text:
    CARL EUGENE DUNCAN et al. v. STATE.
    No. A-10986.
    June 15. 1949.
    (207 P. 2d 324.)

      Logan, Cummins & Oerke, of Lawton, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The defendants, Carl Eugene Duncan, Emil L. Crowell, Sam Agrista, Perry Pugh, and Vernon Joe Loveall were charged, tried and convicted by a jury' in Comanche county, Okla., of the crime of robbery with firearms, of W. G. Snell and-Delbert Smith, of the sum of $4,960, both of whom were engaged in operating a gambling dive at the time and place of said crime. The jury fixed the punishment at 10 years in the State Penitentiary, judgment and sentence was imposed accordingly, and from said judgment and sentence this appeal was perfected.

The defendants first contend that the trial court erred in overruling their motion to quash and set aside the information for the reason that no legal preliminary examination had been held before a committing magistrate.

The crime was allegedly committed on December 29, 1946. The State Legislature, of which Senator Bill Logan, counsel, was a member of the upper house, convened on January 7, 1947, and adjourned sine die May 8, 1947.

The record shows the defendants in this case were apprehended on April 16 and 17, 1947, in Los Angeles, Calif. Thereafter Senator Bill Logan was employed to represent defendants Carl Eugene Duncan and Vernon Joe Loveall, and his firm employed to represent the rest of the defendants. The record further shows that the preliminary complaint on which the defendants were charged was filed on May 6, 1947, in the justice of the peace court of Justice John Manning, sitting as magistrate. The case was called for hearing on arraignment on May 7, 1947. Mr. Cummins, of counsel, requested five days within which to plead, which request was rejected on the ground that the justice of the peace had been informed the state wanted to go to trial at the next term of district court which would begin in 12 days. Whereupon, the justice of the peace granted 24 hours in which to plead, and the case was continued to May 8, 1947. On May 8, 1947, the case was called for arraignment of the defendants. Mr. Cummins, of counsel, by sworn affidavit requested a continuance alleging among other things:

“* * * That the law partner and attorney interested in this case is a State Senator of the State of Oklahoma, and that his presence in the preliminary hearing in this case is necessary and vital to the defense of the defendants, and that as such State Senator, he is engaged in the legislative session of the State of Oklahoma, and that thereby and according to law, these defendants can not be tried without error being committed by this Court. * * * That this application is not made for delay, but that substantial justice may be done and that defendants ask that the cause be continued until May 23, 1947.”

Mr. Cummins informed the justice of the peace he could produce testimony in relation to the employment of Senator Logan in the case. This the justice of the peace rejected and said: “Well, I am going to overrule your motion”, to which ruling the defendants excepted. Whereupon the defendants were given an immediate hearing and bound over to the district court without bail on the charge of robbery with firearms. Thereafter on May 13, 1947, an information was filed in the district court, and said case was set for trial May 28, 1947. On May 15, 1947, the defendants filed a motion to quash the information, alleging among other things the following to wit:

“Comes now the defendants and move the court to quash the information in the above entitled cause by reason of the fact that at the time of the preliminary hearing in said cause that Bill Logan, a member of the firm of Logan, Cummins & Oerke, Attorneys for the defendants, was absent, in attendance of his duties as a member of the Oklahoma State Senate, and that at said time the Legislature of the State of Oklahoma was in session; that the employment of said firm by Carl Eugene Duncan and Yernon Joe Loveall was conditioned upon the personal appearance and representation in their behalf of the said Bill Logan, and that even though an affidavit for continuance was filed before the Magistrate in the preliminary examination, that the Magistrate wholly failed and refused to allow a continuance by reason of the absence of the said Bill Logan in the State Legislature, that therefore these defendants have been denied their statutory rights and the said attorney, Bill Logan, was denied an opportunity to appear in behalf of his clients, the said defendants, at the. preliminary examination, and that the preliminary examination was therefore illegal and erroneous, and that the rights of these defendants have been substantially defeated in respect thereto.”

In this connection it should be observed that the employment of Senator Logan conditioned upon his personal appearance and representation was limited to defendants Carl Eugene Duncan and Vernon Joe Loveall.

In the order overruling the motion to quash as to these two defendants the trial court conceded the following, to wit:

“The Court knows that Senator Logan was in the Legislature at the time of the preliminary hearing here; and the Court also knows that a continuance was asked by the defendants on the ground that Senator Logan was absent. The Court has knowledge of the fact from the statements of Senator Logan and Mr. Cummins that Mr. Logan is a member of defense counsel in' this case, and was at the time of the preliminary hearing. However, this Court feels that no error was done at the preliminary hearing by reason of the absence of Senator Logan, although objections were made and exceptions were taken at the time in the preliminary hearing, and for that reason the Court feels that the information should not be quashed by reason of the absence of Senator Logan. The Motion to Quash the Information will be overruled.”

We might also observe that in the motion for new trial an attempt was made to broaden the scope of the foregoing contention as to Senator Logan’s employment by Carl Eugene Duncan and Vernon Joe Loveall to include all of the defendants. We do not believe such broadening would be permissible under the foregoing limitation, imposed by Senator Logan himself, and the limitation contained in the defendant’s brief as follows, to wit:

“This proposition is based on the fact that Bill Logan of Lawton, Okla., a duly elected and qualified member of the State Senate of the State of Oklahoma, was employed by some of the defendants in this case while the Legislature was in session.”

Moreover, it would be grossly unfair to charge the trial court with error, as to a contention never made by defendants Crowell, Agrista and Pugh during the trial of the case, and for which no proper predicate was laid by them.

