text:
    Ex parte BURRELL BRADLEY.
    No. A-9881.
    May 14, 1941.
    (113 P. 2d 611.)

      Thad L. Klutts, of Oklahoma City, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for respondent.
   JONES, J.

This is an original proceeding in habeas corpus wherein Burrell Bradley seeks his release from confinement in the State Penitentiary.

In a verified petition filed herein, it is stated:

“That the petitioner was arrested on January 15, 1910, and taken to the county jail at Idabel, Oklahoma, and there held incommunicado; that the petitioner was cruelly beaten without any cause or provocation. That on January 17, 1910, an information was filed in McCur-tain county, charging petitioner with larceny of domestic animals; that he was taken immediately before the district judge of said county without any preliminary hearing or the hearing of any evidence, and without being first informed of any of his rights to counsel or time to plead his cause, and was immediately sentenced by the district court to the State Penitentiary for a period of five years.
“That the district court did not ask the petitioner if he desired to be represented by counsel, did not inform him of his right to be represented by counsel, and did not set a date definite in the future, at least two days, before pronouncing judgment upon the purported pleading of guilty, and that the petitioner did no act nor said any word waiving these rights.
“That the petitioner never saw the information, nor was a copy given him.”

A certified copy of the information in the district court, the minutes of the district court of McOurtain county in connection with the plea of guilty entered by the petitioner and of the judgment and sentence pronounced upon the plea of guilty are attached to the petition and made a part thereof.

The petitioner further alleges that the district court of McCurtain county did not have jurisdiction of the petitioner, and that said judgment and sentence so pronounced is null and void, and that the petitioner should be released.

A response has been filed by the warden of the State Penitentiary wherein he admits the detention and imprisonment of the petitioner in the State Penitentiary by reason of his conviction in the district court of McCurtain county for the crime of larceny of domestic animals, as shown by the judgment and sentence which is attached to the petition. The respondent denies all other material allegations contained in the petition.

Upon the issues thus being joined, the petitioner personally appeared before this court and testified, under oath, concerning the facts and circumstances surrounding his conviction and subsequent imprisonment. His testimony in substance is as follows:

“That he is a negro, 47 years of age; married, without any children, and formerly lived on a farm in McCurtain county. That he was arrested on January 15, 1940, by two highway patrolmen; that he had a cow in his pick-up at the time he was arrested. That he was on his way to- a sale at Hugo with a colored boy. When the highway patrolmen arrested him, they began beating him.”

He further testified:

“Q. When they took you up in the district court, Burrell, did they ask you if you wanted to plead guilty? A. They asked me if I was going to plead guilty. Q. Did they tell you, you had 24 hours time in which to plead? A. No, sir. Q. Now did they inform you of the nature or character of the charge against you in the district court? A. No> sir. Q. Did they ask you before they sentenced you if you had any legal cause to show why judgment should not be passed on you? A. No, sir. Q. You are sure they did not take you before a justice of the peace or county court? A. They didn’t take me before a county court; they took me before a justice of the peace. Q. While ago you stated they did not. A. I didn’t understand what we were talking about. Q. When they took you before the justice of the peace, did they ask you if you waived your preliminary hearing? A. This is the only thing I remember. After they went before the justice of the peace, they say here is a man that pleads guilty to grand larceny of domestic animals. I have been abused so much since then' that I just can’t think about all that was in it. Q. Did he ask you to state what your right name was? A. Yes, sir. Q. Did he ask you where you lived. A. I told him Avhere, there in tOAvn. Q. Did he ask you whether you Avere guilty or not? A. He didn’t. I don’t think SO'. Q. Did he ask you who your lawyer was? A. He asked me if I had a lawyer, and I told him, no.”

He further testified he entered a plea of guilty before the district judge on January 17th, and remained in Mc-Curtain county jail until January 22nd, at which time he was taken to the penitentiary; that he entered his plea of guilty because he had been beaten and abused, and was afraid not to plead guilty. That he only had a third grade education, and that he had never been arrested before in his life. That the district judge or county attorney did not inform him that he had a right to a laAvyer; and that during his confinement in jail, the jailer would not allow his wife to talk to him so that he could procure the services of a lawyer. That he had a laAvyer, Mr. Thad Klutts of Oklahoma City, who was at the time representing him in a case before the Industrial Commission; and that if he had been given an opportunity, he would have contacted Mr. Klutts.

On behalf of the respondent and pursuant to the rules of this court applicable to habeas corpus proceedings, affidavits were introduced in evidence from Jess Faulkner, the highway patrolman who made the arrest, Marguerite Hunt, the reporter who appeared at the preliminary examination and made the record thereon, Ed Shipp, the assistant county attorney of McCurtain county at the time the plea of guilty was entered, and Will Nat Allen, the jailer of the county jail of McCurtain county during the time the petitioner was incarcerated therein. These affidavits, omitting formal parts, are as follows:

Affidavit of Jess Faulkner states:

“That I am at this time an Oklahoma state highway patrolman, my number being 124; and I was such highway patrolman on the 15th day of January, 1940. On the night of January 15, 1940, I saw two negro men in a pickup truck in which there was one cow. From the manner in which they were driving and the time of night, it aroused my suspicion that they had stolen the cow which they had. I stopped the truck and both negroes jumped out and started to run. H. N. Hinton jumped out on the right side of the truck through the trees and succeeded in making his escape. I caught Burrell Bradley before he got very far. When I caught him he started to fight and asked me what I wanted with him. In the scuffle with him I hit him one time over one of his eyes. He immediately stated that he and this other negro had stolen the cow in the truck and were going to sell it. Bradley was then taken to the McCurtain county jail where he was turned over to Will Nat Allen, the jailer. To my own knowledge this man Bradley was never touched or harmed in any way except the one time I was forced to hit him when he resisted arrest.”

Marguerite Hunt states:

“That she is the reporter and stenographer for the county attorney’s office of McCurtain county, Oklahoma, and was such reporter on and prior to the 16th day of January, 1940; that as such reporter she was present at the preliminary trial wherein Burrell Bradley waived his arraignment, time in which to plead and entered his plea of guilty, waived preliminary examination and was by the justice of the peace bound over to await the action of the district court; that at that time Burrell Bradley was advised by the justice of the peace that he had a right to be represented by counsel, at which time Burrell Bradley stated that he did not desire counsel and wanted to pleadi guilty tO' the crime of larceny of domestic animals.”

Ed Shipp sets out in his affidavit:

“That I am at this time the duly qualified and acting assistant county attorney in and for McCurtain county, Oklahoma, and was such assistant county attorney on and prior to the 16th day of January, 1940. On the 16th day of January, 1940, I filed an information by complaint in the justice court in and for the Idabel justice district, charging one Burrell Bradley with the crime of larceny of domestic animals; at that time Burrell Bradley was incarcerated in the county jail at Idabel, Oklahoma, having been placed there the night before by one Jess Faulkner, an Oklahoma state highway patrolman, and one J. D. Butler, deputy sheriff of McCurtain county, Oklahoma. On the morning of the 16th day of January, 1940, I went to the county jail where Burrell Bradley was incarcerated and talked with him concerning his guilt or innocence; at that time Burrell Bradley advised me that he was guilty of the crime as charged; at that time I advised Mm that he did not have to plead guilty unless that was what he wanted to do; that he was entitled to be represented by counsel and entitled to a jury trial; but he told me that he was guilty and wanted to go on to the penitentiary as early as possible. That being on Tuesday, January 16, 1940, I advised him that the district judge would be in Idabel the following day, Wednesday, the 17th, at which time, if he desired to do' so, he could enter his plea, and he said that was what he wished to do. I then advised him that it would be necessary to have a preliminary hearing that day, and he said, ‘Well, it is not any use because I am guilty of the crime charged.’ I then advised Mm that he could waive his preliminary hearing and be bound over to await the action of the district court, and he said that was what he wanted to do. He was taken before the justice of the peace by myself and Will Nat Allen, the jailer of McCurtain county, Oklahoma,, at which time he stated that Burrell Bradley was his true name, that he would waive the arraignment, waive time in which to' plead, enter his plea of guilty and waive preliminary examination; and he was by the court bound over to await the action of the district court, and his bond set in the sum of $1,500. The following day, January 17, I filed an information in the district court of McCurtain county, Oklahoma, charging Burrell Bradley with the crime of larceny of domestic animals. I returned to the jail the morning of the 17th and again told Burrell Bradley that he did not have tO' plead guilty if he did not want to, that he was entitled to a jury trial and to be represented by counsel, and again he told me that he was guilty and wanted to' gn on to the penitentiary as soon as possible to get it over with; at that time I advised him that I would recommend a five-year sentence, and he said that would be all right. He was taken from the jail down to the district court, where the Honorable George R. Childers was presiding, by the jailer, Will Nat Allen, and there in open court the information was read to said Burrell Bradley. There were several attorneys present in the court at that time and several spectators. The court asked Burrell Bradley if he wished to' enter his plea, and he said, Wes, that he wanted to plead guilty,’ and the court in accordance with his plea and upon my recommendation, sentenced Burrell Bradley to' five years in the State Penitentiary at Mc-Alester. Burrell Bradley was transported to' the State Penitentiary at McAlester, Oklahoma, by the sheriff of McCurtain countv, Oklahoma, on the 22d clay of Januarv, 1940.”

