author: DOYLE', P. J.

text:
    S. T. RAMEY v. STATE.
    No. A-9647.
    April 18, 1940.
    (101 P. 2d 856.)

      Grant Gillespie, of Okmulgee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE', P. J.

This appeal is from a judgment rendered upon the verdict of a jury finding, S. T. Ramey guilty of the crime of larceny of a domestic animal, and fixing his punishment at two years’ imprisonment in the state penitentiary.

The information in substance charged that in Ok-mulgee county, on or about the 31st day of July, 1938, Esteller Ramey did take, steal and carry away from the possession of Chester Perkins, without his consent, one two-year old white faced dark red bull, the property of the said Chester Perkins. After the overruling of a motion for a new trial December 8, 1938, the court rendered judgment. On March 6, 1939, a supplemental motion for a new trial on ground of newly discovered evidence was filed, which, upon the hearing April 4, was overruled.

The grounds of the motions for a new trial, and here assigned as error, are that the verdict of the jury was not supported by sufficient evidence and is contrary to law, and that the court erred in denying a new trial on the ground of newly discovered evidence.

Prom the evidence it appears that the alleged owner, Chester Perkins, had about 20 head of cattle in W. H. Cooper’s pasture, in Okmulgee county in the summer of 1938, among them the two-year old bull in question. That on July 31st, he saw the bull in the pasture; five days later he went to the pasture to- inspect his livestock and found the bull missing. On August 2nd the defendant in company with, a colored man who gave his name as J. A. Tatum were at the Tulsa Stockyards with this bull and a Jersey cow, which were there sold.

W. H. Cooper testified that he lives three and three-quarter miles east of Bald Hill, in Okmulgee county, that he had in his pasture, during the summer of 1938, about 20 odd cattle, including a dark red white faced bull, about two: and one-half years old, all the property of Chester Perkins. That he lives right at the pasture. Chester Perkins, who lives across the county line in Muskogee county, came over August 5th and they missed the bull, that they looked at the pasture fence and it was in good shape, and they made a search in the neighborhood, but could not find the bull.

J. Gr. Carr testified that he was a cattle salesman for the Blackwell Commission Company, Tulsa ¡Stockyards, and knew the defendant, S. T. Bamey; that on the 2nd day of August, 1938, the defendant brought a red hull and a cow there, a colored man was with him, the defendant told him to sell the cattle, which he did, and the payment was made by check; he produced and identified the check and it was admitted in evidence. The check dated August 2, 1938, payable to S. T. Bamey, was for $93.05.

John Forbes testified he was deputy sheriff of Ok-mulgee county, and arrested the defendant on the charge now pending; that in a conversation with him the defendant stated that he in company with J. A. Tatum took this cow and this bull to the Tulsa Stockyards, and sold them; he said that J. A. Tatum lives around Bald Hill, that he had met him late one night coming down the road and made arrangement either to buy these two' head of cattle or haul them to Tulsa for him, that he drove to his home in Bixby that night, and from there to Tulsa the next morning, and J. A. Tatum was with him and. was at the stockyards when they sold the cattle.

At the close of the testimony for the prosecution, the defendant demurred to the evidence on the ground that there is no evidence tending to identify the cattle alleged to have been stolen with the cattle afterwards found, and moved the court tO' instruct the jury to return a verdict of not guilty, which was overruled.

On the part of the defense, Helen Gordon testified:

“I am and was about the 2nd day of August, secretary of the Blackwell Live Stock Commission Company, at Tulsa. On the 2nd day of August, I saw the defendant and a colored man in the office, the colored man handed me a scale ticket and said his name was J. A. Tatum, and I took his name from the drive-in, the yellow sheet which they check cattle into the yards, containing the name of the consignor, the weight, and the price paid. When I started to' write the check Mr. Ramey told the negro' if he was not afraid to' have the check paid tO' himself, he could get it cashed for him at the Bardon Pawn Shop, and the negro said it was all right, I then made the check payable to S. T. Ramey, and she identified the check introduced in evidence.”

O. L. Mistier testified:

“I am foreman at the Tulsa Stockyards. On August 2nd, this year, I saw the defendant, S. T. Ramey, at the stockyards with two head of cattle, at the cattle dock, and I greeted him and asked: What firm do you want to sign your stuff to ?’ and he said, ‘Talk to that boy over there and he will give you the whole business,’ and pointed to a colored boy, who said his name was J. A. Tatum, and I made out the ticket to J. A. Tatum, and consigned them to the Blackwell Commission Company.”

Bill Johnson testified:

“I have known the defendant for about 15 years, he has lived around Bixby most of that time. He buys and sells a few live stock and works around; last summer about the first of August one evening I was present when a fellow by the name of Jess D arrow wanted him to haul a cow and Ramey said he was going down that night to stay all night, either to- buy some cattle or haul them the next day.”

That he knows the general reputation of the defendant as to being a law-abiding citizen, and that reputation is good.

Ed Key qualified as a character witness and testified that he has known the defendant all his life and knows his general reputation for being a law-abiding citizen in the Bixby community, and that reputation is good.

S. T. Ramey, as a witness in his own behalf, testified :

“I have lived at Bixby for 18 years, for the last five or six years I have been engaged in buying and selling live stock; I hauled a red bull from a place three or four miles south of Tobe Grayson’s farm, and a red cow to Tulsa. The day before I talked with the party that claimed to own these cattle on the road near the Gray-son farm.
“He stopped me and asked if I was buying stock, I told him ‘Yes, I bought a few’. He said, ‘I got a couple that I would like to sell’, that they were back down the road, but I did not go down there that day to see the cattle, it was getting along in the evening. He wanted me to come back the next day, in the morning, and buy them or haul them for him, I told him I could not come the next morning, I had a load at home to take to Tulsa, he said he sure wanted to get them off tomorrow, I said, ‘Well, I will come back from Tulsa, it is liable to be late when I come back’, he said, ‘Now, you come down and if I can’t sell them to you I will hire you to haul them.’ The next day, in the afternoon, about 5 o’clock I started down, when I got there it was sun down, he didn’t tell me his name, bnt I learned later that his name is Jim Brewer, he was there at that pasture, right at the gate and had the cattle tied there at the gate, I didn’t buy them, but I hauled them for him. This man Jim Brewer did not go with me, he sent this Grayson boy with me, to Tulsa, I drove up there at the dock and unloaded them, the checking boy came out and asked who I wanted to- check into, I said, ‘That boy there will tell you, they belong to him.’ We went into the office to- get the check, the negro said, ‘You reckon now I can get this check cashed here’, and I said, ‘I don’t know, if you don’t mind making it in my name, I can get it cashed for you,’ and she just wrote the check in my name, I got it cashed and gave the money to- him, all but $10 for hauling. John Forbes arrested me, about the first of August I think, he said, ‘Is your name Ramey,’ I said, ‘Yes, sir.’ He said, ‘Did you or did you not buy a calf of Tobe Grayson about three weeks ago and give him $10 for it?’ I said ‘Yes, sir.’ He said, ‘Didn’t you buy two of him?’ I said, ‘No, sir.’ He said, ‘Mr. Ramey, we have got Tobe Grayson over in the Okmulgee jail and he says that he sold you a calf for $10 about three weeks ago-, and he. said, ‘I expect I will have to take you over for an investigation.’ Our sheriff there at Bixby was standing there and talking to him. I got in his car and we came on. Right after I got in jail he came in there and said, ‘Mr. Ramey, I have been up at the Tulsa Stockyards where you sold the white faced bull and the red roan cow about the first of August, Where did you get them or where did you buy them,’ that is the way he asked me. I said, ‘I didn’t buy them, I hauled them for a fellow down west of Has-kell, who hired me to haul them to the stockyards, I didn’t have any interest in those cattle except to get the ten dollars for hauling them.’ ”

In rebuttal the state called Mrs. Lena Matthews, she testified:

“I live in Muskogee county, a mile beyond the Ok-mulgee county line, on the old Okmulgee road, I have several cows and calves, including a big red cow, the last time I saw that cow was the evening of August 1st, just after sundown, my son had finished milking the cows, the next morning I missed the cow.”

On cross-examination she stated her cow was in her own pasture and was not in Mr. Cooper’s pasture.

The foregoing testimony embraces all the material facts in evidence.

It is urged that the court erred in overruling the defendant’s demurrer, and motion for a directed verdict of not guilty, interposed at the close of the evidence in chief.

It is said in the brief of counsel for the defendant that:

“The state was compelled to rely wholly upon the alleged statements of defendant to witness Forbes at the time of the arrest and incarceration in the county jail; without this evidence the state failed to- prove that the bull in question was feloniously taken or to connect the defendant, if it did, with said taking. At the time this evidence was admitted by the court there had been no evidence proving, or tending' to prove the corpus delicti. It is our further contention that the testimony of said witness concerning said alleged statements or admissions of said defendant is insufficient taken with all the evidence in chief of the state, to establish the corpus delicti.”

Upon the record before us it is apparent that the foregoing contentions are without substantial merit.

It is not error to permit the introduction of the defendant’s confession before the corpus delicti is proved; for, if the order of proof were reversed and the corpus delicti was first established, and then the confession, the result would not be different. It is the corpus delicti plus the confession, or the confession plus the corpus delicti, that makes the case. State v. James, 96 N.J.L. 132, 114 A. 553, 16 A.L.R. 1141.

Two legal principles, so well established that it is unnecessary to cite authority in their support, are these:

The ruling of a trial judge in refusing to grant a motion for a directed verdict should not be interfered with, if there was any evidence on the issues in the case which required the submission of the question at issue to the jury.

If there is a conflict in the evidence, or different inference may be drawn therefrom, it is the province of the jury to- weigh the evidence and determine the facts; and their determination should not be interfered with unless it appears that such determination was not sustained by sufficient evidence, or was influenced in some way by passion or prejudice.

