text:
    ROY MANNON v. STATE.
    No. A-8448.
    Dec. 16, 1932.
    (17 Pac. [2d] 522.)
    John H. Scriba, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Wagoner county of the crime of manslaughter in the second degree in the killing of J. P. Fisher, by striking him with an automobile, and his punishment fixed by the court at imprisonment in the state penitentiary for a period of two years.

The record presents a question of fact. The evidence of the state, supplemented by the physical facts of the case, is sufficient to sustain a conviction for manslaughter in the second degree. The evidence of the defendant might have been sufficient to show an unavoidable accident, except for the conduct of defendant in denying his identity upon his discovery a few days after the accident, and his evasive actions prior to his arrest. The jury saw the witnesses and heard them testify. They believed the evidence of the state, and therefore found the defendant guilty. This court will not weigh the evidence and determine the issues adverse to the jury, where there is competent evidence in the record to support the verdict.

The case also> presents a question of law in the rejection by the court of certain evidence offered by the defendant.

On cross-examination defendant’s counsel attempted to show by C. E. Fisher, son of deceased and a state witness, that he had attempted to settle with defendant for civil liabilities arising out of the collision, and that it was not until defendant had refused to pay civil damages that Fisher filed the criminal charge against him. All of this evidence got before the jury, but was later stricken by the court on motion of the county attorney on the ground that it was incompetent, irrelevant, and immaterial. No act of Fisher’s could bind the state, so far as the institution of this prosecution was concerned. Fisher could not compromise it or control it, but the evidence was probably admissible and the examination proper to show Fisher’s motive and feeling towards defendant. But it was not reversible error to' strike this evidence and instruct the jury not to consider it. Fisher did not see the accident and testified to1 nothing material, except the location on the highway of the car deceased had been riding in. There was no material difference between Fisher’s testimony and that of defendant on that point. The ruling of the court limiting the scope of his cross-examination was of little consequence in this case. Defendant was convicted, not on Fisher’s testimony, but upon the testimony of other witnesses and the physical facts, supplemented by defendant’s impossible explanation of the cause of the accident.

Section 2822, C. O. ,S. 1921, prohibits this court from setting aside a judgment on the ground of misdirection of the jury, or improper admission, or rejection of evidence, or as to error in matters of pleading- or procedure, unless in the opinion of the court it appears that the error complained of has probably resulted in a miscarriage of justice or constitutes a substantial violation of constitutional or statutory right.

Measured by the rule thus stated and the numerous decisions of this court construing the same, the error, if any, in rejecting the testimony complained of, does not authorize a reversal of the case.

For the reasons stated, the cause is affirmed.

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


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    ARVILLE RECTOR v. STATE.
    No. A-8389.
    Dec. 16, 1933.
    Rehearing Denied Jan. 6, 1933.
    (17 Pac. [2d] 519.)
    E. B. Arnold, Pete Helton, W. L. Chase, Bruce L. Keenan, and Jeff T. Parks, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Adair county of larceny of domestic animals, and was sentenced to serve a term of 2 years in the state penitentiary.

At the time charged, defendant and one Herbert Hern, in the nighttime, took from the pasture of one Webber two cows, loaded them into a truck, took them to Frantenac, Kan., where they were sold by defendant. The state used as witnesses to prove the taking and asportation Herbert Hem, who testified in substance that he and defendant stole the cattle in question and took them into Kansas, and Mike Hern, a brother, who testified he went with defendant and his brother to the pasture at the time the cattle were taken. He corroborated the fact of the taking and loading them in the truck and the departure of his brother and defendant with the cattle. Defendant testified in substance he was hired by Herbert Hern to truck the cattle from the Webber pasture to Kansas; that they were loaded at night on account of hot weather; that he was paid $25 for his services, and believed Herbert Hern was the owner of the cattle; that the hauling by him was in good faith.

The principal contention is that under the state’s evidence both Herbert Hem and Mike Hem were accomplices, and there is no sufficient corroboration of their testimony as required by section 3071, St. 1931. When there is a controversy whether a witness is an accomplice or not, the question must be settled by an examination of the testimony. The testimony of Mike Hern disclaims any participation in the crime. The testimony of Herbert Hern is to the effect that he and defendant agreed to steal the cattle, that the stealing was the plan and act of himself and defendant, and that Mike Hern was not a party to it. The defendant’s testimony is that Mike Hern had nothing whatever to do with the arrangements between him and Herbert Hem, and in substance that the entire testimony of Mike Hem was false. So, under the testimony both of the state and defendant, Mike Hern was not an accomplice. Hendrix v. State, 8 Okla. Cr. 530, 129 Pac. 78, 43 L. R. A. (N. S.) 546; Sipes v. State, 36 Okla. Cr. 1, 251 Pac. 511; Hewett v. State, 38 Okla, Cr. 105, 259 Pac. 144.

As a part of the argument on this matter of the testimony of an accomplice, defendant’s counsel complain that the name of Mike Hern was in the instruction with the name of Herbert Hern, and was struck out by the court after the instruction was had to the jury. The record is not clear on this point, but, even so, we fail to see how that would be prejudicial in the light of the evidence.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    W. E. KARR v. STATE.
    No. A-8384.
    Jan. 6, 1933.
    (17 Pac. [2d] 992.)

      Grover L. Bynum, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the superior court of Okmulgee county of manslaughter in the first degree and was sentenced to a term of four years in the state penitentiary.

On the day and a short time prior to the homicide, deceased had some difficulty with his wife, defendant’s daughter, and she went to defendant’s home. Deceased and one Sallee drove to the place, stopped in front, and defendant came out. .Some words passed, Morris got out of the car, and some blows were struck. Sallee also got out of the car and joined in the difficulty. Defendant went in the house, got a shotgun, and returned into the yard. Sallee ran from the scene. Morris got back in his car and defendant fired one shot, killing him instantly. The plea was self-defense.

It is argued the court erred in a statement to the jury before it was impaneled. The substance of this statement is that the court had been informed a juror had stated he would pay no attention to the instructions, the court told the jury as a whole the instructions were a part of the trial, the law of the case, and it was the duty of the jury to observe them. That the facts were for the jury but the law was for the court, and, if the juror who made such a remark was in the box, he should excuse himself. We see nothing in this general cautionary statement that could possibly be prejudicial. See Pate v. State, 15 Okla. Cr. 90, 175 Pac. 122; Wilson v. State, 54 Okla. Cr. 129, 15 Pac. (2d) 1043.

We are pressed next with the argument that there was prejudicial error committed in that the jury viewed the scene of the homicide without authority of the court and without any special form of oath to the officer in charge. It appears that, while the jury were deliberating, defendant’s counsel took the judge a message from his wife; the court inquired about the jury, and counsel informed him the bailiff had stated they wanted to see the place of the homicide, and after that they went to the place. Defendant was in the garden nearby at the time the jury was there. There was nothing about the premises that would throw any light on the homicide. So far as arriving at any verdict was concerned, it was immaterial whether the jury viewed it or not. The view under the circumstances was improper, but no improper information could come to them from such view and it could not have influenced their verdict. It was not prejudicial. Trial judges should read the statutes and should be careful to observe the procedure provided by it, but a deviation on a matter not affecting the integrity of the trial and not prejudicial does not require a reversal. Bird v. State, 22 Okla. Cr. 283, 210 Pac. 925; 16 C. J. p. 1170, § 2678, n. 43.

Some other matters are suggested in the briefs, but none are of sufficient importance to require special discussion. We are satisfied defendant had a fair trial, and no' reason for interference by this court is made to appear.

The case is affirmed.

DAVENPORT. P. J.. and CHAPPELL. J., concur.


author: CHAPPELL, J.

text:
    M. F. PACK v. STATE.
    No. A-8460.
    Jan. 6, 1933.
    (18 Pac. [2d] 284.)
    Mathers & Mathers, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Cleveland county of the offense of driving an automobile while intoxicated, and his punishment fixed by the jury at a fine of $750 and imprisonment in the state penitentiary for a period of nine months.

The evidence of the state was that Earl Fuzzell, accompanied by his father, Joe Fuzzell, was driving a model A Ford coupe east on highway 37, a few miles south of Norman, at about 7 o’clock in the evening of November 6,1931; that he saw a car approaching from the east, with bright lights and zig-zagging back and forth across the road; that he pulled his car as far over to the right-hand side of the road as possible and stopped; that immediately thereafter the car driven by defendant swerved over to the left-hand side of the road and struck his car head on, knocking it back a few feet and demolishing the front of the car; that he was slightly, and his father seriously, injured by being thrown against the windshield of his car; that defendant opened the left door of his car and climbed out from under the steering wheel; that he was drunk and staggering around, denying that he owned the car or was driving it; that shortly after the accident defendant got a half-gallon glass fruit jar out of his car and tossed it in the grass at the side of the road; that later the sheriff took possession of this jar and that it contained between half a pint and a pint of whisky.

Defendant did not take the witness stand, but sought to show by Guy Foster, Sr., and Guy Foster, Jr. (who was ten years of age), that the car was not being driven by defendant, but by Guy Foster, Jr. Foster, Sr., admitted that the car belonged to defendant and that there was whisky in the car, and that he and defendant had taken a drink or two.

In rebuttal, the state showed that Guy Foster, Jr., told two different people in the doctor’s office that he was not driving the car, but that defendant was. This evidence presented a clear conflict, «which was for the jury.

The defense of defendant has all the earmarks of being manufactured for the occasion, and evidently was not believed by the jury.

