text:
    TONY PONKILLA v. STATE.
    No. A-9617.
    Feb. 23, 1940.
    (99 P. 2d 910.)

      Hendon & Hendon, of Shawnee, and W. H. Ballard, of Wewoka, for plaintiff in error.
    Mac Q;. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

This appeal is from a judgment of conviction rendered in the district court of Pottawatomie county on October 17, 1938, and sentence in pursuance of the verdict of the jury, finding “the defendant guilty of assault with a dangerous weapon as charged in the information and assess his punishment at three years in the state penitentiary.”

The information, omitting formal parts, charges:

“Tony Ponkilla, then and there being did then and there unlawfully, knowingly, willfully, feloniously, intentionally and wrongfully make an assault in and upon one Alford Ellis with a. certain weapon, to wit: A knife, which was then and there had and held in the hands of him said Tony Ponkilla, and did then and there with said knife so had and held as aforesaid unlawfully, willfully, wrongfully and feloniously cut, cut at and attempt to cut the said Alford Ellis with the unlawful, wrongful and felonious intent and purpose then and there on the part of him the said Tony Ponkilla to kill and murder the said Alford Ellis. Contrary to the statute in such case made and provided, and against the peace and dignity of the state.”

The record discloses that the county attorney thought that the defendant had violated the provisions: of section 1873, O. S. 1931, 21 Okla. St. Ann. § 652, and that the information above quoted was sufficient to charge an offense under said statute. This statute reads as follows:

“Every person wlm intentionally and wrongfully shoots, shoots at, or attempts to shoot at another, with any kind of firearm, airgun or other means whatever, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death or in resisting the execution of any legal process is punishable by imprisonment in the penitentiary not exceeding ten years.”

It can be readily seen that the information does not charge the offense of assault and battery with a deadly weapon with intent to kill under this section because the information wholly fails to allege or describe a deadly weapon, and fails to describe the manner in which the alleged knife was used, which manner of use would make it a deadly weapon. The information merely states, “by means and use of a certain weapon, to wit: A knife,” which charges nothing but simple assault.

We have long adhered to the rule that when the weapon charged to have been used is not a deadly weapon per se, a sufficient description of such instrument, the manner in which it was used, and the effect produced by the use thereof should be set forth. Moody v. State, 11 Okla. Cr. 471, 148 P. 1055.

An ordinary pocket knife is not a deadly weapon per se, and in the absence of an allegation in the information of the same being a deadly weapon, or setting out the manner by which its use might produce death, no offense of assault with intent to kill by means of a deadly weapon is stated; and the court would have no jurisdiction to try the defendant under section 1873, supra, or pronounce a judgment thereon under a conviction for this alleged offense or any lesser or included offense under said statute. Clemons v. State, 8 Okla. Cr. 452, 128 P. 739; Russell v. State, 9 Okla. Cr. 692, 133 P. 475; Blevins v. State, 11 Okla. Cr. 563, 149 P. 925; DeWitt v. State, 58 Okla. Cr. 261, 52 P. 2d 88.

The record discloses that the verdict of the jury was not for assault with intent to kill by means of a deadly weapon, but was for the offense of “assault with a dangerous weapon as charged in the information;” but the court did, in its instruction No. 5, submit to the jury the question of the guilt of the accused under section 1873, supra. Since the information does not state facts sufficient to charge an offense under section 1873, supra, and since no offense under said statute is stated, then the court erred in submitting that question to the jury.

In addition tO' section 1873, O. S. 1931, 21 Okla. St. Ann. § 652, our Criminal Code provides in section 1874, O. S. 1931, 21 Okla. St. Ann. § 653, punishment for an assault with intent to kill, other than assault described in section 1873, by imprisonment in the penitentiary for a term not exceeding five years or in a county jail not exceeding one year or by fine not exceeding $500 or both such fine and imprisonment. The county attorney, however, did not proceed under this statute, but relied for conviction upon section 1873, supra, under which in an information properly drawn would have been included the lesser offense of assault with a dangerous weapon with intent to1 do bodily harm and the offense of assault and battery which are not necessarily included offenses under section 1874, supra.

Section 1870, O. S. 1931, 21 Okla. St. Ann. § 645, reads as follows :

“Every person who, with, intent to do bodily harm, and without justifiable or excusable cause commits any assault upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another, with any kind of firearm or airgun or other means whatever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in the penitentiary not exceeding five years, or by imprisonment in a county jail not exceeding one year.”

The court submitted the lesser offense of assault with a dangerous weapon with intent to' do bodily harm under section 1870, supra, and also the offense of assault and battery in his instructions to' the jury. This would have been proper had the information correctly stated the offense of assault with intent to kill by means of a deadly weapon under section 1873, supra. The Bill of Rights in our Constitution and our statutes on criminal procedure both declare the salutary rule of the common law that in a criminal prosecution the accused shall be informed of the nature and cause of the accusation against him, and that the indictment or information must be direct and certain, that is, that it must set forth the special manner of the whole fact so that it can be clearly seen what particular offense, and not merely what nature of offense, is intended to be charged.

In this case the defendant did not question the sufficiency of the information upon arraignment, but raised the question for the first time by an objection to' the introduction of evidence at the beginning of the trial, later by a motion in arrest of judgment, renewed the same in hig motion for a new trial, and it is now urged as one of the grounds for reversal of this case.

If the information states a public offense amounting to a felony which would bring it within the jurisdiction of the district court, then any objection to' the sufficiency of the information must be raised by a motion or demurrer before the defendant’s plea is entered. But where the information states no offense within the jurisdiction of the court, that defect is fatal at any stage of the proceedings and is not waived by failure to take advantage thereof by motion or demurrer. Section 2956, O. S. 1931, 22 Okla. St. Ann. § 512; Stone v. State, 12 Okla. Cr. 313, 155 P. 701; Franklin v. State, 17 Okla. Cr. 348, 188 P. 686; Clark v. State, 11 Okla. Cr. 494, 148 P. 676.

Here the information states only the offense of assault and battery, which is a misdemeanor. The district court has no jurisdiction over the trial of misdemeanors, and such lack of jurisdiction may be raised at any time.

It is evident that the county attorney in preparing the information herein confused section 1873, O. S. 1931, 21 Okla. ,St. Ann. § 652, section 1874, 21 Okla. St. Ann. § 653, and section 1870, O'. S. 1931, 21 Okla. St. Ann. § 645. A strong case was presented against the defendant; but under the facts herein, this prosecution should have been under section 1870, O. S. 1931, 21 Okla. St. Ann. § 645, and the defendant charged with assault with a sharp or dangerous weapon with intent to do bodily harm.

The defendant also complains of the action of the court in pronouncing its sentence under the jury’s verdict, wherein the court recited in its judgment:

“It is therefore considered, ordered, adjudged and decreed by the said court, that you, the said Tony Ponkilla, are guilty of assault with intent to kill and that you be committed to be imprisoned in the state penitentiary, state of Oklahoma, and confined in the said state penitentiary for the term of three (3) years at hard labor for said offense of assault with intent to kill. * * *”

The court’s action in this regard is contrary to the verdict of the jury which found the defendant guilty of assault with a dangerous weapon. However, tbis is an error that, if standing alone, could be corrected by tbis court or by remanding tbe same to tbe trial judge and requiring that tbe judgment and sentence be corrected to conform to tbe verdict of tbe jury.

Tbe defendant further complains of tbe action of tbe court in sustaining an objection made by tbe special prosecutor to tbe competency of a witness called on bebalf of tbe defendant in tbe trial of tbis case. Tbe witness was Minnie Ellis, tbe wife of tbe prosecuting witness and a sister of tbe defendant. Clearly tbis was an error on tbe part of tbe court. The defendant, however, failed to make any showing as to tbe materiality of the witness’ testimony, and there is nothing in tbe record to show that he was damaged by reason of tbis action of tbe court; and we would not reverse the case upon tbis ground alone. But upon a retrial of tbis case tbis witness, if called by tbe defendant, should be allowed to testify and give her version of the affray involved.

Tbe case having been tried upon a wrong theory and tbe issue under tbe information and the evidence not having been correctly submitted to tbe jury, all to tbe prejudice of tbe substantial rights of tbe defendant, we are of tbe opinion that tbe defendant was not accorded that fair and impartial trial to which be is entitled under tbe law.

Tbe district court should order tbe defendant held, pending tbe institution of new proceedings.

For tbe reasons herein stated, tbe judgment of tbe district court of Pottawatomie county is reversed and tbe cause remanded to be proceeded with in accordance with tbe views herein expressed.

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


source: Caselaw Access Project

author: HOYLE, P. J.

license: Public Domain

text:
    PAT HUMMEL et al. v. STATE.
    No. A-9607.
    Feb. 23, 1940.
    (99 P. 2d 913.)

      W. W. Miller, of Tahlequah, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   HOYLE, P. J.

Pat Hummel and Roy Hyatt were jointly charged and tried in the county court of Cherokee county of the crime of malicious mischief. The jury returned a five juror verdict finding them guilty, but failed to agree upon the punishment. A new trial having been denied, they by the judgment of the court were each sentenced to pay a fine of f 50.

To reverse the judgment they appeal.