It is no more the province of an appellate court than of the court of original jurisdiction to determine controverted questions of fact arising upon, conflicting evidence. Neither can lawfully usurp the appropriate function of the other, and neither can substitute its own judgment for that of the jury, where the facts are reasonably capable of diverse or opposing inferences.

The truthfulness of an explanation of the possession of stolen property, although not contradicted, must be determined by the jury. Chesser v. State, 63 Okla. Cr. 84, 73 P. 2d 191.

It rarely happens that perpetrators of an offense committed in the manner here proven, can be shown by witnesses who- saw and recognized the perpetrators in the act, and resort must therefore ordinarily be had to circumstantial evidence.

In our opinion the evidence was amply sufficient to support the verdict and judgment of conviction.

Under the general rule that the defendant cannot give his own self-serving declarations in evidence, the court did not err in overruling the supplemental motion for a new trial.

It appearing that the defendant had a fair and impartial trial, the judgment of the trial court is affirmed.

BAREFOOT and JONES, JJ., concur.


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    GEORGE E. SIMONS v. STATE.
    No. A-9628.
    April 18, 1940.
    (101 P. 2d 852.)

      E. M. Carter and Joe S. Eaton, both of Okmulgee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., ;Sam H. Lattimore, Asst. Atty. Gen., and L. A. Wallace, CO'. Atty., of Ok-mulgee, for the State.
   BAREFOOT, J.

The defendant, George E. Simons, was charged in the district court of Okmulgee county with the crime of murder ; was tried, convicted of manslaughter in the first degree, and the court assessed his punishment at four years in the penitentiary, and he has appealed.

This charge arose by reason of the killing of Dave Franke upon the public streets of Okmulgee, on the 3rd day of August, 1938. He was killed by being hit by an automobile driven by defendant.

The first assignment of error is that the court erred in refusing to strike and suppress the evidence of certain officers for the reason that the same was based upon an illegal search and seizure. For the consideration of this error it becomes necessary to review the evidence presented by the record.

At about 8 or 8:30 a. m., on the morning of August 3, 1938, the deceased, Dave Franke, was walking from his home to his place of business, and while crossing Eighth street at the intersection of Oklahoma avenue, he was struck by an automobile and was injured, and from the injuries received he died on the 13th day of August, 1938. At the time he was injured he was walking north, crossing Eighth street. At this intersection there is a large “stop” sign. Just as the deceased was attempting to cross the street an oil truck drove up going east, and was in the act of stopping at the stop sign. The deceased passed in front of the truck and just as he did so he was struck by an automobile which came around the truck, going east at a speed of 40 to 45 miles an hour, and which said automobile made no stop at the stop sign, and did not stop after hitting the deceased, but sped on east at a high rate of speed, as the witnesses for the state say of approximately 40 or 45 miles an hour. The deceased was whirled around and thrown to the pavement, and from the effects of the injuries received died on the 13th day of August, 1938.

There were three eye-witnesses to the occurrence. We shall not encumber the record with a statement of the evidence of each of these witnesses. Some saw more than others, but the testimony of each is about the same, and was to the effect that the driver of the automobile which struck deceased made no attempt to stop at the stop sign where the accident occurred. That he passed the truck which came to a stop at the stop sign. That he was traveling at the rate of 40 to 45 miles an hour. That he made no attempt to' check his speed, and that after striking deceased, he made no- attempt to stop but sped on.

The evidence was that none of the eye-witnesses were able to identify the defendant as the driver of the car. However, at the time of striking the deceased a knob of the door of the automobile was broken off, and also' a piece of the glass from the front door was broken. These were picked up by a boy who was present just after the collision, and were taken by him to the police station.

A deputy sheriff, J. J. Forbes, on the morning of the 3rd day of August, 1938, was going from his home to the sheriff’s office. He saw an automobile driving at a fast rate of speed and weaving on Eighth street. His attention was attracted by the manner in which the car was being driven, and he turned around and followed the same. The car was driven into a garage, and the witness saiv defendant getting out of the same. He was drunk, and it was necessary for the witness to assist him into- the house and put him to bed. He testified that he arrested him at that time for driving, while drunk or for reckless driving, but left him at home on account of his condition, and proceeded to the office of the sheriff of Okmulgee county. When he arrived there he was informed of the collision in which Dave Franke was injured. He immediately went to the office of the police chief, and in company with Sheriff John Lenox, and Officers Albert Rhea, Johnny Hays and K. L. Alexander, proceeded to the home of defendant, and defendant was taken in charge, and taken to the county jail. That while they were there they made an examination of defendant’s car, which ivas in an open garage, and compared the door knob that had been found at the scene of the accident and found that defendant’s car had the door knob knocked off. They also returned to the city police headquarters after the defendant was in jail, and returned to his home with the piece of glass that had been picked up by the boy at the scene of the collision, and turned over to the officers. This glass was compared with the glass missing from defendant’s car, and was found to fit the same. The officers asked the defendant’s wife for permission to make the examination, and she suggested that they take the car to a garage for the purpose of dismantling the “wing glass”, which they did. The evidence revealed that the officers at no time procured a search warrant before making the investigation and comparisons herein-before stated, and this was tbe basis for tbe objection to the introduction of the evidence hereinbefore stated.

In the first place, it does not occur to us that this comparison and investigation by the officers, where a felony had been committed, could be construed as a search. The car was in an open garage. The defendant had been arrested by one of the deputy sheriffs, who was present at the time the comparison and investigation was made, and who had arrested defendant for the commission of a crime committed in his presence, either of drunken driving or reckless driving. He had permitted him tO' stay at his home temporarily, because of his drunken condition. There can he no question that under the holdings of this court, that an officer who arrests one for the commission of an offense has the right to search.his person and immediate surroundings at the time of his arrest. Newton v. State, 61 Okla. Cr. 287, 71 P. 2d 122; Brumley v. State, 69 Okla. Cr. 122, 100 P. 2d 465; Washington v. State, 37 Okla. Cr. 415, 259 P. 150; Smith v. State, 52 Okla. Cr. 315, 4 P. 2d 1076. The officers did not know at the time of his arrest that defendant had committed the offense of murder. When he learned of this fact he in company with other officers returned to take custody of defendant, which he did, and the investigations and comparisons heretofore related were made. We certainly do not think it was necessary for the officers to be required to secure a search warrant before making this investigation and comparison as the facts here revealed. It would be just as reasonable to say that the officers wlm were called to the scene of a homicide could not make an investigation of the surroundings Avithout the securing of a search warrant. Certainly this Avas not the intention of the law. There is another substantial reason why the introduction of this evidence was not error. It was introduced for the purpose of establishing the identity of the defendant as the person who was driving the automobile which struck and killed the defendant. The eye-witnesses to the collision being unable to identify the defendant, this evidence was introduced for the purpose of identification. The defendant seemed to take the position that he was not driving the car at the time of the collision, but when he took the witness stand in his own behalf, he practically admitted that it was his car1 which struck deceased, and that he was driving, the same. Under his own testimony the jury would have been amply justified in finding that he was the driver of the car which struck deceased and so injured him that he afterwards died. Under these circumstances it cannot be said that defendant suffered any injury by reason of the introduction of the evidence above stated. Rhea v. Territory, 3 Okla. Cr. 230, 105 P. 314; Perkins v. State, 35 Okla. Cr. 279, 250 P. 544, 49 A.L.R. 1129; Sands v. State, 61 Okla. Cr. 206, 67 P. 2d 62; Rogers v. State, 9 Okla. Cr. 277, 131 P. 941.

The last assignment of error is that the verdict of the jury is contrary to the law and the facts, and the court erred in overruling defendant’s demurrer to' the evidence, and in refusing his requested instruction for a verdict of not guilty.

From the evidence heretofore stated, it will be readily seen that the court did not err as above contended. The contention that because the jury refused to' convict defendant of murder and only convicted him of manslaughter, for this reason this eliminated the question of defendant being intoxicated at the time of this tragedy, cannot be conceded. The jury would have been justified under the facts in finding the defendant guilty of murder, but as jurors often do they dealt with mercy and gave Mm the lo-wer sentence of manslaughter. The un-contradicted testimony in this case shows that defendant was not only under the influence of liquor at the time of striking deceased, but that he was drunk. The defendant’s own evidence fully sustains this- statement. He testified that the night before this tragedy he went down town to a resort and there met a friend, and they drank several bottles of beer; that they then went to this party’s house for the purpose of drinking some gin highballs. He said:

“A. Well, we drank quite a lot of gin. Ben had quite a lot there in the ice box and I took what was left in this pint bottle home with me, put in my pocket and told him I wanted it for a drink in the morning. * * * A. Yes, sir, we were drinking, quite a lot.”

Before he left for home they agreed to- go- to Tulsa the next morning, and defendant went home about 11 o’clock. He got up in the morning and went to- a resort and drank two bottles of' beer. He then went to his friend’s house, and he was too sick to go to Tulsa, and his friend told him, “I would like to- have some beer”, and defendant asked him if he had any money, and he said, “No, but I have got plenty of gin left”, and defendant said, “You furnish the gin and I will furnish the beer.” Defendant then went to a restaurant and bought five bottles of beer, and returned to his friend’s home, and “drank some beer, and I drank some gin and I decided if he was not going, to Tulsa and I was feeling this gin and I decided I had better go- home.” It was in this condition that defendant found himself just prior to this tragedy. He further testified: “I came down Alabama and I was traveling pretty fast.” He came up behind the truck that was- slowing down for the stop sign. Instead of stopping behind the truck he “whipped around” the truck and “beat it on by,” running the stop sign which he knew was there, and. inflicted fatal injuries upon deceased, who- had already passed in front of the truck and had already reached a point north of the stop sign and about the middle of Eighth street. His only defense for his action was that he did not see the deceased, and never even knew that his car had struck him, although the force of the impact was such that a knob was torn from his car door and the “wing glass” was broken, and these parts were left upon the streets. The defendant did not stop but drove away at a fast rate of speed estimated at from 40 to 50 miles an hour by those who witnessed the occurrence. He was immediately pursued by Officer Forbes, who found him in a drunken condition getting out of his car at his home.

