text:
    WHITING v. STATE.
    No. A-11106.
    April 26, 1950.
    (218 P. 2d 402.)

      A. O. Manning, Fairview, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Clyde Ray Whiting, was charged by an information filed in the county court of Garfield county with the offense of driving an automobile on the public highway while under the influence of intoxicating liquor, was tried, convicted and pursuant to the verdict of the jury was sentenced to pay a fine of $250, and has appealed.

Two propositions are presented in the brief of defendant: First, the evidence was insufficient to sustain the conviction. Second, the verdict was the result of prejudice created by questions asked by the trial court.

The proof of the state showed that about 6 o’clock p. m. on November 21, 1947, one James F. Everett was driving his automobile on Highway 64 about five miles east of the city of Enid at which point he collided with a car being driven west by the defendant, Clyde Ray Whiting. .

Mr. Everett testified that he drove his¡ automobile off of the pavement onto the shoulder of the highway in an effort to avoid the collision, but that the defendant drove his automobile across the center line of the road onto the wrong side of the highway and struck the car of Everett. Everett testified that he could smell alcohol very plainly on the defendant’s breath; that his talk was jumbled; and in his opinion the defendant was intoxicated.

Two highway patrolmen came. to the scene of the collision about 30 minutes, after it occurred. On the north side of the pavement, but within the right-of-way about 18 feet away from the pavement, the patrolmen found one full pint bottle of whisky in a paper sack and another pint bottle with a small quantity of whisky remaining in it. The patrolmen also found a box of matches in the paper sack and on the box was this inscription, “Art’s Drugs and Liquor, Seligman, Missouri”. The full bottle of whisky had a Missouri liquor stamp upon it. The patrolmen arrested the defendant and took him to the Garfield county jail. Each patrolman testified that in his opinion the defendant was intoxicated.

The defendant testified that he had made a trip to Rogers, Ark.; that on the way home he stopped and drank a bottle of beer, but did not become intoxicated; that he became blinded by the lights of an automobile just ahead of the car of Mr. Everett. It caused him to pull over toward the center of the highway and collide with Everett’s car. Defendant denied ever having had possession of the whisky found by the patrolmen and disclaimed any knowledge concerning it.

On cross-examination defendant admitted that the locality in Arkansas where he visited was legally dry and that the city of Seligman, Mo., was on the state line and the closest point where a person could legally buy intoxicating liquor.

John Harwich testified that he and A. J. Ginder were riding in the automobile with defendant. He verified defendant’s statement as to the trip to Arkansas and further related that on the return trip two stops were .made to eat and at each stop the defendant drank a bottle or can of beer. He also verified defendant’s story that the night of the collision was a cold, rainy night and that an automobile which was driving towards them just ahead of the Everett car blinded them to where they could not see and was the cause of the collision. He also denied any knowledge of the whisky found by the patrolmen.

The evidence of the state was sufficient if credited by the jury to make out a case against the defendant under the statute prohibiting the driving of an automobile on the highway while under the influence of intoxicating liquor. The jury saw the witnesses and were in a better position to determine the weight to be given to their testimony than is this court. Under such circumstances, the verdict of the jury will not be disturbed on appeal.

The second proposition is directed to certain questions asked by the court of the witnesses. The record discloses that the court during all of the trial asked five questions. Each time when the court asked the question it was in an effort to clarify the testimony of the witnesses as to the position of the cars. .Each of the witnesses in testifying would refer to the right or left side of the road and the court’s inquiry would be for the purpose of clarifying whether the car was on the south or north side of the road. We have carefully read the questions asked by the court of which complaint is made by counsel for defendant and we have found nothing contained in such questions which would indicate that the trial court was biased or prejudiced in the matter or was tending to indicate to the jury that he felt the defendant was guilty.

We agree with counsel for defendant that a trial judge should carefully refrain from saying or doing anything during the course of the trial which would in any way indicate to the jury that he had an opinion as to the guilt or innocence of the accused. But in this particular case it would be placing a strained construction upon the conduct of the court to hold that his behavior in ashing the questions was improper and created prejudice against the accused.

Finding no material error in the record, the judgment and sentence of the county court of Garfield county is affirmed.

BRETT and POWELL, JJ., concur.


source: Caselaw Access Project

author: BRETT, J.

license: Public Domain

text:
    BATES v. STATE.
    No. A-11197.
    April 26, 1950.
    (218 P. 2d 404.)