The errors assigned are substantially as follows: The verdict is not sustained by and is contrary to the evidence and the law applicable thereto, and the court erred in overruling the demurrer to* the evidence, and in refusing to' instruct the jury to return a verdict of not guilty; that the court erred in refusing to give requested instruction and erred in giving certain instructions.

The information charges that Pat Hummel and Roy Hyatt did in Cherokee county on or about the 22nd day of April, 1938, while acting together and in concert with each other, willfully, unlawfully and maliciously injure, deface and destroy certain personal property, to wit: One red bull, 2 years old, branded LL on left hip, same being the property of one Levi Latty, by then and there castrating said bull.

The evidence is to the effect that the prosecuting witness, owner of the bull in question, permitted the animal to run at large on a free range, where the defendants had a herd of white-faced thoroughbred cows. He testified that he did not know it was unlawful to permit his bull to run at large on the range; that his bull was castrated without his consent, but it finally got all right.

The two other witnesses for the state testified that they saw the defendants on horseback, driving the bull away from the defendant’s thoroughbred cows, and they passed out of sight behind a hill; shortly after they heard a bull bawl.

When the state rested the defendants demurred to- the evidence, and moved the court to' direct a verdict of acquittal. Overruled. Exceptions reserved.

The defendants did not offer any testimony.

In answer to plaintiffs in error’s brief, the Attorney General has filed the following confession of error:

“An analysis of the record discloses that these appellants, the defendants below, who will hereinafter be referred to as the defendants, owned a nice, fine herd of white-faced cattle, and thoroughbred white-faced bulls, some of which cost as much as $300. The prosecuting witness owned a mixed herd of cattle and a three-quarters red brindle bull. All of these cattle were in open range territory, and the defendants turned their bulls loose in the spring and took them up in the fall, and gave all cattle owners the privilege of service of the thoroughbred bull. These defendants were seen driving the bull of the complaining witness toward their house and there was later a noise, to wit, a bull bawling, coming from that direction; and the next day the scrub bull showed up castrated. There are strong inferential circumstances and circumstantial evidence that said bull was castrated by these defendants. The record does not disclose any malice on the part of these defendants toward Mr. Latty personally; one of the defendants scarcely knew Mm, and there had never been any personal controversy or real feelings of any kind snch as ordinarily precede and accompany a malicious act. Hence, we would say from our analysis that there is no malice shown.
“In this connection, we invite the court’s attention to section 9044, Okla. Stats. 1931, 4 Okla. St. Ann. § 96, which reads as follows:
“ ‘From and after the passage and approval of this act, it shall be unlawful for any owner of livestock in this state, to permit any male swine over the age of four (4) months, or any hull over the age of nine (9) months to' run at large within any portion of this state where cattle and swine are permitted by law to run at large, unless the animals or animal be pure or standard bred.’
“Thus, we need only read this statute and take a squint at the record at page 32 of the case-made, wherein Mr. Latty testified as follows referring In his bull:
“ ‘Q. Was he a thoroughbred? A. No, sir. Q. What was he, just a red bull? A. Well, he was a Poland bull, or Durham, you might say, he was just a three-quarters hull.’ to see that he was clearly violating the above-quoted section. In this connection, we are not experts, but believe our court would take judicial knowledge of the fact that a handsome steer, that is, a bull that had lost his social standing in the community in which he resided, is worth more on the market a.t any packing house in the country than a bull of the type owned by Mr. Latty, to wit, a scrub.
“We join with the counsel for defendants in his brief under the case of Colbert v. State, 7 Okla. Cr. 401, 124 P. 78, that this was a private nuisance, and that consistent with good judgment and without disturbing the peace, these defendants had a right to abate this nuisance. That if the complaining witness was damaged by the acts of these defendants, it is a question for settlement in the civil courts.
“It will be noted that thoroughbred bulls have the edge over the scrubs under the law; and we know of no finer method to improve the type and kind of cattle and livestock generally. The Attorney General would never desire to work a hardship on that class of citizens who are earnestly endeavoring, as disclosed from this record, to improve the type and kind of cattle in Oklahoma. On the other hand, would lend every encouragement to the elimination of scrubs, to the extent that some day we might indulge in the fond hope that none but thoroughbreds will roam the plains of this great Sooner State.
“The Attorney General, therefore, confesses that these defendants are not to1 be convicted, and concurs in the plea of the defendants as expressed in their brief herein, that said cause should be reversed.”

This prosecution is based upon Penal Code, sec. 2333, 21 Okla. St. Ann. § 1760, which reads:

“Every person who maliciously injures, defaces or destroys any real or personal property not his own, in cases other than such as are specified in the following sections, is guilty of a misdemeanor, and in addition to the punishment prescribed therefor, he is liable in treble damages for the injury done, to be recovered in a civil action by the owner of such property or public officer having charge thereof.”

In the case cited in the foregoing confession of error, Colbert v. State, 7 Okla. Cr. 401, 124 P. 78, 79, this court said:

“In prosecutions for malicious mischief, malice toward the owner of the property injured is the gravamen of the offense, without which it would be a mere trespass. 2 Wharton’s Cr. Law, 1070; 2 Bishop’s New Cr. Law, § 996; Desty’s Cr. Law, 144c. The intent with which an act is done is material, and, if it be shown that the defendant acted in good faith or under a claim of right, the charge of malicious mischief cannot be sustained, and any evidence tending to1 rebut the charge of malice or going to1 show the animus of the defendant is admissible. * * *
“It has been repeatedly decided that in cases of malicious mischief the spirit in which the act was done must be toward the owner of the property, and not against the property itself. * * *
“The right of a person injured by a private nuisance to summarily abate such nuisance is clearly stated in 29 Cyc. p. 1214, as follows:
“ ‘Private Nuisance. It is well established that a person who is aggrieved by a private nuisance has the right to abate the same by his own act, upon his own motion, without instituting any legal proceedings. So the person aggrieved may kill a dog which haunts his premises, and •by barking and howling becomes a nuisance, cut off branches of a neighbor’s trees overhanging his land, remove a part of an adjoining owner’s wall which overhangs his premises, or cut off the eaves of a building overhanging his property.’ * * *
“A party aggrieved by a private nuisance may have his action for damages or he may summarily abate the nuisance. Harvey v. Dewoody, 18 Ark. 252.
“The Supreme Court of Iowa has decided that a person may abate a private nuisance by his own act when it appears that such nuisance is injurious to such person or his property at the time of such abatement. Moffett v. Brewer (Iowa) 1 G. Green 348.”

In the case at bar the evidence for the state established the fact that the prosecuting witness, owner of a mongrel bull, permitted the animal to run at large on the open range of a stock district, where cattle are permitted to run at large, and where the defendants had a herd of standard bred cows, in violation of the statute, sec. 9044, supra, 4 Okla. St. Ann. § 96.

The term “nuisance” signifies in law such a use of property or such a course of conduct, irrespective of actual trespass against others, or of malicious or actual criminal intent, which transgresses the just restrictions upon use or conduct which the proximity of other persons or property in civilized communities imposes upon what would otherwise he rightful freedom. It is. a class of wrongs which arises from an unreasonable, unwarranted, or unlawful use by a person of his own property, working an obstruction or injury to' the right of another, or to the public, and producing such material annoyance, inconvenience, and discomfort that the law will presume a resulting damage. 46 C. J. 645, and cases cited. City of Phoenix v. Johnson, 51 Ariz. 115, 75 P. 2d 30.

The statutory definition is:

“A nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either:
“First. Annoys, injures or endangers the comfort, repose, health, or safety of others; or,
“Second. * * *
“Third. * * *
“Fourth, In any way renders other persons insecure in life, or in the use of property.” Section 11489, Sts. 1931, 50 Okla. St. Ann. § 1.

Under the statute:

“A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon the individuals may be unequal.” Section 11490, 50 Okla. St. Ann. § 2.
“Every nuisance not included in the definition of the last section is private.” Section 11491, 50 Okla. St. Ann. § 3.

Section 11501, 50 Okla. St. Ann. § 13, provides:

“The remedies against a private nuisance are:
“First [1], A civil action; or,
“Second [2], Abatement.”
Section 11502, 50 Okla. St. Ann. § 14, provides:
“A person injured by a private nuisance may abate it by removing, or, if necessary, destroying the thing which constitutes the nuisance, without committing a breach of the peace or doing unnecessary injury.”

The right of summary abatement of nuisances without judicial process or proceeding was an established principle of the common law, and it has not been regarded as being abrogated by the provisions of Constitutions for the protection of life, liberty, and property, although the exercise of the right might result in a destruction of property.

A private nuisance may be summarily abated only by the party aggrieved, who may always resort to' this summary method of redress whenever he has been injured to such an extent as to give him a right of action. 46 C. J. 755 and cases cited.

In 20 Ruling Case Law, sec. 102, it is said:

“There seems to be no doubt but what a person who suffers injury from a private nuisance may abate it without resort to legal proceedings, provided he can do so Avithout bringing about a. breach of the peace. The fundamental principle is one that applies to- a variety of situations. The law adopts the natural right of self-defense, because it considers the future process of law an inadequate remedy for present injuries accompanied with force. It adopts the natural right of recapturing property, real and personal, by the mere act of the party injured, because legal process may be an inadequate remedy. It adopts the natural right of abating nuisances by the mere act of the party injured, because he cannot reasonably be required to wait for the slow progress of the ordinary forms of justice.”