The foregoing facts lead to the following conclusions: The justice of the peace acted arbitrarily in not hearing the defendants’ evidence as to the employment of Senator Logan. It was error for him so to do. The district court likewise was in error in assuming that he had all the facts essential to a ruling on the matter, which the record reveals he did not have. Apparently they were too eager to aid the prosecution in obtaining a speedy trial which certainly was accorded the defendants in these proceedings. Ordinarily no complaint can be lodged relative to such endeavor, but even the right to*a speedy trial must be sustained with due regard to the other rights to which the defendants might be entitled under the law. Had the justice of the peace and the district court not acted with such great haste, and had they afforded Mr. Cummins and Senator Logan an opportunity to present their evidence relative to Senator Logan’s employment, that evidence would have disclosed that Senator Logan had for a long period of time been the regular attorney for the family of Carl Eugene Duncan, one of the defendants represented by him. Moreover, it would have disclosed that within' the preceding year Senator Logan had successfully tried two district court civil actions for Carl Eugene Duncan’s sisters, one before a jury and one before the court. Furthermore, in relation to the case at bar, one of Carl Eugene Duncan’s sisters, who had formerly been represented by Senator Logan, wired her brother from California after he was brought to Lawton, Okla., specifically recommending that he employ Senator Logan to defend him, which he subsequently did, as well as did the defendant Vernon Joe Loveall. It appears from the record that had this evidence been heard, it would have disclosed that the employment of Senator Logan was predicated upon his personal representation of the two defendants Duncan and Loveall. The foregoing constitutes the basic facts and conclusions for the consideration of the contention of the defendants Duncan and Loveall. Said contention clearly does not apply as to the other three defendants.

It is fundamental in criminal law that a defendant is entitled to aid of counsel of his own choice, when able to employ one, and if not it is the duty of the court to appoint one for him. If he is able to employ counsel the choice is a personal right of which he cannot be deprived by arbitrary action. It is ordinarily secured to him by express constitutional and statutory provisions. Moreover, the right to be represented by counsel of his own choice is a valuable one, the denial of which is held to be fundamental error. 64 C. J. § 246. In Lotta v. State, 30 Okla. Cr. 105, 235 P. 245, this court held that the trial court’s action in refusing to continue the case because of the temporary absence of defendant’s counsel, and in appointing counsel to represent the defendant, was reversible error. It has been held, in felony cases, that this right is not limited to the trial alone but extends to every stage of the proceeding. Polk v. State, 26 Okla. Cr. 283, 224 P. 194; Sutton v. State, 35 Okla. Cr. 263, 250 P. 930; Brown v. State, 39 Okla. Cr. 406, 266 P. 476. The foregoing conclusion is all the more apparent in light- of the provisions of the Bill of Bights of the Constitution, Art. II, § 20, reading in part as follows, to wit:

“In all criminal prosecutions the accused * * * shall have the right to be heard by himself and counsel; * *

Moreover, under the provisions of Title 22 O.S.A. 1941 § 251, reading in part as follows, to wit:

“When the defendant is brought before a magistrate upon an arrest, * * * the magistrate must immediately inform him * * * of his right to the aid of counsel in every stage of the proceedings, and also of his right to waive an examination before any further proceedings are had.”

Furthermore, the right to counsel of the defendant’s choice is made apparent by Title 22 O.S.A. 1941 § 252, reading in part as follows, to wit:

“He must also allow to the defendant a reasonable time to send for counsel, and adjourn the examination for that purpose; and must, upon the request of the defendant, require a peace officer to take a message to such-counsel in the county or city as the defendant may name. The officer must, without delay, perform that duty,'and shall receive fees therefor as upon a service of a subpoena:

Moreover, under the provisions of Title 12 O.S.A. 1941 § 667, “The court may, for good cause shown, continue an action at any stage of the proceedings upon terms as may be just;” such as when the attorney for the accused is sick, Gilroy v. State, 64 Okla. Cr. 332, 80 P. 2d 602. But this statute does not stop there. It further provides:

“* * * Provided, that if a party or his attorney of record is serving as a member of the Legislature or the Senate, sitting as a court of impeachment, or within thirty (30) days after an adjournment of a session of the Legislature, such fact shall constitute cause for continuance of the case, and all motions, demurrers and preliminary matters to be heard by the court, the refusal to grant which shall constitute error, and entitle such party to a new trial as a matter of right.”

In construing the foregoing section of the statute this court has held that if the employment of defendant’s counsel is before the House or Senate of the Legislature convenes and the case is called in any proceeding during the session while defendant’s counsel is in attendance thereon, the defendant is entitled to a continuance as a matter of right. Greer v. State, 73 Okla. Cr. 345, 121 P. 2d 329 ; Fitzgerald v. State, 65 Okla. Cr. 1, 83 P. 2d 581; Gilroy v. State, supra; Bell v. State, 63 Okla. Cr. 424, 75 P. 2d 1157; Johnson v. State, 45 Okla. Cr. 384, 283 P. 590; Otey v. State, 39 Okla. Cr. 61, 263 P. 155. And it is error to overrule the motion for continuance under such conditions. But where the accused employs an attorney to represent him in a case, after the Legislature has convened, it has been held he is not entitled to a continuance as a matter of right. Gilroy v. State, supra; Jackson v. State, 77 Okla. Cr. 160, 140 P. 2d 606; Key v. State, 69 Okla. Cr. 71, 100 P. 2d 291; Holloway v. State, 37 Okla. Cr. 24, 255 P. 1022, 1023. But as was said in the Gilroy and Jackson cases, supra, under the lattér conditions the matter of a continuance is addressed to the sound discretion of the court passing upon the question. It is error to abuse this discretion. Here as to the defendants Duncan and Loveall represented by Senator Bill Logan, the justice of the peace refused to listen to the facts upon which to predicate the exercise of discretion. The trial court likewise drew his conclusions from his personal knowledge of the Senator’s service in the State Senate alone. Neither the justice of the peace nor the trial judge sought factual information concerning the time and conditions of the Senator’s employment, which were decisive facts upon which to reach a conclusion. Had either of them so inquired in light of the authorities, the statutes, and the Constitution, we are sure a correct conclusion would have been reached. In the trial of a criminal case, an exercise of sound discretion should be predicated upon facts adduced in the proceedings, and not on surmise, conjecture, presumption or an arbitrary exercise of power. Under the facts herein involved the refusal to hear the evidence or to take evidence, in. face of the pleadings herein, and grant a continuance as to defendants Duncan and Loveall clearly constitutes reversible error. This reasoning does not apply to the other defendants represented by the firm of Logan, Cummins & Oerke, since their employment was not personal to them and Senator Logan, while the employment of Senator Logan by Duncan and Loveall as revealed by the record, was, and the benefits thereof would be predicated solely upon the time of employment, and the conditions thereof, which the firm as such could not claim. The reason for the statute and the construction placed thereon by the authorities hereinbefore cited is clearly stated in Holloway v. State, supra:

“The purpose of this statute was, no doubt, to encourage members of the bar to become candidates for the lawmaking body of the state, and to protect a defendant whose attorney, presumably familiar with his case, could not attend his trial by reason of official duty, and to protect members in their business while serving the state in this capacity by preventing trials of cases where they are attorneys of record during a session of the Legislature and for 10 days thereafter [now thirty days]; that during this time they should not be disturbed in their duties as lawmakers. The privilege of a continuance as a matter of right applies only to a defendant whose attorney of record is a member of tile Legislature. A member of the Legislature, during a session of the Legislature, also has the right to contract for any new business presented to him, and, if such business arises during a session of the Legislature; and he is employed he would then be entitled to the benefits conferred by this statute.”

