ imprisonment, was unable to make bond and has been incarcerated in the State Reformatory at Granite for the past two years. If he had received no more punishment than that meted out to the arch-criminal McDowell, under an allowance for good behavior, he would have had his time served and be at liberty.

There are two* other errors shown in the record which would have been sufficient to have required a reversal of this case, towit: The effort of the county attorney to prove the bad reputation of defendant when the defendant had not placed his reputation in issue by offering evidence of his good reputation. Porter v. State, 8 Okla. Cr. 64, 126 P. 699; Morris v. State, 26 Okla. Cr. 399, 224 P. 377; Martin v. State, 29 Okla. Cr. 136, 232 P. 966.

Also, in the closing argument of the county attorney, he exceeded the bounds of propriety wiien he stated:

“I would like to bring you more facts about this defendant, but the law will not permit me to* do* it.”

This statement was made by the county attorney after he had made an attempt through the sheriff to prove the bad reputation of the defendant, but objection was made by defendant and the objection sustained. It was improper for the county attorney to make such comment to the jury trying to leave the impression with them that the defendant had a. bad reputation but his counsel is trying to hide something and therefore objects and the court wouldn’t allow him to* show just how bad it is over the objection of defendant.

By reason of all of the foregoing, it is our conclusion that the judgment of the district court of Custer county should be reversed.

Based strictly on the record before us, we think the defendant, even if guilty, has been sufficiently punished. However, we do* not order the dismissal of the case. We can perceive that there might be some circumstances not known to this court but impelling the county attorney to elect to try defendant, the abettor, before he tried the actual perpetrator. Because of these circumstances- he might desire to try defendant again. We are therefore remanding this case for a new trial or such disposition as appears to the trial court to be legal and proper, under all of the circumstances of the case.

It is so ordered.

BAREFOOT and DOYLE, JJ., concur.


text:
    PETE NICHOLS v. STATE.
    No. A-10115.
    March 17, 1943.
    (135 P. 2d 352.)

      Pierce & Pierce, of Muskogee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Douglas Garrett, Co. Atty., of Muskogee, for defendant in error.
   BAREFOOT, J.

Defendant, Pete Nichols, was charged jointly with one A. J. Dadisman in the county court of Muskogee county with the crime of unlawful possession of intoxicating liquor, towit, 236 pints of tax-paid liquors; was tried, convicted, and sentenced to' pay a fine of $250 and serve 45 days in the county jail, and has appealed.

Defendant in his brief states:

“The defendant assigns a total of 20 assignments of error but only relies upon the following:
“First: The court erred in denying defendant’s request for a separate trial.
“Second: The court erred in admitting certain exhibits offered on behalf of the state and permitting proof thereof to go to the jury over the objections and exceptions of the defendant.
“Third: The court erred in refusing to grant a mistrial at the conclusion of the state’s case after permitting the state to withdraw certain prejudicial exhibits which had been offered in evidence over the objections and exceptions of the defendant.”

Defendant was charged jointly with A. J. Dadisman. This case was set for trial on March 24, 1941, but continued until March 27, 1941. On. this date the record shows that a motion was filed by the defendant asking for a severance. A notation thereon recites: “Motion for severance heard and overruled.” An affidavit of defendant was attached to this motion, but no evidence was taken thereon.

It is provided by section 3065, Okla. Stat. 1931, Okla. Stat. Ann. 1941, Tit. 22, § 838, as follows:

“When two or more defendants are jointly prosecuted for a felony, any defendant requiring it must be tried separately. In other cases defendants jointly prosecuted may be tried separately or jointly, in the discretion of the court.”

Defendant in support of his contention cites the case of Steen v. State, 4 Okla. Cr. 309, 111 P. 1097, and Nichols v. Territory, 3 Okla. 622, 623, 41 P. 108.

In the Steen Case the court held that the granting of a severance in a misdemeanor case was1 within the discretion of the court, and that the exercise of this discretion is reviewable on appeal; that the record must show an application for a severance setting out sufficient grounds therefor, supported by oral evidence, or affidavits, and the application must be made before the empaneling of the jury is begun.

In the instant case motion was filed on the day the trial started. There is nothing to show at what time the motion was presented.

In the Nichols Case cited, the defendant was charged with a felony. The motion was made while the empaneling; of the jury was in progress. The court held that it was not error to overrule the request.

We have examined the record, and do not find anything therein which would justify us in holding that the defendant was prejudiced by the court overruling the motion for severance filed in this case. There was ample proof that the defendant was operating the place where the liquor was found and at the time the search was made. The court sustained almost every objection by the defendant to the introduction of evidence. Johnson v. State, 48 Okla. Cr. 407, 279 P. 368; Patty v. State, 74 Okla. Cr. 322, 125 P. 2d 784; Cruzan v. State, 13 Okla. Cr. 71, 161 P. 1179.

Tlie record further reveals that a place of business was being conducted at 210 Wall street, in the city of Muskogee, on December 6, 1940; that on this night certain officers, including some who were connected with the State Department of Public Safety, searched the premises by reason of a search warrant which they had procured. The place consisted of a bar, glasses, and other paraphernalia usually had where drinks are served. The officers found located in the ceiling a plant which contained 236 pints of tax-paid whisky, and an electric motor which was geared up so that it would let down the ceiling by a wire cable. A stepladder was so attached that one could go up between the ceiling and roof. This device was used to lower the whisky from the plant to the floor where the bar was located. The place had been’ closed just a short while before the officers arrived, but the evidence revealed that the telephone rang several times whfle the officers were there and inquiry was made for the defendant.

