text:
    LUTHER HALL v. STATE.
    No. A-6620.
    Opinion Filed June 1, 1929.
    (277 Pac. 956.)
    Claud Briggs, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted upon a charge of assault to commit rape, and was sentenced to be imprisoned in the county jail for 60 days and to pay a fine of $250. Motion for new trial was filed, considered, and overruled, and the defendant has appealed to this court.

The state to maintain the allegations in the information called Mrs. Ed. Howard, who stated:

“Ida Howard is my daughter, she was thirteen years old on the 3d day of May, 1925; Luther Hall was at our house on February 28, 1926; we lived at Gowen at the time; Ida asked my permission to go to the home of Ida Roe, I did not consent to her going at the time, but later on I consented.”

Ida Howard was called as a witness and testified that:

“On February 28, 1926, I lived with my father and mother at Gowen, Okla.; I knew Luther Hall; on the 28th day of February, 1926, he was at our house about ten, or eleven o’clock; while he was there I asked my mother if I could go to Ida Roe’s; she afterwards told me I could go if I would go down the highway; Luther Hall was there at the time; I left home to go to Ida Roe’s about fifteen minutes after eleven, and went straight down the highway; I intersected the highway at Zaikawski’s butcher shop; Luther Hall was there; he asked me if he could go with me and I told him no; he wanted to know where I was going and I told him I did not know and he got up and followed me, and I told him I was going to Lillie’s; Luther said he was going down to where my brother Jesse was; I stopped and asked him where he was going and he said he was going with me, and put his hand on my arm, and I took both my hands aud shoved him off, down in a ditch; this was just before I went down the hill; two cars passed, one was Billie Carmack and the other was Fred Tyler; they spoke to Luther; we went on down the highway and was talking; I was trying to get Luther to go back; he said he was going with me; he said mama did not want me to go by myself; we went down to the culvert, when I was in about ten feet of the culvert he grabbed me and threw me down; he asked me to let him play with my titties; I started to run and he caught me; he threw me down the embankment, he came down and picked me up and said, ‘Right here is where I am going to get a piece of pussy,’ I fought and scratched him and he could not get me down; we fought a little while and I got loose and run up the highway, and just after I got on the highway a car passed; after the car passed I started to run. and fell down and he started to grab me, and I told him I would hollow, that I was on the highway where Bennett’s could hear; he turned and went down to Arthur Bennett’s; during our struggle we were up against the abutment of the culvert and he beat my head against the embankment when I was fighting him; about ten minutes after I got to Ida Roe’s I told her what had happened; when I reached the Roe home, Guthrie Fulks, Ida Roe, Mrs. Roe and Gladys were there; I reached Mrs. Roe’s home before twelve o’clock.”

On cross-examination witness stated that Luther Hall was a frequent visitor at their home; he was at their house the day of the alleged trouble, and as she started to Roe’s he went to the butcher shop. She was asked the question, “Luther was always inclined to joke you,” and answered, “Yes, sir, he was always joking me. He made me mad a few days before this; he was not teasing me the day we went down the road; I did not take his talking as a joke; I did not pucker up my lips and run out to him when he got down to the culvert; this scuffle I refer to did not take place under the culvert; it was right by the end of it; it was on the north side of the road; I did not think Luther acted like he was joking and teasing me; just when I got down near the ditch at the culvert he pulled up my dress and tried to pull my bloomers off; I was fighting and scratching him, anything I could do to get away; I do not know just where he had hold of me, as I was trying to get away; I was fighting with both hands; he did not get me down after I fell as I went down the embankment; he pushed me off the embankment and I fell down; he come and pulled me up and took me over by the end of the embankment; he did not have hold of my hands; he had hold of my titties with both hands; I was trying to get away; he was behind me and I don’t know how I got loose; I got loose in some way and rani across a little branch; I was scared and mad; it looked to me like he was a wild man; when I commenced fighting and scratching he did not turn me loose, he was trying to take my bloomers off; I thought he intended to do what he said he was going to do; I was trying to get away; I am still mad at him; I told Ida Roe what had happened about fifteen minutes after I got to her house; he did not tear any of my clothing; he bruised my head; the little knoll at the culvert run about half way under the culvert; the place was in plain view where people might be passing along the highway; there was a plain stretch of road nearly a mile, and a half mile east back to Gowen; the culvert was the only place along the highway where you could get out of sight or hide. This is the first place along the highway where anyone could be concealed; it is such a place that people coming along this road could be seen for a long distance. I told mother what had happened about four-thirty that afternoon when I got home; I did not tell her Luther followed me but I told her what had occurred at the culvert.”

Ida May Roe, called as a witness, in substance testified that the place where they lived was on the highway; that she saw Ida Howard on that date, “she came to my house, she was walking pretty fast, seemed to be in a hurry; I was the first one to talk to her after she got to the house; she looked frightened and her shoes were muddy; I asked what was the matter, and she said she was out of breath, and to wait a minute and she would tell me, she waited a while and I asked her again and she asked me to come outside with her. On the way out she cleaned off her shoes; she told me she was tried to be raped by Luther Hall.” Motion was made by the defendant to strike this from the record, which motion was overruled and defendant excepted.

On cross-examination witness stated her name was Ida Roe; since this alleged offense she married a brother of the prosecuting witness; “we lived about a half mile from this culvert at the time of the alleged offense; cannot see it from our house; to be concealed people would not have to be under the culvert, as there was a high bank there; from the culvert you can see a long ways up and down the road; the road is part of the highway leading from Hartshorne to Gowen; a number of people travel this highway regularly.”

Lillie Hankins, called as a witness, in substance testified she saw Luther Hall on the 28th day of February, 1926; “I lived at that time near Hartshorne, about half way between Hartshorne and Gowen; when I asked him what was the matter he said he had been walking fast and was sweating; he said he had been in a fight with some scabs; that he had stuck his knife in one of them; said he was going to beat it; it was along about the middle of the day when he came to my house; my husband was sick and I had been sitting up and did not cook my dinner at regular hours; he was a second double cousin; he talks too much, being kinda windy, I did not believe everything he said.”

Fred Cottrell was called by the state, and testified to being down to the culvert and seeing tracks, could not tell whether they were men or women tracks; on cross-examination he stated he did not know whether there had been any one down there before he went down to examine the tracks or not; the little knoll where these tracks were found is near the culvert on the north side of the road, and extends partly under the culvert. This is, in substance, the testimony introduced by the state.

The defendant demurred to the evidence on behalf of the state, on the ground “that the testimony and evidence submitted on behalf of the state is wholly insufficient to warrant the jury in returning a verdict of guilty, and is wholly insufficient to authorize or justify a verdict on the charge contained in the information,” which objection was overruled, and defendant excepted.

L. T. Hall, called as a witness on 'behalf of the defendant, testified he knew the defendant, Luther Hall:

“I am not in any way related to him by blood or marriage; on Tuesday morning after this alleged occurrence I went to the culvert on the highway west of the railroad where this offense was alleged to have taken place and made an examination of the grounds and tracks; I understand this offense was alleged to have been committed on Sunday about noon; it looked like there had been four different sizes of tracks; I saw no evidence of slipping or struggling.”

This statement was objected to, and the court stated, “I think you had better describe the tracks.” “The tracks just looked like the usual tracks, just like stepping, around; I< only saw a woman’s track on the south side of the bridge; there were tracks on the little knoll to the north end of the culvert; I could not say just how high the culvert is, my judgment is, it is something like five feet, maybe five feet four; I am five feet ten inches, and I could almost walk under it; when I was there the ground under the culvert was muddy; I don’t know whether it had rained any since the alleged offense and before the time I was there; there was water there when I examined it, and it covered all excepting the southeast comer; I saw tracks on the southeast corner;, just the usual tracks, just looked like they had been stepping around; I did not see any woman’s track, all the tracks I saw was like a small five shoe.”

On cross-examination the witness stated he helped put in this culvert; “I have lived around Growen for five or six years; I could not say how thick the concrete in the abutment of the culvert was, it must have been eighteen inches. Of course the girl could have been pushed up against the abutment, as the abutment runs from the ground up to the bridge; I saw tracks on the little knoll, about a number five shoe there in the mud; I never noticed any small tracks excepting on the little knoll; I remember looking at a number of tracks, about four different sizes; the little knoll I speak of is about three feet, it kindly runs up under the bridge near the abutments.”

Fred Tyler, called by the defendant, testified he lived at Gowen and knew the prosecuting witness, Ida Howard; that on the 28th day of February, the date this offense is alleged to have occurred, he overtook Luther Hall and Ida Howard on the road between Gowen and the concrete culvert; they were walking toward Hartshome; “I was not driving the car, another fellow was, and we did not stop, we slowed down and asked if they wanted to ri.de, and she shook her head first and we said, ‘Come on and! ride,’ and she said no, they would walk; we went on to Hartshorne.” On cross-examination he stated Luther Hall did not say anything; “I was talking to both of them when I asked them to ride; this was about a quarter of a mile from the culvert.”

Giff Loudermilk was called as a witness for the defendant and testified he knew Ida Howard; that on the 28th day of February, 1926, he saw the prosecuting witness and defendant walking on the highway; they were laughing and talking like two young people will; they were on the main highway between Hartshorne and Gowen, going towards Hartshome. Luther Hall was a married man, and the girl was not married, just a kid of a girl.

In rebuttal the state called Jim Morris who stated he remembered something about the time of the occurrence; he was in a car with Fred Tyler driving out of town; they passed Luther Hall and Ida Howard; “Fredi hsked them to ride and no one said anything, we did not stop. I don’t know whether the car slowed down or not.”