Complaint is made that the court erred in refusing to let the defendant show by the witness F. E. Walker that Guy Foster, Jr., was driving the car when it left his filling station. The record discloses:

“Q. I will ask you if they drove into your station on the evening of November 6th? A. I would not be exact as to the date, but it was near that time.”

The state objected to the introduction of this evidence for the reason that the witness was not positive as to the date, and did not fix the distance from his filling station to the place where the accident occurred. The court permitted the witnesses Guy Foster, Sr., and Guy Foster, Jr., to testify that Junior was driving the car at the time of the accident. Certainly Walker’s testimony, being so vague and uncertain, could not have added anything to the force of the Fosters’ testimony.

The court properly sustained the state’s objection as being too indefinite and remote.

Complaint is also made that the court erred in permitting Sheriff Jennings to testify that, in the presence of defendant, Earl Fuzzell directed him to where the half-gallon fruit jar, which contained the whisky testified to, had been thrown by defendant.

No objection was made to this evidence, but the objection was made to the introduction of the whisky as not having been properly identified.

The question here presented was not properly raised in the trial court, but was apparently waived by counsel for defendant.

An examination of the entire record discloses defendant’s guilt beyond any question.

The cause is therefore affirmed.

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


text:
    LAWRENCE SMITH v. STATE.
    No. A-8454.
    Jan. 6, 1933.
    (18 Pac. [2d] 282.)

      Phillips & Boner, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Bryan county of the crime of robbery with firearms, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of five years.

The evidence of the state was that on the 17th day of .September, 1931, at about 10 o’clock in the evening, Cloyd Smith was driving his Plymouth sedan automobile near the Durant nursery, accompanied by Orlan Hawkins, Curtis Boberson, Hazel Cates, Irene McGahey, and Mary Lessie Cochran, all students of the State Teachers’ College at Durant; that as they drove slowly past the nursery, one man jumped on the running board on the left-hand side, and another man on the right-hand side of the car, and, thrusting in pistols, told the occupants that one of the men had shot a fellow and had to- make a quick getaway, and that they wanted the car; that the driver speeded up the car and steered into1 a fence post, either knocking or causing one of the men to fall off the running board; that the other man struck one of the girls over the head with his pistol and snapped it two- or three times at the driver, but it failed to fire; that when the car was run into the fence post one of the back doors was torn off; that the parties got out of the car and turned it over to the two men, who drove away leaving the broken door; that later the car was found abandoned near Denison, Tex.; that the officers took the door to finger print experts, who made photographs and found the finger prints of defendant on the car door. The parties in the car were unable to identify the robber, except to say that he was about the same size and build and general appearance of defendant; that it being a dark night, they were unable to see his features.

Defendant admitted that he was at the carnival, near the place where a man named Hubbard had been robbed and shot and near where the automobile was taken, but denied that he had anything to do with the taking. He introduced several alibi witnesses.

Defendant’s) first contention is that this evidence is insufficient to support the verdict of the jury.

In Stacy v. State, 49 Okla. Cr. 154, 292 Pac. 885, in a similar case, this court held the evidence sufficient.

Defendant. next contends that the court erred in the admission of the evidence of F. E. Carson, a finger print expert. Defendant in his brief says:

“Upon this proposition the Appellant was inclined to believe that he had a real case for reversal, until we read the case of Stacy v. State, found in 49 Okla. Cr. 154, 292 Pac. 885, in which case the Oklahoma court has taken practically all the wind out of our sails.”

In the recent case of Braley v. State, 54 Okla. Cr. 219, 18 Pac. (2d) 281, this court reaffirmed the doctrine in the Stacy Case, but went a step further, and said:

“The experiments were not made with the finger prints of defendant, but with those of other persons for the purpose of testing the ability of the witness to identify finger prints made by different or particular persons.
“The rule that the test must be made on similar material and under like conditions would apply if the test was being made of the finger prints of defendant, but it has no application where the tests are made of the finger prints of other persons and merely for the purpose of testing the knowledge and ability of the witness.”

It is next contended that the judgment should be reversed because of alleged improper conduct on the part of the county attorney.

In some instances the questions asked, by the county attorney were proper and were admitted without objection ; in others the questions were improper, but answered without objection. Some of the questions asked were improper and, on objection, the court sustained the objection and admonished the jury not to consider the questions.

Complaint is also made of some questions asked by the county attorney on cross-examination of defendant. The record discloses that the rulings of the trial judge were uniformly in favor of defendant, and nothing is therefore presented to this court for review.

Complaint is also made that the court erred in giving instruction No. 3 on circumstantial evidence.

No objection was made to this instruction and no exception taken to the giving of the same. This instruction is substantially the same as that approved by this court in Carter v. State, 6 Okla. Cr. 2B2, 118 Pac. 264.

No substantial error appearing in the record, the cause is affirmed.

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


text:
    F. G. HEATH v. STATE.
    No. A-8429.
    Oct. 14, 1932.
    Rehearing Denied Jan. 6, 1933.
    (17 Pac. [2d] 527.)
    Bailey & Hammerly, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called

defendant, was convicted in the county court of Grady county of the crime of unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of |200 and imprisonment in the county jail for 60 days.

The evidence of the state was that certain officers in Grady county had a search warrant to search the residence of defendant, and upon such search found six gallons of whisky and a gallon and a half of wine in some containers in a pantry; that under the trapdoor in this pantry was a place dug out in the ground about two and one-half feet square and three feet deep; that this plant had marks on it made by depositing a keg or kegs therein; in an outbuilding there was also found a large quantity of empty jars.

Defendant, testifying for himself, admitted that he made the wine, but denied any knowledge of the whisky; that the sheriff asked him if that was all the whisky there was there, and he said as far as he knew it was; that, if he told the sheriff it was his whisky, he did not remember.

Defendant contends, first, that the case should be reversed because it appears that the affidavit for search warrant was taken by the county judge at his residence and the warrant issued there, rather than at the judge’s office in the courthouse, and filed with the court clerk on the next day.

The county judge in the issuance of the search warrant was acting as a magistrate. When the affidavit was made and deposited with him, it amounted to and was a sufficient filing.

It is undisputed that the affidavit was made before the county judge acting as a magistrate, and the warrant issued thereon. The better practice would be to take the affidavit and issue the warrant from the office of the magistrate. The Constitution and statute is mandatory that an affidavit shall be made or evidence offered sufficient for the magistrate to find probable cause, and that a proper warrant be issued thereon. Nothing is said about where this affidavit shall be taken nor the warrant issued. The taking of the affidavit and the issuance of the warrant by the magistrate at his residence was an irregularity which did not go to the sufficiency of the affidavit or warrant, and does not require a reversal of the case.

It is next contended that the affidavit is insufficient to authorize the magistrate to find probable cause, or issue a warrant thereon.

Defendant relies upon Hannan v. State, 29 Okla. Cr. 203, 233 Pac. 249, and the authorities cited therein to support this contention.

In Smith v. State, 30 Okla. Cr. 144, 235 Pac. 273, 274, this court had under consideration the question passed on in Hannan v. State, supra, and there said:

“Whether an affidavit for a search warrant states evidential facts or mere conclusions is sometimes difficult to determine. In this regard it seems to us that the affidavit in the Hannan Case is on one edge of the twilight zone, and the affidavit here under consideration is on the other edge. It will be observed that the affidavit in the Hannan Case did not state that ‘John Doe’ was a fictitious name, or that the real name of ‘John Doe’ was unknown to the affiant. The affidavit did not describe or designate the kind of liquor. The statement that ‘intoxicating liquors are being kept’ was a mere indefinite conclusion. The allegation that this undescribed person had this undescribed liquor for the purpose of illegal sale was likewise a conclusion. Neither did the affidavit state that the place described was occupied as a private residence and was a place of public resort, as required by section 7013, Comp. Stat. 1921. Now let us see how the affidavit in the case here under consideration differs from the one in the Hannan Case. The affidavit in the instant case shows that ‘John Doe’ was a fictitious name, and that the offender’s real name was unknown to affiant. It also states that the place described was a place of public resort, the fifth house (presumably a residence) east of the coal chute, and that it was a place where wine, beer, and whisky were being kept. All these statements, considered together, reasonably implied that the liquor described was being kept for an illegal purpose. * * *
“The two affidavits differ materially in three vital particulars: First, in naming and describing the person; second, in naming and describing the intoxicating liquors; and, third, in describing the character of the place where the liquors were being kept. In the Hannan Case nothing is stated but naked conclusions; in the instant case there are some facts stated designating the person in possession, the kind of liquor, and character of the place where it was being kept.”

See, also, Roe v. State, 32 Okla. Cr. 113, 240 Pac. 140; Shanafelt v. State, 38 Okla. Cr. 345, 261 Pac. 380; Dobbs v. State, 39 Okla. Cr. 376, 265 Pac. 658; Hayes v. State, 41 Okla.. Cr. 302, 274 Pac. 41; Jay v. State, 42 Okla. Cr. 32, 274 Pac. 487.

In the case at bar, the affidavit is almost in the identical language of Smith v. State, and was sufficient to authorize the issuance and service of the search warrant.

Defendant argues that his case is different from the ordinary liquor case, because he kept the wine for his father and occasionally gave a social drink of the same to a neighbor who dropped in.

It is not necessary to pass upon this question. This is a simple case where the defendant had concealed in his residence a large amount of whisky and some wine. It was the province of the jury to determine from the evidence whether he had these liquors there for sale. They evidently did not believe his explanation, since they found against him.

