author: DOYLE, J.

text:
    BOB TARBUTTON v. STATE.
    No. A-8898.
    Sept. 6, 1935.
    (48 Pac. [2d] 877.)
    Estes & Gowdy, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Bob Tarbutton, was convicted in the court of common pleas of Oklahoma county upon an information which charged him with maintaining and operating a public nuisance in said county on the 13th day of April, 1934, in that he did then and there unlawfully maintain and operate a place “where intoxicating liquor, to wit, whisky and alcohol was kept, bartered, sold and given away to divers persons unknown and where divers persons unknown were permitted to' congregate for the purpose of buying, drinking and receiving the said intoxicating liquor, all to the common nuisance of the public.”

In accordance with the verdict he was sentenced to pay a fine of $50 and to confinement in the county jail for ninety days.

The errors assigned relate to rulings of the court upon the admission of evidence and insufficiency of the evidence to justify or sustain the conviction. Two deputy sheriffs, armed with a search warrant, searched defendant’s house, located four or five miles north of the Capitol.

Tom Miller testified that they found defendant sitting in the kitchen with two men; they were drinking some mixture.

They searched the premises and he found four pints of alcohol out in the garage; that Mr. Agee found two pints, but didn’t know whether it was gin or alcohol. Over objection he stated that he had been to this place in 1933 and found a man and woman there drinking; that he searched this place five or six months prior to that time and found a still and about fifty gallons of whisky. On cross-examination he stated that the housekeeper was there; defendant’s wife was ill; that they had two children, a small boy and a baby. Asked if the two men there were neighbors of defendant, he said, “Yes.”

W. E. Agee testified that he was with Mr. Miller; that they found six pints of gin; that two men and a woman were there besides defendant and his little son and baby; that he was there more than a year before with Mr. Miller, when they found a whisky still and some whisky there; that he knew the reputation of the place as to being a place where people were permitted to congregate to drink intoxicating liquors and the reputation was bad.

J. R. Orrall, over objection, was permitted to testify that he visited defendant’s place last year, and going in the back door into the kitchen he found a man and a woman drinking what we know as a “highball”; that they searched the place and found three pints of alcohol under the steps; that he knew the reputation of the place as to being a place where intoxicating liquor was kept and where people were permitted to congregate for the purpose of buying and drinking intoxicating liquor; and that it was not so good. Motion to strike was overruled.

On the part of the defense, Edward Thomas testified that he lives four miles north of the State Capitol; has been a resident of the county 22 years; owns and operates the Thomas Farm Dairy, one-half mile east of defendant’s place; that with Mr. Kirkland, he was going fishing that afternoon with defendant; when the officers came there, they were taking a social drink, a gin soda, and that was the only drink taken there that day; that defendant had been his neighbor about 12 years, and he had never noticed any unusual commotion of any kind around defendant’s place, and his peace had never been disturbed by anything that ever went on there; that he never knew of any one buying, any whisky or intoxicating liquor there.

Isaac Kirkland testified that he was out on a five-acre tract and. had lived in the county 31 years and was staying with his neighbor Mr. Thomas; that about 4 o’clock that afternoon with Mr. Thomas they left to go fishing with defendant and were taking a social drink before starting when the officers came in.

In rebuttal the state called Don Stone, who over objection testified that he was out on defendant’s place one time and saw Mrs. Tarbutton pour a pint of whisky or something out of a pint bottle in the bath-room.

At the close of the evidence a motion was made by the defense for a directed verdict on the ground there was no evidence to support the offense charged, which was denied.

In this case the information is based upon that part of section 2616, iSt. 1931, which declares:

“And all places where any such liquor is kept or possessed by any person in violation of any provision of this act; and all places where persons congregate or resort for the purpose of drinking any such liquor, are hereby declared to be public nuisances.”

The court erred in admitting the testimony of the three officers as to what they found, one and two years before, at defendant’s place; the time being too remote.

Obviously it was error to overrule the objection to and the motion to strike the testimony of the witness Stone.

The testimony as to the reputation of defendant’s place was special reputation based on former searches of defendant’s place made by the officers instead of the general reputation of the place. The qualifying questions were as to reputation instead of general reputation. It is true that the word “reputation,” when unqualified, in common parlance means general reputation. What peace officers say to one another about a man’s place is not reputation. Reputation is what people generally in a community say of a place.

“ ‘Reputation’ is said to be the common knowledge of a community.” And “ ‘Reputation’ is defined to be the concurrence of many voices to the same fact.” 7 Words and Phrases, First Series, p. 6119.

The witnesses for the state did not qualify as knowing the general reputation of the place. Small v. State, 21 Okla. Cr. 99, 210 Pac. 317.

The specific charge in the information is, “whisky and alcohol were kept, etc.”

There was no evidence showing the possession of whis-ky and no competent evidence showing that the four pints of alcohol found was grain alcohol, and there was no evidence that persons congregated at defendant’s place or gathered together there for any purpose.

Upon the whole case we find that the evidence is insufficient to show the essential elements of the offense with which the defendant was charged. In the case of Bunch v. State, 53 Okla. Cr. 430, 12 Pac. (2d) 704, cited in defendant’s brief, this court held that:

“Where one is charged with keeping a place in such manner as to constitute a public nuisance, there must be evidence of a positive character that the place was a place of public resort, or that it contained bar fixtures or other paraphernalia indicating an intention to sell or dispose of liquor, or proof that the place was frequented by persons who1 habitually violated the liquor and gambling laws of the state, or proof of sale or sales of intoxicating liquor at or near the time of the charge, in addition to proof of general reputation.” And see Ornsby v. State, 53 Okla. Cr. 445, 13 Pac. (2d) 596.

For the errors indicated and because the evidence is insufficient to support the verdict, the judgment of the lower court is reversed.

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


source: Caselaw Access Project

license: Public Domain

text:
    DELBERT RHODES v. STATE.
    No. A-8885.
    Sept. 13, 1935.
    (49 Pac. [2d] 226.)

      Mathers & Mathers, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

Appellant, Delbert Rhodes, was convicted in the district court of Oklahoma county upon an information charging that in said county on the 25th day of April, 1984, he did commit the crime of “obtaining property under false pretenses,” in manner and form as follows:

“That is to say, the said defendant, in the county and state aforesaid and on the. day and year aforesaid, then and there being, did then and there willfully, unlawfully, wrongfully and feloniously obtain from R. J. Jenkins one check of the value of $325, good and lawful money of the United States of America, by means and use of false and fraudulent representations, that is to say, the said defendant represented to the said R. J. Jenkins that one Chevrolet coupe automobile, 1933 model, Motor No. 3953-506, Oklahoma 1934 license No. 416-295 was free from all incumbrances, and the said R. J. Jenkins, relying upon the said representations of the said defendant and believing them to be true part with and delivered to the said defendant the said check of the value of $325, when in truth and in fact there was a mortgage in the amount of $335 against the above-described automobile to the South-era Bond and Investment. Company of Chickasha, Okla., all of wliicli said defendant well knew, and the said defendant knowingly made each and all of said false and fraudulent representations with the unlawful, willful, wrongful, fraudulent and felonious intent to cheat and defraud the said R. J. Jenkins out of said check as aforesaid, said mortgage as above described being unpaid and an encumbrance upon the said above-described automobile contrary to, etc.”

Upon the trial, the jury returned their verdict finding “the defendant guilty of the crime of obtaining property under false pretenses, as charged in the information, and fix his punishment át 30 days in the county jail and a fine of #500.”

A motion for a new trial was duly filed, presented, and overruled. On October 6, 1934, the court rendered judgment in accordance with the verdict.

The assignments are: Error in overruling defendant’s demurrer to the information; error in overruling defendant’s demurrer to the evidence; that there is a fatal variance between the allegations and the proof, and that the evidence is insufficient to sustain the verdict.

It appears the information was drawn under section 2087, St. 1931, which reads as follows:

“Every person who, with intent to cheat or defraud another, designedly, by color or aid of any false token or writing, or other false pretense, obtains the signature of any person to any written instrument, or obtains from any person any money or property, is punishable by imprisonment in the penitentiary not exceeding three years or in a county jail not exceeding one year, or by a fine not exceeding three times the value of the money or property so obtained, or by both such fine and imprisonment.”

Appellant below, so far as the record discloses, did not in any way question the sufficiency of the information, in the trial court, there was no demurrer interposed thereto, no objection to the introduction of evidence was made, and no motion in arrest of judgment was filed.

Appellant now seeks to attack the information upon the ground that, failing to use the word “designedly,” the information is insufficient to charge an offense.

An information cannot be attacked upon appeal unless some foundation was laid therefor before final. judgment was rendered. The defendant may take advantage of a defective information by demurring thereto before the trial, by objecting to the introduction of evidence on the ground that the facts stated do not constitute a public offense, or by motion in arrest of judgment.

The function of a demurrer is to defeat the information without a trial whenever it appears that it is subject to any one or more of the five objections named in the statute, section 2948, St. 1931. These objections can be taken only by demurrer—

“Except that the objection to the jurisdiction of the court over the subject of the indictment or information, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, and in arrest of judgment.” Section 2956, St. 1931. Stone v. State, 12 Okla. Cr. 313, 155 Pac. 701; Franklin v. State, 17 Okla. Cr. 348, 188 Pac. 686.

Under this provision, if it appeal’s that the facts stated do not constitute a public offense, an objection to the introduction of evidence on that ground is sufficient to raise the question. After the verdict was rendered, when motion was made for a new trial, no claim was asserted that the information was bad for any reason.

The record shows that at the close of the evidence appellant demurred thereto and asked the court to advise the jury to render a verdict of not guilty upon the ground that the evidence is insufficient to sustain a conviction.

