text:
    ARCH CRAWFORD v. STATE.
    No. A-5388.
    Opinion Filed April 27, 1926.
    Rehearing Denied Sept. 18, 1926.
    (248 Pac. 880.)

      Matson & Mather, for plaintiff in error.
    The Attorney General and Houston B. Teehee, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

Arch Crawford, plaintiff in error, herein designated the defendant, was by verdict of a jury found guilty of the larceny of an automobile, with his punishment assessed by the jury at confinement in the state reformatory at Granite for a period of five years.

Four assignments of error are urged in this appeal: (1) That the evidence is insufficient to support the verdict; (2) that there was a fatal variance between the allegations and the proof; (3) error in the court’s instructions to the jury; (4) that the judgment does not conform to the verdict.

The evidence for the state discloses that the complaining witness, Jim Wedie, on November 8, 1923, was in the town of Wilson: that he parked his Ford car on one of the main streets of the town, near a moving picture theater; that, after attending the show, upon his return to the place where he had parked the car, he found that it had been driven away; that a little later the police officers found the car, and returned it to him.

The evidence tending to connect the defendant with the theft of this car was that in the forenoon of November 8th, Otto Parks, a codefendant at the trial, and this defendant were in the town of Tishomingo; that in a conversation with a taxi driver named Kirkpatrick they learned that Kirkpatrick was going to take some passengers to Wilson that afternoon; that Parks said he was wanting to go to Wilson; and that he and the defendant did go with Kirkpatrick, with the latter’s passengers, stating that they would accompany him to keep him company on the return trip. They arrived in Wilson at about 4 o’clock in the afternoon, and, after the taxi driver had discharged his passengers, Parks induced him to drive the defendants out to see a girl friend of Parks, residing some three miles out in the country from Wilson. They remained there about 30 minutes, and then returned to Wilson. Parks then told Kirkpatrick that he and the defendant had decided not to return to Tishomingo with him, whereupon Kirkpatrick left Wilson on the return trip alone. By this time it was growing dark, and Parks and the defendant walked about the streets of Wilson in such manner as to arouse the suspicions of the police officers, and a policeman watched and followed one or the other of them from place to place. Presently Parks and the defendant met near where Wedie’s car was parked, got into the car, and Parks drove it out of town towards the north. The officers followed and intercepted them, and recovered the car, which they later returned to its owner.

At the time of the arrest of the defendant and Parks, Parks stated that the .car was his; that he purchased it in Sherman, Tex. He also made other false and incriminating statements in the presence of the defendant and the officers. The defendant himself offered no explanation either at that time or later, and did not make any explanation on the witness stand.

We think the facts as recited, along with other attending circumstances, established a conspiracy between Parks and the defendant to steal this car, or show that the defendant was actively implicated with Parks in the theft. Eliminating, and not considering the statements made by Parks, every circumstance points to the guilt of the defendant, and is wholly inconsistent with his innocence.

A conspiracy to commit crime, or proof implicating one as an accessory in the commission of crime, may be established by circumstantial evidence. Ex parte Hayes, 6 Okla. 321, 118 P. 609; 12 Cyc. 443.

The second assignment of error relates to the fact that the indictment states that the car in question was the property of Jim Wedie, while the proof disclosed that the title to the car was in his brother, Jack Wedie, and that 'Jim Wedie at the time of the taking had only temporary possession. Conceding this to be true, it has often been held that the ownership of the property may be stated as being in the person in whose possession it was at the time of the larceny. Dickson v. State, 28 Okla. Cr. 378, 231 P. 315; Carson v. State, 30 Okla. Cr. 438, 236 P. 627; Leyerle v. State, 31 Okla. Cr. 179, 237 P. 871.

The third contention is that instruction No. 4 was faulty as being an unwarranted comment on the weight of the testimony. Without attempting to analyze this instruction, the court finds that this assignment of error is without merit.

The verdict, as found by the jury, recited that the defendant, Arch Crawford, should be confined in the state reformatory at Granite for a term of five years, and the judgment as pronounced by the court fixed the confinement for that term of years in the state penitentiary at McAlester. The judgment should be modified to conform to the verdict of the jury, and such modification of the judgment is ordered.

The judgment, as modified, is affirmed.

DOYLE and EDWARDS, JJ., concur.


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    JIM SANDERS v. STATE.
    No. A-5824.
    Opinion Filed Sept. 18, 1926.
    (249 Pac. 356.)
    Phillips & Phillips, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted of grand larceny and sentenced to serve a term of one year in the state penitentiary.

The circumstances shown by the record are about as follows: On Friday night, October 31, 1924, three bales of cotton belonging to three different men were stolen from the ginyard at Matoy, Bryan county. The cotton was taken from the ground in the ginyard. On this night defendant and Bill Brown were together near the place engaged in a gambling game. Brown had a wagon and team, defendant was horseback. The loss was discovered the next morning; on the same morning, Brown appeared at Caney, 16 miles from Matoy, with the stolen cotton on his wagon and sold it. Less than an hour later defendant appeared and inquired of the purchaser if Brown had sold any cotton, the amount and price paid, and stated that he was the owner of a fourth interest in it. The •Sunday following, Brown was at Matoy, under suspicion of the theft and being questioned. Defendant also appeared there on horseback and the officers began to question him and intimated that they would arrest him. Whereupon he mounted his horse and escaped, whooping as he went. Brown, also, then ran away and escaped from the officers. The officers sought to apprehend defendant that night at his home, but he was not found; he was arrested about three weeks later in Jackson county. Defendant was 23' or 24 years old; Brown was 19. Both were charged with the offense. Brown pleaded guilty, was sentenced to the penitentiary, and his sentence suspended. He was not a witness at the trial. Defendant explained his presence with Brown on the night of the larceny by testifying that he had been sent down there by his father to search for two lost hogs which had been left there when they moved away the spring before. He explained his inquiry of the purchase of the cotton by saying that Brown owed him $35 for cotton picking, and $32.50 won from him gambling which Brown had agreed to pay him a Caney, and that he was later at Matoy because he had not been paid when at Caney. When arrested defendant had $210 in a Memphis, Tex., bank. He explained this by stating that he had $140 in the bank at Caney and $60 in the bank at Caddo which he drew before he left. He explained his flight by saying that he knew the officers were after him, but did not know upon what charge.

The conviction rested on circumstantial evidence, and in the main depended on the association of the defendant and Brown, the obvious fact that Brown alone eould not load the cotton on his wagon, the inquiry of defendant concerning the proceeds of the cotton shortly after it was sold, his statements, his appearance at Matoy on the following day, his escape and hallooing preceding the escape of Brown, his explanation of his connection with Brown, his escape, his possession of the amount of money he had at the time of his arrest, and various other incidental circumstances.

It is first argued that there is a fatal variance between the allegation of ownership of the stolen cotton and the proof. The allegations are that the cotton was owned by Nickles, Boydston, and Sewell, and the proof is that the cotton belonged, one bale to Nickles, one bale to Boydston, and one to Sewell. Section 2560, Comp. Stat. 1921, provides that when an offense involves the commission of a private injury, and is described with sufficient certainty in every respect to identify the act, an erroneous allegation as to the person injured is not material. Gunter v. State, 16 Okla. Cr. 476, 184 P. 797; Leyerle v. State, 31 Okla. Cr. 179, 237 P. 871; Carson v. State, 30 Okla. Cr. 438, 236 P. 627; Jackson et al. v. State, 31 Okla. Cr. 30, 237 P. 129.

The allegation of ownership and the proof in support of it are sufficient to satisfy the requirements of the law in this particular. There is no material variance.

It is next contended that the evidence, being circumstantial, is not sufficient to sustain the verdict. It is, of course, settled law that in a case resting entirely upon circumstantial evidence, the circumstances proven must be consistent with each other and inconsistent with any other reasonable hypothesis other than defendant’s guilt.

It is the province of the jury to determine the credibility of the witnesses and the facts proven. The evidence'of the state was controverted in the main only by the testimony of the defendant. The jury evidently disbelieved his explanation and believed the evidence offered by the state. Without further reviewing the testimony or reciting the circumstances proven, we find the evidence sufficient.

It is also argued that the trial court erred in admitting evidence of statements made after the sale of the cotton, by the codefendant Brown., in the absence of defendant. Slight evidence of a conspiracy in the first instance is all that is required, and it then becomes a question of fact whether or not the persons charged were acting together and when an acting together is shown by even slight evidence, the acts, conduct, and statements of a conspirator in furtherance of the common design are admissible against his associates so long as a conspiracy continues, and a conspiracy is generally held to continue until the crime is accomplished and the proceeds divided. Holmes v. State, 6 Okla. Cr. 542, 119 P. 430, 120 P. 300; State v. Pratt, 121 Mo. 566, 26 S. W. 556; People v. Opie, 123 Cal. 294, 55 P. 989.

It is not clear when the proceeds of the crime were divided, the evidence indicating not until after Brown and defendant escaped from M;atoy. Error upon this point is not made to appear affirmatively.

Finding no error that would warrant a reversal, the case is affirmed.

BESSEY, P. J., and DOYLE, J„ concur.


author: EDWAEDS, J. EDWARDS, J.

text:
    ED SIMPKINS v. STATE.
    No. A-5883.
    Opinion Filed April 22, 1926.
    On Rehearing Sept. 18, 1926.
    (249 Pac. 168.)

      Holcombe & Lohman, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Leon S. Hirsh, Asst. Atty. Gen., for the State.
   EDWAEDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Osage county on an information charging him with driving an automobile while intoxicated, and sentenced to pay a fine of $1,000, and to serve a term of 30 days in the state penitentiary.

The evidence is not extensive, and, briefly stated, is that, on the 22d day of March, 1925, the defendant drove an automobile on the streets of Pawhuska and along the state highway, some two miles and a half outside the city, where he was arrested. In the course of the driving he threw a bottle or part of a bottle of whisky from his car, and broke it on the pavement, and, when apprehended, had another bottle in the car. In driving the car he went at a high rate of speed, and from one side of the road to the other, almost overturned, narrowly missed colliding with other cars, and, when arrested, had turned his car crosswise in the road. The evidence is that he was intoxicated, voluble, and pugnacious.