On cross-examination he stated the did not remember if the curtains were up on the car; “I know Fred hollowed at them and I don’t know whether either of them said anything or not.” The defendant rested. The following day the state moved the court to reopen the case for the purpose of showing the prosecuting witness was not the wife of the defendant. Defendant objected. The motion of the state was allowed, and defendant excepted. The state then showed by Mrs. Ed Howard that Ida Howard was not the wife of Luther Hall, and had never been his wife, and was not the wife of Luther Hall on the 28th day of February. The defendant moved to withdraw all testimony from the jury given by Mrs. Ed Howard after the state had rested, and the defendant closed his testimony, on the ground that it was not proper rebuttal. The motion was overruled, and defendant duly excepted. This is, in substance, the testimony offered.

The defendant assigned 11 errors alleged to have been committed by the court in the trial of his case, and in his brief has grouped them together and argues as follows:

First, errors of law prejudicial to the rights of the defendant. Insufficiency of the evidence to support the conviction. That the court erred in giving certain instructions, over the objections and exceptions of the defendant.

Under the first proposition it is urged by the defendant that the court committed errors of law prejudicial to the rights of the defendant during the trial of his case. The defendant with considerable force argues that the state relied in this case for conviction upon the information attempting to charge assault with intent to commit rape by means of force, and sets out the charging part of the information in this case: Then the defendant states that:

“It will be observed that in the charging part which attempts to set out the acts and particularly charge the offense, it is not alleged that the acts were committed with intent to commit the crime but instead the allegation is declaring with the said attempt by force that he intended to accomplish an act of sexual intercourse.”

Defendant in support of his contention relies upon the case of Bond v. State, 12 Okla. Cr. 160, 152 Pac. 809, in which the court held: “To constitute a good charge of attempt to commit the crime of rape under section 2803, Rev. Laws 1910,, some act done towards the commission of the crime and the failure must be alleged, and it is also necessary to allege an intent to feloniously have sexual intercourse by committing a rape as defined by section 2414, Rev. Laws 1910.”

Upon an examination of the case cited we find that the information in the case, stripped of verbiage, stated John Bond attempted to commit rape by attempting to have sexual intercourse with the prosecuting witness. No facts constituting the offense are set forth so the defendant and the court may know with what proof the allegations in the information are to be met. In this case, stripped of verbiage, the information charges that the defendant did, unlawfully, wrongfully, and feloniously make an assault upon the body of Ida Howard with intent to have sexual intercourse with the said Ida Howard, and then sets forth the facts by stating:

“That said defendant did lay hands upon the said Ida Howard violently, and did throw the said Ida Howard to the ground with force and violence, and attempted to raise her skirts declaring with the said attempt by force that he intended to accomplish, an act of sexual intercourse with the said Ida Howard. And that the said Ida Howard did resist the force and violence so attempted then and there by the said defendant, and did prevent the accomplishment of the said act of sexual intercourse attempted by the said defendant.”

The allegations in Bond v. State, supra, and in this case are different. In this case the information sets out in detail the acts committed by the defendant in his attempt to accomplish his purpose. We hold that the information in this case sufficiently charges the defendant with the crime of assault with intent to commit rape.

It is further alleged by the defendant that the court erred in permitting certain testimony offered over the objection of the defendant as to the report of the prosecuting witness made when she reached the Roe home. The defendant cites Welch v. State, 23 Okla. Cr. 74, 212 Pac. 449, as supporting his contention. After a careful study of the Welch Case we do not think the question involved in that case is in point, as the prosecuting witness when called by the state denied the assault, and the state then for conviction relied solely upon the statements it is claimed was made by the prosecuting witness soon after the assault. The court held;, and properly so we think, that, where the prosecuting witness denies the assault with intent to rape, the particulars of the complaint made by her to a third person, or persons, shortly after the alleged assault was alleged to have been committed, were not a part of the res gestae of the assault itself and do not amount to legal proof of the corpus delicti. In this case the prosecuting witness testified positively to the assault that was made upon her, the language used by the defendant at the time as to what his intent and purpose was, and the court did not err in permitting the testimony of Ida Roe as to what the prosecuting witness said to her within a few minutes after she reached the Roe home.

The defendant on his second proposition urges that the facts as related by the prosecuting witness are so unreasonable as to be wholly insufficient to support the judgment of the court, and predicates his assignment as unreasonable on the grounds that the alleged offense occurred on the public highway, where numbers of people were continually driving to and fro along the highway, and then the defendant in his argument makes this statement : “That even if he did assault her in any manner he desisted of his own free will and not because she forced him to do so, or actually prevented the accomplishment of any unlawful act by resistance.”

The defendant in his contention cites Witt v. State, 29 Okla. Cr. 357, 233 Pac. 788. In the Witt Case the court does not set out in detail the testimony in the record, stating:

“It will serve no good purpose to set out the facts disclosed by the record in this case, nor the many contradicted circumstances and unreasonable features in the evidence.”

The record in this case fails to disclose any contradiction or inconsistencies in the testimony of the prosecuting witness. It is true the offense is alleged to have occurred upon a public highway at a culvert where all the proof shows is more than five feet from the ground to the top of the culvert. The testimony on behalf of the state and defendant show that two days after the alleged! offense tracks were found on a little knoll where the prosecuting witness alleges the defendant had her, and that some of the tracks were in the mud near the abutment of the culvert. The tracks were not identified as the tracks of the defendant or prosecuting witness. There were several tracks, one looked like a No. 5 shoe. When the prosecuting witness reached the Boe home, she had mud on her feet. An effort was made to show that the prosecuting witness was “mad” at the defendant, and the prosecuting witness admitted that she was “mad” at the defendant. The testimony shows that the defendant was at the home of the prosecuting witness that morning, and that he heard her ask permission, of her mother to visit the Roe girl; that the mother finally consented. The defendant left the Howard home and was next seen by the prosecuting witness at a butcher shop along the route she was traveling to get to the Roe home; he followed her, and when asked where he was going, he said down the road, or over to where her brother Jesse was. Some testimony was introduced to show that the prosecuting witness and defendant were seen walking along the highway laughing and talking; the prosecuting witness admitted she was along the highway with him, and he continued to follow along and talk to her. All the testimony as to their being seen along the highway was prior to the time they reached the culvert mentioned in the testimony. No one testified they were together after leaving the culvert. When the prosecuting witness reached the Roe home the testimony tends to show she was excited and seemed out of breath; was there about fifteen minutes before she could! tell Ida Roe what had happened. The testimony further tends to show that defendant visited a double cousin; when he arrived at her house he was excited and said he had had a row with a scab and stuck a knife in him and was going to beat it.

The defendant did not testify in the case, and the testimony of the prosecuting witness as to what took place at the culvert stands uncontradicted. The statements she makes are not contradicted or denied by the defendant.

The prosecuting witness in this case is a girl of immature years, and, so far as the record shows, a girl of limited experience. The defendant is a married man and should have known better than to be following this young girl along the highway, and if, as attempted to be shown by Ms defense, he knew she was not feeling very kindly toward him. There is nothing in the record to indicate that the prosecuting witness was not so angry at the defendant that she would fabricate and falsify a statement like the one given by her in the trial of this case where the defendant had an opportunity to cross-examine.

We hold that the testimony in this case is sufficient to sustain the judgment. There are other errors alleged by the defendant, but upon an examination and careful study of the entire record they are not of sufficient merit to justify a reversal of this case.

The defendant in this case was accorded a fair and impartial trial. The court correctly declared the law. Finding no prejudicial errors in the record, the judgment is affirmed.

EDWARDS, P. J., concurs.

CHAPPELL, J., not participating.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    MYRTLE DYER v. STATE.
    No. A-6776.
    Opinion Filed June 1, 1929.
    (277 Pac. 956.)
    J. W. Osmond and Bristow & Johnson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Caddo county on a charge of having the unlawful possession of whisky and her punishment fixed at imprisonment in the county jail for a term of 60 days and to pay a fine of |150.

The record discloses that at the time charged, certain officers with a search warrant went to a rooming house conducted by defendant and found four half-gallon jars of whisky and some beer in bottles and several cases of empty bottles. The appeal was filed in this court in October, 1927. No briefs in support of it have been filed. An examination of the record discloses no material error.

The case is affirmed.


text:
    BILL DAVIS v. STATE.
    No. A-6741.
    Opinion Filed June 1, 1929.
    (277 Pac. 952.)
    George W. Buckner, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Garfield county on a charge of having the unlawful possession of intoxicating liquor and was sentenced to serve a term of 60 days in the county jail and to pay a fine of f 50.

The record discloses that as the time charged certain officers with a search warrant went to the place of residence of defendant and found a pitcher containing a little more than a half gallon of whisky sitting on the sink with a whisky glass sitting by it. There were some other persons at the place at the time.

The judgment was rendered in April, 1927, and the appeal was lodged in this court in October, 1927. No. briefs in support of the appeal have been filed. No material error appears in the record.

The case is affirmed.


author: DAVENPORT, J.

text:
    CHARLES KEITH v. STATE.
    No. A-6530.
    Opinion Filed June 1, 1929.
    Rehearing Denied June 22, 1929.
    (277 Pac. 1037.)
    Joseph Trevathan, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted on an information that charged that defendant did willfully, unlawfully, felon-iously, and knowingly, keep and manage a public gambling nuisance, and was sentenced to imprisonment in the state penitentiary for 18 months. Motion for new trial was filed and overruled and exceptions saved, and defendant hasi appealed to this court.

