author: J ONES, J.

text:
    VERNON STACEY v. STATE.
    No. A-10274.
    Jan. 31, 1945.
    (155 P. 2d 736.)

      Champion & Fischl, of Ardmore, for plaintiff in error.
    Rand ell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen. for defendant in error.
   J ONES, J.

This is an appeal from a conviction sustained in the district court of Carter county, wherein the defendant, Vernon Stacey, was sentenced to serve a term of fifteen years imprisonment in the State Penitentiary for the crime of manslaughter in the first degree.

No question as to the sufficiency of the evidence having been raised, it is not necessary to give an extensive review of the evidence. The defendant shot and killed the deceased, YV. A. Hull, at the Trolley Tavern, near the city limits of Ardmore, early in the morning of October 5, 194.1. The deceased and three or four other men, who lived near Marietta, had gone to Ardmore on Saturday evening, October 4, 1941. They were drinking. Early in the evening, they went out to the Trolley Tavern and spent the night there and in a filling station nearby playing poker and drinking. The defendant went to the tavern before midnight and played in the poker game until it broke up about 5 a. m. The deceased was in a rowdy mood and had a scuffle with a stranger who came to where the poker game was in progress about 2 a. m. About daylight, the deceased and defendant had an argument over a 50-cent piece which the defendant claimed the deceased had jerked from his hand. The argument started in the Trolley Tavern, but, at the command of the tavern keeper, the parties went outside of the tavern, where the argument continued. Shortly thereafter, the defendant re-entered the tavern, and there was a dispute in the evidence as to whether he was pursued by the deceased. Defendant stated that he was pursued by the deceased and ran around behind the counter looking for a gun or something to protect himself. He opened a drawer near the cash register, seized a 45-caliber revolver, snapped it once, and then shot the deceased in the head, killing him almost instantly. The deceased did not have any weapon.

Testimony by the defendant’s witnesses showed that the deceased was of a quarrelsome disposition. He was a smaller man, however, than defendant. The defendant had previously been convicted of many crimes, including robbery with firearms, grand larceny, burglary, and was convicted once in the federal court for a violation of the -prohibition laws.

It is first contended that the court erred in overruling defendant’s motion for a continuance. This motion is based upon the grounds that the defendant did not have time to prepare for trial and the absence of material witnesses.

- The crime occurred on October 5th, the case was set for trial on November 6th, which was about three weeks after the information was filed against the defendant in the district court. The motion contained an allegation that there were witnesses available in Murray county and other places whose names were unknown to the defendant. That defendant’s counsel had tried to locate them, but that he had been busy in the state and federal courts and that weather conditions had been bad and he had been unable to find the men. Affidavits were attached to the motion in which it is stated that, if the witnesses were procured, they would testify concerning an altercation had by the deceased with a man in the filling station shortly before the killing occurred, and that the witnesses in Murray county would testify that the deceased, while under the influence of intoxicating liquor, was a dangerous man.

When this motion was presented, the county attorney offered to admit that the deceased had the altercation with o man during the night at the filling station, and further offered to admit that, if the witnesses were procured, they would testify to the facts as set out in defendant’s motion.

As herein above pointed ont, in the summation of the evidence, the defendant made a showing by several witnesses that the deceased liad a bad reputation for being quarrelsome and fighting while under the influence of intoxicating liquor. The testimony of the other witnesses named in the motion, therefore, who would testify to these facts would merely have been cumulative. The state did not even make any attempt to refute this contention of defendant as to the deceased’s reputation.

From the allegations of the motion, the trial court could only conclude that the existence of witnesses such as claimed by the defendant was speculative, their names were unknown, and there was nothing by which the court could determine any probability of their presence being secured if the case were continued to another term. The motion did not comply with the rules of law established by this court pertaining to continuances on the ground of the absence of material witnesses. Jackson v. State, 72 Okla. Cr. 228, 114 P. 2d 953; Lane v. State, 65 Okla. Cr. 192, 84 P. 2d 807.

An application for a continuance on account of the absence of material witnesses is 'addressed to the sound discretion of the trial court, and unless an abuse of discretion is shown, the judgment will not be reversed on appeal. Alexander v. State, 68 Okla. Cr. 219, 90 P. 2d 949; Gorum v. State, 67 Okla. Cr. 75, 92 P. 2d 1986; Phillips v. State, 71 Okla. Cr. 287, 111 P. 2d 203, 204.

It is next contended that the defendant did not have a fair and impartial trial because of misconduct on the part of the county attorney and the trial court. At the commencement of the trial, counsel for defendant called off the names of the witnesses subpoenaed by him to see whether they Avere present. When the name of the witness Ted Dickson was read, the county attorney stated: “He said lie thought he would be sick.” It was disputed as to whether the county attorney’s statement was sufficiently loud for the jury to hear. The trial court in ruling upon this stated that he did not think the jury heard the remark. An attachment was issued for this witness and he was brought into court and testified. During his testimony, he stated that he actually was sick and would not have appeared ha.d he not been brought into court under the attachment issued by the trial judge.

It is, also, contended that the county attorney erred in his cross-examination of the defendant concerning other convictions. We recently decided the case of Little v. State, 79 Okla. Cr. 79, 154 P. 2d 772, in which this precise question was discussed. Incidentally, it involved the same attorneys who appear in the instant case. The interrogation in the Little Case was at greater length than herein. In the instant case, the county attorney sought only to show the name of the crime in which the conviction has been sustained. Counsel for defendant contends that he may ask the accused whether he has been convicted of a felony and that in case of an affirmative answer, the prosecution has no right to further cross-examine concerning the nature of the conviction.

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

“The conviction, the name of the court in which the conviction occurred, the nature of the crime, and the date are all pertinent factors but the details of the crime involve extraneous matters concerning which the prosecution should not inquire... ”

We have given careful consideration to the contention that the trial judge by his conduct showed bias and prejudice against the defendant and so dominated the proceedings that the defendant was denied a fair trial. In the brief of defendant are cited a large number of instances where the trial court interrupted the examination' of witnesses with such statements as:

“Don’t argue with the witnesses.”
“Don’t ask him that, it is not competent.”
“Quit arguing with the witness.”
“I’ll not let him answer that question in that form.”
“Quit leading the witness.”
“You are not answering the question.”
“I don’t think that is material.”
“Listen to the question and keep your mouth closed until you know what the question is.”

It is insisted that these statements and others of a similar nature were made throughout the trial without any objections by either counsel being interposed and that the tone of voice and facial expression of the judge showed bias and prejudice against the accused.

