text:
    ROBERT LEWIS v. STATE.
    No. A-9385.
    Jan. 7, 1938.
    (75 P. 2d 480.)

      P. A. Chappelle, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Holly L. Anderson, Co. Atty., for the State.
   BAREFOOT, J.

The defendant was charged in Tulsa county with the crime of burglary in the first degree, was tried, convicted, and sentenced to serve a term of seven years in the penitentiary, and has appealed.

The record in this case discloses that an information was filed against the defendant in the district court of Tulsa county on October 27, 1936, charging him with the crime of burglary in the first degree. He was arraigned on October 29, 1936, and counsel appointed to defend him. He was tried on November 13, 1936, and found guilty by a jury and his punishment left to the court. His counsel filed a motion for a new trial and a motion in arrest of judgment. On December 5, 1936, the court sustained the motion for new trial, and the defendant was given a new trial, and the state was granted permission to file an amended information. Permission to file the amended information was granted over the objection of defendant: On January 16, 1937, an amended information was filed, and on December 17, 1937, defendant was arraigned and tbe same counsel was reappointed to defend him. After filing a motion to quash and a demurrer to- the information, counsel for defendant on March 8, 1937, filed a plea of former jeopardy. On the same day the case was called for trial, and the court, after hearing the plea of former jeopardy, overruled the same, and the defendant waived a jury and the case ivas tried before the court, and the defendant was found guilty and his punishment was assessed at seven years in the penitentiary. He has appealed from this judgment and sentence and assigns as error the overruling of his plea of former jeopardy.

A motion has been made by the state to dismiss the appeal for the reason that the certificate of the trial judge signing and settling the case-made was not attested by the court clerk with the seal of the court attached thereto, and for the further reason that the case-made was not filed in the office of the court clerk of Tulsa county. An examination of the record discloses that the allegations made in the motion are true. The seal of the clerk is not attached to the certificate of the trial judge, and the case-made was never filed in the office of the court clerk after the same was signed and settled as provided by the statutes. Under the former holdings of this court we would be justified in dismissing the appeal in this case. No response to the motion of the Attorney General has been filed by defendant. Humphrey v. State, 3 Okla. Cr. 504, 106 Pac. 978, 139 Am. St. Rep. 972; Cook v. State, 3 Okla. Cr. 426, 106 Pac. 558; Duval v. State, 6 Okla. Cr. 605, 115 P. 1024; Dobbs v. State, 5 Okla. Cr. 475, 114 Pac. 358, 115 Pac. 370. Such has also been the holding of the Supreme Court- of this state. Graham v. Atwood, 41 Okla. 30, 136 Pac. 1080, and cases cited therein.

There, however, appears a certificate in the case-made signed by the court clerk “that the foregoing case-made and record contains a full, true and complete transcript of the record in the above entitled cause,” but to this certificate the seal of the court clerk is not attached. This court has held that, where the case-made has been stricken, if the certificate of the clerk is properly certified, the case-made may be considered as a transcript. Under the Oklahoma Statutes 1931, § 535, 12 Okla. St. Ann. p. 354, § 959, it is provided:

“If, after any record or case-made is filed in the appellate court, in either a civil or a criminal cause, it shall appear that any matter which is of record in the court, from which the appeal is taken, touching-; the cause appealed, or that any evidence heard on the trial of said cause, or that any statement or certificate or motion, or other matter is omitted from such record or case-made, or are insufficiently stated therein, the appellate court may, on its own motion, or on motion of any party to such cause, may, within a reasonable time, to be fixed by the appellate court, if in session, and if not in session to be fixed by any justice of that court, prepare such omitted parts and file such corrections in the appellate court, with like force and effect as though such corrected or added parts had been originally incorporated in the record or case-made, when first filed, and no appeal shall be dismissed by reason of such errors or omissions, until an opportunity be given to supply such corrections, and if ordered by the court on its own motion, the parties shall be given reasonable notice of the time allowed, and if made on the motion of one of the parties, the party desiring to amend must give to the opposite parties such notice as the court may by rule prescribe; or the parties, appellant and appellee, may by written agreement file such corrections. If such corrections be not made within the time so allowed, then the appeal may be dismissed, or judgment be affirmed, as the court may deem proper, and such order to correct, or leave so to do, may be had at any time before the cause is finally decided by the appellate court.”

Under this statute this court would have the right, upon its own motion, to return the case-made to the trial court for the purpose of having the court clerk attach his seal thereto in order that the record might be considered as a transcript and for the further correction to show that the same had been filed in the office of the court clerk. This we would be inclined to do to the end that the defendant have considered the question raised by his appeal if it were not for the fact that we have carefully examined the question raised by defendant and find that this court has heretofore passed directly upon the question involved in this case. See Johnson v. State, 1 Okla. Cr. 321, 97 Pac. 1059, 18 Ann. Cas. 300; Watson v. State, 26 Okla. Cr. 377, 224 Pac. 368; Duncan v. State, 41 Okla. Cr. 89, 270 Pac. 335; Snelling v. State, 41 Okla. Cr. 124, 125, 271 Pac. 687.

We are not in sympathy with technical constructions of the statutes which deprive defendants of having considered the question involved in their appeal, and, if there were any merit in the contention of the defendant in this case, we would be constrained, upon our own motion, to return the case-made to the trial court for proper corrections, but an examination of the question involved makes it unnecessary.

For the reasons above stated, the appeal in this case is dismissed.

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


source: Caselaw Access Project

author: DAVENPORT, P. J.

license: Public Domain

text:
    NORMAN ORME v. STATE.
    No. A-9275.
    Jan. 14, 1938.
    (75 P. 2d 482.)
    A. J. Morris and Kenneth Mitchell, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and F. M. Dudley, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The defendant was jointly charged with Ed Spencer, by information in the district court of Caddo county, Okla., with the crime of murder, was tried separately, convicted of manslaughter in the first degree, and sentenced to be confined in the state penitentiary for a period of 25 years, and has appealed.

The testimony on behalf of the state shows that the defendant and the deceased resided in the city of Ana-darko, and had known each other for a number of years. Wayne Butterfield was engaged and working at a filling station at Fifth and Main, in Anadarko, Okla. The defendant and Ed Spencer left the defendant’s home, the defendant taking a pistol with him, and after driving for some time went to a hardware store and Ed Spencer bought for the defendant some shells for his pistol and took them out to the defendant, and defendant loaded the pistol; they then drove on around to' where the defendant believed he would find the deceased, Wayne But-terfield; Ed .Spencer was still in the car with the defendant.

When they reached the filling station the testimony shows the defendant asked Merle Butterfield, who was a brother of Wayne Butterfield, the deceased, where Wayne was, and Merle advised the deceased Wayne was in the filling station, and the defendant stated to Merle that he was going to kill Wayne Butterfield. About this time Wayne came out of the filling station and Merle said for him to go back, or words to that effect. The defendant repeated what he had said to Merle, that he was going to kill Wayne, using some vile epithet, and the deceased, Wayne Butterfield, continued to come on toward the defendant and stated in substance, “Why, Tangle (that was the nick name of the defendant) you wouldn’t kill anyone.” The defendant got out of his car and as the deceased approached near it he fired a shot, and the deceased fell mortally wounded.

The proof further shows the defendant went around his car and fired again, and then kindo’ stepped over the feet .of tbe deceased and fired toward the ground. The witnesses say it looked to them like he fired at the head of the deceased as he was lying on the ground. The' proof shows the defendant then got in his car and drove away, leaving Ed Spencer at the scene of the difficulty.

L. H. Gannon in substance corroborated the witness Merle Butterfield as to what took place before the shots were fired, stating:

“I was connected in a business way with the Butter-fields and was present at the time of the shooting on the 22d day of March, 1936. I heard the defendant ask Merle where Wayne was, and he said, Tell Wayne I am going to kill him.’ Merle was standing near the front end of the gasoline tank when this conversation took place, and replied to the defendant, ‘You are not going to kill anybody.’ The next thing I noticed Wayne was coming out of the station door, and Wayne said, ‘Why, Tangle, you aint going to kill anyone.’ At that time the defendant was stepping out of his car, on the west side; he picked up the pistol and told Wayne he was going to kill him; Wayne was walking on toward the defendant slowly; when Wayne got within six to ten feet of the defendant the defendant shot him.”

Coy Lyon, a witness for the state, testified in substance the same as did Merle Butterfield and L. H. Gannon.

Other witnesses testified to' hearing, the shooting and stepping out in the street and seeing the defendant at the filling station, and seeing him drive away.

The testimony conclusively shows that on the day of the tragedy the defendant, in company with Ed Spencer, drove to the filling station; the defendant making his presence known and telling Merle Butterfield, a brother of the deceased, to tell his brother Wayne he was going to kill him, and when Wayne Butterfield came out of the office door and started to come to where the defendant was, the defendant repeated Ms statement, he was going to kill him, and Wayne replied, calling him by his nickname, “Why, Tangle, yon are not going to kill anyone.”

The defendant got back in Ms car immediately after the shooting and -drove away. Later, he was found at his home and taken into custody by the officers, and the pistol he had used in shooting the deceased was delivered to one of the officers by the defendant’s wife.

There is no testimony of the state showing, the deceased and defendant had any difficulty prior to the daté of the killing, except a statement permitted to be introduced by the trial court by the father of the deceased who claimed that the deceased just prior to his death, in talking about the case to him, in substance, stated that the only difficulty he had with the defendant was about an account, and the defendant tried to shoot him, and he took the pistol away from defendant and gave it to his wife. The testimony was permitted to go- to the jury over the objections of the defendant.

There is no testimony in the record showing any ill feeling or anticipated trouble between the deceased and the defendant prior to the day of the killing.

The foregoing is the substance of the testimony in chief on behalf of the state.