No fundamental error appearing upon the record, and the evidence being sufficient to support the verdict of the jury, the cause is affirmed.

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


author: DAVENPORT, P. J.

text:
    CHARLIE MADDOX v. STATE.
    No. A-8388.
    Sept. 9, 1932.
    Rehearing Denied Jan. 6, 1933.
    (17 Pac. [2d] 526.)
    Charlie Maddox, in pro. per.
    J. Berry King, Att. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter for convenience referred to as the defendant, was convicted of the crime of shooting at another with intent to kill, and was sentenced to serve a term of seven years in the state penitentiary at McAlester, and appeals.

There is very little conflict in the testimony. The testimony tends to' show the defendant in this case had rented some land to. the prosecuting witness, Allen Williams; some controversy arose over the division of the rent; the prosecuting witness, Williams, his father and son, hunted up the defendant, who was in Cloudchief the day of the difficulty; they went to the office of C. G. Kerns, which was located near the gin, and talked over their difference, and called on Mr. Kerns to witness the agreement and left the gin office. When they got on the outside, the testimony further shows, the prosecuting witness Allen Williams knocked the defendant, Maddox, down and was beating him. The defendant called for some one to help him. That Mr. Kerns went- to where the prosecuting witness had the defendant down, and asked him not to strike the defendant again. A brother of the defendant came to- where the prosecuting witness and defendant were fighting, and pulled Williams off the defendant. Williams started toward the brother. When the defendant got up, he was in a dazed condition and staggered back toward the gin office. When the prosecuting witness started after the brother of defendant, he drew his pistol and fired, believing that the prosecuting witness intended to> do great bodily harm or to kill his brother.

All of the witnesses agree that the prosecuting witness started the fight, and that he had the defendant down and beat and kicked him; that the father of the prosecuting witness and a son stood by and objected to anybody interfering; that at the time the defendant fired the shots at the prosecuting witness Williams, he appeared to be staggering around in a dazed condition.

The prosecuting witness denies he was trying to do the brother of the defendant an injury at the time the defendant shot him. This is in substance the testimony.

The defendant tried his own case. No exceptions were saved by the defendant to the instructions of the court or to the introduction of testimony. It is urged by the defendant that the court erred in overruling his motion for a new trial, and that the verdict is not sustained by sufficient evidence, and was the result of passion and prejudice.

The testimony is sufficient to sustain a conviction. Under section 3204, Okla. Statutes 1931, this court is given the authority to modify the judgment appealed from. The testimony in this case clearly shows that the prosecuting witness, his father and son, sought out the defendant, and that Allen Williams provoked the difficulty with the defendant, knocked him down, kicked and bruised him, and that the father and son objected to any one separating the combatants; that, when the brother of the defendant appeared on the scene and got the prosecuting witness off of the defendant, the defendant, while in a dazed condition, drew his pistol and shot at the prosecuting witness Williams. Under the facts as disclosed by the record, the punishment in this case is excessive, and is modified from a term of seven years in the state penitentiary at Mc-Alester to two years, and, as modified, is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


author: CHAPPELL, J. DAVENPORT, P. J.

text:
    ROSS HINKLE v. STATE.
    No. A-8382.
    Nov. 18, 1932.
    Rehearing Denied Jan. 6, 1933.
    (17 Pac. [2d] 523.)

      Charles Gf. Ozmun, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter referred to as defendant, was convicted in the county court of Comanche county of the crime of unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $150 and imprisonment in the county jail for a period of 30 days.

The evidence of the state was that the officers with a search warrant went to the premises of the defendant; that, as they reached the place, defendant was sitting in front of a window in the front room; that as,he saw the officers coming he went to the back part of the house; that the doors were locked and the officers had to cut through a screen to get into the house; that, when the officers got into the house, they heard the water filling up the toilet bowl; that a half-gallon fruit jar, with an inch of whisky in the bottom, was left in the bathroom, this evidence tending to prove that defendant had gone into the bathroom and emptied a half gallon of whisky into the howl of the toilet; that empty bottles, corks, funnels, and other evidence of intent to dispose of whisky were found on the premises; that the home of defendant was a place of public resort; that it was a place where persons who were in the habit of drinking intoxicating liquor made frequent visits; that defendant’s residence had the reputation of being a place where intoxicating liquor was kept and sold.

Defendant did not take the witness stand to testify in his own behalf.

Defendant first contends that the court erred in not allowing him to question the searching officers, whn were witnesses for the state, as to who was in possession of the search warrant at the time the search was made.

Counsel for defendant filed a motion to suppress the evidence because of the unlawful search, and attached to such motion copies of the affidavit for the search warrant and the search warrant with the return, which return showed it was directed to and served by the sheriff.

It is not intimated in the brief that the search warrant was not served, or that it was improperly served, and no' offer of proof was made by the defendant. This court is left entirely in the dark as to what the answer of the witness would have been or as to what defendant expected to prove by the witnesses if they were permitted to answer. There must be some specific showing of prejudicial error. Killough v. State, 6 Okla. Cr. 311, 118 Pac. 620.

Next, defendant contends that the trial court erred in permitting the state as a part of its case to prove the general reputation of the home of defendant as being a place where intoxicating liquor was kept and sold.

The state first proved that tlie home of defendant was a place of public resort; that it was a place where persons who were in the habit of drinking intoxicating liquor made frequent visits. This evidence under the proof here was admissible. Kirk v. State, 11 Okla. Cr. 203, 145 Pac. 307; Ward v. State, 15 Okla. Cr. 150, 175 Pac. 557; Beatty v. State, 34 Okla. Cr. 418, 246 Pac. 1103; Welch v. State, 35 Okla. Cr. 2, 246 Pac. 1113.

Finally, defendant contends that the evidence is insufficient to support the verdict of the jury.

While the evidence is mostly circumstantial, it was sufficient to support the verdict of the jury.

For the reasons stated, the cause is affirmed.

EDWARDS, J., concurs.

DAVENPORT, P. J.

(dissenting). The opinion of the majority of the court holds that the evidence in this case is sufficient to sustain a conviction. With this contention I cannot agree. The defendant is charged with possession of a half gallon of whisky with intent to violate the prohibition laws.

The testimony on behalf of the state shows that the officers claim to have smelled a strong odor of whisky when they got into defendant’s house. J. D. Klepper, a deputy sheriff, testifying for the state, in substance said: “When we drove up to- the house the door was locked; when we got inside we smelled whisky; there was a fruit jar setting by the stool in the bathroom with a small quantity of whisky in it; the toilet had been flushed.”

G. W. Simpson, an undersheriff, testifying for the state, in substance stated: “We opened the door and went immediately to the bathroom and there found a half gallon jar with about one-half an inch of red whisky in the bottom; we smelled the fumes of whisky in the room.”

This is all the testimony in the record as to any whisky being found in the defendant’s home, and the greatest quantity any witness put it is one-half an inch in the bottom of the fruit jar. This amount is not sufficient to make it prima facie evidence of an intent to barter, sell, give away, or otherwise furnish the same.

I have read! the record carefully, and I find no evidence on behalf of the state that shows, as stated in the majority opinion, that a fruit jar with an inch of whisky in the bottom was left in the bathroom. Some of the witnesses testified they found some empty bottles, corks, and a funnel on the defendant’s premises. They do not state the number, or where they were found. In fact, it is an indefinite statement that these articles were found on defendant’s premises.

The state, over the objection of the defendant, then went into the reputation of the defendant’s place as being a place of public resort. Neal Christain, testifying for the state, was asked the following questions and gave the folio wing answers: “Q. Mr. Christain, do you know whether or not Ross Hinkle’s home is a place of public resort?”

After defendant’s objection was overruled:

“A. We had a lot of complaints.
“Q. Have you had an opportunity to observe the traffic around the house? A. Yes, sir.
“Q. Just tell what leads you to believe that it was a place of public resort? A. Two cars drove in while we was there.
“Q. Did they stay there after you arrived? A. No.”

In one answer witness says two cars drove np while the officers were there, and in the next he says they did not stay after we arrived. These two answers cannot he harmonized. If the two cars drove np to defendant’s place while the officers were there, they could not stay there when the officers arrived, as they were not there. One or the other of the statements is incorrect, and clearly shows the officer was trying to bolster up his statement that the defendant’s place was a place of public resort.

The fact that empty bottles, corks, and a funnel were found on defendant’s premises is not evidence sufficient to sustain a charge of possession with intent to sell. I dare say that there is not a home in the state in or around which empty bottles, corks, or a funnel cannot be found. If Ross Hinkle is guilty, he ought to be punished, but he should not be punished upon such evidence as presented by the state. The record in this case clearly shows many questions were asked, and permitted by the court to be answered over the objections of the defendant, relating to the reputation of the defendant’s place being a place of public resort, which was incompetent and tended to1 prejudice the rights of the defendant. I therefore insist that the testimony in this case is insufficient to sustain the conviction, and that the case should be reversed.


text:
    HOWARD WAGNER v. STATE.
    No. A-8308.
    Sept 30, 1932.
    Withdrawn, Corrected, Refiled and Rehearing Denied Jan. 6, 1933.
    (17 Pac. [2d] 525.)

      Hamilton, Gross & Howard, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Osage county of obtaining property by false pretense, and was sentenced to serve a term of three years in the state penitentiary and to pay a fine of $13,200.