■ Counsel for defendant have filed an able brief advancing and exhaustively presenting the following assignments of error: First, that section 3, chapter 16, Session Laws 1923, the act under which the prosecution was instituted, is unconstitutional as violative of section 57, article 5, of the Constitution; second, that said section 3 is void as being a legislative attempt to establish a rule of evidence.

Chapter 16 of the Session Laws of 1923 contains three sections; the first being a section of definition, the second providing the punishment for violation of certain of its provisions, the third making unlawful the driving by one under the influence of intoxicating liquor or by a drug addict, as follows:

“Section 3. It shall be unlawful for any person who is under the influence of intoxicating liquor, or who is a habitual user of narcotic drugs, and the having on or about one’s person or in said vehicle of said intoxicating liquor is prima facie evidence of a violation of this act, to operate or drive a motor vehicle on any highway within this state, as defined in section 1 of this act, and any person violating the provisions of this section shall be deemed guilty of a felony and shall be punished by imprisonment * * * and fine.”

The title of the act reads:

“An act regulating the driving and operating of motor vehicles, providing punishment therefor, and repealing all laws in conflict therewith, and declaring an emergency.”

Section 57, article 5, of the Constitution, in part requires that every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title. This section has been many times considered by the courts of this state. In re Fuller, 31 Okla. Cr. 289, 238 P. 512; State ex rel., etc., v. Bonner, etc., 86 Okla. 280, 208 P. 825; Holcomb v. C., R. I. & P. Ry., 27 Okla. 667, 112 P. 1023; City of Pond Creek v. Haskell et al., 21 Okla. 711, 97 P. 338; Johnson v. Grady County, 50 Okla. 188, 150 P. 497; State v. Johnson, 90 Okla. 21, 215 P. 945.

Summing up the holding of these various authorities, it may be said that the intent of the provision of the Constitution referred to, section 57, art. 5, is to prevent the union in the same act of incongruous matters, and of objects having no connection or relation; to prevent surprise in legislation by having matters' of one nature embraced where the title expresses another, or, as it is sometimes expressed, to prevent “hodge podge” or “log rolling” legislation ; to prevent surprise or fraud upon the Legislature by means of provisions in bills where the title gives no intimation, and which might therefore be overlooked, or carelessly or unintentionally adopted, and to apprise, through such publications of legislative proceedings as is usually made, of the objects of legislation that are being considered, in order that the people may have opportunity to be heard thereon by petition or protest. It is held that the title of an act may be very general, and need not specify every clause in it if they are all referable and cognate to the subject expressed. The title is sufficient if it fairly indicates the general purpose of the act.

A primary rule of construction of statutes, where their validity is attacked upon constitutional ground, requires that the court shall guard against possible usurpation of power by holding an act valid, unless clearly a violation of the constitutional inhibition.

Having in mind the importance of making safe the use of the public highways, particularly those parts that are paved or otherwise hard surfaced, the necessity of proper regulatory enactments to minimize accidents from motor vehicles is apparent. That persons who are habitual users of narcotics and are not capable of discerning and avoiding danger, or persons whose reason and action may be dulled by alcoholic or narcotic indulgence, should be forbidden to drive motor vehicles upon a congested highway requires no argument. The safety of travelers and the rights of the public require regulation. Still, if the section in question clearly violates section 57, art. 5, as contended, the fact that the legislation is necessary and beneficial should not influence the court to hold it constitutional.

It is contended that section 3, supra, is not embraced in the title, since it “prohibits” driving by the class of persons designated, while the title confers only the power of “regulating” driving; that the words, “regulate” and “prohibit” are in no sense synonymous, and the one does not embrace the other, citing: Titsworth v. State, 2 Okla. Cr. 268, 101 P. 288; Overton v. State, 7 Okla. Cr. 203, 114 P. 1132, 123 P. 175; Gastineau v. State, 7 Okla. Cr. 512, 124 P. 464; City of Emporia v. Volmer, 12 Kan. 622; Id. 12 Kan. 633; Bronson v. Oberlin, 41 Ohio St. 476, 52 Am. Rep. 90; People ex rel., etc., v. Busse, 88 N. E. 881, 240 Ill. 338; State ex rel., etc., v. McMonies, 106 N. W. 454, 75 Neb. 443; City of Butte v. Paltrovich, 75 P. 521, 30 Mont. 18, 104 Am. St. Rep. 698; Johnson v. Philadelphia, 47 So. 526, 94 Miss. 34, 19 L. R. A. (N. S.) 637, 19 Ann. Cas. 103.

An examination of these authorities discloses that they do not sustain the contention made. Most of them turn upon the authority of a municipality to suppress or prohibit, under a grant of authority to regulate, some legitimate business such as pool halls, skating rinks, or junk shops. Under a grant of power to regulate, an absolute prohibition or suppression was attempted, which was clearly in excess of the authority conferred. The word “regulate” as ordinarily used means to subject to rules or restrictions; to adjust by rule or method; to govern. The word “prohibit” means to forbid by law; to prevent. It is quite true that the word “regulate” is not synonymous with the word “prohibit.” Section 3 does not forbid the driving of motor vehicles upon the public highways. It attempts to govern such driving by a restriction in the nature of a regulation. In regulating the right to drive, there may be incidental prohibition, or the subjecting of the right to reasonable conditions and restrictions. These restrictions may properly provide that children of immature years, persons with defective eyesight, insane, persons under the influence of intoxicants, narcotic addicts, or other irresponsible or improper persons shall not operate motor vehicles on the highway. This is not prohibition, as defendant contends, but a regulation which is both germane and cognate with the regulation of the use of motor vehicles and the prescribing of penalties for violation of such regulation. It is a rule to assist in the fixing of a penalty, a mere detail not necessary to the index in the title. We are clearly of the opinion that section 3 of the act is not in violation of section 57, article 5, of the Constitution.

Considering the second assignment that section 3 is void as a legislative attempt to establish a rule of evidence, it will be observed that this section provides:

“* * * And the having on or about one’s person or in said vehicle of said intoxicating liquor is prima facie evidence of a violation of this act. * * *”

In different states statutes have been enacted which provide that, when certain facts are proven, they shall be prima facie evidence of some other fact. These acts are usually held to be a proper exercise of legislative power. Just what the constitutional limitation to this class of acts is we do not find clearly stated, but this much is apparent: That the fact or facts upon which the presumption is to rest must fairly relate to, and have a natural connection with, the main fact, and the presumption of the main fact from the fact actually proven must not be arbitrary or wholly unreasonable, unnatural, or extraordinary. 8 R. C. L. 171, note 2; St. Louis & San Francisco Ry. Co. v. Model Laundry, 42 Okla. 501, 141 P. 970; Modern Law of Evidence (Chamberlayne) § 1029; U. S. v. Ross, 92 U. S. 281, 23 L. Ed. 707; Cleveland, C., C. & I. Ry. Co. v. Wyant, 17 N. E. 118, 114 Ind. 525, 5 Am. St. Rep. 644; Ex parte Smith, 24 Okla. Cr. 415, 218 P. 708.

In considering statutes making the existence of certain facts prima facie evidence of the existence of the main fact, it is generally laid down as fundamental that one presumption cannot be based upon another presumption.

Lawson on Presumptive Evidence in his rule No. 118 states the principle thus:

“A presumption must be based upon a fact and not upon inference or upon another presumption.”

This limitation has generally been recognized by the courts. In St. Louis & San Francisco Ry. Co. v. Model Laundry, supra, it was said:

“An inference from uncertain testimonial evidence is not ordinarily, if at all, permitted to be drawn by the jury; and an inference cannot ordinarily, if at all, be predicated upon a fact the existence of which rests upon a prior inference. * * *”

In Columbian National Life Insurance Co. v. Wirthle, 73 Okla. 302, 176 P. 406, it is held:

“Facts upon which an inference may legitimately rest must [it is said] be established by direct evidence, as if they were the very facts in issue, for one presumption cannot be based upon another presumption” — citing authorities..”

See, also, Ex parte Smith, supra.

It is apparent that the presumption here created violates this limitation, since, in order to draw the conclusion of intoxication from the fact of the driver of an automobile having intoxicating liquors on his person or in said vehicle, there must first be the inference that the driver had used the intoxicants, and the further inference that he had used them to such an extent that he was under the influence thereof to the extent of intoxication. The presumption of intoxication fixed by the statute is also contrary to the fundamental requirement that the inference or presumption of intoxication arises from the possession of the person or in the vehicle of liquors must be a probable or natural hypothesis or explanation of such possession. The inference between the fact of possession and the presumption of intoxication is too remote. The fact of possession of intoxicants on the person or in the vehicle by one charged with the offense of driving an automobile upon the highway is properly admissible in evidence against an accused. Its weight or evidentiary value will depend upon the special circumstances, but certainly no conviction should be had of a person so charged upon the bare fact that he had intoxicants on his person or in the vehicle driven by him, where there is no other evidence of intoxication such as improper driving or irrational conduct.

This court in the case of Caffee v. State, 11 Okla. Cr. 485, 148 P. 680, considered fully the prima facie evidence rule as arising from the possession of intoxicating liquor. We fully adhere to the doctrine announced in that case, but the act here under consideration, we think, goes much further than the law under consideration in that case, and lays down an arbitrary presumption not having a visible connection between the fact proven and the inference to be drawn therefrom. Such presumption is beyond the power of the Legislature to establish.

The fact that the Legislature has embodied this prima facie presumption in the act does not, however, affect the law as a whole, since this provision merely goes to the manner of proving the offense defined. Striking that part of the section making the possession of intoxicating liquor on or about the person or in said vehicle prima facie evidence of intoxication, does not prevent the proof of the commission of the offense by competent evidence. In this case the evidence was otherwise ample, and its sufficiency is not questioned. The court did not instruct on the presumption, and there is no prejudicial error apparent'.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.