Affidavit of Will Nat Allen states:

“That I am at this time jailer of the county jail located at Idabel, McCurtain county, Oklahoma, and was such jailer on and prior to the 16th day of January, 1940 ; that on the night of January 15, 1940, Burrell Bradley was placed in the county jail of McCurtain county, Oklahoma, by one Jess Faulkner, Oklahoma state highway patrolman, and J. D. Butler, deputy sheriff of McCurtain county, Oklahoma; that Burrell Bradley remained in the county jail until he was taken by the sheriff of McCurtain county to the State Penitentiary at McAlester; that during the time he was in my custody he received the same consideration and treatment that all prisoners are accorded ; that at no time was he cursed, hit, struck or abused by myself or any other officer of McCurtain county, Oklahoma, or of the State of Oklahoma; that at the time he was placed in jail he had a slight bruise over his right eye.
“That I have read the affidavit made by Ed Shipp, assistant county attorney of McCurtain county, Oklahoma, and the conversation Mr. Shipp related that he had with Burrell Bradley occurred in my presence, and the same is true.
“That prior to the time Burrell Bradley entered his plea of guilty to the crime of larceny of domestic animals and while he was incarcerated in the county jail, I had a conversation with him in which he told me about stealing cattle throughout McCurtain county for a period of six months previous to< this time. He stated that he had stolen some eight or nine head of cattle prior to his being arrested on the 15th day of January, 1940. I told him that in consideration of these past offenses the county attorney would probably recommend a period of five years! in the State Penitentiary at McAlester upon his entering a plea of guilty, and he stated to me that he wanted to do that and be carried to the penitentiary as soon as possible in order to get this over with.
“That during the time Burrell Bradley was incarcerated in the county jail, his wife was allowed to visit him at any time she wanted to; that they were accorded the privilege of the entire jail; that during the time Bur-rell Bradley was incarcerated in the county jail he never asked to have an attorney visit him and said he did not wish to employ an attorney.”

The respondent further introduced in evidence the transcript of proceedings had before C. E. Pittman, justice of the peace for the city of Idabel. It appears from this transcript that one Marguerite Hunt was appointed reporter by the court to take the proceedings had in that cause; and her notes were attached to the transcript of the record certified by the justice of the peace and filed Avith the court clerk of McCurtain county, along with the other papers in connection with the preliminary examination.

These minutes or notes of the reporter show that the defendant appeared in person, but without counsel, and; the state Avas represented by Ed Shipp, assistant county attorney; that the defendant Avas advised that he could take a change of venue, and Avas entitled to be represented by counsel; but that the defendant, in open court, waived arraignment, entered his plea of guilty, and waived preliminary trial. Thereupon the justice of the peace proceeded to hear evidence; and after a consideration of the same, found that the crime of larceny of domestic animals Avas committed in McCurtain county, Oklahoma, on the 15th day of December, 1939, and that there is probable grounds to believe the defendant guilty of said crime; and it was ordered that the defendant be held to await the action of the district court on the charge of larceny of domestic animals.

The judgment and sentence, attached to the petition, is on the printed form generally used throughout the state by the various county attorneys in connection with the sentencing of defendants upon pleas of guilty in felony cases. This printed form does not state whether the defendant was advised as to his right to have counsel appointed to represent him nor to have time within which to plead to the information filed against him, nor is any reference made therein to any statement by the court advising the defendant of any of his legal or constitutional rights. If these guaranties were afforded the defendant, the record should so state.

Under the Bill of Rights of the Oklahoma Constitution (Okla. St. Ann. Const, art. 2, § 1 et seq.), an accused has a right to consult with counsel and to be fully advised as to his rights and as to the consequences of his acts before entering his plea to the information.

Ex parte Barnett, 67 Okla. Cr. 300, 94 P. 2d 18; Ex parte Meadows, 70 Okla. Cr. 304, 106 P. 2d 139, 141.

In Ex parte Meadows, supra, we further held:

“A person prosecuted for a crime may waive the rights guaranteed to him by bill of rights, relating to' trial by jury, right to be heard by counsel, etc.
“Courts indulge every reasonable presumption against a waiver of fundamental constitutional rights, and do not presume acquiescence in their loss.
“Whether one accused of crime has waived his right to the assistance of counsel for his defense must depend in each case upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.
“Habeas corpus is an available remedy to one who has, without having effectively waived his constitutional right to the assistance of counsel, been convicted and sentenced and to whom expiration of time has rendered relief by an application for a new trial or by appeal unavailable. * * *
“A judgment of conviction of one who' did not effectively waive his constitutional right to the assistance of counsel for his defense is void as having been rendered without jurisdiction.
“Where a disputed question arises as to what occurred upon arraignment of one accused of a crime, this court will give great weight to the recitation in the minutes of the court proceedings as to' what occurred.”

The minutes of the court proceedings recite as follows: “2951 — State of Oklahoma vs Burrell Bradley

“Del states his true name is Burrell Bradley, waives time in which to plead, enters his plea of guilty of larceny of domestic animals, and is sentenced to the State Penitentiary for a term of 5 years, upon recommendation of the Co. Atty.”

These minutes are not as full as they should have been under the facts as disclosed by the affidavits of the court attaches who> were present at the time of the arraignment and plea of guilty by the petitioner. The presumption created by the absence of the recital of the waiver of these rights in the minutes of the court and in the journal entry of judgment and sentence, however, has been overcome by the testimony of the court officials, which shows that the proceedings upon the arraignment of the defendant were regular and that the court had jurisdiction to pronounce judgment and sentence against the accused upon his plea of guilty.

As was said in Ex parte Meadows, supra, the question as to whether one accused of crime has waived his right to the assistance of counsel and of his other rights, which may be waived by him, must depend in each case upon the particular facts and circumstances surrounding that case, and no abstract rules of law may be set forth which will be applicable to< every case.

We hold, after an examination of the record of the proceedings had before the justice of the peace and in the district court, and a consideration of all the evidence, that the petition filed herein is without substantial merit, and should be denied.

See, Ex parte Gilbert, 71 Okla. Cr. 268, 111 P. 2d 205; Blair v. State, 4 Okla. Cr. 359, 111 P. 1003; Stack v. State, 4 Okla. Cr. 1, 109 P. 126; Canard et al. v. State, 2 Okla. Cr. 505, 103 P. 737, 881, 139 Am; St. Rep. 919; State v. Frisbee, 8 Okla. Cr. 106, 127 P. 1091; Starr v. State, 5 Okla. Cr. 110, 111 P. 356.

It is so ordered.

BAREFOOT, P. J., concurs. DOYLE, J., absent.


source: Caselaw Access Project

author: BAREFOOT, P. J.

license: Public Domain

text:
    NAPOLEON THOMAS v. STATE.
    No. A-9807.
    May 14, 1941.
    (113 P. 2d 609.)
    Bruce & Rowan, of Oklahoma City, for defendant.
    Mac Q. Williamson, Atty. Gen., and Lewis R. Morris, Co. Atty., of Oklahoma City, for the State.
   BAREFOOT, P. J.

Defendant, Napoleon Thomas, was charged in the court of common pleas of Oklahoma ■county with the crime of unlawful possession of intoxicating liquor, to wit: one-half gallon of nontax-paid liquor; was tried by the court after having waived a jury, found guilty, and his punishment assessed at a fine of $50 and a term of 30 days in the county jail, and has appealed.

The charge against this defendant was the outgrowth of a search of his home without a search warrant. On the early morning of July 30, 1939, two deputy sheriffs of Oklahoma county were sent by the sheriff’s office to 608 Wisconsin avenue, Oklahoma City, to investigate some, disturbance. On arriving there the officers observed through the windows several Negroes engaged in a crap game. They entered the house and arrested four of the participants in the game and seized the money that was on the table, which amounted to about 18 cents. The defendant was not in the game, but was asleep in an adjoining room. He was awakened by the officers who stated that they saw the defendant take a half-gallon jar from the icebox and empty a part of its contents into the stove. They recovered a part of it, about a half pint, and pronounced it corn whisky. They delivered this to' the sheriff and it was introduced in evidence. The officers were unable to testify as to the amount of liquor in the jar. They at no time had a search warrant for the purpose of searching the premises. There was no proof that the place had the reputation of being a place where intoxicating liquors were kept or sold or that it was “used as a store, shop, hotel, boarding house, or place for storage, or * * * a place of public resort.” Oklahoma Statutes 1931, sec. 2639, O. S. A., title 37, sec. 88.

The defendant testified that the place where he was arrested was his home and that he lived there with his wife. He was arrested and taken to jail with the other parties who were engaged in the crap game, and he further testified that he did not know what charges were to be preferred against him. He denied any knowledge of the liquor.

The officers had the right to arrest the parties whom they saw participating in the crap game, but the defendant was in an adjoining room asleep, according to1 their testimony. We hardly think that the evidence in this case is strong enough to sustain the charges preferred. The amount of liquor was less than one quart, and this, of course, would not constitute prima, facie evidence of defendant’s intent to violate the law. Where the amount of liquor seized was less than one quart, it was necessary for the state to prove intent to violate the law on the part of the defendant. Oklahoma Session Laws 1938, chapter 153, sec. 3, O. S. A. title 37, section 82; Thomas v. State, 70 Okla. Cr. 404, 106 P. 2d 836; Knighton v. State, 64 Okla. Cr. 322, 79 P. 2d 1030; Barksdale v. State, 34 Okla. Cr. 91, 244 P. 828; Byers v. State, 46 Okla. Cr. 358, 287 P. 1075; Reed v. State, 24 Okla. Cr. 305, 217 P. 1058; Haltom v. State, 58 Okla. Cr. 117, 50 P. 2d 744.

Taking into consideration all the testimony, we are of the opinion that the judgment and sentence of the court of common pleas of Oklahoma county should be reversed and defendant discharged. It is so ordered.

JONES, J., concurs. DOYLE, J., absent.


text:
    J. G. CHANEY v. STATE.
    No. A-9799.
    May 14, 1941.
    (113 P. 2d 607.)

      Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Dale Brown, Co. Atty., of Coalgate, for the State.
    H. M. Shirley, of Coalgate, for defendant.
   BAREFOOT, P. J.