There ivas also offered in evidence witnesses who testified that the telephone, the gas, and the lights were placed in these premises by the defendant, and many bills paid by him during the year 1940 and prior thereto1. It was also shown by the evidence that he had rented the building, and paid the rent thereon. Also a number of witnesses testified to seeing the defendant in and about the premises, and in charge thereof. Defendant also admitted to one of the officers that he was the owner of the premises, and made statements with reference to how he operated the business. There was introduced in evidence retail liquor dealer’s tax receipts which were found on the premises. One of these receipts was in the name of the defendant covering the period from July 1, 1939, to June 30, 1940, and one in the name of his codefendant with whom he was being tried covering the period from July 1, 1940, to June 30, 1941.

Defendant did not take the witness stand, nor did he present any witnesses in his behalf.

From the above statement, it will be observed that there was sufficient evidence to' justify the jury in finding that the place of business at 210 Wall street, in the city of Muskogee, was being operated by the defendant and his codefendant, and the jury was justified in finding the defendant guilty.

The second assignment of error is that the court admitted certain exhibits which were incompetent. ' This had reference to the exhibits which were found by the officers on the premises at the time of the search. It is unnecessary to go into detail with reference to these exhibits. We have carefully examined the record. The court sustained an objection to all instruments unless they were particularly connected with the defendant, and the jury was instructed in each instance not to consider any exhibits that were not admitted in evidence. These exhibits were found in boxes, and contained receipts for rent, orders for liquor, and other bills. They were admissible as a circumstance for the purpose of showing that defendant was operating the place of business at 210 Wall street, which was one of the issues involved in the trial of this case.

The objection that the court erred in permitting, the retail liquor dealer’s tax receipt which was issued to the defendant in the year 1939, and which expired June 30, 1940, to be introduced, because the search was not made until December 6, 1910, is untenable. The evidence in the case discloses that the defendant and his codefendant were operating this place jointly for the years 1939 and 1940. The introduction of this receipt was a circumstance for the consideration of the jury to prove that they were operating this business at this place. After it was shown that they were both operating the business, it was immaterial in whose name the retail liquor dealer’s tax receipt had been issued. ,

Further objection is made by defendant that the court erred in refusing to permit counsel to cross-exaniine certain witnesses for the state with reference to the search of defendant’s home at a time different from the search in question. This was clearly immaterial to the issues in the case on trial, and there was no error in refusing to permit the introduction of this evidence. This attempt of the defendant was to prove that the search of his home had been an illegal search.

The third assignment of error is based upon the court permitting the withdrawal from the record of the affidavit for the search warrant, and the search warrant itself. The record discloses that this was done upon the motion of the county attorney. In sustaining the motion, the court stated:

“The motion of the county attorney to withdraw Exhibits ‘A’ and ‘B’ is allowed and said exhibits withdrawn and the motion of the defendants and each of them denied. That the aforesaid exhibits ‘A’ and ‘B’ have not been read or presented to the jury, nor the contents thereof disclosed to the jury, nor comment made thereon to the jury, either by the court or the attorneys for the state and defendants, but the court instructs the jury to disregard and not to consider the evidence, or in considering this case, either of said exhibits, to all of which the defendants and each of them except:”

It is revealed by this statement and also by tbe record that these exhibits, had only been offered in evidence, and had not been read to the jury, and the jury was instructed by the court not to in any way consider them.' From an examination of the record as a whole, Ave do. not see that there was any error in permitting the Avithdrawal of the exhibits. The defendant Avas in no. way prejudiced thereby. He had a fair and impartial trial.

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

JONES, P. J., concurs. DOYLE, J., absent.


author: DOYLE, J.

text:
    HENRY PETERS et al. v. STATE.
    No. A-10012.
    March 17, 1943.
    (135 P. 2d 355.)

      Wayne E. Wheeling and Tellegen & Miskovsky, all of Oklahoma City, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case, filed in the court of common pleas of Oklahoma county February 24, 1940, charged that on the 23d day of February, 1940, in Oklahoma county, Henry Peters and Sammy Kutz, did then and there wilfully and unlawfully maintain and operate a certain one-story frame building located at 30th and South Eastern streets and adjacent to Oklahoma City, where intoxicating liquors, towit, whisky, was kept, bartered, sold and given away to divers persons unknown, who were permitted to congregate therein for the purpose of buying, receiving and drinking the said intoxicating liquor, all to the common nuisance of the public, contrary to, etc.

On the trial the jury returned a verdict finding “the defendant, Henry Peters, guilty as charged in the information, and fix and assess his punishment at confinement in the county jail for a period of 30 days and a fine of $50.00; and find the defendant, Sammie Kutz, guilty as charged in the Information, and fix and assess his punishment at confinement in the county jail for a period of 30 days and a. fine of $50.00.”

October 14, 1940, their motion for new trial was overruled and judgments rendered in accordance with the verdict. From these judgments the defendants bring the case here on appeal for review. The case-made was filed in this court February 10, 1941.

The errors assigned are that the court erred in admitting incompetent and prejudicial evidence, and allowing the jury to consider the same, over the objections of the defendants; that the verdict of the jury was not supported by the evidence and is contrary to law, and the court erred in overruling the defendants’ demurrer thereto; and that the court erred in overruling the defendants’ motion for a new trial.