On Rehearing.

EDWARDS, J.

In the petition for rehearing It is contended that the punishment assessed under the facts shown is excessive, in the assessing of a penitentiary sentence in addition to a fine of $1,000, and upon a further examination of the record we are of the opinion that the judgment and sentence should be modified by omitting the punishment of 30 days’ confinement in the penitentiary, and should be affirmed as to the fine of $1,000, and the former opinion is adhered to as thus modified. Mandate forthwith.

BESSEY, P. J., and DOYLE, J., concur.


text:
    WILLIAM PENNEY v. STATE.
    No. A-5629.
    Opinion Filed Aug. 12, 1926.
    Rehearing Denied Sept. 18, 1926.
    (249 Pac. 167.)

      Cad Mathis, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Pitts-burg county on a charge of having possession of intoxicating liquor with intent to sell, was sentenced to pay a fine of $50 and serve 30 days in the county jail.

The record discloses that at the time charged three officers with a search warrant for the residence of defendant went to his house near Hartshorne and made a search of the house and- immediate premises, but did not find any intoxicants. One of the officers, following some tracks leading from the house, then went to the corn field of defendant about 300 yards from the house and found a keg which contained about 10 gallons of Choctaw beer, shown by the testimony to be intoxicating. Defendant denied any knowledge or connection with the beer in question.

The first contention is that the evidence of the finding of the beer should have been suppressed for the reason that it was obtained without any proper search warrant. This contention is not tenable for the reason that a search warrant is not necessary for the search of woodlands, pastures, or fields not within the curtilage or close proximity of the residence.

It is next argued that there was error in permitting the state to show on cross-examination that defendant had paid fines in the justice courts at Hartshorne on previous occasions for the possession of beer. The justice court had no jurisdiction of the offense inquired about and this evidence was stricken from the consideration of the jury. There is not such prejudice shown as requires a reversal.

It is also argued that the court erred in his instructions and in failing to give instructions requested by defendant. The instructions, as a whole, fairly cover the law and the requested instructions are sufficiently covered by the general charge of the court.

The contention that the evidence does not sustain the verdict is also untenable. The evidence is not voluminous, but its weight and credibility was a matter for the jury, and it is sufficient to warrant them in finding that the beer was in the possession of defendant for the purpose of violating the law.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


author: PER CURIAM.

text:
    FRANK FULLINGAME v. STATE.
    No. A-5507.
    Opinion Filed Aug. 14, 1926.
    Rehearing Denied Sept. 18, 1926.
    (249 Pac. 167.)
    J. F. Thomas, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error, Frank Fullingame, was found guilty of having unlawful possession of 80 gallons of corn whisky, with his punishment assessed at a fine of $500 and six months in the county jail.

The plaintiff in error has filed no brief in support of his appeal. An examination of the record shows that the information and the evidence supporting it were sufficient to sustain the conviction.

The contention that the evidence was obtained by an illegal search and seizure was not well founded. Liquor found in thickets and waste places remote from the residence of the accused may be seized without a search warrant and used in evidence.

The judgment of the trial court is affirmed.


text:
    BILL FULLINGAME et al. v. STATE.
    No. A-5508.
    Opinion Filed Aug. 14, 1926.
    Rehearing Denied Sept. 18, 1926.
    (249 Pac. 166.)
    J. F. Thomas, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiffs in error were found guilty of the illegal sale of whisky, with the punishment of each fixed at a fine of $250 and confinement in the county jail for 90 days.

The plaintiffs in error have filed no brief in support of this appeal. The record before us discloses that the information and the evidence supporting it were sufficient; and that the plaintiffs in error did not take the witness stand nor offer any evidence in their behalf.

The contention that the evidence was obtained by an illegal search and seizure was not well founded. Liquor found in thickets and waste places, remote from the residence of the accused, may be seized without a search warrant and used in evidence.

The motion to abate the action was likewise not well taken, under the provisions of section 2350, Comp. Stats. 1921, because the action pending in the federal court for the same offense had not then been tried.

The judgment of the trial court is affirmed.


author: DOYLE, J.

text:
    J. B. HOWE v. STATE.
    No. A-5607.
    Opinion Filed May 26, 1926.
    Rehearing Denied Sept. 18, 1926.
    (249 Pac. 166.)
    S. E. Dunn and Thomas J. Munroe, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, J. B. Howe, was convicted on an information charging that on August 16, 1924, he transported two gallons of whisky from a point unknown in the city of Tulsa to a point at or about Tenth and College avenues, in said city, and, in accordance with the verdict of the jury, he was sentenced to pay a fine of §350, and be confined in the county jail for 120 days.

The errors assigned are that the court erred in admitting incompetent testimony on the part of the state, and erred in overruling defendant’s demurrer to the evidence, and that the evidence is insufficient to support the verdict, and is contrary to law.

The undisputed evidence for the state is that two police officers observed said defendant driving an automobile on a street in Tulsa. They followed him in their car for about two miles, and arrested him, and found in the car two gallons of whisky in a jug. The defendant did not testify.

It is urged in this court that the evidence for the state was incompetent, having been obtained by a search of the defendant’s automobile without a warrant. An examination of the record discloses that no objection was made to the admission of this evidence on the trial. It follows that the objection urged is not presented by the record.

It appearing that the evidence is sufficient to support the verdict, and, finding no prejudicial error, the judgment appealed from is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


author: BESSEY, P. J.

text:
    W. I. DAVIS v. STATE.
    No. A-5596.
    Opinion Filed Sept. 18, 1926.
    (249 Pac. 164.)

      Pryor, Stokes & Carver, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   BESSEY, P. J.

The plaintiff in error, here designated the defendant, was by information charged with robbery by the use of firearms. He was found guilty as charged, with his punishment fixed by a jury at confinement in the penitentiary for a term of 25 years.

The proof on the part of the state indicates: That the defendant was the owner and keeper of a jeweler’s shop in Wewoka. That the person robbed, Nate Burn-stein, was a traveling salesman, who called upon the defendant at his shop, where he displayed a large array of valuable jewelry, diamonds, and other precious stones. That the defendant induced and procured Floyd Haney to waylay and rob this salesman on the highway leading from Wewoka to Tecumseh. That, according to a prearranged plan between the two, Haney, at the point of a pistol, forced this salesman to leave the highway at a point where there were trees and underbrush, forcing the salesman to get out of his car and place his arms about a tree, where Haney handcuffed him,. Haney then proceeded to open the cases containing the jewelry, which he removed to a cloth and which he placed in the salesman’s car and drove away, leaving the.salesman handcuffed to the tree. Haney later sent the jewelry to the defendant, who hid it on his father’s farm near Wewoka. Both were eventually apprehended and the jewelry recovered. Both made written confessions which they af-terwards repudiated, declaring, finally, that Burnstein, the salesman, was not robbed but was a party to the conspiracy, and that their object was the perpetration of a fraud on the insurance company. Haney entered a separate plea of guilty and was sentenced to the penitentiary for a term of 25 years. At the trial of this defendant Haney was brought from the penitentiary and used as a witness for the state. The state’s theory that there was indeed a robbery was well supported by the evidence, and the jury were justified in finding that the final claim of the defendant and his confederate, Haney, that they took the jewelry with Burnstein’s consent, was a fabrication. There were many incidents, facts and circumstances in the record indicating that the stories they first told, after being apprehended, as outlined in their separate written confessions, admitting their guilt, were substantially correct.

The confession made involved a criminal conspiracy between the two and contained recitals of other crimes, indicating that defendant, Davis, acted as a “fence,” and that Haney was for months an active confederate with defendant, Davis, in procuring and disposing of different kinds of stolen property. The defendant admitted making the written statement, but at the trial claimed that portions of the written statement first made were untrue.

When defendant submits himself as a witness, he may be interrogated and cross-examined for the purpose of impeachment, or otherwise, the same.as other witnesses. Creek v. State, 16 Okla. Cr. 492, 184 P. 917.

The evidence of the receipt and disposition of other stolen property was admissible for another reason. Such evidence had a tendency to show the relation and motives of the. parties concerning the particular charge at issue; that both were engaged in an illegitimate business, including the offense at issue. 8 R. C. L. 198; Wigmore, vol. 1, § 829; McLaughlin v. State, 18 Okla. Cr. 627, 197 P. 717.

Haney, on behalf of the defendant, also denied the truth of his original confession, and after calling his attention to the confession, the state used the written confession in cross-examination to impeach his oral testimony. There was no impropriety in the method of cross-examination. Where a prima facie case of criminal conspiracy is shown, a wide latitude in cross-examination is permissible. Kuhn v. Poole, 27 Okla. 534, 112 P. 962; 28 R. C. L. § 221 et seq.

It is contended that certain remarks of the court and of the county attorney were prejudicial. Some of the remarks complained of were invited, if not encouraged, by the defendant’s counsel. To some others there were no exceptions taken. Considering all that transpired at the trial, we think the court and prosecuting attorney exercised a remarkable degree of restraint and caution, and in this regard committed no prejudicial error.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ„ concur.


text:
    ALVA MERCK v. STATE.
    No. A-5624.
    Opinion Filed Sept. 18, 1926.
    (249 Pac. 163.)
    Darnell & La Rue, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Dewey county on a charge of having possession of mash with the intent to violate the prohibitory liquor laws, and his punishment fixed at confinement in the county jail for a term of 90 days and a fine of $200.