The defendant further testified:

“A. * * I thought he got me for driving drinking and I talked a little bit and I was getting kind of under then from drinking this stuff. It was working on me. He took me in the house and told me to go and go to bed or something like that, maybe put me to bed — I don’t remember. * * * Q. Were you in the habit of going on sprees? A. Yes, sir, I have. Q. How long have you been in that habit? A. Well, I don’t make a habit of it, just occasionally get out with a bunch and get too drunk.”

Not only was defendant guilty of driving while under the influence of intoxicating liquor, as provided by Oklahoma Statutes 1931, section 10324, O. S. A., title 47, § 93, but he was also guilty of a violation of section 14, chapter 113, Session Laws 1933, O. S. A., title 47, § 92, which is known as the “negligent driving statute”, and which constitutes a misdemeanor. The court properly instructed the jury as to the law in accordance with the provisions of this section.

This is but another of those tragedies which arise when one so far forgets himself as to drive an automobile while under the influence of intoxicating liquor. The deceased was a friend of the defendant. He stated: “I wouldn’t harm a hair on that boy’s head.” His statement when told that the deceased could not live was that, “I wish it had been me instead of Dave Franke.” His good wife and two small children must help him pay the penalty. They shall suffer for the “sins of the father.” She had used her good efforts to. keep him from going on drunken sprees. She, like the good wives and mothers of old, will not desert him in times of trouble. The signs often seen upon the highways of this state should be observed: “If you drink, don’t drive; If you drive, don’t drink.” May the vindication of the law be a lesson to him and to others.

The trial court in his instructions was very fair and protected the rights of the defendant. Not even an exception was taken.

Finding no error in the record, the judgment of the district court of Okmulgee county is affirmed.

DOYLE, P. J., and JONES, J., concur.


author: JONES, J.

text:
    SAM HENSON v. STATE.
    No. A-9640.
    April 25, 1940.
    (101 P. 2d 1060.)

      Sigler & Jackson, of Ardmore, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

Sam Henson, Charley Thatcher, and Henry Russell were jointly charged in the district court of Carter county with the offense of grand larceny; a severance was granted; the defendant Sam Henson was tried, convicted, and sentenced to serve a term of one year and one day in the state penitentiary, and has appealed to- this court.

The codefendants, Henry Russell and Charley Thatcher, testified against the defendant. The chief contention relied upon by the defendant for reversal of this case is that there is not sufficient corroboration of the testimony of the accomplices to sustain the conviction.

In order to fairly consider this question a short summary of the testimony presented by the state should be given.

O. A. Brook, president of the Brook-Owen Company, testified that on or about April 9,19B8, about 10,000 Lucky Strike, 10,000 Camel, and 5,000 Twenty Grand cigarettes, of the approximate value of $160 or $170 were stolen from the company’s warehouse at Healdton, in Carter county, Okla.

Charley Thatcher testified that he was at Fort Sill, Okla., serving a term for desertion from the United States Army; that on April 9, 1938, he was living at Healdton; that he had known the defendant about four years; that on the 9th of April, 1938, he met the defendant at a room of his brother’s over at Mr. OAvensby’s and that he, together with the defendant, Randolph Murray and Henry Russell, planned to> steal some cigarettes from the Brook-Owen wholesale warehouse that night; that Sam Henson and Randolph Murray parked the defendant’s car about one block north of the warehouse; and he and Russell went into the warehouse between 9:30 and 10 o’clock; that they went to the back of the warehouse and shoved the cigarettes out the back door and then locked the door and came out the front; that they took two- cases of cigarettes; that the defendant and Murray took the cigarettes in the defendant’s black Studebaker sedan, and they drove up near County Line out to Tatum; that Sam Henson and Randolph Murray went to Joe Carter’s and sold the cigarettes and returned to- where he and Henry Russell were waiting and gave them $12.50 apiece as their part of the proceeds from the sale of the cigarettes.

Henry Russell, codefendant, testified to substantially the same state of facts as related by Charley Thatcher; and, in addition, related that his brother-in-law was the nightwatchman at the warehouse, and that they were to go into the warehouse and turn on the radio' very loud so that the brother-in-law would not hear them moving the cigarettes out the back door.

Joe Carter testified that he operated a grocery store in Tatum, in Carter county; that on the night of April 10, 1938, the defendant and Randolph Murray came to his place with some cigarettes and tobacco; that they had about 78 cartons of cigarettes, for which he paid them $ 105; that he also bought some Brown Mule, some Prince Albert, some R. J. R., and some Bull Durham tobacco; that he had been twice convicted of violating the liquor laws. This witness was positive in his statement that the defendant came to his place of business and sold him the cigarettes; however, he admitted on cross-examination that at the preliminary hearing he denied seeing the defendant there with Murray on that occasion or at any other time; that Randolph Murray stated to' him at the time of the sale that they were in the grocery business.

Floyd Randolph testified that he was the sheriff of Carter county at the time of the commission of this offense; that the theft of the Brook-0 wen warehouse was reported to him and an investigation was made; that on May 19, 1938, Joe Carter brought to the county jail at Ardmore one full case of Lucky Strike, 20 cartons of Twenty Grand, and an almost full case of Camel cigarettes; that the cigarettes were identified by the Brook-Owen Company as being some of the ones that were stolen from them.

Howard Thatcher testified that he was a brother of Charley Thatcher; that he had a room at Mr. Owensby’s; that he had known Sam Henson about six or seven years; that Sam Henson and Randoph Murray came to> his room about April 9, 1938, in a black car; that Charley Thatcher and Henry Russell were there; that the four men got in Henson’s car and left.

George Owensby testified that on April 9, 1938, Sam Henson and Randolph Murray came to his house where Henry Russell and Charley Thatcher were visiting with Howard. Thatcher; that the defendant and the codefend-ants were all there together at that time.

A. L. Bray testified that he lived at Healdton, near Mr. Owensby’s house; that in the early part of April, 1938, he saw Sam Henson, Randolph Murray, Bob Russell, and another man in a car about eight o’clock a.t night there at Owensby’s house.

In the case of Bliss v. State, 47 Okla. Cr. 225, 287 P. 778, this court held:

“Evidence corroborative of an accomplice need not directly connect the defendant with the commission of the crime; it is sufficient if it tends to- connect him with its commission.
“Evidence corroborating an accomplice and tending to connect the defendant with the commission of the crime need not be direct, but may be circumstantial only.
“It is not essential that the corroborating evidence shall cover every material point testified to by the accomplice or be sufficient alone to warrant a verdict of guilty. If the accomplice is corroborated as to one material fact or facts by independent evidence tending to connect the defendant with the commission of the crime, the jury may from that infer that he speaks the truth as to- all. Such corroborating evidence, however, must show more than the mere commission of the offense or circumstances thereof.”

See, also, in this connection the cases of Moody v. State, 13 Okla. Cr. 327, 164 P. 676; Davis v. State, 18 Okla. Cr. 453, 196 P. 146; Hollingshead v. State, 21 Okla. Cr. 306, 207 P. 104.

The testimony of Howard Thatcher, A. L. Bray, and George Owensby all connect the defendant Sam Henson with the other codefendants as being together in Sam Henson’s automobile the night the theft was committed. Joe Carter’s testimony directly connects Mm with possession of the property which had just been stolen.

The jury was given proper instructions concerning the necessity for corroboration of the testimony of the accomplices; and we hold that the testimony is amply sufficient to sustain the conviction.

Finding no material error in the record, the judgment of the district court of Carter county is accordingly affirmed.

DOYLE, P. J., and BAREFOOT, J., concur.


text:
    HOWARD CURTIS v. STATE.
    No. A-9639.
    April 25, 1940.
    (101 P. 2d 1062.)

      A. W. Billings, of Woodward, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and James G. Young, Co-. Atty., of Woodward, for the State.
   BAREFOOT, J.

The defendant was charged in the district court of Woodward county with the crime of driving an automobile while under the influence of intoxicating liquor; was tried, convicted, and assessed a fine of flOO, and costs amounting to $10.05, and has appealed.

It is contended that the court erred in refusing to give the jury defendant’s requested instruction No. 2, which was as follows: “The court instructs the jury that intoxicating liquor, as used herein is all beverages containing. more than 3.2 per cent, alcohol, measured by weight, and that all other beverages are nonintoxicating.” It is contended that the Legislature, by the enactment of Session Laws 1933, section 1, chapter 153, O. S. A. title 37, section 151, has defined the term “intoxicating liquor” as follows: “Beverages containing more than three and two tenths (3.2%) per cent, alcohol by weight are hereby declared to -be intoxicating; all other beverages are declared to be nonintoxicating.” And that defendant having testified that he had drunk only 3.2 per cent, beer, he could not be found guilty under the law, and that the court erred in failing to give the above instruction.

In the case of Ashcraft v. State, 68 Okla. Cr. 308, 98 P. 2d 60, 62, this court has decided this question adversely to the contention of the defendant. As stated in the syllabus of that case:

“1. Section 1, chapter 153, Session Laws of 1933, 37 Okla. St. Ann., § 151, defines what is ‘intoxicating’ and ‘non-intoxicating’ liquors. The definition under this act was for the purpose of thus classifying beverages, as a foundation for the subsequent licensing and taxing provision. It was not intended to regulate the provisions of the law Avith reference to the enforcement of the criminal statutes.
“2. Oklahoma Statutes 1931, Section 10324, 47 Okla. iSt. Ann., § 93, makes it an offense for one who is under the influence of intoxicating liquor, or who is a habitual user of narcotic drugs, to operate or drive a motor vehicle on any highway within this State.
“3. Under this statute it was the intention of the Legislature to punish those Avho were in fact ‘under the influence of intoxicating liquor,’ AAdiether it be caused from drinking beer with an alcoholic content of 3.2 per cent., or liquor in excess thereof.”