In support of the assignments counsel for plaintiffs in error have filed an extensive brief.

The Attorney General’s brief begins with the statement that:

“This is an appeal from a judgment and sentence of the court of common pleas of Oklahoma county, without a jury.”

And in conclusion states:

“The court, sitting as a jury in this case, heard all the evidence offered in connection with the Mistletoe Tavern, and as there was no evidence whatever offered on the part of the defendants or either of them, it is submitted that the court has a right, in arriving at its decision.”

To better understand the assignments it will be necessary to give a brief statement of the facts disclosed by the testimony and a substantial statement of the testimony of the witnesses for the state.

It appears that on the date alleged, four state officers visited the place described in the information. They observed three men sitting in- a booth. These men were the first three witnesses called by the state. Each in substance testified that they were at this place for the purpose of repairing a light plant; that after working on the light plant, one of them, Jim Peck, who had a pint of whisky with him, invited the other two men to have a drink, that the men were sitting in a booth when the officers came into the place.

Mack Eenshaw testified that on February 23, 1940, Jim Peck called him to go to Thirtieth and South Eastern to work on a light plant; this was the second time he worked on the plant; that when the officers, Goldsmith, Beck, Serán, and West, came in he was sitting in a booth, and Jim Peck had a pint of whisky.

Cross-examined he stated:

“I don’t know where Jim Peck got it, I did not purchase any whisky at any time from either of these defendants.”

Earl Warr testified that “Jim Peck, with the American Electric Company, was installing a new magneto in the light plant there, they brought one out, it did not fit, so he called him up to borrow one and I brought him one. I know Henry Peters and Sammy Kutz, I have been to that place quite often, it is out near where I work, I pass there often, 1 do not know what business Sammy Kutz is in that place,” and back in February he took a drink there.

Cross-examined he stated:

“I am pretty sure Mr. Peck had the pint of whisky in his car with him, he brought it there with him, I know that as a fact, when the officers came in I believe it was sitting on the side between Jim Peck and I.”

On redirect he testified as follows:

“Q. Did you yourself ever buy any whisky there? Objection overruled. The Court: He can answer that yes or no. A. Yes.”

On re-cross examination:

“The Court: Now, as I say, for the purpose of the jury and the record, the case was filed on the 24th day of February, 1940. Now, if the sale that you are talking about was prior to that time or in the immediate priority of that time, the evidence would be competent. If it has been since that time, it is not competent. Can you enlighten us on that? A. No, sir. Just like I say, I had forgotten all about it, forgot about the deal, and I don’t know whether it was four or six months ago. I don’t remember when.”

Jim Peck testified:

“I was at work on the light plant, Thirtieth and South Eastern, with two other men, Renshaw and Warr, the officers came in raided, and looked around to see what they could find, and we asked to leave, and they said, ‘No, stay around, we are looking for whisky.’ Q. Did they find any whisky? A. No, sir. Q. Did you boys have any whisky? A. Yes, sir. Q. Where was that whisky? A. It was in my pocket, and I set it down by the side of me when they came in. Q. Did you bring that whisky there, or did you receive it there? A. I think I had that with me. Q. Prior to the 23rd of February, 1940, the day of this instance, had you ever bought any whisky out there? A. Not there, that I know of.”

On cross-examination he stated:

“I was out on the job, when we got through and the boys helping me, I says, ‘Come in, I believe I will give you a drink, you boys have been pretty good’, and we went inside and sat down. I had that in my unionalls.”

R. A. West testified that he had occasion to go to Thirtieth and South Eastern to a place known as Mistletoe Tavern, a frame building, the only things they had for sale in that place were Coca Cola, 7Up, Ginger Ale and things of that sort and no foods. “When we went in three men were sitting in a booth and Peters was behind the bar. The men were drinking mixed drinks, whisky.” Peters said that he did not sell it to them. Handed a paper witness was asked what it was and answered: “It was a whisky price list that he found back of the bar.” Defendants’ objection overruled. Exception. Exhibit 1 admitted. Handed State’s Exhibit 2, stated: “That is a retail liquor dealers’ stamp” he found there in the name of Medlock Harris. Admitted over defendants’ objection and exception. Exhibits 1 and 2 are now handed to the jury-

He further testified that they picked up all the records they could find that mentioned anything about whisky at all, and there was quite a lot of them. That they had made several prior visits, during the previous four months, but they did not find any whisky.

He further testified that he had a conversation with Peters about the place, and he said that it was his place, he was running it. That in a conversation with Peters at a later date, Peters did not tell him whether the ownership was that Avay at this particular time or not, and at a later date he said he had never owned the place.

Over the defendants’ objection he further testified that he found a book there on this particular date, marked State’s Exhibit 3 and asked Avhat it was, answered: “This is an account showing how much Avhisky different people bought.” In other Avords, it is an account book, showing customer purchases, also identified state’s exhibits 5 and 6 as an envelope containing papers that had whisky accounts in it. That he knew the reputation of this place as being a. place where people congregated for the purpose of buying intoxicating; liquor and drinking it, and that reputation was bad.

Counsel for the state again offered in evidence ex-Mbits 3, 4, 5 and 6. Defendants’ objections to the same as being incompetent, irrelevant, and immaterial and not properly identified as to dates in connection with the time of the alleged offense, in nothing to indicate, except the month and the day, and not properly identified as to whether or not either of these defendants made any of the entries signified in those books or the state exhibits.