The record discloses that in February, 1925, certain officers went to a canyon near the town of Putnam, where they had previously located some mash. On going across a tract of land before they reached the place where the mash was, they discovered a still in operation, with four persons about it, whom they arrested. About an hour afterwards, defendant came down the canyon, picked up an armful of wood and walked up within 40 or 50 feet of the still, when he was accosted by the officers. Defendant then dropped the wood and told the officers that he had heard the still was in operation and came to get some whisky, and at the time informed them that he had no connection with the still, and had not been there before. Defendant testified that he lived at Putnam, about three miles from where the still was found; that on the day before his arrest Doug Evans, one of the persons arrested at the still, told him that he was going to make some liquor, and for that reason he went there. That he picked up the wood and intended to take it to the still. That he had never been there before, had no interest in the still or mash, and had never been in possession of it. Three of the persons arrested pleaded guilty and were serving time at the trial of defendant. Each testified that defendant had no interest in the still or mash, never had possession of it, and had not been there before. One of them, Doug Evans, testified that on the previous day he had informed defendant that they were going to make the whisky the day of the arrest. Defendant also offered evidence of previous good reputation.

It is first argued that the evidence was incompetent as having been obtained without a search warrant. The evidence is that the still was in a pasture a half mile or more from any residence. It has frequently been held by this court that no search warrant is necessary for the search of fields, woods, pastures, or other places not in the proximity of a residence. Rogers v. State, 28 Okla. Cr. 195, 230 P. 279; Reutlinger v. State, 29 Okla. Cr. 290, 234 P. 224; Findley v. State, 29 kla. 351, 234 P. 227; Penney v. State, 35 Okla. 151, 249 P. 167.

It is also argued that the county attorney in his closing argument was guilty of misconduct in going outside the record and making inflammatory and prejudicial statements. We have examined the argument and find that the county attorney did go outside the record by way of illustrating his argument, and his argument was calculated to inflame the minds of the jury and prejudice them against defendant.

The most serious contention, however, is that the evidence is not sufficient to sustain the verdict. There is no direct proof that defendant had possession of the mash, but the proof against him rests on the circumstances of his approaching the still and picking up. an armful of wood for the purpose of aiding in the process of distilling. This evidence is strongly persuasive, and, at the least, shows a willingness on the part of defendant to assist in the manufacture of whisky. His ■ explanation, however, is reasonable and is corroborated by those who admittedly were in possession of the still and mash. Their evidence may well be viewed with suspicion and may not be entitled to much credence, but, in view of the previous good reputation proven by defendant and the slight facts of his connection in evidence, and the preponderating evidence against his possession of the mash, we think the case is not proven to that degree of certainty required.

The case is reversed and remanded,

BESSEY, P. J., and DOYLE, J., concur.


text:
    EARNEST FORD et al. v. STATE.
    No. A-5649.
    Opinion Filed Sept. 18, 1926.
    (249 Pac. 163.)

      Sigler & Jackson, for plaintiffs in error.
    The Attorney General, for- the State.
   DOYLE, J.

The information in this case charges that in Carter county, January 18, 1925, Earnest Ford, James Appleton, and Swannie Fitzgerald did have-in their possession a certain still and mash, wort, and wash fit for distillation of corn whisky. On the trial the jury returned verdicts finding the defendant Ford guilty and fixing his punishment at a fine of $250 and confinement for 90 days in the county jail, and finding the defendant Appleton guilty and fixing his punishment at a fine of $50 and confinement for 30 days in the county jail.

From the judgments rendered on the verdicts, they appeal.

The evidence shows that John Ginn, deputy sheriff, and Edgar Key visited the Ford farm, four or five miles southeast of Ardmore, and in a log house in the timber, about half a mile from the home place, found the defendants operating a still. There was a fire under the still and a 50-gallon boiler full of mash, a barrel condenser, containing a worm, and four barrels of mash. They arrested the defendants, but permitted defendant Ford to take a wagon home to go to his mother’s home to get his car.

The defendant Ford took the stand and testified that the log house was on his mother’s place, a little over half a mile from her home; that he lived in Ardmore and drove his car to his mother’s home that day and talked to his mother about the old house, then hitched a horse to wagon and drove over to see if it could be torn down; .that she wanted to use it to build a chicken house; that the defendant Appleton was with him; that they found the other defendant and another fellow there and in a few minutes the officers appeared. He denied having any interest in the still.

The defendant Appleton testified that he was farming for the defendant Ford and went with him from Mrs. Ford’s that morning; that they found the defendants Fitzgerald and another fellow there; that the other fellow went away before the officers arrived.

On the cross-examination of the defendant Ford, he was asked if he had ever been convicted for a violation of the liquor laws and answered, “Yes, two cases pending in the Supreme Court.” Counsel moved to strike the answer, which motion was overruled and in our opinion properly overruled.

A number of exceptions are reserved to the rulings of the court in giving and refusing instructions.

We find that taken as a whole, the law of the case is fully presented in the instructions given. An examination of the record leaves no reasonable question in our minds as to the sufficiency of the evidence to support the verdict.

Finding no error prejudicial to the defendants, the judgments appealed from herein are affirmed.

BESSEY, P. J., and EDWARDS, J„ concur.


text:
    ROY McJUNKINS v. STATE.
    No. A-5799.
    Opinion Filed Sept. 18, 1926.
    (249 Pac. 158.)

      John Dillard Rutherford, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Muskogee county for manslaughter in the first degree and sentenced to serve a term of 25 years in the penitentiary. Both the defendant, the deceased, and the witness to the difficulty were negroes. The difficulty arose about as follows: Defendant, a young man, was at his home being shaved by a witness Jim Johnson, when deceased, who was about 19 years old, went into the house and opened a jar of fruit belonging to defendant’s father. Defendant on learning of this ordered deceased from the place and a quarrel took place. There is some evidence that defendant at the time cut deceased with a razor. However, that is denied. Deceased at the time had a rock in his hand and made threats against defendant. Deceased then left and went to his home, and defendant procured a pistol and in a short time went to the room of the janitor at a school building and in a few minutes deceased with a Winchester rifle came to the school building. Some quarreling took place, and defendant shot deceased three times, inflicting wounds from which he died. Defendant testified that he had started up the road and saw the defendant coming with a Winchester and went .to the room of the janitor to avoid him; that at the time he shot deceased he acted in his necessary self-defense; that deceased was attempting to shoot him with a Winchester. The state contends that defendant called deceased from the highway into the school ground where the janitor resided, that defendant and deceased had agreed to abandon their difficulty when defendant opened fire, and that deceased made no attempt to shoot but fled.

It is argued that the court erred in admitting incompetent evidence prejudicial to defendant. This assignment is directed to evidence tending to show that after the first quarrel at the house of defendant defendant probably stole the revolver with which the shooting was done. Since the defendant admitted having the revolver and admitted the shooting, we fail to see hów it was material where he procured "the revolver. The evidence was incompetent and should have been excluded.

It is also contended that the verdict is not supported by the evidence and that the punishment is excessive; It is impossible to reconcile the evidence of the state and the defendant. The various eyewitnesses to the difficulties who testified for the state had. a more extended acquaintance with the deceased than they had with defendant. The deceased was not free from fault in the first difficulty, and his procuring a Winchester and returning to the place where defendant was clearly indicates that he was willing to enter into a combat with defendant. Defendant was apparently equally willing to engage in a combat. If the evidence of the state is to be believed, the homicide was at the least manslaughter in the first degree; if that of the defendant, the homicide was justifiable or at most manslaughter in the second degree. The credibility of the witnesses and the facts proven were matters for the determination of the jury. We believe that the punishment of 25 years assessed, under the facts shown, is excessive, and the sentence is modified by reducing it to 15 years, and, as modified, the judgment is affirmed.

BESSEY, P. J., and DOYLE, J. concur.


text:
    ROY MERRITT v. STATE.
    No. A-5213.
    Opinion Filed Jan. 23, 1926.
    Rehearing Denied Sept. 18, 1926.
    (248 Pac. 881.)
    C. W. Myers and W. C. Madison, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was charged in the county court of Oklahoma county with maintaining a public nuisance, and upon trial was convicted by the jury, and his punishment fixed at a fine of $75 and confinement in the county jail for a period of 90 days, and has appealed. The assignment of error argued in the brief of the defendant is directed to the sufficiency of the evidence to sustain the verdict. The evidence shows that the defendant was running a cafe, or what purported to be a cafe, on Exchange avenue, Oklahoma City; that in the latter part of November, 1923, the police raided the cafe and found the defendant and another youth at the place; and that upon the approach of the officers the defendant called out to the other boy, who immediately jumped up, and poured some whisky in the sink. But the officers did seize some whisky and ascertain the nature of the liquid poured in the sink. The evidence was further that the place had a bad reputation, had been raided before, and about a week previous whisky had been seized at the place, the defendant apprehended, and had pleaded guilty in the police court to the unlawful possession of whisky. The defendant testified that, while he owned the cafe and was tfiere at the time, the other boy was running it for him, and denied that he knew of the whisky that was found there at the time. The other youth who was present at the time of the raid admitted that he had pleaded guilty, and sought to take the entire responsibility. Upon examination of the entire evidence, we think that the jury were fully warranted in arriving at the guilt of the defendant,, and that the evidence is ample to sustain the verdict, and no prejudicial error is apparent.

The judgment is affirmed.

BESSEY, P. J., and DOYLE. J., concur.


text:
    ROY LEWIS v. STATE.
    No. A-5675.
    Opinion Filed Sept. 25, 1926.
    (249 Pac. 359.)
    A. M. Stewart and William Williams, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   BESSEY, P. J.

This appeal was filed July 3, 1925, and no briefs have been filed in support of the appeal.

The plaintiff in error was charged with the illegal transportation of 72 two-ounce bottles of tincture of ginger, an alcoholic preparation capable of being used as a beverage.

According to the rules of this court, where an appeal is not supported by briefs, it may be assumed that the appeal has been abandoned or is without merit.

The court has examined the record and finds the information sufficiently charges an offense; that the evidence supports the charge; that the instructions of the court were fair to the plaintiff in error; and that the verdict of the jury was the minimum punishment, and should be sustained. The only errors that could be urged, as appear from the record, are certain objections and exceptions to the reception of the testimony, and the overruling of the motion of the plaintiff in error to quash the jury panel.

