text:
    DAVID JONES v. STATE.
    No. A-10455.
    Aug. 1, 1945.
    (161 P. 2d 89.)
    Paul D. Sullivan, of Duncan, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, David Jones, was charged by information filed in the district court of Stephens county, together with R. D. Mooneyhan, Loyd Sheehan, and Elmer Petty, with the crime of burglary in the second degree; was tried separately, found guilty, sentenced to serve a term of two years imprisonment in the State Penitentiary, and has appealed.

The Attorney General has filed a motion to dismiss the appeal and affirm the judgment of the trial court on the ground that, although the petition in error with case-made attached has been filed herein for many months, no brief has been filed on behalf of the defendant and that his counsel failed to appear on March 21, 1945, at the time the case was set for oral argument, and, further, that the appeal is without merit and taken for delay only.

Section 9 of the Rules of the Criminal Court of Appeals provides:

“When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court, and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment.”

We have examined the record herein and find the evidence is sufficient to show the defendant guilty of the crime of burglary of a building belonging to the Ice Service Company, in the city of Duncan. The instructions fairly state the law of the case and there are no fundamental errors apparent in the record. No brief has been filed and no appearance on behalf of accused was made at the time the case was set for argument. The motion of the Attorney General is therefore sustained and the judgment of the district court of Stephens county is affirmed.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex parte SILAS HARDRICK
    No. A-10665.
    Sept. 5, 1945.

      (161 P. 2d 776.)
    B. A. Wilkerson, of Pryor, for petitioner.
    Randell S. Cobb, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Prank L. Haymes, Co. Atty., of Yinita, for the State.
   PER CURIAM.

Petitioner, Silas Hardrick, filed his application for bail in this court on July 20, 1945. The same was set for hearing on August 1, 1945. Counsel for defendant, and the county attorney of Craig county, and an assistant Attorney General were present at the hearing.

It is alleged in the petition that petitioner is confined in the county jail of Craig county where he has been charged with the crime . of murder. That at his preliminary hearing he was held to the district court without bail. That application had been made to the district judge of Craig county for bail, and that said application had been denied. Attached to the petition is a transcript of the evidence taken at the preliminary hearing and the hearing before the district court of Craig county. Petitioner testified in person at the hearing before the district court and- was cross-examined by the county attorney. -

As this case is to be tried in the district court we shall not discuss the evidence. Petitioner is a negro man, 75 years of age, and is charged with the killing of the chief of police of Vinita. At the hearing béfore this court it was announced that a trial of this case would be had in September. After due consideration of the facts, and the statement that the case was to be tried in September, we are of the opinion that the application for bail should at this time be denied. It is so ordered.


text:
    Ex parte BOBBY CAROTHERS.
    No. A-10666.
    Sept. 5, 1945.
    (161 P. 2d 775.)
    Brown Moore, of Stillwater, for petitioner.
    Randell S. Cobb, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and K. D. Greiner, Co. Atty., of Still-water, for the State.
   PER CURIAM.

Petitioner, Bobby Carothers, has filed his petition in this court alleging that he is confined in the county jail of Payne county, where he is charged with the crime of rape. That at his preliminary examination he was held without bail. That the district judge of said county is absent from the State of Oklahoma, and will not return for ten days or two weeks, and for this reason application cannot be made to him for bail at this time.

At the hearing on the above petition before this court, the defendant was represented by his counsel, and the state was represented by the assistant county attorney of Payne county. All parties agreed that petitioner was entitled to bail, and this court finds that petitioner should be granted bail in the sum of $5,000, and when the same is given and approved by the court clerk of Payne county, petitioner to be released pending his arraignment in the district court of Payne county.

It is so ordered.


text:
    Ex parte WILBER CURTIS.
    No. A-10669.
    Sept. 5, 1945.
    (161 P. 2d 775.)
    Brown Moore, of Stillwater, for petitioner.
    Randell S. Cobb, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and K. D. Greiner, Co. Atty., of Stillwater, for the State.
   PER CURIAM.

Petitioner, Wilber Curtis, has filed his petition in this court alleging that he is confined in the county jail of Payne county, where he is charged with the crime of attempt to commit rape. That at his preliminary examination he was held without bail. That the district judge of said county is absent from the State of Oklahoma, and will not return for ten days or two weeks, and for this reason application cannot be made to him for bail at this time.

At the bearing on the above petition before this court, the defendant was represented by bis counsel, and the state was represented by the assistant county attorney of Payne county. All parties agreed that petitioner was. entitled to bail, and this court finds that petitioner should be granted bail in this case in the sum of $1,000, and when the same is given and approved by the court clerk of Payne county, petitioner to be released pending his arraignment in the district court of Payne county.

It is so ordered.


text:
    Ex parte WILBER CURTIS.
    No. A-10668.
    Sept. 5, 1945.
    (161 P. 2d 774.)
    Brown Moore, of Stillwater, for petitioner.
    Randell S. Cobb, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and K. D. Greiner, Co. Atty., of Stillwater, for the State.
   PER CURIAM.

Petitioner, Wilber Curtis, has filed his petition in this court alleging that he is confined in the county jail of Payne county, where he is charged with the crime of rape. That at his preliminary examination he was held without bail. That the district judge of said county is absent from the State of Oklahoma, and will not return for ten days or two weeks, and for this reason application can not be made to him for bail at this time.

At the hearing on the above petition before this court, the defendant was represented by his counsel, and the state was represented by the assistant county attorney of Payne county. All parties agreed that petitioner was entitled to bail, and this court finds that petitioner should be granted bail in the sum of $4,000, and when the same is given and approved by the court clerk of Payne county, petitioner to be released pending his arraignment in the district court of Payne county.

It is so ordered.


author: JONES, J.

text:
    G. FEIL v. STATE.
    No. A-10450.
    Sept. 5, 1945.
    (161 P. 2d 770.)

      Mauntel & Spellman, of Alva, and Grester H. LaMar, of Guymon, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, G. Feil, was charged in the district court of Texas county with the crime of murder; was tried, convicted of manslaughter in the first degree, with the punishment left to the court. The trial court thereupon sentenced the defendant to serve a term of eight years’ imprisonment in the State Penitentiary, and the defendant has appealed.

The defendant was a resident of Hooker, and, at the time of the homicide, was. deputy sheriff of Texas county.

On the night of February 19, 1943, a basketball game was played in Hooker between the high school teams of Hooker and Guymon. After the game Avas over, it had been arranged that a public dance Avould take place at the Odd Fellows’ Hall building in the main part of town, some distance away from the high school. One “BG” Burdge, a high school boy living in Hooker, had charge of the dance. The deceased, Grady Wayne Thompson, lived at Guymon and had come to Hooker with several other Guymon high school students to see the basketball game and had remained in Hooker for the dance.

Several boys had congregated on the steps leading up to the dance hall and “BG” Burdge had ordered the boys to either come into the dance hall or get off of the steps. A quarrel ensued between the deceased and Burdge Avhich resulted in a fist fight between these two boys. The defendant and the city marshal, one Kuhn, were notified, and they arrived at the scene of the fight just as it was ending. The defendant arrested the deceased, Grady Wayne Thompson, took him by the arm and started towards the town jail. As they got to about the middle of the street, Grady Wayne Thompson broke loose from the defendant and ran back into the alley towards the large crowd which had congregated around the dance hall. The defendant started chasing the deceased. After they had run quite some distance, the deceased commenced gaining on the defendant, and the testimony of the witnesses varied as to the distance separating them. Some of the witnesses estimated that the deceased was 30 feet ahead of the defendant, while one witness thought there was 20 or 25 yards between them. The defendant called to the deceased to stop or he would shoot. One witness said that immediately after the defendant had made this statment, the defendant shot at the deceased and the deceased fell. Some of the other witnesses heard the shot and saw the deceased fall, while many others heard the shot and rushed to the alley and saw Grady Wayne Thompson lying on the ground dead from a gunshot wound in the head. Some of the state’s witnesses testified that the defendant was standing there with a gun in his hand and ordered the crowd to stand back or they would “get some of the same.”

The theory of the defense was that the defendant yelled at the deceased to stop or he would shoot. That the deceased had turned a corner in the alley and was out of sight of the defendant at the time the defendant fired the shot. That the defendant did not point the gun at the deceased, but fired it in the air at an angle of about 45 degrees, and that the only way it could have struck the deceased was by reason of its hitting some object and being deflected.

It is first argued that certain testimony admitted over objections of the defendant was prejudicial and inadmissible. This statement was the testimony of the witness Usrey that, when the defendant, Feil, was chasing the deceased, he heard Jake Kuhn, the city marshal, yell to Feil, “Shoot the son of a bitch.” The case of Cecil v. Territory, 16 Okla. 197, 82 P. 654, 8 Ann. Cas. 457, is cited in defendant’s behalf to support this contention. We have examined this case and do not think that it is in any way applicable to the state of facts before us.

The alleged objectionable statement was first testified to by the witness Hargrove. No objection was interposed at that time. When the witness Usrey testified to the same statement, counsel for defendant did not object at the time the question was asked, but after the answer had been given, counsel moved the court to withdraw the statement from the jury, which motion was denied.