The evidence in the instant case reveals on the part of the state’s witnesses, that defendant was in an intoxicated condition at the time of his arrest by the highway patrolmen. His car was swerving back and forth across the highway. That when they stopped him and placed him in their car he smelled strongly of liquor. His eyes, face, walk and talk had the appearance of a drunk man. When he Avas brought to' the city jail two county officers and the city jailer assisted them, and they testified in substance to the same facts related by the patrolmen; that he was drunk, and they had a hard time getting him up the steps to' the jail, and he could hardly walk. There is ample evidence to' believe that his condition was brought about by reason of the drinking of liquor other than 3.2 per cent. beer.

It is also contended that the court erred in giving instruction No;. 6, which was as follows:

“You are instructed that if you find from the evidence submitted, beyond a reasonable doubt, that at the time and place complained of in the information the defendant, Howard Curtis, drove and operated an automobile upon U. S. Highway 270 at a point about one mile west of the city of Woodward, and in the county of Woodward, state of Oklahoma, while he was under the influence of intoxicating liquor, then and under such circumstances it is no defense to this charge that his so being under the influence of intoxicating liquor, if youi so find, was due to or caused by the consumption of 3.2% beer.”

This instruction cannot be approved by this court. As an abstract proposition of law, it may be true that one who is under the influence of intoxicating liquor by reason of having drunk 3.2 per cent, beer may be guilty of driving a motor car when in such condition, but this is a matter for the consideration of the jury under all the facts and circumstances in the case, and it is for the jury to decide whether or not defendant is in that condition at the time he is charged. The last portion of the above instruction charges upon the weight of the evidence and cannot be approved. However, under the prior decisions of this court, we are not permitted to reverse a rightful judgment of conviction on the ground of the misdirection of the jury, unless, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right. It is provided in Oklahoma Statutes 1931, section 3206, O. S. A. title 22, § 1068, as follows:

“No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.”

See, also, Fannin v. State, 65 Okla. Cr. 444, 88 P. 2d 671; Goodart v. State, 65 Okla. Cr. 472, 88 P. 2d 911; Janeway v. State, 62 Okla. Cr. 264, 71 P. 2d 130; Kizer v. State, 64 Okla. Cr. 222, 78 P. 2d 831.

We have examined the record and the instructions as a whole. From the facts in the case the defendant’s punishment was very light, and notwithstanding the giving of instruction No. 6, we do not think defendant was prejudiced thereby.

Finding no substantial error, the judgment of the district court of Woodward county is affirmed.

DOYLE-, P. J., and JONES, J., concur.


text:
    Ex parte LOGAN WELBORN.
    No. A-9835.
    May 2, 1940.
    (102 P. 2d 624.)

      John J. Carney, of Oklahoma City, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen and Peyton Ford, Asst. Attys. Gen., for respondent.
   JONES, J.

This petition for a writ of habeas corpus was filed by Logan Welborn who had been arrested by George Goff, sheriff of Oklahoma county, and is held in the county jail of Oklahoma county under a warrant issued by the Governor for his return to the state of Texas upon a requisition from the Governor of that state, alleging that he is a fugitive from justice. The charge is the embezzlement of approximately $940 from one Laura Lee Barnes.

In the petition herein it is claimed that the petitioner is not a fugitive from justice, and that the indictment pending against him in that state is not in good faith for the purpose and with the intent of punishing him for any crime by him committed, but for the sole purpose of attempting to force him to* make a payment of money he had borrowed from the complainant.

A hearing was had before this court, and the proof shows that the complainant is a widow who resides in Beaumont, Texas; that about October 1, 1939, the petitioner moved into a house owned by the plaintiff; that the petitioner had been buying furs for several years and represented to the complainant that a good profit could be made buying and selling furs in Texas; that at the suggestion of the petitioner the complainant Barnes advanced $940 for the petitioner to use in buying furs, with the understanding that she was to receive back the money that she had advanced and a percentage of the net profits. Welborn purchased a large quantity of furs and had them stored in Beaumont. About February 17, 1940, a sale of these furs was made. That Welborn advised the complainant Barnes that he would come by and pay her the money the afternoon of the date of the sale. That after the sale of the furs was made, the petitioner left Beaumont and was not seen by the complainant after that date. He did not communicate with the prosecutrix or tell her where he was going. An indictment was filed charging three counts, to wit: embezzlement, larceny by fraud, and larceny by bailee. The defendant was located in Oklahoma City, arrested upon demand of the state of Texas, and these proceedings followed.

The petitioner testified before this court and was cross-examined by the prosecuting attorney of Jefferson county, Tex. His story concerning the transactions with Mrs. Barnes was contradictory to the statements he had given to the attorney for the Governor in the hearing before the Governor.

An affidavit from the complainant Barnes setting forth the facts and circumstances of her transactions with the petitioner was introduced in evidence and shows that the prosecution is in good faith. This court allows the use of affidavits in habeas corpus proceedings where the complaining witness or other witnesses are in foreign jurisdictions and not available to appear personally before the court to1 testify.

The Supreme Court of the United States and the courts of last resort of a majority of the states hold that on the hearing of a habeas corpus sued out for the liberation of one who is sought to be extradited for the violation of the criminal laws of another state, upon a warrant of the Governor, issued upon a requisition of the demanding state, it is not admissible to hear evidence upon, or to inquire into, the motives or purpose of the prosecution. These authorities are all annotated and discussed at length in 94 A.L.R. 1496.

This court has followed the minority rule that in every extradition case the question of good faith of the prosecution is always open to inquiry on habeas corpus. See Ex parte Owens, 34 Okla. Cr. 128, 245 P. 68; Ex parte Maddox, 55 Okla. Cr. 114, 25 P. 2d 1111; Ex parte Johnson, 29 Okla. Cr. 41, 232 P. 452.

However, even though this court follows the minority rule, still in a habeas corpus hearing before us to secure the liberty of a person charged with an offense in a sister state, the petitioner must introduce facts which are clear, convincing, and without doubt that the prosecution in the demanding state is in bad faith. In this instance the petitioner has wholly failed to sustain this burden.

The writ of habeas corpus is therefore denied, and petitioner is remanded to the custody of the agent of the Governor of the state of Texas for transportation to the state of Texas in pursuance to the warrant heretofore issued.

DOYLE, P. J., and BAREFOOT, J., concur.


text:
    MRS. A. A. BUCKLEY v. STATE.
    No. A-9601.
    May 2, 1940.
    (102 P. 2d 619.)

      Baker H. Melone, of El Reno-, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and ¡S. T. Roberson, Co. Atty., of El Reno, for the State.
   BAREFOOT, J.

Defendant was charged in the county court of Canadian county with the crime of unlawful possession of five and one-half gallons of intoxicating liquor; was tried, convicted, and sentenced to- pay a fine of $50, and to- serve a term of 30 days in the county jail, and has appealed.

For reversal of this case it is contended:

“(1) That the court erred in permitting the introduction of testimony as to the reputation of the home of the defendant as a place wherein intoxicating liquors were kept for sale, without there having been laid the proper predicate as required by law for the introduction of such testimony.
“(2) That the court erred in permitting the introduction of testimony concerning an alleged sale of intoxicating liquor by defendant approximately three (3) months prior to the alleged commission of the offense in the instant case, and at a place entirely separate and apart from the home of the defendant where she was living on August 1, 1938.”

These propositions may be considered together.

We do not consider it necessary to give in detail the evidence in this case, but will give only a brief statement thereof.

The defendant resided in the city of Yukon. Her husband had previously died. She occupied a “trailer” on a vacant piece of property. Previous to the time which she was charged on the 1st day of August, 1938, a trailer in which she lived had burned. She had secured a new trailer and the same Avas located on the same premises and about 60 feet west of the one previously burned. At the time of the charge against her she was working in the W. P. A. Sewing Room in El Reno-.

Just after dark on the above date a search warrant had been secured by the officers of Canadian county, and four officers searched her premises. It is admitted by defendant that the search warrant was in proper form. As a result of the search five one-gallon jugs of corn whisky were found about two steps from the door of the trailer in the weeds with a rug thrown over the same. One-half gallon was found in the driveway just three or four steps from where defendant and several men who were at her home at the time of the raid were seated. Upon the approach of the officers three of the parties ran and were not apprehended by the officers. They testified for defendant, and their evidence revealed that they were under the influence of intoxicating liquor at the time of the search.

Defendant denied being in possession of the whisky or having any knowledge of it being there. There were a number of witnesses for the state who testified that they lived in close proximity to the trailer occupied by the defendant; that upon many occasions they had seen parties going to- and coming from the premises of defendant; that they would be intoxicated, and were talking in a loud and boisterous manner; that a C. C. C. Camp was located at Yukon, and many of these men were seen to gO' there and return late at night.

H. H. Flick testified that he lived about 225 feet south of where defendant lived, and had lived there for 30 years. For a year and a half or two' years he had observed people going to and from the premises of defendant, many of them being boys from the C. C. C. Camp. He could tell them from the way they were dressed. He further stated:

“Q. What goes on there at that place with relation to various people going to and coming from there as to whether or not they are in a drunken state or semi-drunken state, or perfectly sober? A. I would say that those men go there and get, some of them, get pretty noisy and they have had one or two battles out there in the streets. * * * Q. They annoy your family? A. Yes, sir.”