      John A. Cochran, Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The defendant, Robert G. Bates, was charged, tried by a jury and convicted in the court of common pleas of Tulsa county, Okla., with the commission of the offense of the unlawful possession of intoxieat-. ing liquor. The offense was alleged to have been committed on November 26, 1948, in the city of Tulsa, Okla. The information alleged that the defendant was in the unlawful possession of intoxicating liquor consisting of 240 half-pints of Hill & Hill whisky, 96 pints and 288 half-pints and 36 one-fifths of a gallon of Sunny Brook whisky, 96 pints, 48 half-pints and 1 one-fifth gallon of Seagrams 7-Crown whisky, 96 pints of Old Crow whisky, 72 pints of Belmont whisky, 66 pints of I. W. Harper whisky, 12 one-fifth gallon of Black and White Scotch whisky, and one-fifth of a gallon of tax-paid wine. The jury found the defendant guilty and fixed his punishment at $250 and 30 days in jail, and judgment and sentence was pronounced accordingly.

The evidence at the trial disclosed that the officers acting on reliable information, as to the contents of the defendant’s truck and its whereabouts, having obtained a search warrant to search said truck, they proceeded to the Penco filling station in the city of Tulsa at First and Frisco streets, where said truck was located. The officers found the truck and shortly thereafter the defendant appeared. When advised of the reason of the officers’ presence Bates produced a key to the said truck, opened the same and disclosed the S9y2 cases of the herein-before described liquor. The officers’ testimony was that the defendant requested time to take a tally of the quantity of whisky contained in the truck because he said another man had an interest in it. He was informed that such count could be made at the courthouse. This the evidence discloses he did do, upon arriving at the courthouse. The state further offered in evidence the defendant Bates’ federal retail liquor dealer’s license which was in full force and effect at the time of the alleged offense. The defendant admitted to the officers that the truck belonged to him. Thereafter the state rested its case.

The defendant did not testify in his own behalf. He offered instead the testimony of P. E. Walsh who said the whisky belonged to him. Walsh further said he had borrowed Bates’ truck, had driven it to Sapulpa and there obtained the load of whisky from a man by the name of Thomas. He did not know Thomas’ given name or disclose any further information about Thomas or the particular place where the whisky was obtained from Thomas and loaded into the truck. Walsh further testified he was about a half a block away when the defendant, Bates, was arrested. He said he did not know how Bates came to be at the truck when the arrest of Bates was made. Walsh further said that his business was located at 222 West First street in Tulsa and had been so located there for six months. Notwithstanding this fact Walsh said he did not know the directions or on what corner of the intersection the Penco filling station was located, even though he said he parked the truck at the filling station. He said he was all turned around. The defendant offered no further proof.

On this staté of the record the defendant contends the evidence is insufficient to sustain the conviction. The foregoing evidence while conflicting was sufficient to create an issue of fact for the determination of the jury. This court has repeatedly held it will not interfere with the verdict of the jury unless there is no competent evidence on which it can be based. Wire v. State, 87 Okla. Cr. 44, 194 P. 2d 212. But the defendant says the evidence was circumstantial in the face of Walsh’s evidence he owned the entire quantity of whisky, and that it was not sufficient to exclude every reasonable hypothesis other than guilt. The answer to that contention is that the defendant Bates convicted himself. He assumed complete authority, dominion and control over the load of whisky and asserted partial ownership and the right to possession thereof, up until the time of the trial of the case on its merits. In Byford v. State, 90 Okla. Cr. 230, 212 P. 2d 476, 481, 482, a case in point with this contention herein made, it was said:

“He convicted himself, * * *. The facts proven beyond a reasonable doubt are such as to exclude every reasonable hypothesis inconsistent with the guilt of the defendants, and thus meets the test announced in Starr v. State, 63 Okla. Cr. 302, 74 P. 2d 1174, and in Courtwright v. State, 79 Okla. Cr. 270, 154 P. 2d 588, and cases cited.”

Such is the situation in the case at bar and this contention is therefore without merit.