Defendant, J. G. Chaney, was charged in the district court of Coal county with the crime of obtaining money by false pretenses, was tried, convicted and sentenced by the court to pay a fine of $600 and serve six months in the county jail, and has appealed.

The only contention of defendant in his brief is that the evidence was insufficient to support the verdict and that the court erred in refusing to sustain a demurrer to the evidence and advise the jury to return a verdict of not guilty. The charge against the defendant was based upon the giving of a note and mortgage for $600 on February 10, 1986, to the First National Bank of Coalgate, secured by the following described property, to wit:

“1 Sorrell Horse about 15 H. H. Wt abt 1000 lbs. abt 7 yrs old. 1 Black Mare abt 8 yrs old. Wt abt 900 lbs. H. H. abt 14%. 1 Black Filly colt abt 1 yr old. 27 Mixed col and mix breed cattle abt 3 to 6 yrs old. Branded cross L on hip. Fresh during spring or summer. 8 calves mix col abt 1 yr old. Above cattle and horses worth at least $1030. This $600 to. be used to buy additional Cattle to be covered by this Mtg. To cover all the cattle and horses I own,” it being the contention of the State that the defendant did not have the property at the time the note and mortgage was given and that the money was obtained from the bank by reason of false representations and pretenses. Oklahoma Statutes 1931, section 2087, O. S. A. title 21, section 1542, is as follows:
“Every person -who, with intent to cheat or defraud another, designedly, by color or aid of any false token or writing, or other false pretense, obtains the signature of any person to any written instrument, or obtains from any person any money or property, is punishable by imprisonment in the penitentiary not exceeding three years or in a county jail not exceeding one year, or by a fine not exceeding three times the value of the money or property so obtained, or by both such fine and imprisonment.”

We have carefully examined the record and it reveals that when the mortgage matured in July, 1936, defendant asked for an extension. That the bank made an investigation and did not find the stock covered by the mortgage. A number of witnesses were placed upon the stand by the state, who lived in the vicinity of the pasture where the stock were supposed to be kept and who- were familiar with the pasture and premises, and they testified that defendant did not have the property described in the mortgage at the time of the execution of the same. The bank sent parties to the vicinity who made an examination, but could not find the property as described by the terms of the mortgage. They commenced foreclosure proceedings and certain cattle located at the pasture were replevied, but redelivery bonds were executed and the property proved to be the property of other parties. Defendant testified in his own behalf and placed upon the witness stand several witnesses! who testified to circumstances indicating that he had the cattle and horses at the time of the execution of the note and mortgage. There was also evidence offered by the state to show that a part of the $600 was not used by defendant to buy additional cattle, but for other purposes.

The evidence was conflicting and the issues were properly presented to the jury by proper instructions, and the jury returned a verdict finding defendant guilty and leaving the punishment to the court, who assessed the same at a fine of $600 and six months in the county jail.

Under the many holdings of this court where the evidence is conflicting and the issues have been properly submitted to the jury, the verdict will not be set aside on appeal. Drennan v. State, 69 Okla. Cr. 348,102 P. 2d 952; Alexander v. State, 66 Okla. Cr. 5, 89 P. 2d 332; Gilroy v. State, 66 Okla. Cr. 267, 91 P. 2d 683; Kimbrough v. State, 66 Okla. Cr. 66, 89 P. 2d 982.

The judgment and sentence of the district court of Coal county is therefore affirmed.

JONES, J., concurs. DOYLE, J., absent.


author: JONES, J.

text:
    SEIDEL ROGERS v. STATE.
    No. A-9803.
    May 14, 1941.
    (113 P. 2d 606.)
    Glen O. Morris, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Seidel Rogers; was charged ■by information with the unlawful possession of intoxicating liquor in the court 'of common pleas of Oklahoma county on June 12, 1939; was tried, convicted and sentenced to serve a term of 45 days in the county jail andi to pay a fine of $50, from which judgment and sentence he appeals to this court.

On June 6,1939, the premises at 305 West Reno street, Oklahoma City, Okla., were searched and defendant was charged with unlawful possession of two one-half gallons of intoxicating liquor.

Defendant contends that his motion to suppress the evidence should have been sustained because of illegal search and seizure, and that the evidence is insufficient to support the verdict.

Upon his motion to suppress, the defendant denied possession of whisky and stated that he did not live at 305 West Reno. Under the defendant’s statement, the motion was properly overruled, since this court held in White v. State, 33 Okla. Cr. 428, 244 P. 450:

“It seems to be well settled that a person, not being the owner or proprietor of the premises searched by virtue of a search warrant, and not claiming- any interest in the property so found, cannot complain upon the trial of the alleged illegal search, nor object to' the introduction of evidence thus obtained.”

See, also, Luton v. State, 47 Okla. Cr. 82, 286 P. 350; Dyer v. State, 61 Okla. Cr. 202, 66 P. 2d 1104; Boardwine v. State, 64 Okla. Cr. 49, 76 P. 2d 1081; Tacker v. State, 72 Okla. Cr. 72, 113 P. 2d 394.

The state offered the testimony of the arresting officer, Isenhour, that defendant poured the contents of two one-half gallon fruit jars into the sink before he could stop him. That about a dram was left in one of the jars, and it was corn wliisky. Defendant stated to the officer that he was trying to- make a living for his family, and was selling short drinks. Less than a pint of liquid was taken from the drain pipe of the sink. This was identified and offered in evidence. The testimony showed that it was corn whisky. It was stipulated that Officer Davis would testify to substantially the same facts as Officer Isenhour.

Defendant denied possession of the whisky, and stated that the empty fruit jars were on the sink when the search was made. He stated that the liquid offered in evidence looked different from the contents of the drain pipe.

The evidence is sufficient to support the verdict. Blair v. State, 55 Okla. Cr. 280, 29 P. 2d 998.

Finding no error, the case is affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., absent.


text:
    F. W. WOOLWORTH CO. v. STATE.
    No. A-9794.
    May 7, 1941.
    (113 P. 2d 399.)

      J. L. Trevathan, of El Reno, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and W. L. Funk, Co. Atty., of El Reno, for defendant in error.
   JONES, J.

The defendant, F. W. Woolworth Company, a corporation, was charged in the county court of Canadian county with the crime of selling two pints of a liquid compound known as “bay rum,” alleged to be a substitute for malt, vinous, fermented, and spirituous, liquors, and capable of being used as a beverage; was tried, convicted, and sentenced to pay a fine of $200, from which judgment an appeal has been taken to this court.

There are many assignments of error, but they may be all considered under the general assignment that the court erred in refusing to advise the jury to return a verdict of not guilty at the close of all of the evidence.

The information herein was filed under the provisions of Session Laws 1933, ch. 153, § 2, p. 338, 37 Okla. St. Ann. § 1, which states:

“It shall be unlawful for any person, individual or corporation to furnish, except as in this chapter provided, any spirituous, vinous, fermented or malt liquors, or any imitation thereof or substitute therefor, or to manufacture, sell, barter, give away or otherwise furnish any liquors or compounds of any kind or description whatsoever whether medicated or not which contain more than three and two-tenths (3.2%) per cent of alcohol, measured by weight, and which is capable of being used as a beverage, except preparations compounded by any licensed pharmacist, the sale of which would not subject him to the payment of the special tax required by the laws of the United States. * * *”

The proof on behalf of the state shows that one Clarn-pitt Mangrum went into the place of business conducted' by the defendant company in the city of El Eeno, and purchased two bottles of bay rum from the manager of the store, which bottles were placed in a brown paper sack with another sack placed over the top of the bottles.

The first question to be determined is whether the proof is sufficient to show that bay rum is “capable of being used as a beverage,” it being conceded by the defendant that a sale was made to Clampitt Mangrum and that the bay rum contains more than 3.2% of alcohol, measured by weight.

The term “capable of being used as a beverage” has never been defined by this court. It appears to us that the positions taken by the state and the defendant represent the two extremes, it apparently being the contention of the state that the term “capable of being used as a beverage” is a very broad term and should include all liquids, although not generally considered as beverages, yet which may be drunk by the individual, and which contain the prohibited percentage of alcohol. The defendant seeks to confine the term to those liquids which are manufactured solely for the purpose of drink, and accordingly would not include bitters containing alcohol, together with bitter herbs, or other medicinal ingredients, or compounds containing denatured alcohol, prepared in accordance with a specific formula approved by the United States Government, which, although containing, a large amount of alcohol, is prepared by the manufacturer solely for use as toilet lotions.

The state, in its proof, introduced the testimony of four witnesses, including the man who made the purchase, who testified that they had drunk bay rum; that it had a bitter taste, but that they drank it for its effect.

On the other hand, the policeman who verified the information against the defendant testified that he had tasted bay rum, that it was as bitter as quinine, and that in his opinion it was not a good beverage.

The state chemist testified for the state that he had made an analysis of the bay rum for the county attorney, and that said bay rum contained brucine, which was a substance placed in alcohol for the purpose of denaturing it and rendering it unpalatable; that bay rum is commonly used as a lotion, is very bitter, and is not a good beverage; that it contained approximately 60% alcohol.

Another police officer testified that he had never drunk any bay rum, and refused to taste it, but would state that he used it as an after-shaving lotion.

Dewey Hebberd testified for the state that he was the manager of the defendant company, and made the sale in question; that bay rum is used as an after-shaving lotion, hair tonic, and by the ladies as a hand lotion by mixing rose water, glycerine and bay rum; that he did not know that bay rum was being used as a beverage, but had been advised by the county attorney that certain persons were using it to> drink; and the county attorney furnished him with a list of names and asked him not to sell bay rum to those particular people; but that he could, sell bay rum without question to any other people outside of those named on the list. That Clampitt Man-grum’s name was not on the list; but that he asked him at the time the sale was made as to whether he was buying it to drink, and Mangrum said he was not.