Arthur Odie, a member of the C. C. C. Camp at Yukon, testified that he lived there for 20 years, about one-half block from where defendant lived. He remembered her trailer burning in December, 1937. He lived with his mother. He further' testified:

“Q. Now I will ask you whether or not you have observed situation there around the Buckley place with relation to comings and goings of various and sundry members of public and with C. C. C. Camp boys there? A. Well, at times it was a drunken brawl. * * * Q. What have you observed about that place within the past year with relation to comings and goings of different people? A. Well, more or less of different ones or same ones all the time of day made it point to' gO' down there and come away drunk, boys drunk and cursing. Q. How often did that occur? A. Well, more or less during the first part of the month. Q. Every month? A.. Yes. Q. I will ask you whether or not you know of your own knowledge of any men there in camp who are accustomed to getting drunk habitually and on regular occasions go to Buckley place and buy whisky? A. I have noticed the same men I have worked with four years and I know they are habitual drunkards and they made it a point to hang around there, going to and coming from there. Q. Now have you noticed on occasions when they were there whether they were drunk or sober? A. I have noticed they were drunk when they come from there. * * * Q. Just tell this jury what the situation is with regard to- noise and carousing that may go on there, if any? A. Well, it causes disturbances in our neighborhood, to our peace of mind. Q. Tell us what they do? What goes on? A. Quite a bit of hollering and walking • around by this place, there is loud cursing and loud talking nights and day time. Q. That is aside from the drunkenness you have already explained? A. Yes. I have also been woke up at all hours of the night to- answer to- tell some stranger where this place was. * * * Q. Did this bother your mother? A. Considerable. Q. Bothered both of you? A. Yes, sir. Q. Did any other neighbors complain to- you about this noise? A. Yes. Q. How long has this been going on? A. Well, every since they moved there more or less. Q. Ever since Mr. Buckley was there? A. Yes, sir. Q. And it continued since he left? A. Yes, sir.”

William It. Hinkle testified as follows:

“Q. Are you acquainted with this defendant? A. Yes, sir. Q. About how long have you known her? A. Approximately about five months, or six. Q. Where do you live from where she lives? A. Straight west about a block and a half. Q. Did you ever buy whisky from her? A. Yes, sir. Q. When? A. Between the first and the third day of May. Q. Of this year? A. Yes. Q. Where were you when you bought it? A. I was at her house. Q. What kind did you buy? A. I don’t know. I just know it was whisky that is all. Q. Was it corn whisky, or bonded whisky? A. I would say it was corn whisky. Q. What did you pay her for it? A. I paid her 75 cents. Q. You bought it from her? A. Yes, sir. Q. There at her place? A. Yes, sir.”

After the evidence was introduced the state recalled Deputy Sheriff Tony Kirkegard, Charley McClure, and Arthur Odie, and they testified that the general reputation of defendant’s home as a place where intoxicating liquor was kept and sold was bad.

In support of defendant’s contention, certain prior decisions of this court are cited to sustain the contention that the court erred in permitting the state to introduce evidence of the reputation of defendant’s home. A careful reading of these cases reveals that when applied to the facts in the instant case they do not sustain the contention of defendant, but under their holding this evidence was admissible.

In the case of Lotta v. State, 30 Okla. Cr. 105, 235 P. 245; Yakum v. State, 30 Okla. Cr. 184, 235 P. 253; and Beatty v. State, 34 Okla. Cr. 418, 246 P. 1103, the general rule is announced that evidence of the general reputation of defendant’s home as being a place where intoxicating liquors were sold is admissible, only upon the laying of a proper predicate showing that the home was a place of general or public resort. In the instant case that is exactly what the state did. Before the state introduced the evidence of the reputation of defendant’s home, it was proved by at least three of her neighbors that her home was a place of public resort. This evidence has been heretofore quoted. The statute requires before a home may be searched that an affidavit shall be made for the securing of a search warrant, and further provides, Oklahoma Statutes 1931, section 2639, O. S. A., title 37, § 88, as follows:

“No warrant shall be issued to search a private residence, occupied as such, unless it, or some part of it, is used as a. store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort.”

Under the above statute it does not necessarily mean that a place of business shall be conducted there, nor that a bar shall be set up, but if one uses his home as a place of storage of intoxicating liquors, wihch are stored with the intention of a violation of the liquor laws of this state, or if the home is used for permitting persons to come to the home for the purpose of purchasing liquor, either to be consumed upon the premises or for the purpose of purchasing and carrying away, it then becomes a place of public resort, as contemplated by the statutes. It was just this character of cases to which reference was made in the case of Denton v. State, 62 Okla. Cr. 8, 70 P. 2d 135, 138, when this court said:

“But with the passing of time a few of our citizens seem to forget the sacredness of their home and fireside and, in their eagerness to make money and in an effort to- defeat the law, they have degraded their homes by bringing liquor and other instruments of crime therein for the purpose of using them in violation of the laws of this country, thereby hoping to receive protection through the sacred right of forbidding their homes to be searched, under the terms of the Constitution.”

This court has often held that where one is charged with the unlawful possession of intoxicating liquor proof of prior possession of or previous sales are admissible to show the intent of the party charged. Hill v. State, 3 Okla. Cr. 686, 109 P. 291; Rice v. State, 5 Okla. Cr. 68, 113 P. 203, 207.

It has also been held that where a proper predicate was laid, proof of the reputation of the premises was admissible, but that proof that defendant was a bootlegger ivas inadmissible. In the case of Ward v. State, 15 Okla. Cr. 150, 175 P. 557, 558, which is based upon the case of Wilkerson v. State, 9 Okla. Cr. 662, 182 P. 1120, the court says:

“The rule that evidence of the reputation of the place as being a place Avhere intoxicating, liquor is kept for sale may be established in a case Avhere the defendant is charged with the unlawful possession of such liquors in such place, if such a place be one resorted to by the public for that purpose, is established in the former opinions of this court. The reason for the rule is thus stated in Kirk v. State, 11 Okla. Cr. 203, 145 P. 307:
“ ‘It is held in that case (Wilkerson v. State, 9 Okla. Cr. 662, 132 P. 1120), and uniformly in all cases where the offense charged was unlaiviul possession, that testimony tending to show that the defendant had previously sold other liquor, or kept other liquor for sale, is admissible on the question of intent, and if such liquors were kept at a place at which the public generally resorted, and the circumstances of the case indicated that such place Avas used for the purpose of selling intoxicating liquor, the general reputation of such place is admissible on the question of intent.’
“The reputation of the place as one where intoxicating liquors are kept for sale is an asset of trade, and as much a substantial element of the intent of the person who keeps liquors in such a place as is evidence that the place was fitted up with a bar and other fixtures and appurtenances of a liquor saloon. Intent to sell is as much an element of the offense of unlaAvful possession under our statute as is the intent to sell where the offense charged is the keeping and maintaining of a place where intoxicating liquors are received and kept for the purpose of sale. If the proof shows that possession of such liquors are in a place of public resort, why should not the reputation of such a place be admissible in either case on the question of intent to sell? This court has unequivocally held that the reputation of the place of keeping may be proved, where the offense charged is maintaining a place for the purpose of sale. We see no good reason for admitting such evidence in that class of cases, and in excluding it in this class, where the facts show possession in a place of public resort. The same logic and reasoning that will support the theory upon which such evidence is held admissible in the former class of cases supports its admissibility in the latter.”

In the Kirk Case, supra, the court further stated:

“The Attorney General contends that under the doctrine of the Wilkerson Case, 9 Okla. Cr. 662, 132 P. 1120, the general reputation of the defendants as to being bootleggers was competent and admissible. We do not assent to this contention. The Wilkerson Case was a prosecution for unlawful possession with intent to violate provisions of the prohibitory law. It is held in that case, and uniformly in all cases where the offense charged was unlawful possession, that testimony tending to show that the defendant had previously sold other liquor, or kept other liquor for sale, is admissible on the question of intent, and if such liquors were kept at a place at which the public generally resorted, and the circumstances of the case indicated that such place was used for the purpose of selling intoxicating liquor, the general reputation of such place is admissible on the question of intent.”

In a number of cases, in discussing the question of the sufficiency of the search warrant to enable the officers to search the private residence of a defendant, it has been held that the description as being a “place wherein persons congregate to drink liquor” is sufficient to search the place as one of public resort. Mitchell v. State, 43 Okla. Cr. 63, 277 P. 260; Jay v. State, 42 Okla. Cr. 32, 274 P. 487; Cudjo v. State, 34 Okla. Cr. 199, 245 P. 906.

For the reasons above stated, the judgment of the county court of Canadian county is affirmed.

DOYLE, P. J., and JONES, J., concur.


author: BAREFOOT, J.'

text:
    HAROLD VARNER v. STATE.
    No. A-9724.
    May 9, 1940.
    (102 P. 2d 615.)
    Tom Wallace, of .Sapulpa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jesse L. Pullen, Asst. Atty. Gen., and Sim T. Carman, Co. Atty., of Pawhuska, for the State.
   BAREFOOT, J.'

The defendant was charged in the district court of Osage county with the crime of rape in the first degree; was tried, convicted and sentenced to serve a term of 15 years in the penitentiary, and has appealed.

The only assignment of error relied upon for reversal of this case is that the evidence is insufficient to sustain, the judgment and sentence, and that the court erred in failing to sustain a motion for a directed yerdict.

The defendant relies upon the cases of McLaurin v. State, 34 Okla. Cr. 324, 246 P. 669, and Wines v. State, 7 Okla. Cr. 450, 124 P. 466. The state relies upon the cases of Deal v. State, 59 Okla. Cr. 385, 60 P. 2d 408, and Work v. State, 63 Okla. Cr. 433, 75 P. 2d 1161.