Defendant was jointly charged, tried, and convicted with one F. L. Crabbe. This appeal, however, is by defendant alone. The record is voluminous, and very briefly stated discloses that the Universal Royalties Corporation, a Delaware corporation, had been organized and was authorized to do business in this state, with its place of business at Tulsa. It was organized on a shoe string, capitalized for a million dollars, and proposed to deal in oil royalties. This was in the antedepression period, when the gullible were not hard to persuade to trade Liberty bonds and other sound securities for wildcat stock. It appears that the criminal law must be invoked to punish those who by misrepresentations defraud the unwary of their hard-earned savings. The testimony is that defendant and Crabbe went to the residence of F. A. Mc-Clendon and wife, school teachers, living near Skiatook, and procured from them $4,400 worth of building and loan stock for 440 shares of the royalty corporation of a par value of $10 each, and to bring about such exchange made various false representations in reference to the corporation stock. They received the building and loan stock about noon at the McClendon home, and, before the company at Tulsa had closed for the day, the stock bearing defendant’s indorsement was cashed by the wife of defendant.

The false representations alleged go to the value of the stock, the payment of dividends, and other matters. Defendant denied the material false representations, and earnestly pleads he was acting in good faith and believed all the statements of fact made in negotiating the trade with McClendon. The evidence is sharply conflicting, but the jury by the verdict has found the issues against defendant. There is sufficient competent evidence to sustain the verdict.

It is argued that the court erred in refusing requested instructions and in the giving of a portion of the court’s charge. Particularly is this urged against instruction No. 10B, in substance that testimony of the selling of stock to others than the prosecuting witnesses would not be proof of guilt of defendants for the charge for which they were on trial and should be considered only corroboration. Evidence of sales to other persons under like circumstances and representations would be admissible as tending to show a plan or scheme, and in doing so would tend to corroborate the testimony of the particular transaction charged. The instruction is not in the usual form or substance under which such evidence is admitted; yet we fail to see how it is prejudicial. Considered as a whole, the instructions sufficiently cover the law of the case.

It is complained the court erred in excluding certain evidence offered by defendants. This relates to the exclusion of certain exhibits, copies of corporation license tax receipts, a letter from the State Issues Commission showing the issuance of permit to the royalty corporation to sell stock. We think these items were admissible as having some tendency to show good faith of the officers of the corporation of which defendant was one to comply with the requirements of the state as to the issuance and sale of stock. But, even if that were shown, it does not prove or disprove the making of false representations by defendant and Crabbe in the stock sale to McClendon.

It is also urged that special counsel for the state was guilty of prejudicial misconduct in taking an exception to each adverse ruling of the trial judge upon objection made by defendant. Special counsel evidently was laboring under the impression that in the trial of a criminal case the state must preserve a record by exception. Just what he expected to accomplish by noting an exception at each ruling of the court we are not able to comprehend, but we fail to' see how it could have harmed defendant. Defendant’s counsel did not call the attention of the trial court to this or otherwise indicate it was objectionable. Some other questions are argued, but they are not of sufficient importance to require special discussion.

Upon the whole case it appears defendant was fairly tried, and no error requiring a reversal is made to appear.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    BARNIE ROBERTS v. STATE.
    No. A-8458.
    Jan. 6, 1933.
    (17 Pac. [2d] 973.)
    J. T. Daniel, E. L. Dillard, and Earl Pruitt, Co. Atty., for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of burglary in the second degree, and sentenced to' serve a term of three years in the penitentiary, and appeals.

The testimony on behalf of the state tends to show that a note was left in the register of one of the school teachers in the school building at Ringling, Okla., district No. 14, of Jefferson county, making, a suggestion too abominable and detestable to be repeated in this opinion. When the note was found the teacher reported to the superintendent, and after a conference the teacher wrote a note saying, “Here Saturday night 9 o’clock,” and left it in the register where the first note Avas found. The superintendent and others went to the school building early in the evening prior to the hour fixed by the note and closed all the windows and doors, and arranged the lights; between 8 and 9 o’clock the defendant came to the school building and raised a window and entered the building, and came down through the hall toward the room where the teacher that had written the note taught, where he was apprehended by the superintendent and others. On his person was a pistol. No testimony was introduced by the defendant. No explanation was made why the defendant entered the school building through the window.

Several errors have been assigned by the defendant, some of which do not possess sufficient merit to warrant the court in specifically mentioning or considering them. In his first assignment the defendant urges that the court erred in overruling his demurrer to the information. After a careful examination, we hold it stated sufficient facts to advise the defendant of the charge against him in clear and concise language. In the second and third assignments the defendant urges the court erred in overruling his demurrer to the evidence, and request to instruct the jury to return a verdict of not guilty. These two assignments of error argued by the defendant do- not possess sufficient merit to warrant a reversal of this case. The testimony is sufficient to sustain the verdict of the jury.

Complaint is further made by the defendant that the court erred in refusing to give certain instructions requested by him. After carefully considering the instructions given by the court, we hold the court’s instructions correctly stated the law as applied to the facts in the case, and that the complaint of the defendant of the court’s refusal to give his requested instructions are without merit, as the general instructions substantially covered the instructions requested by the defendant.

The defendant in his eighth assignment complains of the court orally instructing the jury to disregard the remarks of the county attorney in his closing, argument, when he stated to the jury that the defendant had not been denied anything in this case. An examination of the record fails to disclose that any such statement was made by the county attorney. The first time this question seems to have entered into the case is in the defendant’s motion for a new trial. In Quitman v. State, 35 Okla. Cr. 245, 250 Pac. 441, following Tucker v. State, 9 Okla. Cr. 587, 132 Pac. 825, this court has repeatedly held that before such a contention will be heard the remark complained of must be incorporated in and preserved as a part of the record at the trial of the case. Mere recitations of such facts in the motion for a new trial are not sufficient as the court will be bound by the record.

It is urged by the defendant that the witnesses Poole and Smith were accomplices, and therefore their testimony should have been corroborated. After carefully examining the record, we hold that the witnesses Poole and Smith are not accomplices within the meaning of section 3071, Okla. Stats. 1931.

The defendant was tried and convicted for burglary in the second degree; that is, that he entered the school house for the purpose of committing a felony. It is clearly shown by the evidence that when the defendant entered the school building he entered it for the purpose of committing an abominable crime defined as a felony under our statute.

Tlie defendant was accorded a fair and impartial trial; the court properly instructed the jury as to the facts. No fundamental or prejudicial errors appearing in the record sufficient to' warrant a reversal, the case is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    J. R. (STICK) DALE v. STATE.
    No. A-8446.
    Jan. 20, 1933.
    Rehearing Denied. Feb. 17, 1933.
    (18 Pac. [2d] 549.)
    H. A. Johnson, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Noble county of a second and subsequent violation of the prohibitory liquor law, and his punishment fixed by the court at a fine of $50 and imprisonment in the state penitentiary for a period of six months.

The evidence of the state was that the officers with a search warrant went to defendant’s premises and there found six bottles of home brew in the ice box, six gallons of home brew in the smokehouse, a plant under the kitchen floor containing some home brew, a half gallon of whisky in a cave near the house, some empty beer bottles, several empty bottles in. tbe cave and smokehouse, and two cases of empty whisky bottles in a shed adjoining the stable. Evidence was also introduced as to a sale made prior to the raid and to the congregation of people at defendant’s premises, who, on being arrested as they came away from the premises, were found to possess beer.

Defendant admitted prior conviction and the possession of home brew, testifying he had it for his own use. His wife testified that a stranger brought the half gallon of whisky to the house in her husband’s absence as a Christmas present; that she did not know who the man was. Defendant denied he knew the whisky was there.

The evidence of the state positively supports the charge of a second and subsequent violation of the prohibitory liquor law.

It it next contended the court erred in holding the affidavit upon which the search warrant was issued sufficient to authorize the issuance of the search warrant. Defendant introduced the affidavit. It is positively sworn to, and contains a sufficient statement of fact to show probable cause.

It is next contended that the court erred in admitting, the evidence secured by the search, since the officers did not have the original warrant with them. The evidence of the state is that the sheriff had a certified copy of the warrant which he served on defendant and which the defendant produced in court. There is no contention that the warrant was not actually issued and was not in the possession of the sheriff. The objection is technical and without any merit.

Finally, defendant contends that the case should be reversed on account of misconduct of the county attorney. An examination of the record discloses that the county attorney was answering the argument of counsel for defendant; that the trial court directed the county attorney to confine his argument to the record and admonished the jury to pay no attention to anything other than the evidence and the instructions of the court. Counsel cannot provoke criticism by his argument and then predicate error upon a reply thereto by the county attorney.

It appears from the whole record that the defendant, who had been previously convicted of violation of the prohibitory liquor law, was well equipped for the business, and no doubt was carrying on the sale of intoxicating liquor at his home.

No substantial error appearing in the record, the cause is affirmed.

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


text:
    BILL RITTER v. STATE.
    No. A-8438.
    Jan. 20, 1933.
    (18 Pac. [2d] 550.)
    Paul D. Sullivan, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Stephens county of the offense of larceny of an automobile, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of five years.

The evidence of the state was that Mrs. Lillian Womack was the owner of a 1929 model A Ford Tudor sedan, and that the same was stolen from her on the 22d day of February, 1931, in the town of Duncan; that on February 27th defendant was arrested in possession of this car on highway 81 near the city of Enid; that at that time defendant was accompanied by Bennie Benight and two girls, Katie Do-wns and Gertrude Berry; that defendant told the officers the girls were their wives and that the car belonged to him; that he had bought it from a man named Weaver and did not have the title papers with him because he still owed $60 on the purchase price; that, after being placed in jail, all the parties admitted they were not married; that it appeared from the speedometer the automobile had been driven practically 2,000 miles in the seven days following the taking.