In the case of Lawton v. Steele, 119 N. Y. 226, 23 N. E. 878, 880, 7 L. R. A. 134, 16 Am. St. Rep. 813, the court said :

“But the remedy by judicial prosecution, in rem or in personam, is not, we conceive, exclusive, where the statute in a particular case gives a remedy by summary abatement, and the remedy is appropriate to the object to be accomplished.”

At common law a private individual could abate a nuisance which worked a 'special injury or hurt to him, and could enter upon the lands or premises of another for such purpose, provided he could do so in a peaceable manner. Joyce on the Law of Nuisance, § 368.

The following statements of the law are found in Corpus Juris:

“Since malice is an essential of malicious mischief, acts done under a legal right, or in good faith and under a. reasonable claim of right, such as is known to the law, do not constitute malicious mischief, where not forbidden by statute. * * *
“The defense of good faith and claim of right apply to acts done in the protection of a legal right, in the protection of the possession of property, or in the protection of the property itself. But one is liable if he does more damage, or uses greater violence, than it could be properly supposed was necessary for the assertion of the right or its protection. A person is not liable for malicious mischief in abating a public nuisance by which he is aggrieved, where he does so without a breach of the peace, and causes no more damage than is necessary to' the assertion of his right.” 38 C. J. 366.

In Schtul v. People, 96 Colo. 217, 40 P. 2d 970, 972, the Supreme Court of Colorado held:

“The mere intentional doing of an act prohibited by ^statute, or omitting the performance of a statutory duty, does not alone constitute malicious mischief, though it may damage the property of another. The malicious mischief statute is criminal, and it is not its province to make simply the intentional doing of an unlawful act, which injures another’s property, a crime independent of any evil purpose or intention.”

In the case of Thissen v. State, 21 Okla. Cr. 437, 209 P. 224, 226, the court said:

“While there is a considerable conflict of opinion as to whether in prosecutions for malicious mischief against the property of another a malicious intent to injure the owner of the property is a necessary ingredient of the offense, it seems to he the general rule, however, that as to malicious injuries to animals an intent to injure the owner is a necessary ingredient. These holdings were perhaps the outgrowth of the very general statutes of the states directed against cruelty to animals — the courts almost universally holding that in prosecutions under such statutes malice toward the owner of the animal is not essential to be proved. Such a statute is section 2746, Revised Laws 1910 (sec. 1844, Sts. 1931, 21 Okla. St. Ann. § 1685). Our statutes were taken from Dakota. In the case of State v. Minor, 17 N. D. 454, 117 N. W. 528, 19 L. R. A. (N. S.) 273, the Supreme Court of North Dakota, construing a statute identical with section 2765, supra (sec. 2333, Sts. 1931, 21 Okla. St. Ann. § 1760), held:
“ ‘The word “maliciously,” as used in section 9315, Rev. Codes 1905, relating to' the crime of “malicious mischief,” is to he given a restricted meaning, and imports that the act to' which it relates must have resulted from actual ill will or revenge. It implies an intent to vex and annoy the owner of the property injured.’ * * *
“Section 2822, Revised Laws 1910 (sec. 1782, Sts. 1931, 21 Okla. St. Ann. § 95), defines the term ‘malice’ and ‘maliciously’ to ‘import a wish to vex, annoy,- or injure another person, established either by proof or presumption of law.’
“While under our statutes it would probably not be necessary for the state to' establish actual or express malice toward the owner of the property, it is essential, we believe, in prosecutions under section 2765 (sec. 2333, Stat. 1931, 21 Okla. St. Ann. § 1760) (especially is this true where the property injured or killed is a domestic animal) to establish such a degree of malice against the owner, whoever he might be, which the law would deem sufficient to be inferred from the nature of the act itself and from the circumstances which accompany and characterize it.”

Under the provisions of the statute, section 11502, supra, 50 Otla. St. Ann. § 14, and the facts and circumstances in evidence, the right of summary abatement of the nuisance maintained by the prosecuting witness was clearly established.

The defendants’ conduct, in so far as the evidence discloses, was entirely consistent with the utmost good faith on their part in the protection of their property and of a legal right. They did nothing from which it can reasonably be inferred that they intended to do' wrong, or to do anything except what they believed they had a legal right to do. They acted openly and not secretly, and there is nothing in the record showing or tending to' show that their purpose was to vex or annoy the prosecuting witness, and it does not appear they committed a breach of the peace or the doing of unnecessary injury, or that they were actuated by a desire to injure the prosecuting witness in his property rights by summarily abating the nuisance by the act charged.

Upon a consideration of the record and the evidence in the case we are of the opinion that the state wholly failed to establish the commission of the offense charged, and for that reason the defendants’ motion for a directed verdict should have been sustained.

We therefore conclude that the judgment appealed from must be reversed. It is so ordered.

BAREFOOT and JONES, JJ., concur.


author: PEE. CUEIAM.

text:
    W. L. JACKSON v. STATE.
    No. A-9663.
    Feb. 24, 1940.
    (99 P. 2d 908.)

      J. Q. A. Harrod and Laynie Harrod, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   PEE. CUEIAM.

The information in this case charged that in Oklahoma county on the 8th day of November, 1928, W. L. Jackson did have in his possession seven pints of tax-paid intoxicating liquor, with the unlawful intent to sell the same. A jury having been waived, the case was tried to the court, and he was found guilty. Motion for a new trial was duly filed and overruled and he was sentenced to pay a fine of $50, and be confined in the county jail for 30 days.

On appeal he assigns as error the overruling of the motion to suppress the evidence, and that the judgment of the trial court herein is contrary to the law and the evidence.

The state relied for this conviction upon the testimony of two witnesses.

L. H. Kolb testified that he was a police officer. Under authority of a search warrant, issued by Carl Traub, justice of the peace, he searched the premises at 408 North Central, Oklahoma City, and found seven pints of tax-paid liquor and gin. The defendant claimed the whisky, said it belonged to him.

It was agreed that Officer C. S. Scott, who assisted in the search, would give the same testimony.

The state rested and the defendant interposed a demurrer to the evidence, for the reason that the same was obtained by an illegal search of the defendant’s residence, and moved the court to discharge the defendant, which was overruled.

Thereupon it was agreed that the testimony heretofore offered by the defendant in support of his motion to suppress the evidence is now offered as his defense.

In support of the motion to suppress, the affidavit and search warrant were introduced.

Otis Bryan testified:

“I was living at 408 North Central, Oklahoma City, on November 8, 1938, and had been living there since November 1st, occupied a bedroom upstairs, did not take my meals there.”

On cross-examination he stated that W. L. Jackson and his wife occupied the rest of the house.

Mrs. Ella Jackson, wife of the defendant, testified that she with her husband occupied the house, that it had two' bedrooms, one downstairs and one upstairs, and the bathroom upstairs that they all used.

The defendant, Jackson, testified that he rented a room upstairs to Mr. Bryan, and that the officers found some whisky up there, that he had it there for his own use. On cross-examination he stated that he had the whisky under a trunk in Otis Bryan’s room; it was in a hole in the floor; that was covered up and had a trunk over it; that it had been there he guessed three or four weeks.

The affidavit and the search warrant recite as follows:

“That in Oklahoma County, State of Oklahoma, on the 8th day of November, 1928, John Doe, whose full and more correct name is to affiant unknown, in a one story frame building and all out buildings, located at 408 North Central street, in Oklahoma City, did then and there unlawfully and willfully have in his possession and under his control.”

And further stating facts sufficient to show probable cause for the issuance of the search warrant, and further stating that said premises is a place of public resort.

The foregoing is sufficient to show that there is no merit in the contention made, and that the objections to the admissibility of the evidence in the case and motion for a directed verdict were properly overruled.

We find that the evidence is amply sufficient to sustain the finding of the trial court, and the record shows that the defendant was accorded a fair trial.

Finding no- material error in the record, the judgment of the lower court is affirmed.


author: BAREFOOT, J.

text:
    ERCY JOHNSON v. STATE.
    No. A-9622.
    Feb. 29, 1940.
    (101 P. 2d 265.)

      Goode & Goode, of Shawnee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Thos. C. Wyatt, Co. Atty., of Shawnee, for the State.
   BAREFOOT, J.

The defendant, Ercy Johnson, was charged in the district court of Pottawatomie county with the crime of attempt to kill; was tried, and convicted of the crime of assault with a dangerous weapon, and his punishment assessed at six months in jail, and has appealed.

For reversal of this case it is urged, first, that the court erred in refusing to declare a mistrial on account “of improper and prejudicial examination of the defendant by the county attorney, and improper and prejudicial conduct and remarks of the county attorney.” The question asked was: “Q. (By Mr. Wyatt) Dough, you shot a boy by the name of Rufus, didn’t you, and also shot your own son?” The question was objected to by counsel for defendant, and the objection was sustained by the court. And out of hearing of the jury counsel for defendant moved the court to grant a mistrial because of the fact that the question was prejudicial; the county attorney stating to the court his reason for asking the question. The court stated:

“The testimony offered by the county attorney is incompetent, irrelevant and immaterial and prejudicial to the rights of the defendant, is overruled and will be denied. The objection to the question by the county attorney to the defendant will be sustained.”