The defendant, testifying in his own behalf, stated:

“I have known Wayne Butterfield ever since he was a child; the deceased and I associated together until the day of his death. I have never had any trouble with the deceased prior to the day of this trouble. Ed Spencer was working for me on the day of the tragedy. I first saw Wayne Butterfield at Ada Hooks’, I was down there hunting Sam Searcy, a colored boy, who had been working for me. I went into the kitchen door at Ada Hooks’ place; I don’t know whether Ed Spencer went into the house or not. Thelma Moran was also in there, she is married and I think her name is Hayes now; they were playing the piano when I went in; I was there just a little while; as I started out Wayne followed me into the kitchen and stopped me as I started out; he jumped me up, he was drinking at the time and said to me, ‘I want that gas bill’; I said, ‘Wayne, I have no money,’ and he replied, ‘You have’; and I told him, ‘I do not owe you a gas bill, I owe your brother,’ and he said, ‘You would not pay it, you damned son of a bitch, if you had all kinds of money’; I said, ‘Let’s not have any trouble in the lady’s house,’ and he said, ‘I have a God damn good notion to cut your throat’. He had a knife in his hand and started to' grab me and a colored boy named Jack pulled him back, and he said, ‘All right we will just go and get the receipt.’ We went out to the car and Ed Spencer came out; Wayne was cussing me and said, ‘I will open up your throat so you can talk.’ He had his knife in his hand; we got him quieted down and got. in the ear, Ed Spencer, Wayne and jnyself, and started for my house to show him the receipt: I did not have a gun with me at Ada Hooks’ place. Wayne at no time ever took a gun away from me and gave it to mv wife. We drove away in the car and I let Ed Spencer out of the car on Main street; I do not know how long I remained at Henry Huitt’s I would judge about three-quarters of an hour. When I went home my wife was Avrapping her leg up to her knee, her shin was bruised and her sock was all torn down one leg, a chair was turned over in the house and I asked her Avhat was going on. She did not want to tell me, she was crying. ,She told me what had happened and I said, ‘I will go up and see Merle Butterfield. The business we are in I am afraid to say a whole lot about it; I will go up and see Merle and see if I cannot get him to straighten up.’ My wife said not to do that, ‘Wayne said he Avould kill you if I ever told you’; I said, ‘I am going to' talk to him anyway’, and my wife said, ‘If you do take your gun.’ She gave me the gun and I went by the hardware store and Ed Spencer went in and got some shells. Ed came out and brought the shells to me. I gave him the money to buy the shells, and I put them in the gun. Ed got in the car with me and I went on straight east to the next comer from the hardware store, and then up toward the post office, and went to my brother Mutt’s filling station. From there I started home; when I passed the Shelly filling station I did not see anyone; when I got about even with the filling station Merle was out to the truck.
“I drove up and honked my horn and Merle came out to my car; the door on the left side of the car was all taped up and I could not lower the glass; Merle came to the car, placed his foot on the running board and talked to me with his head partly in the door at the side of the car; I told Merle I wanted him to keep Wayne away from my house, and Merle said, ‘What in the hell has he done now?’; about that time Wayne came out of the filling station and I told Merle to tell him to go back; Merle said, ‘Wayne get back’; Wayne kept coming and I grabbed my gun, which was down in the seat, and cocked it; Merle said, ‘Wayne, get back, he has a gun,’ and Wayne said, ‘I don’t give a God damn if the son of a bitch has got a gun, I will do all the talking there is to do.’ Wayne kept coming, in from the back of the car and I stepped out and shot him; I never saw his hands, when he came out of the filling station he was pulling at his sweater; Wayne was in five or six feet of me when I shot; I was scared I was going to get killed; I believed he had a knife or a gun; I would not have shot him had I not thought I was in danger; I did not tell Merle when I drove up there I was going to kill Wayne; I did not expect to see him at that time; Merle did not tell me Wayne was in the filling station; I asked Merle to keep Wayne away from my house. At the time of the difficulty my throat was so bad I could scarcely talk above a whisper. I did not say anything about whether I was going to kill him or not, I did not have time.
“I know about Wayne having a difficulty in Oklahoma City at the bus station, south of the Kingkade Hotel; Wayne got into an argument with a cab driver, and got out bis knife, and another driver took the knife away from him. He was drunk at that time. I saw him have a difficulty with Joe Davis, near Barney Ham-mert’s place; Wayne pulled a gun on Joe and Carl Boss-ton and I took it away from him.
“I got out of my car after Wayne came out of the filling station; I grabbed my gun and got out of the car and Ed Spencer grabbed hold of my arm, and I said, ‘Look out, he will kill us both,’ and Spencer turned me loose; I stepped one foot out on the running board and the other on the pavement and shot him. After I fired I just saw Wayne kindo’ stagger back and forward and then staggered and fell within about a foot of the hind wheel of the car; Wayne was at the back end of my car when the shot hit him; I fired another shot to keep Merle in the filling station. I did not know what he had gone back to the station for. The second time I shot over the back end of the car, kindo’ out toward the middle of the street; I then walked around the back of the car and stepped over Wayne and up to the front of the car and shot again; I was facing east when I shot the last time; I shot because I saw something moving in the filling station. I was five or six feet from Wayne at the time I fired the last shot, I wasn’t aiming at Wayne or anything; I did not stop my motor when I drove up to the filling station for the reason I did not figure on staying there but a little bit; when I shot the third shot Ed Spencer was standing in front of the car; I stepped back to the west side of the car and got in and drove off, Spencer hollowed wait a minute, but I just kept going.
“I went home and in just a little while the officers came and got me. Charley Lauder came in a different car; Elmer Finley, one of the officers, asked me where the gun was and I tried to tell him, but I could not speak very loud, and my Avife spoke up and said it was in the house. Dr. Taylor had been treating my throat; after I was in jail Dr. Kerley was called to treat my throat; I could not talk as good as I can now, nor could I talk as good the date of the tragedy as I can now.”

On cross-examination defendant stated be was 38 years old:

“Have known the Butterfield family since I was a child; have associated with the deceased since he was a child; we lived about two block apart; I have never had any difficulty Avith Merle; I don’t recall how long it has been since I had seen Wayne prior to the day of the trouble. I saw him at Ada Hooks’ that day; she is a negro woman living in the northeast part of Anadarko; I went there looking for Sam Serc-y, a colored man about 45 or 50 years old. When I got there Thelma Moran and a man they have here as a Avitness, I can’t recall his name, and a boy by the name of Kirk Avas doAvn there; I did not see Thelma Moran go to Ada Hooks’ place with Wayne; Wayne pulled á knife on me at Ada Hooks’ place, and cursed me, and a negro man interceded; I don’t know his name, he stays around the Teeters place. I saw a negro known as Boll Weevil there at Hooks’ place, but I do not know Avhether he Avas on the inside or the outside. Ed Spencer went with me down there; we left around 2:30 or 3 o’clock, some time after noon anyAvay. There was some drinking while I was there, and as I started to leave Wayne stopped me and asked me about a gas hill Avhick he claimed I OAved the Skelly filling station, Avhere this trouble occurred; I told him I did not owe §11.60, that I had paid §5.00 on the bill to a boy named Clark; I told Wayne I did not have the money to pay; he said, ‘You are a God damn liar’; I said, ‘if I had the money I would not pay it to you, I Avould pay it to Merle,’ and he said, ‘You Avould not pay it regardless of how much money you had’; I told him not to start trouble down there at this place, he was talking pretty loud and pulled his knife, and appeared to be drunk; the only thing I knoAV of that caused him to curse me was this gasoline bill. When we left there Ed was driving, the car; Avhen he got in the car Wayne had quieted down and was not raising any disturbance; I thought I saw my mother’s car parked near my house, and Wayne did not Avant to go in the presence of my mother, neither did I; I was not drunk.
“I afterwards went to Huett’s to look at a team of mules; Wayne got out of the car at the Smiley barbecue stand located in the north part of town near Hooks’ place; I was at Huett’s quite a little while; I did not discuss with anyone the trouble I had had with Wayne; it made me a little bit mad, I did not want to do anything, to injure him and thought it would soon blow over; I went from Huett’s to my home; there was no one at home but my wife and she was crying when I went in the house. A chair was broken up, my wife’s shin was bruised and there was a bruise on her knee and her stocking was torn on down to her foot. She told me Wayne had come down and had insulted her, tried to force her into sexual intercourse; they had scuffled around and she had finally gotten away from him. I did not call a doctor to' treat my wife; if she called a doctor I do not know.it.
“When my wife told me what Wayne had done it did not make me mad enough to kill him; I did not have any intention of killing him over that; what had occurred at my house did not cause me to want to kill Wayne; I did not leave my home intending to kill him. The difficulty did not occur over the trouble I had had with Wayne at the Hooks’ place, or what my wife said he had done down at my place. I took the gun along for protection if I ran into Wayne, I was going to use it in case he did just what he did; was not looking for Wayne, and did not even expect to find him at the filling station. I did not tell the officers anything about what had occurred at home; I was mad when I left home, not too' mad, after my wife had told me what had happened at home, and started down to see Merle.
“Ed Spencer was not with me when I left my house, but I picked him up across from Merle’s filling station at the Fanning hamburger joint, and drove down town and he went in and bought some shells and I put five in the gun. We then drove around to the Skelly filling station; I did not know Wayne was there. I went to town for the purpose of seeing Merle and expected to see him at the filling station; when I drove up Merle came to the door of my car, and I said, ‘Merle, Wayne has been down to the house raising hell’; and he said, ‘What in the name of hell has he done now.’ About that time Wayne came out of the filling station office; Merle said, ‘Wayne get back’; he kept coming, and I grabbed my gun; I did not ask Merle where Wayne was, nor did I say I am going to kill the son of a bitch. I took this gun with me in case I ran into Wayne and he jumped me up I wanted to be prepared; I did not drive away when I saw Wayne coming out, nor did I make any effort to avoid trouble.
“Wayne came out of the filling station and Merle was going into the filling station, and he circled around Merle and came around the back of my car and I could not see what he was doing; I shot him because I thought he was going to shoot me the minute I stepped out of the car; I shot without seeing him do anything toward injuring me; he was coming all the time and he was told to go back and it looked to me like he was trying to kill me. When I fired the second shot Wayne was on the east side of the car and I fired over the back of the car.”