In addition to this proof, Bennie Benight pleaded guilty, and, testifying for the state, said that he and defendant together stole the car in Duncan, near the First Baptist Church; that they pawned the spare tire at Bray as security for some gasoline; that they drove to Ada, Shawnee, Elk City, Amarillo, Tex., Tucumcari, N. M., and back to Enid, where they were arrested. He is corroborated by other witnesses in most of the details of his story.

The defense is an alibi; defendant claiming that he knew nothing of the stolen automobile, and was picked up by Bennie Benight at Shawnee, and only accompanied him to Enid.

Defendant first contends that the county attorney was guilty of prejudicial misconduct which prevented him from having a fair trial. It appears from the record that the county attorney and defense counsel are brothers; that each fought strenuously for his side of the case, and there was much heated and unnecessary controversy on both sides. In the light of the whole record, none of the questions complained of could have affected the result of the trial.

It is next contended that the judgment should be reversed because of alleged improper remarks of the trial court during the progress of the trial. It may be the trial court in the heat of the controversy made a few remarks that should not have been made, but, if any misconduct was committed, it apparently was at the invitation in most instances of defendant’s counsel. This court is not inclined to view with favor alleged misconduct of the trial court committed at the invitation of defendant’s counsel. Klein v. State, 15 Okla. Cr. 350, 176 Pac. 414; Stiles v. State, 39 Okla. Cr. 173, 264 Pac. 226.

Where it is claimed that the remarks of the trial court were prejudicial to defendant, a motion should be interposed to withdraw such remarks from the consideration of the jury, and, if such motion is overruled, then proper exception should be taken to' the court’s action. In the case at bar, in no instance did counsel for defendant move the court to withdraw any remarks that he had made from the consideration of the jury. The most that counsel did was to make objection and save exceptions. This was not sufficient to raise the question in this court.

It is also contended the court erred in failing to instruct the jury on the defense of alibi. There was no request for any such instruction. The decisions of this court are to' the effect that, where the defendant relies upon an alibi for a defense and requests an instruction on such defense, it is error for the court to refuse to give the same. Courtney v. State, 10 Okla. Cr. 589, 140 Pac. 163.

But, on the other hand, although the defendant relies upon an alibi, but does not request an instruction on this subject and does not except to the action of the court in not charging an alibi, a conviction will not be reversed where such instruction is not given, unless it clearly appears from the record that the defendant was injured thereby. Inklebarger v. State, 8 Okla. Cr. 316, 127 Pac. 707; Spess v. State, 20 Okla. Cr. 94, 201 Pac. 395.

The case at bar is one in which there is a direct conflict as to the facts. There is no middle ground. The defendant was clearly proved to be guilty or he had absolutely nothing to do with the commission of the crime. The jury understood that issue and decided against defendant. It was so simple that any ordinary juror could have decided it without any instructions from the trial court. The only thing to> decide was the credibility of the witnesses, and on that question the jury was fully instructed by the trial court.

The evidence being sufficient to support the verdict of the jury and no substantial error appearing upon the record, the cause is affirmed.

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


text:
    E. K. JONES v. STATE.
    No. A-8464.
    Jan. 20, 1933.
    (18 Pac. [2d] 551.)

      Sigler & Jackson, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county of the unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $50 and imprisonment in the county jail for a period of 30 days.

The evidence of the state was that the officers with a search warrant went to the home of defendant on F Street Northeast, in Ardmore; that out back, in a little shed place, the officers found a half-gallon fruit jar and a quart-fruit jar full of whisky, buried in the ground, near a wall, together with some empty bottles in the shed and garage, which smelled like intoxicating liquor had been in them.

Defendant did not take the witness stand and offered no evidence. He earnestly contends that this evidence is insufficient to sustain the verdict of the jury.

The state offered no proof that the shed was part of the defendant’s premises, nor that he had possession of the shed or had ever been in the shed, or ever had anything to do with the possession of the liquor, other than that constructive possession which might arise under the evidence above set out.

To sustain a conviction for possession, the state must prove that the liquor was in the possession of defendant and that he had it with intent to violate the law. The quantity found by the officers was sufficient under our statute to make a prima facie case, hut the evidence of the state was entirely wanting in that degree of proof required to show possession by the defendant.

When the evidence is carefully considered and it appears that it is wholly wanting in some essential element of the offense charged, the judgment will be reversed because the evidence is insufficient to sustain a conviction. Ren v. State, 9 Okla. Cr. 671, 132 Pac. 1131; Owens v. State, 11 Okla. Cr. 113, 143 Pac. 204.

For the reasons stated, the cause is reversed.

DAVENPORT and EDWARDS, JJ., concur.


text:
    JOHN EDEN v. STATE.
    No. A-8453.
    Jan. 6, 1933.
    Rehearing Denied Feb. 3, 1933.
    (21 Pac. [2d] 775.)

      J. W. Miller, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Delaware county of larceny of live stock, and his punishment fixed by the jury at imprisonment in the state penitentiary for a term of two years.

Defendant contends that the court erred in overruling his application for a continuance.

This application was based on the absence of W. P. Hollis. It appears from the record that this witness had testified in the preliminary and that he was not cross-examined by defendant; that a transcript of his evidence was on file with the clerk of the court; that a few days before the time of trial, the state had a subpoena issued for this witness, which was returned “not found in Delaware County”; that thereupon the state had a subpoena issued for the witness to Ottawa county and service thereof ordered by the district judge, which subpoena was returned by the sheriff of Ottawa county showing that the witness was not found in such county. Defendant had no subpoena issued and made no effort to take the deposition of the absent witness. In the trial of the case this transcript of the evidence was read by the state, after a showing that the witness was not in the state.

It was not error, therefore, for the trial court to overrule this application for a continuance.

Defendant next contends that the court erred in overruling his plea for immunity.

In Scribner v. State, 9 Okla. Cr. 465, 132 Pac. 933, Ann. Cas. 1915B, 381, and Morrison v. State, 49 Okla. Cr. 369, 294 Pac. 825, this court had under consideration when and how a witness might obtain immunity under section 27 of the Bill of Rights, and there held that immunity could only be secured by the consent of the county attorney and upon the approval of the trial judge, or that the witness decline to testify and was compelled to do so by the court.

In the case at bar, the county attorney made no agreement and the court made no order granting immunity in return for his testimony in the case against his codefendant, and made no order requiring the defendant to testify over his objection; but on the contrary it appears from the record that defendant took the witness stand in the trial of his codefendant and testified voluntarily.

It appears from the record that after the court had denied defendant’s plea of immunity and during the progress of the trial, the court erroneously permitted defendant to introduce other testimony on the question of immunity. After this testimony had been introduced, the court submitted the question of immunity to the jury, which found against defendant. While this latter procedure was unnecessary and unauthorized under the holdings of this court, it shows that defendant had two opportunities to be released in this case — one by the court and the other by the jury — and that both found against him on this question.

It was not error for the court to deny defendant’s plea of immunity.

Other errors are complained of, but they are all without any substantial merit.

For the reasons stated, the canse is affirmed.

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


text:
    J. P. KNIGHT v. STATE.
    No. A-8367.
    Jan. 6, 1933.
    Rehearing Denied Feb. 3, 1933.
    (21 Pac. [2d] 513.)
    Roy S. Sherry, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Edna Clary, for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Logan county of theft of an automobile, and was sentenced to serve a term of five years in the state penitentiary.

The principal contention goes to the question of the sufficiency of the evidence. It is undisputed that on the night of July 24-25 the automobile described in the information was stolen from the owner at Guthrie, and about five days later was found in the possession of defendant at Shawnee. The motor number had been changed, the secret number changed, and the identifying numbers on the back axle had been chiselled off. The defense of alibi was supported by the stepfather and a nephew of defendant. It is not particularly convincing. Defendant had been for some years a dealer in secondhand cars. He testified he bought the car on the streets of Shawnee on the afternoon following the theft from one Layman, a person whom he did not know either before or after the time of purchase; that he had him transfer title to a nephew. There was a suspicious alteration of the duplicate of the certificate of title, and there is some testimony of contradictory statements by defendant in explanation of his possession. It does not seem reasonable that one engaged in dealing in secondhand automobiles would have bought this car from a stranger under the circumstances claimed by defendant. We deem it unnecessary to make further statement of facts.

The case rests on circumstantial evidence, but the evidence sufficiently connects defendant with the theft of the car, and excludes any reasonable hypothesis other than that of his guilt.

Some argument is made that the court’s instruction on the defense of alibi is erroneous. This is directed to that part of the instruction which told the jury in substance that one may be a principal in the commission of a crime by aiding and abetting as defined in another instruction. We do not understand defendant’s counsel contend the instruction is erroneous as a matter of law, but merely that there is no testimony which connects defendant with the theft by aiding and abetting another. There is no direct evidence on this point, but the testimony of alibi and the circumstances proven may do so. No material error is made to appear.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


author: EDWARDS, P. J.

text:
    CHARLIE LATTIMER v. STATE.
    No. A-8440.
    Jan. 20, 1933.
    Rehearing Denied Feb. 3, 1933.
    (21 Pac. [2d] 512.)
    Merton Munson and Lawton Burton, for plaintiff in error.
    J. Berry King, Atty. Gen., and Dwight Malcolm, Co. Atty., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Comanche county of murder and his punishment fixed at death.