From an analysis of the foregoing cases, it appears that, if such employment is bona fide, as herein appears, and is not for the purpose of delay only, § 667, Title 12 O.S.A. 1941, of the statute is binding on the courts, and not to grant a continuance under such conditions constitutes ground for reversal and requires a reversal of the case. Under the provisions of Title 22 O.S.A. 1941 § 1066, this court may reverse, affirm or modify judgments of conviction. It has been held that the appellate court may reverse a judgment of a lower court as to part and affirm as to part, where the legal part is sever-able from that which is illegal. 24 C.J.S., Criminal Law, § 1949(b); De Jianne v. United States, 3 Cir., 282 F. 737; People v. Dillon, 68 Cal. App. 457, 229 P. 974; State v. Fasano, 119 Conn. 455, 177 A. 376; Wells v. State, 75 Ga. App. 588, 44 S. E. 2d 66. Here the error as to Duncan and Loveall being peculiarly personal to them is severable and cannot be availed of by defendants Cro-well, Agrista and Pugh. It has also been held that a judgment upon a joint indictment and trial may be reversed as to one or more and affirmed as to the other defendants. 24 C.J.S., Criminal Law, § 1949(b); Antone v. State, 76 Fla. 234, 79 So. 714; Floyd v. State, 54 Ga. App. 254, 187 S.E. 682; United States v. Bates, 7 Cir., 141 F. 2d 436, 148 F. 2d 907; Bartlett v. United States, 10 Cir., 166 F. 2d 920. For all the foregoing reasons the judgment and sentence as to defendants Duncan and Loveall solely, without regard to the other alleged errors herein involved, must be reversed and remanded for a new trial.

The next proposition relates to alleged error committed by the trial court in refusing to sustain defendants’ motion for mistrial because of certain statements made by the county attorney in his opening statement to the jury. The first of these statements made is as follows, to wit:

“The evidence will further show that the defendant Carl Eugene Duncan was the first defendant arrested in the City of Los Angeles, California. That upon his arrest, the arresting officers in Los Angeles, California, Walter Stewart and Howard Smith, told him the nature of that arrest, having had a warrant from Oklahoma for such piirpose, and asked him if he desired to make any statement about the Oklahoma job, and he was reluctant to make him such statement, and the only one he made then or at any time since was to the effect, replying to Mr. Smith’s question. Mr. Smith told him he was a police officer in California and that he told him he won a gun in a dice game or crap game in Lawton, and Mr. Duncan gave them the nature and kind of gun used. Now, that is the only admission on his part. * * *” '

No objection was made and no exception saved to the foregoing statement. In Scott v. State, 59 Okla. Cr. 231, 57 P. 2d 639, 640, this court said:

“Ordinarily, error cannot be predicated upon the opening statement of a prosecuting attorney to the jury, specifically stating what facts he expects to develop in testimony, where later, for some reason, he fails to introduce evidence to support some of the narrative related in the opening statement, unless such unsupported portions of the opening statement were made in bad faith and were manifestly prejudicial.”

In the absence of evidence of bad faith in making the hereinbefore complained of statement, which is totally lacking in this record, and because of the manifest lack of prejudice when viewed in light of the entire record, this contention is not meritorious.

Under this same contention defendants urge that the county attorney committed error in his opening statement by beginning to detail to the jury certain facts contained in the written confession of the defendants Perry Pugh and Sam Argista before the voluntary nature of said confessions had been established and said confessions admitted in evidence. It was improper for the county attorney so to do; and the defendants objected and excepted. The court' overruled this objection but admonished the county attorney not to disclose the contents of the statements, and further admonished the jury that any such confession as might be admitted, if such was admitted, would be binding only as against the defendant who made the statement and could be consider- ■ ed only as evidence against such defendant. The record further discloses, however, that subsequent thereto the court heard the evidence in relation to the confessions and found them to be voluntary and admitted the same in evidence. Under these conditions such procedure cannot be error as was said in Foster v. State, 79 Okla. Cr. 183, 152 P. 2d 929, 932, which reads as follows:

“The only error revealed by the record in this case is that of the assistant county attorney in his opening statement in making reference to the statement made by the defendant. Objection ivas made thereto, and the court overruled the objection and permitted the assistant county attorney to state to the jury what the written state-men contained. This was improper, for the reason that the court at that time had not had the opportunity to hear the evidence and determine the question as a matter of law whether the statement was a voluntary or an involuntary one. If the court, after hearing the evidence, had determined as a matter of law that the statement was an involuntary one, and therefore inadmissible, this would have been a very serious error; but the court having found that the statement was voluntarily made, and the jury having been permitted to hear the statement read, we are of the opinion that this was not reversible error.”

We believe the foregoing authority is clearly in point, and controlling herein. As indicated in the Foster case, supra, if upon hearing the evidence in relation to the confession the court had found the said confession was involuntary and inadmissible, the statement of the county attorney would have constituted error, but since the record reveals that the confessions were voluntarily made and their admissibility was limited only to defendants Agrista and Pugh, the other defendants cannot complain relative thereto and their admissions under the conditions herein involved did not constitute reversible error.