In the many cases that are appealed to this court, we find a great variance between methods used by various trial judges. We know of no trial judge who intentionally is unfair to one accused of crime. Occasionally, however, some of the records will disclose that the trial court becomes so impressed with the guilt of the accused that he makes remarks which have the effect of conveying to the jury the feeling possessed by the court. Some of the courts are too lenient in the manner in which they control the trial of criminal cases and allow counsel for defendant to dominate the proceedings. Others, particularly those who have had experience in the office of prosecutor, and apparently wholly without any intention of being unfair, do so restrict defendant and his counsel in the presentation of their evidence that the defendant is denied a fair hearing. On the other hand, we often find counsel for defendant saying things in' the presence of the jury or making efforts to secure the admission of evidence which if done on the part of the county attorney would have been gross error.

Even though there is an excess of interference on the part of the trial court in the conduct of the trial, still the case ought not to be reversed on account of such interference, unless this court can say, after a review of the whole record, that the action of the trial court résulted in a miscarriage of justice and was so grossly improper ihat it denied the accused a fair trial.

An examination of the record herein shows that the trial judge ivas very firm in exercising complete control of the proceedings. He was harsh with both counsel for the state and counsel for defendant when it came to interrupting them in their examination of the witnesses. Some of the statements made by the court were not necessary to the maintenance of an orderly trial, but we cannot conclude, after a consideration of the entire record, that the trial court by his actions showed prejudice against the accused. Certainly, the penalty imposed by the jury did not indicate that they had allowed passion or prejudice to affect their verdict as there is no justification, even under the testimony of the accused, for the taking of the life of the deceased. Irrespective of the bad reputation possessed by the deceased, there had been nothing in his actions during that night, nor on any other occasion mentioned by character witnesses, to show that he ever did more than tó fight with his fists. He gave no indication of doing more than this to the defendant, even under defendant’s evidence. Under the evidence of the state’s witnesses, the deceased was standing still and making no overt action when he was shot. The accused did not have the right to take the life of the deceased, unless it was apparent that such action was necessary in order to protect his own life or to protect himself from serious bodily harm.

Lastly, it is contended that the court erred in refusing to allow the defendant to introduce the minutes of the district court of Love county, to show a conviction sustained by the deceased in that county. Counsel for the defendant merely mentioned this proposition in their brief without citing any authorities or without making any argument to sustain the admission of such evidence. The trial court allowed the introduction of evidence of the bad reputation of the deceased for being a quarrelsome and fighting man, but we can perceive of no rule of law which would justify the admission of the evidence of the minutes of a clerk showing a conviction against the deceased. Unless such issue is raised in some manner in connection with some other question in th'e trial, and a proper predicate laid for the admission, it would not have been admissible. Even then, it is apparent that the formal judgment signed by the judge would be the best evidence of the conviction instead of the minutes of the clerk.

We have found no errors other than such minor irregularities that are often attendant upon a hard-fought and closely contested trial. They are none of such importance that this court would feel justified in reversing this cause for a new trial. The judgment of the district court of Carter county is accordingly affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., not participating.


source: Caselaw Access Project

author: BAREFOOT, P. J.

license: Public Domain

text:
    LLOYD WEHR v. STATE.
    No. A-10360.
    Jan. 31, 1945.
    (155 P. 2d 731.)

      Eollie D. Thedford, Laynie Harrod, and Frank Wilton Jones, all of Oklahoma City, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., E. J. Broaddus, Asst. Atty. Gen., and Hugh J. Adams, Co. Atty.,'of Guthrie, for defendant in error.
   BAREFOOT, P. J.

Defendant, Lloyd Wehr, was charged in the district court of Logan county with the crime of sending a threatening letter with the intent to extort money, was tried, convicted and sentenced by the court to serve a term of four years in the State Penitentiary, and has appealed.

The assignments of error relied upon for reversal of this case are:

“1. The verdict is not sustained by sufficient evidence.
“2. That the court erred in overruling the motion of the defendant for a directed verdict.
“3. Error of the court in admitting evidence, violative of defendant’s constitutional rights.”

The first two assignments may be considered together, and this Aiecessitates a short review of the testimony.

The statute under Avhich defendant is charged is Tit. 21 O. S. 1941 § 1486, which reads:

“Every person Avbo, Avith intent to extort any money or other property from another, sends to any person- any letter or other Avriting, Avhether subscribed or not, expressiug or implying, or adapted to imply, any threat, such as is specified in the second section of this article, is punishable in the same manner as if such money or property were actually obtained by means of such threat.”

Chris Bohn, who may be designated as the prosecuting witness, resided at his home six miles northwest of Orlando, in Logan county. On the night of December 22,1942, a letter was placed between the front door and the screen door at his home, and found by him on the morning of December 23, 1942. The letter was as follows:

(skull and cross bones)
“gaNG-
(skull and cross bones)
(8)
Beware Mr. Bone
“Your little girls life will be in great danger if you don’t pay? Dont spoil a happy Christmas?? Better pay than always be sorry? Have $650.00 cash — by Tuesday night Dec. 23 — in 5, 10, 20 and 50 dollar bills in a paper sack — behind east toilet at Rock Church on north side (over) of Orlando. You and your familys lives will be in danger. If you tell anyone about this. (Skull and cross bones) Dont risk your lives? Dont try to betray the gang and no harm will ewer come (skull and cross bones) Wrote in blood of last victim. Protect loved ones.
“Gang of Missouri (8)
(Skull and cross bones)
XX XXXX XX
“Warning
“Before 12 o’clock
“Tuesday night.”

This letter ivas written, or printed, Avith mereurochrome. It was in an envelope, written on both sides with pencil:

“Mr. Christ Bone” “Mr. Christ Bone.”

The originals and photostatic copies are attached to the record.

Upon finding this letter, Mr. Bohn consulted with the mayor of Orlando. They took the letter to Guthrie, the county seat of Logan county, and the above facts were presented to Clayton Harlan, sheriff of Logan county.

Arrangements were made for laying a trap to catch the party who had written the letter. In pursuance of this plan, Mr. Harlan, and two of his deputies, Rex Harman and Cliff Hatfield, went to Orlando, arriving there between 9 and 10 o’clock in the evening of December 23d. They contacted Emil Hinke, the mayor of Orlando, and a Mr. Lafon, and completed their plans.

The “rock church” mentioned in the note faced the south, on the north side of the town of Orlando. There were two toilets behind the church, which proved to be 27' 5" apart, and another toilet in the rear of the parsonage, 93' 107 east of the east toilet behind the church. These three toilets were in a straight line, east and west, and the note directed the “sack” to be placed behind the one in the center, which was the east one serving the church.