The information charges that defendant shot and killed Marie Lattimer, his wife. The testimony is brief and in substance is that defendant and his wife were having domestic difficulties; that he followed her from her parent’s house where they were at the time a short distance, overtook her, and fired one shot from a pistol into her body, then threw the pistol into the weeds and fled. The wife died in about 30 minutes without making any statement or regaining consciousness. Defendant testified he put a pistol in his belt and followed his wife, overtook her, and she pulled the pistol from his belt and in doing so shot herself. In other particulars there is no substantial conflict in the testimony. There are few objections to testimony and no exceptions to any of the instructions.

Defendant first argues and devotes several pages of the brief to the contention that there is no sufficient proof of the corpus delicti. We have no quarrel with the authorities cited, but the contention is wholly without merit. There is no question but that deceased came to her death from a gunshot wound as shown by the testimony for the state. The controversy is not as to the cause of death, but as to the person who held the weapon at the time the fatal wound was inflicted. This conflict is made by the testimony of defendant that he did not fire the shot but that the pistol at the time it was discharged was in the hands of deceased. This conflicting testimony is covered by the charge of the court and the verdict of the jury is against defendant. We think the jury could have reached no other conclusion.

The only point urged is that the court erred in refusing defendant’s request for an instruction on manslaughter. The testimony presented two theories as stated: If defendant pursued deceased and deliberately shot and killed her as shown by the state’s evidence, he is guilty of murder. If, as defendant testified, the deceased seized the pistol in his belt and in withdrawing it accidentally shot himself, no offense was committed by defendant and he should have been acquitted and the court so instructed. Defendant’s counsel has presented the case as fully as possible under the record. No material error is made to appear.

The case is affirmed.

The original time for the execution having passed, owing to the pendency of this appeal, it is considered, ordered, and adjudged by this court that the judgment and sentence of the district court of Comanche county be carried out by the electrocution of the defendant on Friday March 24, 1933.

DAVENPORT and CHAPPELL, JJ., concur.


author: DAVENPORT, J.

text:
    L. G. MALLARD v. STATE.
    No. A-8359.
    Feb. 3, 1933.
    (18 Pac. [2d] 1097.)
    Joe S. Eaton, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The defendant, L. G. Mallard, was on the 7th day of November, 1931, found guilty by a jury in the district court of Okmulgee county of the crime of robbery with firearms and his punishment fixed at imprisonment in the state penitentiary for a term of 20 years. Judgment was pronounced on the verdict on the 14th day of November, 1931, and an appeal has been taken to this court, in which appeal the plaintiff in error relies upon several grounds for reversal.

The court has made a careful examination of the record in this case and has- given thoughtful consideration of the various errors assigned as grounds for reversal. Among such errors are the improper admission of incompetent evidence. An examination of the record discloses that perhaps some slightly incompetent evidence was admitted, hut we are of the opinion that the error here complained of was not of sufficient importance to justify this court in reversing the judgment. It is also contended that the evidence is insufficient to support the verdict. There is some conflict in the evidence, but the state’s evidence, if believed, authorized the jury to find the defend-i ant guilty and that is sufficient, as this court will not, in a case where the evidence is conflicting, substitute its judgment for that of the jury. It is sufficient to say the evidence is sufficient if there is a reasonable foundation of fact to support a conclusion that the defendant is guilty of the crime charged.

Counsel for the plaintiff in error submit also in the brief filed that if this court reaches the conclusion that none of the errors relied upon are sufficient to justify a reversal of the judgment, the sentence imposed should be modified in that it is extremely severe and evidently the result of passion and prejudice on the part of the jury. This court is inclined to view with favor the argument presented in support of this contention. The record in this case discloses that this was the second trial of this defendant on this charge, the first trial resulting in a mistrial because of a hung jury. The defendant was compelled to immediately go into- this trial the very next day after the jury failed to- agree in the first trial. His co-defendant, who, the record shows, was the one who had possession of the firearms at the time of the alleged commission of this offense, was tried subsequently to the conviction of this defendant and the punishment imposed upon him for the commission of this same offense was imprisonment in the penitentiary for five years. The Attorney General is not averse to a modification of this judgment.

In view of all the circumstances surrounding the commission of this crime, and in view of the fact that the punishment assessed on the codefendant by a different jury was only imprisonment for five years, where the facts show that the codefendant was the person who used the firearm, we believe that substantial justice requires that this judgment be modified to imprisonment in the state penitentiary for a term of five years. Therefore, the judgment is modified to imprisonment of this defendant in the state penitentiary for a term of five years, and as so modified the judgment is affirmed.

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


text:
    J. B. PONDER v. STATE.
    No. A-8463.
    Feb. 3, 1933.
    (18 Pac. [2d] 1098.)
    John L. Hodge, for plaintiff in error.

      J. Berry King, Atty. Gen., and Smith O. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Carter county of receiving stolen property, and was sentenced to serve a term of one year in the state penitentiary.

At the time charged, two crates of cigarettes of a value of $135 were stolen from the railroad depot, at Ardmore, and concealed under the platform. Two police officers on night patrol saw the two men run from the platform, made an investigation, and found the cigarettes. They concealed themselves, and in about forty-five minutes a car drove near, two men got out, and left a third, who was the defendant, in the car with the engine running. The two got the crates of cigarettes, and the officers came from their place of concealment, rushed the car, and attempted to halt the parties, but defendant speeded the car, and they escaped. One of the officers fired into the front of the car, but did not succeed in stopping it. The officers made pursuit, but were not able to stop the car; they then went to the police station, and there found defendant. Defendant testified, in substance: That he was employed by Alexander and another to haul some whisky from the depot; that he did not recognize the officers when they approached, and thought the shooting was by some unknown person, and for that reason he speeded his car away; that after the shooting and several blocks from the scene one of the party left the car taking with him the cigarettes, and that he and the other party returned to report the circumstances. The facts developed by the testimony convince us that the evidence is amply sufficient to sustain the judgment.

Defendant first argues that tlie information is insufficient in failing to allege the ownership of the property received, and in failing to allege an evil intent of the receiver. The information is sufficient. McGill v. State, 6 Okla. Cr. 512, 120 Pac. 297. See, also, Prince et al. v. State, 27 Okla. Cr. 80; 224 Pac. 996.

It is also argued that the court excluded competent testimony offered by defendant. This is directed to an offer of proof that defendant on the night in question made some statement of being employed to* haul some whisky. This is clearly a self-serving declaration. Possibly it might have been admissible as a part of the conversation shown by the state, but even under that view defendant got the matter before the jury from other witnesses.

Upon a consideration of the entire record, we are satisfied defendant was fairly tried, and that no error of any consequence occurred at the trial.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


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    CHILEY McGIRT v. STATE.
    No. A-8433.
    Feb. 3, 1933.
    (18 Pac. [2d] 1099.)
    Billingsley & Kennerly and John M. Stanley, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Seminole county of the crime of manslaughter in the first degree on an information charging him with having murdered one G. A. Matteson, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of six years.

It is first contended that the trial court erred in permitting the state to read the testimony given by Mrs. G. A. Matteson, wife of the deceased, and that of Wilson Bohanon, given at the preliminary examination of such witnesses, as the testimony of such witnesses in this trial.

The principal contention under this assignment is that the state did not lay a sufficient predicate for the introduction of this evidence.

Charley Lyons, a deputy sheriff, testified that he knew Mrs. A. G. Matteson and Wilson Bohanon; that he made a search for Mrs. Matteson, and learned that she Avas in Missouri, and that he made a search for Bohanon in Seminole county, and at Allen, in another county; that he made diligent inquiry and search, and was unable to find the witnesses in the jurisdiction of the court.

After this showing Avas made by the state, counsel for defendant objected to the reading of the evidence because no sufficient predicate had been laid, Avhich the trial court overruled. No exception was saved to this ruling, but counsel for defendant said, “Go ahead and read it, Judge,” thus waiving his objection by directing the county attorney to read the evidence, instead of saving his exceptions. It might also be said that in cases of this kind the admission of evidence which is not objected and excepted to will not be revieAved on appeal by this court unless it constitutes fundamental error. Meiggs v. State, 16 Okla. Cr. 557, 185 Pac. 450.

It is next contended that the trial court erred in refusing, to appoint an interpreter to interpret the testimony of defendant, who was a full-blood Seminole Indian.

Section 605, C. O. S. 1921, reads as follows:

“Before testifying, the witness shall be sworn to- testify to the truth, the whole truth, and nothing but the truth. The mode of administering an oath shall be such as is most binding on the conscience of the witness. An interpreter may be sworn to interpret truly, whenever necessary.”

Under the terms of this section, it is a matter of discretion with the trial judge to appoint an interpreter according to the necessity of the particular occasion. Schall v. Eisner, 58 Ga. 190; State v. Severson, 78 Iowa, 653, 43 N. W. 533; Perovich v. United Stated, 205 U. S. 86, 27 S. Ct. 456, 458, 51 L. Ed. 722.

In the latter case, the Supreme Court of the United States said:

“This is a matter largely resting in the discretion of the trial court, and it does not appear from the answers made by the witness that there was any abuse of such discretion.”

An examination of the record in the case at bar discloses that the defendant had sufficient intelligence and knowledge of the English language to testify fully and completely concerning the happenings surrounding the shooting of the deceased, and that it was not an abuse of discretion for the trial judge to refuse to appoint an in- . terpreter for him in this case.

It is also contended that the trial court erred in overruling defendant’s demurrer to the state’s evidence and in overruling Ms motion for a new trial, because the verdict is contrary to law and not supported by the evidence.