The facts as revealed by the record, and briefly stated, are: A junior and senior banquet of the Berryhill school in Tulsa county was being held on the night of May 13, 1938. The prosecutrix, whose name at the time was Mary Euth Kinney, who has subsequently married, was 16 years of age. She lived with her mother and father about one-half mile south of the school, and, on the above date, had walked by herself to the schoolhouse to attend the banquet. She was dressed in an evening dress. She there met Dorothy Burleson, a girl friend, and Burl Walker, whom she knew. Just as the two girls were leaving the banquet they met Burl Walker and the defendant, Harold Varner, near the door. Prosecutrix was introduced to defendant, whom she did not know, but whom she had seen at baseball games prior thereto. It was agreed that they would go driving in defendant’s car, a Chevrolet coupe. Prosecutrix testified they agreed to take her home. Dorothy Burleson, in company with Burl Walker, walked to her home and changed her dress and they were afterwards picked up by the defendant and prosecutrix. They then went by the home of prose-cutrix, but did not stop, but drove on through Sand Springs and into the country in Osage county. It was about 10 o’clock at night. Defendant W'as driving and prosecutrix sat next to him while Burl Walker was sitting in Dorothy Burleson’s lap. Defendant drove into a side road where it was a wooded country and stopped. Defendant got out of the car, and he and Dorothy Burle-son had a conversation behind the car. Dorothy Burle-son and Burl Walker then walked away from the car and were followed by defendant and prosecutrix. The couples then separated, and defendant and prosecutrix returned to the car from where they had walked, the point where they had first turned off the main highway.

Prosecutrix testified that she had complained to Dorothy Burleson and Burl Walker that defendant had attempted to mistreat her, and asked for their help, but that they did not do anything. She testified that when defendant asked her to go to the car, she refused, and defendant took hold of her and forced her tO' go back. That when they got to the car he threw her to the ground on her back and then bodily lifted her to the front fender of the car and by force overcoming, her resistance had intercourse with her. Her evidence was that during the time of this act of intercourse, the other couple hollowed at them and asked if they wanted the cushion which they had taken from the car, and that defendant answered, “Yes,” and that both Burl Walker and Dorothy Burleson returned to the car, and saw them in the act of intercourse. Prosecutrix further testified that these parties told them that they had heard someone in the woods nearby. She testified that the four of them entered the car and drove back to Sand Springs to a filling station and that defendant ordered cold drinks, but that she did not take any.

Defendant testified that prosecutrix drove the car after leaving the filling station. This prosecutrix denied. They drove again to a side road and turned off. This was in Tulsa county. Prosecutrix then testified that the performance was repeated just as it was in the first place as heretofore related. That after the other couple left, the defendant, by force, placed her on the front fender of the car and had intercourse with her a second time. Her explanation of why she stayed in the car was that she thought she could keep friendly with defendant until she could get away. After this the defendant took all the parties home. Prosecutrix being first taken, and they arrived at her home about 1:30 a. m. Upon going into her home prosecutrix immediately informed her parents what had happened, saying that Harold Varner “had taken it away from her.” The father and one of her brothers immediately went to Tulsa and reported to the officers of Tulsa county, and on the next morning a warrant for the arrest of defendant, charging him with the crime of rape by force in Tulsa county, was filed. The record does not disclose what disposition was made of that case. Defendant was afterwards charged in Osage county in connection with the first act as heretofore stated, and was tried and convicted.

On the morning after the date charged in the information prosecutrix was taken before the acting superintendent of the city board of health, Dr. James H. Neal. His testimony was as follows:

“Q. What examination did you make? A. Made a vagina examination with rubber gloves in the presence of the matron at the city jail, and on examination I found some roughness or rather a little oozing of blood, flesh spot or blueness there due to congestion of the venous blood in that area. In addition in this case — I examine so many cases, if you will pardon me — I had to refresh my mind, and I just phoned back long distance to Tulsa to get Mrs. Jackson and she was not on the case, and I was referred to' Spencer, a laboratory man, and this patient had an examination on Friday morning, May 14th, at the city board of health laboratory, and that recalled to my mind the case, and I remember now that she had penetration in addition to this bruise, and it seemed that she had some rough treatment recently. This is the way it was. I have it now in mind, the case. Q. From your examination and experience as a doctor and what you observed there, would you say that she had recent sexual intercourse? A. Yes, sir.”

The state then offered in evidence the clothing worn by prosecutrix on the night of May 13, 1938, and they were examined by the jury. They showed blood stains.

The father and mother of prosecuting witness both testified to her telling them what had happened immediately upon her return home. The father and one of her brothers going to Tulsa to see the officers, and of the examination of prosecutrix by the acting superintendent of the city board of health.

Roy Raines, a deputy sheriff, testified to the arresting of defendant, but gave no material testimony.

The defendant testified in his own behalf and corroborated much of the testimony heretofore stated. He admitted that he had intercourse with prosecutrix on the two occasions mentioned, but said that it was voluntary on the part of the prosecutrix. That she removed a part of her clothing and placed them in the car. That the first act was finished before Burl Walker and Dorothy Burle-son returned to the car. That when they returned to Sand Springs they stopped to get a cold drink and that two policemen whom he knew were there. That prose-cutrix made no request or attempt to leave the car, and that she herself drove the car and he handled the brake. That when they returned home he made a date with prosecutrix for Monday night, and that she agreed to go with him.

This was the only evidence offered by defendant. It will be noted that neither Burl Walker nor Dorothy Burleson testified either for the state or the defendant. Here was a case in which the defendant was charged with a crime that carried a death penalty as the maximum punishment and 15 years in the penitentiary as a minimum punishment. The defendant, under the law, had the right to produce the evidence which he desired to present. The same is true of the state. But under the facts as they appear in the record in this case, and taking into consideration the penalty provided by the statute, either the defendant or the state, it seems to us, owed a duty to the jury to place the two eyewitnesses, Burl Walker and Dorothy Burleson, upon the Avitness stand. The jury, in justice to any decision they might render, should have had an opportunity to know whether they corroborated the statement made by the prosecu-trix or the statement made by the defendant. If they had corroborated the prosecutrix, the jury would have evidently returned a verdict of guilty; if they had corroborated the defendant, they would have in all probability returned a verdict of not guilty.

We have examined the facts in the four cases presented. The facts in the McLaurin and Wines Cases are dissimilar1 to the facts in the instant case. It is not necessary to point out the distinctions, as those Avlm are. interested may read the cases. In the McLaurin Case a strong motive was shown for the prosecutrix to1 testify as she did. The defendant had much evidence that corroborated his testimony. The defendant testified that he at no time had sexual intercourse with prosecutrix. Competent evidence was offered by defendant, and its admission \Aras denied by the court. For' all these reasons the case was rightfully reversed.

In the Wines Case the defendant, 50 years of age, Avas charged with rape upon his 16 year old adopted daughter. He denied having ever had any illicit relations with her at any time. The prosecutrix said nothing about it until some time after she claimed it had happened. Her evidence was contradicted by several Avitnesses upon material facts. In that case the court said [7 Okla. Cr. 450, 124 P. 470] :

“The evidence shoivs that her person bore no marks or bruises and that her underclothes were neither stained nor torn; that she was examined by two' physicians on the request- of the prosecution a few days after the alleged outrage, and they found no injuries, laceration, or inflammation of her genital organs except the absence of the hymen, and they did not undertake to determine or state the cause of its absence. * * * The testimony of the physicians, taken as a whole, tends to discredit the testimony of the prosecutrix as to the violation of her person.”

The trial court refused to give a requested instruction defining rape in the second degree. ' The court held that under the evidence this was clearly error, and reversed the case.

In the Deal Case, relied upon by the state, the facts are different than in the instant case, and, to our mind, much stronger. In this case defendant struck and bruised the prosecutrix, and the physical facts corroborated this, and the testimony of the physician who examined her “gave as his opinion that some person had recently had sexual intercourse with her.” [59 Okla. Cr. 385, 60 P. 2d 409.] Other witnesses corroborated the testimony of the prosecutrix upon material facts. In this case the judgment and sentence was modified by this court from 35 years in the penitentiary to 15 years, the minimum punishment allowed under the statute under which defendant was charged.

The facts in the Work Case are more nearly in point than any of the cases cited. It is unnecessary to review the facts in that case. We stated [63 Okla. Cr. 433, 75 P. 2d 1164] :

“It will thus be seen that there was a direct conflict in the evidence. Under the evidence of prosecutrix, defendant was guilty of rape by force and his punishment could have been assessed under the law at death or not less than 15 years in the penitentiary. Under defendant’s testimony he was not guilty. If no- force was used and the prosecutrix had voluntarily submitted to the act of intercourse, then he was not guilty of rape by force. The jury were the final arbitrators of his fate. They saw and heard the witnesses, observed their demean- or upon the stand. They had the best opportunity to judge the truthfulness of the statements of those witnesses. They were from the home county of both the parties, and under the law their judgment ought to be final. They found the defendant guilty of assault with intent to commit rape, and left the punishment to the court. The court assessed punishment at one year in the reformatory. The defendant has been ably represented. His defense was placed squarely before the jury, and they decided the issue against Mm. Under the law and facts he could have been given much more severe punishment. He has received a fair and impartial trial, and therefore the judgment of the district court of Cleveland county is affirmed.”

This court has many times held that there is no rule of law which forbids a jury to convict for the crime of rape upon the uncorroborated testimony of the prose-cutrix, provided they are satisfied beyond a reasonable doubt of the truth of her testimony. Johnson v. State, 5 Okla. Cr. 1, 4, 112 P. 760; Harris v. State, 27 Okla. Cr. 405, 228 P. 525; Malone v. State, 40 Okla. Cr. 102, 267 P. 486; Allen v. State, 35 Okla. Cr. 64, 248 P. 655; Lane v. State, 48 Okla. Cr. 84, 289 P. 357; Day v. State, 29 Okla. Cr. 49, 232 P. 122. But we have also held that a conviction will not be arbitrarily sustained upon such evidence, and especially where her evidence is conflicting, or where she is contradicted by disinterested witnesses upon material statements. Morris v. State, 9 Okla. Cr. 241, 131 P. 731; Johnson v. State, 52 Okla. Cr. 397, 5 P. 2d 772; Ferbrache v. State, 21 Okla. Cr. 256, 206 P. 617; Douglas v. State, 19 Okla. Cr. 257, 199 P. 927; Williams v. State, 61 Okla. Cr. 396, 68 P. 2d 530.