The defendant introduced the testimony of seven witnesses, who operated drug stores or other places of business in the city of El Reno where bay rum was sold. The substance of their testimony, together with that of a witness for the Superior Products Company, who manufactured the bay rum in question, is that bay rum is ordinarily used as an after-shaving lotion or on the scalp; that it is a medicated product which is tax free so far as the Federal Government is concerned; that it is very bitter to> the taste, as the denatured alcohol used in bay rum is prepared under a formula required by the Federal Government, which specifies that a certain percentage of brucine and butyl alcohol shall be used to denature the alcohol in order to make it unfit to drink. That all testified it was not reasonably fit for beverage purposes, and some of them went SO' far as to state that a person in his right mind would not drink it.

After a consideration of all of the authorities recited in the respective briefs of the parties hereto and others not cited in the briefs, it is our conclusion that the definition of the term “capable of being used as a beverage,” as contemplated by the Legislature in the passage of the act here involved, means a liquid that is reasonably capable of being drunk either for the pleasure of drinking or its after effect, and does not apply to a liquid that it is possible to swallow, but not reasonably fit or palatable. Such question is not to be determined by the name given to the liquid, but by the facts in each particular case.

“Beverage,” as defined by Webster’s New International Dictionary (1910 Ed.), means “drink,” “liquid for drinking,” “usually, drink artificially prepared and of an agreeable flavor.”

If the liquid involved is not among the liquors ordinarily used as intoxicating beverages, but is a toilet article, where the distinctive character and effects of intoxicating liquors are gone and its use as a beverage is rendered undesirable or practically impossible by reason of other ingredients, and the alcohol contained therein has been denatured under a formula prescribed in the United States Dispensatory or like standard authority and is used merely as a vehicle for preservation of the other ingredients, the article will not be within the prohibition of our statute, although its use may produce intoxication.

In our research we have found a few states in which the question of the validity of a sale of bay rum under prohibitory liquor statutes similar to ours was involved; and, without exception, these cases have held that the statute does not include toilet articles not ordinarily used as a beverage, such as bay rum. One of them, the most interesting of these decisions, is the early case from the Supreme Court of Kansas, styled Intoxicating Liquor Cases, 25 Kan. 751, 37 Am. Rep. 284, where it was held:

“A statute defines intoxicating liquors as ‘all liquors and mixtures, by whatever name called, that will produce intoxication.’ Held, not to embrace medicines and toilet articles, not ordinarily used as beverages, such as tincture of gentian, bay rum, and essence of lemon, although containing alcohol.”

The Kansas statute involved reads:

“All liquors mentioned in section one of this act, and all other liquors or mixtures thereof, by whatever name called, that will produce intoxication, shall be considered and held to be intoxicating liquors within the meaning! of this act.”

In the body of the opinion, the court stated:

“Alcohol is the intoxicating principle, the basis of all intoxicating drinks. Whatever contains alcohol will, if a sufficient quantity be taken, produce intoxication. Hence, whatever liquor contains alcohol is within the statute. So reads its letter. But, when we come to inquire as to the liquors which contain alcohol, we find a lengthy list of fluids which are never used as beverages. Cologne, extract of lemon, bay rum, paregoric, tincture of gentian, and many other medicinal preparations contain alcohol, and all will produce intoxication. They are seldom used as a beverage, and yet they may be. Intoxication produced by drinking bay rum has been known. Yet few will drink it. Its uses are for the toilet. But three of the cases before us are prosecutions for the sale of bay rum, essence of lemon, and tincture of gentian, respectively. These preparations contain alcohol, and will each, it is charged, produce intoxication. If the statute' includes such articles, many of them are absolutely and wholly shut out from sale. * * *
“Now, the cases before us group themselves into three classes; and the same division is far reaching and of general application. The first embraces what are generally and popularly known as intoxicating liquors, unmixed with any other substances. Thus in one case the sale of brandy is charged. The second includes articles equally well known, standard articles, and which, while containing alcohol, are never classed as intoxicating beverages. Their nses are culinary, medical, or for the toilet. They are named in the United States dispensatory and other similar standard authorities; the formulae for their preparation are there given; their uses and character are as well recognized and known by their names as those of a horse, a spade, or an arithmetic. The possibility of a different and occasional use does not change their recognized and established character. A particular spade may be fixed up for a parlor ornament, but the spade does not belong there. So, essence of lemon may contain enough alcohol to produce intoxication, more alcohol proportionately than many kinds of wine or beer. It is possible that a man may get drunk upon it, but it is no intoxicating liquor. Bay rum, cologne, paregoric, tinctures generally, all contain alcohol, but in no fair or reasonable sense are they intoxicating- liquors or mixtures thereof. The third class embraces compounds, preparations, in which the alcoholic stimulant is present, which are not of established name and character, which are not found in the United States dispensatory, or other like standard authorities, and which may be purely medicinal in their purpose and effect, or mere substitutes for the usual intoxicating beverages. If not intoxicating liquors, they may be ‘mixtures thereof’ within the scope of the statute. Here belong many of the patent medicines, the bitters, cordials, and tonics of the day. Here also are such compounds as that charged in one of the informations before us, a compound of whisky, tolu, and wild cherry.
“Now, in reference to these several classes, we think these rules may be laid down: The first class is within and the second without the statute, and the court, as matter of law, may so declare. It is unnecessary, in charging the sale of whisky, or brandy, etc., to allege that it will produce intoxication; nor will it bring the sale of essence of lemon within the statute to allege that such essence will produce intoxication. The courts will take judicial notice of the uses and character of these articles. You need not prove what bread is, or for what purposes it is used. No more need you in respect to whisky or gin on the one hand, or cologne, or bay rum on the other. They are all articles of established name and character. In reference to the third class, the question is one of fact, and must be referred to a jury. If the compound or preparation be such that the distinctive character and effect of intoxicating liquor are gone, that its use as an intoxicating beverage is practically impossible by reason of the other ingredients, it is not within the statute. The mere presence of alcohol does not necessarily bring the article within the prohibition. The influence of the alcohol may be counteracted by the other elements, and the compound be strictly and fairly only a medicine. On the other hand, if the intoxicating liquor remain as a distinctive force in the compound, and such compound is reasonably liable to be used as an intoxicating beverage, it is within .the statute; and this, though it contain many other ingredients, and ingredients of an independent and beneficial force in counteracting disease or strengthening" the system. Intoxicating liquors or mixtures thereof : this, reasonably construed, means liquors which will intoxicate, and which are commonly used as beverages for such purposes, and also any mixtures of such liquors, as, retaining their intoxicating qualities, it may fairly be presumed may be used as a beverage, and become a substitute for the ordinary intoxicating drinks. Whether any particular compound or preparation of this class is then within or without the statute is a question of fact, to be established by the testimony and determined by a jury. The courts may not say as a matter of law that the presence of a certain per1 cent, of alcohol brings the compound within the prohibition, or that any particular ingredient does or does not destroy the intoxicating influence of the alcohol, or prevent it from ever becoming an intoxicating beverage. Of course, the larger the per cent of alcohol and the more potent the other ingredients, the more'probably does it fall within or without the statute; but in each case the question is one of fact, and to> be settled as other questions of fact. (State v. Laffer, 38 Iowa, 422, 426; Russell v. Sloan, 33 Vt. 656, 659; Com. v. Ramsdell, Sup., Ct. Mass., 23 Albany L. J. 414 [130 Mass. 68].)”

This case was partially overruled in the later case of State v. Miller, 92 Kan. 994, 142 P. 979, L.R.A. 1917F, 238, Ann. Cas. 1916B, 365, in which it was held that Jamaica Ginger was an intoxicating liquor. We think, however, that the earlier opinion is well reasoned and particularly applicable to' toilet articles such as bay rum.

See, also, Mason v. State, 1 Ga. App. 534, 58 S.E. 139; Roberts v. State, 4 Ga. App, 207, 60 S.E. 1082; Carl v. State, 87 Ala. 17, 6 So. 118, 4 L.R.A. 380; Bertrand v. State, 73 Miss. 51, 18 So. 545; Pearce v. State, 48 Tex. Cr. 352, 88 S.W. 234,13 Ann. Cas. 636; Schraeder v. Sears, 192 Iowa, 604, 185 N.W. 110; Schemmer v. State, 105 Neb. 324, 180 N.W. 581.

In Pearce v. State, supra [48 Tex. Cr. 352, 88 S.W. 235, 13 Ann. Cas. 636], it is stated:

“The rule in regard to matters of this sort is well stated in volume 17, American and English Encyclopedia of Law, volume 204. ‘It has been held that whatever is generally and popularly know as medicine or an article) for the toilet, recognized and the formula of its preparation prescribed in the United States Dispensatory or like standard authority, and not among the liquors ordinarily used as intoxicating beverages* such as tincture of gentian, paregoric, bay rum, cologne, etc., is not an intoxicating liquor within the meaning of the statutes regulating1 and prohibiting the traffic in intoxicating liquors, and the courts may so declare as a matter of law, notwithstanding such articles contain alcohol and may produce intoxication. * * * If the compound or preparation be such that the distinctive character and effects of intoxicating liquors are gone, and its use as a beverage is rendered undesirable or practically impossible by reason of the other ingredients, and the liquor is used merely as a vehicle for or preservation of the other ingredients, or to extract their virtues and hold them in solution, the article will not be within the prohibition of the statute, although its use may produce intoxication.’ ”

In Roberts v. State, supra [4 Ga. App. 207, 60 S.E. 1086], we find the following language:

“It has been held by the Supreme Court in Bradley v. State, 121 Ga. 201, 206, 48 S.E. 981, and by this court in Mason v. State, 1 Ga. App. 534, 58 S.E. 139, that thei words ‘intoxicating liquors,’ or ‘alcoholic and spirituous liquors,’ as used in prohibition statutes, include liquors intended for use as a beverage, or capable of being so used, containing alcohol, obtained either by fermentation or distillation, or both, in such a proportion as would produce intoxication when drunk to excess; and it was further held in these decisions that medical, toilet, and culinary preparations recognized as such by standard authorities, and generally used as medicines, and not reasonably capable of use as intoxicating beverages, are not to be regarded as within the meaning of the expression ‘intoxicating liquors,’ although such articles are liquid, contain alcohol, and may produce intoxication. The courts will take judicial notice of the uses and character of these articles, and, even though they contain alcohol in sufficient quantity to produce intoxication if drunk to excess, that they were not intended to be drunk at all; and the people are not to be deprived of their salutary uses because they might be reached by the letter of a law whose sole and vital purpose is the prevention of intemperance in the use of intoxicating liquors as a beverage.”