“The Court: Objections overruled, but will admit them for the jury’s 'consideration. Exceptions allowed.”

On cross-examination he was asked to look through this ledger, state’s exhibit No. 3, and state “whether or not you know whose writing is in these books or what date the entries therein relate to. if you know.”

“A. I do not know whose writing it is. Q. Mr. West, from Avhat you saw there in state’s exhibit No. 3 and No. 4, is there anything to indicate that those books belonged to either of the defendants in this case? A. Nothing in the books.”

He further stated that his information about the reputation of the Mistletoe Tavern Avas not entirely gained from other officers. That it was also from the first three witnesses for the state.

Witness, recalled after the noon hour recess, stated that he had investigated these records and on page 134 it shows “wholesale” and dated, “December 25, 1939”; that he did not know who owned the ledger, and did not know whose handAvriting it was; that the names of the defendants do not appear on any of the exhibits.

Handed and asked as to each exhibit, if he could find the name of either of the defendants thereon, ans-Avered, “I do not”.

“Mr. Stark: Objected to as incompetent, irrelevant and immaterial. The Court: I am going to exclude all these records. Mr. Daugherty: To which we want to take an exception for the réason it is for the jury to determine. The Court: The jury has heard that these records were found in this place of business, and these records have not been identified properly, and nothing to be considered by the jury as against the defendants; therefore, all of those records as seized by this officer in this place of business will be excluded from the jury’s consideration. With this instruction to the jury the only evidence that you are to consider about these records is that this officer found them in this place some where, the contents of them are excluded.”

Mr. Daugherty asked that the jury be excused, saying:

“Don’t believe I understand the court’s ruling. The Court-: They are not identified and the court has ruled on it, and the jury understands what I mean. The only thing that I want the jury consider is that this officer found those records in this place. The contents of them are not properly identified as against the defendants. Mr. Daugherty: Well, I have a little bit more identification I can make, I can show these defendants wrote these. The Court: Proceed.”

Thereupon Mr. Daugherty proceeded to qualify the witness West as a handwriting expert, and over the defendants' objections testified as to his qualifications as a handwriting expert and further testified:

“That the handwriting on pages 134 and 135 of exhibit 4 was in his opinion the handwriting of the defendant, Henry Peters.”

Objection overruled. Exception.

“The Court: It is not binding on the ' defendant, Sammy Kutz, gentlemen of the jury.”

Cliff Goldsmith testified that on February 23, 1940, he saw three men sitting in a booth, drinking mixed drinks, they were using a pint of whisky, that on several occasions he had been to this place, but did not know who was the owner of the place. Sammy Kutz said that it had been his place, but that he had sold it, but did not say who he sold it to; that he asked Henry Peters if he had any whisky there and he' said “No”, and he asked Peters if he owned the place and he just laughed and shook his head no. That he probably saw Henry Peters there a week or two before that, and saw various people come in and order whisky; Peters would always say that he did not have it. In this place they do not have beer, all they have is pop, 7Up and various other bottle goods that can be used as chasers.

“Mr. 'Stark: We object to that voluntary statément: The Court: Now, don’t give this jury your opinion about it. You are an officer, of course, and everybody you arrest you think is guilty. You tell this jury the facts, what occurred out there, and what you saw. A. I saw Sammy Kutz in this place about two* or three months prior to* that time, however, I did not get any whisky there that time, I had a conversation with Sammy Kutz since that time, he spoke of hiring a man, he said Peters and Midkiff or Medlock were paid $25 a week salary. That he knew the reputation of the place with reference to being a place where people are* permitted to congregate for the purpose of buying and drinking whisky, and that reputation was bad.”

On cross-examination he was asked if he could name persons that told him about this place, besides police officers, and answered: “Yes; I can name two* people that are bootleggers that told me about it. Carl Knott and Hubert Knott*,” and the department had received anonymous letters about the place.

He stated that the state’s exhibits were picked up in the Tavern, but he didn’t know who* picked the particular cards up.

“Mr. Stark: The defendants renew their objections to the introduction of the exhibits as being incompetent, irrelevant and immaterial and not properly identified with the defendants or either of them. The Court: Well, the jury will take that into consideration. I think it will probably help the jury in some manner in their consideration. Exceptions allowed.”

Milo Beck testified:

“I was with the officers, I don’t remember whether Sammy was there or not, Henry Peters was there, I have been there several times on previous occasions; I know the reputation of the place relative to it being a place of public resort, where whisky and other liquors were kept and sold. That reputation is bad. We found some fellows sitting in there with a bottle, drinking. On another occasion prior to February 23rd, I found whisky there, our department has the reports on those occasions. The Court: Now, answer the question, Mr. Beck, you have been a sheriff and you have been a witness many, many times, you know how to answer questions, and you answer the questions asked and not give any dissertation about Bed Phillips’ regime. Well, I don’t know the dates, we just went and raided the place and on any of these raids we did not find any whisky,' the only time was when these three fellows were sitting there drinking out of the bottle.”

The state rested its case and the defendants each demurred to the evidence as being insufficient to support the charge in the information and moved the court for a directed verdict of not guilty, which was overruled. Exceptions allowed.

The admission of the state’s exhibits over the objections of the defendants was prejudicial to the substantial rights of the defendants.