Then in the hearing, of the jury the court instructed them as follows:

“The objection to the question asked by the county attorney will be sustained and the jurors are admonished not to consider the question asked nor any inferences inferred. The rule being, gentlemen, that the defendant is charged in this information for the commission of a crime, and is being tried for that and for nothing else at this time. What he may or may not have done in the past is wholly immaterial in the trial of this case. The jury will be admonished not to consider it.”

A case will not always be reversed where the court sustains objection and advises the jury not to' consider it. We have recently had this question before us in the case of Crouse v. State, 69 Okla. Cr. 100 P. 2d 467. In that case we said:

“The defendant took the witness stand in his own behalf. He was asked by his attorney if he had ever before been in trouble of any kind. On cross-examination the county attorney asked him, ‘Isn’t it a fact that back in 1923, you robbed a certain school house and then brought back the stuff, and turned it over to the teacher?’ This question was improper but the court sustained an objection to this question, and admonished the jury to not pay the slightest attention to the question, and to dismiss it from their minds completely. Under these circumstances, and the evidence in this case we do not believe the defendant was prejudiced in any way.”

The facts in the case of Childs v. State, 68 Okla. Cr. 435, 99 P. 2d 539, were very similar to the facts in the case at bar. The defendant, in the instant case, attempted to plead self-defense, but the facts revealed that he was armed with a pistol as in the Childs Case. He and others were engaged in a crap game in the city of Shawnee. The prosecuting witness was engaged in playing pool in the same room. He had gone to the “snooker table,” which was being used for a “crap table,” to get change. A controversy arose over the crap game and defendant claimed the “banker” failed to pay ten cents of the amount due one of the crap shooters. The prosecuting, witness said: “I wouldn’t get in trouble about nothing.” And the defendant said: “If you so big why don’t you?” That defendant drew a pistol from his pocket. The prosecuting witness grabbed him and the pistol was discharged into the ceiling. They fell to the floor1 and two or three more shots were fired, one passing through the left hand of defendant and entering the chest of the prosecuting witness. The evidence also revealed that the prosecuting witness stomped defendant in the face while they were on the floor and defendant states that this was the reason for shooting the prosecuting witness. Under this state of facts, and the charge of the court, the jury had the right to find that the defendant was the aggressor, and that he was not entitled to the plea of self-defense. He claimed that he had sent to his home for money, and that when the boy returned, the sack which he brought containing the money also contained the gun. But it was in his coat pocket at the time the difficulty started. Under these circumstances, the action of the court in sustaining an objection to' the question, and charging the jury to disregard the same, the defendant was not prejudiced by reason of the asking of this question.

It is next contended that the court erred in striking the testimony of the witness, Helen Johnson, and in giving the following instruction withdrawing it from the jury:

“Gentlemen of the Jury, all the testimony of the witness Helen Johnson is stricken and withdrawn from consideration of the jury, for the reason that it is incompetent. All of the testimony and statements of counsel with reference to the relationship of Helen Johnson and the complaining witness are stricken from the consideration of the jury for the reason that same are wholly immaterial. The jury will be admonished not to consider on deliberation in this case, any of the remarks of counsel and testimony of witnesses with reference to the relationship that existed between the defendant’s daughter and the complaining witness.”

Evidence had been offered by this witness showing that she was the daughter of the defendant, and that some time before the difficulty he had given her a whipping for going with the prosecuting witness, and she had related this to- him, and he had told her “he would see about it.” The record reveals that there was some talk that this witness had given birth to a baby, and it was claimed that the complaining witness was the father of this child. When the case was closed the court evidently saw that the relationship between the defendant’s daughter and the complaining witness had nothing to do with the difficulty in this case. The evidence fully justified this view. There was no error in striking this evidence from the record and instructing the jury not to consider the same.

Defendant construed this testimony as being a threat upon the part of the prosecuting witness. We hardly think it could be given that construction. It is contended that it was an uncommunicated threat, and that it should have been offered in evidence in order that the jury might consider the same in determining who was the aggressor in accordance with decisions of this court. We do not think the evidence is such as to bear out this assumption.

It is next urged that the court erred in giving instruction Nos. 10 and 11. Instruction No. 10 was the usual instruction upon the law of self-defense, stating that self-defense, under the law, is a defensive and not an offensive act, and other terms upon which the law of self-defense may be based. The latter part of the instruction stated, “providing he is in a place where he had a right to be and has done no- act upon his part to bring about the attack, or threatened attack, if any, by the said Johnie Lee Vaden.” It is this last paragraph to which defendant objects. The case of Mulkey v. State, 5 Okla. Cr. 75, 118 P. 532, is relied upon as sustaining this contention. In that case the defendant was in his own home, and the court held that the jury should have been instructed, as a matter of law, that he was in a place where he had a. right to- be. In view of the punishment given defendant in the instant case, it does not occur to us that the jury was in any way prejudiced against the defendant. There is nothing in the record to- indicate that the jury found that he was in a place where he had no right to be. He had possession of a gun in his coat pocket in a public place and certainly under the law he had no right to be so armed with a dangerous weapon in a public place.

Instruction No. 11 was as follows:

“One who shoots another under an apprehension of death or great bodily harm from assault must have been free from fault in bringing on the difficulty in order to justify the shooting. The law of self-defense is given to the citizen for his protection, and it cannot be pleaded as a defense by one who himself is the aggressor, or who enters voluntarily into a difficulty, armed with a deadly weapon, no matter in how much danger he may be placed in the course of the difficulty nor how imminent his peril may become.”

This instruction could have been given in different language, but it states no principle that is not the law. An instruction in almost the same words was approved by this court in the case of Brannon v. State, 24 Okla. Cr. 362, 217 P. 1060. This case distinguished the case of Boyer v. State, 16 Okla. Cr. 388, 183 P. 620, cited by defendant. Bard v. State, 23 Okla. Cr. 309, 214 P. 939.

An examination of all the instructions convinces us that the rights of defendant, under the evidence, were protected. Instructions Nos. 8 and 9 were specially favorable to the defendant.

Finding no substantial error, we are of the opinion that the judgment of the district court of Pottawatomie county should be affirmed, and it is so ordered.

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


author: DOYLE, P. J. DOYLE, P. J.

text:
    BUSTER HERREN v. STATE.
    No. A-9582.
    Dec. 7, 1939.
    On Rehearing Feb. 29, 1940.
    (97 P. 2d 96; 100 P. 2d 286.)

      H. H. Brown, of Ardmore, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Appellant Buster Herren and Earl Herren were jointly charged by information in the district court of Jefferson county with the crime of burglary in the second degree, alleged to have been committed on the 4th day of February, 1938, by breaking into and entering a certain building occupied by Zeb Jones, in the town of Bingling, in Jefferson county, in which certain personal property belonging to the said Zeb Jones was then and there kept, with the felonious intent on the part of said defendants to take, steal and carry away said personal property, etc.

Upon his separate trial the jury returned a verdict finding:

“The defendant, Buster Herren, guilty of burglary in the second degree as charged in the information herein and fix his punishment by imprisonment in the state penitentiary for a term of three years.”

His motion for new trial was overruled on April 29, 1938; thereupon the court rendered judgment in accordance with the verdict. From which judgment an appeal was duly perfected by filing in this court October 24, 1938, petition in error with case-made.

Appellant alleges several assignments of error for reversal of the judgment, but mainly relies in the brief o,n the assignment that the evidence tending to connect him with the commission of the crime charged was insufficient to sustain the verdict of the jury.

The uncontroverted evidence for the state shows that between 4 and 5 o’clock on the morning of the date alleged, the service station and garage, owned and operated by Zeb Jones, in the town of Ringling, was burglarized and several hundred dollars worth of merchandise, consisting of tires, inner tubes, batteries, pumps and automobile parts, were taken, and carried away. A window in the back end of the building had been broken open, entrance made, and a door had been broken open. Tracks of three men from the door of the garage to where a car had been parked, about 100 yards from the building were examined. The owner and three officers examined the tracks; found one certain shoe track that had a bell shape marking, on the heel.

Lee Herren, uncle of appellant, a brother of codefen-dant, Earl Herren, was the owner of a filling station and a small store located nine miles east of Ardmore, on highway No. 70, and he had a farm three miles east and a half mile north, occupied by his son-in-law, Tom Ruth-ledge.

Zeb Jones testified that six National Silent Tread tires were recovered, four had wrappers with his name and address, two were returned by Officer Allen, later four were returned to him, also one of two National High Yolt Batteries; they were dated and had a peculiar mark, and were identified and introduced in evidence; that different brands of tubes were taken and he identified tubes recovered as tubes for the National 600 x 16. That with Mr. Allen, Mr. Adams and Mr. Berry, he examined the tracks between the garage and where the car had been parked, that the value of the missing, property was about $300, and he recovered approximately $150 worth, bnt was not present when that portion he recovered was found.

W. B. Allen, deputy sheriff of Jefferson county, testified that he went to Ardmore and with the sheriff of Carter county went east of Ardmore, about twelve miles and found 41 casings, among which were four new casings, having the name and address of Zeb Jones on the wrappers, all the casings found had been stolen, some at Ardmore, some at Wayne and some at Maud.