The court finds that there were no errors in the introduction of the testimony prejudicial to the rights of the plaintiff in error, and that the court did not abuse its discretion in refusing to overrule the motion to quash the panel, based upon a failure to strictly comply with the provisions of chapter 16, Compiled Statutes of 1921. It has been held by this court that the provisions of this chapter are directory only, and that a substantial compliance with its terms is sufficient. Middleton v. State, 16 Okla. Cr. 320, 183 P. 626; Brown v. State, 14 Okla. Cr. 609, 174 P. 1102.

As far as can be ascertained from the record, the jurors selected possessed the requisite qualifications, and the plaintiff in error otherwise was accorded a fair trial.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


author: . PER CURIAM.

text:
    JESS MITCHELL v. STATE.
    No. A-5633.
    Opinion Filed Sept. 25, 1926.
    (249 Pac. 359.)
    Percy Powers, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   . PER CURIAM.

The plaintiff in error was convicted in the county court of Harmon county on a charge of being drunk in a public place and punishment fixed at a fine of $50.

The case was tried in April, 1925, and appeal was lodged in this court in June, 1925. No briefs have been filed in support of the appeal and no appearance for oral argument made. An examination of the record discloses that the offense was properly charged and that the evidence is sufficient to sustain the judgment and sentence. No fundamental error requiring a reversal is apparent.

The case is affirmed.


text:
    MARSHALL WELLS v. STATE.
    No. A-5845.
    Opinion Filed Sept. 25, 1926.
    (249 Pac. 1118.)
    Jas. A. Embry, for plaintiff in error.

      Geo.' F. Short, Atty. Gen., for the State,
   BESSEY, P. J.

This assault and battery grew out of a dispute or ill feeling arising between some young people — girls and boys — who were on their way to church in an automobile. In some respects the prosecuting witness was the aggressor, but the record seems to indicate that the plaintiff in error was also at fault. So far as the record discloses, this plaintiff in error and the others present were persons of good repute, who had never before been in any difficulty of this nature. The punishment assessed by the jury was a fine of $100 and 30 days in jail. An examination of the record discloses no prejudicial error sufficient to reverse the case. To us it seems that the punishment was excessive, and upon recommendation of the county attorney, who instituted the prosecution, and the Attorney General, the punishment is by this court modified to a fine of $25 and the cost of prosecution, and the judgment, as so modified, is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    ROY WILLIAMS et al. v. STATE.
    No. A-5894.
    Opinion Filed Sept. 30, 1926.
    (249 Pac. 433.)

      T. H. Davidson and M. D. Hartsell, for plaintiffs in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the district court of Muskogee county on a charge of robbery with firearms and sentenced to serve a term of 31 years in the state penitentiary.

It appears from the record that on December 20, 1924, two men appeared at the store of Robert Nesbitt, at which Nesbitt and a young woman named Rhoda Bowman were working, and by pointing a pistol made them hold up their hands; they then robbed the person of Nesbitt .and rifled the cash register. One of the robbers wore a peculiar pair of glasses with divided lens, the top part colored and the lower part clear. Defendants were arrested in Muskogee on the 6th day of January following. Each had a revolver, and defendant Simpson had in his pocket a pair of glasses answering the description of those worn by one of the robbers. Both Nesbitt and Ehoda Bowman identified defendants as the persons engaged in the robbery. The defense \yas an alibi. Simpson testified; at the trial Williams did not take the stand.

Many assignments of error are set out in the petition,, some of which will be discussed. The first assignment contests the sufficiency of the evidence. We deem it unnecessary to make a more extended recital of the facts. There is no doubt but that the robbery was committed by two persons, by the use of firearms. The positive identification of the defendants as the persons committing the robbery, with the corroborating circumstances, was sufficient to take the case to the jury, and, if the trial was otherwise without prejudicial error, sufficient to sustain the judgment.

The evidence of alibi presented a question of fact for the determination of the jury. The contention of defendants on this assignment cannot be sustained.

The admission of incompetent evidence is next complained of, and the argument is directed to several objections made during the course of the trial, one of which is that the arresting officers were permitted to testify that they found a pistol on the persons of each of defendants when arrested and the circumstances of the arrest. It is claimed that the arrest was illegal; the officers not having a warrant, and no offense at the time having been committed or attempted in their presence, and that defendants were- not suspected of the commis- aion of a felony. The evidence discloses that the arrest was made in response to a call. The purport of the call or the information it contained was not in evidence. A felony had been committed; whether or not there was reasonable cause for believing the defendants to have committed it is not clear. This was not of any particular importance, and no material prejudice could have followed. It is also urged that the questioning by the county attorney of defendant Simpson as to whether his co-defendant Williams was in the penitentiary at the time Simpson was an inmate is error. This was not an attack upon the character of the defendant Williams, but was admissible as tending to show the previous association, or acquaintance of the defendants. Complaint is also made of the admission in evidence of a hat found at the residence of Jack Culver, at whose place Simpson testified he had been staying, and which was similar to a hat worn by Simpson at the time of the robbery. Defendants urge that this was procured by an unlawful search. This hat was not procured at the place where the defendants resided, but at the home of another person. The immunity from an unreasonable search is personal, and has application only to the invasion of the residence of an accused and not to the premises of some third person. This has frequently been decided by this and other courts. There was no error in the admission of this evidence.

. It is also argued that in the course of the trial the county attorney was guilty of misconduct in the examination of the jury and witnesses, and in the argument a number of instances of misconduct are presented. The witness Beck was used by the defense to prove an alibi. He testified defendants were residing at his premises on the day of the robbery and were at his house at that time; he fixed the time by the fact that a small mare of his fell on the ice that day and defendants helped him treat her. Defendants calling this witness, showed that he was subpoenaed as a state witness. He was not used by the state. The inference naturally followed that his evidence would be .unfavorable. 'On cross-examination he stated he had told no person what his testimony would be, nobody had asked him, and had talked with nobody. He was then asked in reference to talks about the case to different persons, including a talk with the county attorney, which he admitted. The county attorney developed that he had talked with the witness, and in substance the witness admitted that he did not disclose the facts truthfully. In the course of this cross-examination, the county attorney several times asked the witness why he had lied, or if he did not know he had. lied about it, as the following will illustrate :

“* * * By Mr. Lockowitz: Q. Then you lied when you told the jury a while ago you hadn’t talked about the case?
■ “Mr. Hartsell: Object to that as improper cross-examination.
“The Court: Go ahead.
“Mr. Hartsell: That is our ground of objections.
“The Court: Go ahead.
“Mr. Hartsell: We except.
“By Mr. Lockowitz: Q. Did you lie when you said that? A. You asked me between the hours of 5 and 7. # ‡ ❖
“Q. You say just because you said it was me that is the reason you lied to this court?
“Mr. Hartsell: We object, incompetent, irrelevant, and immaterial, not proper cross-examination.
“The Court: Overruled.
“Mr. Hartsell: Exception.
“By Mr. Lockowitz: Q. Don’t you know you lied to me before and that is the reason I didn’t put you on the witness stand before, because you lied to me?
“Mr. Hartsell: We object to the brow-beating manner in examining the witness.
“The Court: The court has ruled on it.
“Mr. Hartsell: And is incompetent, irrelevant, and immaterial.
“The Court: The court has ruled on it, as I have heretofore told you.
“Mr. Hartsell: We except.
“By Mr. Lockowitz: Q. Then why did you lie?
“Mr. Hartzell: We object, incompetent, irrelevant, and immaterial, and improper.
“The Court: Overruled.
“Mr. Hartzell: Exception.
“By Mr. Lockowitz: Q. Why didn’t you tell the truth —you lied about this other statement on my account? A. Because you were prosecuting attorney, and I was trying to give'you some information.
“Q. You were trying to lie to me? A. You can take it the way you want to. * * *
“Q. I will ask you if you didn’t testify that Ves Car-mack and Paul Davis tried to get some information and you wouldn’t give it to them? A. Yes, sir.
“Q. Now, you say you did tell them they left that night about 10 o’clock, and you lied, didn’t you?
“Mr. Hartsell: Object, incompetent, irrelevant, and immaterial, not proper cross-examination, and we object to the brow-beating method of the county attorney.
“The Court:, Overruled.
“Mr. Hartsell: Exceptions. * * *”

We condemn the tone of the cross-examination; it was misconduct. Prochneau v. State, 32 Okla. Cr. 210, 240 P. 1090. Whether or not the witness testified falsely was for the jury to say. There is undoubtedly a great deal of perjury in the courts, and a vigorous and searching cross-examination should be allowed in order that it may be exposed or broken down. A proper sense of dignity, however. requires that the proceedings in the trial of a criminal case shall be conducted in an orderly and courteous manner. This savors too much of third degree methods. The evidence of guilt must be overwhelming before we can affirm a conviction obtained in this manner. A prosecuting officer must not indulge in such tactics. The trial court should not permit it.

The record shows that, in the examination of the jury, the county attorney asked, “Would the fact that defendants did not take the stand be taken into consideration by any of the members of the jury?” to which objections and exceptions were taken. Section 2698, Comp. Stat. 1921, forbids mentioning on the trial the failure of a defendant to testify, and provides that, if commented on by counsel, it shall be ground for a new trial. This court has many times considered this statute. Ward v. Territory, 8 Okla. 12, 56 P. 704; Dorsett v. State, 16 Okla. Cr. 65, 180 P. 557; Dumas v. State, 19 Okla. Cr. 413, 201 P. 820; Sturgis v. State, 2 Okla. Cr. 362, 102 P. 57. The trial had commenced when the jury were called into the box for examination. Ward v. Territory, supra. Certainly the effect would be the same if called to the attention of the jury at that time as later in the trial. This was a “mention on the trial” but not a “comment.” That part of the statute forbidding comment has been held mandatory and not a matter of discretion with the trial court. Brown v. State, 3 Okla. Cr. 442, 106 P. 808; Kelley v. State, 6 Okla. Cr. 175, 117 P. 887; Sturgis v. State, supra. Since the enactment of our harmless error statute, section 2822, Comp. Stat. 1921, those two sections should be construed together, and, if it is apparent from the record that a defendant is guilty and the jury could have arrived at no other verdict the mere fact of comment would not require a reversal. We do not understand why the question' was propounded by the county attorney or permitted by the court.