The testimony on behalf of the state shows that a search warrant was procured to search the building at 211 North Bickford street, in the city of El Reno, Okla.; that the officers went to the building and served a copy of the search warrant on T. C. Brickel; that the parties started to the second floor of the building, and after they got. on the stairway they heard considerable noise, and as they came up to the head of the stairs they met the defendant coming out of a room, and there searched him and found considerable loose money in his pockets, and in the room from which the defendant came they found a table, dice, and a leather cup. A number of witnesses were called in the trial who testified to having been in the place gambling, and that the defendant paid the bets if he won, and collected money, and that defendant was also assisted by a man by the name of Rhodes, who testified as a witness against the defendant. This is, in substance, the testimony of the state. The defendant offered no testimony.

The defendant urges that the court committed several errors in the trial of the case.

First, that the court erred in overruling defendant’s demurrer to the information. After an examination of the information, we hold that the information stated facts sufficient to place the defendant upon his trial, and that the demurrer was properly overruled.

Second, the defendant urges that the court erred in, overruling the objection of the defendant to the introduction of any testimony under the information. We cannot agree with this contention; the court did not err in the overruling of the objection of the defendant to the introduction of the testimony.

The third assignment urged by the defendant is that the trial court erred in overruling defendant’s demurrer to the evidence on behalf of the state, and in overruling defendant’s motion to direct a verdict of not guilty, on the ground that the testimony was insufficient to sustain the verdict and judgment. The record discloses that the testimony is sufficient to sustain the judgment.

It is also contended that the county attorney was guilty of misconduct prejudicial to the rights of the defendant, by making statements by innuendo and otherwise of the failure of the defendant to take the witness stand in his own behalf. With this contention we cannot agree. The only statement made by the county attorney ivas that the testimony of the state Avas undisputed. It is not shown by the record that the county attorney made any reference whatever to the failure of the defendant to testify. Where a case is tried and the defendant offers no testimony, the county attorney has the right to comment upon the fact that the evidence of the state is not disputed, and in doing so it cannot be said that he is commenting upon the failure of the defendant to take the witness stand.

The defendant further urges that the court improperly received testimony against him, for the reason that defendant’s person was searched by the officer without his procuring a search warrant or warrant for his arrest. It has been repeatedly held by this court that the search of the person without a warrant for his arrest or a search warrant was unlawful, and testimony procured thereby inadmissible.

It appears from the record that the search of the defendant only disclosed that he had some loose money in his pockets, and that at the time of the search he was coming from the room in which the officers having the search warrant found the gambling paraphernalia; that the only testimony secured by the officer making, the search of his person was that he had some money in his pockets, and under terms of the search warrant the officers found in the room, from which the defendant came at the time he was searched, dice, table, and other things used in gambling; and that several witnesses testified on behalf of the state and showed that defendant was engaged in conducting a gambling game in the building, and had been for some time prior to the night of the search.

We do not think the rights of the defendant were prejudiced by the act of the officer in searching the person of the defendant at the time of the searching of the room in which the proof shows gambling was being conducted.

There are other errors assigned by the defendant, but they are without merit. The testimony is amply sufficient to sustain the judgment. The court properly declared the law.

Finding no error in the record prejudicial to the rights of the defendant, the judgment is affirmed.

EDWARDS, P. J., concurring; and CHAPPEDL, J., absent, not participating.


text:
    A. B. SCOTT v. STATE.
    No. A-6140.
    Opinion Filed June 8, 1929.
    (278 Pac. 393.)

      Lunsford & Windham, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Le Flore county, of arson in the second degree, and his punishment fixed at two years in the state penitentiary. Motion for new trial was filed and overruled, and defendant duly excepted and has appealed to this court.

The state to sustain the allegations called J. T. Pope, who testified that on the 1st day of July, 1922, he lived' on the southeast quarter of section 9, township 4, range 26 east; that he had a dwelling house built especially for a dwelling; he had a two-room house with a porch across the north side of it near his home; to the best of his recollection on the 23d day of March, 1922, he was awakened by a fire; the two-room house was burning down; “It was immediately south of the house in which I lived.”

The state offered in evidence the subpoena for Jeff Davenport as a witness on behalf of the state, which was objected to by the defendant, and the objection overruled; the subpoena was offered in evidence, and showed that it was issued at Poteau, on the 25th day of September, 1925, and returned on September 26, 1925, showing that Jason Milsap is in Ft. Smith, and Jeff Davenport somewhere in Texas, not found in Le Flore county.

The state then called Ruth Brannan, who testified she reported the testimony of Jeff Davenport in the preliminary hearing in the case of State of Oklahoma v. A. B. Scott, and that she transcribed the testimony. The state then offered the testimony of Jeff Davenport taken at the preliminary as shown by the reporter. The defendant objected to the introduction of this transcript—

“For the reason that the shorthand notes taken is the best evidence; and second, because under no phase of this case has a proper foundation been laid for the introduction of this transcript, or her shorthand notes either, because before they can be introduced in evidence they would have to prove that the witness is not in the state, and that has not been done.
“County Attorney: I have offered in evidence the return of the officers made properly to support that fact if the court desires further proof of that.
“Court: You had better call the officer who made the return.”

The officer who made the return was not called, but J. T. Pope was recalled and stated he was acquainted with Jeff Davenport, and something like a month ago he heard from him; he was in Sherman, Texas, or on a rural route out of Sherman. The defendant objected to the witness’ testimony on the ground that if he had a letter from Jeff Davenport, the letter itself would be the best evidence. ■

“The Court: Have you the letter, witness? A. I don’t have it with me.
“The Court: He is not trying to prove what he stated in the letter.
. “By Mr. Babb: Is he around or about Zoe, at this time or not, in the country? A. I don’t think so.
“Mr. Lunsford: We desire to object further for the reason that the post mark is the best evidence of where it was mailed and where it came from.
“The Court: The objection is overruled.
“Defendant excepts.”

On cross-examination the witness was then asked by the county attorney if he could swear of his own knowledge that this witness is not within the state of Oklahoma, and he answered, “No, sir.” The county attorney then offered in evidence the transcript of the testimony of Jeff Davenport which was taken at the preliminary trial in the case of the State of Oklahoma v. A. B. Scott. Defendant objected for the reason there had been no competent evidence introduced which was sufficient to support the finding of the court that the witness Jeff Davenport is dead or without the jurisdiction of this court and cannot be produced to testify in person.

“The Court: Of course the evidence of the witness Pope to the effect that he had had a letter from the witness some time about a month ago would not be sufficient proof of the absent witness from the state, but there being a return of the officer whose duty it was to subpoena this witness showing that he is in Texas is sufficient to let in the statement of the witness given at a former trial which was a preliminary, where the defendant had an opportunity to and perhaps did cross-examine him. I don’t know whether he did or not but he had the opportunity to. The objection is overruled.
“Mr. Windham: Defendant excepts.”

The transcript of the record of the Jeff Davenport testimony was then read by the county attorney, in which Davenport stated he had rented the blacksmith shop from the defendant at Zoe, and that in the spring of 1922, and before Pope’s house was burned, witness came down to the shop and “asked me if I would do him a favor, and I said it was owing to what he wanted. He said there was some money in it, ‘I will give you $350 if you will set fire to Pope’s house so it will burn the big house’; and I said, ‘I cannot do that, for it will be found out sooner or later.’ Some fellow came in and he went out. That evening I went to his house to get a brace and bit. While there defendant took me around the house and got those things, and pulled out a roll of greenbacks and counted out $50 and gave it to me and said, ‘Do that and I will pay you the rest.’ That evening I set fire to the small house. It was near the Pope house on the west side. I whittled kindling off a pine stump and set fire to it. The next morning I saw defendant on the porch as I came to work. I stayed at Lee Mullins’ that night. I went to see him next morning, and he said, ‘How did you make it?’ I shook my head, all right. The second day after that, as I came back from Stapp, I saw him. Defendant said, ‘You did not do what I asked you to do,’ and I said, ‘I did the best I could.’ He said he would not pay me one cent, and I said I had a notion to sue, and he said, ‘Sue and be damned,’ and turned and walked off. I quit the shop and went to Redland; left there and came back to Poteau and tried to get this money. When I asked him about it, he said he wasn’t going to pay me. I was arrested on a charge of arson and pleaded guilty and received a sentence that expires today.” On cross-examination the witness, in substance, restated what he had stated in direct examination with reference to defendant hiring him to burn Pope’s house, and that he stayed at Lee Mullins’ house the night of the fire; he ate supper at Will Gillam’s; that Gillam’s house was something like a mile and a half from Pope’s; it was tolerably late when he came to Mullins’ place. The witness stated! he did not have a racket with defendant over the shop; that he worked about a day in the shop after he claims he set fire to the house; Pope and Taylor have not paid me any money since the house was burned; they sent me money to keep me in tobacco, and I mean to pay that back; they sent two, three, or four dollars at a time; I did not claim to any one that old man Scott had threatened to have me arrested for embezzlement.

Jason Milsap was called, and stated he lived last year at Zoe; knew the defendant A. B. Scott and J. T. Pope; he had had a conversation with defendant down between the house and barn just after the new year a year ago last new year; “we was out looking at the barn, and he said, ‘Do you want to make some money easy?’ and I said, ‘Sure if I can make it honest’; I said, ‘I never made any easy money,’ and defendant said, ‘I have a problem and you can make some easy money,’ and I said, ‘all right, tell it.’ ‘You take out big insurance on the house and the things in it, they will not have to know what we have in there’.” This was objected to by the defendant, and the county attorney stated he was leading up to the conversation about the Pope house. “ ‘You burn the house and give me the insurance, and I will give you a deed to this place; if you will burn Pope out I will make you a deed to this place,’ is the very words the old man said to me, and I told him, ‘No, you will have to let me study about that,’ and in about two weeks he came to my house and asked me about the matter again, and I said, ‘I can’t do that.’ He said he got a fellow to bum Pope out; that he did not burn him' out; that he was to pay him $350; that he paid $50, but he said he did not have the nerve; he burned the small house and ran off’.” On cross-examination witness stated: “Yes, sir, I was afraid of him: I was not exactly afraid of him just afraid he might do something to me.” Witness was then asked why he took that much time to study it over. The state objected, the objection was sustained, and defendant excepted. “Scott and. I did not have a racket over some land, I was planting some cotton, and there was a piece covered with bermuda grass; I was letting that lay out; I agreed to let a man by the name of Stanford have it for a watermelon patch; the defendant came up and tried to run him off, and I told him I .had rented the land and that I would run it, and he acted like he was going to do something, and I said, ‘Old man, don’t fool with my farm, for if you do I will slap the fool out of you,’ that is what I said.”