While there is some conflict in the evidence, it is amply sufficient to support the verdict and judgment. The testimony of defendant does not make out a case of justifiable homicide, but indicates the deceased was shot and killed by defendant while he was under the influence of intoxicating liquor and did not see any facts sufficient to impress upon his mind a reasonable belief that he was in imminent danger of death or serious bodily harm at the hands of the deceased at the time he fired the fatal shot. Immediately after having fired the shot, defendant took his shotgun and his four year old boy on his back and ran to his brother-in-law’s place, and there hid the gun. When arrested that night, he made no claim of self-defense, nor that deceased fired a gun at him just before he fired the fatal shot, although he did make and sign a full statement of the facts surrounding this killing shortly after he was arrested.

The grounds urged for a reversal of this judgment in this court possess no substantial merit. Considering the whole record, defendant escaped with very light punishment for the crime committed by him. The judgment is therefore affirmed.

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


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    JIMMIE WALKER v. STATE.
    No. A-8436.
    Jan. 6, 1933.
    Withdrawn, Corrected, Refiled and Rehearing Denied Feb. 17, 1933.
    (19 Pac. [2d] 622.)

      Pryor & Wallace, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Seminole county of the crime of manslaughter in the first degree in the killing of Claud Long, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of 15 years.

It is first contended the trial court erred in overruling defendant’s motion for a continuance.

The case was originally set for trial on the 4th day of January, 1932. When called for trial, defendant presented his motion for a continuance, and the case was continued for a period of ten days to enable defendant to prepare for trial.

On the 14th day of January, 1932, when the case was again called for trial, defendant filed a supplemental motion for continuance, which disclosed that he had not exercised due diligence in his attempt to procure the attendance of the witness Jack Russell; he had not had subpoena issued, and had not attempted to take the deposition of the absent witness.

Under the authority of Rose v. State, 8 Okla. Cr. 294, 127 Pac. 873; McCarter v. State, 14 Okla. Cr. 305, 170 Pac. 712; Hill v. State, 19 Okla. Cr. 406, 200 Pac. 253; Vineyard v. State, 22 Okla. Cr. 76, 209 Pac. 783, and Queen v. State, 23 Okla. Cr. 146, 212 Pac. 1021, the court did not err in denying the application for continuance.

It is next contended the court erred in overruling defendant’s motion to quash the panel.

It appears from the record that a jury had been out in the trial of another case and had not been able to agree; that part of the regular panel were sitting in the trial of the case presided over by Judge Johnson. When the jury reported its inability to agree, Judge Crump made a statement in which he discussed the number of homicides committed in Seminole county within the year, and stated that he was going, to recommend to Senator Nichols that he see that a law be passed making it a felony to carry a gun.

Immediately thereafter, defendant’s case was called, and his counsel moved to quash the panel because of the remarks of the presiding judge.

The remarks of the judge were not grounds for a challenge to the panel. Pate v. State, 15 Okla. Cr. 90, 175 Pac. 122; Hayes v. State, 41 Okla. Cr. 302, 274 Pac. 41; Coatney v. State, 52 Okla. Cr. 70, 2 Pac. (2d) 604.

It further appears from the record the court announced that if any prospective juror called into the box had heard his remarks, he would be excused. When the examination of the jury was completed and the state had exercised all its peremptory challenges and the defendant still had one challenge left, he declined to use it; the court then requested defendant’s counsel to examine the jurors as to whether they had heard his statement, and offered to grant additional peremptory challenges. Defendant’s counsel declined to examine the jurors further or to use his other peremptory challenge, contenting himself with standing on his motion to quash the panel.

It was not error for the court to overrule this motion.

It is next contended that the court erred in admitting incompetent evidence.

The state asked Mrs. Long, widow of deceased, about a visit defendant made to their home in the nighttime some months prior to the homicide, and the witness was permitted to say that defendant opened the door and walked into the house at about three o’clock in the morning, in an intoxicated condition; that defendant had frequently visited their place, but never after came back. There is nothing in the evidence of Mrs. Long showing any hatred of defendant towards the deceased, or any threats or violence or other acts. This was apparently the act of a drunken man without any criminal intent. The court should have excluded this evidence, since there was no connection between that act and the homicide. If the evidence had tended to show malice, ill will, or intent to injure deceased on the part of defendant, it might have prejudiced; hut not so with this proof. It had no such tendency, and is not necessarily reversible error. Manning v. .State, 7 Okla. Cr. 367, 368, 123 Pac. 1029; Littleton v. State, 19 Okla. Cr. 461, 200 Pac. 716; Ford v. State, 23 Okla. Cr. 46, 212 Pac. 444.

Under this assignment it is also contended the court erred in admitting certain testimony given by Alex Gosey and R. E. Richardson to the effect that an hour or two before the cutting of deceased by defendant, he was in the public road near where the fatal difficulty occurred; that he was armed with a knife; that he was drinking; and that he at that time attempted to cut a negro with this knife. Effie Miller testified that immediately after the homicide, defendant attempted to cut Jimmie Fixico with the same knife, chasing him some distance from the scene of the homicide.

This evidence was all admissible as tending to show the state of mind of defendant at the time of the killing. Williams v. State, 4 Okla. Cr. 523, 524, 114 Pac. 1114; Hampton v. State, 7 Okla. Cr. 291, 123 Pac. 571, 40 L. R. A. (N. S.) 43; Tallon v. State, 22 Okla. Cr. 89, 210 Pac. 309; Inman v. State, 22 Okla. Cr. 161, 210 Pac. 742.

It is next contended that the court erred in admitting the testimony of Homer Degge as to the dying declaration made by deceased.

This evidence was admissible because a proper predicate had been laid.

It is next contended that the trial court erred in overruling defendant’s motion for a directed verdict because of a fatal variance between the allegations of the information and the proof.

The information charged death resulted from certain wounds inflicted on deceased by the defendant with a knife. It is contended the proof showed the cause of death to be pneumonia. After the deceased was cut by defendant, he was rushed to a hospital at Wewoka, where in a short time an operation was performed on him in an effort to-save his life; pneumonia developed after this operation, and he died in a couple of days. The record discloses that the injuries sustained at the time of the infliction of the blow were the primary causes of death, and contributed to hasten death. This was sufficient. Terrell v. State, 10 Okla. Cr. 488, 138 Pac. 1039; Pitts v. State, 53 Okla. Cr. 165, 8 Pac. (2d) 78.

Complaint is also made that the court erred in admitting the transcript of the testimony of Jimmie Fixico given at the preliminary examination.

As a predicate for the admission of this transcript, the county attorney introduced two subpoenas issued by the state and returned “not found in'the county.” This showing was not sufficient, but after the transcript was read and during the progress of the trial, defendant introduced proof to show that Jimmie Fixico- had fled and was beyond the jurisdiction of the court, and it would be impossible to procure his presence at the trial. Under the combined showing of the state and defendant, it appears that diligent search had been made by both parties, before the trial, and that the witness could not be found within the jurisdiction of the court.

Complaint is also- made of some of the instructions given by the court, and of failure to- give instructions requested by defendant.

The instructions given by the court on its own motion as a whole sufficiently cover the law of the case, and are as favorable to the defendant as the facts in the case and the law warranted.

No fundamental error appearing in the record, the cause is affirmed.

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


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    ELMER DAVIS v. STATE.
    No. A-8470.
    Feb. 17, 1933.
    (19 Pac. [2d] 384.)
    J. Q. A. Harrod and Laynie W. Harrod, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of the crime of burglary in the second degree, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of two years.

The evidence of the state was that the defendant broke a plate glass window in the store of Edwards Bros, and stole certain goods from the store. Two witnesses who knew defendant personally testified that they heard the noise of breaking glass, and later saw defendant coming out of the store carrying some merchandise. Their identification was positive.

The defense was an alibi.

Most of this evidence had the defendant in the vicinity of the place of the crime, at about the time the burglary was committed. Defendant’s contention that this evidence is insufficient to support the verdict of the jury is without any merit.

It is next contended that the trial court erred in refusing to permit defendant to prove by certain of his witnesses that they had learned who committed the crime.

When the witness Viola May McCullough was on the stand and objection was made to this proof, counsel dictated the following offer into the record:- “Comes now the defendant and offers to show by this witness that one Jesse Chisem, who had been issued a subpoena on the part of defendant in this case, and which subpoena was served upon the witness, Jesse Chisem, has stated that he knew who committed this burglary and knew the party who had this stuff that came out of this house, and the party implicated is a brother-in-law of Jesse Chisem in the wholesale whisky business.”

In Dykes v. State, 11 Okla. Cr. 602, 150 Pac. 84, this court had under consideration this question, and in a very strong opinion, citing many authorities, held that this character, of evidence was inadmissible.

Defendant relies on Irvin v. State, 11 Okla. Cr. 301, 146 Pac. 453. This case not only does not support the contention of defendant’s counsel, but is in harmony with Dykes v. State, supra.

In this connection it is also contended that the court erred in refusing to let defendant testify as to what he had done to find out who the guilty party was.

While the trial court sustained objection to this kind of evidence, he at all times offered to permit the defendant to name the person who had committed the crime, but the only thing defendant offered to do was to show what somebody told him about who committed the crime. This kind of evidence was hearsay, and was properly excluded by the trial court.

It is next contended that the county attorney committed prejudicial error in connection with the cross-examination of one Wade Pargies, a witness for defendant.