He further testified that he recovered two casings found on the rear wheels of a Plymouth car in Oklahoma City. Buster Herren claimed the car, and he found the battery introduced in evidence in the car; that Earl and Lee Herren were present; when he asked Buster where he got these casings and the battery, Buster said, “I bought them from a fellow in Oklahoma City, and gave him $5 each for the casings, I don’t know who he was.” Then he asked Buster if anybody was present when he made the purchase, and he said no.

W. R. Berry, sheriff of Jefferson county, testified that he was called to Ringling that morning and found the tracks of these persons very plain, and one was a very peculiar track, he had never seen one like it before or since; on the heel there was a bell shaped with two diamond marks; that Mr. Allen drew an impression of it. He was handed this as an exhibit and said it was a perfect print of the heel that made tracks found near the service station.

Floyd Randolph, sheriff of Carter county, testified that Lee Herren was an uncle of Buster and a brother of Earl Herren; that they had a little store and a filling station nine miles east of Ardmore, that Tom Ruthledge, Lee Herren’s son-in-law, was living on Lee Herren’s place, three miles east of the store, that he found tracks leading from where an automobile was parked to where Ruthledge lived, and tracks around the Lee Herren place, that they made a mold or prints of the tracks where the tires were loaded, and followed these tracks until they got to the pavement, then found where they went into the pasture, and down a road around by the house and a hay bam, to about 100 yards of Tom Ruthledge’s house, where they found some twenty odd casings in the pasture on the Herrens’ place; they made another search later and found the car that belonged to Buster Herren, and one of those casings on it, with others in the back of the car. They went over and drove his car down to this place, the treads made were the same as those tracked, there had been no other car there. That the casings found were identified by the owners. Some from Maud, two from Ardmore and others from Ringling.

Jim Latham, deputy sheriff testified that he was with the sheriff when they made the search and recovered some 20 casings, and the first bunch was uncovered just across the fence from Lee Herren’s place, they discovered it by following a tread that was exactly like that where it went into the gate at Tom Ruthledge’s place.

W. R. Berry, recalled, was handed a pair of shoes and stated he got them from Earl Herren, codefendant, and they were admitted in evidence, one having a heel that exactly fitted the imprint testified to- by the other witnesses.

When the state rested the defendant interposed a demurrer and moved the court to direct the jury to return a verdict o-f not guilty, which was overruled.

The defendant did not testify as a witness and the only witness called on the part of the defense was Lee Herren. He testified that he operated a filling station and a little grocery store nine miles east of Ardmore, on Highway No. 70, where 18 turns to Sulphur; that his farm is three miles east and three-quarters north; that his son-in-law, Tom Ruthledge, and another family live on the place; that he did not know anything about the stuff that the officers found out there; that Buster Herren was his nephew and lived at Oklahoma City, and Earl Herren is his brother; that he had nothing to> do with the placing of these tires out there where they had been found.

On cross-examination he stated that Buster Herren comes there once in a while, and has been there as often as twice a week; that Buster Herren is his nephew, and Earl Herren, codefendant, is his brother.

The foregoing is a concise statement of the material evidence in the case.

It is contended that the evidence is insufficient to support the verdict, in that the evidence fails to connect this defendant with the commission of the crime charged.

We think this contention is without substantial merit.

In the case of Hart v. State, 57 Okla. Cr. 872, 48 P. 2d 337, 338, we said:

“It has been held by this court, following the rule recognized by the courts generally, that mere possession of property recently stolen is not sufficient to convict the possessor of a larceny of it. Shaw v. State, 13 Okla. Cr. 511, 165 P. 617; Graham v. State, 12 Okla. Cr. 84, 152 P. 136. When, however, this fact is supplemented by other facts inconsistent with the idea that the possession is honest, it then becomes a question of fact for the jury to •determine.
“Where the charge is burglary, if property taken from the owner is soon thereafter found in possession of the person charged with the burglarious entry, proof of this fact, together with circumstances showing guilty conduct, is presumptive evidence, not only of the larceny, hut also that he made use of the means by which the property was taken from the owner.
“Burglary is one degree removed from larceny; but when the facts in evidence warrant the finding of the larceny, and the surrounding circumstances are such as to show that the larceny could not have been committed without the burglarious entry, the evidence is sufficient to warrant the finding of the burglary also.
“In order to establish defendant’s guilt, it was not necessary that any of the witnesses should have seen him or his codefendants in the vicinity of the warehouse about the time the burglary was committed. It rarely happens that perpetrators of an offense, committed in the manner here proven, can be shown by witnesses who saw and recognized the defendants in the act, and resort must therefore ordinarily be had to circumstantial evidence.”

In our opinion the state’s evidence as summarized was amply sufficient to authorize the jury to find that this defendant was one of the men who participated in the commission of the crime charged. There are other facts and circumstances, as shown by the record, tending, to strengthen this conclusion.

The foregoing statement of the evidence clearly discloses facts and circumstances authorizing the jury to return a verdict of guilty against this defendant.

This court has repeatedly held that, if there is any evidence in the record for which the jury could legitimately conclude that the defendant was guilty of the crime charged, the conviction will not be set aside because of the insufficiency of the evidence. Leslie v. State, 22 Okla. Cr. 111, 210 P. 297.

The instructions given by the court, to which no objection was made nor exception taken, fully and correctly covered the law of the case, including the law of circumstantial evidence.

Upon the record before us, the case was one for the consideration of the jury. The trial was in all respects fair, and we are unable to find anything in the record to warrant us in interfering with the conviction. The judgment of conviction must therefore be affirmed. It is so ordered.

BAREFOOT and DAVENPORT, JJ., concur.

On Rehearing.

DOYLE, P. J.

As we view the evidence in this case, it cannot, with due respect to the law, be held that there is an absence of competent evidence on which to base the conviction. It is only where there is a total failure of substantial evidence of the elements or some one element of an offense that this court on appeal is permitted to reverse a conviction on the ground that the evidence is insufficient to sustain it.

It is also urged that the county attorney was guilty of misconduct in his examination of the last witness called by the state.

The record shows that Frank Brown, the last witness called by the state, testified as follows:

Direct examination by Victor Eckler, County Attorney:

“Q. Your name is Frank Brown? A. Yes, sir. Q. Jailor here? A. Yes, sir. Q. You know Mr. Herren? A. Yes, sir. Q. Earl and Lee? A. Yes, sir. Q. Did you have occasion recently to1 have this defendant in jail? A. Yes, sir. Q. Who made his bond? A. Lee Herren. Objection overruled. Exception. Q. What did you tell in regard to releasing the boy? Mr. Brown. We object, that has nothing to do with this case. Mr. Eckler: I want to' show he was harboring a criminal, this boy was a fugitive from justice. The court: Sustained. It is immaterial I think. Mr. Eckler: The state rests.”

The asking of an improper question by a county attorney, where the trial court properly sustains an objection, is not ordinarily reversible error. However, we are inclined to. think that in this case it may have influenced the jury in fixing the punishment, and for that reason the judgment should be modified.

It is both the spirit and intention of our laws that punishment for crime should be imposed for the protection of society and reformation of the criminal.

It appears that the defendant is a married man, with a wife and three children of tender years, and we are satisfied that a. term of two years’ imprisonment will be as much protection to society and do. him as much good as would the punishment fixed by the jury.

The judgment, sentencing the defendant to imprisonment for the term of three years is hereby modified to the extent of reducing it to a term of two years’ imprisonment in the state penitentiary. As so modified, the judgment will be affirmed.

BAREFOOT and JONES, JJ., concur.


author: DOYLE', P. J.

text:
    LEE PLUMLEY v. STATE.
    No. A-9697.
    Feb. 29, 1940.
    (100 P. 2d 299.)

      H. H. Cook, of Atoka, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE', P. J.

This appeal is prosecuted from a 'Conviction had upon an information charging the defendant, Lee Plumley, with the theft of a red white faced heifer, having no marks or brands, the property of Wesley Clark, in Atoka county, on the 28th day of March, 1938. In accordance with the verdict of the jury he was sentenced to serve a term of two years in the state penitentiary.

The errors assigned question the sufficiency of the evidence to support the verdict.

The evidence is substantially as follows:

Wesley Clark testified:

“I live three miles northwest of Boggy Depot, on the date alleged I was the owner of a red white faced heifer, without marks or brands, that was taken from the range without my knowledge or consent, shortly after I found the heifer in George Ginn’s pasture, eight miles north of Ardmore, took possession and brought it home.”

W. J. Smith testified:

“I have lived in Ardmore 49 years, and have a sale yard, on Monday, about 4 p. m., Lee Plumley drove into the sale yard with a white faced heifer in the turtle back of the car, Lee said ‘Here is a calf that belongs to this fellow that I hauled here for him’. The man said he wanted $15 for it, I said the calf would have sold for more if they had it there in time, but $12.50 was all I could give, I wrote a check for $12.50, payable to George Bates. He indorsed the check and it was admitted in evidence. It was indorsed George Bates, Lee Plumley, I sold the heifer to George Ginn who lives eight miles north of Ardmore. I have known Lee Plumley about two months, I think he was over here four or five times, most every week, hauling stuff, and John Simpson who lives at Wa-panucka was with him, it seems to me that there was no lid on the turtle back.”