Error is next urged in comments of the trial court. It is claimed that in one instance the court in the presence of the jury threatened to fine counsel for defendant. This is hardly borne out by the record. The following appears:

“Mr. Lockowitz: Q. I will ask you whether or not—
“Mr. Hartsell: I think he should answer the question (referring to previous question). You can answer the question, Mr. Beck, he’s not half so bad as he—
“The Court: Wait a minute. Somebody is going to get separated from some of their money in a minute. * * *”

The counsel for defendants state that their interruption was meant to be jocular, and that he started to say: “You can answer the question, Mr. Beck. He is not half so bad as he looks.” The interruption of counsel was improper and merited a rebuke. We gather that the remark of the court was also jocular and not a threat to impose a fine. The contention is without merit.

Under the same head, in another part of the record, in cross-examining the witness Rhoda Bowman, the following occurred:

“By Mr. Davidson: Q. Which one of the men got the money? A. The smaller one, the one with the cap on.
“Q. Have his gun in his hand at that time? A. I couldn’t say; I didn't see his gun at that time.
“Q. Now, immediately after this robbery occurred, you reported it, didn’t you? A. A man came in the store after they left, it was reported after—
“The Court: You cannot be impolite to this witness.
“Mr. Davidson: We except to the remark of the court.
“The Court: The defendant excepts. Let the record show I consider his attitude impolite to the witness.
“Mr. Davidson: We except. * * *”

If there was any impropriety in the conduct or question of counsel, it must have been in his manner, for we do not perceive anything in the record to call for the rebuke which is implied in the language of the court.

Various other assignments are argued. They are not likely to arise upon another trial. It would serve no purpose to consider them in detail.

The case is reversed and remanded.

The warden of the penitentiary will surrender the defendants to the sheriff of Muskogee county, who will hold them in custody until they shall be discharged, of their custody changed by due course of law.

BES'SEY, P. J., and DOYLE, J., concur.


author: EDWAKDS, J.

text:
    SAMUEL JACOBS v. STATE.
    No. A-5528.
    Opinion Filed Oct. 2, 1926.
    (249 Pac. 435.)
    Earl J. Smith, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWAKDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Kay county on a charge of grand larceny, and sentenced to serve a term of four years in the state penitentiary.

The record discloses that on the 25th day of October, 1923, a store at Ponca City was entered and fur garments of a value of about $8,000 stolen. A few days later defendant had conveyed to the depot at Ponca City a trunk and a box. The trunk was sent by express to Denver, Colo., and a detective working on the case wired the officers there. A few days later this trunk, containing most of the property stolen, together with a hand bag and some personal belongings of defendant, were recovered by the police officers at a hotel in Denver. An officer from Ponca City went to Denver and recovered the property, and a day or two later defendant was arrested in Kay county. When arrested, he at first stated that he had been at Tonkawa, but later admitted that he had been at Denver and claimed his traveling bag and personal effects. He made some claim of having purchased the stolen property with money procured from two other persons whose names he did not know, and said he was out about $800 on the property. At Denver he had registered under a fictitious name. Defendant did not take the stand and offered no testimony in his defense.

It is argued that the court erred in admitting in evidence the property recovered at Denver because it was not shown to have been recovered by the officers at Denver on a valid search warrant. There was no evidence as to the manner in which it was recovered, whether with or without a search warrant, or whether in the private room of the defendant or elsewhere. Error is not presumed, but must be made to affirmatively appear. The police officers at Denver, upon the information furnished them, would have been warranted in arresting defendant if he had been found, upon reasonable cause for believing him guilty of a felony.

It is also argued that the court erred in refusing defendant’s three requests for special instructions. The first informs the jury that the mere possession of recently stolen property is not within itself sufficient to convict. This is sufficiently and correctly covered by the court’s charge. The second has reference to the admissibility in evidence of statements made by defendant, and is incorrect, and was properly refused. The admissibility of evidence is a matter for the court and not the jury. The third is, in substance, that the jury cannot convict the defendant unless they find him guilty, or in complicity with the original taking, and that any subsequent connection with the property, whether in good or bad faith, would not constitute larceny. The substance of this instruction is fully covered by the court’s charge. There is no merit in the contentions made, and no error prejudicial to the defendant is apparent.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    A. A. DAVIS v. STATE.
    No. A-5373.
    Opinion Filed Oct 2, 1926.
    (249 Pac. 431.)
    Thomas Norman, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error, A. A. Davis, was convicted, and, in accordance with the verdict of the: jury, was sentenced to be confined in the county jail for 30 days and pay a fine of $50 on an information which charged that in Carter county, August 17, 1924, he did have in his possession certain intoxicating liquor, to wit, eight quarts of Choctaw beer, with the unlawful intent to sell the same.

From the judgment he appeals, and assigns as error that the verdict is contrary to the law and the evidence in that there is no evidence that the liquid found in the possession of the defendant was intoxicating liquor.

John W. Ginn, deputy sheriff, testified that he saw the defendant at his home, and while there a car came up with a man and woman in it; that defendant walked up to the car and said something, and then went east into some brush, returning with 2 bottles of what the witness called Choctaw beer; that he asked the defendant where he got it, and defendant showed him a tub containing 5 quarts; that witness took a quart bottle from the defendant, and, returning to town, left the bottle in the county jail, and the next morning he took the same to Dr. Bullock for analysis.

Dr. J. J. Bullock testified that he was connected with the Hardy Sanitarium and was equipped for analyzing liquid for alcoholic contents. His further testimony is as follows:

“Q. I will hand you a little slip and ask you to explain to the jury what it is. A. That is a report sent to the county attorney regarding the analysis of a sample of Choc beer which was handed to me. The analysis showed 7 per cent, alcohol.
“Q. What is the number of the case, Doctor? A. 4888.
“Q. Who named? A. A. A. Davis.”

The state rested, and the defendant moved for a directed verdict in the form of a demurrer to the evidence, which was overruled. The defendant did not testify.

There was, we think, sufficient évidence to warrant submission of the case to the jury, both as to the intent and the alcoholic content.

The judgment of the lower court is accordingly affirmed.


text:
    RAY TERRELL v. STATE.
    No. A-5923.
    Opinion Filed Oct. 7, 1926.
    (249 Pac. 744.)
    Maben & Joyce, for plaintiff in error.
    George F. Short, Atty. Gen., Charles Hill Johns, Asst. Atty. Gen., and W. Lee Johnson, Co. Atty., for the State.
   DOYLE, J.

Plaintiff in error, Ray Terrell, was convicted on an information charging that in Pawnee county, February 4, 1925, he did burglariously enter the building of the First State Bank of Maramec, and did feloniously, by the use of explosives, crack and open the safe of said bank, and in accordance with the verdict of the jury he was on June 1, 1925, by the judgment of said court sentenced to imprisonment in the penitentiary at McAlester for a term of 20 years.

From the judgment an appeal was perfected by filing in this court on November 24, 1925, a petition in error with case-made.

Counsel for the state have filed a motion to dismiss the appeal, in part as follows:

“That said plaintiff in error, Ray Terrell, is a fugitive from justice at this time. That the said Ray Terrell, plaintiff in error in this cause, was convicted of burglary with explosives in Pawnee county. That the said Ray Terrell was confined in the state penitentiary at McAles-ter under valid court process in order to hold him for safekeeping pending his trial upon a charge of conjoint robbery now pending in Pawnee county. That the said Ray Terrell was released from the state penitentiary at McAlester under an order of the district court of Pawnee county so that the said Ray Terrell could be transported to Ardmore, Carter county, Okla., to be tried in said Carter county upon a charge of burglary upon Monday, September 27, 1926. The said Ray Terrell was released from the state penitentiary at McAlester upon Friday, September 24th, and transported to Ardmore, Okla., and confined in the county jail at Ardmore. That said Ray Terrell escaped from the county jail of Ardmore by means of firearms used in overcoming the county jailer, and the said Ray Terrell having overcome the jailer bound and tied said jailer so that the said Ray Terrell could perfect his and other persons’ escape. That the said Ray Terrell was to be tried upon the charge of conjoint robbery in Pawnee county upon October 11, 1926.
“For further grounds of this motion to dismiss, we respectfully invite this court’s attention to the record of Ray Terrell, which is substantially as follows:
“That heretofore, and during the last five years, this defendant served a term of imprisonment in the Oklahoma state penitentiary at McAlester on a charge of grand larceny; that he is now a fugitive from justice from the state of Arkansas, having escaped from the Arkansas state penitentiary at Little Rock, where he was serving a ten-year sentence for grand larceny; that, during the past five or six years all efforts to keep the defendant confined in jails to await trial on many charges have been in vain, because of the fact of his numerous escapes from said jails; that about two years ago he escaped from the Pawnee county jail by the use of firearms; that prior to that time he had escaped from the Payne county jail and from the Lincoln county jail and the Rogers county jail; that immediately prior to his trial in the district court of Pawnee county upon this case, and after his escape from the Pawnee county jail, he fled to the state of New Mexico, and was only recaptured • after having shot an officer of that state; that during the pendency of this appeal he left the state of Oklahoma, and was recaptured at Wichita Falls, Tex., and now stands charged with the commission of two different burglaries alleged to have been committed in Carter county during the time this appeal has been pending in this court; that the state of Kansas holds two felony warrants for this defendant, charging bank burglary in that state; that the state of New Mexico has a charge of attempt to kill pending against this defendant; that the state of Texas has numerous cases of burglary pending against this defendant.’*

—which motion is supported by the affidavit of W. Lee Johnson, county attorney, of Pawnee county.

It has been repeatedly said by this court that it will not consider an appeal unless the plaintiff in error is where, he can be made to respond to any order or decision which may be entered or rendered in the case, and, when the plaintiff In error becomes a fugitive from justice pending the determination of his appeal, this court will on proper motion dismiss the appeal. Vann v. State, 10 Okla. Cr. 644, 133 P. 1197; Williams v. State, 11 Okla. Cr. 35, 141 P. 453; Glover v. State, 12 Okla. Cr. 287, 155 P. 199.

