author: PER DURHAM.

text:
    JOE FIELDS v. STATE.
    No. A-3341
    Opinion Filed April 10, 1920.
    Rehearing Denied Jan. 15, 1921.
    (194 Pac. 249.)
    Appeal from District Court, Okmulgee County; Ernest B. Hughes, Judge.

      Joe Fields was convicted of the crime of manslaughter in the first degree, and sentenced to serve' a .term of four years in the state penitentiary. and he appeals.
    Affirmed
   PER DURHAM.

Joe Fields was convicted of the crime of manslaughter. in the first degree, and his punishment fixed as abovei stated.

This appeal has been pending in this court since the 30th day of April, 1913. INo brief ha.s been filed in behalf of plaintiff in error, and no appearance was made to orally argue the cause at the time same was submitted.

Rule 9 of this court (12 Okla. Cr. viii, 165 Pac. x) provides:

“When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court, and the exceptions taken thereto, and the judgment and sentence, and, if no prejudicial error appears, will affirm the judgment.”

After an examination of the pleadings, the instructions of the court, and the judgment and sentence, the court finds' that no prejudicial error occurred sufficient to authorize a reversal of' this judgment, and the same is therefore affirmed.


source: Caselaw Access Project

author: PER- CURIAM.

license: Public Domain

text:
    BOB POWELL v. STATE.
    No. A-3519
    Opinion Filed May 29, 1920.
    Rehearing Denied Jan. 15, 1921.
    (194 Pac. 262.)
    Appeal from District Court, Tulsa County; N. E. McNeill, Judge.
    Bob Powell was convicted' in the district court of Tulsa county of a violation of the prohibitory liquor laws, second offense, and he appeals.
    Affirmed.
    Jno. J. Sykes, for plaintiff ini error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   PER- CURIAM.

Bob Powell was convicted on the 22d day of December,-1917, in the district court of Tulsa county, of a second violation of-the .prohibitory _liquor laws of the state of Oklahoma, and sentenced to imprisonment in the state penitentiary for a term of two years and to pay a fine of $500. From this judgment he has appealed to this court.

The petition in error and case-made were filed in this court on the 20th day of June, 1918. No brief has been filed in behalf of plaintiff in error, neither was any' appearance made to orally argue the cause at the time .of its submission on the 5th day of May,, 1920.'

Rule 9 of this court (12 Okla. Cr. viii, 165 Pac. x) provides:

‘'When no counsel appears, and ho briefs are filed, the court will examine the pleadings, the instructions of ¡the court and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment.”

After an examination of the pleadings, the instructions of the court, and the judgment and sentence, the court finds that no prejudicial error occurred sufficient to authorize a reversal -of this judgment, and the same is therefore affirmed.


author: PER CURIAM.

text:
    BILL GREEN v. STATE.
    No. A-3675
    Opinion Filed Jan. 15, 1921.
    (193 Pac. 1077.)
    Appeal from County Court, Stephens County; G. T. Burrows, County Judge.
    On the 17tii day; of November, 1919, Bill Greenl was convicted of having in his possession intoxicating liquor, with the intent of violating the prohibitory liquor laws of the state by selling, or giving away or otherwise disposing óf same to other persons, and he appeals.
    Judgment reversed.
    J. B. Wilkinson, for plaintiff in error.
    S. P. Freeling, Atty. Gen., W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

In this case the Attorney General has confessed error, setting out that the record fails to disclose that the plaintiff in error was in'possession of the certain intoxicating liquor for unlawful purposes, as charged in the information, and a reading of the record bears out the Attorney General’s contention.

The case is therefore reversed and remanded to the trial court.


text:
    In re CHARLIE RICHARDS.
    No. A-3901
    Opinion Filed Jan. 22, 1921.
    (194 Pac. 1119.)
    Application by Charlie Richards to be admitted to bail.
    Writ denied, and bail refused.
    Warren & Warren, for petitioner.
   PER CURIAM.

This is an application by petition of Charlie Richards to be admitted to bail, after having been held without bail by L. W. Oakes, justice of the peace, in Choctaw county, Okla., to await the action of the district court ox said county upon a charge of murder. After this preliminary hearing an application for bail, supported by the same evidence here adduced, was presented to, heard, and denied by the district court of Choctaw county. At the preliminary examination the petitioner did not testify, but in support of his application for bail filed and presented an ex parte affidavit, giving his version of the homicide. Petitioner says that said restraint to await the action of the district court is illegal and unauthorized, because the proof is not evident nor the presumption great that this petitioner is guilty of the crime of murder, and that theretore he is entitled to bail in a reasonable sum. Without setting out at length or analyzing the testimony taken at the preliminary examination and' the affidavits filed in support of this petition, we deem it sufficient to say that upon a careful consideration of all the evidence presented in support of the application for bail we are^of-the opinion that the petitioner is not entitled to bail as a matter of legal right. It is therefore considered, ordered, and adjudged that the writ be denied, and bail refused.


text:
    Ex parte JAKE HENSON.
    No. A-3233
    Opinion Filed Jan. 26, 1921.
    (194 Pac. 1118.)
    Application by Jake Henson for a writ of habeas corpus to be admitted to bail.
    Petition dismissed.

      Geo. B. Rittenhouse, for petitioner.
    The Attorney General for the State.
   PER CURIAM.

On January 4, 1918, petitioner filed his application for a writ of 'babeas corpus to be admitted to bail, alleging that he wag at that time unlawfully restrained of his liberty vin the county jail of Lincoln county, Okla., by J. H. Lockwood, sheriff of said county, on a charge then pending in said county, wherein petitioner was accused of the murder of one Ivan Stewart. On January 5, 1918, a rule to show cause why the writ should not issue as prayed for was issued, returnable on the 12th day of January. 1918. On said latter date, hearing of the application was continued by agreement of the parties until .the 3d day of June, 1918. Thereafter petitioner filed a motion to dismiss the petition, which is as follows: “Cornea now Jake Henson, by his attorney, George B. Rittenhouse, and shows to the court that there was filed in the above entitled cause a petition for writ of habeas corpus, and an order was issued on said writ; that subsequent to the filing of said petition and, the issuance of said order the said Jake Henson pleadcdl guilty in the district court of Oklahoma county and was sentenced to a term in the penitentiary, and is now serving such term. Wherefore your petitioner moves to dismiss the petition in the above-entitled cause, and to recall any and all orders made in said cause.” Motion sustained, and petition dismissed.


text:
    Ex parte HENRY SCOTT.
    No. A-3912
    Opinion Filed Feb. 5, 1921.
    (194 Pac. 897.)
    Petition by Henry Scott ior writ of habeas corpus to be let to bail.
    Cause dismissed.
    Dickson & Carter, for plaintiff in error.
    W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

The petitioner, Henry Scott, filed in this court on January 26, 1921, his petition for writ of habeas corpus, for the purpose of being admitted to bail, being in custody of the sheriff of Choctaw county, under an order of commitment issued on a preliminary examination, held upon a complaint charging him with the murder of one'Ed. Nunnally. in Choctaw county on -the 15th'dav of October, 1920.

His counsel of -record has this day filed a motion to dismiss the cause and asking leave to withdraw transcript of the testimony. The cause is therefore dismissed with permission to withdraw transcript of testimony taken upon the preliminary examination.


text:
    LOLA GUNTER v. STATE.
    No. A-3569
    Opnion Filed Feb. 5, 1921.
    (195 Pac. 148.)
    Appeal from District Court, Oklahoma County; John W Hayson Judge.
    Lola Gunter- was convicted of forgery in the second degree, and she appeals.
    Appeal dismissed, and cause remanded, with directions.

      J. Q. A. Harrod, for plaintiff in error.
    The Attorney (General, for the State.
   PER CURIAM.

This is an attempted appeal from the district court of Oklahoma county, wherein the defendant, Lela Gunter, was on the 14th day of December, 1918, adjudged guilty of the crime, of forgery in the second degree, and sentenced to serve a term of imprisonment in the state penitentiary for a period of six months.

The Attorney General has filed a motion to dismiss the appeal in this cause for the reasons that no notices of appeal were served upon the county attorney of Oklahoma county or upon the clerk of ithe trial court within the time allowed for taking the appeal, nor was there any summons in error issued and served upon the Attorney General, or a waiver of the issuance and service of same by- such officer.

The case-made and other papers filed in this case in this court fail to disclose that plaintiff in error, within the time allowed for taking the appeal, served any, notices of appeal either upon the clerk of the trial court or the county attorney of Oklahoma county, as provided in action 5992, Revised La-ws 1910, or ever had issued and served a summons in error upon .the Attorney General, or that there was a waiver of the issuance and service of a summons in error by such officer, as provided in section 5997, Revised Laws 1910. Either the-method provided in section 5992 or that provided in section 5997 must be followed before this court can acquire jurisdiction of an appeal in a criminal cause. Mann v. State, 17 Okla. Cr. 703, 186 Pac. 1098; Robinson v. State, 17 Okla. Cr. 717, 189 Pac. 763; Sarten v. State, 18 Okla. Cr. 107, 193 Pac. 743; Otha Taylor v. State, 18 Okla. Cr. 202, 194 Pac. 263, decided January 8, 1921.

Eor the reason -that no notices of appeal were served, as provided in section 5992, or summons in error issued and served, or waiver of the issuance and service of same, as provided in section 5997, the appeal is dismissed, and the cause remanded to the trial court, with- directions to enforce the judgment.


author: PER OURIAM.

text:
    A. L. JONES et al. v. STATE.
    No. A-3797
    Opinion Filed Feb. 26, 1921.
    (194 Pac. 897.)
    Appeal from County Court, Love County; B. W. Jones, Judge.
    Will Green was convicted of a misdemeanor and' he appeals.
    Appeal dismissed on motion of counsel for plaintiff in error.
    J. H. Hays, for plaintiff in error.
    W. O. Hall, Asst. Atty. Gen., for the State.
   PER OURIAM.