The next proposition relates to alleged error committed by the state introducing testimony in two instances wherein the good character of the defendants or two of them was put in issue by the state without the character of said defendants having been placed in issue by the defendants or either of them. This contention is predicated upon the testimony of the arresting officers, Walter ft. Stewart and Howard Smith, members of the Police Department in tos Angeles, Calif. These two officers arrested Perry Pugh and Sam Agrista. Stewart testified that when he advised Perry Pugh of his constitutional rights and the fact that he did not have to make any statement as it might be used against him in the trial of the case, the defendant told him that he knew that. When asked how he knew it, he testified he said “I have been on trial before”. In connection herewith the court admonished the jury:

“The Court: Gentlemen: You heard the remark that was just made here, and I want to admonish the jury that that will not be considered by you gentlemen for any pur-' pose at all, and I would like for you to remove that from your minds, and it is no testimony whatever so far as these defendants are concerned.”

To this evidence the defendants moved for a mistrial, which was overruled. In the recent case of Tucker v. State, 89 Okla. Cr. 30, 204 P. 2d 540, 543, where it appeared a peace officer in testifying for the state improperly made a voluntary statement, we said “this court has repeatedly condemned the practice of experienced peace officers while on the witness stand making voluntary statements prejudicial to the rights of the defendant on trial.” Therein we cited Wire v. State, 87 Okla. Cr. 44, 194 P. 2d 212; Harris v. State, 88 Okla. Cr. 422, 204 P. 2d 305; Holleman v. State, 74 Okla. Cr. 258, 125 P. 2d 239, 240. In the Tucker case we modified the judgment and sentence because of such prejudicial conduct from 25 to a term of 15 years. But all these cases were all predicated upon the basis of prejudice. Under the circumstances herein involved the defendant cannot complain that the voluntary statement of the officer resulted in his prejudice in view of the fact that he later took the witness stand and testified in his own behalf and his own counsel disclosed the fact that he had been convicted of a felony, to wit, larceny, and sentenced to five years in the penitentiary in the state of Iowa. Furthermore, the record affords clear and convincing proof of his guilt, not only by confession but his identification is beyond doubt of his participation in this robbery with firearms. Moreover, the maximum penalty in cases of this character is by punishment by death. Herein the defendants only received a sentence of 10 years. Where prejudice is shown this court will reverse the case because of the admission of voluntary statements by peace officers into the record. Under these conditions we do not believe the defendant Pugh can complain of prejudice. Certainly the contention that the defendants were prejudiced by the voluntary statement of the officer in this case is without merit.

Under this same contention, Officer Howard Smith related a conversation he had with Agrista while he was. likewise in custody of the police officers in Los Angeles, Calif., and when called upon to relate what voluntary statement Agrista made, the officer testified as follows:

“A. The first statement he made voluntarily, that he had .spent 10 years in the Massachusetts penitentiary for robbery”.

'Whereupon the defendants moved for a mistrial for the reason that the statement made by Officer Smith was an attempt to show previous bad character on the part of defendant 4-grista when he had not placed his character in issue. The court overruled the motion for mistrial, granted an exception, and admonished the jury in language as follows, to wit:

“The Court: Gentlemen, you heard the remark that was just made here, and I want to admonish the jury that that will not be considered by you gentlemen for any purpose at all, and I would like for you to remove that from your minds, and it is no testimony whatever so far as these defendants are concerned.”

Under the foregoing admonition of the trial court, and when viewed in light of his signed confession, positive identification by the victims of the robbery with firearms W. G. Snell, Delbert Smith, Buck White and Coy Dennis, and other evidence clearly establishing the guilt of the defendants herein, this contention relative to Sam Agrista is without merit, particularly when viewed in light of the authorities relied on by the state in this connection. In Holleman v. State, supra, this court said:

“Where the character or reputation of the accused is not an element of the crime charged, the prosecution cannot put it in issue by offering evidence of Ms bad character, unless the defendant first offers evidence of his good character. The prosecution may then rebut it by evidence of bad character.
. “Where a witness voluntarily states a matter which should not be introduced in evidence and the court promptly excludes the testimony given by the witness and instructs the jury not to consider it in their deliberation, such voluntary testimony of the witness, although improper, will not ordinarily be ground for the reversal of a conviction.”

See, also, Thompson v. State, 6 Okla. Cr. 50, 117 P. 216. Under the conditions herein involved this contention advanced by the defendants is without merit.

The next contention of the defendants is that the court erred in allowing evidence of extradition to be received over the objections of the defendants, which evidence could only be used to create bias and prejudice by the jury against the defendants. This contention is predicated .upon testimony offered by Officer Stewart of the Los Angeles Police Department, to the effect that defendants Sam Agrista and Perry Pugh waived extradition to come back to Oklahoma, and to which his answer was “they did”. The record does not disclose an objection to the foregoing testimony in relation thereto and the same therefore cannot be made the basis for objection on appeal. Then the question was propounded by the state. “Q. And did Duncan and Crowell fight extradition?” to which an objection was interposed and the objection sustained. Under these conditions this contention is wholly without merit.

The next contention of the defendants is that there was not sufficient independent evidence to substantiate the verdict and judgment of the court as to all the defendants. The evidence in this case conclusively shows the participation in the robbery with firearms of all the defendants. Briefly, it discloses that defendants Duncan, Crowell, Agrista and Pugh were induced to come from Los Angeles, Calif., to Oklahoma, by defendant Vernon Joe Loveall who resided in Medicine Park, Okla., near Lawton, Okla., for the purpose of committing the armed robbery of .a gambling institution operated by W. G. Snell. The defendants Duncan and Crowell were positively identified by the victims as the men who held the guns. Defendants Agrista and Pugh were identified as the men who removed the $4,960 from the persons of W. G. Snell and Delbert Smith and took a small sum of money from defendant Loveall. The record positively proves that defendant Loveall procured from the Wide-awake Pawnshop in Lawton, Okla., a .32 nickel plated automatic pistol which was used in the robbery. Moreover, the record further discloses that defendant Loveall contacted defendant Pugh by letter and telephone relative to his cut of the proceeds taken in the robbery. The record is full, complete and conclusive as to the guilt of all the defendants, and this contention is wholly without merit. Bearing upon this contention the evidence is conflicting and this court has repeatedly held that it will not reverse a conviction upon the ground that the evidence is insufficient to sustain the same, unless there is no testimony in the record from which the jury could reasonably conclude that the defendant was guilty. Sweat v. State, 69 Okla. Cr. 229, 101 P. 2d 648. And where the evidence is conflicting and different inferences may be drawn there-, from, it is the province of the jury to weigh the same and determine the facts, and though the evidence is conflicting but substantial, the Criminal Court of Appeals will not reverse the same on the ground of insufficiency. Chapman v. State, 84 Okla. Cr. 41, 178 P. 2d 638. To the same effect is Butler v. State, 87 Okla. Cr. 369, 198 P. 2d 221.