This motion challenged the evidence, not the information. There was a claim of variances, but no claim that the information did. not warrant a conviction. The motion was made upon specific grounds which did not include, or necessarily involve, an objection to the information. It follows that we cannot consider the questions argued as to the insufficiency of the information because they were not raised as authorized by statute. This court cannot consider questions that were not raised in the trial court as authorized by statute, unless fundamental error prejudicial to the substantial rights of appellant is apparent. Clark v. State, 11 Okla. Cr. 494, 148 Pac. 676; McGaugh v. State, 12 Okla. Cr. 96, 152 Pac. 140.

In State v. Pickett, 174 Mo. 663, 74 S. W. 844, the Supreme Court of Missouri held:

“That an information charging, that defendant did ‘willfully, unlawfully, and feloniously, with intent to cheat and defraud/ etc., obtain money, etc., but failing to use the word ‘designedly/ or other word equivalent to or broad enough to include it, was insufficient.”

In State v. Taylor, 44 S. D. 332, 183 N. W. 998, the Supreme Court of South Dakota held that:

“Since designedly is the doing of an act with a purpose, or intention, or specific design, and the allegation that he knowingly employed a false token sufficiently charges design.” And see State v. Avery, 111 Kan. 588, 207 Pac. 838, 23 A. L. R. 453.

The failure to use the word “designedly” is not a fatal defect where other words of the same import or broad enough to include it are used.

The information alleges all the essential elements of the offense defined by section 2087, supra.

In framing an information the statute should be carefully followed. It is enough in this case to hold that the information states facts sufficient upon which to base the judgment of conviction.

It appears that R. J. Jenkins, a dealer in secondhand automobiles in Oklahoma City, had employed appellant at one time; afterwards appellant became a dealer in used cars in the town of Mountain View, and early in April he purchased from R. J. Jenkins a couple of cars, paying therefor in checks, one for $275, one for $40, and one for $10. These checks were drawn on the First National Bank of Mountain View. Jenkins indorsed the checks and turned them to Wallace Campbell, who deposited them with the Tradesmen’s National Bank in Oklahoma City. The checks were returned marked “insufficient funds.” On April 24, 1934, appellant came to Oklahoma City, driving the automobile described in the inforrhation and offered to sell this car to Jenkins for $325 and take in payment therefor his dishonored checks. Not having certificate of title, Mr. Jenkins refused to trade. Appellant returned the next day with certificate of title, and Mr. Jenkins took the car and gave to appellant his checks.

R. J. Jenkins testified that he asked appellant if there was any incumbrance or mortgage on the car, and appellant said-that he sold the car new to C. H. Whittington, his brother-in-law, who paid cash for it, and appellant said there was no incumbrance or mortgage upon the car, that he, witness, believed that statement, and, relying upon it as true, gave to appellant said checks in payment for the car. That a few days later Mr. Sullivan called him from Chickasha by telephone and said that he had been to Mountain View and was-informed that Delbert Bhodes had sold the car to him, and that he had a mortgage on the car. That he went to see Mr. Sullivan, examined the mortgage, and told him he could come and get the car.

Bill Sullivan testified that he was assistant manager, Southern Bond & Investment Company at Chickasha, and that his company held a mortgage on a Chevrolet coupe, 1938' model, produced and identified the mortgage, and it was received in evidence. That on April 25th there was $335 balance due on note and mortgage, executed November 3, 1933, C. H. Whittington mortgagor.

C. H. Whittington testified that he had known Delbert Bhodes six or seven years but was not related to him in any way. He identified the title of the automobile in question and said he had bought the car from the Lucas Chevrolet Company at Anadarko; that Delbert Bhodes was the salesman; that he executed the mortgage introduced in evidence. That a day or two before he sold Delbert Bhodes the car he told him he wanted to sell the car to pay the balance he owed on it, and Bhodes told him he could take it to Oklahoma City and sell it to Mr. Jenkins. That at that time there was a balance of $334 due on his note, and he told Delbert Bhodes that he owed this balance to the Southern Bond & Investment Company at Chickasha. That Bhodes came back from Oklahoma City and he assigned the title to him. Bhodes again took the car to Oklahoma City to sell it to take care of the payments due on the car. The next day he came back to Mountain Yiew and there paid him $30 in cash and told him that there was approximately $20 more against the car than he thought there was; that Mr. Jenkins was waiting at Chickasha for him to call back and tell him whether it was all right for him to go ahead and pay off the note and mortgage on on the car. On cross-examination he stated:

“I was supposed to get $50; instead of that I got $30, because there was more against the car that I thought there was.”

Wallace Campbell testified that he received the checks given by Delbert Rhodes from Mr. Jenkins and deposited them to his account at the Tradesmen’s National Bank in Oklahoma City, that they came back on April 16th, payment refused, “insufficient funds,” that the checks were presented for payment at least three times, and later charged back against his account. That on April 25th he returned the checks to Mrs. Jenkins.

Mrs. R. J. Jenkins testified that she was bookkeeper for the Jenkins Motor Company, that Delbert Rhodes bought a Buick car and a Chevrolet car from them giving in payment the checks in question, which checks were indorsed to Wallace Campbell. That the checks were sent through for collection three times and came back marked “insufficient funds.” That they phoned Mr. Rhodes about the checks and later he came and offered this Chevrolet car to take up the checks, but he did not have the title to the car, and Mr. Jenkins said, “I cannot give you back the checks until you get the title.” Mr. Rhodes said the car belonged to C. H. Whittington, his brother-in-law, that he had sold it brand new to him and he knew the title was all right. That he came back the next day with the title and she went to Mr. Campbell, got the checks and brought them back. That Mr. Rhodes said the title was clear, and that she believed his statement with reference to there being no mortgage on the car. That they gave Mr. Rhodes the checks and took the car. Three days later Mr. Sullivan, of the Southern Bond & Investment Company of Chickasha, phoned and said they had a mortgage on it, and Mr. Sullivan came and got the car. The certificate of title of C. H. Whittington, assignment of title from him to Delbert Rhodes, and reassignment of title by Delbert Rhodes to R. J. Jenkins were admitted in evidence.

As a witness in his own behalf, appellant, Delbert Rhodes, testified that in April of this year he was engaged in the automobile business in Mountain Yiew, doing business with the First National Bank there. That on April 24th, he drove to Oklahoma City in Mr. Whittigton’s car and tried to sell it. That on the way he stopped at Chicka-sha and talked with a big fellow in the office of the Southern Bond & Investment Company about their mortgage on the car. That Mr. Jenkins did not want to buy the car, but said he could get around $475 for it, and said, “If you will leave it here, we will sell it and pay off the mortgage, then we’ll split the profit even and both make a little money.” That he returned to Mountain Yiew to see if Mr. Whittington would let him leave it, and had an understanding, with Mr. Whittington to give him $30 to hold it up until we could sell the car, and that he would split any profit with Mr. Whittington after he got his half of it from Mr. Jenkins. He drove back to Oklahoma City with the title assigned by Mr. Whittington to him, and left the car with Mr. Jenkins; that he went with Mr. and Mrs. Jenkins to Chickasha to pay the Southern Bond & Investment Company. That, leaving Mrs. Jenkins in the car in front of the office, he went in with Mr. Jenkins; that the main fellow that was in the office the day before was not there. They drove him to the bus station and he caught the 2 o’clock bus out of Chickasha for home. That Mr. Jenkins was to call him by the time he got off the bus at Mountain Yiew and let him know if the amount was what they said it was the day before, and Mr. Jenkins said, “If I don’t call you go ahead and give Mr. Whittington the $30that he waited until midnight, there was no call, so he gave Mr. Whittington the $30. That a few days later he went to California, returned within three weeks and was arrested at Hobart, by John Adams, deputy sheriff of Oklahoma county. That he did not receive any check or checks or anything from Mr. Jenkins.

Evidence was offered to prove that appellant was reputed in his home town to be a man of truth and veracity, which would not be admissible if objected to.

Evidence was also offered to prove that appellant was reputed to be a peaceable and law-abiding citizen.

In rebuttal, Mrs. Jenkins, recalled, testified that they never got the cars back that the checks were given in payment for, and that these were the identical checks she took up from Mr. Campbell April 25th that appellant took in payment for the Chevrolet automobile.

Bill Sullivan, recalled in rebuttal, testified that in looking for the car he went to Mountain View and learned from Doc Quinn that R. J. Jenkins at Oklahoma City had the car, and called him on the telephone and verified the fact that the car was there.

George H. Giddings, Jr., testified that as attorney for Mr. Jenkins he went with him to Mountain View to locate the two automobiles which appellant purchased and had given his checks in payment, and found that the cars had been sold by appellant in the course of business there. That they then went to- Chickasha to see Mr. Sullivan of the Southern Bond & Investment Company relative to a mortgagee which he had notified Mr. Jenkins was on the car in question; there he talked to Mr. Sullivan and examined the mortgage heretofore introduced in evidence, checked the records, and told Mr. Jenkins to turn the car over to the Southern Bond & Investment Company.

At the close of the evidence appellant asked the court to advise the jury to return a verdict of not guilty on the grounds that there is a variance between the allegations of the information and the evidence, and that the evidence is insufficient to warrant a conviction, which request was denied.

It is contended in argument that there is a fatal variance between the allegations in the information and the proof in this, that appellant is charged with obtaining a check for $325, whereas the proof shows he obtained three checks in the aggregate sum of $325, and that the property so alleged to have been obtained was not sufficiently identified as to protect him from being again put in jeopardy for the same offense.

In our opinion there is no merit in this contention. To constitute the crime of obtaining property under false pretenses the essential elements are: A false statement of past or existing facts by one person to another with intent to defraud; such statement must be reasonably calculated to deceive that other. It must be so designed as to induce such other to part with his property, and such design must be accomplished, by means of the false pretenses made use of for that purpose.

• ■ It follows that the evidence must establish the obtaining of the property alleged in the information, or some part of it, that by such delivery the property passed out of the title, possession, and control of the accuser and into that of the accused, and proof of obtaining part of the property described will justify conviction.