Our statute is broad, but it does limit liquids to the test of being' capable of being, used as a beverage.

The county attorney argued with some force that the term “capable of being used as a beverage” is not synonymous with the “fit for use as a beverage;” and since the testimony of the witnesses for the defendant only went so far as to state that bay rum was unfit for beverage purposes, that such test is insufficient to show that it was not capable of being used as a beverage.

However, fitness to be used as a beverage is certainly one of the strongest factors in determining whether the liquid involved is capable of being used as a beverage. Otherwise, we shall have to hold that any liquid that may be swallowed would be capable of being used as a beverage.

As shown by the testimony of the chemist, the United States Government applies a tax on undiluted alcohol. That it provides certain formulae for denaturing alcohol, which should be used in certain compounds and not as beverages, which formula, so far as the bay rum involved herein is concerned, consists in the use of brucine and butyl alcohol. The Federal Government evidently thought that the insertion of brucine would be sufficient to render the article of bay rum thoroughly unpalatable, and its use confined to the object for which it was manufactured, to wit: that as a toilet article for use as a hand and scalp lotion.

The state evidently relies solely upon the testimony of the four men who testified that they had drunk bay rum frequently to prove that it was “capable of being used as a beverage.” The evidence shows these men were habitual drunkards, who drank anything with alcohol in it. These well-seasoned inebriates are prone to secure some substitute for intoxicating liquor if the same cannot be found, whether it be in the form of bay rum, flavoring extract, canned heat, Jamaica ginger, bitters, or any of dozens of various kinds of medicated compounds and after-shaving lotions, so long as the liquid contained alcohol in sufficient quantities that they could “get a kick” from it, and although the partaking might seriously endanger their health, as such grogs’ appetite must be satisfied. But the fact that these perennial drunkards can stomach bay rum is not to* this court sufficient grounds for holding that this toilet article comes within the legislative classification! of intoxicating liquor. If we were to hold otherwise, it would brand as criminal hundreds of our citizens who have in good faith sold bay rum and kindred toilet articles under the belief that tbe same were not intoxicating liquors as defined under our statutes.

The proof shows that the defendant company has wholly abandoned the sale of bay rum. We recognize the fact that some people will attempt to evade the effect of the prohibitory laws by selling so-called medicated compounds under various names solely to have the same used as beverages. This court will be very liberal in the construction of the prohibitory laws for the purpose of preventing its violation by any shift or device. The fact as to whether any liquid comes within the classification of intoxicating liquors under our law become a question of fact, dependent upon all facts and circumstances in each particular case. Here the facts affirmatively show by the state’s own proof that the bay rum in question is very unpalatable and not reasonably fit for use as a beverage. It is further affirmatively shown by the state’s Avitness Hebberd that he did not Ioioav that the liquid was being purchased for beverage purposes and had been specifically informed by the purchaser that it was not so to be used.

After considering all of the facts and circumstances in this case, it is apparent that the evidence is insufficient to sustain the verdict.

For the reasons hereinabove stated, the judgment of the county court of Canadian county is reversed.

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


text:
    JOE FREEMAN v. STATE.
    No. A-9754.
    May 21, 1941.
    (113 P. 2d 843.)

      C. S. McCuistion, of Lawton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Joe Freeman, was charged in the county court of Comanche county with the offense of possession of intoxicating liquor, was tried, convicted! and sentenced to serve 30 days in the county jail and to pay a fine of $150 and costs, from which judgment and sentence an appeal has been taken to this court.

The defendant presents only one assignment of error, to wit: That the court erred in overruling his motion to suppress the evidence for the reason that the search warrant was directed “to any sheriff, constable, marshal or policeman in the county of Comanche,” and the same was served by officers of the State Bureau of Identification and Investigation without the aid, consent or knowledge of any officer of Comanche county.

Defendant offered no evidence in his own behalf, but relied for a defense solely upon the facts as related by the raiding officers, together with the affidavit for search warrant and search warrant which were admitted in evidence upon the motion to suppress.

The proof showed that three state officers went to' a justice of the peace at Lawton and procured two search warrants, one of the search warrants describing the home and premises of the defendant, Joe Freeman, and the other describing the house and two lots adjoining the home of the defendant, Joe Freeman. The owner of these premises was given as John Doe.

These two search warrants were directed “to any sheriff, constable, marshal or policeman in the county of Comanche.” The state officers took the two warrants and, without consulting any of the local officers, went first to the home of Joe Freeman and searched it without finding any liquors. The house adjacent to Freeman’s was locked and unoccupied at that time. With reference to this place, Officer Walsh testified:

“A. Previous I had asked Mr. Freeman who' was living in this place, he told me that a man working on some job rented the place in the winter time and went on the road in the summer time. I asked if he had the keys, he said, ‘No.* All of the gates were locked, fastened up with ropes, excepting the gate leading from Freeman’s home leading to the back door of this house. This is directly north of his residence, which had a lock on the gate and on the back door. He finally gave us two keys to the place. We found _ that they were not the proper keys. Mr. Finley made’ Freeman produce the proper keys, telling him we were going to' break in the place, that he might as well give us the keys anyway. Q. He gave you the keys then? A. Yes, he did. Q. What, if anything, did you find? A. We found a quantity of whisky, wine, and gin. Q. How much, if you recall? A. In a rough count, there was some place around twelve, fourteen, maybe 1,600 bottles. I would say over 1,200 bottles.”

It is not necessary to discuss the question raised by the defendant, as this proof shows that the defendant did not claim the ownership or possession of the house where the liquors were found. The defendant did not testify either on the motion to suppress the evidence or in the trial; but in his statement to the officers, he denied any ownership or possession of the house where the liquor was found.

This court has many times held that the constitutional provision guaranteeing one immunity from unlawful search and seizure is personal to the occupant of the premises involved; and one accused of crime will not be heard to object that a search is unlawful where the accused denies that he owns or has possession of the property or premises searched. Tacker v. State, 72 Okla. Cr. 72, 113 P. 2d 394; Rogers v. State, 72 Okla. Cr. 123, 113 P. 2d 606; Chanosky v. State, 52 Okla. 476, 153 P. 131; Hall v. State, 39 Okla. Cr. 254, 264 P. 221, 222.

In this case the house where the liquor was found is not the home or within the curtilage of defendant’s home, as it is on an entirely different lot and enclosed by fence. The defendant stated .that it was being rented by a man who was away for the summer; but defendant produced the keys to the house. The facts are similar to the case of Hall v. State, supra, wherein this court stated:

“It is insisted that much of the state’s evidence was incompetent, as having been procured by an illegal search of the house where the mash was found. The house was no part of defendant’s residence, or the curtilage or immediate surroundings, according to. defendant’s own testimony, was. not in his possession at the time, but was rented to one Miller, and he was not in a position toi complain. Penrod v. State, 38 Okla. Cr. 46, 258 P. 1052.”

By reason of these facts, the alleged illegality of the search is a. question that may not be raised by the defendant; therefore, the county court of Comanche county did not err in overruling the motion of the defendant to' suppress the evidence.

The judgment of the county court of Comanche county is accordingly affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., absent.


text:
    FRANK E. SEVERN v. STATE.
    No. A-9928.
    May 28, 1941.
    (114 P. 2d 181.)
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Bill Gruber, Co. Atty., of Alva, for the State.
    A. J. Stevens and Mauntel & Spellman, all of Alva, for defendant.
   BAREFOOT, P. J.

Defendant Frank E. Severn was charged by indictment- of a grand jury in the district court of Woods county with the crime of embezzlement, was ■tried, convicted and sentenced to serve a term of three years in the penitentiary, and has appealed.

Three indictments have been filed against this defendant in Woods county. The other cases are now pending, and for this reason this case has been advanced by the court to the end that the pending cases may be disposed of at as early a date as possible.

The charges in this case are based upon Oklahoma Statutes 1931, section 7761, 19 Okla. St. Ann., § 641, which is as follows:

“If any county treasurer, or other officer or person charged with the collection, receipt, safekeeping, transfer or disbursement of the public money, or any part thereof, belonging to the state or to any county, precinct, district, city, town or school district of the state, shall convert to-his own use or to- the use of any other person, body corporate or other association, in any Avay whatever, any of such public money, or any other funds, property, bonds, securities assets or effects of any kind received, controlled or held by such officer or person by virtue of such office or public trust for safe-keeping, transfer or disbursement, or in any other way or manner, or for any other purpose; or shall use the same by way of investment in any kind of security, stocks, loan property, land or merchandise, or in any other manner or form whatever; or shall loan the same, with or without interest, to any person, firm or corporation, except when authorized by law; or if any person shall advise, aid, or in any manner knowingly participate in such act, such county treasurer, or other officer or person shall be deemed guilty of an embezzlement of so> much of said money or other property, as aforesaid, as shall be converted, used, invested, loaned or paid out- as aforesaid; and upon conviction thereof, such county treasurer or other officer or person shall be sentenced to imprisonment in the penitentiary at hard labor for a term of not less than three years nor more than twenty-one years, and also to pay a fine equal to double the amount in money or other property so embezzled as aforesaid; which fine shall operate as a judgment lien at law on all the estate of the party so- convicted and sentenced, and shall be enforced by execution or other process for the use of the person whose money or other funds or property as aforesaid shall have been so embezzled; and in all cases such fines, so operating as a judgment, shall be released or entered as satisfied only by the person in interest, as aforesaid.”