The sheriff concealed himself in the toilet back of the parsonage, and Mr. I-linke, Cliff Hatfield, and Rex Harman went in the church building. About 10 o’clock Mr. Bohn, the prosecuting witness, as arranged, deposited a paper sack behind the center toilet, as directed in the note, and immediately left the premises.

After a two hour wait, and just about 12 o’clock midnight, the sheriff stuck his head out the door of the' toilet, and saw someone approaching from the south, and who turned west, toward the toilet in which he was concealed. He pulled the door up and watched through a crack. When the party was within about 18 inches, the sheriff tried to grab him. The party hit the sheriff in the stomach with a rock, and ran. The sheriff called to him to “halt” and then fired three shots, but the party escaped.

At the trial, Sheriff Harlan testified positively that the party -whom he attempted to apprehend was the. defendant; that he knew defendant; that he had been confined in his jail previously; that at one time he was within six inches of defendant; positively identified him, and stated that he could not be mistaken about the identification.

On the following morning, December 24th, the sheriff followed the tracks made by the party who ran from the toilets. They went north about two blocks into a field, and from there east about two blocks, up an alley, and to the north end. of the Ryerson jewelry store, in Orlando.

The sheriff obtained a bottle of mercurockrome at the Ryerson jewelry store, and certain testimony, which is commonly known as “hearsay testimony,” ivas admitted. This testimony was that Mr. Ryerson told the sheriff that the defendant was at the jewelry store about ten minutes before 12 o’clock on the night of December 23, 1942, and returned there “a little after midnight”, and that the tracks found in the rear of the jewelry store were the tracks of the defendant.

The reason for the admission of the “hearsay testimony,” as stated by the court, was that the defendant had opened up the matter. It may be here said that defendant does not contend in his brief that this was error, and an examination of the record reveals that the witness Harlan was questioned on cross-examination with reference to the conversation between him and Mr. Ryerson, and that the questions asked by the county attorney were after tbe matter had been opened up by counsel for the defendant. Valentine v. State, 16 Okla. Cr. 76, 194 P. 254; Adams v. State, 62 Okla. Cr. 167, 70 P. 2d 821; Janeway v. State, 62 Okla. Cr. 264, 71 P. 2d 130.

The sheriff made no attempt to fit the shoes worn by defendant at the time of his arrest on December 24, 1342, to the tracks found. His reason for not doing so was that defendant stated to him that he had changed his shoes. This the defendant denied. The sheriff made no attempt to find fingerprints on the letter, because it had been in the hands of a number of persons before reaching. his office.

The state introduced in evidence samples of writing and printing done by the defendant at the request of the county attorney, after his arrest. These originals are attached to the case-made for inspection by the court.

The state also offered three expert witnesses, and each of them testified that in his opinion the person who wrote the letter, and the person who wrote the exhibits above mentioned, was one and the same person.

The main defense of the defendant was that he did not write and did not send the letter, and also that of an . alibi.

The defendant presented a strong alibi, and that issue was submitted to the jury under proper instructions. His alibi concerned his whereabouts on the nights of December 22 and 23, 1942. He testified, and was corroborated by a number of Avitnesses, that on the night of December 22d he attended a party at the home of Mr. and Mrs. Chas. F. Jerome, four miles north and three miles west of Orlando. They all testified that they made candy, and played bridge, and to the fact that one of the boys at the party had been before the draft board on that day with reference to his induction into the army. They all testified that the defendant left the party at 1:30 in the morning, in company with a young lady, and he and the young lady testified that he took her directly home. He testified that after taking her home, they sat in his car in the yard for a while, and he then went to his home one and a half miles northwest of Orlando, arriving there about 2:30, and stayed the remainder of the night; and testified that he did not go to the Bohn home, and did not place the letter there.

He testified that his sister, Cleo Stagner, and the young lady be was with the night before, Lucile Nida, having purchased the candy for the Christmas tree treats for the church, returned to his home in the late afternoon of December 23d, and that they stayed there until time to go to the church. That he and Lucile Nida left his home early to go to the church to take the. presents for the children and the Christmas tree treats, and to help decorate the tree. They did not leave the church, attended the services, and he and the same young lady left the church about 10:30 in the evening in his automobile. They drove around the streets of Orlando a short time, and then left town, going toward Perry, defendant said for the purpose of getting some sandwiches. They had an argument about going when .they were three or four miles out of town, and decided not to go, turned around and went to the home of his sister, Cleo Stagner, six miles west and one-half mile south of Orlando, with whom Miss Nida was to spend the night. As they returned to town, after starting to Perry, defendant testified that he was having trouble with the lights on his car. He drove up to the Ryerson jewelry store, got out of the car and went in and got a flashlight, fixed his car lights, returned the flashlight, and drove to tlie home of his sister. He testified that it was “not over ten or fifteen minutes at the most” from the time he drove up to the jewelry store until the time he left, and that they arrived at the home of his sister before 11:30. His sister’s' little boy was playing with the toys he had received at the Christmas tree. His sister mentioned that it was 11:30 and time for the baby to be in bed, and she and the baby retired. He and the young lady visited and played the radio until about 1:30, when she retired to the room with his sister, and he went to bed in the kitchen. Both his sister and the young lady, Lucile Nida, corroborated this testimony, and all testified that he did not leave the sister’s home that night after arriving before 11:30, and that he was there the next morning. The mother of defendant Avent to the home of Cleo Stagner during the morning and told them that the sheriff had been at his home looking for him, and the defendant Avent home and remained there until the sheriff arrived in the afternoon, December 24, 1942, arrested him and took him to Guthrie.

The defendant offered the evidence of D. B. Patterson, of Oklahoma City, a handwriting expert. He testified to an examination of the letter and the exhibits offered by the state, and to admitted Avritings and printings of the defendant. He testified that in his opinion the defendant did not Avrite the letter in question. This witness Avent into detail in explaining hoAV he arrived at his deductions, but it is unnecessary to here review the same.

Defendant introduced a number of substantial character Avitnesses who had knoAvn him for many years, and avLo testified to his good character and reputation. These Avitnesses, on cross-examination, all stated that they had heard of defendant pleading guilty to a charge of burglary when he Avas 19 years of age, and of his being sentenced to serve a term of three years in the State Reformatory at Granite; and to his being tried after that on a petit larceny charge at Perry, and being acquitted. The evidence disclosed that he was paroled from Granite after serving eleven months of his sentence.

The contention of defendant that the evidence is insufficient to sustain the judgment and sentence is based largely upon the theory that the identification of the defendant by the sheriff is unreasonable, under the circumstances surrounding such identification; and that the judgment is founded upon circumstantial evidence.