In the case of Cotton v. State, 22 Okla. Cr. 252, 210 Pac. 739, it is said:

“A variance is a disagreement between the allegations in the information and the proof as to some matter which is legally essential to the charge, and which might subject the accused to another trial for the same offense.” State v. Crean, 43 Mont. 47, 114 Pac. 603, Ann. Cas. 1912C, 424; Oats v. State, 153 Ind. 436, 55 N. E. 226; 8 Words and Phrases, First Series, 7283.

In Tiger v. State, 54 Okla. Cr. 202, 16 Pac. (2d) 889, 890, it is said:

“This court has followed the later sensible rule as stated in Woods v. State, 22 Okla. Cr. 365, 211 Pac. 519, and again asserted in Brashears et al. v. State, 38 Okla. Cr. 175, 259 Pac. 665. These later cases define a variance as an essential difference between the accusation and the proof and that a material variance arises only when there is such a difference between the proof and the charge that an acquittal of the defendant would be no bar to a further prosecution for the same offense.”

In Woods v. State, supra, it is said:

“A variance is not material unless it is such as might mislead the defense, or expose the defendant to the injury of being put twice in jeopardy for the same offense.”

In the case at bar, the variance had reference only to a matter of description of the property obtained under the false pretenses. The record clearly shows that the so-called variance could not have misled the defense, and there is nothing in the record which indicates any danger of appellant being subjected to another prosecution by reason of the fact that the evidence shows he received three checks instead of one. Fulkerson v. State, 17 Okla. Cr. 103, 189 Pac. 1092; Mason v. State, 23 Okla. Cr. 111, 212 Pac. 1028; French v. State, 37 Okla. Cr. 350, 259 Pac. 162; Hicks v. State, 54 Okla. Cr. 431, 23 Pac. (2d) 219; Commonwealth v. Lee, 149 Mass. 179, 21 N. E. 299; Commonwealth v. Brown, 167 Mass. 144, 45 N. E. 1; Cunningham v. State, 61 N. J. Law, 666, 40 A. 696.

The next contention of appellant is that the court erred in refusing, at the close of the evidence, to advise the jury to render a verdict of acquittal on the ground that the evidence was insufficient to warrant a conviction. With this contention we cannot agree.

Our Criminal Code (St. 1931), § 3072, provides:

“Upon a trial for having, with an intent to cheat or defraud another designedly, by any false pretense, obtained the signature of any person to a written instrument, or having obtained from any person any money, personal property or valuable thing, the defendant cannot be convicted, if the false pretense are expressed in language unaccompanied by a false token or writing, unless the pretense, or some note or memorandum thereof, be in writing either subscribed by, or in the handwriting of the defendant, or unless the pretense be proven by the testimony of two witnesses, or that of one witness and corroborating circumstances.”

In compliance with the foregoing rule in cases of this kind, the state called Mrs. Jenkins, who testified in corroboration of the testimony of the prosecuting witness, that she was present when appellant stated that the automobile in question was clear of all incumbrance, and that there was no mortgage on the same; and was present the following, day when appellant again repeated said statements and transferred the title to the car by reassignment, that in the presence of her husband she delivered to appellant his three checks in the aggregate sum of $325, and that said checks had been received from appellant about two weeks before in payment of two cars bought by him from her husband. It appears that all the circumstances of the transaction tend to corroborate the testimony of these two witnesses. The theory of the defense that appellant transferred the title of the car in question without receiving anything in payment therefor is based upon nothing except his own testimony.

It is often said that the law is confessedly tender of rights of persons accused of crime, but it is hardly subject to the charge of authorizing them to build up a theory of innocence upon fictitious or fraudulent assumptions.

The objection to the sufficiency of the evidence to support a conviction is untenable; its credibility was for the jury.

One of the grounds of the motion for a new trial is that, after the jury had returned into court a sealed verdict finding the defendant guilty of “obtaining money under false pretenses, as charged in the information,” the court erred in directing the jury to retire to their jury room to correct their verdict by inserting the word “property” in place of the word “money” to conform to the allegations of the information. This being done over the objection of appellant.

Our Criminal Code provides, section 3089, St. 1931:

“If the jury agree on a verdict during a temporary adjournment or recess of the court, they may, upon the direction of the court, sign the verdict by their foreman, securely seal the same in an envelope, and deliver the same to the foreman, when they may separate until the next convening of the court, at which time they shall reassemble in the jury room and return their verdict in open court, when the same proceedings shall be had as in case of other verdicts.”

Section 3100 provides:

“If the jury render a verdict not in form, the court may, with proper instructions as to the law, direct them to reconsider it, and it cannot be recorded until it be rendered in gome form from which it can be clearly understood what is the intent of the jury.”

This verdict ag firgt returned by the jury, uging the word “money” ingtead of “property,” could at begt have been only an irregularity; it could only render the verdict defective in form, and it wag clearly within the province of the court to direct the jury to retire and correct their verdict.

Upon careful congideration of the entire record, we are of opinion that appellant had a fair trial and hag no jugt cauge of complaint.

The judgment is therefore affirmed.

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


text:
    WILLIE EDWARDS v. STATE.
    No. A-8876.
    Sept. 6, 1935.
    (48 Pac. [2d] 1087.)

      J. M. Roberts, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (Frank Watson, of counsel), for the State.
   DOYLE, J.

(after stating the facts as above).

This appeal is from a judgment of the district court of Pittsburg county, pronounced and entered October 3, 1934, in pursuance of the verdict of the jury finding defendant Willie Edwards guilty of murder and assessing, his penalty at death.

The first assignment challenges the sufficiency of the information. The charging part of the information is as follows:

“That Willie Edwards did, in Pittsburg county, and the state of Oklahoma, on or about the 27th day of September in the year of our Lord, One Thousand Nine Hundred and Thirty-three and anterior to the presentment hereof, then and there unlawfully, willfully, wrongfully and feloniously, without authority of law and with a premeditated design to effect the death of one Lonis Spaun-herst, make an assault in and upon the said Louis Spaun-herst with a certain weapon, to wit, a pocket knife being then and there a sharp instrument and weapon then and there had and held in the hands of him, the said Willie Edwards, and did then and there with said knife and weapon so had and held in his hands as aforesaid, unlawfully, willfully, wrongfully and feloniously and without authority of law, and with a premeditated design to effect the death of the said Louis Spaunherst, strike, stab and force said knife weapon, at, into and upon the body of him, the said Louis Spaunherst, then and there and thereby inflicting certain mortal wounds in and upon the said Louis Spaunherst of which said mortal wounds so inflicted as aforesaid, the said Louis Spaunherst did then and there on the said 3rd day of January, 1934, die, as was intended by the said Willie Edwards he should do, with the unlawful, wrongful and felonious intent then and there on the part of him, the said Willie Edwards to kill and murder the said Louis Spaunherst.”

To1 this information the defendant demurred upon the statutory grounds for demurrer, and that it. is ambiguous and is void for uncertainty, which demurrer was overruled by the court.

The information is in the ordinary form often approved by this court. It might possibly be improved in form by insertion after the words “then and there” and before the words “on the said Third day of January, 1934” the words “languish and languishing did” and by striking the word “said.”

From the language used no person of common understanding could be mistaken as to what charge was intended to be made against the defendant.

Under our Criminal Code, no information is insufficient by reason of a defect or imperfection in the matter of form Avhich does not tend to the prejudice of the substantial rights of the defendant upon the merits. Section 2892, St. 1931.

The information is sufficient, and the demurrer thereto was properly overruled.

The second assignment is error in overruling the defendant’s motion for a continuance.

When the case was called for trial, the defendant filed a motion for a continuance. His motion and affidavit contained all the formal allegations required by law, and the following statement: That he is unable to proceed to trial at this time for the want of the evidence of one Ola Pope, a material witness. That a subpoena duly issued for said witness was returned by the sheriff with notation that witness cannot be found in this county, and the defendant has just been informed and believes that he is somewhere in Lincoln county, Okla. That defendant expects to prove the following facts by this witness:

That said Ola Pope was an eyewitness. That his attention was attracted by a loud voice and he turned and saw Mr. Spaunherst striking at Willie Edwards; that he saw the defendant strike back. That he heard Mr. Spaun-herst holler and saw him turn and go away; that the defendant did not follow or make any attempt to strike him again. That at the time Mr. .Spaunherst was striking at the defendant, said defendant was backed up against the machine at which he worked; that said witness does not know whether or not Mr. Spaunherst had anything in his hand. That defendant believes the above to be true, and that said evidence cannot be furnished by other witnesses; that this affidavit for continuance is not made for delay, but that substantial justice may be done.

The state, in resistance to the motion for a continuance, filed affidavit of the county attorney wherein affiant states that: Ola Pope would not testify in the trial of this cause as alleged by defendant in said affidavit; that affiant herein heard the testimony of Ola Pope at the preliminary hearing in this cause; that Ola Pope then testified under oath that he did not see Louis Spaunherst, deceased, hit or hit at the defendant, Willie Edwards, at any time; that this affiant took a statement of Ola Pope immediately after the stabbing involved in this case; that said statement is attached hereto, and it shows that Ola Pope would not testify as defendant now declares that he would testify. That this affiant has had a search made for Ola Pope in Lincoln county by officers of the State Penitentiary, and it was reported by said searchers that Ola Pope could not be found in said county; that Ola Pope’s testimony is not material to the case of defendant. The excerpts from the testimony of Ola Pope as a witness for the state and whose name and post-office address are indorsed on the information in this case wherein said witness refused to answer as to where he threw the knife, and wherein he stated, “I don’t know anything,” is attached to the county attorney’s affidavit.