We are of the opinion that plaintiff in error has waived the right to have his appeal in this cause considered and determined.

The appeal of plaintiff in error is accordingly dismissed. Mandate forthwith.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    W. M. BARDSHER v. STATE.
    No. A-5442.
    Opinion Filed Oct. 7, 1929.
    (249 Pac. 437.)

      L. M. Gensman, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The plaintiff in error was convicted and in accordance with the verdict of the jury sentenced to pay a fine of $50 and be confined for 30 days in the county jail on an information charging that in Comanche county, August 4, 1924—

“He did willfully, unlawfully have and keep in his possession and knowingly permit other persons, to informant unknown, to keep and have in possession upon the premises under the ownership and control of said defendant, a still worm and still, without having registered the said still worm and still as provided by law.”

He has appealed from such conviction, and assigns as error that a part of the trial was conducted in his absence, to which exception was duly taken.

The record shows that after the jury was impaneled and sworn the defendant’s counsel asked the court to stay the proceedings because the defendant was absent, stating that he had gone out to get his witnesses under instruction of the court, and that counsel was unable to proceed without his presence. The court stated:

“Let the state go ahead and put its testimony on. Proceed with the case, Mr. County Attorney, if you are ready.
“Mr. Gensman: To which action of the court the defendant objects and excepts.”

Section 2641, Coinp. St. 1921, provides:

“If the indictment or information is for a felony, the defendant must be personally present at the trial, but if for a misdemeanor not punishable by imprisonment, the trial may be had in the absence of the defendant.”

In Stuart v. State, 6 Okla. Cr. 27, 115 P. 1026, it is said:

“The only reasonable interpretation of this section of the statute is that a person can be tried upon a misdemeanor charge, the punishment for which was a fine only, in his absence; but if such a charge is one the punishment or part of the punishment for which is imprisonment, the presence of the person charged at the_ trial is necessary, and a trial had in his absence is a nullity.”

In the recent case of Cole v. State, 35 Okla. Cr. 50, 248 P. 347, it is held that:

“In a misdemeanor case where the punishment may be imprisonment or fine and imprisonment, the accused must be personally present at the trial or must personally have waived the right to be present.”

It follows that the conviction and judgment must be reversed.

No good purpose could be served by discussion of other questions raised. For the error indicated, the judgment is reversed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    NEWT WHITFORD v. STATE.
    No. A-5480.
    Opinion Filed Oct. 7, 1926.
    (249 Pac. 430.)

      Matson & Mathers, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

Appellant, Newt Whitford, was convicted upon a charge of having possession of intoxicating liquor with unlawful intent to sell the same, and in accordance with the verdict of the jury was sentenced to pay a fine of $250 and be confined in the county jail for 90 days.

To reverse the judgment appellant assigns as error the insufficiency of the affidavit upon which the search warrant was issued and the invalidity of the search under which all the evidence offered by the state tending to prove the guilt of appellant was obtained; said warrant having issued upon the affidavit made before the police judge of the municipal court of the city of Ard-more, and not by any court or officers authorized to issue search warrants under the enforcement act. Section 7009, C. S. 1921. Under said section the authority to issue search warrants is specifically delegated to judges of courts of record and justices of the peace.

It was shown by the first witness for the state, that he acted under the authority of a search warrant issued by I. H. Best, police judge of the municipal court of the city of Ardmore. The evidence for the state was introduced against proper objection based on the invalidity of the search warrant. At the close of the evidence for the state the court overruled a motion to direct a verdict of acquittal.

It has been repeatedly held by this court that, where a search warrant in a liquor case is issued by a police judge, it is a nullity, and evidence obtained by it should be excluded on timely objection. Terry v. State, 31 Okla. Cr. 91, 237 P. 465; Reinhart v. State, 32 Okla. Cr. 109, 240 P. 139; Cook v. State, 33 Okla. Cr. 54, 242 P. 277; Gardner v. State, 34 Okla. Cr. 183, 245 P. 911.

The first witness for the state further testified that with another officer he went to the defendant’s home on West Main street, in Ardmore. The defendant’s wife was there, and telephoned for him; that when he came witness showed him the search warrant, and told him they were going to make a search and the defendant said, “All right, go ahead.” We do not think that the defendant by this remark waived his constitutional rights.

In Smith v. State, 34 Okla. Cr. 434, 246 P. 1109, we held that—

“A statement bj defendant when officers showed her a liquor search warrant to ‘go ahead and search’ did not waive defendant’s constitutional rights, where the search warrant was unlawfully issued, since it is not to be construed as an invitation to search the premises, but rather as a statement of the intention not to resist search under the warrant.”

In the opinion it is said:

“The right of the citizen to occupy and enjoy his home, however mean or humble, free from arbitrary invasion and search, has for centuries been protected by every court in the English speaking world from Magna Charta down to the present, and is embodied in every bill of rights defining the limits of governmental power in our own republic.
“The mere fact that a man is an officer, whether of high or low degree, gives him no more right than is possessed by the ordinary private citizen to enter and search the private premises of another for evidence of crime without a legal warrant procured for that purpose.”

It follows from what has been said that the evidence challenged in this case was taken by the officers by unlawful search and seizure, and contrary to section 30, Bill of Rights.

The judgment of the lower court is accordingly reversed with directions to dismiss.

BESSEY, P. J., and EDWARDS, j., concur.


text:
    FRANK McNEME v. STATE.
    No. A-5795.
    Opinion Filed Oct. 9, 1926.
    (249 Pac. 1117.)
    N. E. Ticer, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   . PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county on a charge of disturbing religious worship, and sentenced to pay a fine of $50 and to serve 60 days in the county jail. The record discloses that, at the time charged in the information, a congregation of the Holiness Church was conducting a meeting at Bryant schoolhouse. The congregation was disturbed by audible talking in the rear of the building to such an extent that the services were shortened and the congregation dismissed. Two or three of the offenders pleaded guilty, and were fined and sentenced to serve a term of 30 days in the county jail. Defendant offered several witnesses to the effect that other persons created the disturbance, but did not take the stand and testify. The evidence sustains the charge. No error is made to affirmatively appear. The appeal is without merit. The case is affirmed.


text:
    W. H. BREWER v. STATE.
    No. A-5768.
    Opinion Filed Oct. 9, 1926.
    (249 Pac. 1116.)
    E. Y. Rakestraw, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kiowa county on a charge of obstructing an officer, and sentenced to pay a fine of $50 and to be confined in the county jail for a term of six months. In this case the jury returned its verdict on April 21, 1925. The motion for a new trial was overruled and judgment rendered on April 25, 1925. Upon application, the defendant was allowed 90 days in which to make and serve case-made for appeal, 10 days to suggest amendments, same to be settled and signed on 5 days’ notice. The case-made was served on the county attorney July 22, 1925, was settled by the trial judge on August 21, 1925, and was filed in this court on August 24, 1925, 121 days after the judgment was rendered. Section 2808, Comp. Stat. 1921, in so far as it applies to misdemeanors is: “In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered: Provided, however, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days. * * *” The longest period of time allowed by the statute for perfecting an appeal in a misdemeanor case is 120 days. This court has no jurisdiction to entertain the appeal. The appeal is dismissed for want of jurisdiction.


text:
    LEWIS BREWER v. STATE.
    No. A-5769.
    Opinion Filed Oct. 9, 1926.
    (249 Pac. 1116.)
    E. Y. Rakestraw, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Kiowa county on a charge of obstructing an officer in the discharge of his duty, and his punishment assessed at a fine of $250 and confinement ,in the county jail for a period of 6 months. This is a companion case to the Case of W. H. Brewer, 35 Okla. Cr. 192, 249 P. 1116, just decided. For the reasons therein assigned, which apply equally here, the appeal is dismissed.


text:
    M. R. RUSSELL v. STATE.
    No. A-5539.
    Opinion Filed Oct. 9, 1926.
    (249 Pac. 743.)
    Thos. Norman, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Carter county upon a charge of having possession of intoxicating liquor, and, having previously been convicted of a violation of the prohibitory liquor law, was sentenced to pay a fine of $50, and to serve two years in the state penitentiary. The case was tried in January, 1925. The appeal was lodged in this court April 15, 1925. Extensions of time to file briefs were made, but the last extension has long since expired, and no briefs have been filed, nor was there any appearance for oral argument at the time the case was submitted.

Where an appeal is prosecuted to this court upon conviction for a felony, and no briefs in support of the appeal filed, and no appearance for oral argument made, this court will not search the record to discover some error upon which to predicate a reversal, but will examine the record for jurisdictional or fundamental errors and if none appear, and the evidence reasonably supports the verdict, the judgment will be affirmed. We have done this, and find that the evidence supports the verdict, and no jurisdictional or fundamental error is apparent. The judgment on a former conviction, relied upon under the provisions of section 6991, Comp. Stat. 1921, making the offense charged a felony, appears not to have been formally made in the usual journal entry of judgment, but there is abundant evidence of a conviction on a plea of guilty that the judgment was imposed and the fine assessed paid by the defendant, and the imprisonment provided thereby served by him in the county jail of Carter county.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    BEECHER MERRITT v. STATE.
    No. A-6370.
    Opinion Filed Oct. 9, 1926.
    (249 Pac. 436.)

      Harry Seaton and J. H. Langley, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error was convicted in the district court of Mayes county on a charge of assault with a dangerous weapon and sentenced to serve a term of two years in the state penitentiary. The verdict was returned on March 5, 1926. The motion for a new trial was overruled, and judgment and sentence entered on March 15, 1926-, The record for appeal was lodged in this court on September 13, 1926. The state has' filed motion to dismiss the attempted appeal for the reason that no notice of appeal was served upon the clerk of the court and the county attorney as required by section 2809, Comp. Stat. 1921, or by posting notice in case such officers were not found in the county. The only notice given was oral notice in open court at the time the motion for new trial was overruled, evidently in an attempt to give the notice provided for in section 782, Comp. Stat. 1921 (chapter 219, Session Laws 1917). This latter section does not repeal section 2809, •supra, but has application solely to appeals in civil causes. Burgess v. State, 18 Okla. Cr. 574, 197 P. 173.