With reference to the contention that the judgment is based upon circumstantial evidence, it may be said that the identification of the defendant by the sheriff was direct and positive testimony, and was not circumstantial. The contention with reference to the identification of the defendant is clearly based upon the question of the weight of the testimony. It has often been held by this court that we will not pass upon the weight of the testimony, or the credibility of the witnesses. The identification of defendant by the sheriff was positive, and he gave his reasons for being able to identify him. It might be that the sheriff could have and should have procured other evidence to corroborate his testimony, but this only goes to the weight to be attached to his testimony, which, as above stated, was a question Cor the jury. The fact that he made no attempt to fit the shoes of defendant in the tracks he found, and that he did not examine the letter for fingerprints, was for the proper consideration of the jury, together with all other facts and circumstances in the case.

As above stated, the issue of alibi was fully and fairly presented to the jury. The defendant by his own testimony admits that he wras in close proximity to the scene of the crime at the time the letter was delivered, and also at the time of the attempt to get the money supposed to be deposited in the sack, according to the terms of the letter received by the prosecuting witness. In the recent case of Orrell v. State, 79 Okla. Cr. 300 154 P. 2d 779, this court had occasion to refer to an alibi where the evidence revealed the presence of the defendant in close proximity to the scene of the crime at the time it was committed. See, also, Gregg v. State, 69 Okla. Cr. 103, 101 P. 2d 289, and Boydston v. State, 79 Okla. Cr. 172, 152 P. 2d 701.

The contention of defendant that evidence was admitted which violated his constitutional rights is based upon the fact that defendant, after refusing to make a statement to the county attorney, was asked to write and print certain words which appeared in the letter under consideration. The defendant complied with this request, and his own evidence is the best answer to this contention. ITe testified:

“A. Well, they wanted me to come up and make a statement, and I told them I didn’t know no statement to make, so they took me up any way and they started asking me some questions, first one and then another, and kept on and they wanted me to write and I set down and started to write, and they give me a pen and paper and tried to tell me how to write and what slant to write. Q. Who did that? A. The county attorney and sheriff. Q. Mr. Hugh Adams and the sheriff, Harlan? A. Yes, sir. Q. Go ahead. A. I thought and I kinda hesitated and they would try to get me to write faster and Mr. Adams would leave the office and go in the next room and come back and say something to write and if I wouldn’t write it right then, he was in a hurry, and the sheriff was standing in front of the desk, and at the same time he was trying to tell me how to write, Mr. Adams was trying to do the spelling and everything and I just plumb refused to write. Q. And due to their haggling and third degreeing, you finally refused to write? A. Yes, sir. I didn’t have to write. I was writing voluntarily. They wasn’t making me do anything.”

And on cross-examination:

“Q. Tell me what they did do. A. They were trying to show me how to write and how to hold everything to write with, took a mercurochrome stopper out and told me how to hold it, and when I would hesitate they would spell for me.”

It will thus be seen that the writing by defendant was purely voluntary. He was instructed, by the county attorney that anything he wrote or said might be used against him, and that he was in no way offered immunity or reward. Under this statement, it is clear that the constitutional rights of the defendant were not violated in this case. Fry v. State, 78 Okla. Cr. 299, 147 P. 2d 803, and cases therein cited.

We have carefully considered the record in this case, and have come to the conclusion that the defendant had a fair and impartial trial, and was convicted by a jury of his peers in his home county. He presented a strong defense, and if believed by the jury they would have acquitted him. An appellate court should not set aside the verdict of the jury where there is sufficient evidence to sustain the same. The weight of the evidence and the credibility of the witnesses are clearly questions for the jury. If the defendant was guilty as found by the jury, the punishment assessed is not excessive, taking into consideration the crime committed.

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

JONES, J., concurs. DOYLE, J., not participating.


author: JONES, J.

text:
    JAMES W. SEARS v. STATE.
    No. A-10347.
    Feb. 7, 1945.
    (156 P. 2d 145.)

      Loys Criswell and David Tant, both of Oklahoma City, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and E. J. Broaddus, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The. defendant, James W. Sears, was charged with one Gaston Gordon in the district court of Jackson county with the crime of burglary; after having-been three times convicted of a felony, a severance was granted; the defendant was tried, convicted, and sentenced to serve five years in the State Penitentiary, and has appealed.

J. M. Carter owmed and operated a drugstore and post office in the town of Martha. On the night of October 6, 1941, the front doors to said building were pried open and several articles of personal property, including a various assortment of cigarettes and tobaccos, one bottle of Luminal tablets, and two 37 cent books of postage stamps, were stolen. Also, a small safe was taken from the building and placed on two posts about eight feet in length. The roads were muddy and the ground was soft from recent rains. There were tracks discernible where the posts had been attached to the rear of an automobile and the safe dragged about a quarter of mile from the store where one of the posts had broken causing the safe to drop. The safe had been opened at that place and it was there found the following morning. The officers of Jackson county were notified and some of them came to Martha and made an investigation early in the morning while the tracks were still fresh and the imprint plainly discernible. After the car which had dragged the safe had disengaged the posts and left the safe, it had been driven on down the road half a mile where it skidded into a ditch and became stuck.

A fanner living near where the car was stuck testified that a man fitting the description of the defendant came to his house about 3 a. in., and requested his help in getting his car out of the ditch. This farmer testified that in his belief the man who came to his house was the defendant Sears, although he refused to positively identify him. This farmer refused to assist in getting the car from the ditch, but suggested that they see his neighbor who lived about one-quarter of a mile north of him.

This neighbor, Guy Cearley, testified that about 3:30 a. m. a man awakened him at his home and asked to be pulled out of a mudhole. Cearley took his tractor and, with the man riding with him and directing him, went over a quarter of a mile to where a car was stuck on the side of a road. Cearley testified that there were two men at the car. That they produced a tow chain. That he pulled the car from the mudhole with his tractor. That the man who came to his house was a tall, slender man about defendant’s size, height and all, and to the best of his judgment, was the defendant. That the car was an old Chevrolet.

The sheriff of Jackson county and his deputies testified to making plaster of paris casts of certain imprints left by the automobile tires driven by the parties who had committed the burglary. After getting a description of the men from the farmers near where the car was stuck, officers in adjoining counties were notified and the sheriff of Beckham county advised them that he knew of two parties who fitted the description. These men were the defendants, James W. Sears and Gaston Gordon. Gordon owned an old model Chevrolet sedan. When the officers arrested him, the car was muddy with black mud, although the soil in Beckham county at Gordon’s place was red, while the soil at Martha, where the crime was committed, was a black, sticky loam. A log chain and a wooden bar which was commonly known as a truck standard were taken by the officers from the car. This chain and truck standard, together with the posts which had been used to haul the safe, were identified by George Hamilton as his property which was stolen on the night of the burglary from his premises adjacent to the Carter store building.