Witness further stated he did not expect to have any trouble when he went to the filling station; he went there for the purpose of telling Merle to tell his brother Wayne to stay away from his home; defendant stated when the deceased came out of the filling station he came toward him and he believed he was going to do him bodily harm, but he did not see him have a gun in his hands; that he was pulling up on his sweater like he was trying to get hold of something.

Gertie Orme, wife of the defendant, testified for the defendant:

“That the difficulty occurred on Sunday, the 22d of March, 1936. I had known Wayne Butterfield for a long time; he had visited in our home. Ed Spencer and my husband left shortly after noon to go hunt a colored man; after they left Wayne Butterfield came to our house aud asked me about a receipt for a payment on a gasoline bill; I told bim I did not know anything, about it; he had a part of a bottle of whisky in his pocket and pulled out and offered me a drink, and I did not take a drink. He turned and grabbed me and turned me around and said, T know what you will do’; I began fighting him and tried to get away from him and he ran over a chair; he bruised me and scratched me, but I finally got loose and ran around the table and he ceased to struggle with me, and did not try to trouble me any more; I told him I was surprised at him acting as he did, as I did not think he was that kind of a boy; he did not say anything, just kindo’ straightened his clothes; he said he had already had trouble with Norman over this gasoline bill, and when he got ready to walk out of the door he said it won’t be good for you to tell Norman anything about this because there will be some kind of trouble over it, or made some threat of some kind. When he left he went toward town; he met my boy up the street and caught him by the arm and kindo’ kicked him a little, I do not know why. In the scuffle my left hand was bruised when we ran into the chair and turned the chair over, and it skinned my shin and tore my hose all down this leg here; my shin bled and other places were just bruised.
“Mv husband came home shortly after Wayne left. I was crying when he came in and trying to doctor my shin, and he asked me what was the matter. I hesitated because I did not want any more trouble. I told bim what had happened, and he said he was going up and have Merle keep Wayne away from our house. Wayne was evidently drinking or something was wrong with bim. I told my husband Wayne had made a threat to cause more trouble over it, and got his gun and gave it to him and told him he had better be careful; he took the gun with him.
“My husband’s throat was very bad, he nearly lost his voice; part of the time you could not hear him talking. The officers came down and arrested my husband, and Mr. Finley, the sheriff, asked where his gun was. I was standing beside Norman where he was sitting on the ' porch, Norman told him where the gun was, but the sheriff did not understand him and I repeated it for him. His voice is some better now than it was then.”

On cross-examination witness stated:

“She had been married 20 years the 12th of last March; I do not remember when I got acquainted with Wayne Butterfield, it has been several years; during our acquaintance he had never said anything like he did that afternoon. So far as I know my husband had nothing against Wayne Butterfield. I gave him the gun when he started away; he did not say anything about shells for it; he did not say anything about going to kill Wayne. After he had had the trouble my husband came home between 3:30 and 4 o’clock. I don’t remember making any statement in the presence of Mr. Lauder that I did not know why in the world my husband had shot Wayne Butterfield; I knew nothing about their having any trouble outside of what he had done down there at the house. I did not tell Mr. Lauder about that. Mr. Buck came down to ask me some questions; he did not ask me if Wayne Butterfield did anything to me or attacked me; I told him I did not have anything to say, that I was all torn up and my nerves was all in pieces and I did not want to talk to anyone.”

George Hensley testified for the defendant and stated: He lived at 405 East Main, Anadarko, Okla., he knew Ed Spencer and knew where the Hooks place was located :

“I recall the day Wayne Butterfield was shot; I saw Wayne and Norman Orme on the porch at Ada Hooks’ place; the porch is about eight foot square, or eight by ten; when I heard them talking I was just outside in front and was going down the sidewalk; my attention was attracted by the talk, Mr. Orme and Mr. Butterfield had one another around the shoulder and Butterfield had a knife, and told him he was going to kill him, for two cents he would cut his throat. I heard Orme say something but could not understand him, he talked down his throat or something. This fellow Spencer came out of the door and quieted them down; it seems Spencer had the car keys; they got in the car, all three together, and drove off. I was just passing the Hooks place taking a razor down tó Mr. Pettigrew to have it honed.”

Ada Hooks testified to the parties being at her place, and several other witnesses testified to matters of no importance so far as the actual facts leading up to the difficulty, and it is not deemed necessary to set out in full all of the questions gone into by the state and defendant not material.

The defendant has assigned eight errors which he alleges are sufficient to warrant this court in reversing the case and granting him a new trial. The defendant demurred to the information, which demurrer was overruled, and also filed a motion to quash the jury panel, which was overruled. In his assignment of errors and his argument in his brief, which contains 126 pages, he does not press the question of the action of the court in overruling his motion to quash the panel of the jury or his demurrer.

The first assignment argued by the defendant is that the court erred in refusing to give to the jury the instruction requested by the defendant, which instruction is found on page 426 of the case-made. A careful reading and study of the requested instruction shows that the instruction requested is not predicated upon the facts proven by the state or by the testimony of the defendant; citing in support of his contention Brock v. State, 6 Okla. Cr. 23, 115 Pac. 1026, and Wilkerson v. State, 37 Okla. Cr. 43, 256 Pac. 63, and many other authorities. The court did not err in refusing to give the requested instruction.

There is no1 dispute that in the trial of a criminal case the defendant has the right to have a clear and affirmative instruction given to the jury applicable to his testimony based upon the fact that Ms testimony is true, where the testimony of the defendant affects a material issue in the case. The instructions of the court, considered in their entirety, clearly state the law applicable tO' the facts, and the instructions are as fair to the defendant as they are to the state. The substance of the testimony set out in this opinion clearly shows that on the day of the Mlling the defendant and the deceased had been over to a negro’s house and started to drive to the defendant’s home, claiming that before they reached his home he saw a car at the defendant’s home which they thought was his mother’s; neither the deceased nor the defendant wanted the mother to see them; they drove around a short distance and the deceased got out of the car and the defendant and Ed Spencer drove to Mr. Huett’s home and was there a short while, and Ed got out of the car and the defendant drove to his home, where he claims he found his wife crying, and she told him what the deceased had tried to do to her; her shin was sMnned and her hose torn, and her knee bruised in the scuffle. The defendant stated he was going to see the brother of the deceased, Merle But-terfield, and tell him to keep Wayne away from his house; that the defendant got in his car and says his wife told him Wayne threatened trouble if she told her husband what had taken place, and that he had better take his gun along for his protection; defendant says he did this, and after he started he picked up Ed Spencer and drove down to a hardware store, Spencer went in and bought some shells and brought them to the defendant, and the defendant loaded his pistol and drove from there to the Skelly filling station, where he found Merle Butterfield, L. H. Conner, and Coy Lyon.

At. this point the testimony becomes conflicting. The substance of the testimony of Merle Butterfield shows the defendant drove np and asked where Wayne was, and Merle Butterfield told him Wayne was in the filling station; the defendant then stated he was going to kill the son of a bitch; Merle talked to the defendant, and Wayne came out of the filling, station and Merle told him to go hack, that defendant had a gnn; Wayne continued to come out toward the car in which the defendant was sitting and said, “Tangle (using the defendant’s nickname) you won’t kill anyone,” and kept on coming toward the car, and the defendant got out, picked up his gun, and shot the deceased. He then fired a second shot and walked around the car and stepped over the legs of the deceased where he was lying on the ground mortally wounded, and fired another shot into the ground. Eye-witnesses state that he fired a shot at the head of the deceased. The defendant admits firing all of the shots, but says he did not fire at the head of the deceased.

That part of W. A. Butterfield’s evidence when the deceased was lingering, where he said he did not understand why it was the defendant shot him, as he had never had any trouble with him, he did not know the defendant had anything against him, and that he did not have anything against the defendant, was properly admitted as a dying declaration; but the defendant insists that the following statement of W. A. Butterfield was not admissible as a dying declaration:

“Q. Just go ahead and tell what he told you there in that statement? A. Well, he said — he started to tell— he says, ‘Dad, I just can’t understand it. I have never had any trouble with this fellow and I did not think he had anything against me’; and he just says, ‘I know I didn’t have anything against him,’ and then he went right ahead telling me about taking a gun away from this fellow. Q. Tell what he said. A. Well, he said he and Norman had an argument over a bill that he owed down at the filliug station and be said be asked Norman wby be did not pay it, and be said be started an argument •and Norman got mad and drew a gun on bim, and he took the gun away from bim and gave it to bis wife.”

On cross-examination the witness was asked:

“Q. Do you know when the occurrence be referred to of the gun, occurred? A. No, I could not say. Q. Did be make any claim it occurred there at the time of the shooting? A. No. Q. You did not understand bim to mean it occurred there? A. No-. Q. It occurred previous to that, is that correct? A. I suppose so, be did not say.”

It is urged by the defendant that the testimony was improperly admitted as a dying declaration, and he cites in support of his contention Wratislaw v. State, 18 Okla. Cr. 150, 194 Pac. 273; 1 Buling Case Law 353.

The state argues in its brief this testimony was admissible as a dying declaration, and cites many authorities in support of its contention. However, upon examination of the authorities cited by the state, which include Freels v. State, 18 Okla. Cr. 456, 195 Pac. 1094, we fail to find the authorities cited sustain the contention of the state, and the statement the witness claims the deceased made to bim was made without giving any date or time when the trouble should have occurred and the gun was talien from the defendant.