L. L. Cathey testified:

“I have lived in Ardmore 38 years, now engaged in business with the Guy Harris Motor Company, I know the defendant, Lee Plumley, I sold him a car about 30 days before on time payment of $2.50 a week, this check was presented by a man who was with Plumley, George Bates indorsed it first, I didn’t know Bates, Mr. Plumley identified him, and I had him indorse it also. I applied $2.50 on Plumley’s notes, and gave the man, Bates, $10 in cash. Mr. Plumley up to that time kept up his payments of $2.50 a week.”

Tom Kilmer testified:

“I have been sheriff of Atoka county, I arrested Mr. Plumley on this charge, while he was in jail before he made bond, he said if he could get out he could, find George Bates, I had a warrant for George Bates, but I have not been able to locate such a man, I found a George Bates at Wapanueka, took him to Ardmore to be identified, and they said he was not the man that sold the heifer, Mr. Plumley never did make any effort to find this man George Bates.”

The state rested and the defendant interposed a demurrer to the evidence, and moved the court to- direct the jury to return a verdict of acquittal, because the evidence is insufficient to sustain a conviction.

On the part of the defense, Friz Johnson, a colored man, testified:

“I am a farmer. I live a mile and a half southeast of Folsom. I have lived there many years with my family. I have known Lee Plumley four or five years. I generally go to Atoka on Saturdays. I was here in Atoka the latter part of March, on Saturday, I don’t know the date, and had a talk with Lee Plumley on the south side of Mr. Walker’s store, where we were sitting, when a man walked up and asked Mr. Plumley if he would do some hauling; that he had some yearlings to take to-market; Mr. Plumley said, ‘I can haul them if you get them to where.I can get to them,’ then I walked away. Mr. Plumley’s car was there at the time.”

On cross-examination he stated: “I know John Simpson, and the man was not John Simpson.”

The defendant testified in his own behalf and stated r

“I live two miles east of Folsom with my wife and three children. I am in the roustabout business, hauling stock, I have had deals with Mr. ¡Smith at Ardmore, and I bought a car there from Mr. Cathey, on $2.50 a week payments. I was in Atoka Saturday; parked my car on Walker street, I was- talking to this colored man; he was trying to- swap me out of the car. Bates came up and asked if he could get me to haul some cattle. I said this weather is bad, but I could haul the stuff if I could get to them. He told me where it was, back in the jungles. I said that was a pretty rough road, and I didn’t think I could haul it out of there; he said he could put it oul the main road, between the Boggy Depot and the Coleman road. I told him if he would do that I could take it on for him, and it was agreed if nothing happened I would be there Monday morning. I had a two-wheel trailer I bought a week or two before that. Monday morning I started out and bogged the trailer down. I unhooked the trailer out of the road, then drove on to tell him that I could not haul the stuff, because the trailer was down. He was there and had a yearling on the end of a rope. I told him my trailer was bogged down; he said, ‘Well I had almost as hard luck as you had,’ that he didn’t have but this one, and he would sure like to take this yearling. I said, ‘I don’t know, maybe we can get it over there.’ He said, ‘What is wrong with that turtle back?’ and we finally loaded the yearling. We nearly stuck a time or two before we got to Ardmore, about 4 o’clock. It had been raining all day. When I first made the deal I was supposed to get $7.50 for the load, but I told him I would charge only $2.50. I was going* over to Ardmore anyhow. Mr. Smith said we could get the check cashed at two or three stores, and we could not. I told Bates there was one chance, and I talked to Mr. Cathey. I told him Bates owed me $2.50, and he cashed the check, applied $2.50 on my debt, and gave me a receipt, which I have here, and gave the fellow Bates $10.00. I did not know this man, Bates but a short time. I have never been convicted of a crime or legally charged.”

On cross-examination he stated he had hauled cattle three or four times at least to Ardmore, and was there with John Simpson, who handles cattle, that he also hauled cattle to Oklahoma City. “I lived about three and a half miles south and about a mile and a half east of Wapanucka at that time,” that Wesley Clark lived about five miles from where he lives, that Bates said he lived between Caney and Coleman, “I only knew his name was George.”

The foregoing testimony embraces all the substantial facts and circumstances in evidence.

It is well-settled law in this state that if there is evidence to support the conviction this court will not weigh the sufficiency of the same to support the verdict. It is, however, equally well-settled law in this state that this court will consider all the evidence to ascertain whether a verdict is in fact founded upon sufficient evidence to warrant a conviction.

If the evidence introduced by the state fails to incriminate the defendant, or as a matter of law is insufficient to' show that he is guilty of the offense charged, it is not only the right but the duty of the trial court to advise the jury to return a verdict of acquittal. Code of Criminal Procedure, sec. 3090, 22 Okla. St. Ann. § 850. The court may do this of its own motion and the defendant may present to the court his right to an acquittal as a matter of law, under this section, but the defendant is not confined to the formula, or to any form of words in presenting to the court his right to* be acquitted; all that is necessary is that in some intelligible form there shall be presented to> the court for its ruling and decision the question that there is not sufficient evidence to' warrant a conviction.

It appears from the record that the sole ground upon which the case was submitted to' the jury was that the defendant hauled the animal in question with the man who claimed to be the owner, to Ardmore, and this man became a fugitive from justice and was never apprehended. There is no testimony in the record which by circumstance or otherwise connects the defendant with the taking of the animal from the possession of the owner. It also appears that the charge of the court did not contain an instruction on circumstantial evidence. However, the defendant did not object to the instructions given by the court and did not request any instructions.

It is unquestionably the law that crime may be established by circumstantial evidence, otherwise society would be at the mercy of the criminal class, but it is also uniformly held that the circumstantial evidence must go beyond mere suspicion and conjecture, and where circumstantial evidence solely is relied on for a conviction, the circumstances tending to show guilt must be consistent, the one with the other, and point so strongly to the guilt of the defendant, as to exclude every other reasonable hypothesis except that of guilt.

Can it reasonably be said from the fact that this defendant hauled the stolen animal in his car for and with the one who was the thief, that he had knowledge that it was a stolen animal, and that this circumstance alone was sufficient to show his complicity in the crime charged? We think that it was not, and for this reason the motion for a directed verdict of acquittal should have been sustained.

After a careful consideration of all the testimony offered by the state and the defendant, we are of opinion that, as a matter of law, the evidence was insufficient to warrant a conviction. It follows that the judgment appealed from should be reversed. It is so ordered.

BAREFOOT and JONES, JJ., concur.


author: JONES, J.

text:
    CHARLIE KEY v. STATE.
    No. A-9648.
    Feb. 29, 1940.
    (100 P. 2d 291.)

      John T. Levergood and Clarence Tankersley, both of Shawnee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

Charlie Key was charged in the county court of Pottawatomie county with the offense of possession of intoxicating, liquor, was tried, convicted and sentenced to1 serve a term of 30 days in the county jail and pay a fine of $50 and costs, and has appealed to this court.

The defendant, for reversal of this case, alleges:

(1) That the county court erred in overruling defendant’s motion for a continuance of said cause.

(2) The court erred in overruling defendant’s motion to suppress the evidence.

(3) The court erred in giving certain instructions over the objections of the defendant.

The defendant was prosecuted by information filed on January 17, 1939. On March 14, 1939, the following motion, omitting the caption, was filed:

“Comes now- the defendant and moves this court to continue the trial of the above entitled cause now set for the 15th day of March, 1939, for the reason that Clarence Tankersley, attorney of record for the said defendant, is now serving as a member of the Legislature of the State of Oklahoma. Wherefore defendant prays that said cause may be continued to the next term of said court.
“Clarence Tankersley,
“Attorney for the Defendant.”

No evidence was offered by the defendant in support of his motion for a continuance, and the motion was not verified. The record discloses that upon arraignment of the defendant on January 17, 1939, the defendant was personally present and was represented by his attorney, John T. Levergood, who entered the defendant’s plea for him and made his bond. The cause at that time was set for trial for the February term of court. When it came on for hearing, Mr. Levergood, as attorney for the defendant, appeared and obtained a continuance because the defendant was out of the state and could not be present for the trial. The cause was then set for trial for March 15, 1939. The only attorney of record for the defendant was John T. Levergood until this motion was filed to which Mr. Tankersley’s name appears attached. So far as the record discloses, there was never any intimation to the court that Mr. Tankersley was interested in said case. After the filing of said motion, the court made the following finding:

“In number 5473, the court takes judicial knowledge that the defendant was charged, January 17, 1939; that Mr. John T. Levergood, an attorney at Shawnee, appeared for the defendant at the arraignment and made the bond.
“The court takes judicial knowledge from the record that the case thereafterwards was set for trial in February of 1939, and John T. Levergood, an attorney of Shawnee, Oklahoma, appeared before the court and asked for a continuance for the assigned reason that the defendant was out of the state.
“The court takes judicial knowledge in this connection that the appearance docket showed John T. Lever-good to be the attorney of record and that there never has been any formal withdrawal. There is also filed in this cause yesterday, March 14, 1939, an application for continuance signed by Mr. Tankersley, an attorney living here in Shawnee and who is a member of the Legislature. It is the holding of the court that/the defendant is well represented and that this application is untimely and it is overruled.”