The city marshal and the defendant came to the dance hall together as peace officers allegedly for the purpose of keeping order. According to the testimony of the defendant and some of the other witnesses, Marshal Kuhn took the witness Burdge by the arm, while the defendant arrested the deceased. The exclamation of Kuhn about which complaint is made was in the course of the commission of the crime and evidently encouraged the defendant to do the very act which he committed. The record shows that immediately after the exclamation by Kuhn the defendant fired the fatal shot.

While an ordinary statement not made by Kuhn in the course of the commission of the crime would be inadmissible as hearsay, when such statement is directed at his fellow officer and the state shows that the defendant relied and acted upon the statement, it is not objectionable on the ground that it is hearsay. 10 R. C. L. 959; Mills v. Higgle et al., 83 Kan. 703, 112 P. 617, 20 Am. Jur. 454.

It would appear that a statement made under such circumstances is also admissible as a part of the res gestae. In Baysinger v. Territory, 15 Okla. 386, 82 P. 728, 729, it is stated:

“Where a declaration or statement is made by a bystander during the progress of an altercation, which results in one of the parties shooting and killing the other, and which remark gives character to an act of the accused, which act is a proper subject of proof on the trial, such statement may be introduced in evidence as a part of the res gestae.”

It is next contended that the trial court committed error in permitting the jury to separate over the objection of the defendant. The record does not support this contention. The record discloses the following in connection with this proposition:

“At this point the court took a recess until 2:30 p.m., the court first admonishing the jury to keep together and not talk about the case. The jury then left the courtroom in charge of the bailiff, with instructions to be back in their box at 2:30 p.m.
“Mr. Mauntel: The defendant now objects to the jury being permitted to go with the bailiff who has not been sworn to take care of said jury, to keep them together and to follow out the instructions of the court.
“The Court: The court feels that the objection is not timely for the jury has been gone several minutes from the courtroom in charge of the court bailiff, and the objection will be overruled, as it is impossible to swear him at this time.
“Mr. Mauntel: Exception.”

After the jury had returned to the box, the bailiff was sworn and testified that he kept the jury together during the lunch period and that he did not allow anyone to communicate with them. The individual jurors were then asked whether they had heard the case discussed during the recess and they each stated that the case was never mentioned. Under sncli a state of tbe record, it is apparent that no prejudice resulted to tbe defendant by reason of the failure of tbe court to swear tbe bailiff, if, in fact, the bailiff was not sworn.

It is next insisted that tbe court erred in giving instructions Nos. 10 and 11 to the jury.

Instruction No. 10 reads:

“You are instructed that it is tbe duty of tbe sheriff and his deputies to arrest every person who commits an offense in his or their presence, and you are instructed that one voluntarily engaging in a fight is committing a public offense and in violence of the laws of the State of Oklahoma.
“If you find from the evidence that the deceased Grady Wayne Thompson was on the 19th day of February, 1943, and immediately prior to his death, voluntarily engaged in a fight in the town of Hooker, Texas County, Oklahoma, and that the defendant, G. Feil, was then and there a deputy sheriff of Texas County, Oklahoma, and saw said deceased engaged in said fight, it was his duty to place the deceased under arrest.
“In making an arrest the officer is authorized to use such force as may be reasonably necessary to complete the arrest of such person sought to be arrested, and the officer may use such force as is reasonably necessary to retain control of the prisoner after he is arrested.
“However, you are instructed that a peace officer has no lawful right to shoot and kill a person that is attempting to escape arrest for a minor offense, by running away, and if he does so, he Avill be guilty of murder or manslaughter in the first degree as the case may be.”

Counsel state that the first three paragraphs of this instruction correctly state the law, but further state that the last paragraph nullifies the three preceding paragraphs and is tantamount to a peremptory instruction to the jury to find the defendant guilty of murder or manslaughter. No authorities are cited to sustain this contention.

We have given this instruction careful consideration. It is a fair statement of the law. A peace officer does not have the right to shoot and kill a person fleeing to escape arrest for a misdemeanor. In addition to that, this instruction must be read in connection with all of the other instructions which were given, and, when so read, it correctly states the law.

Instruction No. 11 complained of was evidently copied verbatim from an instruction approved by this court in the case of Lady v. State, 18 Okla. Cr. 59, 192 P. 699, 701. The evidence in Lady v. State, supra, presents a similar state of facts to those involved herein, and we see no reason why the same instruction approved in Lady v. State, supra, should not be applicable herein. The argument of the defendant is directed to the failure of the court to define the word “wilfully,” as used in the first part of the instruction, wherein the court stated:

“You are instructed that any person who willfully discharges any species of firearm, airgun, or other Aveap-on in any public place, or in any place where there is any person to be endangered thereby, although no injury to any person shall ensue, is guilty of a misdemeanor.”

This part of the instruction follows the language of the statute. If any criticism may be made of this instruction, it would be directed at the failure of the court to define the term “public place,” as used in the statute, and not at the failure of the court to define the word “wilfully.” However, this instruction, considered as a Avhole, is a fair statement. There was no request for any further definition of any word used in said instruction.

No reasonable jury could have done other than return a verdict of guilty under the facts of this case. It was a very regrettable tragedy. The jury could hardly have been expected to believe the statement of defendant that he fired in the air above the head of the deceased and that the only way the deceased could have been struck would have been by the bullet having been deflected. The testimony of the doctor who examined the deceased eliminated this theory of the defense. The doctor testified that the bullet entered the head on the right side about the hair line and came out on the left side of the head about an inch lower than the point of entry. The doctor further testified:

“A. The point of entrance was a small, clean round hole, and the point of exit was a large jagged hole; there was no question as to which way the bullet traveled.”

If the bullet had struck a substance hard enough to have deflected it, it would have been flattened before striking the deceased and would have caused a jagged hole at the entrance of the bullet into the head. The defendant, prior to this tragedy, had borne an excellent reputation in the community where he resided, which makes this homicide all the more regrettable. The defendant was inexperienced as an officer and, despite his good reputation as a law-abiding citizen, his temperament and training was such that he should not have been entrusted with carrying a gun. The jury did not assess the punishment but left the punishment to be fixed by the court. The prior good reputation of the defendant and other .factors in his favor were evidently taken into full consideration by the court when he assessed the punishment at only 8 years’ imprisonment.

We can perceive of no errors in this record which can be said to be so substantial in their nature as to have deprived the defendant of a fair trial. Undoubtedly, there was some tension at the trial, because an incident such as happened here in a community where both of the parties were well known would be widely discussed. Under all the circumstances, it appears to us that the trial court conducted the trial in a fair and able manner and that the judgment of conviction should be affirmed.

It is so ordered.

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


text:
    DONALD MYERS v. HUNT, Warden.
    No. A-10403.
    Sept. 5, 1945.
    (161 P. 2d 768.)
    Sid White, of Oklahoma City, for petitioner.
    Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   JONES, J.

This is an original application for a writ of habeas corpus filed by the petitioner, Paul Myers, to secure his release from confinement in the State Penitentiary at McAlester.

The petition alleges that petitioner is confined in the State Penitentiary by reason of a commitment issued by ■the district court of Muskogee county in a certain cause committing him for a term of 50 years upon conviction for the crime of robbery with firearms.

The petition alleges that the information was duplicitous, contradictory, and insufficient to confer jurisdiction upon the court; that his conviction was void for want of due process of law. Neither a copy of the information nor of the judgment and sentence pronounced against the petitioner is attached to the petition.

A demurrer was filed to the petition and a hearing had thereon. At the hearing, this court sustained the demurrer to the petition and, upon application of the petitioner, gave the petitioner additional time to file an amended petition and brief in support thereof. The time given to the petitioner to file his amended petition and brief has long since elapsed. No application for an extension of time has been made and said cause is deemed to have been abandoned.

The petition is short; the allegations which are made state only conclusions of law; no facts are pleaded which would show that the trial court was without jurisdiction to pronounce judgment upon the conviction. Since neither a copy of the information nor a copy of the judgment and sentence is attached to the petition, it is apparent that the demurrer to the petition is good and that said cause should be dismissed.

It is therefore ordered that the demurrer of the respondent be and the same is hereby sustained and the petition for writ of habeas corpus is dismissed.

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


text:
    DONALD MYERS v. HUNT, Warden.
    No. A-10404.
    Sept. 5, 1945.
    (161 P. 2d 769.)
    Sid White, of Oklahoma City, for petitioner.
    Randell S. Cobb. Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   JONES, J.

This proceeding is a companion case to the case of Myers v. Hunt, 81 Okla. Cr. 142, 161 P. 2d 768.

The petition filed on behalf of Donald Myers herein is identical with the petition filed on behalf of Paul Myers in case No. A-10403, supra. The matters stated in the foregoing opinion apply with equal force to the disposition of this case.

It is therefore ordered that the petition of Donald Myers for a writ of habeas corpus to secure his release from confinement in the State Penitentiary at McAlester be and the same hereby is dismissed.

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


text:
    Ex parte CECIL WILLIAMS.
    No. A-10663.
    Sept. 5, 1945.
    (161 P. 2d 768.)
    J. W. Osmond, of Chickasha, for petitioner.
    Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State.
   PER CURIAM.