After a careful examination of the testimony in the case we fail to find any reason to justify the state in desiring to prove the statements claimed as a dying declaration, for the reason that all of the other testimony of the state absolutely contradicts the statement attributed to the deceased. All of the state’s testimony shows that prior to the time of the shooting the deceased and defendant had been to Ada Hooks’ place, and the state’s witnesses claim the deceased and the defendant did not have any trouble, and there was no proof on the part of the state or the defendant that the defendant had a gun with him that morning. This statement is too remote and did not strengthen the evidence of the state. Considering all the testimony in the record, the admission of the testimony by the court was not sufficiently prejudicial to the defendant to warrant this court in reversing the case on that ground. A dying, declaration is admissible when made under the belief of the deceased that death is impending. There should be some definite time given when the dying declaration was made by the injured party so the defendant could have an opportunity to meet the same by showing the true state of the deceased’s condition at the time it is claimed the statement was made.

The argument upon this question by the defendant and the state is able and lengthy, but it is not deemed necessary to discuss this question further.

The defendant insists that the verdict of the jury is not sustained by sufficient evidence and is contrary to the law. With this contention we cannot agree. The evidence in this case on behalf of the state shows the defendant drove to the filling station and found the deceased and killed him in cold blood; the deceased having no opportunity whatever to defend himself or avoid being killed. The defendant himself admits that the deceased, so far as he knew, was not attempting to do him any personal injury, but gives as the reason for shooting the deceased, the deceased continued to come on up toward the car. The question of self-defense has been argued by the defendant, but in the view we take of this record the defendant deprived himself of any right of self-defense, and in fact all of the testimony conclusively shows that no assault was made upon the defendant, or attempted, and that if any supposed injury existed, it existed in the mind of the de fendant without any overt act or demonstration upon the part of the deceased, and that the defendant took the life of the deceased without any justification.

The question of the sufficiency of the evidence is a question for the jury. In Tillery v. State, 23 Okla. Cr. 226, 214 Pac. 198, this court, in the second paragraph of the syllabus, held:

“When the sufficiency of the evidence is challenged, and the evidence as a whole does not satisfactorily or conclusively convince the appellate court of the guilt of the accused, the verdict will not be set aside on the ground of insufficiency of the evidence where, as in this ease, there is some substantial evidence tending to support the verdict. The weight of the testimony and the credibility of the witnesses is for the jury.”

Where the evidence and reasonable and logical inferences and deductions to be drawn from it are sufficient to convince the jury beyond a reasonable doubt of the guilt of the defendant, this court will not disturb the verdict for insufficiency. Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352; Humberd v. State, 56 Okla. Cr. 23, 32 Pac. 2d 954.

The jury is the exclusive judge of the weight of the evidence, and if there is a clear conflict in the evidence, or it is such that different inferences can properly be drawn from it, this determination will not be interfered with unless it is clearly against the weight of the evidence, or it appears to have been influenced by passion or prejudice. Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360; Clemmer v. State, 56 Okla. Cr. 354; 40 Pac. 2d 37; Fred Houston v. State, 63 Okla. Cr. 49, 72 Pac. 2d 526; A. G. Goodnight v. State, 62 Okla. Cr. 382, 71 Pac. 2d 789, and John Coppage v. State, 62 Okla. Cr. 325, 71 Pac. 2d 509.

There is nothing in the record to show that the verdict of the jury is against the weight of the evidence; nor is there anything in the record to show that the jury was influenced by passion or prejudice. The evidence is sufficient to sustain the judgment. The jury was extremely lenient with the defendant, and the defendant was fortunate that the jury did not return a verdict of murder, as the facts in the record would have justified.

This case has been ably argued by counsel for the defendant, and in support of their argument they have filed a brief containing 126 pages. The state, through the Attorney General, has presented an able argument in a brief containing 39 pages.

There are other errors assigned and argued by the defendant, but they do not possess sufficient merit to warrant a reversal. The defendant was properly tried, and the court’s instructions correctly advised the jury as to the law applicable to the facts, and are as fair to the deféndant as they are to the state. There are no errors in the record that would warrant this court in setting aside the verdict of the jury and the judgment of the trial court and reversing this case.

The judgment of the trial court is therefore affirmed.

DOYLE and BAREFOOT, JJ., concur.


author: DOYLE, J. BAREFOOT, J.

text:
    MOSS v. ARNOLD.
    No. A-9408.
    Jan. 12, 1938.
    (75 P. 2d 491.)

      Gomer Smith, Edward M. Box, David Tant, Glen Morris, and W. N. Stokes, for petitioner.
    Lewis R. Morris, Co. Atty., Walter Marlin, Asst. Co. Atty., Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   DOYLE, J.

(after stating the facts as above). This is an original proceeding instituted in this court, seeking to prohibit the respondent as a judge of the district court of Oklahoma county from taking and exercising further jurisdiction over the petitioner and the subject-matter involved, wherein petitioner is charged with contempt of court.

On the filing, of the petition it was presented to the court; all parties present in person and by counsel. Respondent demurred to the petition upon the ground that the petition does not state facts sufficient to entitle petitioner to a writ of prohibition. After oral argument it was stipulated that pending the decision of the court further proceedings on the contempt charge would be suspended.

The history of the case, gathered from the facts pleaded, is substantially as follows:

It appears that one M. H. Curnutt was on trial in the district court of Oklahoma county upon information charging forgery in the second degree, in that he did commit the crime of uttering a forged requisition on the county welfare board of Oklahoma county, purporting to have been issued to Willie McCullough, No. 2038, in the sum of flO, knowing that the name of Willie McCullough appearing on said requisition as claimant, owner, and recipient, was forged; that said requisition was filed with Helen Nix, county clerk of Oklahoma county, who believing said requisition to be true and genuine, issued voucher No. 193, which was duly signed by William F. Yahlberg, county treasurer of Oklahoma county, which was cashed by said defendant.

It appears that this, along with ten other requisitions, was filed with said county clerk, and for which the county treasurer issued a voucher for $102 to the defendant M. H. Curnutt in payment of said requisitions.

In the citation to show cause why he should not be adjudged to be in contempt of court and punished therefor, it. is charged that in the presence of the court, the jury in the jury box in said courtroom deliberating on a verdict in the case of State v. M. H. Curnutt, William L. Moss, a spectator, openly communicated with Juror Lee N. Katz, a member of said jury aforesaid, in direct contempt of said court.

In order that a full understanding of the questions presented may be had, a few preliminary observations may well be stated.

Writs of prohibition are not mentioned in the statutes of this state. The authorities all agree that prohibition is a common-law writ.

“Prohibition” is. commonly defined, substantially, as a writ to prevent the exercise by a tribunal possessing judicial powers of jurisdiction over matters not within its cognizance, or exceeding its jurisdiction in matters of which it has cognizance. Blackstone defines it as a writ “directed to the judge and parties of a suit in any inferior court, commanding them to cease from the prosecution thereof, upon suggestion that either the cause originally, or some collateral matter arising, therein,, does not belong, to that jurisdiction, but to the cognizance of some other court.” 3 Bl. Comm. 112.

In 22 R.C.L. 8, it is said:

“In the absence of a statute expressly permitting it, the general rule is that prohibition, being an extraordinary writ, cannot be resorted to when ordinary and usual remedies provided by law are adequate and available. Accordingly if a complete remedy lies by appeal, writ of error, writ of review, certiorari, injunction, mandamus, motion for change, of venue, or in any other manner, the writ should be denied.”

In 50 Corpus Juris, p. 676, it is said:

“That prohibition does not lie to correct or restrict errors or irregularities of a tribunal which is acting within its jurisdiction, although improperly in the exercise of that jurisdiction.”

The Supreme Court of this state has announced this rule in a number of cases.

In the case of Busey v. Crump, District Judge, 108 Okla. 73, 233 Pac. 714, the Supreme Court held:

“In an original proceeding in this court for a writ of prohibition, though the petition may allege errors of law, or other reversible errors committed by the trial court in the proceeding below, this court is without jurisdiction to reverse or modify the judgment of the trial court, unless the case be brought here on appeal.”

And see MacThwaite Oil & Gas Company v. Bolen, 77 Okla. 155, 187 Pac. 221; Harrah v. Oldfield, 68 Okla. 30, 171 Pac. 333.

In State v. Stanfield, 11 Okla. Cr. 147, 143 Pac. 519, we said:

“The writ of prohibition is that process by which an appellate court prevents an inferior court from usurping or exercising unauthorized jurisdiction.”

In the case of Corley v. Adair County Court, 10 Okla. Cr. 104, 134 Pac. 835, it is said:

“Appellate courts should not interfere by writ of prohibition with the trial of causes where a trial court has jurisdiction of the subject-matter, and the person of the defendant; but such trial court should be permitted to proceed to judgment, and any irregularities should only be reviewed upon appeal.”

In the case at bar it is contended by counsel for petitioner that:

“The district court had no jurisdiction in the criminal action in which the alleged contempt was committed, for the reason that the purported requisition was void on its face and not the subject of forgery, and further, the information wholly fails to state facts sufficient to charge forgery in the second degree, or any other crime under the laws of Oklahoma.”

The question thus presented is: Does the information charge an offense? From the view which we take of the law, it is not necessary to discuss this question in reaching a decision in this case. However, the question has been elaborately briefed, and we are asked by both parties to pass upon the question.

It is insisted on the part of petitioner that the facts charged in the information do not constitute any offense under the statute, for the. following reasons : That said purported requisition is not the subject of forgery under the laws of 'Oklahoma; that the same was not filed as provided by law and regulations, and was not properly signed by any officer as required by law to sign such instrument, nor was the same ever properly approved by any board or officer required by law to approve such instrument; and that the name of the secretary of the county welfare board as shown thereon is wholly unauthorized by law, and that said requisition does not bear the seal of the county clerk of Oklahoma county as is by law required.

The information wherein M. H. Curnutt is charged with the crime of uttering a forged instrument is based on Penal Code, § 2125, 21 Okla. St. Ann. § 1577, which provides that:

“Every person who sells, exchanges or delivers for any consideration any forged or counterfeited promissory note, check, bill, draft, or other evidence of debt, or engagement for the payment of money absolutely, or upon any contingency, Tmoioing the mme to he forged or counterfeited, * * * is guilty of forgery in the second degree.”