Plaintiff in error, Will Green, and A. L. Jones, were jointly charged, tried and convicted on an information charging the crime of transporting intoxicating liquors in Love county, and plaintiff in error was sentenced to be confined for thirty days in the county jail and to pay a fine of one hundred dollars and the costs. Prom the judgments rendered an appeal was perfected.

On motion of his counsel of record the appeal of A, L. Jones was heretofore dismissed. See Jones v. State, 17 Okla. Cr. 720, 189 Pac. 746.

Counsel of record for plaintiff in error, Will Green, has this day filed a motion to dismiss his appeal. The motion isi sustained/ and the appeal dismissed.


text:
    PEARL HICKS v. STATE.
    No. A-3252
    Opinion Filed March 19, 1921.
    (196 Pac. 144.)
    Appeal from District Court, Beckham County; T. P. Clay, Judge.
    Pearl Hicks was convicted of grand larceny, and appeals.
    Reversed.
    Arthur Leach and E. H. Gipson, for plaintiff in error.
    S. P.'Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State. ,
   PER CURIAM.

This is an appeal from the district court of Beck-ham county, wherein plaintiff in error, Pearl Hicks, hereinafter designated defendant, was convicted of the crime of grand larceny, and sentenced to serve a term of two years’ imprisonment in the state penitentiary.

Defendant was convicted of having stolen a certain saddle alleged to have been the property of one Earl Woodring, of the value of $85. The larceny is alleged to have taken place in the town of Tesóla, on the night of December 29, 1916, during the time the said Woodring was attending a lodge meeting at said town. The. saddle was found buried on a farm belonging to a man by the name of Fry, about three-quarters of a mile from where this defendant lived.

There is no evidence in the record disclosing that defendant was at the town of Tesóla on the night that the saddle was stolen, nor is there any evidence in the record directly connecting defendant with the taking of the saddle. The conviction is based alone upon the testimony of a witness who made certain contradictory and conflicting statements as to the defendant having assisted such witness in concealing the saddle on the farm of Fry some time after it was alleged to have been stolen. This witness, however, does not attempt to connect this defendant with the taking of the saddle; his testimony merely goes to connecting defendant with concealing the property which had been previously stolen, and as to such alleged facts the testimony given by this witness was conflicting, confusing, and in many respects contradictory.

At the conclusion of the state’s evidence in the trial court, the county attorney moved the court to instruct a verdict of not guilty because of the insufficiency of the evidence. In this court the Attorney General has filed a written confession of error based upon the insufficiency of the evidence.

The court has taken occasion to very carefully examine the/ transcript of the evidence in this case. It has never been the policy of this court to substitute its judgment for that of the jury upon contested questions of fact. In this case, however, it is the opinion of the court that there is no competent legal evidence in the record which tends to establish ¡the guilt of defendant of the crime charged. The only incriminating evidence comes from the lips of a witness whose testimony brands him as an accomplice, in so far as it tends in any way to connect defendant, even circumstantially, with the commission of the crime. When this witness was first introduced, he was unable to identify the property alleged to have been stolen as that which he. in conjunction with defendant, buried on the Fry farm, and it was not until the second day of the trial and in rebuttal, over objection and exception- of defendant, that the witness testified to any alleged fact whatever which would tend to incriminate this defendant. This testimony was given at the time such witness was in jail under a charge of burglary pending against him in the same court. His testimony is unsupported by any other competent legal evidence which in any way tends to connect defendant with the commission of this offense.

The guilt of this defendant is surrounded with such grave doubt that it would be a probable miscarriage of justice to permit the judgment to stand upon the confusing and conflicting testimony of one witness, apparently an accomplice, unsupported by other material testimony, or by any fact or circumstances in evidence tending in any way to connect defendant directly, with the taking of this property.

The conclusion is reached, therefore, that the confession of error of the Attorney General ¡-Should be sustained, and the judgment reversed. It is so ordered.


author: PER CURT AM.

text:
    LUCIUS GARRETT v. STATE.
    No. A-3581
    Opinion Filed March 19, 1921.
    (196 Pac. 145.)
    Appeal from Logan County Court; A. H. Boles, Judge.
    Lucius Garrett was convicted of selling intoxicating liquor, and he appeals.
    Affirmed.
    B. F. Garrett, for plaintiff in error.
    S. P. Frecling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURT AM.

This is an appeal from the. county court of Logan county, wherein plaintiff in error, 'Lucius Garrett, hereafter designated defendant, was convicted of the crime of selling whisky, and his punishment fixed at a fine of $50 and 30 days’ imprisonment in the county jail.

It is contended in this court that the evidence is not sufficient to sustain the conviction. Defendant was charged with having sold certain whisky to one Frank Johnson, and Frank Johnson as a witness testified in part as follows:

“Frank Johnson, a witness being called and sworn on behalf of the state, testifies as follows: * * * My name is Frank Johnson. * * * A. I was going down to the depot on Harrison avenue, and I met Davy Province and this householder’ about halfway down to the depot from Division street. * * * A. We went down in the bend below Coyle’s old mill. I don’t know exactly where it is — we went past where the mill was burned out, and went I think about one or two streets1 south of that. Q. To whose place did you go? A. I don’t know the name of the place. Q. Was the name of the place mentioned after you got down there ? A. Not that I remember of. Q. All right, what did you do after you .got down there? . A. Wtelll when we got down there they wanted me to — Davy wanted me to let him have some money to buy this whisky with — he said he was broke — and T let him have $6. Thev bought first’a half pint and then they bought another half pint; I took a drink out of the first half pint, and then they bought another half pint. * * * Q. Have you ever seen the defendant here? A. I saw him that night. Q. Where was he that night? A. In hds house —J suppose it was his house. Q. Did you buy some whisky of him that night? A. I paid for the whisky. Q. How much whisky did you pay for? A.. Two half pints. Q. And how much did you pay for it? A. I paid $6 for it. Q. Now just describe how that money passed, and how the whisky came to you. A. Well they first bought a half pint of whisky. I paid for it, that is, I paid for it for them. I took a drink out of the first pint, and the other boys drank it up and they wanted another pint, and I said I didn’t care for any more, but I did pay for it. * * * Q. Was the defendant there? A. Yes, sir. Q. Who furnished thfe whisky? A. He furnished the whisky. Q. Who got the money? A. He got the money — I paid the money to him.”

The foregoing excei’pt from the testimony given by the prosecuting witness discloses facts sufficient to. authorize the jury to reasonably conclude that defendant .sold whisky to the said Johnson, as charged in the information. The argument directed against the sufficiency of this evidence is aimed exclusively at the credibility of the prosecuting witness. The trial court permitted a very liberal cross-examination of this witness in an effort, on behalf of the defendant, to show, or at least raise a reasonable doubt as to, the identity of defendant as the person making the alleged sale, and also for the purpose of showing that the prosecuting witness was in an intoxicated condition. While the evidence is to some extent conflicting upon these questions, it was the sole province of the jury to determine whom to believe and whom not to believe.

The judgment is affirmed.


text:
    Ex parte C. E. ROWLETT.
    No. A-3952
    Opinion Filed March 25, 1921.
    (196 Pac. 1066.)
    Petition by O. E. Rowlett for writ of habeas corpus to be let to bail.
    Bail allowed.
    John P. Crawford, for petitioner.
    S. P. Freeling. Atty. Gen., W. C. Hall. Asst. Atty. Gen., and Wayne Wadlington, County Attorney, for respondent.
   PER CURIAM.

Petitioner, C. E. Rowlett, on the. 23d day of March, 1921. filed in this coixrt a petition wherein he avers that he is illegally restrained and imprisoned by the sheriff of Pontotoc county. Oklahoma, at Ada. Oklahoma, on the charge of having murdered one Gertrude Carlton, in Pontotoc county, in the month of October. 1920, on a commitment for said crime issued out of the district coxxrt of Ponto-toc county, Oklahoma.

Petitioner aijeges that said restraint is illegal and unauthorized in that the facts adduced against him at the preliminary examination are not sufficient to hold petitioner upon a charge of murder, and that he is entitled to be admitted to bail, and prays this court to fix bail' in a reasonable amount.

Accompanying the petition is a stipulation of the county attorney of Pontotoc county, agreeing that the judge of the district court of Pontotoc county is now out of the district and out of the state of Oklahoma, and'further agreeing that petitioner should be admittedAo bail in this case, and suggesting the amount of bond which he deems to be sufficient.

Upon a consideration of the evidence presented, we are of opinion that petitioner is entitled to be admitted to bail, and it is the conclusion of the court that bail should be allowed in the sum of ten thousand dollars ($10,000) for the appearance of petitioner to answer said charge in the district court of Pontotoc county, bond to .be conditioned as by law required and to be approved by the court clerk of Pontotoc county. When such bond is given and approved, said petitioner to be enlarged by the sheriff of Pontotoc county.


text:
    FRED TINDELL v. STATE.
    No. A-3628
    Opinion Filed March 28, 1921.
    (196 Pac. 555.)
    Appeal from Superior Court, Creek County; Gaylord R. Wilcox. Judge.
    Fred Tindell was convicted of manufacturing intoxicating liquors, and he appeals.
    Reversed.
    W. D. Cope and Grace Arnold, for plaintiff in error.
    S. P. Steeling, Atty. Gen., and W. C. Hall and| E. L. Fuiton, Asst. Attys. Gen., for the State.
   PER CURIAM.

This is an appeal from the superior court of Creek county, wherein Pred Tindell was convicted of the crime of manufacturing intoxicating liquor, and his punishment fixed at a fine of $50 and imprisonment in the county jail for a period of 30 days. Prom this judgment he has appealed, and assigns as grounds for a reversal that the evidence is insufficient to sustain the conviction, and that the court erred to his prejudice in permitting the state to introduce incompetent, irrelevant, and immaterial evidence over his objection and exception.

In view of the disposition made of this appeal, it is not necessary to enter into a discussion of the evidence, except to state that the incriminating evidence against defendant of the crime charged is circumstantial : there being no direct evidence to the effect that defendant, manufactured the intoxicating liquor (Ohoctaw beer) a® alleged in the information.

