author: CHAPPELL, J. EDWARDS, P. J,

text:
    TED PATTON v. STATE.
    No. A-8542.
    Aug. 8, 1933.
    Rehearing Denied Sept. 29, 1933.
    (25 Pac. [2d] 74.)

      J. W. Prather and G. C. Hardin, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Sequoyah county of the crime of murder in the killing of one Robert Hayne Wall, and his punishment fixed by the jury at death.

The evidence of the state was that defendant and deceased were out together on the evening of the homicide in deceased’s father’s ear; that they drank some beer; that during the evening before the killing defendant purchased some .22 cartridges; that some time during the night defendant shot the deceased with a .22 caliber pistol loaded with these shells, and, driving deceased’s father’s car to an out of the way and secluded spot at the foot of Wild Horse Mountain, in Sequoyah county, carried the body of deceased some distance from the road and sought to hide it in the rocks and brush; that shortly thereafter he returned to the town of .Sallisaw and told his mother that he and deceased were going to Tulsa; that he obtained some clothes and fled from the scene of the crime in the car; that he was later arrested in the city of Dallas, after inquiring at the post office for mail under the assumed name of Fred Anderson; that upon his arrest he accompanied the officer to a secluded spot between Dallas and Fort Worth, where Vera Frazier, a young woman from Sallisaw, was found in the car; that the pistol with which the killing was done, a fountain pen, and other property of deceased were found in the car. At the time of his arrest, defendant stated, in substance, that he got into an argument with deceased and shot-out of him; that at the time of her arrest, Vera Frazier said she was not with defendant and did not know that Wall was killed.

At the trial defendant took the stand- and testified that Wall was trying to commit rape upon Vera Frazier, and that when he interfered Wall attacked him and he shot him in self-defense. Vera Frazier, as a witness for defendant, testified to practically the same state of facts.

In rebuttal, the state by a number of witnesses showed that defendant had made no claim of self-defense, nor had he mentioned the attack at any time prior to the trial. The state also showed by the county attorney, the sheriff and other officers, and W. B. Wall, that Yera Frazier had at all times denied that she was present or knew anything about the commission of the offense; and finally the state showed by George W. Frazier, Yera Frazier’s father, that on the day before the trial she told him that she was not present and knew nothing at all about the killing.

Defendant contends this evidence is insufficient to support the verdict of murder or to justify the death penalty.

If the killing occurred in the manner and for the reason defendant says it did, then there was absolutely no reason for talcing the body and hiding it in the wilds of the mountain and fleeing the country. The state made out a prima facie case of murder. Under the law of Oklahoma, when a homicide is proved or admitted, the burden of proving circumstances of mitigation, or that would justify or excuse it, devolves upon defendant, unless the proof on the part of the prosecution tends to show the crime committed only amounts to manslaughter, or that the defendant was justified'or excusable. Since defendant must assume this burden, or justify the killing, he had to create a reasonable doubt of that fact in the minds of the jury, and he failed to do so. The fact that defendant was found in possession of this automobile and other personal property of deceased would indicate that his intention was to kill deceased, rob him of the property, hide his body where it would not likely be found, and leave this as one of the unsolved murder mysteries of the age. Taking that view of the evidence, the jury thought also that he should forfeit his life in recompense of the one that he had taken without any reasonable justification or excuse.

It is a well-settled rule of this court that, where there is a conflict in the evidence, and where there is competent evidence reasonably tending to support tbe verdict of tbe jury, it will not be set aside because of the insufficiency of the evidence.

The evidence of the state, coupled with the admissions of defendant and Vera Frazier shortly after their arrest, was sufficient to support a verdict of guilty of murder and to support the infliction of the death penalty.

It is next contended the court erred in refusing to grant defendant a change of venue.

Defendant filed the usual affidavit that he could not have a fair and impartial trial in Sequoyah county because the minds of the inhabitants of the county in which the case was pending were so prejudiced against him that a fair and impartial trial could not be had therein. This affidavit was supported by thirteen compurgators supporting the motion and twenty-eight in opposition to it.

This court has repeatedly held that an application for a change of venue is addressed to the sound discretion of the trial court. There must be a clear abuse of this discretion to avail defendant. Tegeler v. State, 9 Okla. Cr. 138, 130 Pac. 1164; Gentry v. State, 11 Okla. Cr. 355, 146 Pac. 719; Allen v. State, 16 Okla. Cr. 136, 180 Pac, 564; Warren v. State, 24 Okla. Cr. 6, 215 Pac. 635; Johnson v. State, 35 Okla. Cr. 212, 249 Pac. 971; Jewell v. State, 41 Okla. Cr. 389, 273 Pac. 366.

There is no contention in this appeal that a fair and impartial jury was not obtained in Sequoyah county.

Considering the whole record in the light of the decisions of this court, it cannot be said an abuse of judicial discretion appears by the action of the trial court in denying a change of venue.

It is next contended the trial judge erred in giving certain instructions to- the jury in his general charge.

Complaint is first made of instruction No. 12, which reads as follows:

“The commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, rests upon the defendant, unless the proof on the part of the state tends to show that the crime committed only amounts to manslaughter, or that the defendant was justified or excusable.”

This instruction is an exact copy of section 2719, C. O. S. 1921.

In Dorris v. State, 27 Okla. Cr. 208, 226 Pac. 590„ 592, this court, in discussing this statute, said:

“This does not mean that the defendant must prove such circumstances by a preponderance of the evidence, but that the presumption that the killing was felonious arises from the mere proof of the commission of the homicide by the defendant, and the burden of proving circumstances of mitigation, etc., thereby devolves upon him. The defendant is only bound under this rule to produce such evidence as will create in the minds of the jury a reasonable doubt of his guilt of the offense. It can make no difference whether this reasonable doubt is the result of evidence on the part of the defendant, tending to show circumstances of mitigation or that justifies or excuses the killing, or from other evidence coming from him or from the state.
“The universal rule that a defendant shall not be convicted unless the evidence proves his guilt beyond a reasonable doubt applies to the whole and every material part of the case.
“The statutory rule does not attempt to provide the degree of proof required of him, but leaves the rule as to the degree of the evidence necessary to convict as it was before.”

This court has sustained the giving of this instruction in Hawkins v. United States, 3 Okla. Cr. 651, 108 Pac. 561; Culpepper v. State, 4 Okla. Cr. 103, 111 Pac. 679, 31 L. R. A. (N. S.) 1166, 140 Am. St. Rep. 668; Williams v. State, 9 Okla. Cr. 206, 131 Pac. 179; Lumpkin v. State, 5 Okla. Cr. 488, 115 Pac. 478; Brown v. State, 15 Okla. Cr. 64, 175 Pac. 66; Jones v. State, 20 Okla. Cr. 233, 202 Pac. 187; Proctor v. State, 22 Okla. Cr. 445, 211 Pac. 1057.

It is a well-settled rule of this court that instructions must be considered as a whole, and, when so considered, if they fairly state the law as applicable to' the facts in the case, they are sufficient.

Complaint is also made of other instructions, but applying this rule to the instructions as a whole, it is evident that they fairly state the law and are as favorable to the defendant as the facts and the law would require.

No reversible error appearing in the record, and the evidence being sufficient to justify the infliction of the death penalty, the cause is affirmed.

The original time for the execution having passed, owing to the pendency of this appeal, it is considered, ordered, and adjudged by this court that the judgment and sentence of the district court of ¡Sequoyah county be carried out by electrocution of the defendant on the 20th day of October, 1933.

DAVENPORT, J., concurs.

EDWARDS, P. J,

(dissenting in part). After a close reading of the record and a careful consideration of the briefs, I concur in the court’s opinion that the verdict and judgment of murder is amply sustained and that no errors of any consequence appear. I am of the opinion, however, that justice under all circumstances does not require the extreme penalty of death and that this court should modify the judgment by reducing it from death to life imprisonment.


source: Caselaw Access Project

author: EDWARDS, P. J.

license: Public Domain

text:
    Ex parte CURTIS BAILEY.
    No. A-8607.
    Sept. 29, 1933.
    (25 Pac. [2d] 718.)
    J. M. Roberts, for petitioner.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus. Petitioner alleges he is unlawfully restrained by the warden of the penitentiary at McAlester; that in 1931 he was convicted in the district court of Semi-pole county on a charge of burglary with explosives, and was sentenced to imprisonment for a term of 20 years; that petitioner did not appeal from said judgment; that he was! without funds and did not know he had a right of appeal as a poor person; that he is not guilty of the crime for which he was charged; that the evidence for the state was insufficient.

Petitioner further contends the statute under which he was convicted, section 1937, Okla. ¡Stat. 1931, is in conflict with section 1931, Okla. Stat. 1931, and is invalid. The petition, on its face, disclosed that most of the things complained of are not jurisdictional, and are errors which can be raised only by appeal. It has been said many times by this court that a proceeding by habeas corpus cannot be used to> take the place of a writ of error or an appeal. Ex parte Pike, 50 Okla. Cr. 125, 296 Pac. 529. Only those defects in the proceedings which render the judgment void or deprive an accused of due process of law can be inquired into on habeas corpus.

The contention that section 1937 is invalid as in conflict with section 1931 is without merit. Section 1937 was enacted by the Legislature in 1913 and is a statute of classification and not definition. It provides for an enlarged punishment for one who, while engaged in a burglary, uses explosives, fixing a minimum punishment of 20 years and a maximum of 50 years. Richards v. State, 22 Okla. Or. 199, 210 Pac. 295; Ward v. State, 34 Okla. Or. 296, 246 Pac. 664.

For the reasons assigned, the writ is denied.