The next contention of the defendants is that the court erred in allowing evidence to be presented to the jury which showed that certain pieces of evidence were received by unlawful search and seizure, particularly a letter which was written subsequent to the date of the alleged crime and which it was further contended was not admissible as being part of the conspiracy. This objection is predicated upon the proposition that when Perry Pugh was arrested in Los Angeles and questioned concerning the robbery at Lawton, he disclosed to the officers that he had received a letter from Vernon Joe Loveall and informed the officers that if they would take him to his room he would find the letter and let them have it. He took them to his room and removed the letter from a furnace vent in his room. This letter was offered in evidence, objected to, objection overruled and exception allowed. Thfe handwriting expert Mr. D. C. Patterson testified that the signature attached to the letter of Vernon Joe Loveall was identical with the signature appearing on the certificate of purchase signed by Vernon Joe Loveall at the time he purchased the .32 nickel plated automatic pistol which was used by the defendants in perpetrating the robbery herein complained of. Mr. Clyde Moore, owner of the pawnshop in Lawton, had testified that Loveall signed this certificate of purchase in his presence. The record discloses in this connection that Pugh gave his voluntary consent to the search, and as a matter of fact took the officer to his room and delivered the letter to him without the necessity of a search warrant. Goad v. State, 60 Okla. Cr. 307, 64 P. 2d 932, 933, wherein it was held:

“It is an invasion of the constitutional right of any person to search the residence and immediate premises without a valid search warrant, but this right may be waived by the voluntary consent of the person whose premises are searched, and, when voluntary consent is given, evidence obtained by such search is admissible.”

See, also, Camp v. State, 70 Okla. Cr. 68, 104 P. 2d 572. Clearly as to defendant Pugh this objection is without merit, and certainly it would be without merit as to the other defendants. As was said in Downey v. State, 55 Okla. Cr. 131, 26 P. 2d 152:

“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 P. 874; Williams v. State, 35 Okla. Cr. 171, 249 P. 433; Klaber et al. v. State, 35 Okla. Cr. 238, 250 P. 142; Penrod v. State, 38 Okla. Cr. 46, 258 P. 1052.”

See Ellige v. State, 39 Okla. Cr. 262, 264 P. 220; Boardwine v. State, 64 Okla. Cr. 49, 76 P. 2d 1081; Fitzgerald v. State, supra. The trial court limited the evi-dentiary effects of the Loveall letter sent to Perry Pugh to the defendants Pugh and Loveall. Having been admitted on this basis their codefendants could not complain. But, it is further contended by the defendants that the letter was not admissible in evidence because it was written subsequent to the alleged robbery and that the conspiracy involving the same had terminated. This contention .is wholly without merit since the letter was in effect an admission or confession of Loveall as to his guilt in the robbery. Moreover, the conspiracy had not terminated because he had not received his cut in the proceeds of the robbery and the objective of the conspiracy would not terminate until he had received his part. Certainly the letter was admissible as to Pugh and to Loveall, and their eodefendants cannot complain as to its admission in evidence. In this conclusion we are sustained by Ford v. State, 5 Okla. Cr. 240, 114 P. 273, wherein this court said:

“(a) A confession or admission of one defendant upon a joint criminal charge with another, voluntarily made, when properly proven, is admissible in evidence as against him upon trial. The prejudice resulting to the joint defendant from such admission or confession is an unavoidable evil necessarily incident to their joint trial.
“(b) When two persons are jointly on trial and admissions of one of them are offered in evidence, it is the duty of the court to limit, by proper admonition and. instructions, the effect of the admissions, to the person making them.”

To the same effect is Gonzalus v. State, 7 Okla. Cr. 444, 123 P. 705. Under the conditions hereinbefore set forth and the authorities of this court this contention of the defendants is likewise without merit.

The next contention of the defendant goes to the proposition that the court committed error in not permitting the defendants to show the facts and circumstances surrounding the making of the confession of Perry Pugh, and the court’s failure to sustain the motion to suppress the confession and is predicated upon the testimony of George Fly, a newspaper reporter, creating an indication by virtue of an article which he wrote for a daily paper in Lawton, that possibly Pugh -may have made his confession by virtue of a promise of leniency. The evidence of George Fly,- taken in The absence of the jury, is of a most unsubstantial" nature as revealed by the following testimony:

“By the Court: Q. Did the county attorney at any time during the conversation with you tell you that he liad promised Perry Pugh in this case immunity? A. He made no such statement.”

The testimony of Mrs. Maxine Preston clearly establishes the voluntary nature of the confession of Perry Pugh as well as the confession of Sam Agrista. At the very most, this contention is predicated upon inferences drawn by the reporter from his conversation with the county attorney, in face of the foregoing positive testimony. To support such a contention the evidence must be substantial, clear and convincing. The trial court did not abuse his discretion in refusing to sustain the motion to suppress the Pugh confession on the basis of this evidence. Furthermore, the confession of Perry Pugh, as well as the confession of Sam Agrista not involved in this contention, recites that they made their confessions freely and voluntarily, without duress or promise of im-' munity from prosecution. This contention is therefore in our opinion without merit.

The next proposition urged by the defendant goes to the proposition that .the court erred in overruling the defendants’ motion for a new trial and amended motion for a new trial predicated upon newly discovered evidence. This contention is supported by the affidavit of Mrs. Julia Bolton, of Los Angeles, Calif. Her affidavit presents the facts which would be supported by her testimony, and goes to the manner in which the officers procured the letter as written by Vernon Joe Loveall to Perry Pugh and offered in evidence against them. It is merely contradictory of the sworn evidence of Officers Stewart and Smith in relation to the procurement of the letter from Loveall to Pugh about his cut of the proceeds from the robbery. Her testimony would throw no light whatsoever upon the merits of the case. It would not tend to establish the innocence of the defendants. It goes only to a collateral matter. Such matter is addressed to the trial court’s sound discretion. In Parkey v. State, 59 Okla. Cr. 45, 56 P. 2d 144, 145, it was said:

“A motion for new trial upon the ground of newly discovered evidence is addressed to the trial court’s discretion, and its ruling thereon will not be disturbed on appeal except for an abuse of discretion; *

In view of the positive identification of the defendants, the confession of Pugh, and the clear and convincing evidence of his guilt, the court did not abuse its discretion in denying the motion for a new trial on the ground of newly discovered evidence which was sought to be offered in the affidavit of Mrs. Julia Bolton.