It goes without saying that the writ of prohibition cannot be substituted for an appeal for the correction of errors, irregularities, or deficiencies.

The general rule is that the writ may not be used to test the sufficiency of an information; but this is subject to qualification, recognized in almost every jurisdiction, that where the accusation is not merely defective or technically insufficient, nor merely demurrable or subject to a motion to quash or set aside, but is elementary and fundamentally defective in substance, so that it charges a crime in no manner or form, the accused is entitled to have a writ of prohibition issue, or where it appears that the information charges an offense not within the jurisdiction of the trial court.

The entire requisition is copied into the information charging the uttering of the same as a false and forged instrument, with intent to defraud. It is an instrument of writing of no doubtful significance. It falls within the designation of “or other evidence of debt, or engagement for the payment of money absolutely, or upon any contingency.” The instrument shows that it is of a character capable of effecting a fraud. Taken in connection with the receipt and the affidavit of the defendant Curnutt, shown thereon, there are sufficient extrinsic allegations to show that the instrument was susceptible of being used to defraud the county Avelfare board of Oklahoma county.

Counsel for petitioner cite the case of Territory v. Delana, 3 Okla. 573, 41 Pac. 618, and contend that the rule in the Delana Case was reaffirmed in the case of Johnson v. State, 57 Okla. Cr. 220, 46 Pac. 2d 964, 965.

In the Johnson Case this court, referring, to the Del-ana Case said:

“It is assumed by counsel for petitioner, in argument, upon the principle announced in Territory v. Delana, 3 Okla. 573, 41 Pac. 618, [supra], * * * that this conviction is invalid because the instrument which petitioner is charged with uttering was not legally susceptible of forgery.
“In the Delana Case, the Supreme Court of the Territory held,
“ ‘An indictment setting forth the forgery of a juror’s certificate issued by the clerk of a district court does not state a public offense, and a demurrer thereto should be sustained,’ and that, ‘It is a general rule that if an instrument is void or invalid upon its face, and cannot be made good by averment, the crime of forgery cannot be predicated upon it.’ * * *
“An uttering of a forged instrument, under the statute (Penal Code, section 2125, St. 1931 [21 Okla. St. Ann. § 1577] is the knowingly passing as true, or attempting to pass as true, such forged instrument with the intent to cheat and defraud.
“The foregoing section sets forth the offense sought to be charged by the information in this case; and by this section, the gravamen of the offense is the sale, exchange, or delivery of the instrument for a consideration, knowing it to be forged or counterfeited.
“Generally speaking, if an instrument is invalid and is void on its face, it cannot be the subject of forgery, for it can then have no legal tendency to effect a fraud. If its invalidity, however, is to be made out by extrinsic facts, it may be legally capable of effecting a fraud.”

In the Johnson Case, the court differentiated the check involved from the juror’s certificate of attendance, which was the subject of the Delana Case. In other words, extrinsic evidence was not necessary to show the invalidity of the juror’s certificate of attendance, but extrinsic evidence would be necessary to show the invalidity of the check involved in the Johnson Case.

The numerous authorities cited by counsel for petitioner show that to forge an instrument which upon its face is of no' validity or binding force does not constitute the crime of forgery. No authorities would seem necessary for so plain a proposition.

There is no question but that an instrument, which is invalid and void upon its face, cannot be made the subject of forgery, but a false instrument, which is good on its face, may be legally capable of effecting a fraud, though inquiry into extrinsic facts should show it to be invalid, even if it were genuine; therefore, forgery of such instrument is a crime.

“Forgery” is defined by Blackstone to be:

“The fraudulent making or altering of a writing to the prejudice of another’s rights.” 4 Bl. Comm. 247.

Mr. Bishop says:

“ ‘Forgery’ is the false making or materially altering, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy or the foundation of a legal liability.” 2 Bish. Crim. Law, 8th Ed., § 523.

From the definitions of “forgery” as above stated, as well as from the statute, it will be seen that the essential elements of the crime are, the false making of an instrument in writing, apparently capable of effecting a fraud, together with a fraudulent intent.

In an information for forgery or for uttering a forged instrument, or for passing the same, it is sufficient to charge that it is a forged writing, Avas uttered or passed with knowledge of the forgery, with an intent to defraud. Wilborn v. State, 26 Okla. Cr. 437, 224 Pac. 214.

In the case of Diamond v. State, 57 Okla. Cr. 214, 46 Pac. 2d 966, defendant Diamond was charged with forging the name of Morton R. Harrison, to a claim for $242 against the Soldiers’ Relief Commission. It was the contention of the defendant in this court on appeal that this relief claim could not be the subject of forgery. This contention was overruled. This court held that the instrument was the subject of forgery within the terms of the statute.

In the case of People v. Ciralsky, 360 Ill. 554, 196 N. E. 733, the .Supreme Court of Illinois held:

“Indictment charging forgery of grocery order ostensibly issued to needy persons by public welfare bureau held good as against motion to quash; there being sufficient allegations to show that instrument was susceptible of being used to defraud state.”

And again:

“Forgery indictment need not allege that instrument forged, if genuine, would create legal liability.”

In the case of Lurye v. State, 221 Wis. 68, 265 N. W. 221, the Supreme Court of Wisconsin held:

“Certificate of indebtedness issued by city, although unenforceable on account of defects in proceedings leading up to its issuance, could be subject of forgery, where carrying no evidence of invalidity on its face.”

In the opinion it is said:

“The question for determination here is: Does the instrument in question upon its face appear to be good? The defendants point out many defects in the proceedings leading up to the issuance of this certificate. N> tax was levied; the certificate was not signed by the comptroller; tbe city bad exceeded its debt limit. It did not contain on its face a statement of tbe purpose for which it was issued.
“Section 62.12 (6) provides:
“ ‘Funds; appropriations; debts, (a) City funds shall be drawn out only by authority of the council and upon order of the mayor and clerk, countersigned by the comptroller, if there be one. Each order shall specify the purpose for which it is drawn, and be negotiable. * * *
“‘(c) No debt shall be contracted against the city nor evidence thereof given unless authorized by a majority vote of all the members of the council.’ * * *
“The certificate of indebtedness had the appearance of validity, and could therefore be the subject of forgery.”

And see People v. McDonald, 53 Colo. 265, 125 Pac. 114; Norton v. State, 129 Wis. 659, 109 N.W. 531, 116 Am. St. Rep. 979.

It is also contended that the said claim or requisition is void, for the reason that the same was not executed in the manner provided by law, in that the purported signature of Fred D. Lowe; placed thereon by rubber stamp •without his knowledge or consent, is a nullity.

On the face of said requisition appears the following:

“By order of County Public Welfare Board,
“[Signed] Fred D. Lowe, Chairman of County Public Welfare Board.
“Attest: Coma Biewer, Secretary of County Public Welfare Board,
“Approved for Payment: Fred D. Lowe, Chairman of Board of County Commissioners Member of County Public Welfare Board.
“This requisition is not acceptable unless the above schedule of condition is filled in. Must be signed by two members.”

It appears that more than two thousand requisitions, signed in the same way as requisition No-. 2038, had been issued and paid Avhen the one purporting to have been given to Willie McCullough was issued. All bore rubber stamp signatures of Fred D. Lowe.

Our statute defines a “signature” as follows:

“The term ‘signature’ includes any name, mark or sign, written with the intent to authenticate any instrument or writing.” Section 1791, St. 1931, 21 Okla. St. Ann. § 100.

In 58 C. J. 729, it is said:

“A signature may be written by hand, or printed, or stamped, or typewritten, or engraved, or photographed, or cut from one instrument and attached to another. A signature lithographed on an instrument by a party is sufficient for the purpose of signing it, and it has been held that it is immaterial with what kind of an instrument a signature is made.”

Again, on page 730, C. J., it is said:

“Facsmile signature of a party may be a genuine signature.”

In the case of Costila Estates Dev. Co. v. Mascarenas, 33 N. M. 356, 267 Pac. 74, the Supreme Court of New Mexico- announced the following rule:

“Court clerk’s signature by rubber stamp to indorsement of filing paper in cause not prohibited by general principles nor by Code 1915, § 1401.”

And again in the same case, after quoting the New Mexico statute, it is said:

“This statute does not require the clerk to write his name; only that he sign it. Generally a signature, if adopted as such, may be printed, lithographed, or typewritten, as well as written. 33 Cyc. 443. The decisions there collected show that signatures not autographs are held sufficient to satisfy a variety of statutory and other requirements.”

See, also, Tenement House Department v. Weil, 76 Misc. 273, 134 N.Y.S. 1062.

The state’s contention is that the requisitions were not invalid because Fred D. Lowe’s signature was a facsimile.

There can be no question but that officials of and persons in the county welfare board, the county clerk’s office, and the county treasurer’s office furnishing aid to relief claimants, depended upon the signatures of Fred D. Lowe as affixed to these requisitions, as having been duly authorized and adopted by Fred D. Lowe.

The authorities support the state’s contention, and we are of opinion that the facsimile signatures thereon were sufficient to authenticate'the requisitions so approved including the instrument in question.

It is also contended that one signature, that is, the secretary of the county welfare board, is not in compliance with the requirement that two members must sign.

In Luyre v. State, supra, the Supreme Court of Wisconsin quoted this language, which was superimposed upon a forged certificate:

“This certificatee of indebtedness shall not be discounted. This certificate of indebtedness if discounted will cease to be an obligation of the city of Superior.”

The Supreme Court of Wisconsin, nevertheless, held this certificate subject to forgery, even though it had been discounted. In other words, the requirement superimposed on the face of the requisition, in the absence of express statute, could not be a condition of the contract or requisition.

The schedule of condition is filled in; the balance in the relief fund is carried forward according to the requirement of the requisition.

The claim was properly verified before Helen Nix, county clerk, and attested by the seal of the office, as shown by the copy of the requisition set forth in the information.