Next the defendant contends that the court erred in admitting in evidence his federal retail liquor dealer’s license as certified by the Collector of Internal Revenue, for the reason that the same did not bear the Collector’s “ * * * official seal, if he have one * * *” as provided by Title 12, § 486, O.S.A. 1941. This question was not directly raised in tlie trial, and appears herein on appeal for the first time. The record is entirely silent as to whether the Collector of Internal Revenue has a seal. If he has one, it was incumbent upon the defendant to so show .at the trial. Officers in the performance of their duty are presumed to do what the law requires of them. Langley v. State, 90 Okla. Cr. 310, 213 P. 2d 886; 22 C.J.S., Criminal Law, § 589, pages 906, 907. This presumption, however, is rebuttable, but the defendant did not attempt to overcome the presumption. In absence of proof to the contrary, we can only presume the Collector of Internal Revenue did not possess a seal. This contention being without support in the record, is likewise without merit.

For all of the above and foregoing reasons the judgment and sentence herein imposed is accordingly affirmed.

JONES, P. J., and POWELL, J., concur.


author: POWELL, J.

text:
    NICHOLS v. STATE.
    No. A-11193.
    April 26, 1950.
    (218 P. 2d 407.)

      H. R. Helmbrecht, Ponca City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A Wallace, Asst. Atty. Gen., for defendant in error.
   POWELL, J.

Lucille Nichols, plaintiff in error, who will hereinafter be referred to as defendant, as in the lower court, was tried before a jury and convicted in the county court of Kay county, for the crime of transporting intoxicating liquor, and assessed punishment at a fine of $250 and 30 days imprisonment in the Kay county jail. The defendant has appealed to this court from the judgment and sentence entered in accordance with said verdict.

Eor reversal of the judgment defendant, in her proposition one, contends that the evidence was not sufficient to sustain the conviction, setting out under this heading two of her specifications of error advanced in petition in error: (!)■ that the trial court erred in overruling defendant’s demurrer to the evidence; and (2) that the verdict and judgment are not supported by and are contrary to the law and the evidence. In short, it is urged that the state failed to prove that the defendant was driving the automobile in which the liquor in question was found. This requires a review of the evidence. The defendant did not testify, and offered no testimony in the trial of the' case.

The evidence on the part of the state developed that on September 6, 1948, on Highland street, about one-fourth of a mile west of the city limits of Ponca Oily, where said street intersects with a county road known as the Blackwell short-cut, a collision took place between two automobiles. State Highway Patrolman Ormus Soucek was at the Ponca City Police Department when the accident was reported and he and Policeman Hollis Alex-, ander went immediately to the scene of the accident, arriving about 11:40 a. m., estimated by witnesses to be about five minutes after the accident. They found two wrecked cars, one a new Pontiac four-door sedan that was being driven by Mrs. Aileen Price at the time of the accident, and a 1941 Pontiac that the state alleges was being driven by the defendant, Lucille Nichols. Several persons were injured. Officer Soucek testified:

“Q. Did you see the defendant Lucille Nichols at that time and place? A. Yes, sir. Q. Tell the court and jury where you found her. A. Found her in a Pontiac, sedan which at that time was in a wrecked condition over on the north side of Highland avenue on the Blackwell shortcut, she was under the wheel, pinned there. Q. By the effects of the collision? A. Yes.”

Witness further testified that the back cushion was out of the sedan occupied by Mrs. Nichols and that in the back seat he found a blanket and an assortment of bottled gin and whisky, in pint bottles, found some scattered on the highway, or 54 pints in all. Also, this officer estimated that about as many bottles had been broken, the inside of the sedan being moist with liquor, and broken whisky bottles littering the back seat and the ground near the car. The Nichols ear had been hit in the left side by the Price car. Witness identified State’s exhibits 1, 2 and 3 as being some of the bottles of whisky taken by him from the ear defendant was found pinned in, and which he stated he had initialed, labeled, dated and had written defendant’s name thereon at the scene and immediately following the accident. The record further developed that the occupants of the Price car observed a woman driving the Nichols car, and a young boy about six years of age was thrown from the Nichols car at the time of impact. The state’s exhibits were labelled “whisky”, and exhibit 1 was sealed with U. S. Internal Revenue stamp fixed thereon, seal No. 18A937523. The bottle was opened in the presence of the jury, and Patrolman Soucek smelled it and declared the contents to be whisky.

Policeman Alexander testified that the defendant was pinned in between the back of the front seat and the steering wheel when he arrived at the scene of the wreck, and testified further substantially as Officer Soucek.