This statute is a special statute covering county treasurers and other officers and the penalty fixed is, “not less than three years nor more than twenty-one years” in the penitentiary. It has been held that the term “other officers” includes other county officers. Hays v. State, 22 Okla. Cr. 99, 210 P. 728.

The court in his instructions to the jury by instruction No: 4 fully covered the law as applied to' the facts in this case under the terms of the above statute, but in addition thereto gave instruction number 6, which is as follows :

“You are instructed that it is the duty of every county attorney whenever he shall receive any moneys for fines, recognizances, penalties or costs, either by virtue of his office as county attorney, or upon order of court, to execute receipts in duplicate therefor to the officer, or persons, pay the same, and it is the duty of such county attorney on or before the first day of January in each year to file! in the office of the county treasurer an account, in writing, duly verified by his affidavit, of all moneys received by him during the preceding year by virtue of his office, or any fines, bond forfeitures, penalties or costs, specifying the name of each person from whom received, with the amounts paid by each person and the cause for which each payment was made; but, he shall pay over to the county treasurer all moneys he may receive as such county attorney within ten days after he receives it.”

This instruction is based entirely upon a different statute, namely Oklahoma Statutes 1931, sections 7623 and 7624, 19 Okla. St. Ann., §§ 18'9 and 190, and one not involved in this case. They provide as follows:

(1) “Every county attorney shall on or before the first day of January in each year, file in the office of the county treasurer an account in writing, verified by his affidavit, to be filed with said account, of all moneys received by him during- the preceding year by virtue of his office, or any fines, recognizances, forfeitures, penalties or costs; and he shall specify in such accounts the name of each person from whom he may have received such moneys, the particular amount paid by each person and the cause for which each payment was made. But he shall pay over to the county treasurer all money he may receive as such county attorney within ten days after he receives it.”
(2) “If the county attorney shall refuse or neglect to account for or pay over the moneys received by him as requested by the foregoing section, he shall be liable to a fine of not less than fifty dollars nor more than two hundred dollars; and it shall be the duty of the county treasurer, in his official name and capacity, to cause an action to be instituted upon the bond of such county attorney for the recovery of the moneys so received and unpaid by him.”

It will be noted that the punishment under this statute is for that of a misdemeanor and provides for a fine of not less than $50 nor more than $200. The court in his instructions to the jury submitted the punishment of not less than three years nor more than 21 years in the penitentiary, but did not submit the punishment under the last statute quoted.

It is the contention of the defendant that the court erred in giving instruction No. 6 and in failing to give the punishment prescribed for its violation, and that this constituted prejudicial error to the rights of the defendant. We are inclined to agree with this contention. The defendant was not charged with the violation of this statute, hut with the violation of the statute constituting embezzlement, as above cited. If this statute had been considered as an included offense, which we do not here decide, it Avould have been the duty of the court in submitting it to have submitted the punishment prescribed and given the jury an opportunity to have assessed that punishment if they found the defendant guilty of its violation. Under the instructions, as a whole, the jury could have very easily come to the conclusion that, if defendant had failed to pay over money to the county treasurer in the manner and form prescribed by the statutes covered by instruction No. 6, he was guilty of embezzlement, and the court failing to instruct the jury as to the penalty under the second statute, they would have naturally applied the only punishment given in the instruction and found the defendant guilty and assessed his punishment in the penitentiary as they did in the instant case.

The defendant. Avas charged with the embezzlement of $34.80. This was money collected by him as county attorney from a surety on a stay bond and which it is contended by the state was never reported to the county clerk of Woods county.- The evidence reveals that there was not the best of feeling between the court clerk and defendant. The court clerk testified that the money had never been paid to him. The defendant testified that just before he Avent out of office as county attorney in December, 1938, that he returned the papers in the case in which the stay bond proceedings were pending to the clerk in the exact amount of $34.80, which said check was in the papers. His wife, who wrote the check on the typewriter, corroborated the testimony of defendant. It was strenuously denied by the court clerk. The papers which were lost were after-wards located by ¡the attorney of defendant and the check was found therein. It was contended by the court clerk that the check had been placed therein after the indictment against the defendant had been returned. The defendant’s evidence revealed that he kept two separate bank accounts, one in the Central National Bank at Alva, where he kept his private account, and one in the Alva, State Bank, where he kept money that was collected by him as a public officer. It was revealed that there were sufficient funds in the Alva State Bank to cover the check in question at the time it was given and at the time of the trial of this case.

The verdict of the jury had thereon a notation, “We recommend the court to be as lenient as possible.” Of course, the court was not bound by this notation. The minimum sentence of three years in the penitentiary was given defendant. But we can easily see how the jury, under instruction No. 6, as above stated, could have come to the conclusion that if the defendant had failed to deposit the money as provided by that statute, he would be guilty of embezzlement, and for this reason was found guilty and given a penitentiary sentence.

In the case of Hays v. State, 22 Okla. Cr. 99, 210 P. 728, 731, the court said :

“This prosecution might have been brought under the provisions of section 3213, 28 Okla. St. Ann. § 3, invoking the penalty provided in the Penal Code (section 2681, R. L. 1910, 21 Okla. St. Ann. § 1462), but the state elected to and did try the defendant under the provisions of section 7437, 19 Okla. St. Ann. § 641, in which one of the material elements of the offense is a personal appropriation of funds. The state, having made its election to tiy the defendant under the provisions of the latter section, was bound by such election. To sustain a conviction under this section, it must be shown that there Avas a private appropriation of the fund as charged in the information, and the mere failure to report and pay over the fund, Avith-out any private appropriation or conversion, Avould not be sufficient. State v. Bunch, 23 Okla. Cr. 388, 214 P. 1093.
“This court has held in former decisions, construing section 3213, that the offense of embezzlement by an officer is complete so soon as he wrongfully fails or refuses to account for or pay over any money in his official capacity, as required by law. Warner v. Mathews, 11 Okla. Cr. 122, 143 P. 516; McDaniel v. Brown, 16 Okla. Cr. 149, 181 P. 156.
“If the information in this case had been based on section 3213, the facts here shown, if the acts were corruptly done, might have been sufficient to sustain a conviction; but it was essential under the information filed] to show that this officer made a private, personal appropriation of the fund, or an appropriation not in keeping with his official trust, to sustain the conviction under the provisions of section 7437, under which this action was maintained. There was no such misappropriation of this fund shown by the evidence.”

In this case the court instructed the jury that “a mere failure to pay over the money, standing alone, would not support a conviction for embezzlement”. No such instruction was given in the instant case.

We have examined the entire record. The defendant was tried not alone upon the case with which he was indicted, but the evidence of all the cases upon which he was indicted was introduced against him. If the defendant is' again tried, we suggest that the evidence be confined to the issue on trial. The evidence was conflicting, and it is not for this court to pass upon the conflict in the testimony. It would have probably been better for defendant to have been tried under Oklahoma Statutes 1931, sections 7623 and 7624, 19 Okla. St. Ann. §§ 189 and 190, as above cited, than under the embezzlement statute.

For the reasons above stated, the judgment of the district court of Woods county is reversed.

JONES, J., concurs. DOYLE, J., absent.


author: PER CURIAM.

text:
    DOC STONE v. STATE.
    No. A-9810.
    May 28, 1941.
    (114 P. 2d 184.)
    ■Mac Q. Williamson, Atty. Gen., and Lewis R. Monis, Co. Atty., of Oklahoma City, for the State.
    James W. Flinn, of Oklahoma City, for defendant.
   PER CURIAM.

Defendant was charged in the court of common pleas of Oklahoma county with the crime of unlawful possession of intoxicating liquor, to wit, 24 pints and one quart of tax-paid liquor; was tried before the court without the intervention of a jury, was convicted and sentenced to pay a fine of $75 and to serve 30 days in the county jail, and has appealed.

This appeal was filed on the 1st day of February, 1940. No brief has been filed by defendant and no oral argument was: made. Under the rulings of the court, it is not necessary that we examine the record only to see that no fundamental errors which would deprive defendant of a fair and impartial trial have been made. We' have examined the record and find the defendant’s room, which he had occupied for over a year in a hotel in Oklahoma City, was searched by deputy sheriffs of Oklahoma county who had a search warrant for that purpose, and in a plant located therein were found 24 pints and one quart of tax-paid whisky. Defendant admitted to the officers at the time the search warrant was handed to him that he occupied the room where the whisky was found, and the officers testified that he said it was his whisky. On cross-examination the defendant admitted that he had twice previously been convicted of a violation of the liquor law.

Under these facts the judgment and sentence of the court of common pleas of Oklahoma county is affirmed.

DOYLE, J., absent.


text:
    DAVE PERRY v. STATE.
    No. A-9811.
    May 28, 1941.
    (114 P. 2d 185.)
    J. Woody Dixon, of Marietta, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Dave Perry, was charged in the county court of Love county with the offense of unlawful possession of intoxicating liquor; was tried, convicted and sentenced to serve a term of 60 days in the county jail and to pay a fine of $100, from which judgment and sentence he appeals to this court.

Defendant contends that the evidence offered by the state in the trial of the case was inadmissible because it was based upon an unlawful search and seizure.