DAVENPORT and CHAPPELL, JJ., concur.


author: DAVENPORT, J.

text:
    HAROLD JOHNS v. STATE.
    No. A-8560.
    Sept. 29, 1933.
    (25 Pac. [2d] 716.)

      Alvin Moore, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of rape in the second degree, and sentenced to serve a term of one year and six months in the state penitentiary, from which judgment and sentence the defendant appeals.

The testimony on behalf of the state shows that the prosecuting* witness, Margorie Linscott, was 16 years of age, and under 18, was attending school in the city of Shattuck, and assisting with the housework for her room and board at the home of Mr. and Mrs. Roy Edwards; that while there she became acquainted with the defendant, Harold Johns; Johns persuaded the prosecuting witness to get in his ear and ride out with him some distance from town, and in a secluded place and against the will of the prosecuting witness, and by force, raped the prosecuting witness.

The proof further shows that the witness thereafter became infatuated with the defendant and. on several occasions; had intercourse with defendant; finally it was discovered that the prosecuting witness had conceived and would soon become á mother; when it was learned the prosecuting witness was pregnant the parents communicated with the defendant, and defendant drove out to the home of the prosecuting witness and there discussed the question with her father and mother, admitting his guilt and made an offer to settle, by offering to pay the expenses of her confinement, and suggested she could be sent away some place until the child was born; that the child could be adopted by some one and Margorie could return home and no one would ever know what had happened. The mother of the prosecuting witness suggested that he marry her. The testimony on behalf of the state clearly shows that the defendant committed the offense charged against him.

The defendant did. not testify in the trial, but called several witnesses, one of whom testified he had seen another man on the golf course cohabiting with the prosecuting witness; another witness testified he had had sexual intercourse with the prosecuting witness. This is in substance the testimony.

The defendant has filed 14 assignments wherein he alleges the trial court committed error sufficient to warrant a reversal of this case. The fourth assignment of the defendant is, that the court erred in overruling the demurrer to the information on the ground that the information was insufficient to charge a crime.

Section 2515, subdivision 2, Oklahoma Statutes 1931, defines rape in the second degree:

“Where the female is over the age of sixteen years and under the age of 18, and of previous chaste and virtuous character.”

It is urged by the defendant that the information is insufficient and that it does not state facts sufficient to charge the crime of rape in the second degree. With this contention we cannot agree. An examination of the record in this case clearly shows that defendant not only knew the crime chargéd against him, but prepared and made his defense seeking to show that the unfortunate girl, Margorie Linseott, was not of previous chaste and virtuous character, by calling a number of witnesses to show the prosecuting witness had had sexual intercourse with other parties.

The record discloses that the defendant did not take the stand to deny any statement of the prosecuting witness, or the statements of the father and mother. This case presents a deplorable condition. Here we find a country girl of 16 years of age, ambitious for an education, coming to' the city working for her board and room in order that she may acquire it. She comes in contact with a man 29 years of age who persuades her to' get into his car and drives her to the country, and with deceitful cunning and persuasion cohabits with her, and then continues for some time, according to the undisputed testimony, to cohabit with her until it is known she has conceived and will be a mother. Then we find this man of 29 years of age, after he had satisfied his passion and brought disgrace and ruin to- the girl, not possessing manhood enough to try to protect her, but ready and willing to drag the girl down further into- the depths of disgrace by having witnesses swear other men had intercourse with the prosecuting witness about the time or before the prosecuting witness alleges the defendant cohabited with her. This clearly shows a depraved mind and a want of manhood, and it further shows that the defendant was not taken by surprise, or that he did not know the offense charged against him, but that he made an effort to further disgrace the girl by showing she was not of previous chaste and virtuous character.

The defendant, according to the record in this case, is not only guilty of the crime charged against him, but has shown himself to be unworthy to be classed as a gentleman, and has dragged into this case other boys or men who were willing to testify to- such a statement of facts that a reputable jury wholly disbelieved, and returned its verdict convicting this defendant. As disclosed by the record in this case, the verdict is a righteous and just verdict, and one that told the defendant, and those who were willing to- assist the defendant in trying to- drag the name of this unfortunate girl, the prosecuting witness in this case, further down in immorality, shame, and disgrace, that their testimony was wholly unworthy of'belief. The information stated facts sufficient to- advise the defendant. of the charge against him, and the court did not err in overruling his objections- to the information. Hast v. Territory, 5 Okla. Cr. 162, 114 Pac. 261; Davis v. State, 17 Okla. Cr. 604, 191 Pac. 1044.

It is next urged by the defendant that the information was not verified. There is nothing in this contention, as this court has often held an information charging a felony need not be verified.

Defendant further presents the question that the certified transcript of the proceedings in the preliminary had not been filed in the trial court when the information was filed, and that until the transcript was filed in the district court there was nothing before the court, and that the court was without jurisdiction. The case of Lary v. iState, 50 Okla, Cr. Ill, 296 Pac. 512, is decisive of the contention raised. In the Lary Case the court held:

“A motion to set aside the information on the ground that it was filed before the record of the preliminary examination and the order of commitment by the magistrate was received by the court clerk, should be overruled, where such information was filed after the preliminary examination in fact had been held and the order of commitment had been made and entered of record by the magistrate, and where, prior to the trial, the record of the preliminary examination and the order of commitment are duly filed with the court clerk.”

The court did not err in overruling the motion of defendant to dismiss for the reason that the record discloses that the trial did not take place until the transcript of the examining magistrate had been filed in the district court clerk’s office.

The defendant in his eleventh assignment urged that the court erred in permitting the district attorney, in his closing remarks, to allude indirectly to the fact that the defendant did not testify, and sets out in his brief the remarks made by the counsel in the closing argument. As the argument of counsel on both sides is not before the court, this court, cannot say whether the attorney for the defendant went outside of the record on the question of the defendant’s failure to testify or not. If he did, the attorney for the state would have a right to reply to his argument. No motion was made by defendant, or request to exclude the argument from the jury, nor was the court requested to advise the jury that the argument was improper and they should not consider it. The remarks of the county attorney in his closing argument to the jury, under the facts disclosed by the record, held not a comment upon the failure of the defendant to' testify, within the meaning of section 3068, Okla. Stats. 1931.

The record in this case has been carefully read and studied. There are other assignments not referred to in this opinion, for the reason they do not possess sufficient merit to warrant a reversal of this case. The defendant was accorded a fair and impartial trial, and the jury in fixing the punishment was extremely reasonable. The motion of the defendant for a new trial was properly overruled. Finding no errors in the record sufficient to warrant a reversal, the judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    NELL VICTORIA MOSHER v. STATE.
    No. A-8491.
    Sept. 15, 1933.
    Rehearing Denied Oct. 6, 1933.
    (25 Pac. [2d] 342.)

      Jack W. Page, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, for convenience hereafter referred to as the defendant, was charged by information with the possession of a certain quantity of intoxicating liquor, to wit, one-half gallon of whisky, and was by the verdict of the jury found guilty, but the verdict does not state for what crime defendant was found guilty. The jury fixed her punishment at a fine of $100 and confinement in the county jail for a period of 30 days.

In view of the charge in the information, this court will treat the verdict as finding the defendant guilty of possession of intoxicating liquor with intent to barter, sell, give away, or otherwise furnish to others. The evidence on behalf of the state shows the officers went to the home of the defendant with a search warrant and searched her premises and found four pints of whisky in her home. No evidence was introduced on behalf of the state of any effort to sell, give away, or furnish. There is some testimony that a pitcher found, in the room had the odor of whisky in it. The defendant offered no testimony.

The question of the intent of the defendant was a question for the jury. The defendant urges that the evi-' denee is insufficient to- sustain a conviction. The evidence of the possession of four pints of whisky does not necessarily prove guilt. It is merely prima facie evidence. Such evidence may be rebutted and the contrary shown, or without any explanation the jury may disbelieve the evidence of the state, or may have a reasonable doubt of the intent to violate, notwithstanding the proof of possession. The matter of intent when coupled with possession is largely a matter of fact to be determined by the jury, and from the very nature of the intent is not susceptible of being proven by direct and positive evidence, but must be proven by circumstances; just what circumstances would be sufficient in any case cannot be defined by any fixed rule. The jury heard the evidence of the possession of the whisky, and by its verdict found the defendant guilty and fixed her punishment.

The defendant was accorded a fair and impartial trial. The judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    GEORGE SPINDEN v. STATE.
    No. A-8563.
    Oct. 6, 1933.
    (25 Pac. [2d] 800.)
    Hughes & Dickson and George M. Frittz, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to' as the defendant, was convicted of transporting intoxicating liquor, and sentenced to pay a fine of $50 and be imprisoned in the county jail for 30 days, from which judgment and sentence the defendant appeals.

The testimony on behalf of the state shows the defendant went to the town of Guymon at the request of the officers who had Jim Papay in custody, for the purpose of making bond for Papay. After the parties arrived in Guymon, and while waiting for the bond to be prepared, the defendant stated to some one of the parties that he was going to get something to eat. Two of the officers followed the defendant until he was about to enter a restaurant, when one of the officers called and told him not to go in there and to give him the bottle he had in his pocket.

The testimony further shows that the defendant had a bottle in his pocket; that he drew the bottle out of his pocket and threw it down on the sidewalk or pavement, breaking it. The officers say the contents of the bottle smelled like whisky. There was a small quantity of liquid of some kind in the bottle; no part of it was saved; no one knew what the color of the liquid was; and neither of the officers tasted the contents of the bottle. The officers stated they started after the defendant to search him and place him under arrest; they had no warrant for his arrest; no charge had been filed, or complaint made against him.

The defendant admits driving with one of the officers and Jim Papay to Guymon; that when he started into the restaurant and the officers stopped him he took a bottle from his pocket and threw it down and broke it. He says he does not know what the contents of the bottle were.