When application for a continuance has been denied, this court will look to the entire record with a view of determining whether an abuse of discretion is shown. The information was filed July 23, 1934. The list of witnesses to be called in chief together with their post-office addresses was served the 20th day of September, six days before the case was called for trial. The theory of the prosecution was that the defendant stabbed Spaunherst without any provocation. It appears that on the day of the affray the county attorney investigated the matter; however, no prosecution was instituted before Mr. Spaun-herst’s death fourteen weeks later. It also appears that there was no proof of the corpus delicti independent of the defendant’s admissions, and if counsel for the defendant had not waived his constitutional right to notice of the name and address of the medical witness whose testimony tended to prove the corpus delicti, the prosecution would have failed. The defendant is a convict; all the witnesses called by the state were officers of the penitentiary and employees of the Seminole Manufacturing Company, all residents of McAlester, and could be called at any time.

Every person charged with crime is entitled to a fair trial according, to the dne and orderly course of the law. The right of every person charged with crime to have compulsory process for obtaining witnesses in his own behalf is guaranteed by the Constitution (Bill of Rights, § 20); and this involves, as a matter of course, the time reasonably necessary to prepare for trial and to find and produce testimony in his defense. It is not, however, a matter of which the defendant can complain that the trial is speedy, if he has had time for preparation and is ready for his defense. Continuances ought always to be granted, when, from the showing made, justice requires it; this to enable the defendant to procure all legal and competent evidence necessary for the fair presentation of his defense, if he has used due diligence to obtain the same. Noel v. State, 17 Okla. Cr. 308, 188 P. 688; Westbrook v. State, 14 Okla. Cr. 423, 172 Pac. 464.

The defendant made every effort possible to secure the attendance of the absent witness, and he ivas not allowed the time reasonably necessary to prepare for the trial which resulted in his conviction. In view of the materiality of the testimony of the absent witness and on account of the peculiar circumstances of the case, we are convinced that the denial of the defendant’s motion for a continuance was in manifest abuse of judicial discretion.

A number of alleged prejudicial errors are assigned upon exceptions taken to rulings of the court upon the admission of evidence, and the exclusion of evidence. However, the main question in this case is whether there was upon the ivhole sufficient evidence to warrant a conviction for murder.

The testimony of the witnesses for the state tended to show admissions or alleged confessions on the part of the defendant that be struck tbe deceased with a pocket-knife.

Turner, tbe second witness for tbe state, testified that after tbe affray be found a knife and turned it over to Mr. Parks; that be asked tbe defendant if be cut Mr. Spaunberst, and he said be did; that be asked him why, and be made no answer, and be asked him if that was his knife, and be said, “Yes.”

J. W. Phillips testified that in tbe presence of Jess Dunn, deputy warden, be asked the defendant why he cut Mr. Spaunberst, and the defendant answered because Mr. Spaunberst bad changed bis work. That tbe county attorney asked tbe defendant what he bad to offer for a defense, and tbe defendant said he did not care to make a statement.

Jess Dunn, deputy warden, testified that be asked tbe defendant why be stabbed Mr. Spaunberst, and tbe defendant said it was because Mr. Spaunberst bad changed bis job; that be showed tbe pocketknife to tbe defendant and asked him if that was tbe knife be cut Spaunberst with, and tbe defendant said, “Yes.”

H. H. Sherrill testified that be was present in the warden’s office when Prank Watson, county attorney, asked tbe defendant to state what be had to say concerning the case, and tbe defendant said be did not have anything to say. Then be asked if tbe man was dead, and the county attorney said it was no time to make a statement after tbe man died; then tbe defendant said if be died be would probably want to talk then; that the county attorney showed tbe defendant a knife and asked him if that was tbe knife be stabbed tbe man with, and tbe defendant said be never saw tbe knife before; that tbe defendant practically admitted that be did it, but would not make a statement until after the- man died.

Doctor J. H. Munn was the last witness called in chief; his name was not indorsed on the information, and his name and post-office address had not been furnished to the defendant. This witness was called to prove the corpus delicti.

Counsel for the defendant waived objection; thereupon he testified that he gave first aid to Mr. Spaunherst in the penitentiary hospital; that there was a stab wound in the left side on the border of the sternum; that Mr. Spaun-herst died some time in January; that he thought his death was due to infection following the stab wound.

In every criminal prosecution the burden rests upon the state of proving the corpus delicti beyond a reasonable doubt. In prosecution for homicide the corpus delicti consists of two fundamental and necessary facts: First, the death; second, the criminal agency of another as the cause; as applicable to this case, it was necessary to show, first, that the deceased died from the effects of a wound, and, second, that the wound was unlawfully inflicted by the defendant.

It is well settled that extrajudicial confessions are those which are made by the defendant out of court, whether to an official or nonofficial person, and such confessions in order to be admitted must be entirely free and voluntary.

The general rule is that in the absence of other evidence that a crime has been committed, it is improper in the trial of a homicide case to admit in evidence a confession of the defendant.

In the case of Mays v. State, 19 Okla. Cr. 102, 197 Pac. 1064, 1068, it is said:

“This court adheres to the rule that a conviction cannot be had on the extrajudicial confessions of the defendant without independent evidence of the corpus delicti, and, before such confessions should be admitted, there should be evidence prima facie sufficient to show that the offense to which the confession relates has been committed. The court must decide in the first instance this question. However, the decision of the court does not bind the jury, as the province of the court in such particular is only to determine whether sufficient evidence has been adduced to go to the jury for their determination. In passing upon the evidence submitted to them the jury must first determine beyond a reasonable doubt that the crime has been committed; then they are at liberty to give the alleged confession such weight as it is entitled to, taking into' consideration the circumstances surrounding it and the extent to which it has been corroborated.”

Deputy Warden Dunn, on cross-examination, was asked if convicts working in the factory were searched every morning, noon, and night to see if they had knives on them. The court sustained the state’s objection as not proper cross-examination. This evidence was proper and competent to be considered by the jury for the purpose of tending to show that the defendant did not have the knife when the altercation started. It was proper cross-examination, and its exclusion was error.

Assistant Deputy Warden Phillips, on cross-examination, identified the book of rules and instructions to convicts to show that under the rules convicts must be obedient and answer questions of officials and that if they fail or refuse to answer, they are punished. The court sustained the state’s objection and excluded the rules. The defendant moved to strike the testimony of the officials showing admissions or confessions by the defendant because same were not voluntary because under said rules the defendant’s answers to the questions asked were given in duress. We think the court erred in excluding the book of rules; however, the motion to strike was properly overruled. Whether or not the alleged confessions of the defendant were voluntary was for the jury to determine.

The defendant contends that the court erred in excluding the testimony of the first three witnesses called on the part of the defendant, Jim Thompson, Albert Ellison, and Paul Johnson, respecting the disposition of the deceased to become violent without provocation, and the reputation of the deceased for being turbulent and quarrelsome and testimony tending to show that he had difficulties with other inmates and to show that the deceased had threatened “to kill some of the niggers for talking back to him,” and to show the defendant knew about said threats.

Generally speaking, where a homicide occurs under such circumstances that it is doubtful whether the act was committed maliciously or from a well-grounded apprehension of danger, testimony tending to show the general reputation of the deceased as becoming violent and quarrelsome or of threats made by the deceased is always admissible in order to determine whether the defendant had reasonable cause to apprehend great personal injury to himself. The defense interposed and relied upon by the defendant was that he acted in his necessary self-defense. If there had been some evidence tending, to show self-defense at the time this testimony as to the reputation borne by the deceased was offered, and as to' having made threats against the defendant, then it was manifestly error to exclude this testimony. Mulkey v. State, 5 Okla. Cr. 75, 113 Pac. 532.

On the other hand, if the defendant had not offered any evidence tending to support his claim of self-defense, then there could be no prejudicial error in denying the introduction of that testimony until the defense upon which the defendant relied was sufficiently developed to authorize its admission for the purpose of added support to the defendant’s plea of self-defense. It is only when a showing of self-defense is made that evidence of the reputation of the deceased for violence and turbulency and of threats made by the deceased become relevant and material.

It is strenuously urged that the verdict is manifestly contrary to law and to the evidence and is a gross injustice which should be righted by this court.

Our Code provides that a plea of not guilty puts in issue every material allegation in the information. Section 2962, St. 1931. It also provides that a defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to be acquitted. Section 3064. It further provides: “Upon a trial for murder, the commission of the homicide by the defendant being proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.” Section 3076.

Under this provision, if the prosecution proves the death of the deceased and the fact that he was hilled by the defendant, without proving circumstances of mitigation or tending to show justification or tending to show that the crime committed only amounted to manslaughter, then the burden is upon the defendant, if he contends that he was justifiable, of producing evidence showing that fact. The quantum of evidence necessary for that purpose is fixed by law and is such as is sufficient to raise reasonable doubt upon that issue.

No witness for the state heard the altercation or saw the affray. The case against the defendant rested solely on circumstantial evidence, including certain admissions made by him on the day of the affray together with his testimony as a witness in his own behalf. The defendant’s admissions as testified to. by the witnesses for the state were, when asked if he cut Mr. Spaunherst, he answered, “Yes’”; asked Avhy he cut Mr. Spaunherst, he answered, “Because he had changed his Avork”; asked if that Avas his knife, he answered, “Yes.”

Mere admissions of inculpatory facts are not necessarily confessions, and Avhen a person only admits certain facts from which the jury may or may not infer guilt, there is no confession. The facts the defendant admitted could have been true and not be inconsistent with his innocence of the crime of murder; he made the admissions, not for the purpose of conceding that he was guilty or with any view to confess his guilt, but in the line of a denial.of guilt, not an express, but an implied, denial.

Our Penal Code provides:

“A design to effect death is inferred from the fact of killing, unless the circumstances raise a reasonable doubt whether such design existed.” Section 2217, St. 1931.

The burden of proving intent to' kill on the part of the defendant is upon the prosecution. The general rule is that if a man uses a deadly weapon, not in self-defense, and life is taken, he is presumed to' intend the natural, probable and usual consequences of his act. HoAvever, the presumption arising from the character of the weapon used is not conclusive as to intent. The information does not charge the use of a deadly weapon; the words used are:

“With a certain weapon, to wit, a pocket knife, being then and there a sharp instrument and weapon.” Considering the character of the assault and the weapon used and the fact that the deceased did not die until fourteen weeks after the affray, we think the evidence on the part of the state was insufficient to show an intent to kill and murder and was prima facie sufficient only to show manslaughter in the first degree.