During the progress of the trial the court permitted the state, over objection and exception of defendant, to introduce evidence that the home of defendant, where the Ohoctaw beer alleged to have been manufactured by him was found, had the general reputation of being a place where intoxicating liquors were, manufactured, sold, and given away in violation of law.

This court has held that in prosecution for maintaining a liquor nuisance, and also in prosecutions for the unlawful possession of intoxicating liquors with intent to sell the same, evidence of the general reputation of the place where such liquors are found is admissible in the first class of cases, and under certain circumstances in the second class, provided the place where such liquors are possessed is one of general resort, or is a public place fitted up in the manner similar to a liquor- saloon. Ward v. State, 15 Okla. Cr. 150, 175 Pac. 557; Cameron et al. v. State, 13 Okla. Cr. 692, 167 Pac. 339.

However, in a prosecution for the manufacture of intoxicating liquors, the question of the reputation of the place where liquors' previously alleged to have been manufactured are found, as the court views the law, cau have no bearing upon the question of the guilt of defendant, as no issue of public notoriety or intent to sell or otherwise dispose of such liquors enters as a material element in such offense. This evidence therefore was clearly incompetent, irrelevant, and immaterial and should not have been admitted.

Th Attorney General has filed a confession of error based upon the admission of this incompetent evidence, and for such reason is of the opinion that the judgment of the trial court should be reversed. With the view expressed by the Attorney General, the court concurs.

Judgment reversed.


text:
    O. B. MORRIS et al. v. STATE.
    No. A-3340
    Opinion Filed October 2, 1920.
    Rehearing Denied April 14, 1921.
    (196 Pac. 742.)
    Appeal from Counfy Court, Tulsa County; H. L. Standeven, Judge. O. B. Morris and Bud Nelson were convicted of having unlawful possession of beer with intent to sell it, and they appeal.
    Judgment affirmed.
    O’Meara, Bush & Moss., for plaintiffs in; error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiffs in error. O. B. Morris and Bud Nelson, were jointly informed against and tried and convicted upon an information charging that they did have in their possession five bottles of beer with intent to barter and sell the same, and in pursuance of the verdict they were each sentenced to be confined in the county jail for 30 days and to pay a fine of $50.

An examination of the. record discloses no error sufficient to warrant a reversal of the judgments, and the same are affirmed.


text:
    O. C. FELTS v. STATE.
    No. A-3672
    Opinion Filed May 26, 1921.
    (198 Pac. 1119.)
    Appeal from County Court, Pontotoc County; Orel Busby, Judge.
    O. C. Felts was convicted of transporting intoxicating liquor, and he appeals.
    Judgment reversed on confession of error.
    I. M. King, J. P. Crawford, and Reuben M. Roddie, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L: Fulton, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was eonyicted on a charge of transporting intoxicating liquor from a certain point in the city of Ada to another certain point in said city on ar about the 10th day of February, 1919. and ini accordance with, the verdict of the jury was sentenced to be confined for 30 days' in the county jail and pay a fine of $50. He appeals from the judgment. The Attorney General has filed the following confession of 'error:

“Plaintiff in error admitted the possession of the liquor, and admitted that he was conveying it from his home to his office. He claimed that he purchased the liquor in,'Joplin, Mo.,~ and himself conveyed the same to the state of Oklahoma. He requested the court to instruct the jury that, if they believed from the evidence that he had made a lawful purchase of the liquor in question, .and that he himself brought the liquor into the state of -Oklahoma, and that the same was brought and intended for his own use, that the jury should acquit him. The court refused to give this instruction, and an exception was taken and allowed. This court, in the case of Maynes v. State, 6 Okla. Cr. 487, 119 Pac. 644, and in other eases, has held that it is no violation of the prohibitory act to convey from one place in this state to another place therein a lawful purchase of intoxicating liquor. The same holding was announced by this court in the case of Rupard v. State, 7 Okla. Cr. 201, 122 Pac. 1108. We feel that under the evidence, plaintiff in error was entitled to the instruction requested, or one covering the question therein presented.”

After an examination of the record in the case, we reach the conclusion that the confession of error should be sustained. The judgment of the lower court is accordingly reversed.


text:
    JESSE BREWER v. STATE.
    No. A-3498
    Opinion Filed May 27, 1921.
    (198 Pac. 341.)
    Appeal from County Court, Hughes County; John L. Coffman, Judge.
    Jesse Brewer was convicted of transporting intoxicating «liquor, and he appeals.
    Reversed.
    J. L. Skinner, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted on a charge of transporting intoxicating liquor from a point unknown in Hughes county to the town of Yeager on or about the 24th day of March, 1918, and in accordance with the verdict of the jury was sentenced to be confined for 30 days in the county jail and to pay a fine of $50. He appeals from the judgment.

The evidence shows that the defendant was arrested as he got off of the north-bound Prisco passenger train at the town of Yeager, by an officer, and a quart of whisky and a pint of alcohol was taken from his grip.

Por the defense, Sam Hughes, sheriff of Hughes county, testified that he is well acquainted with the defendant’s general reputation in the community where he resides for being an upright and law-abiding man, and that that reputation was good.

Dr. A. M. Butts testified that he was the defendant’s family physician. and about the date alleged was treating the defendant’s daughter, and advised the defendant that a teaspoonful of' whisky three or four times a day would help the girl to get better and advised the use of alcohol.

As a witness in Lis own behalf the defendant testified that he lived a mile south of Yeager; that he had been at Port Worth, Tes., and had lawfully purchased this whisky for medicinal piirposes, under the advice of his family physician; that he did not have the whisky for the purpose of drinking it, or for the purpose of sale, but solely for medicinal purposes.

We deem it unnecessary to consider the various errors assigned. It is sufficient to say after a careful examination and consideration of the testimony we are of the opinion that the conviction is not sustained by the evidence. Wherefore the judgment is reversed.


text:
    GEORGE FITZGERALD v. STATE.
    No. A-3683
    Opinion Filed April 29, 1921.
    (196 Pac. 1102.)
    Appeal from County Court, Jefferson County; E. L. Dillard. Judge.
    George Fitzgerald, convicted of a violation of the prohibitory law, appeals.
    Affirmed.
    Bridges & Yertrees and Hays Dillard, for plaintiff in error.
    W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, George Fitzgerald, was convicted on a charge that he did have unlawfully in his _ possession certain intoxicating liquors with intent to violate the provisions of the prohibitory liquor laws. He was sentenced to be confined for 30 days in the county jail and pay a fine of $100, and in default of the payment of said fine that he is further confined in the county jail until the same is satisfied according to law.

No brief has been filed. .When the case was called for final submission no appearance was made on behalf of the plaintiff in error, and for this reason the Attorney General moved to affirm the judgment.

From an examination of the record we have failed to find anything whereof the plaintiff in error has just right to complain. The judgment is affirmed.


text:
    GUY MARTIN v. STATE.
    No. A-3671
    Opinion Filed April 20, 1921.
    (196 Pac. 1103.)
    Appeal from County Court, Craig County; Frank L. Haymes, Judge.
    Guy Martin, convicted of a violation of the prohibitory law, appeals.
    Affirmed.
    Clyde McGary, for plaintiff in error.
    W. C. Hall,Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Guy Martin, was convicted on a charge of unlawfully selling intoxicating liquor to one Dick Sec-ondine, and in accordance with the verdict of the jury he was on the 14th day of October, 1919, sentenced to pay a fine of $50 and to be confined in, the county jail for a period of 30 days. He appealed from the judgment by filing in this court on December 19, 1919, a petition in error with case-made.

No brief has been filed. When the case was called for fina1! submission, no appearance was made on behalf of the plaintiff in error, and for this reason the Attorney General moved to affirm the judgment.

A cursory examination of the record indicates there is no merit whatever in the errors assigned. The judgment of the trial court is affirmed.

Mandate forthwith.


text:
    CALEN ANDREWS v. STATE.
    No. A-3680
    Opinion Filed May 2, 1921.
    (196 Pac. 1102.)
    Appeal from District Court, Tulsa County; Redmond S. Cole, Judge.
    Calen Andrews was convicted of the crime of burglary in the second degree, and sentenced to serve a term of five years’ imprisonment in the state penitentiary, and appeals.
    Affirmed.
    E. I. Saddler, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

This is an appeal from the district court of Tulsa County, wherein on the 6th day of October, 1919, defendant, Ca-len Andrews, was convicted of the crime of burglary in the second degree, and his punishment fixed as above stated.

The cause has been pending on appeal in this court since January S, 1920. No brief has been filed in behalf of defendant, nor was any appearance made to orally argue the cause at the time same was submitted.

Rule 9, of this court provides:

“When no counsel appears, and no 'briefs are filed, the court will examine the pleadings, the instructions of the court and the exceptions tafeen thereto, and the judgment and sentence, and if no prejudicial error appears will affirm the judgment.”

After a careful examination of the record, this court finds no error sufficiently prejudicial to authorize a reversal of this judgment, and the same is, in accordance with Rule 9, supra, affirmed.


text:
    STATE v. TRANCELINO SAUREZ.
    No. A-3545
    Opinion Filed May 2, 1921.
    (196 Pac. 1066.)
    Appeal from District Court, Grant County; J. AY. Bird, Judge.
    Traneelino Saurez was tried for murder and accpfitted, and the State appeals.
    Dismissed.
    The Attorney General, AY. C. Hall, Asst. Atty. Gen., and E. C. Glenn, Co. Atty., for Grant County, for the State.'
    Sam P. Ridings, for the defendant in error.
   PER CURIAM.