To render books accounts admissible in evidence, they must be shown to have been correctly kept, to have been kept in the ordinary course of business, to have been made at or reasonably near the time of the transaction, to be books of original entry, and shown to be relevant and material to the issue.

In State v. Rule, 11 Okla. Cr. 237, 144 P. 807, 813, we said:

“The statutory rule is found in section 5114, Rev. Laws [1910 (12 O. S. 1941 § 501)] which provides:

“ ‘Entries in books of account may be admitted in evidence, when it is made to appear by the oath of the person who1 made the entries, that such entries are correct, and were made at or near the time of the transaction to which they relate, or upon proof of the handwriting of the person who- made the entries, in case of his death or absence from the county, or upon proof that same were made in the usual course of business.’
“We are of the opinion that all entries in the book offered in evidence relating to the House legislative printing, were admissible, not only as independent evidence of facts forming a part of the res gestae, but also1 as declarations or admissions made by the defendant against his interest. We certainly know of no decision, rule of evidence^ or established principle that requires the exclusion of such evidence when offered in connection with the testimony of the persons who made the entries therein, that they were correct. The constitutional provision (section 28 [20] Bill of Rights) giving the accused the right to be confronted with the witnesses against him does not apply to the proof of facts in their nature essentially and purely documentary.” And see Appelget v. State, 33 Okla. Cr. 125, 243 P. 251.

The Supreme Court in Sharp v. Pawhuska Ice Co., 90 Okla. 211, 217 P. 214, held:

“To render book accounts admissible in evidence, they must be shown to have been correctly kept, to have been kept in the ordinary course of business as an essential part of the system of business, to have been made at or reasonably near the time of the transaction, to> be books of original entries, and shown to be relevant and material to the issue.”

Obviously it was error to overrule objections, taken to, and the motions to strike and withdraw from the jury, the state’s exhibits 1 to 6.

The information in this case was based upon that part of section 2616, St. 1931, 37 O. S. 1941 § 73, which declares:

“And all places where any - such liquor is kept or possessed by any person in violation of any provision of this act; and all places where persons congregate or resort for the purpose of drinking any such liquor, are hereby declared to be public nuisances.”

It is also contended that the evidence was insufficient to support the verdict and judgments of conviction. Citing Barngrover v. State, 28 Okla. Cr. 22, 229 P. 301; Sullivan v. State, 36 Okla. Cr. 95, 252 P. 442; Bunch v. State, 53 Okla. Cr. 430, 12 P. 2d 704; Ornsby v. State, 53 Okla. Cr. 445, 13 P. 2d 596; Young v. State, 56 Okla. Cr. 375, 40 P. 2d 686; Tarbutton v. State, 57 Okla. Cr. 442, 48 P. 2d 877; Handley v. State, 68 Okla. Cr. 183, 96 P. 2d 546; Davis v. State, 71 Okla. Cr. 82, 108 P. 2d 200.

In Barngrover v. State, supra, [28 Okla. Cr. 22, 229 P. 302], it is said:

“The corpus delicti cannot be proven by reputation alone. It would be a dangerous and unwarranted assumption of authority for this court by judicial construction to read into this public nuisance statute a proviso that the keeping or maintaining of a public place where liquors are sold or consumed could be established by reputation alone. The true character and the reputation of a place might be quite different. A bad reputation might be founded on mere rumor. Insidious slanderers or talebearers might give to a person or place a bad reputation entirely undeserved. Reputation alone, without some evidence of a positive nature, should not be held sufficient to establish a specific fact or condition.

“Quoting from the state’s brief in Patterson v. State, [17 Okla. Cr. 495], 190 P. 271, this court said:

“ ‘The evidence, attempting to show that persons congregated and resorted on the defendant’s premises for the purpose of drinking such liquors, wholly fails. The evidence as to the general reputation of the premises is without force.’ ”

In Young v. State, 63 Okla. Cr. 196, 74 P. 2d 392, 394, it is said:

“It appears that the information is based upon that part of section 2616, Okla. St. 1931 (37 Okla. St. Ann. § 73), which declares:

“ ‘and all places where any such liquor is kept or possessed by any person in violation of any provision of this act; and all places where persons congregate or resort for the purpose of drinking any such liquor, are hereby declared to be public nuisances.’

“In Tarbutton v. State, 57 Okla. Cr. 442, 48 P. 2d 877, 878, it is said:

“ ‘It is true that the word “reputation,” when unqualified, in common parlance means general reputation. What peace officers say to one another about a man’s place is not reputation. Reputation is what people generally in a community say of a place.
“ ‘ “ ‘Reputation’ is said to be the common knowledge of a community,” and “ ‘Reputation’ is defined tO‘ be concurrence of many voices to the same fact.” 7 Words and Phrases, First Series, p. 6119.’

“In the case of Bunch v. State, 53 Okla. Cr. 430, 12 P. 2d 704, this court held:

“ ‘Where one is charged with keeping a place in such manner as to constitute a, public nuisance, its general reputation as such may be shown; but evidence of reputation alone will not support a conviction.’ ”

In Brennan v. State, 32 Okla. Cr. 284, 240 P. 1084, 1085, we said:

“The general rule is that the party calling a witness certifies to his credibility.”