Mrs. Aileen Price testified that on September 6, 1948, she was driving a new Pontiac four-door sedan from Blackwell to Ponca City; that her three children, her sister Mrs. Buskuhl and her little boy, and also a Miss Hammers were in the car with her, and that around 11:45 at Waverly and Highland a car suddenly drove in front of her and there was a collision between her car and this car. She further testified:

“Q. Do you know whether it was a man or woman driving that car? A. A woman, I saw the woman and little boy. Q. Do you see see her here today? A. She doesn’t look anything like she did that day, but I don’t either. Q. You mean with reference to how you and she looked after the accident? A. Yes, I hit her, it was too quick, I just couldn’t tell anything about what she looked like, only I know it was a woman driving.”

Mrs. Buskuhl testified: •

“A. No, I didn’t see the other car, I was thrown into a shock and never noticed the other car at that time, I didn’t pay any attention to it. Q. Did you see Mrs. Nichols at the time, the defendant? A. She rode in the ambulance with me to the hospital, she was in the front seat.”

Miss Hammers testified that the driver of the Nichols car was a woman, and testified to seeing bottles, some broken and some not, and that there was an unusual smell, and she did not know whether it was gin or whisky.

Defendant cites as supporting her contention that the evidence was insufficient to support her conviction, the cases of Wicker v. State, 47 Okla. Cr. 358, 288 P. 398, and Leer v. State, 83 Okla. Cr. 291, 176 P. 2d 512, 514.

In the Wicker case, the defendant and one Kegin were found asleep in a Chevrolet coupe parked at the side of a highway in Creer county. A pint bottle with some whisky in it was found on a back shelf above the seat. This court held such fact not sufficient to support the conviction of the defendant of transporting intoxicating liquor. There was no evidence that the defendant had driven the car any distance, or that the liquor was in the car when it was being, driven, if ever driven by him, and no evidence of how long the car had been parked by the highway.

In the Leer case, a father and son heard a noise and about a quarter of a mile north of their home found one Leer seated in an automobile in a ditch. He was apparently injured and the elder witness hastened to report the accident. During the absence of the father, the son found a pint of whisky in the car and laid it in the grass by the highway. When the highway patrolman arrived the son gave him the whisky and the patrolman charged Leer with transporting intoxicating liquor, but did not testify at the trial, and the whisky was not identified. The conviction was reversed. Said the court:

“In the instant case, the amount of liquor found was very small. It was not on the person of defendant, but one witness testified that it was in the car. He was unable to identify the bottle introduced in evidence. There was some conflict as to whether the seal on the bottle had been broken. The patrolman who was supposed to have recovered the whisky did not see it in the automobile, and did not testify in the case. Of the two witnesses who released the defendant from the wreckage, one did not see the whisky at all, and neither of them saw the car move at any time.”

These two eases are readily distinguishable from the within case. Here the Nichols car was observed moving and it was being driven by a woman, no one else was in the car except a small six-year-old boy who was thrown out by the impact of the Price car. The only woman who had been in the Nichols car was found pinned in it by the steering wheel and seat, and this woman was found to be Mrs. Nichols. There were 54 pint bottles of whis-ky and gin not broken, and about as many broken bottles. The evidence that the defendant was the actual driver was circumstantial, it is true, but it is our opinion that the circumstantial evidence was substantial and was such that if believed it would preclude every reasonable hypothesis of innocence. See Edison v. State, 77 Okla. Cr. 401, 142 P. 2d 141; Wright v. State, 77 Okla. Cr. 393, 142 P. 2d 128; Edwards v. State, 87 Okla. Cr. 399, 198 P. 2d 656.

There was positive evidence that the car in which defendant was pinned was driven on to Highland street in front of the car being driven by Mrs. Price, and this court has held that where there is proof of any actual conveyance, the distance over which the intoxicating liquor was carried or moved is immaterial. Sleeper v. State, 71 Okla. Cr. 136, 109 P. 2d 520.

The record is clear that the State’s exhibits 1, 2 and 3 were properly identified, handed to the court reporter and marked, the witness was questioned as to the smell and contents, though the county attorney apparently did not offer the bottles in evidence. Nevertheless, counsel for the defendant proceeded to cross-examine the state’s witness as to where the liquor was found in the defendant’s car.

Counsel for defendant did not request the court to rule that the exhibits should either be introduced or withdrawn from the consideration of the jury. No objections or exceptions are shown in the record to the testimony of the officer relating to the three pints of whisky exhibited to the jury, and it is not pointed out where the defendant was prejudiced by the failure of the prosecution to make a formal offer of the properly identified exhibits in evidence. Counsel cites no authorities in support of his contention here advanced that the exhibits in question should not be considered as evidence in the case.