In the instant case the prosecutrix is in no way contradicted except by the defendant. Evidence, heretofore stated, was offered by the state to corroborate her evidence, and while the jury and this court would have desired to hear and have recorded in the record the testimony of the witnesses, Burl Walker and Dorothy Burle-son, yet neither the defendant nor the state saw fit to place them upon the witness stand. The defendant having been found guilty by the jury of his own county, who saw the witnesses, heard their evidence, and saw their demeanor upon the witness stand, and examined the exhibits, must stand the consequences. As an appellate court, it is not for us to say what our decision would have been had we been members of the jury.

The defendant has not asked for a modification of the judgment and sentence in this case, and this for the very good reason that defendant was given the minimum punishment provided by the statute of 15 years. Oklahoma Statutes 1931, section 2519, O. S. A., title 21, sec. 1115. If under the law we were permitted to modify this sentence, this court, after reviewing this record, would feel inclined, in the interest of justice-, to substantially modify this judgment and sentence. This, however, is, under our Constitution, a question for the consideration of the Chief Executive of this state, who has the power to pardon and parole.

This defendant was unable to give bond pending- the appeal of this case, and has been confined in the penitentiary during that time, and for this reason his case was advanced by the court.

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

DOYLE, P. J., and JONES, J., concur.


text:
    S. M. OVERTURF et al. v. STATE.
    No. A-9670.
    May 9, 1940.
    (102 P. 2nd 623.)
    Joe Adwon, of Oklahoma City, for plaintiffs in error.
    Mac. Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendants S. M. Overturf and S. E. Grubb were charged in the common pleas court of Okla-boma county with the offense of illegal possession of intoxicating liquor, were tried, convicted and sentenced to each serve a term of six months in the county jail and to pay a fine in the sum of $500, and have appealed.

The proof shows that on. January 6, 1939, a search warrant was issued for service on the Pine Knot Bar, located at 16 South Robinson street in Oklahoma City. That on January 14th, two of the deputy sheriffs went to this place of business, and after entering the same saw about 200 pints of whisky sitting, in plain sight on the floor. The defendant Overturf was sitting at a desk making records of whisky sales; the defendant Grubb was behind the bar mixing drinks. The books of the defendants were seized and introduced in evidence. These books showed that various kinds of liquors were kept for sale; the various brands were listed on a record, and the number of pints of each brand which were sold daily were noted in the book. An examination of so much of the record as was introduced in evidence shows that the liquor sales averaged approximately $250 per day.

In their brief filed with this court, the defendants make only one contention. They insist that the court erred in refusing to sustain their motion to suppress the evidence for the reason that the search warrant was not executed within three days after it was issued, and cite in support of this contention the case of O’Neal v. State, 65 Okla. Cr. 390, 87 P. 2d 1108, decided by this court on March 3, 1939.

Section 3231, O. S. 1931, 22 Okla. St. Ann. § 1231, provides as follows:

“A search warrant must be executed and returned to the magistrate by whom it is issued within ten days. After the expiration of these times respectively, the warrant, unless executed, is void.”

This court, in the case of Whitwell v. State, 65 Okla. Cr. 178, 83 P. 2d 881, 882, in an opinion by Judge Doyle held:

“A search warrant otherwise valid which has been executed within ten days from the time it was issued is not rendered invalid by the failure of the officer to make return thereon.”

To the same effect are the cases of Viadock v. State, 30 Okla. Cr. 374, 236 P. 56; Mullus v. State, 32 Okla. Cr. 134, 240 P. 135; Crim v. State, 68 Okla. Cr. 390, 99 P. 2d 185.

The case of O’Neal v. State, supra, and the case of Reynolds v. State, 48 Okla. Cr. 131, 289 P. 782, interpreted section 2635, O. S. 1931, 37 Okla. St. Ann. § 84, which provides the procedure which may be followed in the procurement of a search warrant to make a search of premises for intoxicating liquor, and the views expressed in these cases are in direct conflict with the opinions in the cases hereinabove cited.

Section 2635, O. S. 1931, 37 Okla. St. Ann. § 84, supra, makes no reference to the time within which a search warrant must be executed other than to say that a return showing the manner of service shall be made within three days. This provision should be harmonized, if possible, with section 3231, 22 Okla. St. Ann. § 1231, supra, which expressly provides that the warrant must-be executed within ten days, and that after the expiration of ten days the warrant unless executed is void. It would seem from the expressions of this court in all of the above cases that the date of the filing of the return is immaterial, but that the decisive question is the date of the service of the search warrant. There is no ambiguity about the provisions of section 3231, 22 Okla. St. Ann. § 1231, supra. By reason of the apparent conflict of the decisions of this court concerning this matter, we now hold that the officer to whom the warrant is directed has ten days within which,to execute the same after it is issued, and that the provision in section 2635, O. iS. 1931, 37 Okla. St. Ann. § 84, providing for a return to be filed within three days giving a statement of the property seized, is directory only. The cases of O’Neal v. State, 65 Okla. Cr. 390, 87 P. 2d 1108, and Reynolds v. State, 48 Okla. Cr. 131, 289 P. 782, be and the same are hereby expressly overruled in so' far as they hold contrary to the views herein expressed.

Furthermore, in this case the officers did not need a search warrant. The place of business was open to the public; the public was invited to enter their bar and purchase drinks of various kinds. The liquor which was seized was sitting on the floor in plain sight of the officers. Under circumstances such as these, no search warrant was necessary, as the offense was committed in the presence of the officers. See White v. State, 45 Okla. Cr. 103, 281 P. 824; Grimes v. State, 65 Okla. Cr. 99, 83 P. 2d 410; Martin v. State, 43 Okla. Cr. 273, 277 P. 950; Rhodes v. State, 46 Okla. Cr. 219, 287 P. 812.

The defendants were each given the maximum sentence provided by the law. Neither of the defendants testified in this case. The evidence indicated that these men had run an open saloon in the very heart of downtown Oklahoma City for a period of approximately six months before the time of this raid. The volume of business as shown by the records of the defendants was large, and they amply deserved the punishment which has been inflicted.

For the reasons herein assigned, the judgment of the common pleas court of Oklahoma county is hereby affirmed.

DOYLE, P. J., and BAREFOOT, J., concur.


author: PER CURIAM.

text:
    Ex parte S. O. HARRIS.
    No. A-9850.
    May 9, 1940.
    (102 P. 2d 614.)
    Tom Waldrep, of Shawnee, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The petitioner, S. O. Harris, on April 29, 1940, filed in this court a petition signed and verified by his oath wherein he avers that he is unlawfully restrained of his liberty by C. C. Haivk, sheriff of Pottawatomie county, at and in the common jail of said county, and for the reasons stated therein petitioner prays that a writ of habeas corpus be granted, and that he be discharged.

On May 1st, the respondent filed a demurrer to the petition and the cause was set for hearing on May 2nd, at which time both parties appeared by counsel, and following the arguments the petitioner filed his motion to dismiss the cause. It was thereupon considered and ordered that said motion to dismiss be sustained and the cause be dismissed, and it is so ordered.


text:
    STATE v. BILLIE BOSTON.
    No. A-9592.
    May 16, 1940.
    (102 P. 2d 889.)

      Amos Stovall, Co. Atty., of Anadarko, for plaintiff in error.
    Sam L. Wilhite, of Anadarko, for defendant in error.
   JONES, J.

The defendant Billie Boston was charged in the county court of Caddo eounty, Okla., with the alleged offense of omitting to provide for an illegitimate minor child.

The information, omitting the caption, reads as follows :

“Now comes Amos Stovall, county attorney of Caddo county, state of Oklahoma, and in the name and by the authority of the state of Oklahoma gives the court to know and be informed that one Billie Boston, late of the county of Caddo and state of Oklahoma, on or about the 27th day of May, in the year of our Lord one thousand nine hundred and thirty-eight at and within the said county and state, did then and there intentionally, willfully and unlawfully and without lawful excuse, omit to perform a duty imposed upon him by law to furnish necessary food, clothing, and shelter for his minor child, Jackie Bay, said Billie Boston then and there being the parent of said child, and said Jackie Bay then and there being the illegitimate child of said Billie Boston and one Doris Mayberry, and said Jackie Bay then and there being eight years old, and said Billie Boston did then and there omit, fail and neglect to furnish necessary food, clothing, and shelter for said minor child of said Billie Boston contrary to the form of the statute in such case made and provided' and against the peace and dignity of the state of Oklahoma.”

The defendant filed a demurrer to the information upon the ground that the information failed to state facts sufficient to constitute a public offense.

Upon a hearing being had upon said demurrer, the court rendered judgment sustaining the defendant’s demurrer to the information and dismissed said action, from which judgment the state appeals to this court.

The defendant contends that this appeal should be dismissed under section 3146, O. S. 1931, 22 Okla. St. Ann. § 977, upon authority of Thurmond v. State, 65 Okla. Cr. 217, 84 P. 2d 446, because of the insufficiency of the transcript on appeal.

Section 3201, O. S. 1931, 22 Okla. St, Ann. § 1063, provides as follows:

“In case of an appeal from a question reserved on the part of the state it shall not be necessary for the clerk of the court below to certify in the transcript any part of the proceedings and record except the bill of exceptions or case-made and the judgment of acquittal. When the question reserved is defectively stated the Criminal Court of Appeals may direct any other part of the proceedings and record to be certified to them.”

The transcript is sufficient under the provisions of this section.

See, also, State v. Robertson, 28 Okla. Cr. 234, 230 P. 932; State v. Graham, 38 Okla. Cr. 325, 261 P. 230.