The conduct of the officers after having this defendant around with them at the courthouse for some time and waiting until he started up the street to get something to eat before attempting to either search or arrest the defendant is not to' be commended, nor is the proof in this case as to the contents of the bottle being whisky very strong. It is; true the officers say it smelled like whisky. Many other drugs have the odor of whisky. The jury heard the evidence and found the defendant guilty. While the evidence is weak and unsatisfactory, yet there is some competent evidence, and this court has repeatedly held that, where there was any competent evidence to sustain a conviction, it would not interfere with the verdict.

The defendant was accorded a fair trial. There are no errors in the record sufficient to- warrant a reversal.

The judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    CORDON EDWARDS v. STATE.
    No. A-8569.
    Oct. 6, 1933.
    (25 Pac. [2d] 800.)
    Jno. L. Ward, Oran N. McCain, and Wayne Evans, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of robbery with firearms, and was sentenced to serve a term of ten years in the penitentiary.

Defendant, jointly with Roy Kennedy and Charlie Martin, was charged by indictment with the robbery of Emile Meyer. On the date charged, the three named, about the hour of 2 a. m., entered the restaurant of Meyer, in which, at the time, Meyer, his cook and a porter, were preparing to close for the night. Martin and Kennedy were in advance of defendant. They went to the rear, required the cook and porter to> go to the front and to lie down behind the counter. Defendant came in Avith a pistol in his hand, put it to the back of Meyer, and compelled him also to go behind the counter, and, while in this position, Meyer testified defendant reached around and took out of his pocket about $35 in money; and at about this time Kennedy and Martin went to the cash register and rifled it of about $50. The three then left the restaurant. Defendant Avas tried separately. He did not take the stand or offer any testimony.

It is argued the testimony is insufficient in failing to show threats or conduct by defendant which would constitute the crime of robbery. Under this assignment defendant argues there is no testimony showing concert of action or connection between Kennedy, Martin, and the defendant, and that it is not shown defendant made any threats to injure Meyer nor that Meyer was put in fear. The applicable statutes are sections 2542, 2544, and 2546, Okla. St. 1931. There is no question but that this robbery was committed by the use of firearms. Defendant put a pistol to the back of Meyer, and at this time Meyer testified defendant put his hand in his pocket and took some inoney. Defendant contends that, since Meyer’s back was turned at the time, there is, no sufficient proof that defendant took the money from Meyer’s pocket. The point is immaterial. Under the evidence it would make no difference, SO' far as defendant is concerned, whether he or Kennedy took the money from Meyer’s pocket.

Upon the question of fear, this court in the case of Ross v. State, 31 Okla. Cr. 143, 237 Pac. 469, held:

“Where a pistol is pointed in a threatening manner at an owner or custodian of money, who thereupon permits it to be taken, such act is ‘robbery,’ although the custodian or owner may not be in actual fear, since fear is presumed where such act is committed violently and against the will of the person robbed” — citing authorities in support, which case was followed in Wissinger v. State, 39 Okla. Cr. 324, 264 Pac. 631.

Considering the contention that no concert of action between defendant and Kennedy and Martin is shown, while it is true that robbery, commonly referred to- as hijacking, is all too prevalent, yet we cannot believe it is so common that two' different parties, acting independently, unknown to each other, and. at the same time, could rob the same victim. Yet this is the force of defendant’s argument when he asserts there is no proof of concert of action.

The contention is made that the court erred in the admission of and in exclusion of testimony. We have examined closely all the matters pointed out under this assignment. As stated, defendant offered no testimony, but in the course of the examination of the witness Taylor, negro porter, by defendant’s counsel, the question of the height of defendant was being inquired into, and counsel had Taylor and the defendant stand up back to back that their comparative height might be shown the jury. He then asked Taylor if defendant was not three or four inches taller. An objection was sustained. Counsel then offered to prove that, if permitted to answer, the witness would testify in the affirmative. It is argued this is prejudicial. The evidence sought to be elicited would tend to affect the credibility of the witness upon an immaterial point, but in any event it was purely demonstrative; the jury could see the difference in height as well or better than the witness could. The other points made on the admission or rejection of testimony are equally without merit.

Lastly, it is contended that counsel for the state committed prejudicial error in his argument in commenting indirectly on the failure of defendant to testify and in the use of argument calculated to arouse the prejudice of the jury. Numerous objections were made in the course of the argument, most of which were overruled. In no instance did defendant’s counsel move the court- to instruct the jury not to consider the claimed objectional remarks.

We do not deem it necessary to set out the matter objected to, but we are satisfied none of it amounts to a comment, either directly. or indirectly, on the failure of defendant to testify; that none of it is objectionable as tending to arouse passion or prejudice of the jury. On the whole case it clearly appears defendant had a fair trial. The verdict is amply supported by the evidence.

The case is affirmed.

DAVENPOItT and CHAPPELL, JJ., concur.


author: EDWARDS,. P. J.

text:
    Ex parte W. H. MADDOX.
    No. A-8631.
    Oct. 13, 1933.
    (25 Pac. [2d] 1111.)
    Amil H. Japp and William F. Collins, for petitioner.
    J. Berry King, Atty. Cen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS,. P. J.

This is an original proceeding in habeas corpus. Petitioner alleges he is unlawfully restrained by the sheriff of Comanche county; that he is indicted in'Navarre county, Tex; and that the Governor’s warrant of this state has been issued to arrest and deliver petitioner to the state of Texas. Among other things, petitioner alleges his prosecution in the state of Texas is not in good faith, but is to enforce the collection of a debt. On the petition and the exhibits attached, this court declined to issue a writ of habeas corpus, but did issue a rule to show cause. The sheriff of Comanche county, respondent, in answer thereto; stated he holds petitioner under the Governor’s warrant for delivery to the agent for the state of Texas.

The petition, Avith exhibits, affidavits, and other evidence in this court, discloses that petitioner, driving an automobile on the highways in Texas, ran against a named person, an indigent negro woman, who was taken to the hospital and some time afterwards died; that the hospital bill for said patient was $300; that petitioner gave his note for the said sum and made an assignment of wages of $15 per week, to be applied on note, and that there is due and unpaid on the note $275; that petitioner has failed and refused to malee any further payments, and was thereupon indicted for murder.

Upon a consideration of all the evidence, we are satisfied the indictment resulted from the. failure of petitioner to pay this hospital bill, and for that reason the prosecution is not in good faith. Ex parte Owens, 34 Okla. Or. 128, 245 Pac. 68. The writ of habeas corpus should be awarded, and the petitioner discharged.

It is so ordered.

DAVENPORT and CHAPPELL, JJ., concur.


author: PER CURIAM.

text:
    Ex parte F. M. McDANIEL.
    No. A-8637.
    Oct. 13, 1933.
    (25 Pac. [2d] 1118.)
    Amon Collins and Stansell Whiteside, for petitioner.
    Hollis Arnett, for respondent.
   PER CURIAM.

This is an original proceeding in habeas corpus for a reduction of bail. Plaintiff alleges he is illegally restrained by the sheriff of Greer county on two charges of incest, and that his bail has been fixed on one of said charges at $10,000 and on one at $1,000 and that same is excessive.

Upon a consideration of the record and the stipulation of facts, the court finds that the bail is not excessive, and the writ is denied.


author: CHAPPELL, J.

text:
    EARL QUINN v. STATE.
    No. A-8586.
    Sept. 22, 1933.
    Rehearing Denied Oct. 13, 1933.
    (25 Pac. [2d] 711.)

      Mathers & Mathers and Otjen & Carter, for plaintiff in error.
    J. Berry King, Atty. Gen., F. M. Dudley, Asst. Atty. Gen., O. B. Martin, Co. Atty., and Dave Bucher, Co. Atty. (John Y. Roberts, of counsel), for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Garfield county of the crime of murder in the killing of Jessie Griffith, and his punishment fixed by the jury at death.

Defendant was originally convicted in the district court of Kay county of the crime of murder, and his punishment fixed by the jury at death. On November 29, 1932, this court reversed that case, with directions to the court to grant a change of venue (Quinn v. State, 51 Okla. Cr. 179, 16 Pac. (2d) 591) ; the grounds for such reversal being:

(a) Error of the court in overruling defendant’s application for a change of venue;

(b) Error of the court in refusing the state’s and defendant’s request that the witness Reber, in or out of the presence of the jury, be allowed to make ballistic and other tests of thei weapon claimed to have been used in connection with the offense;

(c) Error of the court in refusing the application of defendant, consented to by the state, directing the exhumation of the bodies of the Griffith sisters, that the bullets which caused the deaths might be brought into court and ballistic tests made by competent persons;

(d) Error of the court in admitting the testimony of the state’s witness Myrtle Patton as to rape claimed to have been committed upon her by the defendant 30 days prior to the date of the crime for which he was being tried.

The change of venue having been granted, the bodies exhumed, the ballistic tests made, and the evidence of Myrtle Patton excluded, these questions are entirely eliminated from the case at bar, and it is very much simplified.

Defendant complains the court erred in overruling his motion for a new trial:

First. Because of newly discovered evidence.

This newly discovered evidence consists of an affidavit of Anna E. Judson that on the morning of December 28th she was driving from Blackwell to Tonkawa and saw ahead of her a coupe occupied by two' women; that this coupe stopped in Tonkawa and the women were engaged in conversation with some man. The time fixed by her, however, rendered it improbable that the Griffith sisters were the parties she saw.

Also' an affidavit of Fred Gardner that at about 7 o’clock on the morning of December 28th he was driving a truck on his route from Blackwell tO' Oklahoma City; that at the intersection of the pavement south of Tonkawa with the dirt road leading west, a man, very nervous and excited, stopped him by pointing an automatic pistol at him and forced him to drive him to Oklahoma City; and that this man was not the defendant.