Petitioner, Cecil Williams, filed in this court his petition on the 24th day of July, 1945, in which he made application for the reduction of bail. He alleged that he was confined in the county jail of Caddo county, where he was charged in the district court with the crime of burglary-in the second degree. He alleges that he had made application to the district court of Caddo county for reduction of bail, but that the court had denied the application. Attached to the petition is a copy of the record made at the time of the examining trial of defendant in the justice court.

This matter was set for hearing in this court on the 1st day of August, 1945, and was heard at said time. After due consideration, it was ordered that bond be reduced to the sum of $1500, and upon approval by the court clerk of Caddo county, defendant to be discharged pending his trial in the district court.

It is so ordered.


author: BAREFOOT, P. J.

text:
    CHARLES THOMAS WINGFIELD v. STATE.
    No. A-10417.
    Sept. 12, 1945.
    (160 P. 2d 945.)
    George C. Crump, of Wewoka, and W. J. Crump, of Muskogee, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Mainard Kennerly, Asst. Atty. Gen., and Douglas Garrett, Co. Atty., of Muskogee, for defendant in error.
   BAREFOOT, P. J.

Defendant, Charles Thomas Wingfield, was charged in the district court of Muskogee county, with the crime of murder, was tried, convicted of manslaughter in the first degree, and his punishment assessed at 25 years in the State Penitentiary. From this judgment and sentence he has appealed.

It is unnecessary, in order to properly dispose of this case, to consider all the errors assigned, but the con-elusion which we have reached necessitates a short statement of the facts, as revealed by the record.

The defendant was charged with murder in connection with the killing of Edward E. Kucza, age 21 years, a soldier stationed at Camp Gruber, in Muskogee county, on the night of September 20, 1942.

Defendant was not a soldier, but was employed by the United States Government in a warehouse at Camp Gruber. He lived in a cabin in the northeast part of the town of Braggs, in Muskogee county, and near Camp Gruber. Defendant owned another cabin, just south of the one in which he lived, and a soldier, Corporal Elliott W. Sanders, and his wife occupied this cabin. The two cabins were only 12 or 15 feet apart, and were only about one block from the business district of Braggs.

Corporal Sanders testified that on the night of September 20, 1942, he and his wife had retired early, and Mrs. "Banders remembered that they had no bread for breakfast. Corporal Sanders got up and went to the store for bread (Mrs. Sanders worked, and had to leave home at 7:26 in the morning). As he returned he saw some one, later identified as deceased, coming from one of the near-by cabins. Witness went around his own cabin to the door, and as he did so, the deceased came up on the other side and witness saw him peeping through the window of his cabin. Witness asked him what he was doing there, and the deceased did not answer. He asked him again, and when he did not get an answer the second time, witness said: “Well, the best thing for you to do is to go back to town or wherever you caine from.”

Witness went in his cabin and was told by his wife that some one had been peeping in the window and walking around, and witness went out again to see if the man he had seen had gone away. Deceased was about 25 feet away, near another cabin, and witness again asked him if he was looking for anyone, and saw that deceased had a gun in his hand. Witness said: “Put that gun away, I am not afraid of it.” Deceased took a step forward and said, “No, you can’t do that,” and raised the gun up, and said, “Now, by God, if you want anybody to go, you son-of-a-bitch, you start moving.” When witness did not move, deceased said, “I mean, by God, you start moving.” Witness then started back to his cabin, but turned around, and deceased fired one shot. Witness Sanders then went into his house, and told his wife what had happened. They went to the cottage of the defendant, and defendant advised the witness to go to the military police. Sanders left his wife at the home of the defendant and went to town for the military police. He soon returned with four military police officers and they searched, but could not find anyone. The witness Sanders accompanied the police back to Braggs to identify the party, if they should find him. Mrs. Sanders remained with the Wingfields.

The defendant testified that soon after Sanders and the police left, he heard some one near the Sanders cabin. He picked up a 410 double-barrel shotgun and put two shells in and stepped outside. His wife accompanied him. He saw no one, and went to the door of the Sanders cabin and looked in, but did not see anyone. Just at this moment some one came from around the cabin. He asked him, “What do you want here, what are you doing here? The party, who was deceased, did not answer, and witness ordered him to leave, and when he did not do so defendant started “marching him out of the yard, he was still in my yard,” intending to take him to the military police. When deceased did not move as fast as defendant thought he should, he fired one shot oyer his head from the 410 shotgun. He then marched deceased down the street toward the business section of Braggs, where the military police were located. When they reached the corner, deceased attempted to go straight on, and defendant twice ordered.him to turn to the right.

This testimony of the defendant is corroborated by Clarence Harris, who lived at the corner. Harris testified that upon hearing loud talking he went to his window and could see both defendant and deceased, and the wife of defendant who had accompanied them. Harris testified that he saw the deceased turn to the right on the sidewalk towards town. They had gone about 60 feet when they went out of the sight of the witness Harris, and into the shade of a large tree near the sidewalk. Just after going out of sight, Harris heard a shot fired and he dressed and immediately went to the scene. When he arrived a number of people were there, including two military police who came from town after hearing the cries of the defendant and his wife for the military police. The deceased was found lying on his back, suffering from a gunshot wound in his right breast. Defendant was standing nearby with the shotgun in his hand and admitted that he had fired the shot which struck deceased.

Defendant stated that deceased had turned around facing him and attempted to place his hand in his shirt, and that he thought he was going for a gun in an attempt to shoot him, and that he shot deceased in self-defense and fear of his life. Mr. Harris testified to hearing the defendant, just after the shot was fired, saying, “Don’t you make no gun plays with me.”

The defendant was arrested by Constable Simons, who came to the scene immediately. There was certain testimony as to defendant wanting to be arrested by the military police instead of Constable Simons, but this is not material for a consideration of the errors alleged.

Defendant demanded that the military police search the deceased for a gun. He made this demand three times, and the police searched deceased three times, but no gun or other weapon was found on him. At the hospital three cartons of .45 cartridges were taken from the trouser pockets of deceased.

.The doctor who examined deceased and who made an autopsy found that deceased had died as a result of a gunshot wound just below the right nipple. A number of the shot were removed and introduced in evidence. Some of them had penetrated the heart, and a part of the “wad” was taken from the liver.

A great amount of evidence was introduced which it is unnecessary to discuss. This was with reference to the location of the premises, and pictures taken and introduced in evidence. The cross-examination of defendant and wife was lengthy. Many leading questions were asked which it is contended were prejudicial to the defendant.

A number of the errors assigned need not be discussed for a proper determination of this case.

The alleged errors we consider necessary to discuss are with reference to certain instructions given by the court, and excepted to by defendant.

It is contended that the court erred in giving instruction No. 8, which is as follows:

“If you have a reasonable doubt that the defendant is guilty of murder as above submitted, you may next inquire as to whether or not he is guilty of the crime of manslaughter in the first degree — and if you shall believe from the evidence beyond a reasonable doubt that at the time and place stated in the information the defendant Charles Thomas Wingfield did unlawfully shoot and kill the said Edward Kucza with a deadly weapon, to wit, a shotgun, but that such act of killing was perpetrated without a premeditated design on the part of the defendant to effect the death of the said Kucza but in a heat of passion.
“Or, if you should find that at the time and place alleged in the information the said Edward Kucza was making or appeared about to make an unlawful attack upon the defendant with a gun and should you further find beyond a reasonable doubt that in resisting such attack upon the defendant with a gun, and should you find beyond a reasonable doubt that in resisting such attack'or threatened attack it was necessary for the said Wingfield to kill the said Kucza, and that from the nature of the attack or threatened attack and under all the circumstances as shown by the evidence, it did not reasonably appear to the defendant that it was necessary to kill the said Kucza with a gun to prevent great personal injury then and there to himself, and that he then, under such condition, killed the deceased.
“Then and in either event as above'set out (if you find either state of facts to be true beyond a reasonable doubt) it will be your duty to find the defendant guilty of manslaughter in the first degree and so say by your verdict — unless you further find that said killing was justifiable, or have a reasonable doubt thereof, in which case you should acquit him.”

This instruction, taken as a whole, correctly' states the law, but the wording may have caused confusion in the minds of the jury. On a retrial of this case, the court will no doubt rewrite this instruction, so that the latter part of the instruction, where the court uses the phrase, “then and in either event ... it will be your duty to find the defendant guilty . . . ,” can be omitted, and thus eliminate any possibility of the jury being confused as to the court’s meaning.

The next assignment of error is with reference to instruction No. 9, which is as follows:

“Gentlemen of the jury, you are instructed that the laws of the State of Oklahoma pertaining to the right of a private individual to make an arrest are as follows:
“ ‘A private person may arrest another;
“ ‘First: For a public offense committed or attempted in his presence.
“ ‘Second: When the person arrested has committed a felony although not in his presence.
“ ‘Third: When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it.
“-‘He must, before making the arrest, inform the person to be arrested of the cause thereof, and require him to submit except when he is in actual commission of the offense or when he is arrested on pursuit immediately after its commission.
“ ‘A private person who has arrested another for the commission of a public offense, must, without unnecessary delay, take him before a magistrate or deliver him to a peace officer.
“ ‘Any person making an arrest must take from the person arrested all offensive weapons which he may have about his person, and must deliver them to the magistrate before whom he is taken.’
“Therefore, gentlemen of the jury, if you find and believe beyond a reasonable doubt that the defendant did make an arrest of the deceased Kucza but failed to comply with any one or all of the above quoted statutes applicable to such arrest, then and in that event the defendant would be engaged in an unlawful act and could not invoke the doctrine of self-defense.”