Considerable testimony was offered and objected to and sustained by the court with reference to cases against the witness on whisky charges. Witness admitted that he had been convicted on a whisky charge. This is in substance the testimony offered by the state, at the conclusion of which the defendant moved the court to strike from the record and exclude from the jury the testimony of Jeff Davenport contained in the transcript of the record taken at the preliminary and introduced as evidence in this case, for the reason that there was not a sufficient foundation laid for the introduction of the said transcript in evidence in this case. The motion was overruled, and defendant duly excepted. The defendant then requested the court to advise the jury to return a verdict of not quilty in the cause, for the reason that the state had not introduced testimony sufficient to sustain a conviction, and for the reason that the testimony of Jeff Davenport, an accomplice in this case, is not sufficiently corroborated by any competent evidence to justify consideration of the facts by the jury. Which request was overruled, and defendant duly excepted.

The defendant testified in his own behalf and stated that he had never promised to pay, or talked to Jeff Davenport about burning Pope’s house; and that he had never had a conversation with Jason Milsap about burning, Pope’s house; that a bad feeling had existed between himself and Milsap for more than a year; Jeff Davenport worked in the shop for him for a while; “I threatened to have Davenport arrested for embezzlement of some material, or things he had at the shop; after we had trouble he left; he did not tell me where he was going; when I talked to him about the stuff he had taken, he said he would pay me the next morning; but the next thing I heard of him, he was gone.” On cross-examination witness stated Davenport had been in his shop three or four weeks; he was sleeping at Virgil Nichols’; “he had a batching outfit at the shop when he first started in down there; I had been seeing, Davenport at intervals for years before he came to my place; he had gathered com for me a day and a half at one time; Milsap was on my place two years; I have been convicted and served a term in the penitentiary for larceny of cattle; this was in 1896; I have been living down about Zoe and Heavener ever since; I was pardoned and restored to citizenship.”

Virgil Nichols, called as a witness for defendant, testified he knew Jeff Davenport; he saw him when he was leaving; “he left the key with me; he said Scott was aiming to have him arrested, something about the shop; I don’t know whether I had a conversation with him after his preliminary or not; I had a conversation with him down in the jail; he said he did not burn Pope’s house; that he was not guilty of burning the barn, but pleaded guilty; they told him if he did not plead guilty he would get five years; I was at Stapp when I had the first conversation with Davenport; I was working there on Bush-aw’s place; it was at my house; my wife was present; she is not here to-day; there was no one else present; I told Mr. Scott about this; he come to see me.”

Lee Moulton stated he was acquainted with Jeff Davenport; “he stayed at my house one night before his wife’s death, and stayed one night after her death, something like two years apart; after his wife’s death, when he came it was about 8 o’clock and he stayed all night; he slept with me and did not leave there during that night; it was somewhere in the neighborhood of the time this house of Pope’s was alleged to have been burned; it was some time after he stayed there before I heard of the fire.”

Mrs. A. B. Scott testified she was the wife of the defendant; she remembered when Jeff Davenport came to their house to get a brace and bit; she was in the kitchen with her daughter, Lucile; the defendant went out to the smokehouse just a few steps from the door and got the brace and bit, and defendant went on back; “my husband did not pay him any money that time; they were not out of my presence or sight during the time they were out there.”

Lucile Scott, the daughter, testified she remembered Jeff Davenport came to the house and wanted to get a brace and bit; “I was in the kitchen with mother, and my father went to get the hrace and bit for him; they were not out of my sight while he was there; my father did not pay him any money or anything of the kind.” On cross-examination she stated she was in the kitchen in the door; “I saw my father get the brace and bit; he came into the house through the kitchen door; when my father came to get the key to the smokehouse we were putting up the dishes.”

T. B. Lunsford testified for the defendant, stating he was one of the attorneys for the defendant; that some time after Jeff Davenport was incarcerated in the jail at Poteau, Davenport sent for him and had a conversation with him regarding the burning of the house and “told me he had nothing to do with it; later he told me a man by the name of Taylor, who was some kin to him and was raising his little girl for him, burned the house, and that Taylor and Pope had been down to the jail and talked with him and told him they had framed up on him and that he would not get out for less than five years unless he pleaded guilty.” On cross-examination the county attorney repeatedly asked the witness why he had not come to him and tell him what Davenport had said; he told him he was not representing Davenport and for that reason he had said nothing about it.

Dick Windham also testified, for the defendant, that he knew Jeff Davenport; “Mr. Lunsford was not my law partner at the time”; he saw Davenport one time while in jail, and that Davenport told him he did not bum the Pope building. On cross-examination witness stated the jailor called him to the jail; said there was a man down there who wanted to see him; “I did not represent him because he did not make any arrangement with me.”

This is. in substance the testimony introduced for the defendant.

. The defendant in this case urges that the court committed several errors in the trial of this case. The assignment of errors that we deem necessary to consider is the first error, which is that the court erred in overruling his motion for a new trial. The fifth, that the district court erred in admitting, in evidence, over the objection of the defendant, the purported transcript of the evidence taken at the preliminary trial of Jeff Davenport, without a proper showing being made as to the state being unable to procure the testimony of the witness Jeff Davenport. And it is further urged that if the proper predicate was laid for the introduction of the testimony that it showed him to be an accomplice and that there was insufficient testimony to sustain the judgment. That the court committed an error in admitting the testimony of Jason Milsap as to the conversation he claimed to have had with the defendant some time after the alleged fire, which was not sufficient to corroborate the testimony of the witness Davenport, if the transcript of the testimony of Davenport was properly admitted.

The first question to be determined is: Was the predicate laid by the state sufficient to justify the court in admitting, over the objection of the defendant, the transcript of the witness, Jeff Davenport? In order to arrive at a proper decision in this case, it is first necessary to consider that in the introduction of the subpoena issued by the state for Jeff Davenport and Jason Milsap it was issued on the 25th day of September, 1925, and the sheriff made his return on the 26th day of ‘September, 1925, showing that Jason Milsap was in Ft. Smith and Davenport in Texas; the trial in this case was not begun until the 8th day of October, 1925, notwithstanding the return showed Jason Milsap was in Ft. Smith, he was on hand, and testified in the case. Milsap was not used as a witness in the preliminary. The prosecuting witness in this case was called, and he testified that he received a letter from Davenport about a month previous to the date of the trial, and that he was at Sherman, Tex., or on a rural route out of Sherman. The court in his ruling held that the statement of the prosecuting witness that he had received the letter from Davenport a month previous was not sufficient, to justify the court in permitting the transcript of the testimony of Davenport being introduced, but in view of the fact that the sheriff’s return showed Davenport in Texas, he would hold that was sufficient. The defendant excepted to the ruling of the court.

After a careful examination of the record in this case, we find that the showing made by the state as a condition precedent to the introduction of the testimony of Jeff Davenport, taken at the preliminary trial, was that this case was set for trial on the 8th day of October, 1925; that on the 25th day of September, 1925, a subpoena was issued by the Clerk for the witness Jeff Davenport; that on 'September 26th, the following day, said subpoena was by the sheriff returned with the following indorsement:

“Jason Milsap in Ft. Smith and Jeff Davenport is somewhere in Texas; not found in said county of Le Flore.
“Monroe Self,
“Sheriff of Le Flore County,
“By O. W. Crawford,
“Undersheriff, Deputy.”

There was no showing that Davenport was dead or beyond the reach of court process, or that he was sick and unable to be present at the trial, and no proper diligence was shown to procure his attendance. It appears from the record that notwithstanding the return showed Milsap in Ft. Smith — and we infer that means Ft. Smith, Ark. — Milsap was present and testified in the case. It is not contended that Milsap was called as a witness in the preliminary trial, but he was on hand to testify in the trial of this case on October 8, 1925.

The court directed the county attorney to call the officer who made the return on the subpoena, but for some reason the officer was not called by J. T. Pope, whose building was alleged to have been burned; testified he received a letter about a month previous to the trial from Jeff Davenport, which the court held was not sufficient to show that Davenport was outside the state. This court has repeatedly held that the rule admitting the transcript of the evidence of an absent witness as his deposition on final trial, grows out of circumstances of necessity. The transcript or deposition of the testifying witness shall be excluded in all cases where the witness can be produced in person. The main reason for this is that the accused may desire to' cross-examine the witness’ further, and that the jury be given an opportunity to observe the witness and his demeanor on the witness stand.This question has -been before this court a number of times.

The case of Davis v. State, 20 Okla. Cr. 203, 201 Pac. 1001, in which the limitations of the rule were discussed and stated, supported by authorities therein cited, is in harmony with the statements made herein. It is not unusual the cross-examination of the witness in the preliminary trial is more or less perfunctory, and that by the time the case is on final trial the defendant has had more time for research and is better able to conduct a thorough cross-examination, and if it is proper for the witness to be produced, it is the right of the defendant to have him present. Diligent effort made in good faith to produce the witness at the trial should be shown. Golden v. State, 23 Okla. Cr. 243, 214 Pac. 946.