This court has many times held it is not error to overrule a motion for a new trial on the ground of newly discovered evidence, where it is apparent the evidence would not change the result of the trial.

Second. Because the court erred in overruling the motion for a new trial on the ground that defendant discovered after the trial that T. W. Clark, who testified in rebuttal for the state, was an ex-convict, having served a term in the penitentiary for rape, and that his reputation for truth and veracity was bad.

In Caple v. State, 3 Okla. Cr. 622, 105 Pac. 681, this court said:

“A new trial will not be granted on the ground of newly discovered evidence to impeach the reputation for truth and veracity of witnesses for the state.” McKenzie v. State, 34 Okla. Cr. 233, 245 Pac. 1005.

Third. It is contended the court erred in overruling his motion for a new trial on the ground that some of the jurors who- sat in the trial of the case made untrue answers on their voir dire examination and were biased and prejudiced against defendant,'which prevented him from having a fair trial. To support this charge defendant called certain witnesses who testified they had heard the jurors, George Bummery, Clifford Bundy, Bob Gille, Roy Cochran, and R. C. Thomas, make statements and express opinions of the guilt of defendant, indicating their bias and prejudice. To rebut this charge, the state called the jurors, who, each for himself, separately denied making any of the statements or expressing any opinion as to the guilt or innocence of defendant, and in addition the state called witnesses to impeach some of the witnesses called by defendant.

The granting or denying of a new trial on the ground of newly discovered evidence is within the sound discretion of the trial court, and the case will not be reversed unless an abuse of such discretion appears upon the record. It is apparent from the record that the evidence claimed to have been discovered by defendant, if introduced, would not change the result of the trial.

It is next contended the court erred in permitting the state to offer the evidence of the witness T. W. Clark, who testified in rebuttal, when in fact his evidence was in chief.

Defendant on cross-examination denied he was on Highway 177, in a Buick automobile, pursuing the deceased, who were riding in a Chevrolet coupe, seeking to crowd their coupe into the ditch and thus stop them. The witness Clark testified to being at the intersection of Highways 177 and 77, and to seeing a Buick coupe pursuing a Chevrolet coupe occupied by two' women, and to hearing talk or screams coming from the pursued coupe. In Tingley v. State, 16 Okla. Cr. 639, 184 Pac. 599, this court said:

“It is discretionary with the trial court, in furtherance of justice, to permit evidence in rebuttal which would have been competent evidence in chief.” Shires v. State, 2 Okla. Cr. 89, 99 Pac. 1100; Hampton v. State, 7 Okla. Cr. 291, 123 Pac. 571, 40 L. R. A. (N. S.) 43; Seigler v. State, 11 Okla. Cr. 131, 145 Pac. 308, 309.

Clark’s evidence might have been introduced in chief had his name been served on defendant as required by the Constitution; but, being proper rebuttal, it was not error for the trial court to permit the state to introduce the evidence for that purpose.

It is next contended the court erred in refusing to permit defendant to introduce certain evidence which he claimed tended to show the offense for which defendant was being tried had been committed by one Jim Coleman.

An examination of the tender shows the whole purpose of this evidence was to prove Jim Coleman had a motive to hill the daughters of one Milt Harris, but due to a mistake in identity killed Jessie and Zexie Griffith instead. None of the tendered evidence tends to connect Coleman by any overt act with the commission of the offense.

In Phillips v. State, 29 Okla. Cr. 415, 203 Pac. 902, this court said:

“It is competent for the defendant to show, by any legal evidence, that some other person committed the crime charged, and that he had no participation in it. But this cannot be shown by testimony merely tending to show a possible motive on the part of another to commit the crime. The evidence offered must connect such other person with the fact; that is, some overt act on the part of another towards the commission of the crime itself. There must be evidence of acts or circumstances that tend clearly to point to’ another, rather than to the defendant, as the guilty party.”

To the same effect are: Dykes v. State, 11 Okla. Cr. 602, 150 Pac. 84; Davis v. State, 54 Okla. Cr. 285, 19 Pac. (2d) 384.

In State v. Davis, 77 N. C. 483, that court said:

“On the trial of an indictment for murder, the declarations of a third party which have no legal tendency to establish the innocence of the prisoner are not admissible as evidence in his behalf. Therefore evidence that a third party ‘had malice towards the deceased, a motive to take his life and the opportunity to' do- so, and had threatened to do so/ is not admissible.”

To the same effect are: Alston v. State, 63 Ala. 178; Carlton v. People, 150 Ill. 181, 37 N. E. 244, 41 Am. St. Rep. 346.

In most of the cases cited and relied on by defendant, the third party was shown to have been near the place at the time the offense was committed and there were other facts and circumstances tending to connect the third, party with the offense. But no such state of facts is shown to exist in the evidence offered by defendant. Under the foregoing authorities, it was not error for the trial court to refuse defendant’s offer to introduce the tendered testimony.

It is also contended there was misconduct on the part of the bailiffs in charge of the jury. The record does not support this contention.

It is next contended Mr. Roberts, special counsel appointed by the Governor to assist in the prosecution, was guilty of prejudicial conduct, which prevented defendant from having a fair and impartial trial.

The record discloses that during, his argument Mr. Roberts said:

“I believe in that class of punishment like what is known as Missouri Justice, like where that fellow murdered that school teacher, and where the angry crowd tied him, hand and foot, across the top of the building and set it on fire. Mr. Mathers: We object to' that statement and want a record on it. The Court: Sustained. Gentlemen of the Jury, you will not consider that statement of Mr. Roberts. That is not a part of the record in this case and you will not consider it. Stay within the record, Mr. Roberts.”

Ordinarily a case will not be reversed for improper remarks, for improper argument, or for misconduct of counsel, unless it appears that the acts complained of may have influenced the jury in arriving at their verdict and resulted in substantial prejudice to defendant. This principle has been applied in the following instances: Where defendant’s guilt was clearly established by the evidence; where the verdict shows that the improper remarks had no effect; where no other verdict could have been found under a reasonable view of the facts. This rule finds support in: Williams v. State, 4 Okla. Or. 523, 114 Pac. 1114; Allen v. State, 13 Okla. Or. 395, 164 Pac. 1002, L. R. A. 1917F, 210. In Murray v. State, 24 Okla. Or. 113, 217 Pac. 891, 892, this court said:

“A conviction will not be reversed on the ground of alleged misconduct of counsel for the state, unless upon consideration of the whole case, we can say that the prosecuting attorney was not only guilty of misconduct, but that such misconduct might have in some degree influenced the verdict against the defendant.”

The remarks of counsel were improper and uncalled for. Not often is any good purpose served by the appointment of special counsel where the county attorney or the Attorney General’s office are in charge of the prosecution, but many times results in improper conduct similar to that complained of. Defendant’s guilt was clearly established by the evidence and no' other verdict than the one found could honestly have been returned. The remarks complained of were not on a material point or issue in the case. Upon consideration of all the evidence and that the trial court admonished the jury not to consider the remarks of counsel, and reprimanded him, it cannot be said tbe jury was in the slightest degree influenced in rendering its verdict by such remarks.

It is next contended the court erred in permitting the introduction of evidence tending to show flight of defendant.

The state called several witnesses who testified to facts and circumstances tending to show the excited and nervous condition of defendant, his attempt to conceal himself, and his speedy exit from the scene of the crime; his abandonment of his wife and automobile at Wellington, Kan., in the nighttime; and that he was not seen any more for several months, until taken into custody some place in Nebraska or Iowa.

Flight is a circumstance tending to prove guilt. Pittman v. State, 8 Okla. Cr. 58, 126 Pac. 696; Jackson v. State, 12 Okla. Cr. 406, 157 Pac. 945; Colglazier v. State, 23 Okla. Cr. 23, 212 Pac. 332; Wettengel v. State, 30 Okla. Or. 388, 236 Pac. 626. To constitute flight it is not essential that there should be an escape from jail or the officers, but it may consist of the departure from the place of the crime by one conscious of his guilt, even before suspected of the crime. Under the authorities above cited, the evidence tending to show defendant’s flight was clearly admissible.

It is next contended the court erred in admitting certain incompetent evidence offered by the state against defendant :

First. That the court erred in permitting Charles Wagner, chief of police of Tonkawa, to testify to the discovery of the fatal gun, and that defendant’s wife was present at the time he located the place where the gun was found.

The state contended at the trial the fatal gun found by Charles Wagner and introduced in evidence was the gun which defendant possessed on the night of the murders, and that the facts and circumstances surrounding the discovery and recovery of the gun tended to establish that the gnn was one possessed by defendant on the night of and immediately before the killing.

In Commonwealth v. Johnson, 213 Pa. 432, 62 A. 1064, that court said:

“Facts learned by competent witnesses will not be excluded, because they may have been put on the track of the facts by information derived from the wife of the prisoner.”

To the same effect is Welker v. New York Central Railroad et al., 275 Pa. 82, 118 A. 615, 616. In the body of the opinion, that court said:

“While the wife would not have been a competent witness against her husband, there is no rule of law which prevents a third person from instituting criminal proceedings based on facts learned through information given by the wife of the accused. The admission of such facts in evidence is not permitting the wife to testify against her husband.”

In Clark v. State, 159 Tenn. 507, 19 S. W. (2d) 228, that court said:

“Testimony of third parties, where otherwise competent, was not rendered incompetent in prosecution of husband because facts related therein were based on extrajudicial and voluntary disclosures of wife.”

Second. The court erred in permitting a hardware merchant to testify that a few days prior to the homicide he sold defendant’s wife six cartridges of the same caliber and make as that used in the killing.