Assuming as true the testimony of the first three Avitnesses for the state, it Avas shown that the witness Peck and his tAvo assistants had come to the place to repair the light plant, and it is undisputed, as shown by their testimony, that the foreman, Peck, brought a portion of a pint of whisky there, and after completing the work, Peck proposed to give the other two Avitnesses. a driqk of the same, and about that time the officers came into the place and took the bottle from Peck.

The testimony of the three officers is to the effect that they had raided this place four or five times in the preceding four or five months and never at any time had found upon the place any intoxicating liquor, and there was no evidence showing that persons congregated there for the purpose of drinking intoxicating liquor, other than the three states’ witnesses who had come there upon legitimate business. There is no evidence that intoxicated persons ever went to or came from the premises, or that there was any disturbance thereabout, and there is no competent evidence in the record which is sufficient to connect either of the defendants Avith the offense charged.

It folioavs from what- has been said that the evidence is wholly insufficient to support the verdicts of the jury finding the defendants guilty, and for this reason the trial court erred in overruling the defendants’ motion for a new trial.

The judgments of the trial court herein are reversed and the cause remanded, with direction to dismiss the case.

BAREFOOT, J. I concur only in the conclusion reached that this case should be reversed and remanded.

JONES, P. J., dissents.


author: BABEFOOT, J.

text:
    THOMAS A. G. RUSSELL v. STATE.
    No. A-10125.
    March 24, 1943.
    (135 P. 2d 1003.)
    Harold McArthur, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jesse L. Pullen, Asst. Atty. Gen., and M. S. Simms and G. C. McDonald, Asst. County Attys., Tulsa County, both of Tulsa, for defendant in error.
   BABEFOOT, J.

Defendant, Thomas Aben Godfrey Bussell, ay as charged in the district court of Tulsa county with the crime of driving a motor vehicle Avhile under the influence of intoxicating liquor, Avas tried, convicted and sentenced to pay a fine of $100 and to serve 90 days in the State Penitentiary, and has appealed.

The first assignment of error is that the evidence of the state is insufficient to sustain the conviction and that the court erred in refusing to sustain a demurrer thereto.

The record discloses that on the night of November 2, 194-0, defendant Avas driving his automobile on U. S. HighAvay No. 64., at a point one and a half miles from its junction Avith Highway No. 51, in Tulsa county, Okla. He Avas accompanied by Felix Morrison, an Indian. The car Avas driven into an abutment of a bridge at the point above designated. The car Avas demolished, and one of the occupants received severe injuries. No Avitnesses were present at the time of the accident, but a truck Avith two men, and an automobile containing three, arrived immediately thereafter. Tavo of these parties were witnesses for the state.

H. L. Brown and A. E. Finley both testified that when they arrived at the scene, the car had been wrecked; that defendant was standing by the side of the car, and that he aaus intoxicated or drunk; that a pint bottle of Avhisky about one-fourth full was found in the car. One of the witnesses testified that he smelled liquor on the defendant’s breath, and the other one testified that defendant staggered when he walked. Both testified that his general appearance and actions indicated that he was drunk or under the influence of liquor, and that the other occupant of the car, Felix Morrison, was pinned in the car on the side opposite the driver’s seat, and they had to tear away a part of the car before they could release him. Later an ambulance toolc the defendant and the injured party away, and two officers of the highway patrol came to investigate the accident.

Leonard Fox,' highway patrolman, testified to the finding of a bottle of whisky, and of going to the hospital and getting defendant and placing him in jail. This was an hour and a half after the collision. He testified that defendant was still under the influence of liquor, that he could smell it on his breath, and that defendant told him that he ivas the owner of the car and was driving the same at the time of the accident.

Defendant was the only witness in his own behalf. He denied that he was driving the car at the time of the accident, but testified that Felix Morrison was driving. With reference to his own condition, and the condition of Morrison, he testified on direct examination:

“Q. Well, what was your condition when you left the home of Felix Morrison, in reference to being drunk or sober, at that time? A. Whose condition, Felix’s? Q. Yes. A. He didn’t seem to be very drunk. Q. Were you drunk? A. No, sir; I was not drunk, but I could feel it. I was feeling pretty high, all right. Q. Feeling pretty hot? A. I say, I was feeling pretty high.”

On cross-examination:

“Q. Now, Felix Morrison was pretty drunk, when you left his house with him? A. Yes, sir.”

Defendant did not deny that he had told Officer Fox that he was driving the car at the time of the collision, but said he did not remember telling him.

From the above statement, it will readily be observed that thei-e is very little conflict, if any, as to the defendant being under the influence of intoxicating liquor at the time of the collision.

There was a conflict as to his driving the car, and this was a question for the jury to decide. Not only his admission to the officer that he was driving but all the surrounding circumstances justified the jury in believing that he was. He was standing on the outside of the car on the driver’s side, with the door open. Felix Morrison: was pinned in the car, where he could not move, and was opposite the driver’s seat. By the testimony of defendant, Morrison was in no condition to drive. Defendant was the owner of the car, and by his own testimony had been driving all the time up to just a short while before the collision. The court instructed the jury upon circumstantial evidence, and the jury had the right to consider these circumstances in arriving at its verdict. This verdict will not be set aside on appeal where there is conflict in the evidence.

Defendant’s second assignment of error is that the court erred in the admission of incompetent and irrelevant testimony.

This contention is based upon certain questions asked defendant on cross-examination, as follows:

“Q. Did you tell him something about California? A. Maybe so, I think I did. Q. What was it you told him about California? A. I think he asked me — I think I told him I had been arrested in California. Q. For driving while drunk — is that right? A. Yes, sir; that is what I got arrested for — that is what they said. Q. How long ago was that? A. How long ago? Q. Yes. A. It has been better than two years.”