In light of the entire record and the foregoing authorities, we are convinced the defendants Perry Pugh, Sam Agrista and Emil L. Crowell were not prejudiced in their constitutional or statutory rights, but to the contrary were accorded a fair and impartial trial, and as to these defendants the judgment and sentence of the lower court is affirmed. As hereinbefore indicated the defendants Duncan and Loveall were prejudiced in their constitutional, statutory and fundamental right to be represented at every stage of the proceeding by counsel of their own choice, and for that reason as to defendants Duncan and Loveall the judgment and sentence is hereby reversed and remanded for a new trial.

JONES, P. J., and BAREFOOT, J., concur.


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    Petition of JACK LEASER.
    No. A-11109.
    June 15, 1949.
    (207 P. 2d 365.)

      Jack Leaser, No. 46206, McAlester, petitioner, pro se.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   BAREFOOT, J.

Petitioner, Jack Leaser, has filed in this court a petition labeled “Petition for Mandamus.” In this petition he asks that the Pardon and Parole Board be required to review his application for parole. He alleges that they have refused to give consideration or hearing upon his application by reason of the provision of Tit. 57 O.S. 1941 § 332.7, enacted by the Legislature in 1947, and which provides:

“Upon completion of one-third (%) of the sentence of any person confined in a penal institution in the State of Oklahoma such person shall be eligible for consideration for a parole, and it shall be the duty- of the Pardon and Parole Officer, with or. without application being made, to cause an examination to be made at the penal institution where the person is confined, and to make inquiry into the conduct and the record of the said person during his confinement in said penal institution, and thereafter said Pardon and Parole Officer shall report to the Pardon and Parole Board his findings, which shall he considered as a basis for consideration of said person for recommendation to the Governor for parole.”

This petitioner is now an inmate of the State' Penitentiary at McAlester, and filed this petition without the aid of counsel; and no lawyer has appeared in his behalf in this court.

Upon the filing of the petition, this court issued an order to show cause, assigning the matter for hearing, and the Pardon and Parole Board was directed to appear and respond thereto. While no response has been filed, the Attorney'General has filed a copy of an opinion by the Attorney General, addressed to the Pardon and Parole Board, dated May 20, 1947, which has. reference to the construction to be placed upon the above-quoted statute, and a motion to dismiss the petition, citing State ex rel. McDaniel v. Turner, Sheriff, 84 Okla. Cr. 247, 181 P. 2d 296.

The facts with reference to petitioner’s case are that he was convicted in Oklahoma county in five cases for robbery with firearms, and sentenced to serve 20 years in each case, and in a sixth case was given a term of five years in the penitentiary. In all of these cases the judgments and sentences were to run concurrently. He was entered at the penitentiary on July 7,1935. While a member of the State Penitentiary band, and as a trusty, he with inmate Bay Dduglas escaped at Maud, Okla., on August 25, 1940. He was captured and returned to the penitentiary on September 8, 1940, and recommitted, to serve the balance of the 20 year sentences.

During the time of his absence from the penitentiary as an escapee, he was charged with the crime of robbery with firearms in McClain county, Okla. He was returned there for trial, and was convicted and given a sentence of 25 years in the State Penitentiary. On February 9, 1945, he completed the service of six cases— five of 20 years each and one for five years — and was immediately “dressed in” to serve the 25 year sentence from McClain county, which term he is now serving.

In his petition it is alleged that the Hon. Joe Harp, the State Pardon and Parole Officer, has refused to present his application for a parole to the Pardon and Parole Board for the purpose of a hearing thereon, by reason of the fact that he has not served one-third of the 25 year sentence from McClain county, as provided by the statute above quoted. He alleges that the application for parole is. one presenting “extraordinary” circumstances, and that he is entitled to have the same considered by the Pardon and Parole Board prior to the expiration of the one-third period prescribed by the statute.

On July 11, 1944, at a special election there was adopted a Constitutional Amendment which provides, Art. VI, § 10:

“There is hereby created a Pardon and Parole Board to be composed of five members; three to be appointed by the Governor; one by the Chief Justice of the Supreme Court; one by the Presiding Judge of the Criminal Court of Appeals or its successor. The appointed members shall hold their office co-terminous with that of the Governor and shall be removable for cause only in the manner provided by law for elective officers not liable to impeachment. It shall be the duty of the Board to make an 'impartial investigation and study of applicants for commutations, pardons or paroles, and by a majority vote make its recommendations to the Governor of all deemed worthy of clemency.
“The Governor shall have the power to grant, after conviction and after favorable recommendation by a majority vote of the said Board, commutations, pardons and paroles for all offenses, except cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper, subject to such regulations as may be prescribed by law. The Governor shall have power to grant after conviction, reprieves, or leaves of absence not to exceed sixty days, without the action of said Board.
“He shall communicate to the Legislature, at each regular session, each case of reprieve, commutation, parole or pardon, granted, stating, the name of the convict, the crime of which he was convicted, the date and place of conviction, and the date of commutation, pardon, parole and reprieve.”

The Attorney General in his letter to the Pardon and Parole Board dated May 20, 1947, makes this statement:

“You ask further whether a prisoner may be eligible to parole prior to service of one-third of the judgment and sentence. There is room for argument as to the answer to be given this question. However, if the section be held to prohibit the consideration of a prisoner for parole prior to service of one-third of his sentence, it would result in depriving a man serving a life sentence of any possibility of a parole, as it is impossible to determine when he has served one-third of his sentence. We do not believe the legislature intended to establish a rule which would result in such a situation. We think it was the intent to make it the mandatory duty of the Pardon and Parole Officer to make investigation with reference to fitness for parole of every prisoner who had served one-third of his sentence, but that it was not the intent of the legislature to preclude consideration of a parole for prisoners prior to such time.
“It is therefore, the opinion of the Attorney General that the Pardon and Parole Board may, in its discretion, consider for purposes of parole a prisoner who has not yet completed serving one-third of his sentence.”