A part of this instruction is an exact quotation from 22 O. S. 1941 § 202, which is the statute giving a private individual the right to make an arrest.

There can be no question as to this instruction being a proper statement of the law insofar as it quotes the statute, but it is contended by defendant that under the facts and undisputed evidence the court was not justified in giving this instruction, and especially the last paragraph, which instructed the jury that if they found certain facts with reference to the terms of the statute “the defendant would be engaged in an unlawful act and could not invoke the doctrine of self-defense.”

We considered it necessary to give a short statement of the facts in order to properly consider this instruction.

The county attorney representing the state, and he did so in a very able manner, attempted to show by a cross-examination by defendant’s witnesses that the deceased was not the party who was peeping into the window of the witness Sanders, and not only that he did not' fire the shot at or above Sanders, but that no shot was fired.

A careful reading of the record can but convince one that the deceased, who was a technical sergeant in the United States Army, had in the early part of the evening of September 20, 1942, gone into the vicinity where the cabins of defendant and Corporal Sanders were located. There is some evidence that he had been keeping company with a young lady who had lived in close proximity there, and h¿ had been at her cottage on the Thursday evening prior to the Jailing on Sunday, and she had moved away in the meantime. There was also conflicting evidence as to whether deceased had been drinking, or was under the influence of liquor at the time of the killing. But there can be no doubt that deceased was peeping into the windows of Mrs. Sanders’ cabin while her husband was gone, as they testified, and that the witness Sanders contacted deceased as above set forth, and that deceased fired a shot either at Sanders or over his head. Seven different witnesses, most of them disinterested, testified to hearing three shots, and at about the same intervals. Some of these witnesses, including Mr. Harris, whose testimony was very fair and could not be doubted, testified for the state. It makes no difference whether this shot was fired from an automatic 45 or a regular 45.

Under the evidence we are of the opinion that defendant did not commit any act up to the time of the killing of deceased that any citizen might not have done under similar circumstances. He had been notified of the conduct of the party toward his neighbor and tenant, Corporal Sanders. His own wife and Corporal Sanders’ wife were at his home and were very much frightened by what had transpired.

By what we have said we do not mean that the defendant had the right to discharge his gun over the head of deceased, even on his own premises, or that he had the right to shoot the deceased as he did. That was a question to be decided by the jury from all the facts and circumstances in the case, after hearing the instructions of the court, including the law of self-defense, as justified by the evidence.

But the right of the defendant to arrest the deceased under the circumstances and take him to the military police cannot be questioned. A careful reading of the statute as quoted in the instruction reveals that the defendant had complied with its terms in a very reasonable manner. There can be no question that deceased had committed several public offenses. It was an offense to be peeping into the window of private individuals and to trespass upon their property. If the deceased was under'' the influence of intoxicating liquor, or carrying a gun unlawfully, he was subject to arrest. The defendant had been informed of these facts by Corporal Sanders, and a few minutes thereafter he had seen the deceased under circumstances which justified the belief that they were true. He had also been informed of the firing of a shot, which he himself had heard, and which was a felony and would justify the arrest of deceased, even though not committed in his. presence. He certainly had reasonable grounds to believe that the person he arrested had committed such offenses.

The defendant reasonably complied with that provision of the statute requiring him to inform the person of the reason of his arrest. He informed him he was taking him to the military police, and his arrest was “immediately after its commission.” There was no delay in his attempt to take deceased “before a magistrate or deliver him to a peace officer.” And while the defendant made no attempt to disarm the deceased, it cannot be said, under the circumstances of this case, that he acted other than any other citizen would have acted under similar circumstances.

From this statement it will be noted that the defendant did not fail to comply with every provision of the statute in a reasonable manner with reference to the arresting of deceased; yet the court, after instructing the jury in the terms of the statute, gave the following:

“Therefore, gentlemen of the jury, if you find and believe beyond a reasonable doubt that the defendant did make an arrest of the deceased Kucza but failed to comply with any one or all of the above-quoted statutes applicable to such arrest, then and in that event the defendant would be engaged in an unlawful act and could not invoke the doctrine of self-defense.”

Under this instruction, if the jury found that the defendant had failed to take “all offensive weapons which he may have about his person”, they then had the right to conclude that he was “engaged in an unlawful act and could not invoke the doctrine of self-defense.”

The facts were that it was 15 or 20 minutes after his arrest, and after they had gone some distance, before the killing occurred and at which time defendant claimed that he acted in self-defense in shooting deceased when he attempted, as he believed, to draw a gun for the purpose of killing or .doing great bodily injury to the defendant. Certainly an instruction that defendant would be deprived of the right of self-defense under the circumstances above stated would be to the prejudice of defendant and deprive him of a substantial right. The harmless error doctrine should not be applied as to this instruction.

It is next cited as error that the court erred in giving instruction No. 10, as follows:

“Gentlemen of the jury, you are further instructed that if you find from the evidence that the deceased Kucza was trespassing upon the property, real or personal, of the defendant Wingfield, such being the fact, it would not excuse or authorize the defendant in assaulting the deceased Kucza in pointing a gun at him in order to require him to desist from such trespass. No individual has any right to assault another with a deadly weapon by pointing a gun at him because of the fact that such person is trespassing upon the land of another. A mere trespass upon the property of another, even after the trespasser has been warned to depart and has refused, does not justify the property owner to use a dangerous or deadly weapon to resist the trespass, so if one offers to use a dangerous or deadly weapon against such a trespasser, he is guilty of an assault; a person may resist a trespass on his property, real or personal, not amounting to a felony, or removal or-' destruction of property not feloniously attempted, by the use of any reasonable force, short of taking or endangering life, but if he is unable to prevent it, and there is no felony attempted, he must suffer the trespass and the loss of property and seek redress at the hands of the law, rather than commit homicide.
“Therefore, gentlemen of the jury, if you find beyond a reasonable doubt that the defendant did resist a trespass upon his property by the deceased Kucza and did make use of a dangerous and deadly weapon in resisting said trespass, then and in that event the defendant would be acting without authority of law and could not invoke the doctrine of self-defense.”

In view of what we have said with reference to instruction No. 9 and the evidence, we think it was unnecessary for the court to give this instruction. While as an abstract proposition of law it may be correct, yet as applied to the facts in this case it could not but have been prejudicial to the defendant. The accused presented a plea of self-defense. The question of trespass upon the property of the defendant had no connection with the issue of self-defense at the time of the homicide. The instruction that if defendant used a dangerous and deadly weapon “in resisting said trespass that he would be acting without authority of law and could not invoke the doctrine of self-defense” had the effect of depriving the defendant of a substantial right, the right of self-defense at a time long after the question of trespass was involved. Gibbons v. Terr., 5 Okla. Cr. 212, 115 P. 129.

It is unnecessary to consider other assignments of error made in this case. They will not occur on a retrial of the same.

It is not to be understood that this case is reversed upon the facts, but alone upon errors in the instructions, as above set out.

For the reasons above stated, the judgment of the district court of Muskogee county is reversed and the case remanded.

JONES, J., concurs. DOYLE, J.,- not participating.


text:
    GENE HOPPER v. STATE.
    No. A10432.
    Sept. 12, 1945.
    (160 P. 2d 942.)

      Embry & Sutton, of Chandler, for plaintiff in error.
    Eandell S. Cobb, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Gene Hopper, was jointly charged with one Hosie Logue, in the district court of Lincoln county, with the crime of burglary in the second degree; a severance was granted and defendant Hopper was tried, convicted, and sentenced to serve two years-in the State Penitentiary, and has appealed.

On the night of January 26, 1943, a lock on a warehouse belonging to one A. G. Scheibner, in the city of Chandler, was broken, the building was entered and eight cases of Progress beer taken from said building.

For a reversal of this case it is contended: (1) That the court erred in admitting in evidence certain cases or cartons that were found by the sheriff in connection with a search for beer that was stolen from the building. (2) The evidence is insufficient to sustain the verdict.

A. G. Scheibner testified that the defendant and Hosie Logue were in Scheibner’s cafe about 8 o’clock on the night in question. That they talked in the cafe for q. few minutes and then went out the back door and were gone about 15 minutes. That at the rear of his cafe was a storeroom where he had beer stored. That the lock on this storeroom was broken during the night and eight cases of Progress beer taken from said room. He then testified that later he saw some empty beer cases in the sheriff’s office. He identified the cases as being some of those taken from his warehouse. The identification was made by reason of the fact that the cases had certain numbers on them which corresponded to the serial numbers of the cases which were delivered to him.

On cross-examination, the witness was questioned at length concerning his method of identification of the cases which he saw in the sheriff’s office. The witness stated that he had no way of identifying the cases except through the serial numbers. That there was a possibility that the cases were not the ones which were taken from his warehouse, but stated that, in his opinion, based upon the serial letter numbers stamped on the cases, they were thfe cases which contained the beer which was stolen from his building.