Traneelino Saurez was prosecuted and acquitted of the crime of murder on an information charging that in Grant county, on the 22nd day of November, 1918, he did kill and murder one Francisco Saurez by cutting him with a knife. The State appealed on questions reserved. Since the appeal was taken counsel for the State and for the defendant in error have suggested the death of the defendant in error, and for this reason counsel for the state have filed a motion to dismiss the appeal herein. The motion to dismiss is sustained and the appeal is dismissed.


text:
    IKE MADDING v. STATE.
    No. A-3652
    Opinion Filed May 4, 1921.
    (196 Pac. 1102.)
    Appeal from the District Court, Pushmataha County; A. A. McDonald, Judge.
    Ike Madding was convicted of assault with intent to rape and appeals.
    Affirmed.
    Westphal & Davenport and Warren & Warren, for plaintiff in error.
    The Attorney General and ,W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Ike Madding, was convicted on an information, charging him with an assault with intent to rape, and his punishment fixed at imprisonment for one year in the penitentiary. From the judgment rendered on the verdict he appealed by filing .in this court on November 11, 1919, a petition in error with case-made.

No brief has been filed, and when the case was called for final submission it was submitted on the record. The evidence for the state is uncontroverted, and it is apparent from the record that justice has been done and the judgment ought not to be reversed, except for some plain error in the proceeding which was, or might be prejudicial to the substantial rights of the defendant. After a very careful examination of the record we have failed to discover any such error. The judgment of the trial court is therefore affirmed.


text:
    In re N. J. RASBERRY.
    No. A-3922
    Opinion Filed May 4, 1921.
    (196 Pac. 1065.)
    Application for habeas corpus by N. J. Rasberry, to be let to bail.
    Cause dismissed.
    Geo. W. Crump, for petitioner.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The petitioner, N. J. Rasberry, filed his application in this court for writ of habeas corpus to be let to bail, alleging that he is confined in the county jail of Okfuskee county, charged with the murder of one John Kincade, on the 5th day of January, 1921.

Stipulations were filed showing that the state was ready to try the cause, and that the defendant would ask a trial at the present term of the district court, and the cause was taken under advisement, pending the action of the district court on said’ stipulations.

The petitioner has filed a motion to dismiss his application for the reason that on the 21st day of April, 1921, the jury returned a verdict of not guilty, and judgment of acquittal was rendered by the district court of Okfuskee county. The cause is therefore dismissed.


text:
    ELI REED et al. v. STATE.
    No. A-3265
    Opinion Filed Feb. 21, 1920.
    Rehearing Denied May 10, 1921.
    (196 Pac. 1103.)
    Appeal from Superior Court, Okmulgee County; R. E. Simpson, Judge.
    Eli Reed and Ida Reed were convicted of the unlawful possession of intoxicating liquor, and appeal.
    Affirmed.
    J. C. Evans and L. J. Merriwether, for plaintiffs in erro».
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from the superior court of Ok-mulgee county, wherein the defendants, husband and wife, were jointly tried and convicted of the unlawful possession of intoxicating liquor, and sentenced to pay a fine of $250, and to serve thirty days each in the county jail.

To reverse this judgment, the defendants have appealed to this court, and have assigned as errors several grounds which have heretofore been considered in appeals in similar cases, and the questions raised have been decided, adversely to the contentions of counsel'representing these defendants.

A careful consideration of the brief filed in behalf of the defendants, and a thoughtful consideration of the record in connection with the same, thoroughly convinces this court that the evidence is sufficient to sustain the conviction, and that no error of law occurred during the progress of the trial sufficiently prejudicial to authorize a reversal of the judgment.

The judgment as to each defendant is accordingly affirmed.


author: BESSEY, J.

text:
    R. L. ROGERS v. STATE.
    No. A-3550.
    Opinion Filed Jan. 27. 1921.
    Rehearing Denied May 10, 1921.
    (197 Pac. 525.)
    (Syllabus.)
    1. Intoxicating Liquors — Unlawful Possession — Presumptions. In this state, where a person has concealed and has in his possession an excessive quantity of intoxicating liquor, a presumption arises that it is kept there for an illegal purpose.
    2. Same — Unexplained Possession. Where liquor is found concealed on the premises of the accused in his presence and no claim is made by him that it is being kept for legitimate purposes, the presumption that it is kept for an illegal purpose is strengthened.
    3. Same — Attempt to Suppress Prosecution. Under such circumstances, where an attempt is made by the accused to suppress a p'rosecution for the offense of having possession of liquor for illegal purposes, and he offers to pay a sum of money to the arresting officers to permit him to escape, a further presumption is created that the liquor is being kept for an illegal purpose.
    4. Same — Trial—Failure to Instruct on Intent. Where such presumptions obtain and where the accused offers no testimony indicating a lawful possession of intoxicating liquor, it is not reversible error for the trial court to fail to instruct the jury upon the question of lawful intent.
    Appeal from County Court, Carter County; Thomas W. Champion, Judge.
    R. L. Rogers was convicted of the crime of having unlawful possession of intoxicating liquor, and sentenced to serve 30 days in jail and pay a fine of $100, and he appeals.
    Affirmed.
    Sigler & Jackson, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   BESSEY, J.

On April 9, 1919, plaintiff in error, R. L. Rogers, was tried and convicted in the county court of Carter county, Olda., of the crime of having unlawful possession of intoxicating liquor, and his punishment was assessed at 30 days in jail and a fine of $100.

In this case no testimony was introduced on the part of the plaintiff in error. The testimony on the part of the state was to the effect that the plaintiff in error had on his premises a garage with a concrete floor laid in squares, that one of these squares of concrete was so constructed that it could be lifted up' and removed, and that underneath this square was an excavation containing one hundred twenty quarts of whisky. The officers who found this whisky so concealed testified that the plaintiff in error, upon its discovery in his presence, offered to pay them all the money he had at that time, $130, to suppress the charge. At that time he made no denial that the liquor belonged to him and made no explanation as to why such a large quantity was stored upon his premises.

There is a presumption in this state that where a person has in his possession such a large quantity of intoxicating liquor that he has it for an illegal purpose. Sess. L. 1913, p. 48.

Such presumption is strengthened where the liquor is discovered in the presence of the accused and no claim is made that it is for a lawful purpose. Lawson on Presumptive Evidence, 628.

Under sucb circumstances, where an attempt is made to suppress the accusation and permit the accused to escape, it creates another presumption that the liquor is kept for illegal purposes. Lawson on Presumptive Evidence, 356; State v. Crowder, 41 Kan. 101; State v. Case, 93 N. C. 545, 53 Am. R. 471; Fanning v. State, 14 Mo. 386.

Plaintiff in error urges in his brief that the trial court erred in failing to instruct the jury upon the question of unlawful intent. The Attorney General in his brief admits that the court should have submitted such an instruction, as requested, but in view of all the testimony in this ease, considered with the presumptions of law and fact necessarily deduced therefrom, and without any explanation on the part of the plaintiff in error as to why he had in his possession so large a quantity of whisky, it is the opinion of this court that the submitting of such an instruction would not have changed the verdict.

After an examination of the entire record, we conclude that there was no miscarriage of justice, and that the error, if indeed there was error, was not in violation of any constitutional or statutory right of the plaintiff in error.

The judgment of the trial court is therefore affirmed.

DOYLE, P. J., and MATSON, J., concur.


author: DOYLE, P. J.

text:
    GEORGE GARRISON v. STATE.
    No. A-3416.
    Opinion Filed Sept. 14, 1920.
    Rehearing Denied May 10, 1921.
    (197 Pac. 517.)
    (Syllabus.)
    1. Homicide — Shooting with Intent to Kill — Sufficiency of Evidence. In a prosecution for shooting with intent to kill, evidence considered, and held sufficient to support the verdict and judgment of conviction.

      2. Same — Instructions. See opinion for correct instructions applicable to the facts.
    Apeal from District Court, "Washita County; Thomas A. Edwards, Judge.
    George Garrison was convicted of shooting with intent to kill, and he appeals.
    Affirmed.
    Massingale & Duff, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall and E. L. Fnlton, Asst. Attys. Gen., for the State.
   DOYLE, P. J.

The information in this case charges that in Washita county, on or about the 12th day of November, 1917, George Garrison did shoot one Henry Frost with a shotgun, with intent of him, the said Garrison, to kill the said Frost. On his trial the verdict of the jury found him guilty of shooting another with intent to kill, as charged in the information, and that they were unable to agree upon the punishment. On the 9th day of February, 1918, the court rendered judgment, and sentenced the defendant to be confined in the State Reformatory at Granite for a period of 18 months. From the judgment he appeals.

The principal contention is that the evidence is insufficient to sustain the verdict in that there was no testimony tending to establish an intent to kill. The defendant, George Garrison, and Henry Frost were neighbors. About 30 days prior to the date of the offense charged they had a dispute in the town of Sentinel over the price to be paid by Frost to Garrison for hauling a load of hogs. Frost gave Garrison a cheek for $3 and he claimed 50 cents more, which was paid by Frost. At that time Frost threatened to strike Garrison with a wagon rod. Tom Jerrell, who was living at the home of Frost, purchased about 11 acres of kaffir corn from Garrison, and gave him his check for $300, the purchase price. On the date alleged Tom Jerrell, with Henry Frost, drove two wagons into Garrison’s field by laying down the fence. Garrison left his house, and went to where the parties were, and stated to Frost that he did not want him on his premises, and for him to get off. Frost told him that he would have to put him off. Thereupon Garrison started back to his house and called Jerrell to come with him. They talked 15 or 20 minutes about why Frost was on the premises and Garrison told Jerrell that he did not want any trouble with Frost and for him to go back to Frost and tell him to leave. Frost was gathering kaffir ■corn, and the defendant took a shotgun, both barrels of which were loaded, and went out to where Jerrell and Frost were, and again told Frost that he must leave. Thereupon Frost .got into his wagon and the defendant shot him.

Henry Frost testified:

“Mr. Jerrell came back and told me that Garrison still wanted me to leave. I told him I didn’t think it was any use of leaving, it was our feed; and in just a few minutes I saw the defendant coming back with a shotgun. He walked up to about thirty steps of the wagon and said, ‘By God, I told you to leave here.’ As he threw up the gun, I turned my face to keep him from shooting me in the face. He fired, the •shot struck me, and I drove on.”