It follows that the burden was not on the defendant to show affirmatively that he was free from fault in bringing on the difficulty, and when the ingredients of self-defense have been established, the burden is on the state to show that the defendant was not free from fault, unless it has been shown that the killing was unnecessary for self-defense.

The testimony on the part of the defendant, and it is uncontradicted, overwhelmingly established the fact that the deceased was the aggressor. The testimony of the defendant that the deceased provoked the difficulty and during the altercation assaulted the defendant with a pocketknife and that the defendant wrested the knife from him, that the deceased then pulled from the scabbard on his belt a pair of scissors, and attempted to strike the defendant with them, and that then the defendant struck the deceased with a pocketknife, is uncontradicted.

The testimony of every eyewitness supports the defendant’s testimony, and it is not disputed. The defendant testified that when the deceased struck at him with the scissors he struck back with the knife; that his intention was to hurt and not to kill.

In rebuttal, the state called Ed Roselle, an instructor in the prison factory, who testified that he never saw Mr. Spaunherst use the knife, Exhibit A, or have it in his possession, but he did have a pearl-handled pocketknife like it a day or two before the affray. That Mr. Spaunherst carried scissors, eight or ten inches in length, in a scabbard on his belt. Three other witnesses testified that Mr. Spaun-herst’s reputation ivas that of being a good kind-hearted instructor. There is not a scintilla of evidence in rebuttal tending to traverse or contradict the testimony on the part of the defendant.

We have carefully examined the record, and in the consideration of this case, we have tried to exercise that degree of care that the due administration of justice demands in all cases where the death sentence is imposed. It is apparent from the record before us, and we see no escape from the conclusion, that the evidence is wholly insufficient to sustain the conviction. Upon such evidence, it is difficult to understand upon what ground the jury could render a verdict of guilty and assess the death penalty.

A fair trial is guaranteed to all persons, whether guilty or innocent, regardless of race or color, free from any appeal to prejudice, and it is the duty of the courts to uphold this guaranty, and this duty is emphasized in a capital case, where a colored man is placed upon trial before a jury of white men.

Upon the record before us, and for the reasons herein-before stated, we are clearly of the opinion that the defendant did not have that fair and impartial trial to which he was entitled under the law. The spirit of unfairness throughout the tidal is apparent, and our conclusion is that it would be a reproach to our criminal jurisprudence if the judgment were permitted to stand.

The judgment of the trial court is therefore reversed, and the case remanded, with direction to set aside the judgment of conviction.

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


author: EDWARDS, J.

text:
    Ex parte J. L. BIGGS.
    No. A-8902.
    July 5, 1935.
    Rehearing Denied Sept. 6, 1935.
    (54 Pac. [2d] 404.)
    W. C. Hall, for petitioner.
    Harlan Deupree, Municipal Counselor, and A. P. Van Meter, Asst. Municipal Counselor, for respondent City of Oklahoma City.
   EDWARDS, J.

This is an original proceeding in ha-beas corpus. Petitioner alleges he is unlawfully restrained by the chief of police of Oklahoma City; that he was charged in the municipal court with a violation of Ordinance No. 3944 and amendatory ordinance No. 4596, and was assessed a fine of $19 and in default of payment was committed to the municipal jail. He alleges the amenda-tory ordinance No. 4596, as applied to him, is ex post facto and unconstitutional; that relief may be had by habeas corpus, citing Ex parte Nielsen, 131 U. S. 176, 9 S. Ct. 672, 33 L. Ed. 118. The pertinent part of ordinance No. 3944 is:

“It shall be unlawful and an offense for any person, firm or corporation to drill or put down any petroleum or gas well within the corporate limits of the city of Oklahoma City, except within the limits of the U-7 or Oil and Gas District, and unless permit therefor shall have been first obtained.”

The pertinent part of the amendatory ordinance is:

“No. 4596 — Section 1. It shall be unlawful and an offense for any person * * * employee or servant or any other person * * to permit to flow therefrom any petroleum or natural gas * * * or to operate, maintain or permit to exist any equipment, structures or appurtenances incident to such production within the U-7 Zone in Oklahoma City unless a permit for the drilling and operation of said well shall have been first obtained as provided by the terms of ordinance No. 3944 of said City and amendments thereto.”

In order to understand the questions presented, a brief statement of the facts from which this prosecution arose is necessary. Soon after the discovery of oil in and adjacent to Oklahoma City, ordinance No. 3944 was enacted. It is comprehensive in its terms and provides the manner of procuring permits for the drilling of wells for the production of gas and oil within the corporate limits of Oklahoma City, and provides regulations for the operations to safeguard the lives, health, and property of the citizens from the danger of fire, explosion, gas, and other hazards incident to the drilling for and the production of gas and oil. An applicant to drill is required to apply for a permit and to pay therefor a fee of $1,000, and it is further required to post a bond in the sum of $200,000 for the benefit of those who may be damaged by drilling, operations. In January, 1981, the Courter Oil Company applied for a permit to drill a well at a certain location within Oklahoma City and deposited with the city its check for the $1,000 for such permit, but contested by injunction in the district court the validity of that part of the ordinance requiring a bond in the sum of $200,000. This contest was tried and the ordinance was upheld. The oil company thereupon appealed to the Supreme Court, which allowed a supersedeas from the judgment of the district court in the sum of $50,000, which was duly executed. The Supreme Court on consideration of an appeal in a case involving the same question upheld the ordinance. Gant v. Oklahoma City, 150 Okla. 86, 6 Pac. (2d) 1065, 86 A.L.R. 794. An appeal was prosecuted to the United States Supreme Court in the Gant Case and was there affirmed. 289 U. S. 98, 53 S. Ct. 530, 77 L. Ed. 1058. The Courter Case involving the same question followed the United States Supreme Court decision and is reported in 167 Okla. 633, 31 Pac. (2d) 596. After appeal of the injunction suit from the district court to the Supreme Court, the Courter Oil Company withdrew its bank deposit and the check for $1,000 which it had deposited for permit fee was not paid. Pending the appeals the Courter Oil Company completed its well, as a producer of gas and oil. Petitioner is an employee of that company. The operation of this well is the basis of the prosecution from which the instant case arose. It never paid the permit fee nor executed bond required by ordinance No. 3944. That ordinance made it an offense to drill a well for eas or oil without a permit. After the termination of the litigation referred to, the city filed a complaint under ordinance 3944 and the petitioner here and others were convicted. They filed petition in this court for a writ of habeas corpus, claiming a want of due process in that there was no ordinance making the acts done by petitioner in the operation of an oil well an offense. This court awarded the writ. Biggs v. Watt et al., 56 Okla. Cr. 306, 38 Pac. (2d) 587. Thereafter ordinance No. 4596 was enacted. After this amendatory ordinance became effective, defendant continued to operate said well without a permit and this prosecution and conviction followed, from which relief is sought by this proceeding.

Petitioner contends that with a prospective application the ordinance is not invalid, but when applied to any past fact it is ex post facto. The past fact referred to is the fact the well had. been drilled without a permit prior to the enactment of amendatory ordinance No. 4596. Petitioner seeks to give the ordinance the construction of making it unlawful to operate an oil well unless a permit had been obtained before the well had been drilled. If this construction were required, the ordinance would have the effect of forbidding entirely the operation of the well in question, since it would impose an.impossible condition. Petitioner has fully briefed the ease from his standpoint and with much earnestness insists that since- the amenda-tory ordinance was enacted subsequent to the completion of the well the attempt to enforce it against him renders it ex post facto and in violation of article 1, § 10, cl. 1, Const, of the United .States, and article 2, § 15, Const. of Oklahoma, which forbids the enactment of an ex post facto law. Citing Calder v. Bull, 3 Wall. 386, 1 Law Ed. 648; Cummings v. Missouri, 4 Wall. (71 U. S.) 277, 18 L. Ed. 356; Ex parte Garland, 4 Wall. (71 U. S.) 333, 18 L. Ed. 366; Pierce et al. v. Carskadon, 16 Wall. (83 U. S.) 234, 21 L. Ed. 276; People v. Raymond, 96 N. Y. 38; Jones v. State, 9 Okla. Cr. 646, 133 Pac. 249, 48 L. R. A. (N. S.) 204.

Respondent contends that ordinance No. 3944 and amendatory ordinance No. 4596 is a proper exercise of the police power of the city in attempting to provide protection to the property and health and safety of its citizens from fire, explosion, gas, and other hazards inimicable to public health, peace, and safety brought about by the drilling for and production of petroleum and natural gas; that the ordinance as amended applies not only to the drilling but also to the operation of a well. That the permit required may be issued, and that the city is ready to issue it upon payment of the fee and the posting of bond provided. It further contends the ordinance is prospective and applies only to acts done subsequent to' its enactment.

In the exercise of the police power of a municipality it may enact safety measures to control and regulate the erection of buildings or other structures and their maintenance and the operation of certain classes of business. It is usually required that a permit be procured from the council or some public board or official who is empowered to inspect and generally to see the proposed structure shall conform to the requirements of the ordinance. 19 R. C. L. 830, § 134; 43 O. J. p. 256, § 258. The same rule applies to the alteration of buildings which existed prior to the enactment of such ordinance. 43 C. J. 329, § 359. It is not contended the fee of $1,000 fixed as an incident to the granting of a permit is excessive. Gant v. Oklahoma City, supra; Ex parte Holt, 74 Okla. 226, 178 Pac. 260; Biggs v. Watt, supra.