The rule announced by this court is that one may not be asked if he has been arrested, but on cross-examination one may be asked if he has ever been convicted. This for the purpose of affecting his credibility. The record in this case reveals that defendant volunteered to make the statement of his arrest in California. He was not asked if he had been arrested, but only if he did not have a conversation with the officer in reference to California, and he voluntarily made the statement about his arrest. In addition to this., on redirect examination he was asked about this matter by his own counsel when this question was asked:

“Q. You had been arrested, you say, for driving while drunk? A. That is what they put against me. Q. That is what they put against you — in California? A. Yes, sir. They carried me to a doctor to find out whether I was drinking or not.”

In the case of Starks v. State, 67 Okla. Cr. 156, 93 P. 2d 50, 54, this court said:

“The question therefore arises, Was the testimony complained of, in the light of all the evidence in the case, prejudicial to the substantial rights of the defendant? Otherwise stated, Did the admission of this testimony deprive the defendant of a fair and impartial trial? The question can be properly determined by a consideration of ail the evidence in the case. This we have done, and our conclusion is, in the light of all the testimony in this case, the testimony objected to, although improper as being hearsay, was not prejudicial to the defendant.
“We are also of the opinion that the objection to the testimony in question Avas waived by the defendant when he afterwards introduced the same evidence himself. It is well settled that if a party objects to. the introduction of evidence, which is admitted, and afterwards introduces the same evidence himself, it is not ground for reversing the judgment, although the evidence objected to was incompetent.”

While Ave have held that the admission of this evidence Avas incompetent, taking into consideration the record as a whole, and the questions asked defendant on redirect examination, we do not think it justifies a reversal of this case, but we consider the same in connection with the third assignment of error, which is that the judgment and sentence rendered in this case is excessive.

The statute under which defendant was charged is 10324, Okla. Stat. 1931, Okla. Stat. Ann. (1941) Title 47, sec. 93:

“It shall be unlawful for any person who is under the influence of intoxicating liquor, or who is a habitual user of narcotic drugs, and the having on or about one’s person or in said vehicle of said intoxicating liquor is prima facie evidence of a violation of this Act, to operate or drive a motor vehicle on any highway within this State, as defined in Section 1, of this Act, and any person violating the provisions of this section shall be deemed guilty of a felony and shall be punished by imprisonment in the penitentiary not more than one year, or by fine of not more than Two Thousand ($2,000.00) Dollars, or by both imprisonment and fine.”

It will be observed that the above statute provides that the driving of a. motor vehicle while under the influence of intoxicating liquor is a felony, and provides punishment by imprisonment in the penitentiary for not more than one year, or a fine of not more than $2,000, or by both such imprisonment and fine. It does not provide for a jail sentence.

Since this charge was made, on November1 2, 1940, the Legislature of this state has amended the above section by providing that the first offense shall be a misdemeanor and the second offense shall be a felony. S. L. 1941, p. 199. The amended statute provides for punishment by imprisonment in the county jail for a period not exceeding one year, or by a fine of not more than $500, or by both such imprisonment and fine, for the first offense; and for the second offense shall be imprisoned in the State Penitentiary for a period of not to exceed two years, or a fine of not more than $1,000, or by both such fine and imprisonment, the second offense being a felony. King v. State, 73 Okla. Cr. 404, 121 P. 2d 1017; King v. State, 73 Okla. Cr. 411, 121 P. 2d 1021; Albrecht v. State, 72 Okla. Cr. 270, 115 P. 2d 274; Pooler v. State, 70 Okla. Cr. 199, 104 P. 2d 733, 105 P. 2d 553; Odom v. State, 68 Okla. Cr. 117, 95 P. 2d 916.

Taking into consideration the fact that the county attorney was permitted to ask the defendant indirectly as to his having been arrested in the State of California, and his voluntary response thereto, we are of the opinion that the ends of justice would be best subserved by a reduction of the punishment assessed in this case from a fine of $100 and three months in the State Penitentiary to a fine of $100 and costs, and in the event said fine and costs are not paid that the term be served in the Tulsa county jail.

As above modified, the judgment and sentence of the district court of Tulsa county is affirmed.

JONES, P. J., concurs. DOYLE, J., absent.


text:
    Ex parte GLENN WILKERSON.
    No. A-10358.
    March 24, 1943.
    (135 P. 2d 507.)

      Hulsey & Hulsey and W. N. Redwine, all of MeAles-ter, for petitioner.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for respondent.
   JONES, P. J.

This is an original proceeding in habeas corpus brought by the petitioner, Glenn Wilkerson, to secure his release from imprisonment in the State Penitentiary at MeAlester.

In the verified petition it is alleged that petitioner entered his plea of guilty to- the crime of robbery with firearms in the district court of Comanche county and was sentenced to serve a term of 40 years’ imprisonment in the State Penitentiary. That he served five years and seven months on said sentence, at which time the judgment and sentence so pronounced against said petitioner in Comanche county was vacated in a habeas corpus proceeding in the Criminal Court of Appeals and the cause remanded to the district court of Comanche county for further proceedings.