Dr. Baker testified:

“I am a practicing physician in this county, and was -called to see Henry Frost professionally. I found him suffering from the effects of a gunshot wound; the highest shot was in his cheek, one in his neck, and quite a few in his arm, and several in the abdomen and down his leg to about the knee. Most of the shot entered from just under the arm to the point of the hip on the right side. I found the lung and liver punctured; also the stomach. My examination was about six hours after he was shot. He was suffering from a very severe shock when I first saw him. We found some blood in the abdominal cavity. His condition was very serious. ’ ’

As a witness in Ms own behalf defendant testified:

“I had some maize that I sold to Tom Jerrell, who was working for Mr. Frost at the time. I did not know that Mr. Frost was purchasing any interest in it until the morning they came over to gather it. They drove into the field with two-wagons, Jerrell in front and Frost behind him. I went over,, and discovered it was Mr. Frost, and asked him to get off my place; and he said he would not do it, that he had a right there. I told him he did not, and he gave me the lie. I started back to the house, and he said: ‘Hit a six-cylinder gait and get your old gun; you won’t shoot.’ I called Mr. Jerrell to the house, and talked to him 15 or 20 minutes. I said: ‘What does this mean? You know I don’t want any dealings with Mr. Frost.’ And he said he was his partner. I told him to go out there and get him to leave, and Mr. Jerrell went out, and never made much of a stop with Mr. Frost, that I could detect; so I went in the house and got my gun, and before I got very close to him Mr. Frost jumped into his wagon. I walked on a little further, and I said: ‘Ain’t you going to Leave here?’ He said: ‘No, and you can’t make me.’ When E shot him, he asked me not to shoot any more, and I stopped with another load in the barrel, and he drove out of the field. E didn’t aim to hit him. I didn’t really know that I .'had shot him.”

He was then asked:

“Q. Just tell the jury in your own way why you shot and how came you to shoot at the time you did. A. Well, I had tried to get him to leave, and he would not do it, and said that I couldn’t make him; and when I went out there with my gun, and he got into his wagon, I expected he was going in for some kind of arms, from the trouble we had in Sentinel. I just aimed by the side of him — didn’t aim to hit him.”

The general rule is that a man shall be presumed to intend that which he does, or which is the natural and necessary consequence of his act, and in this class of cases an intent to kill may be presumed from the character of the weapon used and the wounds inflicted. Obviously the question of the defendant’s intent on the undisputed facts in this case, as. against the defendant’s statement that be did not aim to hit him was for the determination of the jury. Carefully considering the whole testimony in the ease, we are satisfied with the conclusion arrived at by the jury in its judgment of the force of the evidence.

Error is assigned in the giving and refusing of instructions. It is urged that “the instructions given do not in plain and unambiguous language tell the jury that they should acquit the defendant of the crime charged in the information in the event that there was a failure of the evidence on the question of intent,” and for this reason the court erred in refusing to give a requested instruction. The instructions given properly define the crime of assault by shooting another with intent to kill, and the included offense of shooting another with intent to injure, although without intent to kill.

Among other instructions given by the court are the following :

“To the information and the offense charged therein the defendant has entered his plea of not guilty, and you are instructed that by his plea of not guilty this defendant, as every defendant in a criminal case, is presumed by law to be innocent of the offense charged against him and of every ingredient thereof, and that this presumption abides with him throughout the whole case, until it is overcome by competent evidence to your satisfaction, beyond a reasonable doubt, after consideration of all the evidence and the instructions of the court, and the burden is upon the state to prove the same beyond a reasonable doubt. And, if you have a reasonable doubt, after consideration of all the evidence and the instructions of the court, as to the defendant’s guilt, it is your duty to resolve that doubt in his favor and acquit him. But if, after due consideration of all the evidence, facts, and circumstances in the case, together with the instructions of the court, you are convinced of his guilt beyond a reasonable doubt, it is your duty to convict him.”
"You are further instructed that if you find and believe from the evidence, beyond a reasonable doubt, that the* defendant, on or about the 12th day of November, 1917, did intentionally and wrongfully shoot one Henry Frost, as charged in the information, with the intent to kill said Henry-Frost, it will be your duty to find the defendant guilty; but if, after considering all of the evidence, facts, and circumstances in the case, you have a reasonable doubt as to whether- or not the defendant, at the time he shot the said Henry Frost, intended to kill said Henry Frost, you will then eonsider whether or not said defendant is guilty of the less offense-of shooting said Henry Frost with the intent to injure the said Henry Frost, although without intent to kill said Henry-Frost, or to commit any felony, and if, after considering all of the evidence, facts, and circumstances in the case, you find and believe from the evidence beyond a reasonable-doubt that the defendant did, without excusable or justifiable-cause, shoot the said Henry Frost, with the intent to injure him although without intent to kill the said Henry Frost, it will be your duty to return a verdict of guilty of said lesser offense but if, after considering all the evidence, facts, and circumstances in the case, you have a reasonable doubt of the guilt of the defendant of the crime of intentionally and wrongfully-shooting another with intent to kill, and of the crime of shooting another without justifiable or excusable cause, with intent to injure, although without intent to kill, then it will be. your duty to return a verdict of not guilty.
Defendant excepts.
"Thos. A. Edwards, Judge.”
"You are further instructed that if you believe from, the evidence that the said Henry Frost was, at the time of the shooting complained of, trespassing upon the real estate-belonging to or in the possession of the defendant, G-eorge Garrison, the defendant, George Garrison, had the right to go where the said Henry Frost was trespassing, if you find he was trespassing, and to request him to leave and vacate such premises; but in this connection you are further instructed that a mere trespass upon the land in possession of another, even after the trespasser has been warned to depart and has refused, does not justify the landowner or person in possession •of such land to use a dangerous or deadly weapon to resist the trespasser or to expel him from such land, as the law does .not justify the use of a dj^jg*, weapon or the endangering of the life of another to r. a a mere trespass or invasion •of real estate in the possession of another, where there is no actual or apparent attempt on the part of the trespasser to ■commit a felony thereon.”
Defendant excepts.
"Thos. A. Edwards, Judge.”

The instructions of the court excepted to were clearly ■correct, and the charge of the court was a correct exposition ■of the law applicable to the facts.

Finding no error in the record, the judgment is affirmed.

ARMSTRONG and MATSON, JJ., concur.


text:
    HARRY SPANN v. STATE.
    No. A-3428.
    Opinion Filed Jan. 26, 1921.
    Rehearing Denied May 10, 1921.
    (197 Pac. 531.)
    (Syllabus.)
    1. Appeal and Error — Continuance—Discretion of Trial Court. An application for continuance rests largely in the discretion of the trial court, and will not be interfered with unless it clearly appears that the discretion has been abused.
    2. Continuance — Absence of Witnesses — Diligence. It is the duty of a defendant to use all reasonable diligence to secure the attendance of witnesses in his behalf, and an application for continuance must set out fully the facts which constitute such diligence.
    -3. Trial — Argument of. Prosecution — Scope. The prosecuting attorney has the right and privilege in his argument to the jury to refer to the evidence and state his deductions therefrom and urge upon the Jury the truth or falsity of any testimony given in the case. of Evidence.
    ■4. Larceny — Larceny of Live Stock — Sufficiency of Evidence. In a prosecution for the larceny of live stock, the evidence considered, and hteld sufficient to sustain the verdict and judgment of conviction.
    Appeal from District Court, Pontotoc County; J. W. Rolen, Judge.

      Harry Spann was convicted of larceny of live stock, and be appeals.
    Affirmed.
    C. A. Galbraith, John P!ia1B^vford, and I. M. King, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty, Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, herein referred to as the defendant, prosecutes this appeal to reverse a judgment of conviction and sentence in accordance with the verdict, of two years’ imprisonment in the penitentiary for the crime of larceny of live stock, charged to have been committed in Pon-totoc county on or about the 5th day of September, 1917, by-stealing two cows, the personal property of T. L. Grundy.

The principal ground relied on for a reversal of the judgment is that the evidence is not legally sufficient to support the verdict.

T. L. Grundy testified:

“lam the owner of the cows described in the information,. My brand is a circle ‘O’ on the left hip. I had also put a. tally bar on the left loin of these cows. About the date alleged, I missed these cattle, and after an extended search I found them in the defendant’s pasture, about 2 miles from my pasture. I also found seven other head of my cattle there,, on which my brand, circle ‘0,’ had been branded over.
“Later I went back and found only five of my cattle there, and the two cows described in the information were gone. Later I located these two cows in another pasture-about 12 miles from where I first found them, and in the meantime the brands had been changed by putting a circle ‘ 0 ’ over-my circle and a rafter over the circle. Shortly after finding-these cattle, I met the defendant and asked him where he got these cows, and the defendant said he bought them, but would not say who he bought them from. This is my branding iron. Mr. Adeox, the blacksmith at Hickory, made it for me in February, 1916. The last time I used it was in May, that year. I put it in the barn and shortly afterwards it was gone. I did not find it until Deputy Sheriff Jackson told me he had it.”

Oliver Taylor testified that:

In the fall of 1917, “I with Mr. Brasheers and Mr. Hendrix assisted the defendant in branding cattle, and we used the circle ‘ O ’ branding iron that has been offered in evidence. The defendant did most of the branding. I noticed two or three that had a circle ‘O’. They were rebranded with this branding iron, and then we put a rafter over it and a bar under it. I heard the defendant tell Mr. Brasheers to reburn the circle ‘O’ brand that was on these cattle; that branding iron was left at my house by the defendant, and I turned it over to the •deputy sheriff.”

J. E. Adcox testified:

“I run a blacksmith shop at Hickory, and I made this branding iron that has been offered in evidence, in February 1917, for Mr. Grundy.”

The state rested, and the defendant moved the court to direct the jury to return a verdict of not guilty, because the proof is that the defendant was in the possession of stolen property, and evidence of possession alone is insufficient to sustain a verdict of guilty.

The motion was overruled and exception allowed.