We are of the opinion that the above construction by the Attorney General is correct. We are of the opinion that it was the intention of the Legislature by the enactment of the above statute to make it the mandatory duty of the Pardon and Parole Officer to make an examination of inmates of the State Penitentiary, after they had served one-third of their prison sentence and this “with or without application being made.” A report of this examination should be made to the Pardon and Parole Board by the Pardon and Parole Officer for consideration by the Board, and recommendation to the Governor. This, of course, does not mean that the Pardon and Parole Officer does not have the right to investigate and make reports to the Board, or that' they do not have the right to consider an application prior to the serving of one-third of the prison term. It may be easily observed that this investigation might reveal that one had been imprisoned who was not guilty of the crime charged, or that some injustice had been done which would entitle the prisoner to immediate relief or consideration. It would be inconceivable to say that relief could not be had under these circumstances until one had served one-third of his sentence. The Legislature did not so intend at the time of the enactment of this statute, but only intended that when one had served one-third of his. sentence it should be the mandatory duty of the officers at that time to investigate his prison record and the facts as to whether he was entitled to consideration for a parole or pardon. This statute was enacted for the purpose of giving relief to unfortunate persons who are unable to employ counsel, or bring to their assistance someone who can present to the proper authorities the facts surrounding their cases. It was not intended that this statute should be so construed as to deny such prisoners their just rights.

Under this statute one seeking relief prior to the termination of one-third of his sentence should present an application or facts of his case to the Pardon and Parole Officer, and if in the opinion of this Officer the facts justify, the applicant should be given a hearing before the Pardon and Parole Board. This investigation by the Pardon and Parole Officer should be made with fairness and impartiality.

From the facts presented in this case, we are of the opinion that the Pardon and Parole Officer should have recommended a hearing for petitioner before the Board. We do not by this mean to in any way suggest the result to be arrived at in this investigation. The Pardon and Parole Board and the Pardon and Parole Officer are men of the highest standing in this state, and they have and deserve the highest respect of the citizenship of the state. Their work has been outstanding and they will arrive at the correct conclusion in this case, and in all cases coming before them.

In the letter by the Attorney General to the Board, the question as to what constitutes one-third of a sentence and especially of a life sentence is discussed. This question is not involved in this case, and will, therefore, not be considered.

The petition for writ of' mandamus is denied, for the reason that to grant the same would be the exercise of original jurisdiction, and would not be in the exercise or in aid of our appellate jurisdiction in criminal, cases. However, because of- the importance of the construction to be placed upon this section of the statute by the Pardon and Parole Board in its future deliberations, we have expressed our opinion as to the interpretation that should be placed thereon.

Writ denied.

JONES, P. J., and BRETT, J., concur.


text:
    Ex parte ROGERS MONROE.
    No. A-11188.
    June 22, 1949.
    (207 P. 2d 944.)
    Rogers Monroe, pro se.
    Mac Q. Williamson, Atty. Gen., for respondent.
   BAREFOOT, J.

This original proceeding in habeas corpus was instituted by the petitioner, Rogers Monroe, to secure his release from confinement in the State Penitentiary.

The petition was filed by petitioner without the aid of counsel. This petition, duly verified, alleges that defendant was convicted of the crime of conjoint robbery with firearms in the district court of Rogers county, May ■13, 1930, and sentenced to serve 25 years in the State Penitentiary.

Petitioner’s only contention is that the trial court was without jurisdiction to pass judgment in said cause. He attaches a brief in support of his petition, and also attaches a certified copy of the appearance' docket of the district court of Rogers county relative to the case of petitioner. Under date of May 13, 1930, the docket sheet contains the following notations in the order given:

“Court instructs jury; instructions filed; requested instructions filed; bailiff sworn; jury returned verdict of guilty and cannot agree on punishment; verdict received; ordered filed; verdict filed; recorded; defendant objects to filing and recording of verdict; overruled; defendant objects to discharge of jury and moves they be returned to further consider punishment; overruled; jury discharged; defendant remanded to sheriff; court sets Sat. May 17 as sentence day.”

In his brief petitioner contends that the trial court erred in receiving the verdict and discharging the jury over the objection of the defendant and request by defendant that the jury be required to assess the punishment. In support of this contention he cites 22 O. S. 1941 ■§§ 926 and 927, which are as follows:

“§ 926. In all cases of a verdict of conviction for any offense against any of the laws of the State of Oklahoma, the jury may, and shall upon the request of the defendant assess and declare the punishment in their verdict within the limitations fixed by law, and the court shall render a judgment according to such verdict, except as hereinafter provided.
“§ 927. Where the jury find a verdict of guilty, and fair to agree on the punishment to be inflicted, or do not declare such punishment by their verdict, the court shall assess and declare the punishment and render the judgment accordingly.”

From the record before us, there is nothing to show that the request to require the jury to assess the punishment was made before the verdict was returned. In the early case of Fain v. State, 14 Okla. Cr. 556, 174 P. 296, this court said:

“The request made of the court that the jury assess the punishment came too late. It is clear: (1) That the request must come before the verdict is returned; (2) that the exception named in section 5934 (Tit. 22 O. S. 1941 § 927) permits the jury to return a general verdict of guilty, and that they cannot agree upon the punishment, if no request that the jury assess the punishment is made before the verdict is returned. The court then was authorized to pronounce judgment upon the verdict as returned.”

No appeal was taken from the judgment and sentence rendered against this petitioner. . It is well settled that the Criminal Court of Appeals in a habeas corpus proceeding will not look beyond the judgment and sentence of any court of competent jurisdiction as to mere irregularities of procedure, or errors of law on questions over which the court had jurisdiction; and that the writ of habeas corpus cannot be substituted for an appeal.

The petition for writ of habeas corpus is denied.

JONES, P. J., and BRETT, J., concur.


author: JONES, P. J.

text:
    DICK SPEARS v. STATE.
    No. A-10993.
    June 22, 1949.
    (207 P. 2d 946.)
    H. M. Shirley and E. Moore, both of Coalgate, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Dick Spears, was charged in the district court of Coal county with the crime of rape in the first degree, was tried, convicted of the included offense of assault with intent to commit rape, and sentenced to serve five years in the State Penitentiary, and has appealed.