A. D. Tylor testified to hearing a conversation between the defendant and Hosie Logue, wherein the defendant asked Logue, “Did he see that warehouse, out there beside the restaurant”, and he said, “Yes, but the damn thing has a lock on it.” “Well,” he said, “All it takes is -a skeleton key and I have got that.”

The witness further testified that on Wednesday, January 27th, he saw the defendant Logue at his home. That they were traveling in a model A Ford automobile with a built-in bed. That they had seven cases of Progress beer in the back of the automobile and one in the front. That the beer was in pasteboard crates. That the defendant tried to trade him some of the beer for a jacket which the defendant had pawned to him two days before that time.

Charles Meier operated a general store in Wilzetta. He testified he saw the defendant with Hosie Logue in his store on Wednesday, January 27th. That he saw four or five beer cases in the back end of their car. That Logue, in the defendant’s presence, tried to sell him a case of Progress beer. Logue said that he had gotten drunk the night before and bought the beer while he was drunk and now had more beer than he wanted.

Ed Bierman testified that he was at Meier’s store on January 27th, when defendant and Logue were there and tried to sell some beer. That they tried to sell the beer to him for $3 a case. That the defendant gave him a bottle of Progress beer and he drank it there at that timé.

Elmer Bayes testified that he was a farmer south of Sparks. That he saw the defendant and Logue a little over a half a mile south of Sparks on the road, and during a conversation with him at that time, the defendant gave him a bottle of beer. That he saw four full cases of Progress beer in Hosie Logue’s ear. That the defendant said they had bought the beer.

Hugh Griffin testified that he saw the defendant and Hosie Logue south of Sparks on January 27th. The witness had stopped his car on the road and the defendant and Logue came along in a model A Ford car and stopped where the witness was working on his automobile. That they put four cases of Progress beer in the back end of the car belonging to the witness. That the sheriff four days later came down and got those 'cases from him.

Andrew Orr, sheriff of Lincoln county, testified that on January 31st he went to the home of Hugh Griffin and found three cases of empty Progress beer bottles. That he brought them back to Chandler and that they were the identical cases which were viewed by Mr. Seheib-ner and identified as state’s exhibits 1, 2, and 3.

On behalf of the defendant it was contended that the beer which defendant and Hosie Logue had in their possession on January 27th had been purchased by Hosie Logue and was not the beer which was stolen from Scheib-ner.

The defendant testified in his own behalf and admitted two former convictions for felonies.

We find no error in the action of the court in admitting the three empty beer cases in evidence. The witness Scheibner testified that in his opinion the cases were the ones which were stolen from his warehouse. He attempted to identify them by certain letters stamped on the cases.

On cross-examination, counsel for defendant weakened the testimony of the witness some by the evidence which he brought out as to witness’ method of identification. This affected the weight of the evidence and not its admissibility. The witness still maintained that the cases which he examined in the sheriff’s office and which were identified as exhibits 1, 2 and 3 were the cases which were stolen from him. The court correctly admitted the cases for the inspection for the jury and the jury in turn had a right to consider all of the testimony of the witnesses in determining whether the cases which the witness Scheibner identified were actually the cases stolen from Scheibner’s cafe.

It is unnecessary to prolong this opinion by a lengthy discussion of the evidence inculpating the defendant. An examination of the summary of the evidence herein above set forth discloses that the state made a strong circumstantial showing of guilt. The explanation of the defendant and his attack on the truth and veracity of the witness Tyler were questions for the determination of the jury under proper instructions. The circumstances shown by the evidence of the state pointed overwhelmingly to the guilt of the defendant. Under the state’s proof, the defendant had the possession of the stolen property the following day after the burglary was committed.

In Chester v. State, 63 Okla. Cr. 84, 73 P. 2d 191, it is held:

“The presumption arising from the possession of recently stolen property is one of fact and not of law. Such presumption is merely an evidential fact tending to establish guilt which should be submitted to the jury to be considered in connection with all the other facts and circumstances disclosed by the evidence.”

In the body of the opinion this court quoted from the case of Shields v. State, 32 Okla. Cr. 344, 240 P. 661, in which it is stated:

“The presumption arising from the possession of recently stolen property is one of fact and not of law. It is a circumstance for the jury to consider and weigh along with all the other evidence in the case. If the possession is unexplained, or the explanation, even though plausible, is not believed, the jury will accord it such weight as they deem right and proper. They are the sole judge as to its weight, and when such fact with the other facts and circumstances in evidence, when given due weight, satisfy the jury beyond a reasonable doubt of defendant’s guilt, it is sufficient to sustain the verdict. Slater v. United States, 1 Okla. Cr. 275, 98 P. 110; Davis v. State, 7 Okla. Cr. 322, 123 P. 560; Gunter v. State, 16 Okla. Cr. 476, 184 P. 797; Cheeves v. State, 18 Okla. Cr. 480, 196 P. 726; Spann v. State, 19 Okla. Cr. 9, 197 P. 531; West v. State, 19 Okla. Cr. 355, 198 P. 99.”

The instructions of the court correctly state the law, and it is our opinion that the defendant has had a fair and impartial trial. The judgment of the district court of Lincoln county is accordingly affirmed.

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


text:
    Ex parte ROY SIMPSON.
    No. A-10667.
    Sept. 5, 1945.
    (161 P. 2d 865.)
    Leon J. York, of Stillwater, for petitioner.
    Randell S. Cobb, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and K. D. Greiner, Co. Atty., of Stillwater, for the State.
   PER CURIAM.

Petitioner, Roy Simpson, has filed his petition in this court alleging that he is confined in the county jail of Payne county, where he is charged with the crime of rape. That at his preliminary examination he was held without bail. That the district judge of said county is absent from the State of Oklahoma, and will not return for ten days or two weeks, and for this reason application can not be made to him for bail'at this time.

At the hearing on the above petition before this court, the defendant was represented by his counsel, and the state was represented by the assistant county attorney of Payne county. All parties agreed that petitioner was entitled to bail, and this court finds that petitioner should be granted bail in the sum of $5,000, and when the same is given and approved by the court clerk of Payne county, petitioner to be released pending his arraignment in the district court of Payne county.

It is so . ordered.


text:
    Ex parte LEO MAYNARD.
    No. A-10651.
    Sept. 12, 1945.
    (161 P. 2d 864.)

      See, also, 79 Okla. Cr. 215, 153 P. 2d 505.
    Leo Maynard, pro se.
    Randell S. Cobb, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for respondent.
   JONES, J.

This is an original proceeding in habeas corpus filed by the petitioner, Leo Maynard, to secure his release from confinement in the State Penitentiary.

The petition alleges that on October 20, 1942, he was convicted in the district court of Osage county of the crime of attempted burglary in the second degree, a second offense, with the punishment left to the court. That, thereafter, the trial court sentenced the defendant to serve six years in the State Penitentiary for said crime and was committed to said institution, where he is now restrained of his liberty by reason of the commitment aforesaid.

The petition further alleges that, the court exceeded its jurisdiction in assessing a sentence of six years for the reason that no such punishment was authorized by law. That the judgment and sentence being void on its face, the defendant is entitled to his release from the penitentiary because he has now served more time in the penitentiary than he would have had to have served if he had been given the maximum sentence authorized by law for such a conviction.

The respondent, warden of the State Penitentiary, in his response herein admits that the petitioner Avas convicted on October 20. 1942, of the crime of attempted burglary in the second degree, a second offense, and sentenced to serve six years in the State Penitentiary as alleged in the petition.

At the hearing held before this court, the Attorney General on behalf of the respondent stated that if the court should find that five years’ imprisonment in the State Penitentiary is the maximum sentence that might be assessed upon conviction of the crime of attempted burglary in the second degree, a second offense, that the petitioner has already served long enough, with allowances made to him for good behavior, to be entitled to his release from confinement and that this court should order his discharge.

It is provided by statute as follows:

“Every person who, having been convicted of any offense punishable by imprisonment in the penitentiary, commits any crime after such conviction, is punishable therefor as follows: . . .
“3. If such subsequent conviction is for petit larceny, or for any attempt to commit an offense which, if committed, would be punishable by imprisonment in the penitentiary, then the person convicted of such subsequent offense is punishable by imprisonment in the penitentiary for a term not exceeding five years.” 21 O. S. 1941 § 51.

Under the third subdivision of said statute above quoted, it is clearly apparent that the court exceeded its authority in assessing a sentence of six years, as the maximum sentence for such crime is five years in the State Penitentiary.

It is, therefore, ordered that the writ of habeas corpus issue and the warden of the. State Penitentiary is directed to immediately release the said petitioner, Leo Maynard, from confinement in the State Penitentiary, if he has no other or additional commitment than the one from the district court of Osage county, wherein the petitioner was sentenced to serve a term of six years for the crime of attempted burglary in the second degree, a second offense.

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


text:
    ED LEWIS v. STATE.
    No. A-10446.
    Sept. 19, 1945.
    (162 P. 2d 201.)