The defendant was present in court and did. not testify concerning his employment of Mr. Tankersley. Mr. Levergood had never withdrawn as his counsel and did not ask the court to permit his withdrawal from the case; and during all the proceedings herein, Mr. Levergood appeared at all times as the attorney for the defendant.

In this connection the court made the following comment:

“Mr. Levergood, you have represented the defendant since the day of arraignment, made his bond, appeared for him at the last trial and I am convinced know more about this case than Mr. Tankersley could possibly know. Mr. Tankersley has not even been in Shawnee except occasionally at nights since the Legislature was in session.”

Mr. Levergood, after the overruling of said motion for continuance, proceeded to trial as attorney for the defendant; and an examination of the record discloses that he very ably presented the views of the defendant to the court and jury.

The statute relied upon by the defendant was section 396, O. S. 1931, as amended, 12 Okla. St. Ann. § 667, which reads as follows:

“Section 1. The court may, for good cause shown, continue an action at any stage of the proceedings upon terms as may be just; provided, that if a party or his attorney of record is serving as a member of the Legislature or the Senate, sitting as a court of impeachment, or within thirty (30) days after an adjournment of a session of the Legislature, such fact shall constitute cause for continuance of the case, and all motions, demurrers, and preliminary matters to be heard by the court, the refusal to grant which shall constitute error, and entitle such party to a new trial as a matter of right. When a continuance is granted on account of the absence of evidence, it shall be at the' cost of the party making the application unless the court otherwise order. And when any litigant has given notice of appeal from any judgment of any court of record in this state to the Supreme ■Court or Criminal Court of Appeals and the time for doing any act to perfect such appeal has, or does hereafter lapse during the session of the Legislature, whether regular or special, and the said litigant is a member of the ¡Senate or House of Representatives, of the State of Oklahoma, in such session, or his attorney of record is such member, such litigant or attorney shall have such time after the adjournment of the session of the Legislature to perform such act and complete his appeal as he had at the commencement of the session of the Legislature of which he or his attorney of record was a member, and all acts done in the perfection of such appeals shall be as valid as if done within the time provided.”

This court in the cases of Holloway v. State, 37 Okla. Cr. 24, 255 P. 1022, and Otey v. State, 39 Okla. Cr. 61, 263 P. 155, has construed this statute to' the effect that where a party who is charged with a crime and has an attorney who- is not a member of the Legislature, waits until the Legislature is in session and then employs a lawyer who is a member of the Legislature to defend him, he is not entitled to- the continuance under the provisions of said section 396, O. S. 1931, as amended by the Session Laws of 1937, c. 2, art. 1, § 1, supra, 12 Okla. St. Ann. § 667.

The above cases are not exactly in point with the instant ease for the reason that the information filed herein was filed after the Legislature had convened; and if Mr. Tankersley had been the sole attorney for this defendant, there would be no question that as a matter of right he would have been entitled to a continuance of the trial of said cause.

If the trial court’s action in overruling the motion for a continuance had deprived the defendant of benefit of counsel or if it had appeared from the record that the defendant had a substantial defense to the charge which he was unable to present by reason of the absence of one of his counsel, this court would unhesitatingly set aside a conviction for failure to grant the continuance.

To allow a defendant, who has able and competent-counsel already employed to represent him, to procure a continuance of a case merely by employing a member of the Legislature would give every defendant charged with crime the right to continue his case during a session of the Legislature. No doubt this would be contrary to the spirit and letter of this act.

Under the facts herein, the defendant’s motion did not entitle him to a continuance as a matter of right; but such application was addressed to. the sound discretion of the trial judge. We find there was no abuse of discretion and that the overruling of the motion for a continuance is not error.

The defendant next contends that the court erred in overruling his motion to- suppress the evidence, based on the insufficiency of the affidavit for the search warrant. The affidavit was not introduced in evidence, but the search warrant, which was served on the defendant, was introduced. The search warrant itself recites certain of the facts which were purportedly set forth in the affidavit filed by Tom Wyatt, the county attorney, for the procurement of the search warrant. Since the affidavit for the search warrant was not introduced in evidence and no effort was made by the defendant to introduce the same, the presumption is that the affidavit for the search warrant was legal and sufficient on its face to show probable cause which would authorize the issuance of a search warrant.

If the statement set forth in the search warrant as to what the county attorney swore in the affidavit is correct as to what the affidavit contained, then counsel’s contention that the affidavit was from an old form is correct; but the fact that it is an old form does not of itself make the issuance of a search warrant based thereon void. The statement in the search warrant is positive in its nature and recites evidentiary facts sufficient to show probable cause for the issuance of a search warrant.

The attorney for the defendant placed the county attorney upon the witness stand and attempted to- impeach the positive statements made by the county attorney in his affidavit, but the county court correctly ruled that the defendant cannot question the truthfulness of the affidavit in his hearing on a motion to suppress the evidence. This court has many times ruled that an affidavit sufficient on its face cannot be impeached by evidence that the person who made the affidavit did not have knowledge of the facts set forth in the affidavit. Drummonds v. State, 45 Okla. Cr. 278, 283 P. 263; Phillips v. State, 34 Okla. Cr. 52, 244 P. 451; Harris v. State, 56 Okla. Cr. 105, 34 P. 2d 289.

The purpose of section 2, article 30, of our Constitution, Okla. .St. Ann., which is relied upon by the attorney for the defendant herein, is not to make it impossible for officers of the law to' make searches of places where they have good reason to believe that liquor is being kept for sale, contrary to our statute. If a man makes a whisky joint out of his home, then it no longer has that sanctity to .which a man’s home is entitled.

It should not be difficult for a county attorney who has made any study of the decisions of this court to1 prepare an affidavit for a search warrant that will be sufficient. There is no excuse for a county attorney to continue to use affidavits or search warrant forms that have become obsolete because of changes in the law. Even though this court might sustain searches based on such instruments, it would be much better practice to bring their forms up-to-date.

The burden, of course, was upon the defendant to' sustain his motion to suppress. Since the affidavit for the search warrant was not introduced in evidence and no proof of what it contained is in the record other than certain references thereto' in the search warrant itself, we are unable to' say from an examination of this record just what was set forth in the affidavit. No1 effort was made by the defendant to produce the affidavit, and no demand was made upon the county attorney to1 produce the same. The presumption is that the affidavit was regular on its face and in conformity to the law. The record does not disclose that there is any error on the part of the court in overruling the defendant’s motion to suppress the evidence.

The facts show that three deputy sheriffs of Pottawatomie county went to the place described in the search warrant, north of Shawnee on Highway 18, and after a search found 46 or 47 bottles of whisky in the basement. The defendant was residing there and had the key to the basement door and unlocked the same for the officers.

No evidence was offered on the part of the defendant.

The defendant complains of certain of the instructions; but after an examination of all the instructions, we find that they are such instructions as have been approved many times by this court in liquor cases. Surely, the minimum punishment imposed by the jury does not show that the defendant was prejudiced by the giving of any of the instructions.

We find there have been no material errors which affect the substantial rights of the defendant, and this case should be affirmed.

It is so ordered.

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


text:
    MAX WEISBAND v. STATE.
    No. A-9482.
    March 7, 1940.
    (100 P. 2d 297.)

      Hickman & Ungerman, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, J.

Tbe defendant was charged in tbe common pleas court of Tulsa county with tbe crime of unlawful possession of intoxicating liquor; a jury was waived; defendant was tried, convicted and sentenced by tbe court to serve six months in tbe county jail and pay a fine of $500, from which judgment and sentence this appeal was taken.

The defendant assigns as error:

(1) Action of tbe court in refusing to sustain defendant’s motion to suppress tbe evidence.

(2) Tbe evidence is insufficient to support a verdict of guilty.

Tbe affidavit for tbe search warrant described tbe premises to- be searched as follows:

“That said liquors are being disposed of and kept by one Max Weisband in the manner aforesaid, on the following described premises, situated in Tulsa county, Oklahoma, within said county and state, to wit: One 9 room house located at 3004 Woodard Blvd. City of Tulsa, Oklahoma, together with the curtilage thereof and the appurtenances, thereunto- belonging.”

The proof in support of the motion to suppress was that there is no- Woodard boulevard in the city of Tulsa, but that there is a Woodward boulevard, running east from ■Riverside to South Owasso- street through the 1100 block, and then turns south and continues past the residence of the defendant in the 3000 block. The proof showed that sometimes the street running east and west is called East Woodward and the portion where the street turns south is sometimes called South Woodward boulevard. The whole street is known in Tulsa as Woodward boulevard, and there is no duplication or confusion of numbers of the residences or numbers located on said street. The defendant, himself, in giving his address when signing his appearance bond, wrote it as “3004 Woodward.”

J. H. Carter, one of the officers who- made the search, signed the affidavit for the search warrant. His testimony shows that he drove by the defendant’s residence before he came to the courthouse, and that he took down the number of the residence and furnished the county attorney Avith the description as he found it. The search warrant named the defendant in addition to- identifying the property to- be searched.

This court has repeatedly held that the place to- be searched must be described in the search warrant with such reasonable certainty that the officer to whom it is directed has no discretion as to the place, but can ascertain it from the search warrant itself.

The correct rule is stated in 56 Corpus Juris, page 1237, as follows:

“Where the name of the street given and the correct name of the street upon which the premises are situated are idem sonans, there being no street of the name described, a description with the proper number is sufficient.”