The state first introduced the shells found at the place of the homicide; next that defendant’s wife purchased the same kind of shells; next that they occupied the same room for several days after this and before- the homicide, where defendant had opportunity to obtain these shells; and, finally, that the bullets which killed the deceased came from the shells found at the scene of the homicide.

Without citing further authorities, it is sufficient to say the same rule would apply to the purchase of the shells as applied to the presence of defendant’s wife with the officers at the place where the fatal gun was found.

It is next contended the court erred in permitting the introduction of the fatal gun.

If the gun used in the killing and introduced in evidence belonged to' defendant and was in his possession at about the time the offense was committed, it was strong proof that defendant and no other did the killing.

The bodies having been exhumed on order of this court and ballistic tests made from the bullets, the state offered proof, through its expert, Mr. E-eber, that the bullets which caused the death of the deceased were fired from the identical gun found by Wagner and introduced in evidence by the state.

Upon a trial for murder, where it appears the injuries were inflicted by a certain kind of instrument or Aveapon, evidence that defendant had such a weapon in his possession before the murder is admissible. Morgan v. Territory, 16 Okla. 530, 85 Pac. 718; 16 C. J. 546. It is always competent to introduce testimony in a capital case tending to show possession by defendant of the means of committing the homicide in the manner in which it was committed. Michie on Homicide, vol. 1, page 857; Jones v. State, 137 Ala. 12, 34 So. 681; People v. Place, 157 N. Y. 584, 52 N. E. 576; Wheeler v. State, 61 Tex. Cr. R. 527, 136 S. W. 68; Clark v. State, 159 Tenn. 507, 19 S. W. (2d) 228; State v. Walker, 133 Iowa, 489, 110 N. W. 925.

Tbe pistol, bullets, and shells admitted in evidence having been sufficiently identified as tbe fatal pistol, bullets, and shells, were properly admitted by tbe court.

It is next contended tbe court erred in permitting tbe doctor who made tbe post mortem examinations to testify that in bis opinion Jessie Griffith bad been raped.

A question asking for an opinion of tbe cause of death or tbe fact of rape, based upon a given hypothesis, or upon personal knowledge of'the condition, or both, is one that a properly qualified witness may be allowed to answer. This rule is supported by authorities too numerous to mention.

Defendant complains of other errors, but they are without any substantial merit.

The case at bar is much stronger than that presented at the former trial. The errors which required a reversal of the former case are none of them present in this case. The exhumation of the bodies, the making of the ballistic tests, and the identification of the death weapon as belonging to defendant make out a perfect case. There can be no doubt of defendant’s guilt.

Since the evidence clearly establishes that the defendant is guilty of one of the most heinous crimes in the history of the state, and since the errors of law complained of are without any substantial merit, the cause is affirmed.

The original time for execution having passed, owing to the pendency of this appeal, it is considered, ordered, and adjudged by this court that the judgment and. sentence of the district court of Garfield county be carried out by electrocution of the defendant on the 24th day of November, 1933.

EDWARDS, P. J., concurs. DAVENPORT, J., does not participate.


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    A. B. ALLCOTT v. STATE.
    No. A-8564.
    Sept. 29, 1933.
    Rehearing Denied Oct. 20, 1933.
    (25 Pac. [2d] 1112.)
    J. O. Whiteside, for plaintiff in ereror.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of the crime of grand larceny by fraud, and his punishment fixed by the jury at imprisonment in the state penitentiary for a term of two years and six months.

The evidence of the state was that J. E. Hubbs was the owner of a 1929 model De Soto sedan, which he had purchased in Los Angeles, Cal., the purchase being financed by the Sterling Finance Corporation of that city; that Hubbs was a traveling man, and with permission of the finance corporation had brought the car to Oklahoma City and was working out of that city; that he had paid up all back installments and stored the car in the Continental Garage; that defendant had at one time been an enforcement officer in the highway department, charged with the duty of collecting delinquent automobile license taxes, but that his authority had expired six months before the transaction complained of; that defendant went to the Continental Garage and, finding this car, told the garage owner that he was a state enforcement officer, and to not let the car go out without orders from him; that there was attached to the steering wheel of the car an identification slip from which defendant got the information that the Sterling Finance Corporation had a mortgage on the car; that defendant wired the finance corporation he had this car under observation and inquired if they wanted it held for their disposition; that the finance corporation wired defendant to obtain the address of Hubbs, that the balance due on the car was $120.71, and to hold the car until payment could be arranged; that defendant wired the finance corporation Hubbs’ last known address was Fort Worth and the car was in bad condition; that later defendant wired the finance corporation to send him certified copy of their mortgage, as under the Oklahoma law after 120 days the mortgage would be invalid; that later he wired them he had paid $30 storage and $27.35 personal service, and that if he did not hear from them within a few days he would sell the car; that later defendant obtained a license for the car by making an affidavit that the West Insurance Company had a mortgage on it; that as a result of all these telegrams and maneuvers, Allcott sold the car, refusing at first to give the name of the party he sold it to, but later giving that information.

Defendant did not take the witness stand and made no explanation of the facts and circumstances surrounding the taking of the car, nor what he did with the proceeds of the sale.

The first contention is that the evidence is insufficient to support the verdict of the jury.

A careful reading of the evidence convinces the court that defendant obtained possession of the car by fraudulently representing that he was a state enforcement officer, receipting for the car under that authority, and that he handled the whole transaction with the intent to unlawfully obtain possession of the car and dispose of the same.

It is next contended the court erred in admitting incompetent evidence.

The state, through the telegraph company, introduced a series of telegrams sent by defendant to the Sterling Finance Corporation, and their telegrams to him. These were undoubtedly admissible as tending to show the steps by which defendant obtained possession of the car, and his purpose in obtaining the same.

The only exhibit which might be contended to be inadmissible is a letter written by the Sterling Finance Corporation to Hubbs, but the record discloses that most of the incriminatory facts conveyed to Hubbs by the finance corporation in this letter were derived from telegrams received by said corporation from defendant and by testimony given by the prosecuting witnesses elicited by counsel for defendant on cross-examination. In Ford v. State, 23 Okla. Cr. 46, 212 Pac. 444, this court held that the admission of incompetent evidence, where such facts are otherwise proved in a competent manner, is harmless.

In this connection he also complains of the admission of the receipt or release signed by Calhoun, the garage man.

This receipt was prepared by defendant and was evidently another step taken by him to cover up his intent to defraud. Calhoun, the garage man, signed the receipt believing that defendant was an officer of the highway department and agent for the Sterling Finance Corporation, when in truth and in fact he was neither. Calhoun evidently thought he would be protected if he turned the car over to defendant, because he had convinced himself that defendant was a highway enforcement officer, and. it was by means of .these false representations, as shown by the receipt, that defendant obtained possession of the car*.

The trial court fully instructed the jury upon defendant’s theory of the case, that he took the car openly and in good faith under a claim of right conferred on him by the finance corporation.

The evidence being sufficient to support the verdict of the jury, and the errors of law complained of having no merit, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


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    ELMER DOWNEY v. STATE.
    No. A-8588.
    Oct. 20, 1933.
    (26 Pac. [2d] 152.)

      John W. Whipple, for plaintiff in error.
    J. Berry King, Atty. Gen., and Robert D. Crowe, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Payne county of unlawful possession of a whisky still, and his punishment fixed by the jury at a fine of $50 and imprisonment in the county jail for a period, of 30 days.

Defendant filed his motion to suppress the evidence in the trial court, on the ground of illegal search, and on appeal to this court urges two grounds for reversal, to wit:

The court erred in overruling his motion to' suppress and admitting the evidence secured under the illegal search; and

That the evidence was insufficient to sustain a conviction.

The state filed an information against defendant and Nat Abbington, charging, them jointly with the offense. It does not appear from the record what was done with the charge against Abbington. After the motion to suppress was overruled, the state proceeded with the trial of defendant.

On the motion to suppress, defendant testified he owned the farm on Which he lived and had rented two others, on one of which a colored man by the name of Nat Abbington lived, which farm Abbington operated for defendant on a share-crop basis; that the house in which Abbington lived was about three-quarters of a mile from defendant’s home; that no search warrant was served on Abbington or himself.

This court in numerous cases has said:

“Immunity from prejudicial consequences of an illegal search and seizure is a personal one, and does not extend to an unauthorized search of the premises of another.” Hardy v. State, 35 Okla. Cr. 124, 248 Pac. 874; Williams v. State, 35 Okla. Cr. 171, 249 Pac. 433; Klaber et al. v. State, 35 Okla. Cr. 238, 250 Pac. 142; Penrod v. State, 38 Okla. Cr. 46, 258 Pac. 1052.

Under defendant’s own testimony, he did not occupy these premises, and under the authorities above cited it was immaterial whether a search warrant was issued or served.

Next defendant contends the evidence was insufficient to support the verdict.

The evidence of the state was that the sheriff of Payne county with one of his deputies, having a search warrant, went to the premises of Abbington about 11:30 at night; that when they got to the place they went to the north side of the house and stood there looking through a window on which there was no blind; that they saw defendant and Abbington with a still on the stove in which the latter was pouring mash; that defendant was sitting in a chair facing them; that they had the still on the fire and the worm was in the cooling barrel; that a colored boy opened the door and threw a flash-light in their faces; that thereupon they entered and arrested defendants; that the sheriff asked where the mash was, and defendant said, “Come on, Jim, I will show you right where it is”; that the sheriff asked who owned the tubs and buckets they used in carrying the mash from the barrel to the kitchen; that defendant spoke np and said, “I can tell you all about those tubs and buckets.”

Under this evidence, there could be no doubt of the guilty participation of defendant in the possession and . operation of the still.