The search warrant described the place to be searched as “Block 10-Lot á in City of Marietta, Oklahoma, one two story stucco Bldg. Known as the Peery Hotel.”

Orren Wester, sheriff of Love county, accompanied by a deputy, served the search warrant on defendant who was on the porch of the above-described house. Wester told him that he had a search warrant for him and that he wanted to search his car first. Defendant said, “That is where it is.” The car was parked in an alley by the side of the hotel. In the search of the car, the officers found some whisky which is the basis of the charges herein. They arrested the defendant, but did not search the house. There is no. contention that the whisky was visible to the officers, or that anything was done to justify the search Avithout a warrant, it apparently being the idea of the officers that the search warrant for the hotel was sufficient authority to search the automobile.

Defendant argues in his brief that the officers had no warrant to search the car, and that he did not waive his right to. be served with a Avarrant for the search of the car.

According to the testimony of the officers, they had' information that the defendant had whisky in his automobile. They never did enter the hotel, and made no attempt in any manner to search it or the defendant’s house, which were the premises named and described in the search warrant. It would have been a simple matter for the officers to have procured a search warrant for the automobile. It is hard for this court to understand why, if the officers had information that whisky was stored in an automobile, they would procure a search warrant for the search of a house.

In Evans v. State, 34 Okla. Cr. 173, 245 P. 912, where the facts show that officers searched, without a Avarrant, a car which was standing in a public alley in Tulsa, this court stated:

“A private conveyance may not be searched on suspicion without a search Avarrant. With a proper search warrant, based upon an affidavit setting forth facts showing probable cause for believing that the car contains liquor, a car may be searched, as a building or a rooming house.”

In Combest v. State, 51 Okla. Cr. 38, 299 P. 920, 921, it was shown that officers had a search warrant for the search of certain premises and searched an automobile parked on the street in front of the described premises. The court stated:

“It is also argued that the search of the automobile sitting in front of defendants house Avas unlaAvful and evidence obtained thereby inadmissible. With this contention Ave are also in accord. The officers had no warrant to search the automobile and the search was unlawful. Smith v. State, 48 Okla. Cr. 115, 289 P. 792; Bowen v. State, 50 Okla. Cr. 36, 295 P. 623.”

Under the facts in this case and the prior decisions of this court, the motion to suppress the evidence should 'have been sustained.

The judgment of the county court of Love county is accordingly reversed.

BAREFOOT, P. 3,, concurs. DOYLE, J., absent.


text:
    Ex parte ROBERT DAVIS.
    No. 10001.
    May 28, 1941
    (114 P. 2d 186.)

      J. T. Dickerson, of Tulsa, and Forrest Powell, of Edmond, for petitioner.
    Wade Arends, of Edmond, for respondent City of Edmond.
   JONES, J.

This is an original proceeding for a writ of habeas corpus wherein the petitioner, Robert Davis, seeks his release from confinement in the city jail in the city of Edmond.

A complaint was filed against the defendant on January 31, 1941, which reads as follows:

“E. N. Kelly of lawful age, being duly sworn, on oath, deposes and says that on the 31 day of January, 1941, in the City of Edmond, in Oklahoma County and State of Oklahoma, one Robert Davis did then and there unlawfully and contrary to the ordinances of the City commit the offense of Canvassing, in the City of Edmond, Okla., without a license, Contrary to Sec. 163 of the revised Ordinance of the City of Edmond, Oklahoma, Revision of 1929.”

The rule to show cause was issued and a response was filed by the chief of police of Edmond, in which it is alleged that the petitioner was going from house to house in the city of Edmond, soliciting to sell or offering for sale certain coupons for photographs without a license or permit as required by the ordinances of the city of Edmond. That upon the complaint being filed against the petitioner, the said Robert Davis was tried in the municipal court of Edmond, was found guilty and ordered to pay a fine in the amount of flO; and upon refusal to pay said fine, wad committed to the city jail in accordance with the general ordinances of the said city. A copy of the ordinance ini question is attached to both the petition and the response.

In the response, it is further alleged that the city of Edmond has. had considerable complaint from the residents thereof in regard to persons soliciting their homes for the ■sale of coupons for photographs, taking their first payment and never returning to deliver the pictures; that it is necessary for the protection of the inhabitants of said city and for the protection of legitimate merchants that a license or permit be issued in order that the city may know who is soliciting. That demand was made upon the manager' of the Great West Studios for the sum of $5 per day for him and his crew to solicit in Edmond; but that the manager refused to obtain a license, and his employee, Robert Davis, the petitioner, was arrested, tried, and found guilty as hereinabove set out.

The petitioner makes the contentions:

(1.) That the complaint shows upon its face that it does not charge a violation of any ordinance of the city of Edmond nor a violation of an ordinance authorized by the general statutes of the State of Oklahoma..

(2.) That if said complaint attempts to charge a violation of sec. 163 of art. 1, ch. 11, of the Revised General Statutes of the city of Edmond, that the same is invalid so far as it applies to this petitioner for the reason that the fee so charged is excessive, arbitrary, oppressive, and discriminatory, in that it seeks to' create a monopoly for the photographers maintaining a permanent business in the city of Edmond; and said fee is so' excessive that it has no reasonable relation to the business sought to be regulated.

In the hearing before this court, the petitioner and the owner of the Great West Studios testified on behalf of the petitioner, and the chief of police testified for the respondent.

The proof on behalf of the petitioner established that his income from selling; coupons for photographs was from $2.50 to $3.50 per day. That the city clerk demanded $5‘ per day from the petitioner and each member of the crew.

C. C. Kuykendall, as owner of the Great West Studios, testified that- the city clerk had demanded $5 per day for each solicitor, which was prohibitive so far as hist business was concerned; that his company has worked in many cities of the state, and the average ordinance imposed upon the members of the crew in these cities is $5 a year for each solicitor. Kuykendall further testified that about a year ago; he went to Edmond with his crew, attempted to buy a license, and was advised that if he would rent a place in Edmond and there finish his pictures, he could go' ahead and work without a license. That he accordingly rented two office moms and they permitted him to go ahead and work without buying a license.

The chief of police testified that the ordinance, as he interpreted it, was construed to mean $5 per day for the person, firm, or crew. That he did not remember the name of any firm that had paid $5 per day to solicit. He understood that the ordinance did not apply to the people of Edmond, providing they were operating a merchandising store or anything of that nature. Anything that is made in Edmond could be sold in Edmond. That he had trouble with a man soliciting for Great West Studios before; people had complained to him. A complaint had been filed against this man, and he had left town. Witness did not remember any conversation in which Kuyken-dall was advised that if he rented an office and opened a studio in Edmond that he would not be charged a license fee.

It is clear that the first contention of the petitioner should be sustained. There is no ordinance of the city of Edmond prohibiting “canvassing.” If there were such an ordinance, no statutory authority could be found empowering a municipality to prohibit canvassing.

It is well settled that a municipal corporation can exercise only such powers of legislation as are given them by the lawmaking power of the state. In re Lankford, 72 Okla. 40, 178 P. 673; Grantham v. City of Chickasha, 156 Okla. 56, 9 P. 2d 747; Ex parte Holmes, 162 Okla. 30, 18 P. 2d 1053.

Since the complaint charges no crime by any inference or intendment, imprisonment of the petitioner based thereon is illegal, unauthorized, and should be set aside.

Apparently, both the petitioner and respondent realize that the petitioner should be entitled to his release in the instant case by reason of the insufficiency of the complaint filed against him. Yet it is insisted by both said parties that this court proceed to construe the ordinance under which the charge is filed herein so as to prevent a repetition of these proceedings after a complaint, in proper form, under the ordinance is filed.

The first question to confront us is whether the ordinance in question is an act for the regulation of the businesses or occupations therein set forth which would come under the implied police power of the city or is an ordinance for the purpose of raising revenue.

It is clearly established that a municipal corporation may not impose a license fee in the nature of a police regulation in excess of an amount that is reasonably necessary for regulating the business involved. Mitchell v. City of Lawton, 124 Okla. 60, 253 P. 999; Ex parte Holt, 74 Okla. 226, 178 P. 260; City of Muskogee v. Wilkins, 73 Okla. 192, 175 P. 497.

The title of the ordinance in question reads as follows: “An Article prescribing a Tax on Certain Occupations, Fixing Rates, Requiring the Issuance of License and Providing Penalty.”

Section 161 of said ordinance provides:

“For the purpose of raising a revenue for the city of Edmond, there is hereby levied a license tax on the callings, trades, business, avocations, and occupations hereinafter named and carried on within the corporate limits of said’ city; and no person, firm or corporation, either as principal or agent, shall pursue, conduct, carry on or operate within the said city any of such lines of business or occupations ■without first paying in advance to the city clerk the license tax hereinafter prescribed and levied, and procuring a license from the city clerk.”

The section under which the city seeks to hold petitioner (sec. 163) reads:

“Hucksters, peddlers, hawkers, agents, solicitors, or other persons, firms or corporations, not engaged in interstate commerce, who' desire to sell, solicit to sell, or take orders for the sale of any article, goods, wares or merchandise, upon the streets, avenues or alleys within the corporate limits of said city, or upon the railroad right of way, or by going about from house to house, each, per week, the sum of $20.00 in advance.
“Provided, if any such person, firm or corporation, shall desire a license for a longer period than one week, a license may be issued for a period of one month for the sum of $35.00, in advance; or a license may be issued for a period of six months for the sum of $75.00, in advance. And if any such person, firm or corporation shall desire a license for a shorter period than one week a license may be issued day by day for the sum of $5.00 per day in advance.
“Ex-soldiers may peddle without license. 1923 S.L. Page 226 [72 Okla. St. Ann. §§ 1, 2, 5, 6].”