      Wall & Green, of Sallisaw, for plaintiff in error.
    Randell S. Cobh, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and W. S. Agent, Co. Atty., of Sallisaw, for defendant in error.
   BAREFOOT, P. J.

Defendant, Ed Lewis, was charged in the district court of Sequoyah county with the crime of receiving stolen propery, to-wit, two 6:00 x 16 Brunswick tires, and one 6:00 x 16 inner tube. He was tried, convicted and sentenced to serve a term of one year in the State Penitentiary, and has appealed.

It is only necessary to consider two of the assignments of error presented by defendant:

“1. That the verdict of the jury, and the judgment and sentence are contrary to the law and the evidence.”
“4. That the court erred in admitting in evidence to the jury State’s Exhibit 2, same being a statement made by the defendant to the county attorney in writing concerning certain tires bought by one Lackey from one Carl Payne.”

Defendant was charged with having received from his cousin Carl Payne, the two tires and inner tube above described, on June 23, 1942.

Evidence was introduced by the state showing that the tires and tube were stolen from the automobile of W. P. Tucker, in Sequoyah county, in the latter part of June, 1942; that they were found on defendant’s car where it was parked near his place of business, on the 3rd or 4th day of July, 1942; and that the serial numbers had been removed from the tires. The tires were introduced in evidence, and identified by Mr. Tucker by reason of certain scratches and cuts thereon.

There was no objection to the introduction of the tires and tube in evidence, and no denial that they were stolen. Defendant denied that the tires introduced were the same tires found on his automobile, and raised some question as to the numbers on one of them. These were immaterial matters. There can be no question as to the identity of the tires, and that they were stolen from Mr. Tucker.

Defendant’s contention was that he had purchased the tires and tube from his cousin, Carl Payne. At the time of his arrest defendant made a statement in writing to the officers, and this sworn statement was introduced in evidence by the state, counsel for defendant making no objection to its introduction, but stating: “We don’t intend to deny this statement.” It was as follows:

“Ed Lewis, of lawful age, being first duly sworn, deposes and states:
“That my name is Ed Lewis; that I am 33 years of age, and that I live in Webber Falls, Oklahoma; that I know Carl Payne and that we are first cousins by blood.
“That about the last week in June of this year, in Vian, Oklahoma, Carl Payne came to me and told me that he had two tires 6:00 x 16 to sell, that they were up near his father’s house, I told him I might buy them later, but that I was in a hurry to go to Webber Falls, so I did not see the tires at that time. Two or three days later Carl came to my cafe in Webber Falls and wanted to sell me two tires, I told him I might if he didn’t want too much for them, so he wanted me to take him to Yian and Ave Avould look at them as we went by. We Avent up on the mountain, this side of his dad’s house about a half mile and he got the tires, from the left of the road going north about 30 steps from the road. I went out where they were and looked at them and I bought the tires from him at that time. I gave him $20 in money and gave him credit for $10 on what, he owed me at that time. We put the tires in the back of my car, I took him on to Yian, let him out and went back to Webber Falls. There were inner tubes in the tires and I got the tubes. The next day I put the tires on my car. The serial numbers had been cut off the tires when I bought them, I did not notice this until later, but I know that I did not cut them off. These were the same tires that were taken from me by Rex Hawks, John Marrs and Henry Jones on July 6, 1942.
“I have read the foregoing affidavit and swear that the statements therein contained are true.”

The statute with reference to receiving stolen property is 21 O. S. 1941 § 1713, and is as follows:

“Every person who buys or receives, in any manner, upon any consideration, any personal property of any value whatsoever, that has been stolen from any other, knowing the same to have been stolen, is punishable by imprisonment in the penitentiary not exceeding five years, or in the county jail not exceeding six months, or by a fine not exceeding two hundred and fifty dollars, or by both such fine and imprisonment.”

We have had occasion to construe this statute upon many occasions. A few of the cases in which the facts are somewhat similar to the facts in the instant case are : Goodwin v. State, 68 Okla. Cr. 381, 99 P. 2d 181; Camp v. State, 66 Okla. Cr. 20, 89 P. 2d 378; Lizar v. State, 74 Okla. Cr. 368, 126 P. 2d 552; Mason v. State, 60 Okla. Cr. 427, 65 P. 2d 203; Cox v. State, 74 Okla. Cr. 186, 124 P. 2d 432.

The rule with reference to the possession of recently stolen property as announced in the early decisions of this court is stated in the case of Camp v. State, supra, [66 Okla. Cr. 20, 89 P. 2d 380], where it is said:

“Under the well defined principles of law, as outlined by the many decisions of this court, it is necessary in a case of this character, not only for the state to show that the goods have been stolen, but it is necessary to show that the party receiving the property had knowledge at the time the property was received that it had been stolem By this expression it is not meant that it is necessary for the person receiving the same to have actually seen the theft of the property. It is sufficient if the facts are such as to cause an actual belief that the property was stolen. Price v. State, 9 Okla. Cr. 359, 131 P. 1102; 2 Bishop’s New Criminal Law, section 1138. Some cases have held that a conviction should be sustained if the facts were such ‘that in all probability’ would make the accused believe that the property had been stolen. This doctrine is not upheld in this state. Wingfield v. State, 55 Okla. Cr. 374, 30 P. 2d 930; Weaver v. State, 30 Okla. Cr. 309, 235 P. 635; Wilson v. State, 55 Okla. Cr. 22, 24 P. 2d 296.
“Other cases have held that where the proof would ‘put a man of ordinary intelligence and caution on in-, quiry’, that this was sufficient. This doctrine is not upheld by the decisions of this court. Pickering v. United States, 2 Okla. Cr. 197, 101 P. 123; State v. Denny, 17 N.D. 519, 117 N.W. 869.
“The knowledge necessary may be proved by direct or circumstantial evidence, or by both. Within well defined principles of law each case must rest upon the facts of that individual case. By reason of the nature of the crime it is generally necessary for the state to rely upon circumstantial evidence in cases of this character.”

The officers mentioned in the affidavit signed by the accused testified to finding the tires on defendant’s automobile, and of turning them back to W. P. Tucker, from whom they had been stolen and after they were identified by Mr. Tucker.

Defendant testified in his own behalf, as above mentioned. His defense was that he did not know the tires were stolen when he purchased them, and that he did not know of the bad reputation of Carl Payne. On cross-examination he testified that he had pleaded guilty to stealing chickens in 1929 and served a sentence of two years in the penitentiary; and that in 1932 he had pleaded guilty to a charge of first degree robbery, and received a sentence of ten years, and at the same time entered a plea of guilty to burglary and received a sentence of three years.

Defendant also admitted on cross-examination that during the latter part of June or the 1st of July he took his cousin Carl Payne, from whom he purchased the tires in question, to Gore, Okla., using defendant’s car, and that they went about an hour after dark. At Gore they contacted one Odie Lackey, who was running a service station, and Carl Payne told Lackey he had two tires “right outside of Gore,” and wanted to sell them for $50. That Lackey got in the car, and

“We drove out of Gore. Carl told me where to stop the car, and he got out of the car, went about 20 steps to the left of the highway, got the tires, brought them back and showed them to Odie Lackey.”

Lackey purchased the tires for $40, and they went back to Lackey’s station and he gave Carl Payne a check for the tires, and Payne told defendant that when he got the check cashed he would pay him, but defendant told him he did not owe him anything, and testified that he did not receive any of the money.

From the above statement, it will be noted that the determination of the guilt of the defendant was a question of fact for the jury, and while the evidence was partially circumstantial, the jury had the right to consider all of the statements made by the defendant. The fact that the tires were purchased from an individual; that they were located out in the country by the side of the road; that the serial numbers had been cut from the tires and no report was made by defendant to the officers after he discovered this; his association with the party from whom he purchased the tires in another transaction very similar, where the tires sold were concealed out in the country near the side of the road and delivered in the nighttime, were all circumstances that the jury had a right to consider. Under these facts, it cannot be held that the evidence was insufficient to sustain the judgment and sentence imposed. The rule is that the Criminal Court of Appeals will not reverse a judgment of conviction upon the ground that the verdict is not supported by the evidence, unless there is no substantial evidence tending to show the guilt of the defendant, or that the evidence fails so far to support the verdict that the necessary inference is that the jury must have acted from partiality, passion or prejudice. We find no evidence that this was true in this case.

The contention that the court erred in permitting the state on cross-examination to introduce in evidence the statement made by the defendant with reference to Carl Payne selling tires to Odie Lackey can not be sustained. This was statement against interest made by the defendant. It was not an attempt to prove another and different crime, but was a statement showing the relation between the defendant and Carl Payne, and his method of dealing in tires, and selling them under suspicious circumstances. It was in close proximity to the time that defendant had bought the tires in question, and tended to shed light upon the dealings between the defendant and Carl Payne.

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

JONES, J., concurs. DOYLE, J., not participating.


text:
    Ex parte SAM MARRS.
    No. A-10415.
    Sept. 19, 1945.
    (162 P. 2d 201.)
    Kenneth Reed, of Perry, for petitioner.
    Randell S. Cobb, Atty. Gen., for respondent.
   BAREFOOT, P. J.