The cause is therefore affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


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    DICK JONES v. STATE.
    No. A-8545.
    Oct. 27, 1933.
    (26 Pac. [2d] 435.)
    Mounts & Chamberlin, for plaintiff in error.
    J. Berry King, Atty. Gen., and George J. Fagin, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Tillman county of the offense of maintaining a public whisky nuisanee, and bis punishment fixed by the jury at a fine of $250 and inprisonment in the county jail for a period of 90 days.

The evidence of the state was that the sheriff of Tillman county, accompanied by one of his deputies, having a search warrant, went to the premises of defendant; that when driving up in front of defendant’s home, defendant stepped out on the front porch with a carton of fruit jars in .his hand; that when he saw the officers he ran back into the house, locked the screen and front door, and was heard to scream, “Break it”; that the deputy sheriff went around to the rear door, and when the sheriff heard the deputy sheriff and defendant scuffling in the house, he pushed open the front door and went in; that defendant’s wife was in the bathroom with the door locked, and they could hear glass being broken in there; that the deputy sheriff had a half-gallon jar of whisky in his hand; that defendant knocked this out of his hand and kicked it around on the floor, finally breaking it; that it was necessary for the sheriff to' strike defendant with his gun before he could be subdued and arrested; that Avhen defendant’s wife came out of the bathroom, the sheriff went in and found seven or eight tops of glass jars and an empty keg; that he smelled whisky in the room and in and about the keg, and that he succeeded in saving a small quantity of the whisky; that a small child of defendant’s, on being told to “break it,” took two half-gallon jars of whisky and ran out in the yard and broke them on the sidewalk; that people were seen coming to defendant’s home and carrying jars with something yellowish looking in them.

The niece of defendant’s, who lived at his home, testified that a good many men were coming and going from the residence of defendant, carrying packages away with them; that defendant forced her to' leave the room when people came to see him, and threatened to kill her if she told any one what he was doing.

Defendant’s brother testified that he had warned his brother that they would catch him in that business, and that he was acquainted with the general reputation of the place where defendant resided as being a place where whisky was sold, stored, and kept in violation of law, and that that reputation was bad.

The sheriff, deputy sheriff, night watchman, and others testified that they knew the reputation of defendant’s place for being, a place where liquor was kept and sold, and that it was bad.

Defendant did not take the witness stand, but did call his brother for further cross-examination.

Defendant contends first that the search of his premises was illegal and that therefore the evidence obtained thereby was not admissible.

Particular complaint under this heading is made that the officers did not comply with the law in the service of the’warrant, in that it was not served until after the search was completed.

In Young v. State, 50 Okla. Cr. 68, 296 Pac. 516, this court said:

“Officer’s failure to literally follow law in searching defendant for liquor before showing him search warrant held not to require reversal.”

The facts as disclosed in this case, that defendant locked the doors, attacked the officer's, and delayed them until such time as he and his family could destroy the liquor, made it impossible for the sheriff to literally comply with the law in the service, although the sheriff testifled that he told defendant immediately on his entrance that he had a search warrant.

It is next contended the court erred in permitting the state to introduce evidence of the general reputation of defendant’s premises before it was shown that the place itself was a place of public resort.

The evidence of the niece, who made her home with defendant, together with other witnesses, and the facts and circumstances in the case, were sufficient to establish that defendant’s home was a place of public resort.

Under the authority of Hilbert v. State, 44 Okla. Cr. 89, 279 Pac. 910, Bunch v. State, 53 Okla. Cr. 430, 12 Pac. (2d) 704, and Ormsby v. State, 53 Okla. Cr. 445, 13 Pac. (2d) 596, this evidence was admissible.

It is next contended the court erred in permitting the state to introduce evidence as to the character of defendant, when he himself had not put his character in evidence.

We have carefully searched the record and find no such evidence.

Defendant next complains the court erred in the giving of instruction No. 4.

The instruction correctly states the law as applicable to the charge in the information, and is as favorable to defendant as the evidence in the case would warrant.

The defense is extremely technical and is without any substantial support or merit, as disclosed by the record.

For the reasons stated, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


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    WILLIAM M. HANSON v. STATE.
    No. A-8544.
    Oct. 27, 1933.
    (26 Pac. [2d] 436.)
    Mounts & Chamberlin, for plaintiff in error.
    J. Berry King, Atty. Gen., and Jesse L. Ballard, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Tillman county of the unlawful possession of 27% gallons of whisky, and his punishment fixed by the jury at a fine of $225 and imprisonment in the county jail for 90 days.

The evidence of the state was that on the date alleged in the information defendant resided on a farm about nine miles northwest of Chattanooga, in Tillman county; that on that date the sheriff of Tillman county, armed with a search warrant and accompanied by L. F. Barbee, a deputy, and other officers, searched the premises occupied by defendant and found concealed in the dwelling house 27% gallons of whisky.

Defendant did not take the witness stand and offered no evidence in his defense.

Defendant contends, first, that the affidavit for the search warrant was insufficient, because it was not stated therein the date upon which affiant had watched the premises of defendant.

In Smith v. State, 30 Okla. Cr. 144, 235 Pac. 273, this court held a similar affidavit made in the present tense sufficient.

Defendant next contends the court erred in giving instruction No. 2.

This instruction outlines the law, in substance, as stated in section 7002, C. O. S. 1921, together with the further statement that the possession of more-than one quart of liquor is prima facie evidence of intent to violate the law, and that possession of more than one quart of whisky is sufficient under the law to show such intention, if the facts and circumstances surrounding the same convince the jury of such intention beyond a reasonable doubt.

While this instruction is not in the form usually given, yet it contains all the essential elements of the crime and sufficiently states the law of the case.

No fundamental error appearing in the record, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


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    Ex parte HUGH DRAUGHN.
    No. A-8601.
    Oct. 27, 1933.
    (26 Pac. [2d] 437.)

      Jeff H. Williams and C. T. Rice, for petitioner.
    J. Wm. Crawford, for respondent.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus. Petitioner alleges he is unlawfully restrained by the chief of police of the city of Ada for an alleged violation of Ordinance 624, which prohibits the operation of pool halls within said city; that he was assessed a fine and costs in the sum of $19.75; that said ordinance is void and the restraint illegal.

The city of Ada is operating under a charter form of government. February 9, 1915, it enacted Ordinance 334, prohibiting the operation of a pool or billiard hall in said city, fixing a maximum punishment at a fine of $100. On June 12, 1919, amendatory Ordinance 422 was enacted, reducing the punishment fixed by Ordinance 334, to a maximum fine of $20. In November, 1932, Ordinance 624 was enacted, prohibiting the operation of billiard or pool tables or a combination thereof for hire or gain, fixing punishment and declaring an emergency. This latter ordinance was not published until June, 1933. On July 21, 1933, petitioner opened a pool and billiard hall, after having obtained a license from the county judge, as provided by section 2423, O. S. 1931. He was arrested and fine assessed, as stated. Petition for habeas corpus was filed in this court and a rule to show cause issued. The chief of police, in his response, states he is holding petitioner under a commitment issued for a conviction under Ordinance 334.

It is argued that since the operation of a pool and billiard hall is authorized under a statute and the county judge vested with power to grant a license, that a city is without power to prohibit the operation by ordinance; that there is a conflict of authority between the county court and the city government, citing Oklahoma City, Okla., v. Dolese (C. C. A.) 48 F. (2d) 734; section 6432, O. S. 1931; E. I. DuPont, etc., v. Dodson, 49 Okla. 58, 150 Pac. 1085.

By section 2423, O. S. 1931, providing for licensing pool hall operators, the Legislature did not intend to restrict a municipality in its police power to regulate, prohibit, or abolish pool or billiard halls. This is evident from the fact that section 2425, further provides:

“This act shall in no way impair the right of any incorporated city or town to impose an additional license fee for maintaining any such pool or billiard hall, or pool or billiard table; or to prevent any incorporated city or town from abolishing same under existing laws.”

Also in section 5998, O. S. 1931, express power to restrain and prohibit is conferred, as follows:

“The city; counsel of each city of the state and the board of trustees of each incorporated town or village shall have power to enact ordinances to restrain, prohibit and suppress games and gambling houses, bowling alleys, pool and billiard tables, and other gambling tables.”

It is obvious that considering these sections together, the municipality has, very broad power to protect its citizens by regulating, prohibiting, or abolishing pool and billiard halls. Section 2423 does not take away from the municipality any of its power in this particular, it applies only in the event the municipality does not exercise its power. But even if the municipality does not exercise the power, a pool or billiard hall is not to be permitted to operate without any regulation, so by section 2423, power is conferred on the county judge to investigate and license or refuse to license the person seeking, to operate. These statutes construed together do not conflict. The situation is analogous to that existing for a time under the prohibition laws. The federal authority might issue a liquor license to a citizen of the state, yet, by so doing, he was not authorized to violate the state Constitution and laws. There was no conflict of jurisdiction. The fact that petitioner was licensed by the county judge did not, in any manner, nullify the city ordinance prohibiting the operation of a pool hall, and his having a license did not constitute a defense to the charge.

It is also argued in this connection that the operation of a pool or billiard hall is a lawful business and the municipality was without power to declare it a nuisance except when the manner of operation was such as to constitute a nuisance; that is, the operation of a pool or billiard hall could not be declared per se a nuisance, citing sections 7873, C. O. g. 1921, section 11492, O. S. 1931; E. I. DuPont, etc., v. Dodson, 49 Okla. 58, 150 Pac. 1085.