For the reasons stated, the motion of the Attorney General is sustained, and the appeal is hereby dismissed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    WILLIAM PARKER v. STATE.
    No. A-5781.
    Opinion Filed Oct. 9, 1926.
    (249 Pac. 432.)
    J. Q. A. Harrod, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of illegally conveying intoxicating liquor and his punishment fixed at a fine of $200 and confinement in the county jail for a term of six months.

From the record, it appears that on the date charged officers of Oklahoma county intercepted defendant and one Rush McGaffey in an automobile. The automobile was closed, and therein, wrapped úp and concealed, was a five-gallon jug of whisky. The officers had no warrant or search warrant and did not know that the defendant was in the commission of a misdemeanor until the car was stopped and searched. McGaffey was an old offender and had been several times convicted of the violation of the liquor law. Before the taking of any testimony, defendant moved to exclude the evidence obtained by the officers as having been obtained by an illegal search. The search was illegal, and the evidence should have been excluded. Article 2, § 30, State Constitution; Keith v. State, 30 Okla. Cr. 168, 235 P. 631; Foster v. State, 25 Okla. Cr. 36, 218 P. 898.

It may not be amiss to point out that since McGaf-fey, the co-defendant, was a well known “bootlegger,” having been several times convicted, that the violation of the liquor law by him was a felony under provisions of section 6991, Comp. Stat. 1921. A legal arrest of him might have been made if the facts warranted, if the officers had reasonable cause to believe he was engaged in transporting whisky, under the provisions of the second, third, and fourth subdivisions of section 2471, or the provisions of section 2473, Comp. Stat. 1921. This was not done, however. The arrest was not predicated upon the theory that the officers had reasonable cause for believing a felony to have been committed. The prosecution is for a misdemeanor. If the arrest had been for a felony, upon reasonable cause, the search of the person of the defendants and their immediate surroundings would have been legal. But since the arrest was for a misdemeanor and no offense was committed in the presence of the officers as required by law to authorize an arrest, the arrest and search was illegal.

The case is reversed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    J. K. HENTHORNE v. STATE.
    No. A-5783.
    Opinion Filed Oct. 9, 1926.
    (249 Pac. 429.)

      Wright, Gill & Ramsdale, for plaintiff: in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of illegally transporting whisky, and sentenced to pay a fine of $300, and to be confined in the county jail for a term of 90 days.

The information charges that defendant transported whisky from a house, No. 2314 West Grand, to a point about 50 yards north of said house. Upon the trial it developed that the house number was an error, and the court permitted an amendment to conform to the proof that the house was in fact 2317 West Grand. The evidence is that certain officers, in the nighttime, went to the place which was occupied by some persons other than defendant. Defendant had a truck in the street not far from the house, and one of the officers testified:

“Q. Where was he when you first saw him? A. When I first saw him he was between his car and the house, coming from the house to his car.
“Q. Was he walking along? A. Not walking very fast.
“Q. What did you do ? A. I asked him what he was doing, and he throwed out a half pint out of his pocket, and then I went through him.
“Q. What did you find then? A. Two or three half pints on his person. * * *
“Q. About how far from the house, 2317 West Grand avenue, was the defendant when you took the whisky off of him? It is alleged in the information that it was about 50 yards north of the house. A. It was right at that, but I wouldn’t say it was exactly there, but I think that is about right.
“Q. Had he got out of the yard, out on the road? A. Yes, sir.”

On cross-examination he testified:

“Q. How far from the house was he when you first saw him? A. About 50 feet when I first saw him.
“Q. How many steps did he take before you stopped him? A. It would be a pretty hard proposition to say how many steps a man takes at night.
“Q. About how far had he traveled before you stopped him? A. I would judge about 50 feet, probably farther.
“Q. He hadn’t got to his truck? A. No, but he was getting right close to his truck. * * *”

There was evidence from other of the officers indicating that the distance might have been less than that testified to by the witness whose evidence is quoted.

The defendant testified:

“* * * Q. Do you recall the time you were arrested in this case? A. I kind of remember.
“Q. Did you come out of that house that day? A. I think I did.
“Q. Where were you arrested? A. I think I was arrested right between the house and the road.
“Q. Why is it you do not distinctly remember the transaction on that occasion? A. I Was slightly intoxicated.
“Q. Do you recall at this time whether you had any liquor on you at that time? A. Not that I know of.
“Q. If you got any, you must have got it out of that house. A. Yes, sir.”

It is contended that the court erred in permitting an amendment of the information. This contention cannot be sustained. No other or different offense than that charged in the information was proven, but a mere wrong house description shown. Under our liberal law it was proper to permit an amendment to correct the description of the house. No prejudice to the defendant could have resulted. Section 2512, Comp. Stat. 1921; Howard v. State, 2 Okla. Cr. 200, 101 P. 131; Davis v. State, 4 Okla. Cr. 508, 113 P. 220.

It is next urged that there is no proof of a conveyance from one place to another, but that the conveyance was not completed when defendant was intercepted; that is, that the house and premises constitute but one place, and the conveyance had not proceeded from one place to another place, citing De Graff v. State, 2 Okla. Cr. 519, 103 P. 538; Brown v. State, 18 Okla. Cr. 509, 196 P. 967; Boswell v. State, 26 Okla. Cr. 193, 223 P. 208; Sherman v. State, 28 Okla. Cr. 117, 228 P. 1110; Martin v. State, 29 Okla. Cr. 136, 232 P. 966; Combest v. State, 32 Okla. Cr. 47, 239 P. 936.

In order to constitute the offense, it is necessary, under the provisions of section- 7002, Comp. Stat. 1921, that the conveyance shall be from one place to another place. Without reviewing in detail the cases cited, none of them go to the extent of holding that a stranger upon the premises of another who procures whisky at such place and conveys it to the street abutting has not made a sufficient conveyance to bring himself within the statute. The word “place” has a very wide range of meaning, depending upon the connection in which the word is used. 6 Words and Phrases, p. 5388. The purpose of the prohibitory statute is to prevent the making, selling, possessing, handling, or in any manner dealing with intoxicating liquor, and the phraseology and terms of the statute are to be construed with this purpose in mind, and not in a restricted sense. The conveying of the whis-ky as charged from the building upon the lot described to the street upon which it abuts is a conveyance from one place to another place within the meaning of section 7002, supra.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    Ex parte R. J. CHANDLER.
    No. A-6380.
    Opinion Filed Oct. 12, 1926.
    (249 Pac. 1116.)
    Cress & Tebbe, for petitioner.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for respondent.
   PER CURIAM.

This petition for writ of habeas corpus, filed on behalf of petitioner, R. J. Chandler, was presented to the presiding judge, alleging that petitioner was unlawfully restrained of his liberty by Frank Crow, and held under a warrant issued by the Governor for his return to the state of Kansas, upon a requisition from the Governor of that state, alleging that he is a fugitive from justice. Accompanying the requisition was a certified copy of a complaint filed in the city court of Wichita, Sedgwick county, by the county attorney, wherein petitioner is charged with the crime of child desertion, alleged to have been committed on the 2d day of July, 1926, and further alleging that said warrant is void by reason of the fact that said petitioner was not present in the state of Kansas on the date alleged, and that he is not a fugitive from justice. The writ of habeas corpus issued, returnable before the court on September 20, 192SJ, at which time all the parties appeared. Upon the hearing the writ was denied, following the holding of this court in the cases of In re Gundy, 30 Okla. Cr. 39, 236 P. 440, and Ex parte Baker, 33 Okla. Cr. 413, 244 P. 459. Upon the finding that petitioner was a fugitive from justice from the demanding state, and that his arrest and detention was not in any way illegal, petitioner was remanded to the custody of the respondent.


text:
    Ex parte LAURENCE S. FLANNERY.
    No. A-6400.
    Opinion Filed Oct. 12, 1926.
    (249 Pac. 1117.)
    S. P. Freeling, for petitioner.
    The Attorney General and Ted B. Hill, for respondent.
   PER CURIAM.

The petition filed Oct. 4, 1926, on behalf of Laurence S. Flannery, who had been arrested by Ben Dancy, sheriff of Oklahoma county, and held under a warrant issued by the Governor for his return to the state of Illinois upon a requisition from the Governor of that state, alleging that he is a fugitive from justice, having been charged by three indictments returned by the grand jury of Macon county, Ill., with the larceny of $3,500, the property of one Mary E. Brennen. It is further alleged that said indictments do not state facts sufficient to constitute an offense against any law of the state of Illinois, and that petitioner is not a fugitive from justice. The writ of habeas corpus issued, returnable before the court October 7th, at which time all the parties appeared. The respondent filed a motion to' quash the writ on the ground that the petition upon which the said writ was issued does not state facts sufficient to entitle petitioner to the relief prayed for, which motion was by counsel for petitioner confessed, and by order of the court sustained, the writ discharged, and petitioner remanded to the custody of Ted B. Hill, agent for the state of Illinois.


text:
    CHARLES SAUNDERS v. STATE.
    No. A-5533.
    Opinion Filed Oct. 16, 1926.
    (249 Pac. 1117.)
    W. R. Withington, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   PER CURIAM.

This case is a companion case to No. A-5319, Saunders v. State, 33 Okla. Cr. 36, 244 P. 55. The offense charged is larceny of domestic fowls in the nighttime, and the offense charged was committed on the same night as the offense charged in A-5319. The case on the part of the state is proven by the same witnesses and the same evidence as this case. The objections made were identical, and this case is governed in all particulars by the holding in that case, and for the reasons there assigned, which apply equally here, the case is reversed and remanded.