Should the question here raised have been presented during trial, the trial court no doubt would have promptly permitted the exhibits to have been formally introduced. Under the facts stated, it is our opinion that the contention urged is highly technical and without merit. In the case of Nowlin v. State, 65 Okla. Cr. 165, 83 P. 2d 601, paragraph five of the syllabus, this court said:

“Alleged errors occurring during the progress of a trial, and not properly raised and presented in the court below, will not be considered on appeal.”

For the reasons stated, the within case is affirmed.

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


author: JONES, P. J.

text:
    CLARK v. STATE.
    No. A-11113.
    May 3, 1950.
    (218 P. 2d 410.)

      Chas. W. Moss, Public Defender, Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, William Lee Clark, was charged by an information filed in the district court of Oklahoma county Avith the crime of rape in the first degree, Avas tried, convicted and pursuant to the verdict of the jury was sentenced to serve a term of life imprisonment in the State Penitentiary.

At the trial of the accused the Honorable Garnett Hughes appeared as counsel for the defendant. Shortly after the trial and conviction of defendant his counsel died. Thereupon the public defender of Oklahoma county had a case made prepared at the expense of Oklahoma county and filed the appeal in this court within the time allowed by law.

No brief has been filed on behalf of the defendant but at the time the case was set for oral argument the public defender of Oklahoma county appeared and argued the cause in his bebalf.

For a reversal two propositions were presented: First, the defendant did not have a proper preliminary examination as guaranteed by the Constitution and statutes of Oklahoma. Second, both of the assistant county attorneys were guilty of prejudicial misconduct in their arguments to the jury.

As to the first proposition, the record discloses that on the date the case came on regularly for trial on January 20, 1948, a jury was called to the box and had been sworn to answer questions upon voir dire examination. At which time defendant’s counsel moved the court to remand the case to the justice of the peace court for a preliminary examination for the reason that at the time the accused appeared before the magistrate he was without counsel and had in fact had no preliminary examination.

When this motion was made the court excused all members of the jury panel from the courtroom and the defendant testified in support of his motion as follows: That he was arrested on December 22, 1947; that on January 2, 1948, he was taken before justice of the peace Paul Powers for a preliminary examination; that the charge was read to him and “they asked me how I pleaded and told them Not Guilty”; that the prosecutrix and one other witness testified against him and the justice of the peace asked him if he wanted to cross-examine the witnesses or whether he had anything to say and he responded, “no, at the present”; that he had no lawyer at the preliminary examination; that on January 8, 1948, he was arraigned in the district court of Oklahoma county, at which time the public defender was appointed to represent him; that at that time a plea of not guilty was entered and the case set for trial on January 20, 1948; that subsequent to that time relatives of the accused employed Mr. Hughes of Hobart to represent the defendant.

After the testimony of the defendant was concluded the trial court stated in the record that he had had a conversation with Mr. Hughes in which he said that he would be ready for trial on the appointed date, that no question as to the failure of the defendant to have a proper preliminary examination had been raised, and now “all parties have answered ready for trial and we have gotten the point of having a jury in the box”. The motion was then overruled and defendant allowed an exception.

In Burchfield v. State, 85 Okla. Cr. 415, 188 P. 2d 392, this court held:

“The constitutional provision, article 2, § 17, Oklahoma Constitution, that ‘no person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such examination/ is for the benefit of an accused and which, by express terms of the Constitution, he may waive.
“The fact that accused has had a preliminary examination need not be alleged in the information or shown affirmatively by the state. The law presumes that accused has had a preliminary examination or has waived it, and when accused relies upon the want of a preliminary examination, the proper practice is to raise the question by motion to quash or set aside, before pleading to the merits.
“The entire preliminary proceedings may be waived in the trial court and are waived by failure to file motion to quash or set aside as provided by the statute before entering a plea on the merits.
“After the entry of a plea of not guilty in a district court without filing a motion to quash the information, the question as to the failure to have a preliminary examination or of a defective certificate of the magistrate in transcribing the proceedings to the District Court is waived, and may not be raised by an objection to the introduction of evidence at the beginning of the trial.”