It is well settled the Legislature may expressly or by implication delegate to municipal corporations the exercise of police power within their boundaries, subject to legislative discretion, and, when so granted, the authority of the municipality, within the scope of the power delegated, is as wide as that possessed by the state. Sections 2425 and 5998, O. S. 1931, are grants, of power. Aside from the express grant of authority, it is true, generally speaking, that a municipality cannot declare a thing a nuisance which is clearly not so. It may declare only those things a nuisance which in their nature, character, and tendencies come within the established definitions of a nuisance. But in addition to what has been said in reference to sections 2423, 2425, and 5998, our statute, section 11489, defines a nuisance as anything which annoys, injures, or endangers the comfort, repose, health, or safety of others. This is a definition of nuisance as at the common law. Before the enactment of section 5998, supra, the authority of a municipality to prohibit the operation of a pool hall was not expressly given, yet in Be Jones, 4 Okla. Cr. 74, 109 Pac. 570, 575, 31 L. R. A. (N. S.) 548, 140 Am. St. Rep. 655, it was held that an incorporated town had authority to declare pool halls a nuisance, and to prohibit them, the court saying:

“Our conclusions therefore are: First, that the Legislature may lawfully delegate to municipal corporations the power to declare what shall constitute a nuisance within its corporate boundaries, and the power to prevent, abate, or remove the same. Second, that under such delegation of power the municipality may not lawfully declare a thing a nuisance which clearly is not one, but that it may declare anything a nuisance which is so per se, or which by reason of its location, management, or use, or on account of local conditions or surroundings, may or does become a nuisance within the common-law or statutory definition thereof, or those things which in their nature may be nuisances, but as to which there may be honest differences of opinion in impartial minds. Third, that where a thing neither necessary nor useful may or may not be a nuisance, depending upon a variety of facts and circumstances, or upon local conditions and surroundings, the determination of the question by the municipality through its legislative body, is, under such a grant of power, conclusive upon the courts. And, fourth, that billiard halls and poolrooms are not protected as necessary or useful institutions; that they may or may not be nuisances, depending upon circumstances; and that the determination of that question locally by the town trustees of Eldorado is conclusive upon us. We therefore hold the section of the ordinance in question to be valid.”

We therefore conclude that since a pool hall, not being a necessity or useful business and being within the statutory definition of a nuisance, the city of Ada was fully authorized and empowered to enact an ordinance declaring pool and billiard halls a nuisance and that the ordinance so declaring is conclusive.

It is contended that Ordinance 334 is invalid for the reason that it was never published as required by law.,. The same contention is made as to Ordinance 624, but since respondent justifies his restraint of petitioner under Ordinance 334, we deem it unnecessary to consider the validity of the latter ordinance. Section 10, art. Ill, of the charter of the city of Ada, provides in substance that all ordinances, except emergency ordinances, shall be published in some newspaper of general circulation in the city within ten days of its passage. Ordinance 334 has been in existence for more than 18 years, during which time no pool hall has been operated in that city. It is a well settled rule that ordinances are presumed to be valid until the contrary is proven. Seminole Townsite Co. v. Town of Seminole, 35 Okla. 554, 130 Pac. 1098; Santa Rosa, etc., v. Central Street Ry. Co., 4 Cal. Unrep. 950, 38 Pac. 986, at page 988; City of Atchison v. Kang, 9 Kan. 550. In the California case an ordinance treated by the city as valid for a term of 14 years, although not shown to have been signed and approved by the mayor, nor published, was upheld. In the Kansas case it was held that in a case where the city itself sought to have its ordinance declared invalid, that “the city having passed the ordinance four or five years before it ivas offered in evidence; and having acted upon it as valid, will not now be allowed in such an action to deny its publication. * * The ordinance in question is presumed to have been enacted and published as required by law.

The writ is denied.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    ELMER GILES v. STATE.
    No. A-8543.
    Nov. 3, 1933.
    (28 Pac. [2d] 600.)
    Mounts & Chamberlin, for plaintiff in error.
    J. Berry King, Atty. Gen., and Jesse L. Ballard, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Tillman county of selling whisky, and was sentenced to pay a fine of $175 and to serve a term of 130 days in the county jail.

At the time charged two officers discovered defendant, who had stopped his automobile on the highway and had approached another automobile in which were three persons. On the approach of the officers, defendant got in his car and drove rapidly away. The officers apprehended the other parties and discovered they had six gallons of whisky. The following day the officers again discovered defendant parked on the highway, and upon their approach he fled, but a few days later surrendered himself. The parties apprehended by the officers testified they had just purchased the six gallons of whisky from defendant, paying him therefor $14. Defendant testified, admitting his presence at the place where the whisky was found, but d,enied making the sale, but testified the other parties there had the whisky and offered him a drink. He admitted his flight, but explained it by saying he did not want to be connected with the other parties. The jury evidently did not believe defendant’s explanation. The testimony fully sustains the state’s case.

The principal argument made is that the court permitted the state to' attack the character and reputation of defendant when he had not raised the issue. This contention is directed to a series of questions by the county attorney purporting to show that defendant had no gainful occupation and owned no property. In one instance he asked as' to defendant’s general reputation in the community, but an objection to this was sustained. It is too well settled to require a citation of authorities that the character and reputation of an accused is not an element of the crime charged, and the prosecution cannot put it in issue by offering evidence of bad character, unless defendant first offers evidence of his good character. The questions did not go directly to character or reputation, but tended toward that issue. The admission of this testimony was error.

It is further argued the state brought out on cross-examination certain collateral and immaterial matters relating' to the employment of the defendant, and was then permitted to impeach and contradict him. There is some merit in this contention. It is equally well settled that, where an accused is questioned on cross-examination as to collateral matters,'his answers are conclusive, and the prosecution is not permitted to impeach or contradict him on such collateral matters.

The guilt of defendant appears conclusive under the evidence, and we believe no intelligent jury could have arrived at a verdict other than guilty, but the errors may have contributed to the amount of punishment assessed. The judgment should not be reversed because of these errors, but should be modified by reducing it to a fine of $50 and imprisonment in the county jail for a term of 30 days.

As modified, the judgment is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    GEORGE WILLEMS v. STATE.
    No. A-8468.
    June 23, 1933.
    Withdrawn, Corrected, Refiled, and Rehearing Denied Nov. 3, 1933.
    (26 Pac. [2d] 228.)

      Thos. Hudgens, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of embezzling $160 in money belonging to the Edwards Maytag Company, Inc., a corporation,- and was sentenced to serve one year and a day in the state penitentiary, and appeals.

The testimony on behalf of the state shows that the defendant as an agent of the Maytag Company, Inc., was selling Maytag washing machines; that he sold a machine to J. E. Derryberry, and received in part payment for the said machine the sum of $160 in money, and failed to pay the same to the company, but converted it to' his own use.

The defendant testifying in his own behalf admitted he was selling machines for the company, that he sold a machine to' the witness Derryberry, and, in ansAvering the following questions, gave the following answers:

“Q. What did you do with the money? A. Well, I paid running expenses with it, and I — oh, I don’t know— I might have paid some debts with it, and I had to support a family and I may have spent some of it on them. Q. Did you need the money in support of your family? A. Yes, I needed it, needed it bad.”

The defendant called several witnesses who testified in his behalf as to. his previous good character and honesty, all of whom stated they never knew of him having any trouble until the trouble with the washing machine company.

Several errors have been assigned by the defendant alleged to have been committed by the court in the trial of his case. After a careful study and examination of the record, we find no fundamental or prejudicial errors possessing sufficient merit to warrant a reversal. The defendant began working for the company and used the money to maintain his family and to pay his expenses in trying to sell other machines, and intended to account for the same to the company. The record shows that the defendant was selling machines for the company, and at intervals reporting to the company the machines sold and remitting the proceeds of the sales; that, in carrying on this business of selling machines, he used the money derived from the sale of the machine to the witness Derryberry with the intention of settling, with the company and repaying the money. Considering the evidence in the record and the relation of the parties and circumstances surrounding the defendant at the time, we hold that a, modification of the punishment from one year and a day in the penitentiary to six months in the ..penitentiary would be sufficient punishment for the offense committed by the defendant.

The judgment is modified from one year and a day in the penitentiary to six months, and, as so modified, is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    H. H. PIERCE v. STATE.
    No. A-8589.
    Oct. 20, 1933.
    Rehearing Denied Nov. 3, 1933.
    (26 Pac. [2d] 229.)
    Joe Young, for plaintiff in error.
    J. Berry King, Atty. Gen., and George J. Fagin, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Payne county of unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $50 and imprisonment in the county jail for a period of 80 days.

The evidence of the state is that a deputy sheriff of Payne county and a police officer of the city of Cushing, were in said city, having a search warrant to search a 1932 Chevrolet automobile owned by defendant; that the officers found the automobile on the streets of Cushing, with the defendant driving it; that the car was being driven at about four or six miles an hour; that the officers’ car was headed east and defendant’s car was headed west; that a window of defendant’s car was open, with part of his arm protruding from the car window; that when within four feet of defendant’s car, the officers ordered him to stop and stated that he was under arrest; that the police officer got out, of the car and called to defendant that he was under arrest; that this officer was wearing a cap with his police insignia on it; that defendant paid no heed to the order, and sped up his car; that upon his refusal to stop, the officers shot a hole in one of the casings; that they turned their car around and pursued defendant and, while pursuing him, saw defendant stop and carry something dark and bulky out of the car, and then, after driving 60 or 80 feet, stop on account of a flat tire; that the officers arrested defendant and took him back to where he first stopped and found tracks leading from that point; that they followed same out into the grass and weeds about six or eight feet from the car, and there found a ten-gallon keg of whisky and four half-gallon fruit jars.

Defendant, testifying for himself, claimed that he did not hear the officers and, as a reason for not stopping, said that he did not know who they were, and denied that he was the owner of the whisky or had anything to do with it.