For the defendant, George Brasheers testified:

“I with others assisted the defendant in branding his cattle. We were using the circle ‘O’ brand and the rafter and the bar. I don’t remember putting the circle on any old circle ‘O’ brand. I won’t say that I didn’t. I was putting the cattle in the chute; the others were doing the biggest part of the branding.”

Lon Taylor testified that he assisted in the branding but ■did not discover any circle ‘O’ brands on the cattle at that time.

Several witnesses qualified as character witnesses and testified that the defendant’s general reputation for being an honest, upright, and law-abiding citizen was good.

As a witness in bis own behalf, the defendant testified ;■

“I bought the two cows claimed by Mr. Grundy from Fred Millsap. They were down in a pasture I had leased on Blue, the pasture corners with Mr. Grundy’s pasture. I bought 13 head, including these cows from Mr. Millsap. I think I paid him $422.50. I was at that time a cattle inspector in the employ of the state. I had been down to the Un-sell Vat and met Mr. Millsap there, and he told me he wanted to sell his cattle, 13 in number. The cattle were to be delivered in my pasture at Fitzhugh, and he was to brand them.. This was along in the forepart of September. I never noticed Mr. Grundy’s brand on any of the cattle I bought from Mill-sap. I got the branding iron offered in evidence at Keath Underhill’s. I was over there and, I just said, ‘I want a branding iron and I will take this one.’ ”

The rule repeatedly announced by this court is that it has, no power to reverse a judgment of conviction, upon the ground that the verdict is not supported by the evidence, unless there is no substantial evidence tending to show guilt of the defendant, or the evidence fails so far to support the verdict that the-necessary inference is that the jury must have acted from partiality, passion, or prejudice. We have set forth a sufficient statement of the material testimony introduced by the state, and it is apparent that there is substantial evidence-tending to show the defendant’s guilt, and in our opinion it is amply sufficient to support the verdict of the jury.

Another alleged error is that the court erred in permitting the county attorney and private counsel for the state-to go out of the record in their arguments to the jury. As to the alleged improper remarks of counsel for the state, it is sufficient to say that we are clearly of opinion that counsel for the state were within the bounds of legitimate argument, and that the objections interposed to the remarks complained, of were properly overruled by the trial court.

The final contention is that the court erred in overruling defendant’s motion for continuance, and the motion for new-trial on tbe same ground. It appears from the record that during the course of the trial counsel for the defendant stated that—

"At this time we would like to have Fred Millsap before the defendant takes the stand.
"The Court: Don’t see any chance of getting Millsap.
‘ ‘ Counsel for the defendant: Then we would like to make a motion for continuance; the materiality of Fred Mill-sap’s testimony will appear from the defendant’s testimony.
"The Court: Dictate your motion. The same will be considered filed and overruled.”

The defendant’s affidavit in support of his motion for new trial avers that the name of Fred Millsap was indorsed on the information; that before going to trial he asked the court to issue a subpoena in his behalf for Fred Millsap, and that an attachment be issued for Fred Millsap, all of which was done; that the court made the announcement that, if the presence of any of the witnesses asked for by the defendant could not be obtained before the conclusion of the case, the defendant would be given an opportunity to present a motion for continuance; that before the conclusion of said trial he learned that the witness Millsap was not in attendance upon the court in obedience to said • attachment, although the sheriff announced in open court that said witness had been recently seen in Johnston county.

Assuming that the motion for continuance was properly filed, it is wholly insufficient, no diligence whatever being shown. The mere statement of a defendant that he has shown due diligence to secure the attendance of an absent witness is not sufficient to show diligence. He must set forth fully in his application for continuance the facts which constitute such diligence. The delay of the defendant as shown by the record, in asking for a subpoena for this witness when the case was called for trial, amounts almost to indifference. A defendant must exercise diligence in procuring process for bis witnesses. The rule is well settled that the granting or refusal of a continuance is largely a matter of discretion of the trial court, the exercise of which will not be reviewed on appeal without an affirmative showing that there has been an abuse of discretion. We think the application for a continuance was properly denied. We have given careful examination and consideration to the record in this case, and all questions involved therein, and find no error justifying a reversal.

The judgment of conviction is therefore affirmed.

MATSON and BESSEY, JJ., concur.


author: ABMSTRONG, J.

text:
    HENRY SMITH v. STATE.
    No. A-2859.
    Opinion Filed June 9, 1919.
    Rehearing Denied May 10, 1921.
    (197 Pac. 514.)
    (Syllabus.)
    1. New Trial — Prejudice of Juror. Where a new trial is asked for upon the grounds that a'juror who served upon the jury was prejudiced against the defendant, which prejudice was unknown to the defendant prior to rendition of the verdict, to entitle the defendant m a new trial, it must not only be shown that the said juror was prejudiced, but it must also appear that the defendant suffered an injustice by 'reason of the said juror having served upon the said jury.
    2. New Trial — Conduct of Jury — Prejudice. While this court does not approve of a juror, while serving as such, having conversations by phone with outside persons, and with “janitors,” or other persons than the jurors, being in the jury room with the jury without the authority of the court and consent of the defendant, to entitle the defendant to a new trial on account thereof, it must be made to appear that an injustice was done the defendant by such conversations, and by the presence of other persons than jurdrs in the jury room, and thereby the defendant deprived of a fair and impartial trial. ,
    3-. Homicide — Self-Defense—Aggression—Withdrawal. Where thie deceased brought on the difficulty, but in good faith withdrew therefrom and fled, and the defendant pursued, overtook, and inflicted a fatal wound upon the deceased, the defendant cannot successfully plead self-defense.
    4. Homicide — Manslaughter in First Degree — Evidence. The record in this case carefully read and examined, and the evidence found, though in conflict, to reasonably sustain the ver-diet and judgment rendered thereon, and that no prejudicial error occurred in the trial of the case.
    Appeal from District Court, Tulsa County; Jno. Y. Murry, Jr., Special Judge.
    Henry Smith was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    The plaintiff in error, Henry Smith, hereinafter designated defendant, was informed against for the murder of B. V. Cook, convicted of manslaughter in the first degree, and sentenced to imprisonment in the penitentiary at McAlester for the term of 25 years, and adjudged to pay the costs of this prosecution. To reverse the judgment rendered, he prosecutes this appeal.
    The uncontradicted evidence is that on the 21st day of February, 1914, the deceased and defendant became involved in a difficulty in which the defendant cut the deceased with a knife four times; that the deceased walked to his home, which was near by, and on the same day was sent to a hospital in Tulsa, where he had good treatment and greatly improved, and was removed in an automobile from the hospital to a hotel in Tulsa, and on March 4, 1914, suddenly died.
    The physician who treated said deceased and who made the post mortem examination, described the knife wounds upon the deceased, and testified that the said knife wounds were the cause of the death of the deceased, that he died from an embolus in the heart, which was caused by said knife wounds.
    The evidence is in irreconcilable conflict as to the facts surrounding the difficulty. On the part of the state the material evidence is that the deceased and defendant disagreed about a small tract of land, and on the day of the difficulty the deceased went to where the defendant was, which was near the home of the deceased, and they apparently engaged in an argument, a fight ensued, and the deceased knocked the defendant down and afterwards held him down, and then deceased got up and ran, and defendant ran after, caught up with him in about 40 or 50 yards, struck him in the back, and deceased fell backwards, and defendant stabbed him in the chest; that deceased at his home, and about 10 or. 15 minutes after the difficulty, said, in reply to a suggestion about taking his boots off, "that he did not want to die with his boots on; that he did- not think he was going to last long, ’ ’ and said:
    "I had better tell you how this happened. I went down to show Smith the papers that I had this land rented or leased. Smith struck at me, and I threw up my hand, and he caught me across the eye. I hit him with my fist and knocked him ■ down. I was over him, and he caught me around here on the left side. I started to run, and the next thing I knew I run quite a ways, and something hit me in the back and knocked me down and numbed me, Smith jumped on me, I says, ‘Smith let me go; I will give up;’ and Smith says, ‘I know you will give up when I get through with you.’ ”
    The only person who saw the difficulty between the defendant and the deceased and who testified in the ease as to how said difficulty occurred, other than witnesses who testified for the state, were the defendant and his son, who testified that the defendant went over to the place, to see about the work on the place, went to the drill first, and then north over to where the defendant had some cane hay, tore the fence down, and started home from there, and after he got up the hill the deceased came out of his house and came facing the defendant and said, "Hold on, Smith,” and the defendant kept going, and deceased caught up with him and said, "Stop, Smith, I want to settle this matter with you” — to which the defendant replied that he hadn’t any settlement to make. "If you have got any, just take it to the judge. You have run over me since I have been farming this place. ’ ’ And deceased replied “that he had a right to go where he pleased,” and defendant said “he did not mean that; he meant yon have turned your stock out and eat up what I raised every year;” that deceased said “he lied,” and struck at him with a wrench; that the defendant threw up his left hand, and deceased hit him over the thumb; defendant grabbed at the wrench, missed it, and deceased hit him over the head, and he was running backwards and fell down, and that when he was falling that he pulled out his knife, and when the deceased got on him, he went to sticking him, and that after deceased knocked him down he (deceased) tried to hold him down with his left knee, and struck him several times with the wrench; that when he was down on his knees deceased struck him on the left side of the head, shoved him backwards, and got on top of him; that defendant did not cut deceased until after deceased struck him; that deceased’s knees slipped, and he fell astride the defendant, and defendant then caught the wrench, and with both hands jerked it away from the deceased, and deceased got up and kicked him a time or two, and defendant got up and struck at deceased with his left hand, and defendant went one way and deceased the other way; that he did not chase deceased; that when he got up defendant took the wrench home with him, and that it was similar to the wrench shown now; that deceased had never indicated any ill will or ill nature towards him whatever. The defendant further testified that he had been in the penitentiary at Jefferson City two years but that he did not recollect now what for, and that at the time deceased had him down and was endeavoring to strike him with the wrench he had fears that if he did not cut deceased, that he (defendant) would receive great bodily harm.
    A witness for the defendant testified that he was a physician, a graduate of the P. & S. of Texas; that he had heard the evidence of the physicians who were witnesses for the state in the case and could not give it as his opinion that the death of Cook was due to the wounds in ;his lungs, and that the wounds produced th«í embolus that was found in the right side of deceased’s heart, and which the physician making the post mortem examination gave as the cause of death.
    The court, among other instructions, gave the following instruction, to which the defendant excepted:
    No. 18. “Although the jury should believe from the evidence the deceased began the difficulty by attacking the defendant and striking him on the head and body with an iron wrench, but further believed that thereafter, and before the fatal blow was struck, deceased had in good faith abandoned the difficulty and had made known the fact to defendant by fleeing from him, and that at the time said fatal blow was struck the defendant was in no danger, either real or apparent, of suffering death or great bodily harm at the hands of the deceased, then and in that event you cannot acquit the defendant upon the ground of self-defense.”
    The defendant sought a new trial upon the ground that the juror Wheat was prejudiced, and that the jury and the bailiff in charge of the jury were guilty of misconduct. The particular ground alleged as constituting disqualification of said juror was that he was prejudiced against the defendant, and had also expressed an opinion as to the guilt of the defendant prior to serving as a juror. Affidavits of two persons who were engaged in the barber business in the city of Tulsa, together with the oral testimony of such witnesses, was had in support of the motion, while in opposition thereto the juror Wheat testified positively that he had not expressed an opinion as to the guilt or innocence of the defendant prior to his service, and that he did not know anything of the facts prior to the trial. He also denied that he had any prejudice against the defendant personally which in any wise affected his verdict.
    The particular grounds alleged in the motion as constituting the misconduct of the jury and bailiff were that others than tbe jurors were in tbe jury room with tbe jury, and that members of tbe jury bad phoned from the jury room to parties outside of tbe courthouse. Tbe evidence on the bearing of tbe motion was that the son of one of tbe jurors and another young man were, prior to the final submission of tbe case, for from one-half to three-quarters of an hour, in tbe jury room, and that they were there by authority of the court and the consent of an attorney of the defendant, and that janitors were in the sleeping room of the jury, adjoining the jury room, for a short time, attending thereto, and that during said time said persons were in the jury room, and said janitors were in the sleeping room, not anything was said about the case, and that the phoning from the jury room had no reference whatever to the case.
    After hearing the evidence, both in support and in opposition to the motion, the court overruled the same, to which action of the court the defendant interposed an exception.
    G. C. Spillars, Frank Z. Curry, and Charlton & Farrell, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   ABMSTRONG, J.