We think this court in former opinions has followed a rule sufficiently liberal in permitting the testimony of the witness taken at a former trial, or a preliminary hearing, to be used in the absence of the witness, and that this should not by judicial construction extend or enlarge upon the rule announced in its former decisions. Cases perhaps would arise where the prosecuting officer might prefer to have the testimony taken at a former trial read to the jury, rather than run the risk of having the witness appear in open court on the witness stand to be subjected to rigid cross-examination, where the jury could see the witness and judge of his demeanor on the witness stand. To lay down a rule that a mere showing that the witness is in another state, without requiring a showing that due diligence had been used to secure the attendance of the witness, might enable public prosecutors and others, if it appear to their interest, to cause witnesses to be absent from the jurisdiction of the court to escape further cross-examination. If it is possible to do so, the defendant in a criminal action has the right to be confronted face to face with the witness against him. We do not think the return of the deputy sheriff on the subpoena issued for the witness Jeff Davenport was sufficient predicate to authorize the admission of the transcript of the witness’ testimony, taken in a preliminary trial. The deputy making the return should have been called and interrogated as to his knowledge as to the whereabouts of the witness upon which he based the return. We do not mean to say, or intimate, that the county attorney, or those interested in this prosecution, did not desire the presence of the witness Jeff Davenport. What we do mean to hold is that it would be dangerous to relax the rule that reasonable effort and diligence to produce the witness should be shown. In our opinion no such showing was made here. The return of the subpoena shows that the sheriff could not have exercised very much diligence in trying to find the witness, as the subpoena was issued one day and the return made the following day, and the testimony of the main prosecuting witness seems to indicate that he had heard from the witness from a definite place in the state of Texas. This subpoena was returned 13 or 14 days before the case was assigned for trial, and there is no diligence shown whatever on the part of the officers to try to locate this witness. Houser v. State, 41 Okla. Cr. 128, 271 Pac. 857.

It is urged by the state that the predicate laid for the introduction of the transcript of the evidence of the witness Jeff Davenport is sufficient to authorize the court to admit the evidence taken at the preliminary trial, citing Edwards v. State, 9 Okla. Cr. 306, 131 Pac. 956; Jeffries v. State, 13 Okla. Cr. 146, 162 Pac. 1137.

These cases have been carefully read and studied, and we do not think that the predicate laid in this case for the introduction of the transcript of the evidence is shown as strongly as it was in the cases cited by the state.

There are other errors assigned by the defendant, but, the view we take of this record, we do not deem it necessary to consider them. We hold that a sufficient predicate was not laid for the admission of the transcript of the evidence of the witness Jeff Davenport, and, as there is no competent testimony sufficient to sustain the judgment and conviction against the defendant without the evidence of the absent witness Davenport, the objections of the defendant to the admission of the transcript of the evidence was well taken and should have been sustained.

The judgment is reversed and remanded for further proceedings in accordance with this opinion.

EDWARDS, P. J., and CHAPPELL, J., concur.


author: EDWARDS, P. J.

text:
    J. F. NANCE et al. v. STATE.
    No. A-6728.
    Opinion Filed June 8, 1929.
    (278 Pac. 357.)
    G. H. Montgomery and Ledbetter & Hudson, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of McCurtain county on a charge of the unlawful transporting of whisky, and were each sentenced to pay a fine of $100 and to serve 45 days in the county jail.

The record discloses that at the time charged certain officers saw defendants in a car from which one of the defendants took a package which he concealed, after which the officers searched the place where the parties were seen and found a tow sack containing two half-gallon jars of whisky.

The first assignment of error argued is that the instructions did not fairly state the law applicable to the case in failing to inform the jury that they might convict one of the defendants and acquit the other, if the facts should warrant.

Counsel assert that the evidence does not warrant the conviction of defendant, Jones. The defendants were traveling together at the time the whisky was transported, and, while only one of them removed the package from the car, the jury could reasonably conclude that they were acting together. No request for any additional instruction was made at the time of the trial. The instructions as a whole fairly cover the law applicable. If defendants were not satisfied with the instructions, they should have requested a further instruction. Failing to do this, the error, unless fundamental, is waived. Merriott v. State, 18 Okla. Cr. 247, 194 Pac. 263; Dickson v. State, 26 Okla. Cr. 403, 224 Pac. 724.

It is next argued that the verdict is insufficient in form. There are two verdicts, one as to each defendant, finding such defendant guilty, fixing the punishment at imprisonment in the county jail “for a term of-and a fine of-,” followed by the words “leaving penalty to the court.” The court’s attention should be called to the form of the verdict at the time it is returned, so that, if informal, it may be corrected. Pruitt v. State, 17 Okla. Cr. 434, 190 Pac. 894; Felice v. State, 18 Okla. Cr. 314, 194 Pac. 251; Kennedy v. State, 25 Okla. Cr. 306, 220 Pac. 61; Fowler v. State, 26 Okla. Cr. 170, 223 Pac. 206; Turner v. State, 27 Okla. Cr. 274, 226 Pac. 1064. No objection was made, nor was the attention of the trial court called to the form of the verdict at the time they were returned. It would have been better form if the verdict had stated that the jury were, unable to agree upon the punishment, but that is its clear import. Section 2743, Comp Stat. 1921; Love v. State, 12 Okla. Cr. 1, 150 Pac. 913; Stansell v. State, 30 Okla. Cr. 265, 235 Pac. 937.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    ARTHUR ERWIN v. STATE.
    No. A-6637.
    Opinion Filed June 8, 1929.
    (278 Pac. 397.)
    Owen F. Renegar, for plaintiff in error.
    Edwin Dabney, Atty Gen., for' the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Washita county on a charge of having possession of one gallon of wine, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The judgment was rendered on February 5, 1927, at which time defendant was allowed 45 days within which to make and serve case-made, 10 days to suggest amendments, and to be settled and signed on 5 days’ notice. Thereafter two further orders of extension of time within which to make, serve, and settle case-made were made by the court, but no order extending the time within which to file was ever made. Section 2808, Comp. Stat. 1921, provides that in misdemeanor cases an appeal must be taken within 60 days after judgment is rendered, and provides that for good cause shown the court may extend the time within which an appeal may be taken not to exceed! 60 days additional. The appeal must be taken within the 60 days fixed by the statute, unless the court or judge makes an order extending the time. It has been held many times! by this court that an order extending the time for making and serving case-made does not automatically extend the time within which to file the appeal. Holly v. State, 16 Okla. Cr. 164, 181 Pac. 518, and cases therein cited; Wilson v. State, 24 Okla. Cr. 268, 217 Pac. 1057; Aubrey v. State, 38 Okla. Cr. 271, 260 Pac. 783.

For the reason that the appeal was not lodged in this court within 60 days after the rendition of the judgment, and no order extending the time within which to take the appeal was made by the trial court, the appeal is dismissed.

DAVENPORT and CHAPPELL, JJ., concur.


author: CHAPPELL, J.

text:
    ARCH HARMON v. STATE.
    No. A-6548.
    Opinion Filed June 8, 1929.
    (278 Pac. 354.)
    M. D. Hartsell, for plaintiff in error.
    S. H. Lattimore, Co. Atty., Phillip K. Oldham, Asst. Co. Atty., and S. C. Oavender, Deputy Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted of having possession of whisky with intent to sell the same, and his punishment fixed at a fine of $150 and imprisonment in the county jail for a period of 30 days.

The evidence of the state discloses the following facts: That the officers had been to the place where the whisky and the still were found on Tuesday night prior to May 22, 1926, and had found two barrels of whisky mash, freshly put up and still warm; that the officers went back on Saturday night and the mash was gone; that the officers procured a search warrant and went back to defendant’s premises on Sunday morning; that there was a path leading from the road in front of defendant’s house out to where the still and whisky were found; that the whisky was found between defendant’s house and the still and some distance from the still, covered over with leaves, and following the tracks the still was found; that the officers took the still and the liquor to defendant’s house and after some controversy the defendant threw an iron shoe last and broke the gallon jug containing the whisky. One Joe Rains, testifying for the state, testified that an Saturday afternoon he saw the defendant and one Bill Crossland at the place where the officers found the still; that Lee Watson was with him; and that they got a drink of whisky that was being run from the still and went on their way. The whisky in controversy in this case was found near where the witness testified the defendant and Crossland were with the still. Bill Crossland testifying for the defendant on cross-examination admitted that he had made whisky, but denied that he was present with defendant at the time witness Rains said he saw them there at the still. The evidence of the defendant, except as to breaking the jug of whisky, flatly contradicts the evidence of the state.

The first error complained of by the defendant is the overruling by the trial court of his plea in jeopardy. The deputy sheriff with the search warrant found the whisky, which the defendant is charged with having possession of, between defendant’s house and the still, and, going further on out into the field, found the still. Two charges were filed against the defendant, one charging him with the possession of the still. He was tried and acquitted on that charge. The other charge filed against the defendant was the possession of the gallon of whisky, and the question now presented to the court is, Was the acquittal of the defendant on the charge of having possession of the still a bar to his prosecution in the case at bar? Cyc. states the rule to be: “That the former conviction and acquittal must have -been upon the prosecution of the identical act or crime but the two charges need not be precisely the same in point of degree; it is enough if an acquittal of the one shows that the defendant could not have been guilty of the other.” 12 Cyc. 280.

In the case of Morris v. Territory, 1 Okla. Cr. 618, 99 Pac. 760, this court said:

“If a plea of former acquittal or former jeopardy shows upon its face a different offense from that for which the defendant is then on trial, or if it is otherwise fatally defective, it should not be submitted to the jury, but should be stricken from the record of the court.”