It follows from what has been said that the information alleges all the essential elements of the crime of uttering a forged instrument, with intent to defraud, and gives to defendant full information of the nature and cause of the accusation against him, to' which he is entitled under section 20, article 2 of the Constitution of the state. And, aside from any authority, we should hold the information good, since it plainly and with sufficient fullness follows the language of the statute upon which it is drawn.

Now coming to the contempt case. Counsel contend that:

“The district court had no jurisdiction to try this petitioner for the reason that if any contempt was committed it-was indirect criminal contempt, and under the laws of this state the petitioner was entitled to a trial by jury, and all the rights and privileges guaranteed by the Constitution to any one charged with a criminal offense.”

The petitioner demanded a trial by jury, which was denied by the court.

The argument is made that evidently the judge trying the petitioner herein “thought that it was an indirect contempt for the reason that he, himself, dictated the complaint, which would not have been necessary had it been a direct contempt of court.”

Quoting section 25 of article 2 of the .State Constitution :

“The Legislature shall pass laws defining contempts and regulating the proceedings and punishment in matters of contempt: Provided, that any person accused of violating or disobeying, when not in the presence or hearing of the court, or judge sitting as such, any order of injunction, or restraint, made or entered by any court or judge of the State shall, before penalty or punishment is imposed, be entitled to- a trial by jury as to the guilt or innocence of the accused. In no case shall a penalty or punishment be imposed for contempt, until an opportunity to be heard is given.”

Also quoting the statute, section 1958, 21 Okla. St. Ann. § 567, declaring that:

“In all cases of indirect contempt the party charged with contempt shall be notified in writing of the accusation and have a reasonable time for defense; and the party so charged shall, upon demand, have a trial by jury.”

Citing Ex parte Owens, 37 Okla. Cr. 118, 258 Pac. 758, 760, wherein this court states:

“A criminal contempt is a crime. If the contemnor is found guilty, the punishment imposed is a ‘sentence’ in a criminal case. Such adjudication is a ‘conviction,’ and commitment in consequence thereof is an execution of sentence for a criminal offense.”

Also Wofford v. State, 33 Okla.Cr. 288, 243 Pac. 988, 989, wherein the court used the following language:

“Since the facts contained in the charge did not occur in the immediate view and presence of the court, the proceeding attempted to charge defendant was an indirect contempt.”
“A proceeding to punish for indirect contempt must be instituted by affidavit, complaint or information, setting forth the facts or by a statement of them in writing by the court or judge thereof. The accused must then be notified in writing of the accusation, and have a reasonable time for defense and upon demand shall have a trial by jury.”

The evidence shows or tends to- show that the jury were in the jury box in the district courtroom, respondent, Judge Arnold, presiding; the jury asked for an additional instruction relative to leaving punishment to the court in the event defendant was found guilty. While Judge Arnold ivas instructing the jury on this point, eleven jurors were leaning forward in an attitude of close attention to what the court was saying. On juror, Mr. Katz, was sitting bolt upright in his chair, With his attention attracted to something disassociated from the court or his immediate surroundings. This juror was moving his head up and down in an affirmative motion and then from side to side in a motion indicating negative. His attitude was such that the court’s attention was attracted thereto, but he could not see the object of Katz’s attention. 'After the jury was excused, Mrs. Davis, a spectator in the courtroom, who was in a position to view the entire surroundings, curiously inquired about the extraordinary motions she had observed on the part of this juror, and a person later identified as William L. Moss. When her version of the unusual action of these two men was told to the court, it appeared to his honor that the nodding and wagging of his head by Juror Katz was in response to a communication conveyed by William L. Moss.

Petitioner Moss at the time was seated behind the court in the courtroom and across the court from the jury box. His honor informed Moss that for this improper conduct on his part he was in contempt and directed him to appear the following morning. Upon the appearance of Moss and his counsel in court a hearing was set for Monday, October 25th, at which time the hearing commenced.

It goes without saying that petitioner is in no position to dispute the fact that the court was in session. However, it is contended that the actions of these two parties did not happen in the immediate view and presence of the court.

The statute, Penal Code, § 1913, 21 Okla. St. Ann. § 388, declares:

“Every person who attempts to influence a juror, or any person summoned or drawn as a juror, or chosen as arbitrator or appointed a referee, in respect to his verdict, or decision of any cause or matter pending, or about to be brought before him, either:
“1st, By means of any communication oral or written had with him, except in the regular course of proceedings upon the trial of the cause; * * * is guilty of a misdemeanor.”

The statute defines the common-law offense of “em-bracery.” The books say: “Embracery is an attempt to influence a juror corruptly to one side by promises, persuasions, entreaties, money, entertainments, and the like.” 4 Bl. Com. 140. The crime is made up of the attempt thus to influence a juror. Upon such attempt being, made, whether successful or not, the crime is consummate.

Bishop says:

“Embracery being an attempt, as well as a consummated injury, there appears to be no room for such an offense as an attempt to commit it; because, if there is an attempt which is indictable, it is itself embracery.” 2 Bishop, New Cr.L., 8th Ed., § 389.

In the case of State v. Doty, 32 N.J.L. 403, 90 Am. Dec. 671, the defendant was punished for contempt. The statement of the case is as follows:

“The defendant was acquitted before the oyer and terminer of the county of Monmouth, on an indictment for embracery. A rule was then entered that he show cause why he should not be attached for contempt of court, in holding intercourse with a juryman in charge of a case. The defendant being interrogated, stated, under oath, that while a certain trial was progressing he fell in company with one of the jurors, who had then been sworn, and said to him: Tf I could find out how the jury would stand after they go out, I might win some money on it.’ The juror said, 'How?’ To which defendant replied, 'I could bet on it.’ The juror replied, 'How would that benefit me?’ To which defendant replied, 'You can be benefited one-half I can win on it.’ The juror then said, 'How could I let you know?’ Defendant said, 'If it is probable they will not agree, come to the window with a piece of paper in your mouth, and if they will agree you need not hold anything in your mouth.’ It further appeared that nothing was said about the merits of the case, nor did the defendant state how he wished the jury to decide. The defendant was neither a witness nor a party in the cause, and it was admitted that the foregoing conversation was the transaction on which the indictment for embracery was found.”

The opinion of the Supreme Court was by Beasley, Chief Justice. We quote from the opinion:

''Nor do I think there is any force in the other objection which was urged, that the infliction of a summary punishment in the present case, would be an infringement of that clause of the constitution of this state, which guarantees to the citizen a trial by jury. * * *
“The only remaining cause for setting aside this proceeding, suggested by counsel, was that, in point of fact, the transaction did not disclose any contumacy to the authority of the court, on the part of the defendant. And on this head it was urged that the acquittal of the defendant on the indictment, which was based on this same affair, must have the effect to purge him from every suspicion of impropriety in his conduct in this particular. But it is obvious that the behavior of the defendant may have been highly illegal and reprehensible, and yet may not have gone to the extreme height of technical embracery. And this is the construction I put upon his conduct. The law strictly forbids all intercourse, of every description, upon the subject of the cause on trial, between jurors and all other persons. To effect this end, the court commits them in charge of one of its sworn officers. The consequence must be, therefore, that any attempt to invade this seclusion is illegal, and a palpable violation of judicial authority. It may be some extenuation, but certainly cannot be a vindication of such conduct to say that no effort was made, by the illegitimate communication, to turn the juror from the line of his duty. The legal inhibition is against all intercourse with the jury during their consultation, and it is manifest any sequestration short of this would be entirely illusory, for it is certain if the door were thrown open, that no mode could be devised so that only proper intelligence would be permitted to pass. When, therefore, in this case, the defendant solicited the juror to signal to him the views of the jury, it was an endeavor to induce the juror to do that which was incon- ' sistent with his duty, and with the order of the court directing his isolation. It would be unfortunate, indeed, if such an act were not punishable as a contempt of the authority of the court. I know nothing which calls for keener vigilance on the part of judges, than everything which has a tendency to expose jurors to the arts of the friends or followers of litigants. It is every day’s experience that the course of justice is constantly thrust aside by this obstacle. The evil would certainly be greatly aggravated, if the courts were powerless to prevent all communication of every kind whatsoever, between the jury and the rest of the community whilst the verdict is being formed. But the jury cannot be isolated unless the court is prompt to punish those who infringe, in the slightest degree, the order directing such isolation.”

The same question is likewise discussed in the case of People v. Barrett, 56 Hun, 351, 9 N.Y.S. 321. The facts are detailed in the first paragraph of the syllabus as follows:

“A newspaper reporter concealed himself in the petit jury-room, before retirement of the jury in a criminal cause, and afterwards, while they were deliberating, took short-hand notes of what he heard. On being discovered, he was made to deliver his notes to the judge, but refused to promise secrecy when admonished by the judge. He was then discharged, and afterwards published his recollections of the jury’s deliberation. The court had remained in session during; the time the jury were out, the judge being part of the time on the bench, and during the rest of the time in the judge’s chambers, in the same building. Held, that the reporter was guilty of criminal contempt committed in the immediate presence and view of the court.”

Van Brunt, P. J., delivering the opinion of the court, said :

“It is true that section 10 of the Code of Civil Procedure states that a contempt committed in the presence of the court may be punished summarily, but it does not say that it must be so punished, or that, although the offense has been so committed in the presence of the court, but the judge has failed to see the same, he must proceed without proofs or process. The fallacy upon which the whole of this point rests seems to’be that an offense cannot be committed in the presence of the court if the judge does not see it, and cannot assert the facts in his warrant of commitment, of his own knowledge, that the offense had been committed. Suppose, for example, that during the progress of a trial, while the judge is on the bench and the jury in its seat,' a communication is made to one of the jurymen which the judge does not see, but of which he is informed. Can he commit the offender without some proof of the commission of the offense? And yet even the most critical would say that this offense was committed in his immediate presence, and still he would be entirely unable to certify, of his own knowledge, that the offense had been committed. It would be necessary that he should have proof, and he is entitled to time to have the proof presented before him in a legal and formal manner.

To the same effect is the case of Ex parte Savin, 131 U.S. 267, 9 S.Ct. 699, 33 L.Ed. 150.