In a search of the defendant Sears’ home, the officers seized a bottle of Luminal tablets, 6 packages of Lucky Strike cigarettes, 1 package of Camel cigarettes, 1 package of Sensation cigarettes, 1 package of Top tobacco, 1 package of Bugler tobacco, 1 thirty-seven cent book of postage stamps, and a hypodermic syringe and needle.

At the trial, the owner of the drugstore testified that in his best judgment these cigarettes and other articles were some of those taken from his store. He related that the off-brand cigarettes had been in his store for a long time and had the old three-cent stamp on them, while the more popular brands of cigarettes had not been in his store so long and had the five-cent stamp which was required after the passage of a new cigarette tax act in the spring of 1941. The bottle of Luminal tablets had been in his store for over four years. The cap on the bottle was faded and showed its age. The owner of the store refused to say positively that the various articles taken from the defendant’s home were those stolen from his building, but he did relate certain circumstances connected with their appearances which caused him to state that in his opinion they were the articles taken from his building. '

On the following day, tlxe officers went back to the home of the defendant and on the back porch found defexxdant’s khaki clothing soaking in a water bucket. The trousers were muddy up to the knees with black mud like that from the place where the car was stuck. They also found on the porch a pair of defendant’s shoes covered with the saxne kind of black mud. The shoes were takexx to where tlxe car had been stxxck in the mud and fit perfectly in the tracks there.

One of the tires on the Gordon automobile was a new tire axxd the other three tires were well worn. The new tire was rexxxoved by the officers and introduced in evidence at the trial. Testimony showed that the tread made by the new tire was identical with the plaster of paris imprint taken by the officers at the place where the car had been stuck in the xxxud.

F. K. Doughty testified that while he was at a filling station in Martha, about 8:30 p. xxx., the night of the burglary, an old model car with axx out-of-county license tag stopped at the filling station and was serviced. That the car was there for several minxxtes and was a gray car and becaxxse of its apparent age seemed pecxiliar to him. He later saw the same car parked outside of the jail in Altus. (This car at the jail was admittedly the Gordon car.) Doughty further testified that Gaston Gordon was driving the car and the defendant was sitting on the front seat with Gordon. He was positive in his identification.

Joe Flanagan testified that the defendant Sears and Gaston Gordon came into his cafe in the town of Sayre together about 10 or 11 o’clock a. m., preceding the commission of the burglary that night, went to a booth and sat down together.

The defense was in the nature of an alibi. The defendant produced two ladies who swore they had knoAvn the defendant for many years. That on the night of October 6, about 9:30 p. m., they became stuck in the mud near defendant’s home and the defendant came to their rescue and assisted them in getting out of the mud-hole. That they then went to defendant’s home and stayed all night Avith defendant and his wife. That they sat and talked until 1 or 1:30 before going to bed. That the defendant did not leave his home at all that night.

Some other neighbors testified that Mrs. Lowrence, a neighbor of Sears, had died in September, 1941. That prior to her death, the defendant Sears had sat up with her and at the direction of the doctor had given her Luminal tablets to ease her pain. The husband of the deceased woman testified that after her death, he gave the bottle of Luminal tablets to the defendant.

Matt Ellison testified that he ran a country store near the defendant’s home. That he was constantly selling the defendant cigarettes and tobacco, including many cigarettes of what is commonly known as off-brand, such as Sensation and Avalon cigarettes.

It was stipulated that the defendant had sustained the former convictions for felonies as alleged in the information. In fact, it Avas brought out in cross-examination of defendant that he had sustained four prior convictions instead of the three alleged in the information. These prior conAdctions, however, were for the violation of the narcotics laAV and involve the sale and possession of narcotics.

It is first contended that the court erred in admitting over the objection of the defendant the property seized at defendant’s home. In this connection, the defendant presents two propositions. The first is that the search was made on a whisky search warrant and that 'the officers ■were not authorized to seize any articles other than whisky; and, secondly, the defendant contended that the right incidental to a lawful arrest to search the premises and immediate surroundings where the arrest is made does not extend to the search of a dwelling where the arrest is not made therein, and the commission of the crime for which the arrest is made is not connected therewith.

The presumption is in favor of the regularity of all proceedings, and where the defendant raises the question of the illegality of the search, the burden is upon him to introduce evidence to sustain his motion. Staley v. State, 73 Okla. Cr. 335, 121 P. 2d 324; Watson v. State, 73 Okla. Cr. 58, 117 P. 2d 808; Holland v. State, 58 Okla. Cr. 404, 54 P. 2d 216.

When the objection to the admissibility in evidence of certain exhibits first arose, it was in connection with some articles taken from the car of the codefendant, Gaston Gordon. This objection was properly overruled. If for no other reason, the objection would not have been good because the accused could not object to the search of another’s automobile.

A sufficient showing had been made to connect the defendant with being in Gordon’s car the previous night and that this car had been used in the burglary. With that connection, a proper predicate had been laid to justify the admission of these articles in evidence against the defendant.

The next objection to the admissibility of evidence arose when the sheriff identified the shoes and clothing found on the back porch of the defendant after his arrest and incarceration in jail.

In the case of Herren v. State, 74 Okla. Cr. 432, 127 P. 2d 384, it is held:

“Where accused has been arrested and charged with felony, officers may legally search his premises in order to find and seize things connected with the crime as its fruits, or as the means by which it was committed, and articles found by reason of such search, otherwise admissible, may be used as evidence at the trial.”

See, also, Sallee v. State, 51 Okla. Cr. 414, 1 P. 2d 794; Luker v. State, 60 Okla. Cr. 151, 62 P. 2d 255.

Two searches of the defendant’s premises were made. In the first search, the cigarettes and other personal property allegedly taken from the store were seized. The search warrant used by the officers was never introduced in evidence. As to what it alleged, we are not advised, except on cross-examination of the sheriff he testified that the search warrant Avas a whisky search warrant. Although the defendant filed a motion to suppress evidence prior to the trial, no proof in support of his motion was presented, and since the burden was upon him to make a shoAving of the invalidity of the search, the court did not err in overruling the motion.

When the cigarettes and other articles of personal property seized by virtue of the search Avarrant were first presented at the trial, it Avas in connection with the testimony of the Avitness Carter, whose store had been burglarized. He described the articles which had been stolen from his store and when the cigarettes and Luminal tablets seized by the officers Avere presented to him, and later offered in evidence, no objection was made to their admissibility. Assuming, but not holding, therefore, that the seizure of these articles by the officers was under a void search warrant, still the right to assert the invalidity of the search is for the benefit of the accused, and this right is waived by failure to object when the disputed articles are offered in evidence.