The first assignment of error is that the whisky was never shown to have been in the possession of defendant.

The facts in the case at bar are similar to those in McAdams v. State, 30 Okla. Cr. 207, 235 Pac. 241, although the case at bar is stronger since the officers had a search warrant.

When all of the facts and circumstances in the case are considered, it is evident that the possession of the liquor was sufficiently traced to defendant to justify the jury in finding him guilty.

No fundamental error appearing on the record, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    Ex parte HARMON HALL.
    No. A-8644.
    Nov. 3, 1933.
    (26 Pac. [2d] 770.)
    Wm. L. Seawell, for petitioner.
    O. P. Nash, Co. Atty., of Okemah, for the State..
   CHAPPELL, J.

Harmon Hall filed his petition in this court for a writ of habeas corpus, alleging that he was illegally restrained of his liberty by the sheriff of Okfuskee county, and is about to be transported to the penitentiary at McAlester.

Petitioner further alleges that he was charged with the offense of murder, but was convicted of the crime of manslaughter, and his punishment fixed by the court at imprisonment in the penitentiary for a period of twenty years.

The sheriff filed his response, alleging that he was holding petitioner on a commitment issued out of the district court upon such judgment of conviction.

It was made to appear to the court at the hearing that the evidence of the state disclosed that petitioner, while having some controversy with his wife, dashed the body of his infant daughter to the ground killing her. NO' evidence was introduced by petitioner or showing made to support his charge that the bail is excessive.

Considering the facts and circumstances in the case together with the period of sentence, petitoner has failed to sustain his contention that the hail is excessive.

The writ is therefore denied.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    W. M. SUTTON v. STATE.
    No. A-8579.
    Nov. 17, 1933.
    (28 Pac. [2d] 1118.
    Short & Pipkin, for plaintiff in error.
    Tom Huser, Co. Atty., for the State.
   CHAPPELL, J.

Plaintiff in error was prosecuted in the superior court of Seminole county for the crime of murder and convicted by the jury of manslaughter, and his punishment fixed by them at imprisonment in the state penitentiary for a, period of four years.

The appeal in this case was filed in this court on the 2Sd day of May, 1933. No briefs have been filed on behalf of plaintiff in error and no appearance made for oral argument.

Upon a careful examination of the record, we find no errors depriving appellant of any substantial rights.

The evidence being sufficient to support the verdict of the jury, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    Ex parte AMANDA JOHNSON.
    No. A-8652.
    Nov. 17, 1933.
    (27 Pac. [2d] 171.)
    Harry D. Pitchford, for petitioner.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

This is an original proceeding in habeas corpus. Petitioner alleges that she is restrained of her liberty and is unlawfully held by the authorities of the state of Kansas. The cause of said restraint, according to the best knowledge and belief of petitioner, is that the authorities of Topeka, Kan., appealed to the Governor of the state of Oklahoma for extradition, and a hearing was had before said Governor, on the 14th day of November, 1933, and a writ of extradition granted.

Your petitioner alleges that said restraint is illegal and unauthorized, in that the entire proceedings are for the purpose of collecting a debt, and are not being used for any other purpose. The petitioner had not and never did commit any crime in the state of Kansas, or any other state.

The respondent filed an answer admitting he held the petitioner by reason of the Governor’s warrant authorizing her to be taken to the state of Kansas. Upon a consideration of the evidence, we are satisfied the prosecution resulted from the failure of petitioner to pay her indebtedness to. the prosecuting witness, and for that reason the prosecution is not in good faith. Ex parte Owens, 34 Okla. Cr. 128, 245 Pac. 68; Ex parte Maddox, 55 Okla. Cr. 114, 25 Pac. (2d) 111.

The writ of habeas corpus should be awarded and petitioner discharged, and it is so ordered.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    EARNEST McLEMORE v. STATE.
    No. A-8587.
    Nov. 17, 1933.
    (27 Pac. [2d] 172.)
    Billingsley & Kennerly, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Seminole county of obtaining lodging with intent to defraud, and was sentenced to- pay a fine of f 100 and to serve 60 days in the county jail. The offense charged is under section 2097, Okla. Stat. 1931, which is:

“Any person who shall obtain food, lodging or other accommodations at any hotel, inn, boarding or eating house or rooming house, with intent to- defraud the owner or keeper thereof, shall be guilty of a misdemeanor and upon conviction thereof shall be fined not exceeding $100, or be imprisoned in the county jail, not exceeding three months, or punishment by both such fine and imprisonment. Proof that lodging, food and other accommodations were obtained by false pretense or by false or fictitious show or pretense of any baggage or other property, or that he gave a check or negotiable paper on which payment was refused, or that he left the hotel, inn, boarding or rooming house without payment or offering to pay for such food, lodging or other accommodation, or that he surreptitiously removed or attempted to remove his baggage, or that he registered under a fictitious name, shall be prima facie proof of the intent to defraud mentioned in this section; but this act shall not apply where there has been an agreement in writing for delay in payment.”

The evidence is very brief. It is that defendant engaged lodging at a rooming house or hotel operated by one Mrs. Morey, for which he engaged to pay the sum of $15 per month. He paid the first month’s rent, but made no other payments. He became indebted for a sum of $105. Frequent demand for payment was made, and it appears defendant said in substance at various times that he expected to- make collections and make payment. Finally the proprietor of the hotel filed a civil suit and. a few days afterwards was complaining witness in this prosecution. There is no> sufficient proof of a violation of any of the provisions of section 2097. It- is shown inferentially that defendant left the rooming house of prosecutrix without paying, hut this statute and the related sections 2098, 2099, Okla. Stat. 1931, were not intended as means of collection of a debt. If so, they would, be in violation of section 13, art. 2,' state Constitution. The statute; while general in its terms, is particularly directed against those who make direct false pretenses or constructive false pretenses as by a fictitious show of property, or who give worthless checks or other negotiable paper or make other false pretense, or who register under a fictitious name, or •who surreptitiously leave with intent to defraud.

Under a fair construction it cannot apply in a case as made by the prosecution here, where defendant is not' a transient, but resides at the place where he obtains lodging, where he obtains for a long period of time credit on a promise to pay, although he does not carry out . such promise. A mere failure to pay is not a crime.

The case is reversed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    H. A. EVANS v. STATE.
    No. A-8577.
    Oct. 20, 1933.
    Rehearing Denied Nov. 17, 1933.
    (26 Pac. [2d] 767.)

      J. H. Long, for plaintiff in error.
    J. Berry King, Atty. Gen., and Robert D. Crowe, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Stephens county of the offense of driving and operating an automobile on the main street of the city of Duncan without proper license tag and identification tag for the year 1932, and his punishment fixed by the jury at a fine of $50.

The evidence of the state was that J. W. Hite was assisting the county tag agent in the collection of automobile tags, and that on October 22, 1932, a Ford piclc-up belonging to Wiley Sharp was parked in front of defendant’s house; that he saw defendant leave this car with a tag in his hand which had been taken from the Sharp car; that defendant’s Buick car was in his garage and had on it a 1931 tag; that about- 4 o’clock in the afternoon he saw defendant’s Buick car being driven east on Main street; that this car then had a tag on it which bore the number 105,794; that he checked the records in the tag office and found a tag with this number was issued for a Ford pickup to Beeson Grantham. R. J. Allen testified he had examined his records as tag agent and that tag No. 105,794 was issued for the year 1932 to Beeson Grantham for a Ford pick-up.

Defendant testifying for himself denied he was down town in Duncan on that day, that he drove a Buick automobile on Main street on that day, or that he owned a Buick car; but testified his wife owned it; that he had given her the money to buy it with; that he had not obtained a 1932 tag for the car. His wife corroborated this testimony.

There being a direct conflict in the evidence, the credibility of the witnesses and the weight to be given their testimony was for the jury.

Since there is competent evidence to. sustain the jury’s verdict, the conviction must be sustained unless the errors of law complained of are sufficient to require a reversal.

Defendant contends first .the court erred in giving instruction No. 2.

This instruction is in the exact language of the statute under which defendant was charged.

It has been held by this court that such an instruction is not erroneous. Anderson v. State, 21 Okla. Cr. 193, 207 Pac. 977.

Defendant contends this instruction is too' broad under the evidence in this case, but the court’s instructions must be considered together to determine whether the jury was properly instructed as to the law. When instruction No. 2 is considered with instruction No. 4 it clearly appears that the jury was properly instructed as to the law.

Defendant next contends the court erred in refusing to give his requested instruction No. 3.

The substance of this requested instruction was to advise the jury that the witness Hite had no right to collect or receive any fines, and that his acts were only those of a private citizen, and had no official character.

The only question in the case was whether defendant was driving his automobile on the streets of Duncan on the day charged without proper license and identification tag as required by law. Whether Hite was entitled to collect or receive fines had no bearing on the question of the guilt or innocence of defendant. Consequently, the court was not required to' instruct upon that subject. The court gave the usual instruction on credibility of the witnesses, which was all the defendant was entitled to have.

It is next contended the court erred in rereading instruction No. 6.

That instruction as it was originally given by the court is as follows: “You are further instructed that in the event you find the defendant guilty as charged in the information, you will then proceed to deliberate upon the punishment that may be imposed upon him.”

It appears from the record that when the instruction was first read to the jury defendant objected to it, and the jury was then advised by the court that it was their duty to fix the punishment. Defendant objecting to that instruction, the court withdrew it and reread instruction No. 6, as above set out.

The minimum penalty fixed by this law is a fine of $50. The jury assessed defendant’s punishment at $50. This shows clearly that defendant was in no way prejudiced by the court rereading the instruction in question, after he had originally sustained defendant’s objection to it.

The instructions when considered together fairly state the law of the case. No reversible error appearing, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.