It appears from the record that defendant’s counsel, in examining this witness, asked him:

“Q. How long have you known this boy? A. About 15 years. Q. Did you ever know him to steal anything? (Objected to and overruled.) A. Not that I know of.”

On cross-examination the court permitted the county attorney to ask the witness if he had heard that defendant had been arrested a number of times for stealing. The witness finally admitted he knew he had been in jail, but did not know what it was for.

The court admitted this line of questions on the theory that, defendant having opened the question, the state had a right to reasonable cross-examination. The questions asked were proper, since the defendant himself had gone into the subject.

Finally, it is contended the trial court had no jurisdiction, for the reason the information was not signed by the county attorney, but was signed by one of his assistants.

This question was not raised until the evidence had been introduced, the jury instructed, arguments made, and the jury were ready to consider their verdict.

This prosecution was carried on in the name and by the authority of the state, by one of the assistant county attorneys. The information was signed in the name of the county attorney, by the assistant county attorney, which was sufficient. This court has also held that, where the information is not signed by the county attorney or an assistant, but defendant files no demurrer and goes to trial without objection on that ground, he waives it, citing Brown v. State, 9 Okla. Cr, 382, 132 Pac. 359; Simpson v. State, 16 Okla. Cr. 533, 185 Pac. 116; Braught v. State, 17 Okla. Cr. 1, 179 Pac. 769; McMillan v. State, 31 Okla. Cr. 261, 238 Pac. 510.

Counsel for defendant earnestly contend they made their objection as soon as they discovered the information had been signed by the county attorney. The information was filed with the court clerk and open at all times to- inspection of defendant’s counsel, and their failure to do so prior to the time they claim they discovered this alleged defect was laches on their part and could not be chargeable to the state.

No prejudicial error appearing upon the face of the record, the cause is affirmed.

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


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    JIM LONG v. STATE.
    No. A-8462.
    Feb. 24, 1933.
    (19 Pac. [2d] 620.)
    Arnote & Arnote, for plaintiff in error.
    J. Berry King, Atty. Gen., for tbe State.
   EDWARDS, P. J.

Tbe plaintiff in error, hereinafter called defendant, was convicted in tbe district court of Pittsburg county of rape in tbe first degree and was sentenced to serve a term of 15 years in tbe state penitentiary.

Tbe information charges that defendant by force committed an act of rape on one Susie Walters. At the time alleged prosecutrix was in her 16th year. Defendant was 18 years of age. Tbe act complained of occurred as tbe prosecutrix and defendant were returning home from a country dance..

.Several assignments of error are argued, but it will be necessary to consider only one. That is that tbe verdict is informal and tbe trial court erred in receiving it. Rape in tbe first degree is punishable by death as a maximum punishment and by confinement in tbe penitentiary not less than 15 years as a minimum. Section 2519, Stat. 1931. The verdict returned by the jury in this case, omitting the formal parts, is:

“We, the jury, drawn, impaneled and sworn in the above entitled cause, do' upon our oaths find the defendant Jim Long guilty of rape in the first degree as charged in the information and fix his punishment at imprisonment in the State Reform School for a period of 15 years.”

When the verdict was presented and read and before the jury was discharged, defendant objected to the verdict and form thereof, but the court received it and discharged the jury. Defendant filed a motion in arrest of judgment, assigning, among other reasons, that the verdict was illegal in substance and form, which motion was overruled. This case was submitted to the jury about midafternoon; they held a night session, were brought into court about 11 a. m. the following day, and advised the court they stood 8 to 4; certain testimony was then read. They were brought into court again and informed the court they stood 11 to 1. The verdict was finally returned about 3:30 p. m. of that day. It is obvious it was difficult for the jury to arrive at a verdict carrying with it the penalty provided by law. The verdict above set out fixed a term not in the penitentiary but “in the State Reform School.” The state does not maintain a “Reform School,” although in the popular mind the institution of “State Training School” at Pauls Valley for the confinement of juvenile offenders under 16 years of age is sometimes referred, to as a “Reform School.” Article 11, chap. 26, Stat. 1931. The branch penitentiary at Granite, Okla., is designated as a “State Reformatory.” Section 5307, Stat. 1931.

In Kennedy v. State, 25 Okla. Cr. 306, 220 Pac. 61, 63, this court considered a verdict very similar to that here. In sustaining the judgment the court said:

“The trial court instructed the jury that if the defendant was found guilty the jury should assess punishment ‘at imprisonment in the state penitentiary for a term not exceeding five years.’ The verdict was not void, as it clearly found the defendant ‘guilty of grand larceny as charged in the information.’ The defect of incorrectly naming the reformatory was waived by failure to object to the reception of the verdict, and further by failure to move in arrest of judgment. Had defendant objected to this apparent defect in the verdict at the time the same was returned, the verdict, no doubt, would have been reformed, but defendant will not be heard to raise a technical question of this kind for the first time on appeal. Having by his conduct in the trial court waived the defect as to the incorrect name of the place of imprisonment, the verdict was sufficient to authorize the court to pronounce judgment of conviction and to imprison defendant in the state reformatory at Granite, an institution provided for the incarceration of convicted felons.”

See, also, Rea v. State, 6 Okla. Cr. 366, 118 Pac. 815; George v. State, 28 Okla. Cr. 388, 231 Pac. 318; Wingfield v. State, 38 Okla. Cr. 435, 263 Pac. 158; Cox v. State, 41 Okla. Cr. 365, 273 Pac. 375; Evans v. State, 35 Tex. Cr. R. 485, 34 S. W. 285.

We perceive that a miscarriage of justice might result if an informal verdict as the one here is permitted to stand. If the jury have a doubt of the guilt of defendant of rape in the first degree and he unwilling to agree to a verdict of guilty that would carry with it a minimum punishment of 15 years in the penitentiary, they might still be willing to assess a punishment in some reform school. The only way defendant could challenge the verdict was by objecting to the sufficiency and form thereof before the jury was discharged and by following this up with a motion in arrest of judgment. We do not understand why the trial court in the face of such objection did not require the jury to further consider its verdict. Section 3100, Stat. 1931. This court in the Kennedy Case, supra, laid down the extreme rule under which it will uphold an informal verdict. In that case the defendant did not object to the reception of the verdict and did not move in arrest of judgment. In substance the court held he waived the defect and virtually consented that the verdict be received. The opinion in that case was not meant to be and is not a license to trial judges to receive over the objection of a defendant such informal verdicts.

We are not unmindful of the rule announced in numerous decisions of this court, that an informal verdict, if free from ambiguity and which conveys beyond a reasonable doubt the meaning and intentions of the jury, is sufficient and all fair intendments will be indulged to sustain it. This verdict cannot be upheld under this salutary rule. There is ambiguity and doubt as to what punishment the jury intended to assess.

The case is reversed and remanded.

DAVENPORT and CHAPPELL, JJ., concur.


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    Ex parte GEORGE SCHAEFFER.
    No. A-8525.
    Feb. 24, 1933.
    (19 Pac. [2d] 619.)
    Thad L. Klutts, for petitioner.
    The Attorney General, for the State.
   CHAPPELL, J.

Petitioner alleges that he was committed to the county jail of Oklahoma county on the 23d day of January, 1933, and is still restrained of his liberty in said jail; that a complaint was filed against petitioner before Paul Powers, a justice of the peace, and preliminary hearing set thereon for February 8, 1933; that the justice of the peace permitted the state to introduce its evidence without reading any purported indictment or information to petitioner or revealing to him the nature of the charge, nor was any indictment or information read into the record or made a part thereof; that the justice of the peace adjourned court for seven days, over the objection of petitioner, without showing any good cause for such adjournment; that the state was not entitled to such adjournment because it had not made any reasonable effort to obtain the attendance of witnesses and had made no showing that such evidence would be produced or would be material to the hearing.

The sheriff of Oklahoma county filed his response, showing that he held defendant under a commitment issued by such justice of the peace, holding petitioner for trial in the district court upon a charge of grand larceny.

Procedure by indictment or information is unknown before a justice of the peace. The presumption is that a proper complaint was filed, warrant issued thereon, and defendant legally brought before the court. While defendant had a right to have the complaint read, and have a copy of the same, such right may be and is waived where no' objections are made and no demand made for a copy of the complaint.

The justice of the peace had a right, without a showing, to adjourn the hearing for a reasonable time to enable the state to complete its evidence.

The evidence discloses defendant was arrested in possession of the stolen property. This was sufficient to support the finding of probable cause.

The writ is therefore denied.

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


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    Ex parte A. J. GARDNER.
    No. A-8522.
    March 3, 1933.
    (19 Pac. [2d] 910.)
    John J. Carney, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

Petitioner alleges that he is unlawfully restrained of his liberty by the warden of the state penitentiary; that in May, 1913, he was charged in Pottawatomie county with the crime of murder; that he entered a plea of guilty and was sentenced to imprisonment for life; and that he has served since said time. He alleges that before entering his plea of guilty he was made to believe by the county attorney if he would plead guilty he would not receive a sentence of more than five years. That he did not have counsel of his own choosing but relied upon the county attorney, that the court did not advise him of his right to have counsel appointed and did not appoint counsel for him. The state has demurred to the petition. The demurrer must be sustained. The matters alleged do not go- to the jurisdiction of the court and do not render the judgment void. It is so well settled as to amount to a truism that habeas corpus may be resorted to only when the judgment is void and it cannot be resorted to in lieu of an appeal, no matter how flagrant the errors in the proceeding, unless they are such as to render the judgment void.

The writ is denied.

DAVENPORT and CHAPPELL, JJ., concur.