Lastly, it is contended that the evidence is wholly insufficient to support the verdict of guilty, and, in this connection, it is urged that since the evidence against the accused is wholly circumstantial, it did not exclude every other reasonable hypothesis except that of defendant’s guilt.

It is true that in a case based solely upon circumstantial evidence before a verdict of guilty will be permitted to stand, the circumstances proved must not only be consistent with the guilt of the defendant, but inconsistent with his innocence, and exclude every other reasonable hypothesis other than that of guilt. Davis v. State, 18 Okla. Cr. 112, 193 P. 745; Penrod v. State, 38 Okla. Cr. 46, 258 P. 1052; Sanders v. State, 43 Okla. Cr. 69, 277 P. 605.

It is equally well settled that where a conviction rests upon circumstantial evidence and the circumstances are proven from which the reasonable and logical inference of guilt clearly arises and which excludes any reasonable hypothesis except the guilt of the defendant, although the evidence is conflicting, this court will not disturb the verdict for the insufficiency of the evidence. Morris v. State, 67 Okla. Cr. 404, 94 P. 2d 842; Herren v. State, 69 Okla. Cr. 57, 97 P. 2d 96, 100 P. 2d 286; Rucker v. State, 64 Okla. Cr. 259, 79 P. 2d 629.

Here we find a web of circumstantial evidence which irresistibly points to the guilt of the accused. The defendant and his codefendant were seen together in a booth in a cafe in Sayre the morning preceding the night of the burglary. The same two men were positively identified as being in an old gray car with an ont-of-connty tag in the small town where the burglary Avas committed after dark the night of the burglary. The circumstances connecting the Gordon car with the commission of the burglary are very strong. The mud on the car, the rubbed shiny place on the inside of the fender which apparently was made Avhen the safe was being dragged, the definite identification of the automobile track left at the scene of the burglary with the imprint made by a tire from Gordon’s car, the finding of the chain and truck standard in Gordon’s car which were stolen in the town of Martha, near the drugstore, on the night of the burglary, all point to the use of that automobile in the burglary. The description of the man who went to the two farmers seeking help in getting out of the mudhole tallied with the description of the defendant, even to the clothing that he wore. The defendant’s possession of a large variety of cigarettes similar to those taken in the burglary, the Luminal tablets, and the book of stamps, together with the finding of the black, muddy clothes at defendant’s home are all strong circumstances pointing to the guilt of the defendant. His alibi and explanation of his possession of these articles merely raised a conflicting issue for the determination of the jury.

The judgment of the district court of Jackson county is affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., not participating.


author: ARMSTRONG, J.

text:
    FRANK NASH v. STATE.
    No. A-1110.
    Opinion Filed August 31, 1912.
    (126 Pac. 260.)
    1. TRIAL — Direction of Verdict. When, in the trial of a criminal case, the proof introduced on behalf of the state is insufficient to sustain a conviction, it is the duty of the trial court to advise the jury to return a verdict of not guilty.
    2. SAME — Circumstantial Evidence. — Sufficiency, (a) When, in the trial of a criminal case, the evidence relied upon for conviction is entirely circumstantial; the facts shown must not only be consistent with and point to the guilt of the accused, but must be inconsistent with his innocence.
    (b) Where the evidence only raises a suspicion of the guilt of the accused, it is insufficient to sustain a conviction. Suspicion is not proof; and the court should direct a verdict under such circumstances.
    3. SAME — Reasonable Doubt — Presumption of Innocence. A person on trial, charged with the commission of a crime, is by law presumed to be innocent until his guilt is established beyond a reasonable doubt; and no inference of guilt can be founded upon circumstances, except such as naturally or necessarily follow from the facts. If the facts and circumstances are not of such character as to fairly permit an inference inconsistent with innocence, it cannot be regarded as sufficient to support a conviction.
    4. BURGLARY — Evidence—Proof. In a prosecution for burglary, evidence held insufficient to 'sustain a conviction.
    (Syllabus by the Court.)

      Appeal from District Court, Comanche County; I. T. Johnson, Judge.

    Frank Nash was convicted of burglary, and appeals.
    Reversed.

      Jennings & Ross and Geo. D. ICey, for plaintiff in error.

      Smith C. Matson and C. J. Davenport, Asst. Attys. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Frank Nash, was tried on an information filed in the district court of Comanche county, charging John Murphy and him with burglarizing the store of Kraker Bros.. & Naifer Dry Goods Company at Lawton, in said county, on the 28th day of April, 1910. He was convicted and sentenced to serve a term of two years in the state penitentiary.

The material testimony may be summarized as follows:

Witness Kraker testified that he was one of the owners of the merchandise in the store at the time it was burglarized, and employed herein; that the store and safe were locked and in the usual order on the evening before the burglary; that on the following morning the store was found broken open, the safe blown with some high explosive, and $211, which had been left in it, gone; that $23 left in the cash drawer was also gone.

Witness Ed Morris testified that at the time of the burglary complained of he was a member of the Lawton police force; that he knew the accused, Nash, and had known him for about two years; that he was a member of the day force, and that the burglary occurred on Wednesday night; that on Friday evening following the burglary he saw the accused, between 9 ánd 10 o’clock, near First and D streets, and.later saw him about two blocks west at the Val Blatz building, which stands up two feet or more above the ground; that the accused was under the building, and was shot through a hole in the floor by Officer Dossett, and immediately thereafter arrested; that the Val Blatz building is about two blocks east of the store which was burglarized; that while accused was under the house, and before he was shot, some one struck a match under the building, and said, “Where did we leave that stuff?” and was answered by some one on the outside of the building, who said, “Up this way farther;” that a small iron bar, used for a nail puller, and a steel instrument, called a “triangle,” and a revolver were found under the building near where the accused was shot; that a monkeywrench and a stick of dynamite were found near the safe in the burglarized store.

Witness John Dossett testified that he had been deputy sheriff and also chief of police in Lawton for a year or so; that he heard of the burglary on the day following its commission; that he was in the Val Blatz building with Officer Morris on Friday night following, the burglary, and was watching the articles enumerated by Morris; that between 9 and 10 o’clock some parties came there; that he could hear them talking on the outside, and one of them crawled under the house and struck a match, and he heard him say, “whereabouts, is that?” and the reply, “It is further down;” that there was a board torn up from the floor of the building where the articles were, and pretty soon a man crawled up to it, and said, “Here it is,” and when he said that Officer Morris hollered, “Hold up;” that when he did that the light was shining under the building, and he saw the party raise a revolver under the hole where he stood; that he immediately jumped back and fired a shot through the hole with a shotgun loaded with BB shot; that there was some confusion under the floor, and the party said, “Don’t shoot any more.;” that he went around to the outside to see who it was, and when he got there found the accused sitting on the ground, and when asked who he was the accused replied, “Frank Nash;” that the revolver, which was afterwards introduced in evidence, was found in the grass near where the accused was arrested.”