In the case of Harris v. State, 17 Okla. Cr. 69, 175 Pac. 627, this court said:

“The constitutional provision against a second jeo-. pardy is merely declaratory of the ancient principle of the common law. In application it is limited only to a second prosecution for the identical act and crime, both in law and fact, for which the first prosecution was instituted. * * * The burden is upon the defendant to show that his plea of former acquittal and former jeopardy is well founded, both in law and fact.”

The fact that the officer seized the liquor and the still under the same search warrant and during the same raid is not the controlling factor in the question of former jeopardy. The question is, Was the possession of the still and the liquor seized the same criminal act, transaction, or omission? The evidence required to convict for possession of liquor with intent to sell the same in the case at bar was different from that required to convict for possession of the still. In the case of the still, it was only necessary to show that the defendant was in possession of a still capable of being used for the manufacture of liquor. In the case at bar, it was necessary for the state to prove the possession of the liquor; the quantity being prima facie evidence of the intent of the defendant to barter, give away, or sell the same. The defendant being charged in the two cases under different statutes and with the commission of different offenses, and the proof in one case not being sufficient to secure a conviction in the other case, and the crimes not being one necessarily included in the other, the conviction or acquittal in the charge of possession of the still would not be a bar for the prosecution of the defendant for possession in the. case at bar. The plea of former jeopardy was therefore properly overruled.

The defendant next complains of the admission of incompetent, irrelevant, hearsay, and prejudicial testimony. The defendant took the witness stand in his own behalf and in answer to questions propounded by his counsel denied that he had ever been charged with any crime before or had ever been arrested for making liquor or selling liquor except the two cases of the still and the case at bar. On cross-examination he admitted that he had previously been arrested charged with the sale of intoxicating liquor. The county attorney asked the defendant if he had not been charged with selling liquor to Charlie Morris. The defendant denied this, it appearing that the name of the man he was charged with selling liquor to was Moore instead of Morris.

The real question in the case, so far as affecting the credibility of the witness was concerned: Was he charged with selling the whisky? The defendant having offered himself as a witness and testified on direct examination as to his character as a law-abiding citizen, and not having ever sold any intoxicating liquor, the state had a right on cross-examination to go into this question. The evidence would not have been admissible except for the fact that the defendant himself, through his counsel,, had testified positively to the actions upon which he was cross-examined. The defendant also testified as to the disposition made of the Charlie Morris Case and the assistant county attorney was then permitted by the court to testify that, after the jury was in the box ready to try the case, he discovered the mistake in the name and dismissed the case. All of this evidence was brought out in the first instance in direct examination by defendant’s own counsel, and the evidence of the state was offered merely to impeach the testimony of the witness and was competent for that purpose.

Finally, the defendant argues that the evidence is insufficient to support the verdict. This court has often held that, where there is a conflict in the evidence and there is any competent evidence in the record showing the guilt of the defendant, the cause will not be reversed for insufficient evidence. The defendant complains of other errors that are without merit.

For the reasons stated, the cause is affirmed.

EDWARDS, P. J., concurs.

DAVENPORT, J., not participating.


text:
    POLLY BURROWS v. STATE.
    No. A-6556.
    Opinion Filed May 18, 1929.
    Rehearing Denied June 8, 1929.
    (278 Pac. 685.)
    W. R. Withington, for plaintiff in error.
    J. K. Wright, Co. Atty., and L. W. Harrod, Asst. Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county of the offense of maintaining a public nuisance by keeping a place at 15 West Third Street, Oklahoma City, where intoxicating liquors were kept, sold, bartered, and given away, and where persons were permitted to congregate for the purpose of buying and receiving intoxicating liquors, and her punishment fixed at a fine of $50 and confinement in the county jail for a period of 30 days.

The first error complained of by the defendant is that the court erred in admitting incompetent testimony as to the reputation of the place kept by the defendant at the time of the filing of the information. W. P. Lindsey, a witness for the state, was asked, on direct examination, the following questions:

“Q. Do you know the general reputation of the Polly Burrows Place, to wit, 15 West Third street, Oklahoma City, Oklahoma, as to being a place where whisky was kept, .bartered, sold, and given away? And did you know that reputation on the 6th day of August, this year? A. Yes, sir.
“Q. Was that reputation good or bad? A. Bad.
“Q. Do you know the general reputation of that place as to being a place where people were permitted to go and buy whisky? A. Yes, sir.
“Q. Is that reputation good or bad? A. Bad.”

The next witness, H. O. Brown, who testified for the state, answered the same questions in the same way.

In the case of Ward v. State, 15 Okla. Cr. at page 155, 175 Pac. 558, in the body of the opinion, this court said:

“The general rule is well established that, where a witness testifies that he knows the general reputation of a witness or a place for having a particular trait of character or for a particular kind of business, he may then be permitted to state what that reputation is, provided it relates to the time of the offense and locality of the place, or residence of the witness whose reputation is attacked. Dave v. State, 22 Ala. 23; Cole v. State, 59 Ark. 50, 26 S. W. 377; Craig v. State, 5 Ohio St. 605; Young v. Com., 69 Ky. [6 Bush.] 312; Peck v. State, 86 Tenn. 259, 6 S. W. 389; Gilliam v. State, 1 Head (Tenn.) 38, 73 Am. Dec. 161; Merriman v. State, 3 Lea (Tenn.) 394; 1 Greenleaf on Evi. 461.”

Tbe defendant next complains that the court erred in admitting in evidence a certain marked $5 bill used by the officers in making: a purchase of liquor in this place. The officers sent a young man into the place with a $5 bill which was marked. The officers searched the young man before he went into the house, and testified: That he had nothing on his person except the $5 bill. That they stood where they could see him go into the house. That when he came out they searched him again and found a pint of whisky and $2.50 in change on him. Having a search warrant, the officers immediately went into the place, found the defendant, and searched the place, finding two more pint bottles of whisky. The officers, not being-able to find the $5 bill, demanded it of the defendant. The defendant said she had given the bill to a messenger boy. When the officers accompanied the defendant to the telegraph office, the defendant admitted that she had not given the bill to the messenger boy, and said that if the officers would return with her to the house she would give them the bill. Upon their return to the house and after some further argument and a statement by the officer that he would stay all night if he had to to get that bill, the defendant finally produced the bill. This $5 bill, marked by the officers, was introduced in evidence. The defendant now complains that it was improperly admitted because it was obtained by compulsion.

There being ample evidence in the record to support the verdict and their being a conflict as to just what was said and done to obtain possession of the $5 bill, and the jury having settled the conflict in favor of the state, this court will not disturb the verdict. The cause is therefore affirmed.

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


author: DAVENPOET, J.

text:
    S. S. HAYES v. STATE.
    No. A-6558.
    Opinion Filed May 18, 1929.
    Rehearing Denied June 8, 1929.
    (277 Pac. 955.)
    See, also, 43 Okla. 85, 277 Pac. 954.
    H. L. Fogg, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPOET, J.

The plaintiff in error, hereinafter called the defendant, was convicted of having the possession of a still capable of being used in the manufacture of intoxicating liquor, the alleged offense being on the 6th day of September, 1926, and was sentenced to imprisonment in the county jail for 60 days and to pay a fine of $850. Motion for new trial was filed and overruled, exceptions saved, and defendant has appealed to this court.

The testimony on behalf of the state shows that a search warrant was issued to search the premises of the defendant, described as follows :

“On the land, building, ont-buildings and appurtenances and residence situated on the northwest quarter of Section % Township 14, Eange 8, and occupied by one S. S. Hayes in Canadian County, Oklahoma.”

The affidavit contained the necessary allegations to search, the residence of the defendant by showing that it was a place where intoxicating liquor was kept, stored, and manufactured.

The testimony further shows that the search of the defendant’s premises was made, and in an outbuilding a short distance from the defendant’s residence, in the edge of the timber near where the defendant had a hogpen, the officers found a copper distillery complete, 31 barrels of mash, 6 five-gallon jugs, 3 ten-gallon kegs, 2 pressure tanks, 2 burners, 1 twenty-gallon jar, 1- pump, 1 day book with; writing in it, and one-half pint of whisky. '

The testimony further shows that, while the officers! were concealed in the building where they found the still and other property, the defendant came to the house andi came in; that they kept the defendant with them for some time, expecting the other parties who were interested with the defendant to come; that, while they had the defendant with them, the defendant stated to the officers that he had no interest in the property, except he expected them to pay him rent, as the parties had paid him rent once before this time.

'The proof shows conclusively that the defendant knew the still was there and that it was going to be operated, and that defendant was aiding and abetting the other parties whoever they were in their attempt to violate the prohibitory laws.

A number of character witnesses were called in this case who testify to the general reputation of the defendant, who is a colored man, and the record discloses that the defendant had been persuaded by others to let them put the still on his land and operate the same upon his premises upon tlie promise of paying him a certain price. One of the officers stated that the defendant told him that once before he had permitted these parties to make whisky on his place, and that they had paid him for the permission.

The defendant has assigned a number of errors alleged to have been committed in the trial of the case. After a careful consideration of the record and the errors assigned, we do not deem them of sufficient merit to justify a reversal of this case. The court properly declared the law. The defendant had a fair and impartial trial, and the record does not disclose any fundamental errors.

In view of the circumstances disclosed by the record in this case, and the good character this colored man has heretofore borne, as shown by the record, we believe that the punishment imposed upon him is excessive, and that the ends of justice would be met by a modification of the sentence of 60 days in jail and a fine of $350, tó a sentence of 60 days in jail and a $200-fine, and, as so modified, the judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    HENRY K. REUTLINGER v. STATE.
    No. A-6512.
    Opinion Filed May 25, 1929.
    Rehearing Denied June 8, 1929.
    (277 Pac. 950.)