Petitioner, Sam Marrs, filed his petition for habeas corpus in this court on May 5, 1943. seeking release from the State Reformatory at Granite, where he was confined by reason of a judgment and sentence of the distict court of Noble county, entered on July 27, 1940, sentencing defendant to a term of five years for the larceny of domestic animals.

An investigation of the records of the State Penitentiary at McAlester revealed that the petitioner was transferred to the State Penitentiary on February 7, 1944, and that he escaped from the penitentiary on October 17, 1944, and is at the present time serving a sentence in the Wyoming State Penitentiary for a crime committed while an escapee from the Oklahoma State Penitentiary.

For the reasons above stated, the petition for writ of habeas corpus is denied, and said petition dismissed.

JONES, J., concurs. DOYLE, J., not participating.


text:
    Ex parte GEORGE WALLACE.
    No. A-10656.
    Sept. 19, 1945.
    (162 P. 2d 205.)

      William T. Powell, of Walters, for petitioner.
    Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   JONES, J.

This is an original proceeding in habeas corpus filed by the petitioner, George Wallace, to secure his release from confinement in the State Penitentiary.

The verified petition alleges that on February 3,1942, there was filed in the justice of the peace court in the city of Walters, in Cotton county, Okla., a complaint charging the petitioner with the crime of rape upon one Dixie Lee Hovah, age six years; that thereafter, a warrant was issued and defendant was incarcerated in the county jail of Cotton county; that defendant waived a preliminary examination and his case was certified to tlie district court of Cotton county. Later, an informa-, tion was filed against the defendant in the district court of Cotton county, charging the crime of rape in the first degree, substantially as alleged in the criminal complaint.' That on May 8, 1942, the defendant appeared with his counsel before the district court of Cotton county, entered his plea of guilty to said charge contained in the information, and was by the court sentenced to serve a term of 25 years’ imprisonment in the State Penitentiary.

That on the date the petitioner was sentenced by the district court of Cotton county, a stipulation signed by counsel for defendant and the county attorney of Cotton county was filed, which stipulation recited that the alleged act constituting the crime of rape for which said defendant was charged was committed on the southwest quarter of section eight (8), township two (2) south, range nine (9) west, Cotton county, Oklahoma, and that said quarter section of land is, and was,' restricted Indian land, the title to which is held in trust by the United States of America for a member of the Comanche Tribe of Indians.

The petition further alleges that the restraint and imprisonment under the judgment and sentence aforesaid is illegal for the following reason:

That the petitioner is a full-blood, enrolled, and restricted Comanche Indian, and that the said Dixie Lee Hovah is also an enrolled and restricted Comanche Indian, and that the restrictions have never been removed from either the petitioner or the said Dixie Lee Hovah, and, for that reason, since the acts which are alleged to have constituted the commission of the crime of rape were performed on restricted Indian land, that the district court of Cotton county was without jurisdiction of the offense charged, that the judgment and sentence was void, as sole and exclusive jurisdiction of said offense was vested-in the United States District Court for the Western District of Oklahoma.

Attached to the petition are copies of the complaint, the minutes of the justice of the peace, before whom the defendant was brought for a preliminary examination, a copy of the information, the stipulation of counsel, and the judgment and sentence pronounced against defendant upon his plea of guilty.

It is interesting to note at this juncture that the petition for writ of habeas corpus filed in the instant case was not filed until after the lapse of three years, so that any further action against the petitioner, in case he secured his release from confinement in the State Penitentiary in the instant action, would be barred in either the state or the federal courts by reason of the three years period of limitation on commencement of a criminal action of this nature. 22 O. S. 1941 § 152.

A rule to show cause was issued and the warden of the State Penitentiary has filed a response to the petition, in which response he admits that he is holding the petitioner in custody in said penitentiary pursuant to the judgment and sentence of the district court of Cotton county rendered on May 8, 1942, by which judgment and sentence the said George Wallace was committed to the State Penitentiary to serve a term of 25 years.

The respondent further alleges that the judgment and sentence was regularly and duly pronounced upon defendant’s plea of guilty in the presence and with the advice .of counsel. That defendant George Wallace had been duly and properly charged by information for the crime of rape committed in said Cotton county. That there was nothing in said information nor in the stipulation filed by counsel to show that either George Wallace or Dixie Lee Hovah were Indians and that on the face of the record the court had jurisdiction of the offense and of the person of the defendant and jurisdiction to pronounce said sentence and the only way the matter now argued by counsel could be presented was by an objection to the jurisdiction of the trial court and by appeal to this court in case of an adverse ruling. That no objection to the jurisdiction of the trial court was ever interposed by defendant or his counsel and the stipulation filed by counsel was not even called to the attention of the trial court, although there was nothing in said stipulation to show that either the petitioner or the complainant was an Indian.

Upon a hearing had before this court, it was stipulated by counsel that, subject to the objection of the Attorney General as to the competency and relevancy of said evidence, the petitioner and the victim of the crime were restricted Comanche Indians.

The minutes of the justice of the peace, before whom the complaint was filed, recite:

“Whereupon, this the 3d day of February, 1942, C. C. Campbell filed herein complaint, charging the above named defendant, George Wallace, with the crime of rape, and a warrant thereafter was issued and placed in the hands of the sheriff of Cotton county, Oklahoma.
“Thereafter, on the 4th day of February, 1942, an amended complaint was filed in the cause, but the arraignment was delayed until the defendant would have time to make arrangements with some attorney to represent him, and thereafter, on February 9, 1942, the district attorney’s office of Oklahoma City demanded that the defendant be turned over to the Federal government for prosecution and his request was complied with. Thereafter, on March 12th, the Federal Attorney, Charles Becker, notified the County Attorney of Cotton County, that the Federal government had made a thorough investigation of the alleged crime and desired to return the defendant back to the State and to Cotton County for prosecution by reason of the want of Federal jurisdiction. Thereafter, on the 12th day of March, 1942, the defendant was returned to the County jail of Cotton County, and thereafter, on March 17th, 1942, defendant appeared before the undersigned magistrate in person and with his attorney and legal advisor, Wm. T. Powell, and after the complaint was read to the defendant and after he was fully advised of the nature of the indictment lodged against him, he entered a plea of not guilty, waived preliminary hearing and asked that his case be certified up to the District Court of Cotton County.”

It is contended by petitioner that exclusive jurisdiction of the crime of rape committed by an Indian on another Indian or other person on an Indian Beservation is exclusively vested in the courts of the United States, citing 18 U.S.C.A. § 548, which provides:

“All Indians committing against the person or property of another Indian or other person any of the following crimes, namely, murder, manslaughter, rape, incest, assault with intent to kill, assault with a dangerous weapon, arson, burglary, robbery, and larceny on and within any Indian reservation under the jurisdiction of the United States Government, including rights of way running through the reservation, shall be subject to the same laws, tried in the same courts, and in the same manner, and be subject to the same penalties as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States: Provided, That any Indian who commits the crime of rape upon any female Indian within the limits of any Indian reservation shall be imprisoned at the discretion of the court: Provided further, That as herein used the offense rape shall be defined in accordance with the laws of the State in which the offense was committed.
“The foregoing shall extend to prosecutions of Indians in South Dakota under section 549 of this title. (Mar. 4, 1909, c. 321, § 328, 35 Stat. 1151, as amended June 28, 1932, c. 284, 47 Stat. 337.)”

In support of his contention, there was, also, cited, United States v. Kagama, 118 U. S. 375, 6 S. Ct. 1109, 30 L. Ed. 228; United States v. Celestine, 215 U.S. 278, 30 S. Ct. 93, 54 L. Ed. 195.

The above provision of the United States Code here involved, particularly with reference to the Five Civilized Tribes, was discussed at length by this court in Ex parte Nowabbi, 60 Okla. Cr. 111, 61 P. 2d 1139. It was therein held that the term “Indian Country,” as used in the provision of the Code, 25 U.S.C.A. § 217, did not extend to the territory occupied by the Five Civilized Tribes. It was further held in said case:

“Decisions of United States Supreme Court on question whether conviction of Indian in state court for committing crime of murder on person of another Indian on restricted Indian allotment within boundaries of former nation of Indian "Territory violated Federal Constitution heid conclusive on state courts (Const. Okla. art. 1, § 1; Const. U.S. ar.t. 6; Amend. 10.) ...
“Words ‘sole and exclusive’ within statute that general laws of United States as to punishment of crime committed in any place within sole and exclusive jurisdiction of United States should extend to Indian country do not apply to jurisdiction extended over Indian country, but' are only used in description of laws which are extended to it (25 U.S.C.A. § 217).
“ ‘Indian country,’ within statute extending to Indian country general criminal laws of United States, is country to which Indians retained right of use and oe-cupaney, involving under certain restrictions freedom oí action and of enjoyment in their capacity as a distinct people, and which ceases to be such when title of Indians is extinguished, unless by virtue of some reservation expressed at time and clearly appearing (25 U.S.C.A. § 217.)
“Indians residing oh reservation established by United States in part of Oklahoma which was formerly Oklahoma Territory are subject to federal authority as wards of general government for whom power to legislate is exclusively in Congress (25 U.S.C.A. § 349.)
“Land which was formerly a part of Indian reservation established by United States in part of Oklahoma which was formerly Oklahoma Territory which is in possession of Indian under restricted allotment without power of alienation is ‘Indian country’ within statute extending general federal criminal laws to Indian country (25 U.S.C.A. §§ 217, 349).
“Criminal laws of state except so far as restricted by authority of Congress to regulate commerce with Indian tribes extend to all crimes committed on lands within part of state that was formerly Indian Territory, in absence of contrary provision in Enabling Act or treaty with- Five Civilized Nations or Tribes (Act Cong. June 16, 1906, 34 Stat. 267; 25 U.S.C.A. §§ 217, 349; Const. U.S. Art. 1, § 8, cl. 3.) * * *
“Lands within part of Oklahoma which was formerly Indian Territory held not ‘Indian country’ within statute extending general federal criminal laws to such country, and hence state courts have jurisdiction to prosecute and sentence, under state laws, an Indian for murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny committed on another Indian on such land even when such crimes are committed on restricted Indian allotment (Act Cong. June 16, 1906; 34 Stat. 267; 25 U.S.C.A. §§ 217, 349; Cr. Code, § 328, 18 .U.S. C.A. § 548.)”