The ordinance No. 3944 and amendatory ordinance No. 4596 are not ex post facto when applied to the doing of acts subsequent to the time they became operative. Calder v. Bull, supra, defines an ex post facto law, which definition has been quoted more often than any other, although there are other widely quoted definitions. This court in Tucker v. State, 14 Okla. Cr. 54, 167 Pac. 637, 638, said:

“Discussing the proposition of what laws are ex post facto within the purview of the provision of the Constitution of the United States herein involved, the Supreme Court of the United States in Calder v. Bull, supra, said:
“ ‘First. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action. Second. Every law that aggravates a crime, or makes it greater than it was,, when committed. Third. Every law that changes the punishment and inflicts a greater punishment, than the law annexed to the crime, when committed. Fourth. Every law that alters the legal rules of evidence, and receives less, or different, testimony than the law required at the time of the commission of the offense, in order to convict the offender.’ ”

Under this statement it is evident: First. The ordinance does not attempt to make an act criminal which, when done, was innocent. It is directed to the operation of the well and production of oil therefrom, as a present action and not at the drilling or production of the well before enactment of the ordinance. Petitioner may cease operation and thus avoid prosecution, or his employer, the Courter Oil Company, may secure a permit which it is undisputed the city has at all times been and is now ready to issue upon compliance with the ordinance. Second. No past action is aggravated by this ordinance. Third. The punishment for petitioner’s action is not made greater, because it related only to tbe operation of tbe well since tbe enactment of the ordinance. Fourth. No rule of evidence has been changed by the ordinance. Consequently it does not come within the prohibition against ex post facto laws. See in this connection Douglass v. City of Greenville, 92 S. C. 374, 75 S. E. 687, 49 L. R. A. (N. S.) 958; Samuels v. McCurdy, Sheriff, etc., 267 U. S. 188, 45 S. Ct. 264, 69 L. Ed. 568, 37 A. L. R. 1378; Jones v. State, 9 Okla. Cr. 646, 651, 133 Pac. 249, 48 L. R. A. (N. S.) 204; Libby v. State, 42 Okla. 603, 142 Pac. 406; Chicago & A. Railroad Company v. Tranbarger, 238 U. S. 67, 35 S. Ct. 678, 59 L. Ed. 1204; 43 C. J. p. 328, § 358; Julian Oil & Royalties Co. v. Oklahoma City, 167 Okla. 384, 29 Pac. (2d) 952.

Petitioner makes several other contentions, among them that the making each day a separate offense and fixing a fine of $19 for each offense is a cruel and unusual punishment. There is no merit in this point even if it could be raised by habeas corpus. Wright v. City of Guthrie, 150 Okla. 171, 1 Pac. (2d) 162; Ellis v. State, 54 Okla. Cr. 295, 19 Pac. (2d) 972; Ex parte Meyers, 55 Okla. Cr. 75, 24 Pac. (2d) 1011; 16 C. J. 1353.

He also asserts that the ordinance is unconstitutional as denying petitioner the equal protection of the law, in that it makes the doing an innocent act by an employee criminal for the reason his employer did not obtain a permit. It is not discriminatory, and in effect it provides that all persons who drill for and produce oil and gas shall do so on an equality. Douglass v. City of Greenville, supra; 37 C. J. p. 266, § 156.

The writ is denied.

DAVENPORT, P. J., and DOYLE, J., concur.


author: PER CURIAM.

text:
    Ex parte G. R. COURTER.
    No. A-8903.
    July 5, 1935.
    Rehearing Denied Sept. 6, 1935.
    (54 Pac. [2d] 407.)
    W. C. Hall, for petitioner.
    Harlan Deupree, Municipal Counselor, and A. P. Van Meter, Asst. Municipal Counselor, for respondent, City of Oklahoma City.
   PER CURIAM.

This case presents the same question as Ex parte J. L. Biggs, 58 Okla. Cr. 43, 54 Pac. (2d) 404, just decided, and on the authority of that case the writ is denied.


text:
    Ex parte L. A. COURTER.
    No. A-8904.
    July 5, 1935.
    Rehearing Denied Sept. 6, 1935.
    (54 Pac. [2d] 407.)
    W. C. Hall, for petitioner.
    Harlan Deupree, Municipal Counselor, and A. P. Van Meter, Asst. Municipal Counselor, for respondent, City of Oklahoma City.
   PER CURIAM.

This case presents the same question as Ex parte J. L. Biggs, 58 Okla. Cr. 43, 54 Pac. (2d) 404, just decided, and on the authority of that case the writ is denied.


text:
    Ex parte WALTER PRESNELL.
    No. A-8991.
    Sept. 13, 1935.
    (49 Pac. [2d] 232.)

      Finis Walker, for petitioner.
    Everett S. Collins, Co. Atty., and. D. Luster Cook, Asst. Co. Atty., for respondent.
   DOYLE, J.

This is an application for writ of habeas corpus, in which the petitioner, Walter Presnell, seeks to secure his release by order of this court from the custody of the sheriff of Creek county.

It appears from the petition that on or about August 27, 1935, he was arrested upon complaint, charging him with the offense of receiving stolen property. Upon a preliminary examination before E. B. McNeal, justice of the peace in and for Drumright city district, Creek county, he was held to answer in the superior court of Creek county, upon said charge, and in default of hail in the sum of $1,000 was committed to the county jail of said county. That he has since been, and is now, held in custody in said county jail. It is further averred that said restraint and imprisonment is illegal and unauthorized, because evidence produced upon said preliminary examination, so had and held as aforesaid, wholly failed to show that this petitioner was guilty of the crime of receiving stolen property. And that said evidence was wholly insufficient to raise or sustain a reasonable or probable cause for believing this petitioner to be guilty of the crime charged, or any other crime.

Upon the filing of the petition on September 10th, a rule to show cause issued, returnable September 13th, at which time an agreed statement of facts was filed.

As follows, it is stipulated and agreed that the transcript of the testimony attached to-the petition is a complete record of all the testimony introduced at the preliminary hearing; that C. O. Beaver, judge of the superior court of Creek county, was not present at Drumright on the first Monday in September, and that the sheriff did not recess said term in his absence, nor was a judge pro tern, selected to open said term.

“It is further agreed between the parties hereto that the petitioner is held in jail under a commitment issued by E. B. McNeal, justice of the peace, and that an information was filed in the Drumright division of the superior court of Creek county on the 9th day of September, 1935.”

In answer to the rule to show cause, respondent filed motion to dismiss on the ground that an information charging said Walter Presnell, petitioner, was on file in said superior court at the time the petition in this cause was filed as shown by the stipulation.

Section 693, St. 1931, provides:

“No court or judge shall inquire into the legality of any judgment or process, whereby the party is in custody, or discharge him when the term of commitment has not expired in either of the cases following: * * *
“Fourth. Upon a warrant or commitment issued from the district court, or any other court of competent jurisdiction, upon an indictment or information.”

It is the well-settled doctrine in this state that a preliminary examination before a committing magistrate is not a trial, and an order of commitment issued thereon is not “a process issued on a final judgment,” and that the courts exercise a supervising jurisdiction over the proceedings of a committing magistrate by means of habeas corpus, and inquire into the legality of the commitment and the question of probable cause. Ex parte Johnson, 1 Okla. Cr. 414, 98 Pac. 461; Ex parte Beville, 6 Okla. Cr. 145, 117 Pac. 725. Where there is no legal or competent evidence to sustain it, an. order of commitment to hold for trial before the district court is void, and petitioner will be discharged on habeas corpus. Ex parte Turner, 3 Okla. Cr. 168, 104 Pac. 1071; Ex parte Crowell, 39 Okla. Cr. 201, 264 Pac. 642.

It has long since been established that the office of the writ of habeas corpus is not to determine the guilt or innocence of the prisoner, and the only issue it presents is whether or not the prisoner is restrained of his liberty by due process of law. The due and proper administration of public justice requires that whenever an information is filed in a court of competent jurisdiction, it is its right and duty to proceed to its final determination without interference from any other tribunal, and the writ of ha-beas corpus cannot be resorted to on the plea that the evidence adduced on the preliminary examination was insufficient to show that a felony had been committed, or probable canse for believing the defendant guilty thereof. The defendant has a right to raise tins question in the court where the information is pending, by a plea in abatement, or by motion to quash, or motion to set aside the information. Ex parte Patman, 1 Okla. Cr. 141, 95 Pac. 622; Ex parte Burroughs, 10 Okla. Cr. 87, 133 Pac. 1142; Ex parte Black, 37 Okla. Cr. 83, 256 Pac. 941; Ex parte Lansdon, 38 Okla. Cr. 59, 258 Pac. 1065; Ex parte Eason, 45 Okla. Cr. 211, 282 Pac. 684.

It appearing that petitioner, for the reasons stated, is not entitled to the writ, it will be denied.

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


author: DAVENPORT, P. J.

text:
    HOWARD PORTER v. STATE.
    No. A-8879.
    Sept. 13, 1935.
    (49 Pac. [2d] 234.)

      W. N. Redwine and E. P. Hill, for plaintiff in error.
    Mae Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was by information jointly charged with John Williams and Clyde Holford with the crime of murder, and upon a plea of guilty was sentenced to death by electrocution.

The facts as disclosed by the record show that on the 30th day of October, 1933, the defendants were each brought before A. C. Sewell, justice of the peace, and advised of the nature of the charge against them and their rights as defendants charged with a felony; they were represented by counsel, and entered pleas of not guilty, and waived a preliminary trial. The county attorney asked for the privilege to examine the state’s witnesses, and the case was set down for hearing on the 2d day of November, 193'3. That on the 2d day of November, 1933, the defendants, and each of them, were present in court and evidence was taken on behalf of the state, and the defendants, and each of them, were held to answer the charge of murder, without bail.

Information was filed in the district court, and a severance was granted. Demurrer of the defendant was filed to the information, overruled, and defendant duly excepted. On the 15th day of September, 1984, the defendant was arraigned in the district court and pleaded not guilty.