This court has held on many occasions that an accused may waive a preliminary examination and that his right to question the sufficiency of the proceedings upon a preliminary examination or to raise the question that he did not have a preliminary examination may be waived in the trial court and is waived by failure to file a motion to quash or set aside the information in apt time. Ex parte Miller, 82 Okla. Cr. 315, 169 P. 2d 574; Landon v. State, 82 Okla. Cr. 336, 166 P. 2d 781; Ex parte Owen, 82 Okla. Cr. 415, 171 P. 2d 868; Ex parte Pruitt, 89 Okla. Cr. 312, 207 P. 2d 337; Herren v. State, 72 Okla. Cr. 254, 115 P. 2d 258.

It is our conclusion after a consideration of the record that the defendant did have a preliminary examination but that if he had not had a preliminary examination his failure to raise such question before entering a plea to the merits constituted a waiver of his right to a preliminary examination.

The prosecuting witness, a young married woman 23 • years of . age with a young baby lived in Oklahoma City with her husband. Her husband worked on a night shift and did not get off from work until about 1:30 a. m. each night.

The prosecutrix testified that she was awakened by the door bell about 1 a. m.; that she thought it was her husband and that he had lost his key; that when she opened the door the defendant entered without being invited and said he wanted to use the telephone; that she ordered the defendant to leave the house but instead the defendant pulled a gun and forced her to submit to an act of sexual intercourse with him. The husband returned home about 15 or 20 minutes after the attack occurred and found his wife in' a hysterical condition. The defendant was arrested several days later and positively identified as being the assailant. Several corroborating factors were brought out at the trial but the sufficiency of the evidence is not questioned and it is unnecessary to further review the evidence. The defendant did not testify and offered no evidence in his behalf.

It is contended that each of the assistant county attorneys committed reversible error when they made the statement in their closing arguments to the jury that the evidence of the state was uncontradicted for the reason that this was a comment upon the fact that the defendant did not testify. By statute it is mandatory on the trial court to grant a new trial when a prosecutor comments on the fact that defendant did not testify. 22 O. S. 1941, § 701. This statute has been before the court many times for construction.

In Chesser v. State, 63 Okla. Cr. 84, 73 P. 2d 191, 192, the sixth syllabus reads:

“Statements of the prosecuting attorney, in argument to the jury, ‘Why couldn’t they contradict the state’s testimony, but not one place do they do that,’ and ‘I say again there is no evidence offered to contradict the state’s evidence in this case,’ held, not a comment upon the failure of the defendant to testify as a witness in his own behalf, within the meaning of section 3068, St. 1931 (22 Okla. St. Ann, § 701).”

In Presnell v. State, 71 Okla. Cr. 162, 109 P. 2d 834, 835, the second syllabus reads:

“The statement by the county attorney in his argument to the jury that, ‘The witness, Deehan, who is now deceased, in his testimony identified this defendant, and that has not been denied or contradicted by any one in this case,’ held not a comment upon the failure of the defendant to testify as a witness on his own behalf, within the meaning of Sec. 3068, O. S. 1931, 22 Okla. St. Ann., § 701.”

In the body of the opinion the following quotation appears:

“Where a defendant fails to offer any evidence, the prosecution is not prevented from discussing the evidence against him, and to insist that such evidence is undisputed.”

Other cases holding that statements by the prosecutor that the evidence of the state is undisputed or words of similar import have not been a violation of the statute are as follows: Sellers v. State, 88 Okla. Cr. 114, 200 P. 2d 443; Starr v. State, 63 Okla. Cr. 302, 74 P. 2d 1174; Lakes v. State, 61 Okla. Cr. 252, 67 P. 2d 457; White v. State, 76 Okla. Cr. 147, 134 P. 2d 1039, 1041.

While the record does not report the arguments of either of the prosecutors nor of counsel for the defendant, in view of the objection that was made during the argument we think the statement made by this court in White v. State, supra, should be repeated so as to call to the attention of county attorneys the grave risk they run in trying to comment upon the failure of the defendant to introduce any evidence. Here the county attorney could have waived argument and the jury would still have rendered the verdict which they reached. In White v. State, supra, it is stated:

“The county attorney should have been very careful in his argument not to make 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.”

The public defender of Oklahoma county did not appear in the trial of the case in the lower court, but as has been herein before noted, he appeared before us upon the death of the defendant's counsel and made an excellent argument before this court. His efforts are commendable.

We have found no legal reason why the judgment and sentence of the district court of Oklahoma county should be reversed. It is accordingly ordered that the judgment and sentence be affirmed. •

BRETT and POWELL, JJ., concur.