      Mauntel & Spellman, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Woods county for a second and subsequent violation of the prohibitory liquor law, and his punishment fixed at a fine of $750 and imprisonment in the state penitentiary for a term of two years. The record discloses that on the 9th day of April, 1921, defendant pleaded guilty to a charge of possessing 35 gallons of intoxicating liquor with intent to sell the same, and paid a fine of $500 and served 60 days in the county jail of Woods county.

The record further discloses that on the 25th day of August, 1926, the defendant was found in possession of 80 gallons of wine and one quart of whisky. A trial to a jury upon this charge resulted in a verdict of guilty, the jury fixing the defendant’s punishment at a fine of $750 and imprisonment in the state penitentiary for two years.

The defendant assigns numerous grounds of error, but groups them all under his third and fourth grounds: “That the affidavit and search warrant were illegal and insufficient and that all the evidence on behalf of the state is based solely upon a substituted, search warrant supported by a substitute affidavit for a search warrant.”

The defendant tried his case in the court below upon the theory that the burden rested upon the state to establish the sufficiency of the affidavit for search warrant and the legality of the search and seizure. This court has repeatedly beld that the burden rests on the defendant, and not on the state, to establish the insufficiency of the affidavit and the illegality of the warrant and the search thereunder.. The presumption of law is that the affidavit and warrant were sufficient and that the search was legal, and it was incumbent upon the defendant to establish the illegality of the proceeding before the court would be authorized to suppress the evidence.

In the case of Ray v. State, 43 Okla. Cr. 1, 276 Pac. 785, this court said:

“The burden of proving the invalidity of the search rested on the defendant and not on the State.”

It appears from the case-made that the original affidavit arid the original search warrant with the return thereon issued in the case were lost or destroyed. On the preliminary hearing of the defendant, the county judge, who was sitting as a magistrate, ordered the county attorney to supply a substitute affidavit and substitute search- warrant, and upon the introduction by the state, of these substitutes, overruled the motion to suppress the evidence and bound the defendant over for trial in the district court. Before the trial of the case in the district court the trial judge required the state to establish the identity of the substituted affidavit and search-warrant, and, upon the same being properly identified and offered in evidence, overruled the defendant’s motion to suppress the evidence taken under the search warrant. It is admitted by the defendant that an affidavit for search warrant was made and filed and a warrant duly issued and served. The presumption is that the substituted copies of the affidavit and search warrant were true and correct and the burden rested on the defendant to show otherwise. The defendant having failed to- make a sufficient showing to the contrary, this court will presume that the substituted copies were true and correct copies of the originals.

In the case of Lowrance v. Richardson, 23 Okla. 343, 100 Pac. 529, the Supreme Court of this state held:

“The power of courts of record to supply on proper proof their own lost or destroyed records exists independent of any statute by virtue of their inherent power, and such statutes as are enacted upon the subject are merely cumulative and do not impair the power otherwise residing in the courts.”

If the defendant desired to have proper substitute records introduced on his showing that the originals were lost, he could have invoked the inherent power of the court; but, since he did not do so, he cannot now complain that the state produced less than the defendant was entitled to have introduced in the record.

The defendant offered no evidence in the case and, relies for a reversal upon the technical objection that improper records were introduced by the state and for that reason all the evidence offered by the state taken under the search and seizure proceedings were incompetent.

In the case of Ables v. State, 35 Okla. Cr. 26, 247 Pac. 423, this court said:

“Error must affirmatively appear from the record; it is never presumed. Every presumption favors the regularity of the proceedings had upon the trial. The plaintiff in error must affirmatively - show prejudicial error; otherwise the judgment of the trial court will be affirmed.”

Section 2943, C. O. S. 1921, provides:

“Neither a departure from the form or mode prescribed in this chapter in respect to any pleadings or proceedings, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant or tended to his prejudice, in respect to a substantial right.”

In the case of Ray v. State, 35 Okla. Cr. 322, 250 Pac. 438, this court said:

“This court will not reverse a judgment on account of the exclusion of evidence or for the improper admission of evidence, or for errors occurring at the trial, unless upon an inspection of the entire record it is of the opinion that there has been a miscarriage of justice, or that the errors are a substantial violation of a constitutional or statutory right.”

The evidence in this caséis amply sufficient to support the verdict of the jury, and the trial court having committed no error that deprived the defendant of a constitutional or statutory right, the cause is affirmed.

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


text:
    JACK ROLLINS v. STATE.
    No. A-6762.
    Opinion Filed June 8, 1929.
    (277 Pac. 948.)

      C. A. Summers and T. E. Futrell, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was jointly informed against with Charles Reel, on a charge of possession of one quart of corn whisky with the intent then and there on the part of the said defendant and Charles Reel of selling, conveying, bartering, giving away, and otherwise furnishing the same, contrary to the form of the statutes in such cases made and provided. The jury returned a verdict of guilty against defendant Rollins, leaving the punishment to be fixed by the court, and a verdict of not guilty as to the defendant Reel. The court sentenced the defendant to imprisonment in the county jail for a period of 30 days and to pay a fine of $50 and cost. Motion for new trial was filed and overruled, and defendant has appealed to this court.

The testimony on behalf of the state, in substance, is that W. D. Shamblin stated he was deputy sheriff of Muskogee county; that Charley Barnes and J. O. Hale went with him to the home of Jack Rollins on the 27th day of November, 1926; “when we got to the house I went inside and searched the house; Mr. Hale went around the house; I went in the front door and thére was quite a little hustling around; I hurried into the room where a half-gallon jar of whisky mash had been emptied; I saw where it had been poured on the floor; I went outside of the house after this and saw where it was claimed the defendant had broken a vinegar jug; I tasted the substance that had been in the jug, and it tasted like a pretty sorry grade of moonshine whisky; defendant denied there was any whisky in the vinegar jug.” On cross-examination witness stated that when he first saw the defendant he was close to where the officers claim the whisky jug was broken; “when I first saw the jar in the house it was setting on the table; there was about a tablespoonful of liquid in it; just enough to tell what it was; it was whisky mash; I tasted it; I can tell whisky mash; I never tried to tell the difference between whisky mash and beer mash; I don’t know what home-brew is made of; they use yeast cake and sugar and I don’t know what else; from the looks of the fruit jar it had been freshly emptied out; the liquid had been poured on the floor; I tasted the liquid where Jack had broken the bottle; there was just a small quantity of it in the piece of the bottle.” On redirect examination the witness stated “the stuff on the floor smelled like mash; there was a wet spot on the floor; this jar was wet on the top; the woman ran out of there, and I thought she had just set it down, and I picked it up; I don’t know who the woman was; I did not get down on the floor and put my nose to the wet spot; I could not distinguish where the odor was coming from; there was more liquid on the floor than there was in the jar.”

Charley Barnes was called on behalf of the state, and in substance stated he had been deputy sheriff for 3 1-2 years; that the defendant Jack Rollins lived with his mother; on the 27th day of November, 1926, they went to their place to raid for whisky; they had a search warrant; Mr. Shamblin searched the house', and Mr. Hale ran around the house; Jack came out of the back door; he had a quart of whisky; he broke the jug over a rock; it was in a quart vinegar jug; the contents of the jug was corn whisky; they did not find anything in the house. On cross-examination the witness stated the defendant Jack Rollins broke the vinegar jug on a rock about a foot square; the bottom part of the bottle dropped beside the rock; it had about a swalloiv of whisky in it; “I just touched my tongue to it; I guess Charley Reel lived there-; he stayed there all the time; I don’t know whether he was working for Mr. Long at that time or not; I picked up the bottom part of the jug that Jack broke and touched my tongue to it; it tasted like corn whisky.”

J. O. Hale was called, and in substance testified to the same facts as did the witnesses Barnes and Shamblin: “I saw defendant have in his hands the vinegar jug; the defendant threw the jug down and broke it; there was a little liquid left in the bottle, and I tasted it and called-it corn whisky; after the search was made I went into the house and waited for defendant Rollins to get ready; Mr. Shamblin searched the house.” On cross-examination the witness stated defendant Rollins broke the bottle on a rock near the corner of the barn; “there was about a spoonful left in the bottle; I just tasted it; it was white corn I reckon; it was very poor stuff; I never did drink no whisky myself, and I don’t know anything about it.”

The defendant Jack Rollins demurred to the evidence on the ground that the same failed to prove him guilty of the offense charged in the information, and wholly fails in any manner to prove any intent on his part to violate the laws of the state of Oklahoma, with the whisky which it attempts to connect him with. The demurrer was overruled, and defendant excepted.

The defendant Jack Rollins in his own behalf testified that Charley Reel was his half-brother; that on the 27th day of November, 1926, defendant Reel was working for Mr. Long, a farmer, a short distance from defendant’s home; the defendant Reel came to the Rollins home about 15 minutes before the officers came; that he heard the testimony of Mr. Shamblin about the beer mash or whisky mash being in a half-gallon fruit jar in the house; that the fruit jar belonged to defendant; he had made some home-brew; that he put a little sugar and meal and some yeast cake in a jar and was trying to make home-brew; he made it about a half mile from the house Monday before the officers came to the house on Saturday; he made it to drink, did not intend to sell it or give it away; “when the officers came I picked up this jug to get it out of the way; I had drained the contents of the jar out into a vinegar jug and left the dregs in the fruit jar; my half-brother had nothing to do with it whatever; I had never made any of the stuff before; it was not whisky.” On cross-examination he stated he made the stuff about a half mile from the house; that he brought it to the house and put it in the bottle; his mother did not know anything about his making it; that the jar was in the room, but there was nothing but dregs in it, as he had drained it out into the vinegar jug; it was not corn whisky that was in the jug; it had a red color.