It is further shown by the record that on the 3d day of October, 1934, the defendant withdrew his plea of not guilty heretofore entered, and entered a plea of guilty to the crime of murder; time for sentence was fixed at 1:30 p. m., the day the plea of guilty was entered. The record further shows that at 1:30 p. m., on the 3d day of October, 1934, the same being the day the defendant withdrew his plea of not guilty and entered his plea of guilty, the court sentenced the defendant to> death in the electric chair December 21, 1934.

It is further shown that at the time the court sentenced the defendant pleas were made by counsel representing the defendant and the county attorney as to what punishment the court should impose upon the defendant.

The record further shows that on October 8, 1934, the defendant filed a motion to set aside the judgment and sentence and grant a new trial, and on the 10th day of November, 1934, an amended motion to set aside the judgment and sentence of defendant was filed. In the amended motion filed by the defendant he alleges that he was sentenced on the 3d day of October, 1934, by the judge of the district court, and the date of his electrocution fixed for the 21st day of December, 1934, and states he pleaded guilty of homicide under statements made him by the county attorney who misled said defendant. The statements being as follows:

“That prior to the time he plead guilty to said charge the defendant, his attorney L. J. Burt and county attorney of Pittsburg county, had a conversation in regard to said matter and said county attorney stated to said defendant that the district judge who would impose sentence had never sent a man to the electric chair who plead guilty before him, and further stated that the district judge was opposed to capital punishment.
“That after the conversation stated took place in the county attorney’s office, and after the defendant, county attorney and defendant’s attorney returned to the court room, the county attorney inquired of the defendant what he had made up his mind to do, and stated to the defendant, that if he wished to plead guilty that the matter would be submitted to the court without recommendation or statement on his part, and the court could pass upon it as he wished.
“The defendant further states that he relied upon all the statements and representations made by the county attorney, and would not have plead guilty to said charge if it had not been for the statements of the county attorney which lead the defendant to believe he would only receive a life sentence if he entered a plea of guilty; that when he entered his plea of guilty the county attorney asked the court to consider the evidence of two witnesses, Manuel Trammell and Lige Hoffman, the undertaker, taken in the previous case, which testimony was introduced in the case of Clyde Holford who was a joint defendant with the defendant in the information so filed in said court, which was contrary to' the understanding of the defendant, and in violation of section 2772, Comp. St. 1921, which section reads as follows:
“ ‘Testimony — 'how presented. The circumstances must be presented by the testimony of witnesses examined in open court, except that when a witness is so sick or infirm as to be unable to attend, his deposition may be taken by a magistrate of the county out of court, at a specified time and place, upon such notice to the adverse party as the court may direct.’
“The defendant further alleges the statements of the county attorney mislead him and caused him to plead guilty to said charge, when in truth and in fact the defendant would not have plead guilty if he had not been mislead by the statements of the county attorney.
“In support of the defendant’s allegations in the motion to set aside the judgment and grant him a new trial, the affidavit of L. J. Burt, who' was representing the defendant was filed, in which affidavit Mr. Burt states that the defendant Howard Porter asked for a conference with the county attorney concerning his case, and the county attorney granted the conference and when they got into the county attorney’s office the county attorney said to the defendant: ‘You have asked me to talk with you. What you say will not be used against you. You are charged with the crime of murder and you are to' go to trial before a jury. One of the men charged jointly with you has been tried and found guilty, and the jury fixed his punishment at death in the electric chair. If you have anything to say I am ready to listen.’
“The affidavit further states that the defendant was reluctant to say anything, but did say he was with the boys at the time of the killing and that he was guilty, but did not feel he should be sentenced to death. The county attorney then stated: ‘I think you are as guilty as Hol-ford. He has been tried and found guilty and given the chair by the jury, and the jury will give you the same punishment. I will not recommend to the court that you be given a life sentence, but will contend for the death sentence upon a plea of guilty, but I will say to you that Judge Melton has been on the bench for sixteen years and has never yet sentenced a man to' the chair where the punishment was left to the court; that he (Judge Melton) is opposed to capital punishment.’
“The defendant asked the county attorney to recommend a life sentence if he entered a plea of guilty. The county attorney refused to do' so. The conference then ended and we went back to the court room and the defendant then asked me to withdraw his plea of not guilty and enter a plea of guilty, which I did and at the same time addressed the court in behalf of the defendant, ashing the court to fix the punishment at life imprisonment in the penitentiary. I felt that should have been done upon the defendant’s plea of guilty.”

L. J. Burt was then examined by W. N. Bedwine, who appeared as counsel for the defendant in the hearing of the motion for a new trial. The examination shows that Mr. Burt was an attorney practicing law at Sapulpa, Okla., and that he had represented Howard Porter, and that on the day Howard Porter entered his plea of guilty the witness had had a conversation with the county attorney, the testimony being in substance the same as the testimony heretofore set out as being a part of the affidavit of L. J. Burt.

The witness further stated:

“I believe the county attorney offered to introduce the testimony of the witnesses that had been taken in the Holford case. He asked the court to consider that testimony.”

The witness further testified that after the plea of guilty was entered by the defendant the court stated he would take the question of the penalty to be imposed under advisement until the afternoon. “I knew that under the circumstances the court might give him the death penalty.” The court has power to do that. The defendant did not make any request to withdraw his plea of guilty. Probably two hours intervened between the plea of guilty and the sentence. The court asked the witness if he was present when the court dismissed the jury, and the witness answered he was; that he heard the remarks of the court to the jury at the time the jury was dismissed.

“Question by the Court: You heard me commend the jury for assessing the death penalty? A. Yes. Well, not that particular part of it. The Court: In three cases. There have been three death penalties assessed prior to that time. A. Two prior to that time. Two prior to the Porter case. I don’t remember but two. Mr. Watson, the county attorney: Willie Edwards, Clyde Holford and Goldie McCollum.”

The court continues the examination:

“Well, you heard me at any rate commend the jury for the courageous stand they had taken in assessing the death penalty. You heard my remarks to the jury. A. I heard your statement, yes. Q. Then you knew I was apparently not opposed to capital punishment from that expression, didn’t you? A. I know what your statement was, but I do not know whether or not you would personally assess the punishment or leave it to the jury.”

On cross-examination, by the county attorney, the witness stated:

“I heard your statement to the defendant that if he plead guilty he plead guilty at his own risk, that the judge might give him the electric chair. Question by the county attorney: Aren’t you mistaken about the statement you say I made that the judge was opposed to capital punishment? Didn’t I say that I understood that the court had never given a death penalty on a plea of guilty? Isn’t that all I said? A. I did not so understand that, Mr. Watson.”

The county attorney in his statement stated:

“I told the defendants if Holford would plead guilty and take a life sentence, and the other two take 25 years each, that I thought I would be willing for them to plead guilty on that basis, yes, sir, but that was before the evidence was brought before the jury, when I thought I had to rely on shifting convict testimony.”

The defendant, testifying in his own behalf, stated:

“My name is Howard Porter; I am twenty-three years of age; I plead guilty to murder in the court here some time ago; prior to pleading guilty I had a conversation with the county attorney in his office, together with Mr. Burt; the county attorney said Mr. Melton had been on the bench 16 years and he had never given anyone the electric chair that had plead guilty before him; the county attorney never did say he would recommend a life sentence or a death sentence; did not say he would recommend either; he said Judge Melton was opposed to capital punishment, that he had been on the bench 16 years, and had never given anyone the chair that plead guilty before him. We then went back in to the court room and I plead guilty.”

On cross-examination the defendant was asked if he was in the courtroom during the trial of Clyde Holford, and answered, “Yes.” “I related all the conversation of Mr. Watson that I recall took place while we were in the office.” Witness further stated that he did not recall stating that John Williams and Clyde Holford and the defendant had planned to hijack the deceased of the canteen books, and further stated he did not take part in the stabbing of the deceased. “I told the county attorney I left when the fight started between Williams and De-Lano; I told him I knew why John Williams went down there, but it wasn’t to rob any one. You told me Judge Melton had been on the bench 16 years and had never given anyone the electric chair that had plead guilty before him; I do not recollect you saying you would do either way if I plead guilty; I know you said that the judge was opposed to capital punishment.” The foregoing is in substance the testimony taken at the hearing upon the motion to set aside and vacate the judgment, and to grant the defendant a new trial.

The motion to set aside the judgment and sentence was overruled, and defendant excepted and appealed to this! court.

The defendant has assigned four errors alleged to have been committed. The first being the court erred in overruling plaintiff in error’s demurrer to- the information. Second, error of the court in assessing the death penalty. Third, the judgment of the court in giving the plaintiff in error the death penalty was not warranted under the facts and circumstances in the case. Fourth, error of the court in overruling plaintiff in error’s amended motion to set aside the judgment and sentence of the defendant, and granting a new trial.

The information has been carefully read and studied and we hold that it states facts sufficiently clear to charge the crime of murder against the defendant, and the other parties named in the information, and that the court did not err in overruling the demurrer to the information.

The fourth assignment covers the other assignments of the defendant alleged as grounds for reversal, that is, that the court erred in overruling plaintiff in error’s amended motion to set aside the judgment and sentence of the defendant and grant a new trial.

Every person charged with crime, whether guilty or innocent, is entitled to a fair and impartial trial, that is, a trial in accordance with the rules of law and principles of justice, and it is a duty resting on the courts to see that this guarantee conferred by the Constitution upon every person is upheld and sustained. Goben v. State, 20 Okla. Cr. 220, 201 Pac. 812.

In cases of this kind, where the defendant is charged with a capital offense, he should have the advantage of every right which the law secures to him upon his trial. It has been the universal holding of this court that in capital cases a plea of guilty can only be entered after the defendant has been fully advised by the court of his rights, and the consequences of his plea, and where it appears on appeal from a judgment of conviction based upon a plea of guilty that the defendant has been denied a right guaranteed by the Constitution, such showing, requires a reversal unless the record clearly shows the right was waived, or that no injury could have resulted by reason of such denial. Howington v. State, 30 Okla. Cr. 243, 235 Pac. 931; Mullen v. State, 28 Okla. Cr. 218, 230 Pac. 285.