Witness Froneberger testified that he had known the accused for two years; that he saw him the night of the burglary about 2:30 a. m.

Witness Fred Knight testified that he was in Lawton on the night of the burglary; that he went to bed about 11 p. m., and got up about 4 a. m.; that he was at Sid’s Restaurant, on the corner of Third and D streets, at the time of the explosion; that a few minutes after the explosion he saw two men cross the street back of Sid’s Restaurant and go down the alley east; that one was a large man and the other a small one. He was asked to compare the size of the small man with that of Frank Nash, the accused, and answered that the comparison was about the same, as best he could judge, but, on cross-examination, said that he did not know who the men were.

Witness Froneberger was recalled, and said that he had seen the accused, Nash, and others frequently on the street at all hours of the night.

Witness Blimbrick testified that he was one of the Lawton police force; that he knew the accused, Nash, and had known him for almost a year; that he was on the force about a year; that he saw Nash and several companions about 2:30 that night; that he thought accused had on a light suit and a black hat; that he did not hear the explosion; that some one wanted to borrow a dollar, and accused said he did not have any money.

Witness Eckhardt testified that he lived two miles south of Lawton; that he was in town on the night of the burglary, and was in Sid’s Restaurant about 3 or 4 o’clock a. m., and heard the explosion; that he was standing on the walk just after the explosion, and saw two persons go across the street into the alley; that one was taller than the other; that he did not notice their clothing.

Witness Lewandowski testified that he had lived in Lawton since 1901; that he had known the accused, Nash, for a year or more; that he is a blacksmith, and that accused employed him to make an iron instrument, about-4J¿ inches inside and 12 or 14 inches outside, and referred to it as a “triangle”; that the article was not completed; that it was strong enough to hold up a brick wall; that this was prior to the 27th day of April, 1910; that after he sold out his shop to Mr. Jackson it stayed there a month or more, when witness took it back to his brother’s stand and laid it down in front; that officer Cooper came over the morning after the burglary and got the instrument and carried it away.

Witness Houston, recalled, testified that he saw the accused in bed about 7 o’clock the morning after the burglary with his clothes on.

Witness Rufe Le Fors testified that he found three impressions around the combination on the safe which, was blown; that he applied the “triangle” in question over the knob of the combination, and the set screws fitted exactly into the impressions on the safe door; that the “triangle” fitted in behind the combination, and by turning the screws against the safe it would pull a knob out; that the other instruments found, including the crowr bar, fitted exactly the impressions made in prying open the door.

Witness William Cooper testified that he was a member of the police force, and heard of the burglary the morning after it was committed; that he found tracks across the street from the building which was burglarized, one of which was made by a 7 or 7J4 shoe; that he never compared the measurements of the tracks and the shoe worn by the accused, Nash, but thought they compared very well; that he saw the accused at the Monarch Theatre the evening before the burglary was committed, and bought the drinks, and saw him again about 6 or 7 o’clock next monring; that accused had- oh a light suit at the time, and was with Frank Davis; that the three went across the street, and each drank two bottles of beer, for which the accused paid.

The state introduced the tools and instruments heretofore referred to, including the “triangle” testified about by witness Dewandowski, in evidence over the objection and exceptions of the accused. The state then closed its case, and counsel for the accused filed the following motion:

“Comes now the defendant, and moves the court to direct the jury to return a verdict of not guilty, for the reason that no’ proof has been offered that would warrant a verdict o'f guilty, and demurs to the evidence as insufficient to warrant a conviction, and demurs to the proof, for the reason that the information does not charge any offense as connected with the attempted proof made by the state in this: That the information alleges that the crime was committed on the 28th day of April, 1910, and does not charge that it was done in the nighttime of that day.”

This motion was overruled and exceptions saved.

Counsel then asked the court to withdraw and exclude from the jury all the evidence introduced on the part of the state, because it in no way connected the accused with the alleged offense, which was overruled and exception saved. Counsel' for the accused then asked the court to withdraw and exclude from the consideration of the jury the testimony of witness L,ew-andowski, which motion was overruled and exceptions saved.

The accused testified in his own behalf that he owned the revolver found under the Val Blatz building; that he had loaned it to a boy named Wilson; that Wilson .told him he had left it under this building, where accused could get it; that he went there for it; that he did not know any of the other instruments were under the building, had nothing to do with them, had never had -them in his possession, and was in no way connected with the burglary charged, and had no knowledge of it; that he purchased the drinks referred to by Officer Cooper, and had seven, eight, or ten dollars in silver, which he had won shooting craps the night of the burglary. The state introduced several officers in rebuttal, who testified that they did not know Wilson.

The motion to advise a verdict should have been sustained. The evidence is entirely insufficient to sustain a conviction. The accused, by the foregoing testimony, is not connected with the burglary. The strongest circumstance against him is the fact that he was found under the building where the instruments, supposed to have been used in perpetrating the crime, were located. He explains that, and is not disputed. It is clear from the state’s testimony that the officers put part of those instruments under the building, and there is no proof tending to show who put the others there.

When the proof introduced on behalf of the state is not sufficient tO' warrant a conviction, the trial court should advise the jury to return a verdict of acquittal. The “triangle” introduced in evidence, according to the state’s testimony, was never in the possession of the accused, but was always in the possession of state’s witness Tewandowski until the police officer went to him and got it the morning after the burglary was committed. Why these officers placed the instrument under the building with the other instruments supposed to have been used in this transaction is not explained. Upon what theory the instrument referred to in the evidence as the “triangle” was admissible is not clear and counsel has not undertaken to explain these circumstances.

The evidence is entirely circumstantial. It is cpntended on the part of the accused that the verdict is contrary to the law and the evidence. We are of opinion that this contention is well founded. The accused is presumed to be innocent until his guilt is established beyond a reasonable doubt; and no inference of guilt can be founded upon circumstances, except such as naturally or necessarily follow from the facts. If the facts and circumstances are of such character as to fairly permit an inference consistent with innocence, they cannot be regarded as sufficient evidence to support a conviction.