While the name of the street involved herein was misspelled, the number thereon is correct; and we hold that the warrant herein is sufficient to enable the officer, without securing additional information, to go to the premises involved and malee a search thereof.

The testimony shows that the officers found approximately 75 pints of whisky, gin, and wine in a secret place in the ceiling of the garage, just at the back door of the defendant’s house. The defendant did not take the stand, and no testimony was offered in his behalf to refute the statements of the officers who made the search. There is no denial that the defendant owned the premises where the liquor was found; and the possession by the defendant of said liquors unexplained is sufficient to establish unlawful intent, if it be credited by the court.

See Crim v. State, 68 Okla. Cr. 390, 99 P. 2d 185; Smith v. State, 62 Okla. Cr. 33, 69 P. 2d 671; Dean v. State, 63 Okla. Cr. 385, 75 P. 2d 900; Morse v. State, 63 Okla. Cr. 445, 77 P. 2d 757.

While the evidence herein is sufficient to sustain the conviction, we find that the punishment imposed is excessive and should be reduced to 60 days in the county jail and a fine of $300.

It is therefore ordered that the judgment herein be modified, and the sentence imposed upon the defendant be reduced from six months’ imprisonment in the county jail and a fine of $500 to imprisonment in the county jail for 60 days and a fine of $300 and the costs of this action, and the judgment as modified be affirmed.

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


text:
    Ex parte CLARENCE PEOPLES.
    No. A-9816.
    March 7, 1940.
    (100 P. 2d 295.)
    H. J. Mackey, of Oklahoma City, and H. M. Redwine, of Disney, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Lewis R. Morris, Co. Atty., and Walter Marlin, Asst. Co'. Atty., both of Oklahoma City, for the State.
   BAREFOOT, J.

Petitioner, Clarence Peoples, was charged by information filed in the district court of Oklahoma county, with the crime of burglary in the second degree, based upon Oklahoma. Statutes 1931, section 1931, Okla. St. Ann. title 21, § 1435, which is as follows:

“Every person who breaks and enters in the day time or in the night time, either:
“1. Any building within the curtilage of a dwelling house, but not forming a part thereof; or,
“2. Any building or any part of any building, booth, tent, railroad car, vessel or other structure or erection in which any property is kept, with intent to steal therein or to commit any felony, is guilty of burglary in the second degree.”

Afterwards his bond was forfeited, and the forfeiture set aside, and he entered a plea of guilty, and was sentenced by the court to serve a term of 30 days in the county jail, as an included offense, under Oklahoma Statutes 1931, section 1934, Okla. St. Ann. title 21, § 1438, which is as follows:

“Every person who, under circumstances not amounting to any burglary, enters' any building or part of any building, booth, tent, warehouse, railroad car, vessel, or other structure or erection with intent to commit any felony, larceny, or malicious mischief, is guilty of a misdemeanor.”

Petitioner filed a petition for writ of habeas corpus before the Hon. Clarence Mills, district judge of Oklahoma county. After hearing the application the petition was denied. He then filed a petition for writ of habeas corpus in this court, praying for his discharge.

It is contended: First, that the misdemeanor defined under the section above quoted is not such an offense against the laws of the state that is included in the second degree burglary charge under which the information was filed; and, second, that the district court did not have jurisdiction to accept a, plea of guilty in a misdemeanor case, and assess a punishment of 30' days in jail.

The first proposition that the offense defined under Oklahoma Statutes 1931, section 1934, Okla. St. Ann., title 21, § 1438, cannot be maintained. This statute was adopted from the statutes of North Dakota (section 6746), and is identical therewith. On November 4, 1903, the Supreme Court of North Dakota had before it the construction of this section, and gave its interpretation on the point here involved, in the case of State v. Tough, 12 N. D. 425, 96 N. W. 1025. The court said:

“An indictment for burglary in the third degree for breaking and entering a railroad car, with intent to steal, as defined, in section 7406, Rev. Codes 1899, will sustain a conviction for the minor and constituent offense defined by section 7411, Id., of entering a railroad car with intent to steal.”

In the body of the opinion, the court held:

“The indictment was drawn under section 7406, subd. 2, Rev. Codes 1899, and charged the defendant with the crime of burglary in the third degree, committed by breaking and entering in the nighttime a railroad car, in which property was kept, with intent to steal therein. The jury were instructed that: ‘The indictment, in addition to charging burglary in the third degree, also charges, as lesser offense, the offense of entering a railway car with intent to commit larceny; that is, with the intent to steal coal. Stealing of coal is larceny. In the crime last referred to you will notice that the element of breaking into the car is omitted, so that, if the jury has a reasonable doubt of the defendant’s breaking into the car in question, the jury may consider the lesser crime, and say by its verdict whether he entered the car with intent to steal coal.’ The jury returned a verdict in the following language: ‘We, the jury, find the defendant guilty of the crime of entering a railroad car with intent to commit larceny, as charged in the indictment.’ Appellant excepted to these instructions, and now challenges the verdict as illegal, and not responsive to the indictment. Section 7411, Rev. Codes 1899, upon which this verdict is based, declares: ‘Every person who, under circumstances not amounting to any burglary, enters any building or part of any building, booth, tent, warehouse, railroad car, vessel or other structure or erection with intent to1 commit any felony, larceny or malicious mischief, is guilty of a misdemeanor.’ Section 8244, Id., permits the jury to find the defendant guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment or information. The only element of burglary in the third degree defined in subdivision 2, § 7406, and charged in the indictment, which is wanting in the statutory misdemeanor of which defendant was found guilty, is the breaking.’ Strike from the indictment the word ‘break’ where it appears in the charging part of this accusation, and there remains a good charge of the misdemeanor defined in section 7411, Id. This is the test applied by the Court of Appeals, of New York, from which the statutes under consideration were taken. People v. Meegan, 104 N. Y. 529, 11 N. E. 48. The charge of breaking and entering a railroad car with intent to* steal of necessity includes the charge of entering the railroad car with intent to steal. State v. Maxwell, 42 Iowa [208], 213. The verdict returned operated as an acquittal of the burglary charged. State v. Johnson, 3 N. D. [150], 151, 54 N. W. 547; State v. Maloney, 7 N. D. [119], 126, 72 N. W. 927. But the indictment charges every element of the statutory misdemeanor without being duplicitous. State v. Climie [12 N. D. 33], 94 N. W. 574. It is sufficient to sustain the judgment, the same as though the indictment had in express terms charged the offense named in section 7411, Rev. Codes 1899, and nothing else. State v. Johnson, 3 N. D. 150, 54 N. W. 547; People v. English, 30 Cal. [214]. 218; Mulloy v. State [58 Neb. 204], 78 N. W. 525.”

This case is* directly in point, and is based upon sound reasoning. The reason is also stated in 31 Corpus Juris, § 483, as follows:

“At common law, however, there could be no conviction of a misdemeanor upon an indictment for felony, although the elements of the misdemeanor were included in the felony charged, the reason for the rule being that upon a trial for misdemeanor defendant had certain advantages such as the right to* appear by counsel, to have a copy of the indictment, and to a special jury, which were denied him upon a trial for felony. But in the United States, since accused has the same rights upon the trial of offenses of either character, the common-law rule has not been generally recognized, there being no* reason for its application, it having been abolished by statute in many of the states, and indeed also in England. By some of the earlier statutes, however, the doctrine of merger was recognized even in the United States. Where defendant is acquitted of the felony charged, the court may hold him to be dealt with for the misdemeanor.”

And see the following cases: State v. Fuchs, 178 La. 1057, 152 So. 757; State v. Maxwell, 42 Iowa, 208; State v. Edell, W. W. Harr. 404, 183 A. 630; State v. Snow, 3 Pennewill 259, 51 A. 607.

Having held that the section of the statute under which defendant was sentenced was an included offense under the section with which he was charged, it cannot he doubted but that the court had the right to accept his plea of guilty under such included offense, even though it was for a misdemeanor.

It is provided by Oklahoma Statutes 1931, section 3091, Okla. .St. Ann. title 22, § 837, as follows:

“When it appears that a defendant has committed a public offense and there is reasonable ground of doubt in which of two' or more degrees he is guilty, he can be convicted of the lowest of such degree only.”

It has often been held by this court that where defendant was charged with murder, or attempt to kill, which are felonies, that it was the duty of the trial court to charge the jury upon every included offense, where the facts justified it, including the offense of assault and battery, which is a misdemeanor. Clark v. State, 6 Okla. Cr. 100, 116 P. 200; Suitor v. State, 6 Okla. Cr. 305, 118 P. 412; Russell v. State, 9 Okla. Cr. 692, 133 P. 475; Isaac v. State, 11 Okla. Cr. 20, 141 P. 285; Roberts v. State, 66 Okla. Cr. 371, 92 P. 2d 612. If the district court has power to pronounce sentence for a misdemeanor based upon the verdict of the jury, it certainly would have the right where the defendant entered a plea of guilty. State v. McDonald, 10 Okla. Cr. 413, 137 P. 362; McAtee v. State, 39 Okla. Cr. 10, 262 P. 703; Bean v. State, 27 Okla. Cr. 228, 226 P. 115.

For the reasons above stated, the application of petitioner for writ of habeas corpus is hereby denied.

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