(after stating the facts as above). While the evidence is in conflict as to the facts of the difficulty between the deceased and the defendant, and also as to whether or not the knife wounds inflicted by the defendant upon the deceased caused his death, and whether the defendant acted in self-defense, the determination of the facts was exclusively for the jury, and there being evidence — -though the evidence was in conflict — to reasonably support the verdict rendered, this court, as held by an unbroken line of its decisions, is precluded from disturbing it.

The eighteenth instruction of which the defendant complains correctly states the law, and is free from error.

Conceding that the deceased brought on the difficulty by striking the defendant with a wrench, if the deceased in good faith thereafter withdrew from the difficulty and fled from the defendant, and the defendant pursued, overtook, and inflicted upon the deceased the fatal knife wound, and, at the time said fatal wound was inflicted the defendant was in no danger, either real or apparent, of death or great bodily harm, at the hands of the deceased, he certainly could not successfully invoke the doctrine of self-defense. The law of self-defense is a rule of necessity, and can only be invoked in the justification of a homicide in order to prevent an actual or reasonably apparent infliction of death or great bodily harm upon the slayer, and the necessity must be imminent at the time of the killing and not prior thereto. Marshall v. State, 11 Okla. Cr. 52, 142 Pac. 1046.

If the deceased abandoned the difficulty in good faith and fled, and the defendant pursued, overtook, and inflicted upon him a fatal wound, the defendant became the aggressor, and could not successfully plead self-defense. Smith v. State, 14 Okla. Cr. 250, 174 Pae. 1107.

“Where the assailant retreats in good faith, and the assaulted'person pursues and kills him with a deadly weapon, the killing cannot be justified as in self-defense.” Gransden v. State, 12 Okla. Cr. 417, 158 Pac. 157.

In the case of Smith v. State, 5 Okla. Cr. 283, 114 Pac. 355, it is said:

“The mere fact that two parties attempted to impeach a juror does not by any means settle the question of credibility as between such parties and the juror. If it did, but few verdicts could be sustained, because in almost any case it would be possible to find two or more persons who would make affidavits impeaching a juror. In passing upon this very question, the Supreme Court of Texas, in the case of Gilleland v. State, 44 Tex. 357, said: ‘It is true that there are two affidavits in support of the motion and one in rebuttal, but we do not think that the decision of the question presented by the motion should necessarily depend upon the mere number of affidavits on one side over the other.’ The question of credibility was one to be determined by the trial court, and, in the absence of a showing that this discretion was abused, it cannot be reviewed here.”

The only remaining question presented by this appeal is upon the motion for new trial. Is Wheat shown to have been such a disqualified juror, or that others than the jurors being in the jury room, or phoning from the jury room, as shown by the evidence, to so prejudicially affect the defendant as to work a reversal of this case? It is certainly true that under the Constitution and laws of this state the defendant must be accorded a fair and impartial trial, and the impartiality of the jury goes to the very foundation thereof, but in order to prevail in a motion for a new trial on account of the prejudice of a juror serving on the jury in the trial of the case, it must not only be shown that the juror was prejudiced against the defendant, but it also must be made to appear from the whole case that the defendant suffered an injustice from the fact that the juror so served. There is evidence, though in conflict, sufficient to establish the guilt of the defendant beyond a reasonable doubt of the offense of which he was properly convicted, and we are unable to see that it appears from the whole record that the defendant was denied a fair and impartial trial by reason of Wheat having served upon his jury.

In the case of Horton v. State, 10 Okla. Cr. 294, 136 tac. 177, it is held:

"As a general rule, a verdict will not be set aside for reasons that would be sufficient to disqualify a juror on a challenge for cause, which existed before the juror was sworn, but which was unknown to the defendant until after conviction, unless it appears from the whole case that the defendant suffered injustice from the fact that the juror served in the case.”
“As a general rule, the finding of the trial court upon an issue of fact arising upon affidavits and evidence adduced on a motion for a new trial will not be disturbed, where the evidence reasonably tends to support such finding.”

In the case of Smith v. State, 5 Okla. Cr. 283, 114 Pac. 350, it is held :

“Where, in a motion for a new trial, an attempt is made to show that one of the jurors who sat in the case was prejudiced against the defendant, and affidavits are attached to the motion for a new trial supporting this charge, and the •state replies with affidavit from the juror denying such prejudice and controverting the statements made in the affidavits filed against him, this presents a question of fact to be determined by the trial court, and in the absence of a showing >of abuse of discretion in this matter the judge’s determination ■of this question of fact will not be disturbed by this court upon appeal. ’ ’

The evidence discloses that those temporarily in the jury room — other than the janitors — were there by authority of the court and the consent of the defendant and certainly the defendant cannot consistently urge as reversible error that which he consented to be done. Evidently the janitors, who were temporarily in the sleeping room of the jurors, could not, under the evidence, have in any way aided in causing the conviction of the defendant, or resulted in injury to him. While we do not approve of jurors while held in their room communicating with outside persons by phone, or with others than the jurors being in the jury room without the authority of the trial court and consent of the defendant, we are unable to see how, under the evidence in this ease, the phone conversation had resulted in such injustice to the defendant, and to be such a denial of a fair and impartial trial as to entitle the defendant to a reversal.

In Coats v. State, 101 Ark. 51, 141 S. W. 197, it was held:

“It was not misconduct for jurors to hold conversations with outside persons where nothing was said about the case.”

It has been uniformly held by this court that on matters of discretion the decision of the trial court will not be set aside unless there appears to have been a manifest abuse thereof. Spradlin v. State, 13 Okla. Cr. 376, 164 Pac. 990; Monagham v. State, 10 Okla. Cr. 89, 134 Pac. 77, 46 L. R. A. (N. S.) 1149; Bethel v. State, 8 Okla. Cr. 61, 126 Pac. 698; Perkins v. Territory, 10 Okla. 506, 63 Pac. 860.

The evidence in support of the motion and in opposition thereto was directly in conflict and it was peculiarly within the province of the trial court to determine who he would believe and who disbelieve. All the witnesses appeared in open court and testified, and it would be presumptuous upon this court to substitute its judgment on the weight and credit to be given to evidence where the same is conflicting and a less, opportunity is afforded to judge of the surrounding circumstances under which such evidence was adduced. We cannot say, therefore, that there was a manifest abuse of discretion upon the part of the trial court in overruling this motion such as should result in a reversal of this judgment of conviction.

We are of the opinion that the court did not abuse its discretion in overruling the motion for a new trial.

The judgment of the trial court is affirmed.

DOYLE, P. J., and MATSON, J., concur.


author: MATSON, J.

text:
    JOHN ARNER et al. v. STATE.
    No. A-3513.
    Opinion Filed Feb. 12, 1921.
    Rehearing Denied May 10, 1921.
    (197 Pac. 710.)
    (Syllabus.)
    1. Intoxicating Liquors — Personal Property Used — Effect of Statute. Section 3620, Revised Laws 1910, providing, “There shall be no property rights of any kind whatsoever in any liquors, vessels, appliances, fixtures, bars, furniture and implements, kept or used for the purpose of violating any provisions of this chapter” (prohibitory liquor laws), does not alter or change the inherent character of such articles as personal property.
    2. Same — Contraband Property. A consideration of the state’s prohibitory liqu'or laws discloses a legislative intent to provide that intoxicating liquors kept or used by a person for the purpose of violating said laws should be contraband property as between the state, its officers, and such persons.
    3. Robbery — Intoxicating Liquor as Subject-Matter of Robbery. Intoxicating liquor, possessing tlie inherent character of personal property, may be the subject-matter of robbery, irrespective of the purpose for which it is Kept or used.
    Appeal from District Court, Jefferson County; Jesse M. Hatchett, Assigned Judge.
    John Arner and Elbert Sparkman were convicted of conjoint robbery, and tbey appeal.
    Affirmed.
    Bridges & Yertrees, for plaintiffs in error.
    S. P. Preeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   MATSON, J.