The statute, Penal Code, § 1956, 21 Okla. St. Ann. § 565, is in part as follows :

“Direct contempt shall consist of disorderly or insolent behavior committed during the session of the court and in its immediate view, and presence.”

The last expression of this court construing the same is found in Deskins v. State, 62 Okla. Cr. 314, 71 Pac. 2d 502-506:

“In a proceeding for contempt of court, if the con-temner is found guilty, the punishment imposed is a sentence in a criminal case. Such adjudication is a conviction, and the commitment in consequence thereof is in execution of sentence for a criminal offense. Burnett v. State, 8 Okla. Cr. 639, 129 Pac. 1110, 47 L.R.A. (N.S.) 1175.
“The third and last clause of section 25 of the Bill of Bights (Const, art 2) provides:
“ ‘In no case shall a penalty or punishment be imposed for contempt, until an opportunity to be heard is given’; thus prescribing that which the plainest dictates of natural justice must prescribe to every tribunal, the law that ‘no man shall be condemned unheard.’ Ex parte Owens, 37 Okla. Cr. 118, 258 Pac. 758, 810.
“The statute (Penal Code, § 1956, 21 Okla. St. Ann. § 565) provides : ‘Contempts of court shall be divided into direct and indirect contempts. Direct contempts shall consist of disorderly or insolent behavior committed during the session of the court and in its immediate view, and presence, and of the unlawful and willful refusal of any person to be sworn as a witness, and the refusal to answer any legal or proper question; and any breach of the peace, noise or disturbance, so near to it as to interrupt its proceedings, shall be deemed direct contempt of court, and may be summarily punished as hereinafter provided for.’
“The constitutional provision and the statute merely affirm a pre-existing power. Without the power, courts could not fulfill their responsible duties for the good of the public.
“No one doubts either the right or duty of a court to punish as contempts disorderly and contumelious behavior, breaches of the peace, or any willful disturbance in its presence. The right rests on the necessity that was found to exist to enable courts to administer the law without interruption by improper interference, and to maintain their own dignity. So indispensable is this power that its just exercise, so far as it may be necessary for the due protection of the1 courts, has never been questioned.
“In cases of direct contempt under the constitutional and statutory provisions, the contemner being, present in court, neither formal charge against him in writing nor process is required. It is only required that punishment shall not be imposed until the contemner shall have an opportunity to be heard. Since the court acts upon view and hearing, no witness need be sworn nor formal evidence taken. The court in its discretion renders judgment imposing such punishment as it may deem proper within the limits prescribed by the statute. No record is made other than the judgment, in this, as the statute provides, ‘The substance of the offense shall be set forth in tbe order for Ms confinement, and made a matter of record in the court.’ Section 1959, St. 1931 (21 Okla. St. Ann. § 568). This provision can only mean that the order of confinement must contain a recital of those facts which make it a direct contempt, and is mandatory in its terms. Ex parte Dawes, 31 Okla. Cr. 397, 239 Pac. 689; Lynn v. State, 38 Okla. Cr. 313, 260 Pac. 1069.”

In the case of Lynn v. State, supra, the defendant was convicted of direct contempt. Judgment affirmed. It appears that defendant came into open court with a loaded pistol on his person and accidentally dropped the same. We quote from the trial court’s findings:

“The thought struck me first that it was a pistol, but I thought no one in the world would come in the court room with a gun. No; I concluded it was a knife. I couldn’t believe he would be so bold, so foolish, as to come in the court with a pistol. So I dismissed it from my mind. It was stated to me afterwards that it was a pistol that he dropped on the floor. The court is still of the opinion he was in contempt of court, and I so hold. You may make your record as you see fit. * * *”

' In 6 E-uling Case Law, 492,. it is said:

“Since the law relating to direct contempts is generally distinguishable from that relating to indirect con-tempts, many of the cases define what is meant by ‘the presence of the court.’ It is said that the court consists not of the judge, the court room, the jury, or the jury room, but of all of these combined; and wherever any constituent part of the court is engaged in the prosecution of the business of the court according to law, there the court is present. Any disorderly, contemptuous, or insolent behavior committed in the presence of any one of the constituent parts of the court while engaged in the business devolved upon it by law must be a contempt committed in the immediate view and presence of the court.”

Contempt may be shown by either language or manner. Whether a direct contempt has been committed does not depend on the intention of the offending party, but on the act done. Disobedience to the judicial authority of the court is a contempt, unless the party can show sufficient cause to excuse it.

The manner of procedure by rule to show cause or by citation does not affect the question whether or not the act charged was “in the presence of the court.”

In the light of these authorities, it is clear that a contempt, committed in the courtroom while the court is in session and the judge is on the bench, is committed “in the presence of the court.” And we think this is so self-evident that it would serve no useful purpose to review the eases cited holding that only such contempts as are committed within the ocular view, or range of vision, of the court, are committed in “the presence of the court.”

Without expressing any opinion as to whether or not the conduct of petitioner was in contempt of court, we hold that the acts charged were committed in the presence of the court.

Finally it is contended that by reason of the prejudice and pre-judgment of respondent as trial judge, petitioner is deprived of due process of law, because denied the right to a trial before an impartial judge.

The record shows the refusal of respondent to disqualify himself on motion of petitioner’s counsel.

It is well settled under our decisions that under the statute, section 2915, St. 1931, 22 Okla. St. Ann. § 575, it is necessary that an application for change of judge on the ground of prejudice set forth facts upon which the claim is made. Mere conclusions will not be sufficient. Pruitt v. State, 62 Okla. Cr. 38, 70 Pac. 2d 129.

The constitutional provision which guarantees to every person charged with crime a trial without prejudice, in so far as it relates to the presiding judge, does not include the opinion of the judge as to the guilt or innocence of the defendant; the “prejudice” contemplated means the presence of such state of mind or feeling as might prevent him from giving the defendant a fair trial. Fisk v. Venable, 61 Okla. Cr. 360, 68 Pac. 2d 425.

Our conclusion is that the district court and. respondent as judge, had jurisdiction of the subject-matter and of the person of petitioner, and that irregularities, if any, occurring in the conduct of the case did not affect the validity of the proceedings had in the hearing of the case.

In the event of a judgment of conviction, if petitioner feels himself aggrieved by the court’s overruling his numerous objections tO' the sufficiency of the accusation and the sufficiency of the evidence to support the same, his remedy is hy appeal, and is ample for his protection.

For the reasons stated in the opinion, the application for a writ of prohibition is denied. It is so ordered.

DAVENPORT, P. J., concurs.

BAREFOOT, J.

(dissenting in part). I cannot concur in that part of the above opinion which seeks to go into and decide the validity of the information filed in this case. The only question, to my mind, here involved is whether or not a direct or indirect contempt was committed, and Avhether a writ of prohibition should be granted or denied to determine this question. From an examination of the briefs and the transcript of the evidence only in the contempt proceedings, I am of the opinion that if it should be found, as a matter of fact, that the petitioner committed the acts complained of, it would be a direct contempt and in the presence of the court. The mere fact that petitioner was sitting behind the court, and the court did not see his every movement, would to my mind not be a valid reason why the act was not in the presence of the court. With this part of the opinion I am in accord. The facts revealed by the briefs and the transcript that there are now pending in the district court of Oklahoma county numerous cases against numerous defendants growing out of the violation of the statute, and the informa-tions filed in those cases, are similar to' the information filed in the case at bar. I do not think the validity of the informations in those cases should be determined in this hearing, simply because the court might be requested to do so in the brief of counsel for petitioner. In the brief of respondent authorities from the courts of this state and other states are cited in support of the proposition that the validity of the information is and should not be involved in deciding the question presented in this hearing. Harrah v. Oldfield, 68 Okla. 30, 171 Pac. 333; MacThwaite Oil & Gas Co. v. Bolen, 77 Okla. 155, 187 Pac. 221; Busey v. Crump, 108 Okla. 73, 233 P. 714; Corley v. Adair County Court, 10 Okla. Cr. 104, 134 P. 835; Whitney v. Superior Court of Alameda County, 182 Cal. 114, 187 P. 12. They then brief the question replying to the brief filed by petitioner, but the court is not urged to pass upon this question, and by their briefs they contend that it is not involved, and is not necessary to be passed upon in this hearing. If necessary, these cases can come before this court on direct appeal, and opportunity then could be had to determine the validity of the information filed, and the merits of the appeal could be passed upon when all the issues are before the court. The authorities above quoted set out the purpose and object of the writ of prohibition, and clearly it is not proper to go into questions which may be presented to the court by direct appeal. In this proceeding we have a party who has not been informed against, seeking a writ of prohibition, and asking the court to decide as to the validity of an information filed against other parties, and who are not parties to this proceeding. It does not occur to me that it is a sufficient answer that the decision will tend to avoid a multiplicity of suits. In the case of Evans v. Willis, 22 Okla. 310, 97 P. 1047, 1051, 19 L.R.A.,N.S., 1050, 18 Ann. Cas. 258, Judge Williams, while a member of the Supreme Court of this state, said:

“Such extraordinary writ will not be awarded when the ordinary and usual remedies provided by law, such as appeal, writ of error, certiorari, or other modes of review or injunction, are available. Ex parte Smith, 23 Ala. 94; Ex parte Smith, 34 Ala. 455; Ex parte Scott, 47 Ala. 609; Ex parte Reid, 50 Ala. 439; Ex parte Mobile, etc., R. Co., 63 Ala. 349; Weaver v. Leatherman, 66 Ark. 211, 49 S.W. 977.”

And further says:

“The writ will not he issued on account of the inconvenience, expense, or delay of other remedies, hut will he granted where the remedy available is insufficient to prevent immediate injury or hardship to the party complaining, particularly in criminal cases.”