That subsequent to the- vacation of said 40-year term of imprisonment and on the 4th day of May, 1942, the petitioner was tried before a jury in Comanche county on the same charge of robbery with firearms, was convicted and sentenced to serve five years in the penitentiary, where he is now being confined by reason of said sentence.

The petitioner further alleges that he should be given credit on the sentence so pronounced against him for the five years and seven months which he served on the void judgment which was vacated.

A demurrer to said petition has been interposed by the respondent.

For a full history of the facts in this case reference is made to the case of Ex parte Meadows, 70 Okla. Cr. 304, 106 P. 2d 139; Ex parte Meadows, 71 Okla. Cr. 353, 112 P. 2d 419; Ex parte Wilkerson, 72 Okla. Cr. 301, 115 P. 2d 923; Ex parte Wilkerson, 73 Okla. Cr. 32, 117 P. 2d 172.

Counsel for petitioner concedes that there is no statute vesting in this court or any other1 court the authority to grant petitioner credit on his new sentence for the time which he served on a void judgment, but he relies solely upon the case of Ex parte Williams, 63 Okla. Cr. 395, 75 P. 2d 904, 905. In that case it was held:

“Where a defendant is tried, convicted, and sentenced to imprisonment, and perfects an appeal, but no appeal bond is given, and he is committed to the penitentiary in execution of the judgment during the pendency of the appeal, and on a new tidal after reversal on appeal he is again convicted of the same offense, held, that he is entitled to have the period of his former imprisonment deducted from the period of imprisonment to- be fixed on the last conviction.”

While the author of this opinion was not a member of the court at the time of the rendition of the Williams opinion, it is considered an appropriate occasion to state that had he been a member of the court he would have dissented to. the conclusion reached in that case for the reason that there was no statutory authority vesting in this court the power to extend to. a prisoner credit for time so served, but such a contention is properly one to be addressed to the Governor in the exercise of his powers of clemency, which are exclusively vested in him. The cases cited in the Williams opinion as authority for the conclusion therein reached arose in states where authority had been vested by statute in the court to give, at the discretion of the court, allowances for credit for time served in the penitentiary pending a former appeal where the accused was again convicted and imprisoned on a new trial.

But regardless of whether the case of Ex parte Williams, supra, should be sustained or overruled, it is not controlling, in the disposition of the petition filed herein because there is a -wide distinction in the facts of the two particular cases.

The rule of law applicable to the disposition of this case is set forth in 24 C. J. S., Criminal Law, § 1995, p. 1230:

“* * * where he [prisoner] is confined in the penitentiary under a void or erroneous sentence because of his failure to obtain a suspension of his. sentence during the pendency of proceedings in error, it is in no sense a part execution of a legal sentence, and by the rendition and execution of a legal judgment he is not punished twice for the same offense. A person released under a writ of habeas corpus after having served a part of a sentence of imprisonment imposed under a void indictment is not entitled to. have the time so served credited on a sentence subsequently imposed under a valid indictment.” Ogle v. State, 43 Tex. Cr. R. 219, 63 S.W. 1009, 96 Am. St. Rep. 860; State v. Lee Lim, 79 Utah 68, 7 P. 2d 825, 841.

No decision lias been called to onr attention extending the rule set forth in the Williams Case, supra, to apply to the time served by an accused upon a conviction which is vacated by a subsequent habeas corpus proceeding and the cause remanded for a new trial.

When this court vacated the judgment of 40 years’ imprisonment rendered upon the plea of guilty by reason of jurisdictional defects in said proceeding, it remanded the cause for further proceedings and left the case standing as if no judgment had been pronounced and both the state and defendant were restored to the same position they were in prior to the arraignment of the accused.

If a person imprisoned under a void sentence which is later vacated is entitled to credit for the time served in prison prior to- the vacation of said sentence, then the duty and authority to give this credit must be vested in some particular agency. There must be some statutory or constitutional grant of this authority. An examination of the statutes and the Constitution of Oklahoma discloses that there is only one agency to which such an application for credit may be addressed and that is the Governor. Oklahoma Constitution, art. 6, § 10.

It is apparent here that there was no defense to the robbery with firearms charge filed against defendant. He and his companion entered the home of the president of the bank of Indiahoma and héld the family hostages throughout the night at the point of a gun waiting until the time lock would make it possible to' get the safe at the bank open the next morning. They took the president of the bank to' the bank the next morning holding him as hostage to protect them in the robbery. There is no dispute about these facts. The defendant himself brought out the fact that he had been incarcerated several years in the State Penitentiary upon his plea of.guilty when he was first arraigned. No doubt the jury took that fact into consideration when they assessed only the minimum punishment of five years imprisonment.

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

“Where appellant was convicted of murder under a void indictment, and after serving a part of a penitentiary sentence, was released by habeas corpus, he was not entitled to' have the time served under the void conviction deducted from a sentence imposed after conviction under a valid indictment.”

In the body of the opinion it is said:

“We are of opinion the court was correct in sustaining the demurrer to that portion of the plea which sets up the time endured under the first proceeding as a credit against the verdict to be rendered in this case. All the authorities we have found bearing on this question are adverse to appellant’s contention. Partial payments do not apply to judgments imposing imprisonment, unless by the pardoning power in the commutation of time.”

It is our conclusion that in order for the petitioner to receive an allowance or credit for the time served on the void judgment, his application is one that should properly be addressed to the chief executive of this state, who may, in the exercise of his discretion, grant or refuse such application.

The writ of habeas corpus is denied.

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