This is an appeal from the district court of Jefferson county, wherein plaintiffs in error, John Arner and Elbert Sparkman, hereinafter designated defendants, were on the 18th day of September, 1918, adjudged guilty of the crime of conjoint robbery, and sentenced to serve a term of seven years each in the state penitentiary. Prom this judgment they have appealed to this court.

Several assignments of error are relied upon for a reversal of this judgment. The assignments that the court erred in overruling the motion for a new trial, in not sustaining the demurrer to the information, in not sustaining the motion of defendants for a directed verdict of not guilty, in refusing to give requested instruction No. 1, in giving instruction No. 8, and that the verdict is not supported by sufficient evidence, all relate to one general proposition of law, and are grouped together in the brief of counsel representing defendants. Under these assignments of error, it is contended that the crime of robbery may not be committed by tbe taking of whisky from a person at a time and place, and under such circumstances, as would render the person from whom the whisky was taken guilty of violating the prohibitory liquor laws, even though it be considered that all the elements essential to constitute the crime of robbery were present in the taking of the whisky.

The information jointly charged defendants and two others with having robbed one Osear Leming, in Jefferson county, of five cases of whisky, of which the said Leming was then possessed, the same being the personal property of said Leming, by force and violence, and by pointing a pistol and a Winchester rifle at the person of the said Oscar Leming.

The evidence disclosed that the said Leming was to deliver to some of these defendants the five eases of whisky for the sum and price of $65 per case, and that, by previous arrangement, the said Leming was to meet some of these defendants at the point where the robbery took place, and that these defendants conspired together to rob the said Leming of said whisky by means of force and violence, and putting him in fear, in the manner and form as alleged in the information. The evidence further disclosed that the said Leming had conveyed said whisky to the said point in violation of the prohibitory liquor laws of this state.

Section 3620, Revised Laws 1910, provides:

“There shall be no property rights of any kind whatsoever, in any liquor, vessels, appliances, fixtures, bars, furniture and implements kept or used for the purpose of violating any provisions of this chapter.”

Other provisions of the prohibitory liquor laws make it an offense to manufacture, sell, barter, or give away intoxicating liquors within this state, and also to convey the same from point to point within the state, and also to have the same in possession with intent to violate any of the provisions of the act. It is apparent, therefore, that the prosecuting witness was possessed of this intoxicating liquor in violation of the prohibitory liquor laws of this state.

■ The foregoing premises being conceded, counsel for these defendants strenuously contend that because the prosecuting witness under the statute had no property rights in the whisky of which he was admittedly robbed, that the crime of robbery was not committed; that if these defendants are guilty of any crime, it is of some other offense, such as pointing a weapon at another, which is a misdemeanor, and not of the felony of which they were convicted.

The argument advanced by counsel for defendants in support of these various assignments of error, and the contention made thereunder, is that, to constitute robbery there must be the taking of personal property from another by means of force or violence, and that the thing taken must be of some value. Therefore, it is contended that because the prosecuting witness had no property rights of any kind in the whisky of which he was possessed for the purpose of violating the prohibitory liquor laws, no property was taken from him, and therefore all the essential elements of the crime of robbery were not present in the taking of this whisky under the circumstances disclosed by the evidence.

¥e cannot agree with this contention. Section 3620, Revised Laws 1910, supra, does not have the effect of altering or changing the inherent character or nature of whisky as personal property. An entire consideration of the prohibitory liquor laws of this state discloses that the intent of the Legislature was to provide that intoxicating liquors possessed by a person for the purpose of violating any of the provisions of the prohibitory liquor laws should be contraband property as between the state, its officers, and such person; that a person unlawfully possessed of intoxicating liquors, etc., could not claim to have property rights in such articles in a proceeding brought by the state to confiscate them; not that the articles and things condemned, when unlawfully kept or used, were not property.

In the ease of Tom Thomas v. State, 13 Okla. Cr. 414, 164 Pac. 995, which was a conviction for the crime of murder committed by defendant while engaged in the perpetration of a whisky robbery, the contention was made that defendant was not guilty of the crime of murder committed in the perpetration of a robbery, because whisky used in violation of the law was not the subject of robbery. In passing upon this contention, this court, in the body of the opinion said:

“The contention that because whisky is contraband property in this state, as against the state and its officers, others are entitled to rob and murder * * * to obtain possession of it from one who is using it unlawfully, is wholly without merit. Neither robbery nor murder may be justified or excused on such a ground.”

In Mance v. State, 5 Ga. App. 229, 62 S. E. 1053, it is held:

“Intoxicating liquor may be the subject-matter of larceny, though it is not the subject-matter of lawful sale.”

Also, in Smith v. State, 187 Ind. 253, 118 N. E. 954, L. R. A. 1918D, 688, it is held:

“Although property is illegally held and used for gambling purposes, in violation of Burns’ Ann. St. § 2474, it is nevertheless a subject of larceny.”

In the body of the opinion it is said:

“Appellant is in error as to his second proposition that property held and used for gambling purposes is not the subject of larceny. The decisions are uniform in holding that such property is the subject of larceny, as will be seen by reference to 25 Cvc. 13, note 20. The text, which is supported by the cases cited in the note, announces the rule generally that:
“ ‘The fact that property is illegally held or used is immaterial on the question of whether it is a subject of larceny.’ One of the leading cases on this subject is Commonwealth v. Rourke, 10 Cush. (Mass.) 397, 399. In that ease it was said: ‘ The law punishes larceny because it is larceny; and therefore one may be convicted of theft, though he do but steal his own property from himself or his bailee. 7 H. YI. 43a; 3 Co. Inst. 110. And the law punishes the larceny of property, * * * because of its own inherent legal rights as property; and therefore even he who larcenously takes the stolen object from a thief whose hands have but just closed upon it may himself be convicted therefor in spite of the criminality of the possession of his immediate predecessor in crime. Of the alternative moral and social evils, which is the greater, to deprive property unlawfully acquired of all protection as such, and thus to discourage unlawful acquisition, but encourage larceny, or to punish, and so discourage larceny, though at the possible risk of thus omitting so far forth to discourage unlawful acquisition? The balance of public policy, if we thus attempt to estimate the relative weight of alternative evils, requires, it seems to us,'that the larceny should be punished.’
“It has been held that larceny of gaming checks can be committed, although gaming is illegel (Bales v. State, 3 W. Va. 685), and that it is no defense to an indictment for stealing intoxicating liquors that the liquors stolen were kept for sale in violation of law (State v. May, 20 Iowa, 305; State v. Sego, 161 Iowa, 71, 140 N. W. 802; August v. State, 11 Ga. App. 798, 76 S. E. 164).
“In Osborne v. State, 115 Tenn. 717, 719, 92 S. W. 853, 5 Ann. Cas. 797, it is held to be ‘well settled that a chattel kept for an unlawful purpose, such as intoxicating liquors kept for sale in violation of law, or gambling paraphernalia, the possession of which is prohibited, may be the subject of larceny.’ See, also, People v. Ward, 134 Cal, 301, 309, 66 Pac. 372; Commonwealth v. Cooper, 130 Mass. 285; Fears v. State, 102 Ga. 274, 280, 29 S. E. 463; Averill v. Chadwick, 153 Mass. 171, 26 N. E. 441.”

The conclusion is reached, therefore, that the pertinent inquiry is whether or not the chattel or thing taken is personal property, and not whether the possessor from whom it was taken was holding the same in violation of the laws of this state.

Independent of the question of whether Leming was unlawfully possessed of the whisky, the whisky itself had all the characteristics of personal property. It was personal property, and as such was the subject of larceny and of robbery, whether possessed lawfully or unlawfully, and this is true although the state, through its lawfully constituted officers, could seize (and destroy the same) from one unlawfully possessing it.

That said property was of some value is clearly disclosed by the evidence. In fact, no contention is made that the whisky taken was without value. Counsel rely solely, to sustain their contention, upon the proposition that the prosecuting witness had no property rights in it.

It is not the policy of the law to encourage culpable defenses to criminal actions. It is the duty of this court to so construe the criminal laws of this state as to effectuate their purposes and give force and effect to the evident legislative intent. It is the business of the state, through its duly constituted peace officers to bring such action as the law prescribes against contraband property and its users, and it is not the privilege of highwaymen to hold up at the point of a gun the possessors of contraband property and take it away from them by force, nor did the Legislature so intend by merely providing that such possessor should have no property rights in the property when unlawfully kept. Ample provision of law is made for the confiscation and taking of such contraband personal property, and it must be taken in the manner prescribed.

The contention of counsel for defendants confounds matters necessary to be distinguished. The effect of their contention is to urge the right of the state to extinguish property rights in contraband things, such as whisky, as a defense to criminal conduct resorted to by them to obtain possession of the contraband property, with intent to make the same unlawful use of it against the state which they assert as a defense to its talcing. The fallacy of this contention is apparent — a lawful right of the sovereign people is urged to sustain the unlawful conduct of the individual. The right of the state to seize and confiscate intoxicating liquor, when unlawfully possessed, through proper court action, does not include the right of the individual to confiscate such property at the point of a gun.

The alleged error of the trial court in refusing to give a requested instruction is without merit. An examination of the instructions given discloses that the substance of the matter contained in the requested instruction was covered in the general charge. The following instruction was given, over the exception of defendants:

“The fact that the property taken was whisky, and was unlawfully in the possession of Oscar Leming, and was being transported by him in violation of the law of this state, does not make the act of robbery, if it was committed, any less a crime.”

It necessarily follows from that heretofore stated to be the law of this case that the giving of the foregoing instruction was not error.

For reasons stated, the judgment is affirmed.

DOYLE, P. J., and BESSEY, J., concur.