Section 27, O. S. 1931, 25 Okla. St. Ann. § 7, provides :

“The term ‘children’ includes children by birth and by adoption.”

Section 1684, O. S. 1931, 10 Okla. St. Ann. § 4, states:

“The parent entitled to the custody of a child must give him support and education suitable to his circumstances. If the support and education which the father of a legitimate child is able to give are inadequate, the mother must assist him to the extent of her ability.”

The information was predicated on section 1833, O. S. 1931, 21 Okla. St. Ann. § 852, which reads as follows:

“Every parent of any child who willfully omits, without lawful excuse, to perform any duty imposed upon him by law to furnish necessary food, clothing, shelter or medical attendance for such child is guilty of a misdemeanor.”

Section 1717, O. S. 1931, 10 Okla. St. Ann. § 6, provides :

“The mother of an illegitimate unmarried minor is entitled to its custody, services and earnings.”

The general rule is stated in 10 C. J. S., Bastards, at page 94, § 20, as follows:

“In the absence of a statute providing therefor, a. criminal prosecution will not lie against the father of an illegitimate child for failure to support, maintain, or provide for such child, and a statutory provision making it an offense for a parent to neglect to provide for his or her child applies only to the parent of a legitimate child and does not include the parent of an illegitimate child, in the absence of any provision in the statute to the contrary.”

To the same effect are the following cases: Ex parte Newsome, 212 Ala. 168, 102 So. 216; Early v. Bradfield’s Ex’x, 266 Ky. 395, 99 S. W. 2d 190; State v. Lindskog, 175 Minn. 533, 221 N. W. 911; Commonwealth v. Ray, 196 Ky. 203, 244 S. W. 415; State v. McCurdy, 116 Me. 359, 102 A. 72; Beaver v. State, 96 Tex. Cr. R. 179, 256 S. W. 929, 30 A. L. R. 1073.

In 7 Am. Jur. at page 673, it is stated:

“Statutes which, without making any specific reference to illegitimates, impose on a parent or other person the duty of supporting a minor child are uniformly held to apply to legitimate children only and to have no bearing upon the support of bastards.”

In 46 C. J. at page 1348, it is stated:

“C. Children within Statute. Such a statutory provision applies to' the abandonment and non-support of a child which has been legally adopted, the word ‘parent’ as used in such statute being held to- include both adopting and natural parents. But in the absence of an express provision to the contrary, the statute is generally held to apply only to the parents of legitimate children, and not to apply to the parents of bastards.”

In 30 A. L. B. 1076, the following is found:

“And in People v. Green, 1912, 19 Cal. App. 109, 124 P. 871, the court reversed a judgment of conviction, the defendant having been prosecuted under a statute, which made it an offense ‘for a parent to willfully omit to furnish necessary food, clothing, shelter, or medical attendance for his child.’ The child in question was the defendant’s illegitimate daughter. The court said: ‘Section 270 of the Penal Code seems to have been enacted with the purpose of furnishing a complement to those sections of the Civil Code which determine the obligations of parents to support and maintain their children. By the sections of the Civil Code it is determined what those obligations are, and by the section referred to of the Penal Code it is made a felony for a parent to fail to- discharge his duties in those respects. Section 196 of the Civil Code provides as follows : “The parent entitled to the custody of a child must give him support and education suitable to his circumstances. If the support and education which the father of a legitimate child is able to give are inadequate, the mother must assist him to the extent of her ability.” By § 200 of the same Code it is then provided: “The mother of an illegitimate unmarried minor is entitled to its custody, services, and earnings.” It therefore appears that, as the mother of an illegitimate unmarried minor is entitled to its custody, service, and earnings, she then has the whole burden of providing it with support, and no duty in that regard rests upon the father. This being the state of the law, it must follow logically that the father of an illegitimate child is not subject to prosecution under §270 of the Penal Code for a failure to support the minor.’ ”

In 30 A. L. R. at page 1077, we find the following:

“In People v. Fitzgerald, 1915, 167 App. Div. 85, 152 N. Y. S. 641, the defendant was tried and convicted of abandonment, in violation of an act (Penal Law [Consol. Laws, c. 40] § 480) which reads as follows: ‘Aparent or other person charged with the care or custody for nurture or education of a child under the age of sixteen years, who abandons the child in destitute circumstances and willfully omits to furnish necessary and proper food, clothing, or shelter for such child, is guilty of felony, punishable by imprisonment for not more than two years, or by a fine not to exceed fl,000, or by both.’ The child in question was an illegitimate, of whom the defendant had been adjudged the putative father by an order of filiation, and! for whose support the latter had been ordered to pay a certain sum weekly. Nothing, however, was ever contributed by him. The court said: ‘The question presented is, Does the term “parent” in this section include a putative father of an illegitimate child? We think the word “parent” as used in the law in question cannot be held to apply to the defendant. It will be noted that the act does not read “a parent or a person charged with the care or custody;” it reads “a parent or other person charged with the care or custody.” So a parent, to be held, must be a person charged with care and custody. The putative father is not charged with the care and custody of an illegitimate child by the mere fact of putative paternity. In the case at bar it is clear that the defendant had neither the care nor custody of the child.”

The foregoing applies to statutes and to a fact situation similar to the question here presented. The statutes quoted in said cause are almost, if not exactly, verbatim with the Oklahoma statutes heretofore set out. We have provided by statute that the common law shall remain in force in aid of the general statutes. Section 2, art. 1, chapter 1, O. S. 1931, 12 Okla. St. Ann. § 2, provides:

“The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general Statutes of Oklahoma; but the rule of the common law, that statutes in derogation thereof, shall be strictly construed, shall not be applicable to any general statute of Oklahoma; but all such statutes shall be liberally construed to promote their object.”

At common law, the father is not responsible for the support and maintenance of an illegitimate child. O. J. § 31, p. 955, vol. 7. Unless section 1833, supra, 21 Okla. St. Ann. § 852, has done so, we have no law in this state abrogating the common-] aw rule.

Texas has a statute similar to ours. In construing their statute, the Court of Criminal Appeals of Texas, in the case of Beaver v. State, 96 Tex. Cr. R. 179, 256 S. W. 929, 30 A. L. R. 1073, stated:

“In view of the common-law rule that a father is not responsible for the maintenance of an illegitimate child, Vernon’s Ann. Pen. Code 1916, art. 640a, which penalizes desertion, neglect, or refusal to provide for the support of one’s ‘child’ or ‘children’ under 16, means legitimate children. * * *”

The father of a bastard is not entitled to its custody, and is not chargeable with its support in the absence of a specific statute, contract to pay, adoption, or liability from bastardy proceedings. In Oklahoma we have by statute provided for the institution of bastardy proceedings to determine the paternity of an illegitimate child and requiring the father to support it. Sections 1718 to 1728, O. S. 1931, inclusive, 10 Okla. St. Ann. §§ 71-81.

These sections provide the only remedy which may be pursued in this state to compel the father of an illegitimate child to contribute to its maintenance and support.

The state filed the appeal in this case, but did not file a brief. No appearance was made at the time the cause was set for oral argument. However, owing to the public importance of the question presented, we have written this opinion in order to clarify the law in Oklahoma relative to these proceedings.

The court did not err in sustaining the demurrer of the defendant to' the information filed herein. The action of the county court of Caddo county in dismissing said action is accordingly affirmed.

DOYLE, P. J., and BAREFOOT, J. concur.


author: PER OURIAM.

text:
    Ex parte MAX WEISBAND.
    No. A-9851.
    May 16, 1940.
    (102 P. 2d 888.)
    Irvine E. Ungerman and Holly Anderson, both of Tulsa, for petitioner.
    Mac. Q. Williamson, Atty. Gen., Sam Lattimore, Asst. Atty. Gen., and Gleason McDonald, Asst. Co'. Atty., of Tulsa, for respondent.
   PER OURIAM.

The petitioner was convicted in the common pleas court of Tulsa county with the offense of illegal possession of intoxicating liquor. Upon appeal to this court the conviction was affirmed and the sentence modified by decreeing that the petitioner should serve 60 days in the county jail and pay a fine of $300. Weisband v. State, 69 Okla. Cr. 79, 100 P. 2d 297.

The petitioner has filed his petition for a writ of habeas corpus, alleging that pending the appeal of this cause and, to wit, on April ¡11, 1939, he was surrendered by the sureties on his appeal bond to the sheriff of Tulsa county, and that the common pleas court of Tulsa county entered an order on that date committing him to- jail to serve the sentence in the case which had been appealed to this court. While the petitioner was being held in jail, to wit, on May 4, 1939, he entered his plea of guilty to three charges then pending against him in the court of common pleas of Tulsa county and was sentenced to serve 90 days in jail and to pay a fine of $50 in each of these cases, the sentences to run concurrently. The petitioner remained in jail for 84 days, from April 11, 1939, at which time he was released by the making of a new appeal bond in the case which had been appealed to this court. Upon the filing of the mandate in Weisband v. State, 69 Okla. Cr. 79, 100 P. 2d 297, the petitioner was again committed to jail, Avhereupon he filed his petition herein seeking his release from imprisonment for the reason he had already served his sentence as modified by this court.

The defendant is entitled to credit on the sentence pronounced in Weisband v. State, supra, for the time he served in jail under the commitment in said cause, issued' on April 11, 1939. Ex parte Williams, 63 Okla. Cr. 395, 75 P. 2d 904.

If the defendant enters his plea of guilty to other charges while he is serving his time on one sentence pursuant to. a commitment, the time within which he must serve the sentence pronounced in those cases in which he enters his plea of guilty must commence after he has served his sentence in the case in which he stands committed.

For the above reasons the writ of habeas corpus is issued, directed to the sheriff of Tulsa county, to discharge the petitioner Max Weisband from custody if he is held for no other reason except pursuant to the mandate in the case of Weisband v. State, supra.