In Sies v. State, 6 Okla. Cr. 142, 117 Pac. 504, this court says:

“The general rule in criminal cases is that, where the evidence is circumstantial, the facts shown must not only be consistent with and point to the guilt of the defendant, but must be inconsistent with his innocence.” Arid again: “Where .the evidence only raises a mere suspicion of the guilt of the defendant, it is insufficient to sustain a conviction. Suspicion is not proof; and the court-should direct a verdict of acquittal.”

In the case under consideration, the only suspicious circumstance against the accused is, as we have said, that he was under the building where certain burglarious instruments were, with which was. a revolver claimed by him. He explains his presence by saying that he went after the revolver, which he had loaned another, and knew nothing of the other articles, and had nothing to do with them. There is no proof whatever that he was ever in possession of any of them, or was in any way connected with the burglary. The proof on behalf of the state wholly fails to come up to the required standard. When the state rested, the motion by counsel for the accused that the court advise the jury to return a verdict of acquittal should have been sustained. The testimony of the witness Lewandowski should have been excluded ; for by his own statement the accused was never in possession of the articles referred to in the evidence as the “triangle,” and, even if his statements, which are disputed by the accused, were true, they throw no light whatever on the transaction. According to state’s witness Cooper, the “triangle” was secured by Cooper the morning following the burglary from the witness Lewandowski, in whose possession it had at all times been, so far as is disclosed by the proof. Just why the officers put this “triangle” under'the building, and who put the other instruments under there, is not disclosed. If the officers put the “triangle” under the building after securing possession of it, it is just as reasonable to conclude that they put the other instruments there as it would be to conclude that the accused put them there, and more so. Upon what theory this testimony was held admissible is not made clear, and we know of no rule which would entitle it to admission under the proof in the record. Just how the officer, Cooper, knew that this article was in the possession of Lewandowski, and why he went immediately to secure its possession, is not explained. The testimony in the record is wholly insufficient to sustain a conviction. The verdict is contrary to the evidence, and the conviction cannot be sustained.

The judgment is reversed, and the cause remanded, with direction to grant a new trial.

FURMAN, P. J., and DOYLE, J., concur.


author: FURMAN, P. J.

text:
    D. S. GREGG v. CITY OF KINGFISHER.
    No. A-1466.
    Opinion Filed September 3, 1912.
    (125 Pac. 1093.)
    1. COURTS — County Courts — Concurrent Jurisdiction. County courts have concurrent jurisdiction with district courts of appeals from judgments of police courts.
    2. APPEAL — Continuance—Review. An application for a continuance is addressed to the sound discretion of the trial judge; and his action thereon will not be reviewed upon appeal, unless it appears from the record that such discretion was abused to the injury of appellant. Por a motion for a- continuance which was fatally defective, see opinion.
    3. CONTINUANCE — Affidavits. An application for a continuance, failing to show the exercise of diligence to secure absent witnesses and to give their names, or state any evidence which couJd be obtained by a postponement of the ease, was insufficient.
    4. SAME — Grounds—Application. That accused, when arrested, was improperly treated by the deputy sheriff was not ground for a continuance.

      5. SAME — Prejudice. It was not error to overrule a motion for a continuance, because accused was sick and unable to appear in court at the trial, where it affirmatively appeared from the record that he did appear-and was present during the trial.
    (Syllabus by the Court.)

      Appeal from Kingfisher County Court; John.M. Graham, Jvidge.

    Mrs. D. S. Gregg was convicted of violating a prohibitory liquor ordinance of the city of Kingfisher, and again on appeal from the police court to the county court, where her punishment was assessed at a fine of $75 and imprisonment in the county jail for 30 days, and she appeals.
    Affirmed.

      D. K. Cunningham, for appellant.

      Smith C. Matson, Asst. Atty. Gen., and I. T. Bradley, City Atty., for appellee.
   FURMAN, P. J.

First. This case originated in the police court of the city of Kingfisher, where appellant was convicted for unlawfully conveying malt liquor from one place to another place within the limits of said city, in violation of Ordinance No. 182 of said city of- Kingfisher. An appeal was prosecuted from this conviction to the county court of Kingfisher county.

In their brief counsel for appellant says:

“The county court had no jurisdiction to try this case, for the -reason that it is only given power to try cases on appeal from justices of the peace, not police courts. Persons tried in police court are given right of appeal to district court only. See Comp. Laws 1909, Sec. 746. Tn all cases tried before police judge arising under the ordinance of the city, an appeal may be taken by the defendant to the district court,’ etc. There is nothing in our Constitution that we have been able to find which gives the county court jurisdiction to try cases on appeal from police court or judge thereof, nor in the statutes, except general section 1979, Comp. Laws 1909, and this section is not authorized by the Constitution; or, if it be, then there is no provision for the manner in which such appeals may be taken.”

By turning to section 1979, Comp. Laws, 1909, counsel will find the following:

“The county court shall have, concurrent with the district court, appellate jurisdiction of judgments of justices of the peace, and of judgments of police judges in all civil and criminal causes.”

In the case of Meloy v. City of Woodward, 7 Okla. Cr. 16, 120 Pac. 1119, this question was thoroughly considered and discussed by this court in an opinion by Judge Doyle. After an elaborate discussion of the question and a review of all the authorities, Judge Doyle said:

“Otír conclusion is that the act of June 4, 1908, only confers jurisdiction on county courts concurrent with district courts on appeals from judgments of police courts.”

For the reasons in support of this conclusion, see cases above referred to.

Second. Defendant complains of the action of the county court in overruling her motion for a continuance. A motion for a continuance is addressed to the sound discretion of a trial judge; and his action thereon will not be reviewed on appeal, unless it appears from the record that such discretion was abused to the injury of appellant. The motion for a continuance in this case does not show that the least diligence had been used to secure the attendance of witnesses; neither does it give the name of any absent witness, or state any evidence which could be obtained by. a postponment of the case; but it is simply a complaint against the alleged manner in which appellant was treated by the deputy sheriff when arrested. This did not constitute the least ground for a continuance, and the trial court did not' err in overruling the motion.

A further affidavit for a continuance was filed, alleging that appellant was sick and unable to appear in court and attend the trial. This was also overruled by the court. Nothing appears in the record which indicates that the trial court abused its discretion in overruling this application. On the contrary, it affirmatively appears from the record that appellant did appear in court, and was present during the trial of this cause.

Third. The evidence in thé case sustains the verdict of the jury and the judgment of the court. All of the other questions presented in the brief of counsel for appellant have been so often decided adversely to the contentions therein made that it would be a useless consumption of time to discuss them.

We find no material error in the record. The judgment of the county court is therefore affirmed.

ARMSTRONG and DOYLE, JJ., concur.