At the close of the testimony, the defendant requested the court to instruct the jury as follows:

“You are instructed that under the law and evidence in this case it is your duty to find the defendant, Jack Rollins, not guilty.”

Which instruction was refused by the court.

It is urged by the defendant that there is not sufficient testimony to sustain the judgment. The defendant is charged with having possession of one quart of whisky with the intent to sell, convey, barter, give away, or otherwise furnish the same, contrary to the form of the statutes.

The witnesses who testified for the state undertake to say that the liquid in the vinegar jug they claim defendant broke was corn whisky, yet neither of the defendants saw it before it was broken by the defendant, and defendant says it was not corn whisky. All the testimony shows that the container was a quart vinegar jug, but no one undertakes to say it was full or what quantity was in the jug. There is no evidence whatever in the record where defendant had attempted to sell or had any intention of selling any of the contents that was found in the jug. The quantity alleged to have been in the possession of the defendant, if the record clearly showed it was corn whisky, was not sufficient to make the bottle of whisky prima facie evidence of intent to sell. It is urged by the defendant that his demurrer to the state’s evidence should have been sustained, for the reasons set forth in his demurrer, as the evidence on behalf of the state fails to show any intent to violate the laws of the state by selling, conveying, or furnishing any portion of the contents of the quart jug.

A careful examination of the record fails to show any testimony on behalf of the state tending to show the unlawful intent to sell, barter, give away, or otherwise furnish to others any of the contents of the quart jug they claim to have been broken by the defendant. The testimony fails to sustain the allegations in the information, and the demurrer of the defendant should have been sustained, and the jury directed to return a verdict of acquittal. Arnold v. State, 15 Okla. Cr. 229, 175 Pac. 947.

The judgment appealed from is reversed.

EDWARDS, P. J., and CHAPPELL, J., concur.


author: CHAPPEDL, J.

text:
    RAY CARR et al. v. STATE.
    No. A-6779.
    Opinion Filed June 8, 1929.
    Rehearing Denied June 15, 1929.
    (277 Pac. 1038.)
    Brown Moore and Guy L. Horton, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPEDL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the district court of Payne county on the charge of grand larceny and their punishment fixed by the jury at imprisonment in the state penitentiary for a period of two years.

The defendant in his brief argues but one question, prejudicial remarks, statements, and arguments of the county attorney. The record discloses that in the opening argument the county attorney made the following statement : “Any man who would believe their story is a friend to the outlaw. By Mr. Moore: The defendants except to the statement.” While the defendants objected to the foregoing statement of the county attorney, they made no motion to the trial judge that the jury be instructed to not consider said remarks. This court has repeatedly held that in order to have alleged improper remarks reviewed by this court where the same are not fundamentally erroneous, it is necessary for counsel not only to object to such remarks, but also to move that they be excluded from the consideration of the jury.

In the case of Thacker v. State, 3 Okla. Cr. 485, 106 Pac. 986, this court in the syllabus said:

“As a matter of good practice, when improper argument is indulged in by the prosecuting attorney, and an objection thereto is interposed, in addition to the objection the court should be requested to charge the jury to disregard such improper argument or statement.”
“Remarks of the prosecuting attorney in his argument before the jury,, objected to as improper, will be considered and construed in reference to the evidence, and in order to constitute reversible error the impropriety indulged in must have been such as may have influenced the verdict.”
“A prosecuting attorney has the right in his argument before the jury to discuss all the facts bearing upon the issue within the scope of the evidence.”

The evidence was that both of the defendants had. previously been convicted of a felony and had served a term in the penitentiary. The evidence also showed that the state’s witness, Fred Broadhead, had twice been convicted of felony and had served terms in the Oklahoma penitentiary. The use of such term could not have seriously prejudiced either one. This court has repeatedly held that the argument of the county attorney must be grossly improper and unwarranted and upon some point which injuriously affected the defendant’s rights. Tapedo v. State, 34 Okla. Cr. 165, 245 Pac. 897.

The defendants were assessed the minimum punishment by the jury, so that it cannot be said that this alleged prejudicial remark in any way inflamed the jury to the extent of an excessive punishment. The remarks of the prosecuting attorney in his argument will be considered and construed in reference to the evidence; and. in order to constitute reversible error the impropriety indulged in must have been such that it may have influenced the verdict. Allen v. State, 13 Okla. Cr. 395, 164 Pac. 1002, L. R. A. 1917F, 210.

The defendants complain of other errors, but an examination of the record discloses that they are without any merit. The evidence being sufficient to support the verdict of the jury and no sufficient errors of law appearing upon the record to justify a reversal, the cause is affirmed.

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


text:
    JULIUS MARTIN v. STATE.
    No. A-6557.
    Opinion Filed May 18, 1929.
    Rehearing Denied June 15, 1929.
    (277 Pac. 950.)

      W, K. Withington, for plaintiff in error.
    J. K. Wright, Co. Atty., and L. W. Harrod, Asst. Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county for a violation of the prohibitory liquor law, and his punishment fixed at imprisonment in the county jail for three, months and to pay a fine of $100.

The evidence offered by the state was to the effect that the defendant drove his car into the city of Edmond on the 12th day of June, 1926, and parked it in an alley in the center of the block. M. M. Morrison, an officer in the city of Edmond, saw the defendant drive his car into the alley, park, get out, and go into the back of a restaurant. Morrison hid behind a car near the defendant’s car. Defendant took a sack with a jug in it out of the back of his car, and the officer commanded the defendant to stop, and the defendant broke the jug, on the back end of a building near where he stood. Morrison testified that this liquid smelled and looked like whisky, and defendant on his direct examination as a witness admitted that the jug did contain whisky. After breaking this jug, defendant ran back to his car and got another sack out of the car, which sack contained another jug with whisky in it. The officer attempted to take the sack with the whisky in it away from the defendant, and in so doing the officer struck him over the head four times with his gun. The officer then took the defendant to the police station, where his car was searched, after his arrest.

The defendant contends that the search and seizure was unlawful and the evidence obtained was improperly admitted. Under the stated facts revealed by the evidence in this case, the officer had an unquestioned right to arrest the defendant, since the crime of. transporting was being committed in Ms presence, and the whisky seized was properly admitted in evidence.

The defendant next contends that the rights of the defendant were prejudiced by improper questions asked the defendant by the county attorney. The county attorney did ask some improper questions, the defendant objected, and the court sustained the objections to the questions, and admonished the jury to not consider such questions. County attorneys should be more careful in the prosecution of criminal cases. It is as much the duty of the county attorney to see that the defendant has a fair trial as it is to.secure the conviction of the guilty. The evidence in this case establishes the guilt of the defendant beyond a reasonable doubt. While some improper questions were asked by the county attorney, we are of the opinion that the defendant was not prejudiced by the same. Since an honest jury could have returned no other verdict in this case, we cannot see how the defendant could have been prejudiced by these improper questions.

The cause is therefore affirmed.

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


text:
    FANNIE WHITE v. STATE.
    No. A-6515.
    Opinion Filed May 25, 1929.
    Rehearing Denied June 15, 1929.
    (277 Pac. 946.)

      John L. Ward and L. O. Todd, for plaintiff in error.
    Byron Kirkpatrick, Co. Atty., M. P. Howser, Asst. Co. Atty., and W. L. Coffey, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted of having possession of intoxicating liquor, and her punishment fixed at a fine of $200 and costs, taxed at $47.60, and confinement in the county jail for a period of three months.

Upon application for search warrant by the affidavit of J. H. Smitherman, a search warrant was duly issued, and the officers conducting the search found a gallon of whisky and 59 gallons of Choctaw beer in the frame house in the rear of 1421 North Lansing street in the city of Tulsa, which premises were the premises described in the affidavit and search warrant. The defendant was living in a house adjoining the house searched and gave the officers the key to the house searched, which house was owned by the defendant. The officers arrested the defendant, she was convicted of having possession of the intoxicating liquor, and now prosecutes her appeal to this court.

.The first assignment of error questions tbe sufficiency of tbe affidavit for search warrant. Tbe defendant contends that tbe facts as stated in tbe affidavit could not have been known by tbe affiant and contests tbe accuracy of said affidavit.

This court has recently passed upon this precise question in the case of Frank Ray v. State, 43 Okla. Cr. 1, 276 Pac. 785, in which case this court laid down the rule that:

“Where tbe affidavit and search warrant are sufficient on their face, tbe evidence obtained by tbe search is admissible, and tbe court will not permit tbe accused, after tbe warrant bas been executed, to show that tbe statements in tbe affidavit are not true, or to raise any question as to tbe accuracy or source of tbe affiant’s information or tbe means by wbicb it was obtained.”

The defendant contends next that the description of the premises to be searched was insufficient. In the case of Mitchell v. State, 43 Okla. Cr. 163, 277 Pac. 260, this court held:

“Tbe description of tbe premises to be searched is sufficient, if it enable tbe officers executing tbe search warrant to locate tbe premises to be searched without tbe aid of any other information save that contained in tbe search warrant.”

It is a sufficient answer to this objection to say that tbe officers executing tbe warrant located the premises to be searched alone from tbe information contained in tbe search warrant, and that is all that is required. Tbe affidavit for tbe search warrant being sufficient, tbe evidence obtained by tbe search was properly admitted.

The defendant complains that tbe search warrant was addressed to R. D. Sanford, sheriff, and was not served by said Sanford or by any person called bis assistants. The search warrant may be served by the sheriff or any of his deputies. The case-made does not contain the return of the search warrant. The presumption of law being that the officer to whom the writ was directed performed his official duty, this court cannot consider the objection.

The evidence being sufficient to support the verdict, and the errors of law being without merit, the cause is affirmed.

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