A reading of the various pro-visions of this ordinance leads one to- conclude that the ordinance is a revenue raising measure. On the other hand, a reading of the response filed herein, wherein the respondent states that the municipality had had numerous complaints from housewives about solicitors calling at their homes uninvited and bothering them, and of the perpetration of frauds by a solicitor, would tend to- support the inference that the measure in question was passed as a regulatory ordinance and not for the purpose of raising revenue. This is further strengthened by the fact that the chief of police was unable to tell any other person who had paid a similar tax in the past four years. Evidently the city was no-t relying upon the section of the ordinance in question as a revenue raising measure or they would have placed the fee at a lower figure in order to encourage soliciting by agents in order to increase the revenues of the city.

In 19 R.O.L., Municipal Corporations, 252, page 952, it is stated:

“The court must determine the character of the ordinance from its provisions, and if it clearly appears therefrom that its primary purpose is the raising of revenue it must be treated as a tax, and if its primary purpose is regulation it must be treated as enacted under police power. When no police inspection, supervision, or regulation is provided, nor any standard set for the applicant to establish, or that he agrees to attain or maintain, but any and all persons engaged in the business designated, without qualification or hindrance, may come, and a license on payment of the stipulated sum will issue, to do business, subject to no prescribed rule of conduct and under no- guardian eye, but according to the unrestrained judgment or fancy of the applicant and licensee, the presumption is strong that the power of taxation, and not the police power, is being exercised.”

When measured by this test, it is apparent that the primary purpose of the levying of the fee in question is the raising of revenue as there is no provision for police inspection or supervision, nor any standard set for the applicant to maintain, etc. Neither is there shown by any evidence that petitioner’s business is such as might be injurious to public health, peace or morals so as to require regulating and supervision.

It is not shown in the record the date of the passage of the ordinance in question, but counsel cite it as a part of the Bevised General Ordinances of 1929 of the City of Edmond. Prior to the amendment by the Legislature of 1935, Session Laws 1935, p. 136, § 1, 11 Oída. St. Ann. §' 651, municipal corporations had no legislative grant of power authorizing a tax on “photographers, photographers’ agents, agents of all kinds and solicitors.”

An attempt by the city of Ponca City to collect a license fee of $5 per day on transient photographers prior to the passage of the 1935 amendment, supra, was held void as not within the power delegated to municipal corporations by the Legislature. Ex parte Holmes, supra; Ex parte Stewart, 162 Okla. 32, 18 P. 2d 1054.

It is apparent from a consideration of these opinions that the ordinance of the city of Edmond prior to 1935 was ultra vires in so> far as the same would apply to solicitors or photographers’ agents. Ordinarily, where the Legislature authorizes a municipal corporation to levy and collect a license tax on certain occupations, the amount of tax to be imposed is within the discretion of the city' council. If the power to tax may be exercised at all, it must be exercised at the will of those in whose hands it is placed.

After a consideration of the record, it is our conclusion that the ordinance in question is a revenue raising measure; and under the provisions of the amendment in the Session Laws 1985, supra, it is within the power of the ■city of Edmond to levy an occupation tax upon the occupations and businesses named in said statute. With this conclusion established, the remaining point to be considered is whether the tax in question is discriminatory and illegal so far as the petitioner is concerned because of the violation of article 10, sec. 5, of the Constitution of Oklahoma, Okla. St. Ann. Const., and other constitutional provisions.

It is apparent from the testimony of the chief of police and the manager of the Great West Studios that the interpretation of the section of the ordinance involved, by the city officials, was in such a manner as to protect the local photographers from competition. The tax was so high that it was oppressive and absolutely prohibitive so far as the business in which petitioner is engaged was concerned. As shown by the record, the city two years before the arrest of petitioner had allowed the agents of the same studios to sell coupons for photographs under the same city ordinance without requiring the payment of the license fee after the studios had rented rooms in Edmond where the pictures that were taken would be developed and delivered. The primary purpose of the ordinance, as interpreted by the city officials, is to discriminate in favor of the local merchant and to stifle all competition so as to' create a monopoly for the local photographers.

Said ordinance being discriminatory by reason of its interpretation by local officials and not applying with equal force to the agents of- the local photographers the same as with outside merchants, and in addition being so high that it is unreasonable and oppressive in relation to the business involved, it is our conclusion that the ordinance SO' far as it applies tc the petitioner’s business! is illegal and void, and petitioner is entitled to his discharge.

An ordinance may be valid on its face, but so interpreted by the persons charged with the enforcement thereof that if leads to discrimination. There is nothing in the ordinance to show that the license fee sought to be charged is unreasonable or that the tax thereby levied does not apply equally and uniformly upon the same class of subjects. But where the municipal officials charged with the enforcement of the ordinance studiously and designedly interpret said ordinance so that it will not apply to those solicitors operating from a fixed place of business within the city limits, and the proof upon the hearing shows that the interpretation placed on the ordinance renders it discriminatory and that, although apparently legal on its face, it is used to' grant a monopoly to' the resident photographer of the city of Edmond, the same will be held to be illegal and void.

If it is the desire of the city council of Edmond to place an occupation tax upon photographers and photographers’ agents under the authority granted to them under Session Laws 1935, supra, the ordinance in question should be amended so as to specifically name these occupations and a reasonable tax placed thereon, and no attempt should be made to levy a tax upon these businesses through ¡the tax upon the general class of “solicitors” as named in the ordinance in question. The $5 per day for solicitors for a certain line of business might be reasonable, but in other lines of business wholly unreasonable and oppressive. The local merchants maintain the schools, churches, and other local functions which are an added expense to their business; and it is proper that a reasonable fee should be levied against those hawkers and peddlers who come into the city and compete with their wares against the local merchant. But as hereinabove stated, the tax levied must apply uniformly, and must not be so unreasonable as to be entirely prohibitive. The Legislature has expressly given cities authority to tax photographers and photographers’ agents; and if it is the desire of the governing body of a city to tax these occupations, they should be specifically named in the ordinance.

For the reasons above stated, the writ of habeas corpus is granted; the petitioner is illegally restrained of his liberty, and it is ordered that he be discharged from custody.

BAREFOOT, P. J., concurs. DOYLE, J., absent.


text:
    MARY LEASURE v. STATE
    No. A-9792.
    May 28, 1941.
    (114 P. 2d 191.)

      Mac Q. Williamson, Atty. Gen., and Hugh Conway, Co. Atty., of Enid, for the State.
    Harry C. Kirkendall, of Enid, for defendant.
   BAREFOOT, P. J.

Defendant Mary Leasure was charged in the county court of Garfield county with the crime of unlawful possession of intoxicating liquor, to wit 8 one-half pints of alcohol, and 3 quarts of whisky; was tried, convicted, and by the court sentenced to pay a fine of $100 and to serve 60 days in the county jail, and has appealed.

Upon arraignment defendant informed the court that she had no means to employ counsel, and the court appointed Hon. Harry C. Kirkendall of the Garfield county bar to' defend her. The case-made, together with the petition in error, was filed in ¡this court on the 26th day of December, 1939.

We have examined the record in this case and find that the home of the defendant was searched on the 23rd day of February, 1939, by four county officers of Garfield county who had theretofore procured a search warrant which was in proper form. They found the above-described liquor in a woodpile use in connection with defendant’s home. A large cream can was buried in the ground under the wood, and the liquor was lying beside the same. The defendant was standing near the woodpile at the time the officers arrived and served the search warrant.

Each of the four officers testified that defendant admitted the. whisky belonged to her. In her house a one-’half pint bottle of alcohol was found of the same kind found in the woodpile, and in her cellar and around her premises many empty whisky bottles were found, the officers testifying that as many as 100 or 500 were there. Also many caps taken from whisky bottles and soda pop nsed for the purpose of mixing drinks were found on the premises. The officers all testified that they had observed the premises many times, both day and night, and upon numerous occasions had seen automobiles going to and from the premises, both in the daytime and in the nighttime, and that the place had the general reputation of being a place where intoxicating liquor was being sold, both by the bottle and by the drink. The defendant did not take the witness stand.

It is contended that the court erred in permitting a deputy sheriff to testify as follows:

“A. Well at this particular time, it was generally known that whisky had been sold there, there had been former convictions.”

If the defendant had been formerly convicted of a violation of the prohibitory liquor laws it could have been properly introduced, and while this witness was not asked with reference to this matter but made the voluntary statement as above set forth, we do not believe this is sufficient error to cause a reversal of this case. The court struck this voluntary statement and promptly instructed! the jury that they should not consider the same under any circumstances, but it having been made in the presence of the jury may have caused them to give the defendant more than the minimum punishment.

The search warrant described the premises as follows:

“In the building and premises located on Lots 31 and 32, in Block 42, College Hill Addition to the City of Enid, a part of the Northwest Quarter of Section 10, Township 22 North, Range 6 West, I. M., in Garfield County, Oklahoma, and known as the Mary Leasure place.”

About the only defense offered was with reference to this description, it being claimed that the liquor was not found on the identical lots above described. The evidence revealed that this property had at one time been a part of the townsite of the city of Enid, but had been vacated, and most of it was being used as farming land. The deed to defendant conveying to her these identical lots was offered in evidence. Defendant was not only named in the search warrant, but the proof showed that she owned and occupied the premises with her two sons who lived with her, and her admission of the ownership of the liquor found were amply sufficient for the jury to find her guilty of the offense charged.

The instructions of the court fairly presented the law, but for the reasons above stated we are of the opinion that justice would be best subserved by a reduction of the punishment in this case to a fine of $50 and 30 days in the county jail. Defendant was ably represented by counsel appointed by the court.

The judgment of the county court of Garfield county is therefore modified and affirmed as above stated.

JONES, J., concurs. DOYLE, J., absent.