In the instant case it appears that upon the defendant entering his plea there was no attempt whatever to inform the defendant of his constitutional and statutory rights.

The record discloses that the defendant had prior to the 3d day of October, 1934, entered his plea of not guilty, and on the 3d day of October, 1934, the defendant appeared in open court, with his counsel, and withdrew his plea of not guilty and entered his plea of guilty to murder, and the court set the time for sentence at 1:30 in the afternoon of October 3, 1934. No advice or directions were given by the court to the defendant prior to the AvithdraAV-ing of the plea of not guilty and entering his plea of guilty.

The record further discloses that Avhen the plea of not guilty was AvithdraAvn, and the plea of guilty entered, that the defendant’s attorney made a plea to the court for clemency; that the court fixed 1:30 p .m., the day the plea Avas entered, to impose sentence upon the defendant. At the appointed hour, the record shows the court made quite an extensive statement as to what had been going on in the penitentiary betAveen the convicts, and after stating that the defendant did not plead guilty until his codefen-dant had been convicted and sentenced to the electric chair, among other statements the court made the following statement that defendant would not have pleaded guilty had he not have been convinced that the jury would also give him the death penalty. The court further stated, after a full consideration of this case, “I feel it is my duty to administer the death penalty in each of these cases,” referring to this defendant, and to the case of John Williams, a codefendant.

The court then requested the defendant Howard Porter to' stand, and stated:

“Howard, you have pleaded guilty to the crime of murder in this case, and the court sentences you to be executed in the electric chair on the 21st day of December, 1934.”

No advice or instruction was given the defendant as to his right of appeal, or as to the consequences of his plea of guilty prior to imposing sentence upon him. Mullen v. State, 28 Okla. Cr. 218, 230 Pac. 285.

In a criminal action the defendant has the right to plead guilty and the effect of such a plea is to1 authorize a judgment of conviction and imposition of punishment as provided by law. A plea should be freely and voluntarily made by one competent to know the consequences, and should not be induced by fear, persuasion, promises, or ignorance. In some states a plea of guilty on a charge of murder is not- received; in others, on a plea of guilty the case must stand continued for judgment and sentence; in still others, a jury must be impaneled in capital cases to impose the sentence.

In this state a plea of guilty of murder may be accepted, but before it is accepted the defendant should be fully instructed and informed as to* all his constitutional rights. Mullen v. State, supra.

The record in this case shows that prior to the trial of Clyde Holford, a codefendant, in a conversation had with the county attorney, a statement was made by the county, attorney that if Clyde Holford would plead guilty and take a life sentence, that he would consent for the defendant entering a plea of guilty and taking 25 years. Clyde Holford, the codefendant, did not plead guilty, but was tried by a jury, convicted, and received a sentence of death by electrocution. After the Holford trial had closed, negotiations were then opened with the county attorney as to a plea of guilty and a life sentence. The county attorney would not agree to make any recommendation as to what the penalty should be. In the negotiations with the defendant the county attorney made a statement that the trial judge had been on the bench for sixteen years and had not during that time sentenced a prisoner to the electric chair, where he had entered a plea of guilty.

It is further contended by the defendant that the county attorney stated that the trial court was opposed to capital punishment. That statement of the defendant is controverted by the county attorney, and no statement was made to the defendant as to any recommendation the county attorney would make.

The court in imposing the death penalty on the defendant, according to- the statement in the record, considered the general understanding as to what had been going on in the penitentiary, and considered the testimony that he had heard during the trial of Clyde Holford. It is perfectly clear that in imposing the death penalty he did not act solely on the plea of the defendant, but considered facts outside of the record in this case-, and some facts that had been developed in the trial of other cases of prisoners, where they had been charged with murder, in taking the life of another prisoner.

The contention of counsel that their motion to set aside the plea of guilty and vacate sentence is predicated upon section 2961, O. S. 1931, which reads:

“The court may at any time before judgment, upon a plea of guilty, permit it to be withdrawn, and a plea of not guilty substituted.”

Section 3126, O. S. 1931, provides:

“The time appointed [for pronouncing judgment] must be at least two days after the verdict, if the court intend to remain in session so long; or, if not, at as remote a time as can reasonably be allowed.”

This court has repeatedly held that in a felony case, and especially in a capital case, if the defendant pleads guilty without benefit of counsel, or was influenced to enter such plea by his counsel or by the prosecutor, or by acts of the court, he should be accorded the right of trial by jury, or be permitted any time before judgment to withdraw his plea of guilty and substitute his plea of not guilty. Tipton v. State, 30 Okla. Cr. 56, 235 Pac. 259, Mullen v. State, and Howington v. State, supra.

The uniform holding of this court, in construing section 2961, 0. S. 1931, has been that the granting or denying of the permission to withdraw a plea of guilty before or after judgment and to substitute a plea of not guilty is a matter within the sound discretion of the trial court. Polk v. State, 26 Okla. Cr. 283, 224 Pac. 194; Mullen v. State, supra.

The county attorney did not make any recommendation or any statements to the defendant to induce him to enter his plea of guilty, but the defendant was influenced to enter Ms plea of guilty from the statements made in consultation with the county attorney, and his counsel, that the trial court had been on the bench sixteen years and had never sentenced any man to the electric chair who had pleaded guilty.

In our opinion the defendant should have been permitted under all the facts and circumstances to withdraw his plea of guilty when he applied for leave to do so. There is nothing to show that the motion was not made in good faith, or that the entering of the plea and motion to withdraw it was intended for delay. A defendant should not be allowed to trifle with the court by deliberately entering a plea of guilty and capriciously withdrawing it on the date set for pronouncing judgment, but where there is reason to believe that the plea has been entered from inadvertence, and without due deliberation, and mainly from the hope that the punishment may be thereby mitigated, the court should be indulgent in permitting the plea to be withdrawn.

For the reasons stated, the judgment of the trial court is reversed with directions to set aside the judgment and permit the defendant to withdraw his plea of guilty and enter his plea of not guilty, and grant him a trial as provided by law. The warden of the penitentiary will surrender the defendant, Howard Porter, into custody of the sheriff of Pittsburg county, who will keep him in custody pending further proceedings in the case.

DOYLE, J., concurs. EDWARDS, J., not participating.


text:
    JOHN WILLIAMS v. STATE.
    No. A-8883.
    Sept. 13, 1935.
    (49 Pac. [2d] 240.)
    W. A. Lackey and J. M. Roberts, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The defendant in this case is a code-fendant with the defendant in case No. A-8879, Porter v. State, 58 Okla. Cr. 54, 49 Pac. (2d) 234, just decided by this court involving the same charge. The same facts are presented in this case as were presented in No. A — 8879, and the plaintiff in error’s brief differing from that filed in No. A — 8879 only in page numbers of the record.

The state’s brief setting out no additional matter, but relying upon the facts as it had in opposing the motion to set aside the judgment and permit the defendant to withdraw his plea of guilty in No. A — 8879.

Following the holdings in No. A — 8879, the judgment of the trial court is reversed with directions to set aside the judgment and permit the defendant to withdraw his plea of guilty and enter a plea of not guilty and grant' him a trial as provided by law.

The warden of the penitentiary will surrender the defendant John Williams into the custody of the sheriff of Pittsburg county, who will keep him in custody pending further proceedings in the case.


text:
    J. EVERETT HENDERSON v. STATE.
    No. A-8790.
    Sept. 6, 1935.
    Rehearing Denied Sept. 27, 1935.
    (49 Pac. [2d] 811.)
    Jno. C. Powell, Person E. Woodall, and H. W. Broad-bent, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (Paul W. Updegraff, of counsel), for the State.
   EDWARDS, J.

Plaintiff in error, hereinafter called defendant, on a charge of murder, was convicted of manslaughter in the second degree and was sentenced to serve two years in the state penitentiary.

On the date charged, defendant, driving a truck with trailer attached, both loaded, struck a car driven by one James L. Reeves, causing the car to overturn, thereby killing Reeves.

Defendant contends the evidence does not support the verdict. David Clapp testified on behalf of the state that he rode with defendant from Sulphur to Noble; that before they left Sulphur he smelled whisky on defendant’s breath; that defendant picked up one Nell Hudson, who accompanied them on the trip; that during the trip defendant made several stops, and twice he and Nell Hud* son disappeared from Ms view, and when they came back the smell of whisky was stronger; that defendant drove in a reckless manner, passing cars and cutting in too quickly after passing; that when they passed deceased’s car witness said, “You liked to got that car.” Nell Hudson said, “You went too close to that car.” That they stopped at Noble to get water and discovered a car door was dragging from bed springs carried on the side of the trailer, and when so informed defendant said, “Let’s be going,” and started to leave. Other people came up about that time and detained him until the sheriff arrived. Some people who followed defendant for several miles, and who saw the collision, testified his car was wobbling so they were afraid to pass; that deceased drove his car half off the pavement to escape being hit. Other witnesses testified to the reckless manner in which defendant was driving.

Defendant introduced testimony as to reputation which was refuted, testimony to the effect that he had not been drinking and was driving carefully, and that a rope binding the furniture on the trailer caught the door of deceased’s car without fault of defendant; also, that the undersheriff tested the truck and could get a speed of only 37 miles per hour.

This court has repeatedly held that where there is competent evidence which reasonably sustains the verdict, a conviction will not be reversed, although the evidence may be conflicting. Ryan v. State, 46 Okla. Cr. 5, 283 Pac. 809; Nail v. State, 33 Okla. Cr. 100, 242 Pac. 270.

In this case the evidence is ample.

Other errors are assigned, but none are of sufficient importance to require discussion. We find no material error.

The case is affirmed.

DAVENPORT, P. J., and DOYLE, J., concur.