The propositions relied upon by the petitioner in this case are:

“1. The district court had no jurisdiction in the original action in which the alleged contempt wasi commit-ed for the reason that the purported requisition was void on its face and not the subject of forgery and further the information wholly fails to state facts sufficient to charge forgery in the second degree, or any other crime under the laws of Oklahoma.” and, “4. Prohibition is the proper remedy where an inferior court assumes to exercise judicial power not granted by law, or is attempting to make an excessive and unauthorized application of judicial force in a cause otherwise properly cognizable by it.”

This question could be decided by the trial court by a demurrer to the information, the case tried on its merits, and if defendant was convicted an appeal may be had under the law, and all the questions involved decided on appeal. If it be held that this court should issue a writ of prohibition involving questions such as are raised here, the trial of cases in their regular order will be stopped, and applications made to this court for a writ of prohibition testing the validity of indictments and informa-tions, on the ground that they do not state facts sufficient to charge a crime, and therefore the proceedings are void, and that the court is without jurisdiction to try the case. This will cause not only delay in the trial of criminal cases, but additional costs and inconveniences to the county and state. Witnesses will not be available when the case is finally reached. For this reason I am unable to agree that this extraordinary relief should be granted in cases of this character, even though the court might have a right to grant the relief. I am of the opinion that this mode of procedure will be a detriment rather than a benefit in the enforcement of the criminal laws of this state.

In the case of Ex parte Mobile, etc., R. Co., 63 Ala. 349, the court, speaking with reference to the writ of prohibition, quoted from Bacon as follows:

“A writ of prohibition will not lie, when a court has jurisdiction, and errs in its exercise. The writ lies, not for the correction of errors, but for the prevention of usurpation. ‘The object of prohibitions, in general, is,’ it is said in Bacon’s Abridgment, ‘the preservation of the right of the King’s crown and courts, and the ease and quiet of the subject. For it is the wisdom and policy of the law to suppose both best preserved when everything runs in its right channel, according to the original jurisdiction of every court; for, by the same reason that one court might be allowed to enroach, another might; which could produce nothing but confusion and disorder in the administration of justice.’—8 Bacon’s Abr. 209.”

Judge Furman, in an early opinion of this court, in the case of Corley et al. v. Adair County, 10 Okla. Cr. 104, 134 Pac. 835, 837, had up for consideration a question wherein the district court of Adair county, being in regular session, entered an order reciting that the county attorney of Adair county was disqualified from appearing in his official capacity before the grand jury of his county in certain matters, which were to be investigated by the grand jury, and appointed another attorney as special attorney to go before and advise the grand jury Avith reference to such matters. The regularly elected county attorney of Adair county protested this order. The grand jury returned an indictment against petitioners charging them with conspiracy, and a motion was made to set aside the indictment on the ground that it was returned by a grand jury attended by an unauthorized party. The motion was overruled by the court, and a petition for writ of prohibition was filed in this court praying the court to prohibit the county court of Adair county from rendering judgment against said petitioners on said verdict, it being claimed that the proceedings and the indictment returned by the grand jury were void. In this case, Judge Furman said:

“The fact that an unauthorized person was present when the grand jury was deliberating upon this case would simply constitute a defect or irregularity which might be taken advantage of by the defendant or might be waived; therefore it would not make the indictment void. Where a county attorney is disqualified, the trial court has the right and it is its duty to appoint a special attorney to represent the state either before the grand jury or in open court. As to whether or not this power was properly exercised in the present case is a question which cannot be considered upon a petition for a writ of prohibition. Where the court has jurisdiction of the subject-matter and of the person of the defendant, the writ of prohibition will not lie on account of any irregularities in the action of the trial court. Appellate courts should not interfere with trial courts in such instances, but the courts should be permitted to' proceed to judgment, and the matters complained of should be reviewed only upon appeal, when the entire transcript of the record can be brought up for consideration. It would paralyze and defeat the enforcement of criminal law if writs of prohibition were issued on account of irregularities where the trial court had jurisdiction of the subject-matter and of the person of the defendant. In other words, a writ of prohibition cannot be used for the purpose of appealing cases upon the installment plan. For these reasons we will not consider the question as to whether or not the action of the trial court in appointing Hon. R. Y. Nance as special county attorney was regular or irregular, hut remit petitioner to their right to bring this case on appeal upon the entire record when all questions involved can be settled in one decision.
“The writ of prohibition, being an extraordinary remedy, can only be invoked in extreme cases; and, to prevent irreparable injury, the writ of prohibition is therefore denied.” Jeter v. District Court of Tulsa County, 87 Okla. 3, 206 Pac. 831; State ex rel. Paul Chin v. Superior Court for King County, 139 Wash. 449, 247 Pac. 738: In re Weaver, 162 Wis. 499, 156 N.W. 459; State v. Fischer, 175 Wis. 69, 184 N.W. 774; Hudspeth v. Tracey, 203 Ky. 277, 262 S.W. 260; 50 C.J. 689.

In tbe case at bar the court denies the writ of prohibition. This, to my mind, is proper and correct, but the court, after denying the writ, considers the same upon its merits and decides that the information filed in the case was valid. As stated in respondent’s brief, after quoting the case of Corley v. Adair County, supra, it was said:

“It would paralyze and defeat the enforcement of criminal law if write of prohibition were issued on account of irregularities where the trial court had jurisdiction of the subject-matter and of the person of the defendant.”

In the case at bar the trial court had jurisdiction of the subject-matter and of the person of the defendant. The writ of prohibition is sought by strangers to the proceedings. I cannot, therefore, agree with that part of the opinion which passes upon the validity of the information without the case being regularly appealed to this court.

For the reasons above stated I do not think that this question should have been considered by the court in this proceeding.


author: BAREFOOT, J.

text:
    EDGAR M. DEAN v. STATE.
    No. A-9292.
    Jan. 14, 1938.
    (75 P. 2d 900.)

      Ernest F. Jenkins, for plaintff in error.
    Mac Q. Williamson, Atty. Gen., and L. J. York, Co. Atty., for the State.
   BAREFOOT, J.

The defendant was charged by information in the county court of Payne county with the unlawful possession of intoxicating liquor, was tried, convicted, and sentenced to pay a fine of $50 and serve a term of 30 days in jail, and has appealed.

It is contended that the court erred in overruling the motion of defendant to suppress the evidence for the reason that the officers did not have a search warrant when defendant was arrested. The facts are that defendant was residing at the home of his father about seven miles southeast of Cushing, in Payne county. The sheriff had information that certain parties, whom he had reason to believe were guilty of hijacking, were at the home of •defendant’s father. He, in company with his undersheriff, a deputy, and the chief of police of Cushing, went to the home of defendant’s father to see if the parties wanted could be located. The sheriff went to the front door and the other officers went to each side of the house. The father of defendant recognized the sheriff and invited him into the house, saying that they were just sitting down for supper. Just as the sheriff entered he heard the back door slam, and asked who was leaving, and the father replied: “It must have been Edgar.” The officers who remained on the outside of the building saw defendant leave the house with a ten-gallon keg and he threw the same down in the road. He was immediately arrested1 and the sheriff opened the keg and found it contained five gallons of whisky. The officers did not go to the place Avith the intention of searching for liquor. They had no search Avarrant. They were in search of parties Avhom they had reason to believe had committed a felony. Methvin v. State, 60 Okla. Cr. 1, 60 P. 2d 1062; Davis v. State, 59 Okla. Cr. 26, 57 Pac. 2d 634. If the defendant had remained in the house, the officers having no search warrant would not have been permitted to search the premises and take the liquor. The defendant voluntarily left the premises taking the keg of liquor with him, and therefore committed a crime in the presence of the officers. This court has gone a long way in protecting the home from unreasonable search and seizure, but we do not think the facts in this case are such that protect this defendant. It was the home of his father, and upon being apprehended by the officers he said “he didn’t want his dad getting mixed up, it wasn’t his dad’s liquor.” After arresting the defendant, the officers searched the house but found nothing. The only ones present were the members of the family. The following cases present questions of similar import to1 the facts in this case: McAdams v. State, 30 Okla. Cr. 207, 235 Pac. 241; Rambo v. State, 38 Okla. Cr. 192, 259 Pac. 602; Davis v. State, 30 Okla. Cr. 61, 234 Pac. 787; Soderberg v. State, 31 Okla. Cr. 123, 237 Pac. 467; Sands v. State, 36 Okla. Cr. 55, 252 Pac. 72; Davis v. State, 60 Okla. Cr. 198, 63 P. 2d 112; State v. Ladue, 73 Mont. 535, 237 Pac. 495.

It was also contended that the court erred in instructing the jury:

“That the keeping in excess of one quart of spirituous, vinous, fermented or malt liquors shall be deemed prima facie evidence of an intent to convey, sell, or otherwise dispose of said liquor.”

Counsel for defendant relies upon section 2625, Okla. Stats. 1931, Okla. St. Ann. tit. 37, p. 540, § 32, and the case of Crowdis v. State, decided by this court on May 22, 1936, and reported in 59 Okla. Cr. 297, 58 P. 2d 154, construing the same. When the Crowdis Case was called before this court attention was not called to section 3, chapter 153, Session Laws 1933, 37 Okla. St. Ann. p. 567, § 82, which provides:

“The keeping, in excess of one quart of any spirituous, vinous, fermented or malt liquors, * * * whether medicated or not, which contain more than three and two-tenths (3.2%) per cent of alcohol, measured by weight and which is capable of being used as a beverage, * * * or in any manner permitting any other person to have or keep any such liquors in or about his place of business or his residence, or any place of amusement, or recreation, or any public resort, or any club room; * * * shall be prima facie evidence of an intention, to convey, sell or otherwise dispose of such liquors.”

Since this decision was rendered, and on June 18, 1937, this court, in the case of Smith v. State, 62 Okla. Cr. 33, 69 P. 2d 671, 672, calls attention to this statute and holds:

“The term ‘prima facie evidence’ as used in the statute is that degree of proof, which unexplained or un-contradicted is alone sufficient to establish the unlawful intent if it be credited by the jury.”

In the case at bar the defendant had possession of a keg containing fite gallons of whisky.

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

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