•It should be borne in mind that this is a proceeding to secure release from confinement by habeas corpus'. It has been many times held by this court that the writ of habeas corpus will not issue unless the judgment and sentence is void on its face. Ex parte Gilbert, 71 Okla. Cr. 268, 111 P. 2d 205; Ex parte Banning, 73 Okla. Cr. 398, 121 P. 2d 619; In re Knight, 75 Okla. Cr. 316, 131 P. 2d 506; Ex parte Gray, 74 Okla. Cr. 200, 124 P. 2d 430.

In King v. State, 16 Ala. App. 341, 77 So. 935, 936, it is stated:

“But the writ (habeas corpus) did not originate nor was it designed to embarrass or interfere with the courts in the due administration of justice in cases where such courts have the general jurisdiction of the subject-matter and of the person of the defendant.”

In the case of Davis v. Johnston, Warden, 9 Cir., 144 F. 2d 862, it is stated:

“Syl. 1. After trial and conviction in federal court on indictment alleging jurisdictional fact that offense was committed within Indian Reservation, jurisdiction of federal court could not be challenged in habeas corpus proceeding on ground that land on which offense was committed had been allotted and patented to an Indian in severalty and thereafter sold to a white citizen and was therefore not within Indian Reservation.
“Syl. 2. Where jurisdiction of court is in issue in trial court and is dependent upon facts alleged, the finding of jurisdiction is conclusive on the parties in a collateral attack regardless of whether question of jurisdiction was raised by accused.”

In the case of Ex parte Savage, C. C., 158 F. 205, the second syllabus reads:

“Act Cong. March 3, 1885, § 9, c. 341, 23 Stat. 385, declares that all Indians committing certain crimes within any territory of the United States, and either within or without any Indian reservation, shall be subject to the laws of such territory relating to the crime specified, and shall be tried therefor in the same courts and in the. same manner and be subjected to the same penalties as all other persons charged with the commission of such crimes, and all Indians committing such offenses within any state and within the limits of any Indian reservation shall be subject to the same penalties as are all other persons committing any of the crimes within the exclusive jurisdiction of the United States. Held, that where petitioner was indicted in a federal court within the district of Oregon for an offense committed on an Indian reservation, and he was convicted and sentenced on a plea of not guilty, the judgment constituted a conclusive adjudication that petitioner was a non-allotted Indian, and therefore triable in the federal court, and hence he could not obtain his discharge on habeas corpus on the ground that both he and-his victim were allotted Indians, and that the federal court had no jurisdiction to try him.”

In the body of the opinion, it is stated:

“If, therefore, the allegations of the petition filed in this case for the writ are to be taken as true for the purpose of this hearing, or if the allegations of fact in regard to the allotment and consequent citizenship of the petitioner is open to inquiry in this court and may be proven upon a trial, he would be entitled to his discharge; but does this conclusion entitle petitioner to the writ demanded in this case? I think not, and for this reason. It is not the province of a proceeding in habeas corpus to review or retry the original case in which the petitioner was tried and convicted or to re-examine the issues of fact tried and determined in that case, or to call in question the existence of such facts as were essential to the judgment rendered in the case. If, as a matter of law, arising on the face of the record made in the trial of the case, the court rendering the judgment acted without jurisdiction, then its judgment is void, and such result may be declared in this habeas corpus proceeding.”

The case of Maust v. Warden, 9 Cir., 283 F. 912, 914, is similar in many aspects to the instant case. There, Maust sought his release from confinement in the Federal Penitentiary at Leavenworth, Kansas, where he had been committed by the United States District Court for the Western District of Oklahoma, to serve a sentence of life imprisonment for the crime of murder. The petitioner contended that he was a white man and that Alvin Bateman, the deceased, upon whom the homicide was alleged to have been committed, was also a white man and not an Indian and, for that reason, the District Court of Noble County, in the State of Oklahoma, and not the United States District Court had jurisdiction to try him for the alleged offense. In the body of the opinion, it is stated :

“There is another reason- why the action of the' district court in refusing to discharge appellant must be sustained. On application for the writ the only inquiry open for consideration was that of jurisdiction of the trial court. Collins v. McDonald, 258 U. S. 416, 42 S. Ct. 326, 66 L. Ed. 692 (decided April 10, 1922.) The petition for the writ charged that the court was without jurisdiction. There can be no doubt that a white man may be indicted, prosecuted, tried, convicted and punished in a federal court sitting within a state, for the murder of an Indian committed within Indian country. Donnelly v. United States, 228 U.S. 243, 33 S. Ct. 449, 57 L. Ed. 820, Ann. Cas. 1913E, 710; United States v. Pelican, 232 U.S. 442, 34 S. Ct. 396, 58 L.Ed. 676. It may be. conceded that an indictment charging such an offense against a white man-might be successfully challenged in limine, if it did not appear that the one murdered was an Indian; but if it be not so charged and the indictment be not challenged, and it appear on the- trial that the person murdered was an Indian, the United States court sitting within a state would have jurisdiction of the offense. It does not - appear from this indictment that Bateman was not an Indian. But in either event, the question whether the. trial court had or did not have jurisdiction on that account was one for its inquiry ánd determination. It had authority to hear and pass upon that question of fact, and its decision could have been reviewed by writ of error, but it cannot be attacked collaterally. Toy Toy v. Hopkins, 212 U.S. 542, 29 S. Ct. 416, 58 L. Ed. 644. This court, in Foltz v. St. Louis & S. F. R. Co., 60 F. 316, 8 C.C.A. 635, in a clear and forcefully reasoned opinion, said:
“ 'Jurisdiction of the subject-matter is the power to deal with the general abstract question to hear the particular facts in any ease relating to this question, and to determine whether or not they are sufficient to' invoke the exercise of that power. It is not confined to eases in which the particular facts constitute a good cause of action, but it includes every issue within the scope of the general power vested in the court, by the law of its organization, to deal with the abstract question. Nor is this jurisdiction limited to making correct decisions. It empowers the court to determine every issue within the scope of its authority according to its own view of the law and the evidence, whether its decision is right or wrong, and every judgment or decision so rendered is final and conclusive upon the parties to it, unless reversed by writ of error or appeal, or impeached for fraud.’
“See, also, Board of Com’rs [of Lake County] v. Platt, 8 Cir., 79 F. 567, 25 C.C.A. 87; Phebus v. Search, 9 Cir., 264 F. 407.”

See, also, Rodman v. Pothier, 264 U. S. 399, 44 S. Ct. 360, 68 L. Ed. 759.

An examination of the information filed herein shows that it merely alleges that George Wallace committed the crime of rape on Dixie Lee Hovah, age six years, in a county of Cotton, and described the acts by which the offense was committed. Neither the citizenship nor race of either party is mentioned in the information. The information upon its face conferred jurisdiction on the district court of Cotton county to proceed with the trial of the accused. Upon arraignment of the accused by the district court, he could have objected to the jurisdiction of the trial court to proceed with the cause and made a showing that he was a restricted Indian and that the offense was committed upon land held in trust by the United States for the Comanche Tribe of Indians. An appeal could have been taken to this court from an adverse ruling. The minutes of the justice of the peace, herein above set forth, show that the United States District Attorney demanded and was given custody of the petitioner while the case was pending before the examining magistrate, but that, thereafter, the federal authorities released the petitioner back to the county attorney of Cotton county by reason of want of federal jurisdiction. This recital appeared in the transcript of the record filed by the justice of the peace in the district court of Cotton county.

Upon the face of the record, the district court of Cotton county had jurisdiction of the subject matter, to wit, rape in the first degree, had jurisdiction of the person of the defendant, and, when the defendant entered his plea of guilty to the charge of rape, as set forth in the information, without challenging the jurisdiction of the state court, the said state court had authority to proceed to pronounce judgment and sentence upon the plea of guilty. Upon the face of the record, the district court of Cotton county had jurisdiction to pronounce sentence, and, at this late date, after the statute of limitation has run so as to prevent a prosecution against the petitioner in either the state or the federal court, this court will not sustain a collateral attack upon the judgment of the district court of Cotton county.

The petition for writ of habeas corpus is accordingly denied.

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