The chief contention presented for a reversal of the conviction is that the evidence is insufficient to support the conviction.

The defendant was charged with the rape of Martha Lou Cox, who was 12 years of age at the time the act was alleged to have occurred.

The record presents one of the most sordid cases this court has ever had occasion to review. The situation as portrayed by the evidence of the state and in part corroborated by admissions of the witnesses for the defense, including the defendant himself, shows that the defendant, his wife and four or five other parties staying at the home of the Spears, were devoting most of their time in the month of July, 1946, to fornication and selling whisky.

Martha Lou Cox testified that her father and stepmother were arrested on July 23, 1946, on a whisky charge and taken to jail; that her father told her and her sister, Betty Jo Cox, who was a year younger than Martha Lou, to go over to the home of the defendant, Spears, and remain until he got out of jail; that she and Be.tty Jo went over to the home of Spears and that the first day that she got there the defendant followed her down to the spring where she had gone to get a bucket of water and threw her down and had sexual intercourse with her; that he repeated the act the next day and on Friday night, shortly after dark, he got in the bed where she was lying with her sister and two other children and repeated the act; that at the end of five days she and her sister were taken to her grandmother’s where she reported what had happened; that during the time she was at the defendant’s home, Henry Tidwell, Roy Walker, and Clarence McKeen, who were there at the place also had sexual intercourse with her; that she screamed for help but no one offered to help her; that one of the acts was commenced in the kitchen of defendant’s home in the presence of defendant’s wife, Grace, and that Grace told her to go ahead and submit to the defendant.

Betty Jo Cox, the sister, testified that she witnessed the acts committed by the defendant in a ditch in back of the house on Thursday, and also the one where she was lying in bed with her sister on Friday night; that when her sister commenced to scream, she ran to Mrs. Spears to get help and Mrs. Spears, wife of defendant, said “Let him go ahead, I don’t give a damn.”

Alice Cox, the grandmother, testified that Betty Joe Cox came to her in the town of Coalgate on Saturday and asked her to get her sister, Martha Lou Cox, who was at the Spears home and was being mistreated; that she sent her two sons after Martha Lou and that when they brought her to her house she was in a bad physical condition; she could not sit down; she had bruises on her ear and on her back where she had been struck, and could hardly walk; that she later took Martha Lou to Doctor Clark of Coalgate; that the little girl became pregnant, and on October 28th, had a miscarriage.

Doctor Clark testified that he made an examination of Martha Lou Cox but did not remember the date of the examination; that his examination was confined solely to her private parts; that he found a ruptured hymen, inflammation, and an opening larger than a child of that age should have had; that the condition which he found was such condition as is ordinarily caused by an act of sexual intercourse.

The defense consisted chiefly of evidence by parties who were either charged with similar acts of rape against the little girl, or who were connected in some way with the defendant in his illicit whisky business. This evidence was for the purpose of showing that there was jealousy between Everett Cox, the father of the prosecutrix, and the defendant over Lorice Cox, wife of Everett, who was the stepmother of the prosecutrix, and that this jealousy motivated the father in filing a charge of rape against the defendant.

The defendant also offered proof of an alibi in so far as the Friday night act was concerned, but his evidence in this regard was weakened by the introduction of a transcript of his evidence given on the trial of Clarence McKeen in another case, which testimony varied from that given by him in the instant case.

The evidence presented a question for the determination of the jury. The jury was extremely lenient when they fixed the punishment of defendant at five years’ imprisonment. The testimony of the two little girls has a ring of truthfulness. It would be an unauthorized usurpation of authority on our part if we should attempt to overthrow the verdict of the jury based on such evidence.

The defendant makes the contention in his brief that he was denied a fair trial on account of the attitude of the trial judge and court officials in the presence of the jury. We have carefully checked the record and have found nothing that appears to have been improper or prejudicial on the part of such officials or judge.

The trial court in his instructions gave the requested instructions of counsel for the defendant which were more favorable to the defendant than he was entitled to under the law. No objection was made to tbe giving of any instruction.

Tbe little girl wrote out in her own bandwriting in pencil a note for tbe county attorney detailing tbe circumstances of tbe various acts of sexual intercourse bad with tbe defendant and tbe other parties there on tbe premises of tbe defendant. This account of these acts is so vivid, lewd, indecent, obscene and filthy that this opinion will not be burdened by including it herein. It would make tbe blood of any ordinary sane human boil at tbe misdeeds'perpetrated on this young girl by this group of adult degenerates.

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

BAREFOOT and BRETT, JJ., concur.


author: BRETT, J.

text:
    ERNEST WALLACE v. STATE.
    No. A-11015.
    June 22, 1949.
    (208 P. 2d 190.)

      Welch, Bounds & Kile, of Hugo, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

Plaintiff in error Ernest Wallace, defendant below, was charged in the county court of Choctaw county by information, with the unlawful possession of intoxicating liquor, tried before a jury, convicted and sentenced to 30 days in the county jail and to pay a fine of $50. From this judgment he appeals.

The decisive proposition presented by the defendant is that the trial court erred in not sustaining his motion to suppress the evidence. This contention is predicated upon the following facts: In the search warrant the premises were described as a “frame building occupied by Ernest Wallace, used as such and also as a storage for liquor; also barns, caves, garages, aud all out-buildings located on * * * Lot 1-2-3-4 in Block 85 in that part of the city of Hugo known as Original Townsite, Choctaw County, Oklahoma * * The only evidence offered on the motion to suppress was presented by the defendant. The defendant’s evidence established that block 85 had been intersected by what is known as “A” Street, so that lots 1 and 2 are located on the west side of “A” street and lots 3 and 4 are located on the east side of “A” street. On each side of the street located on said lots is a frame building. The building located on lots 1 and 2 on the west side of “A” street is owned and occupied by Ernest Wallace wherein he conducts a grocery store. The other building located on lots 3 and 4 on the east side of “A” street is owned by a Mr. Cog-gins and occupied by the Hugo Candy Company. The state offered nothing to the ■ contrary. The record is silent as to either of the said buildings bearing any marks of distinction such as distinguishing signs, etc., to separate the Wallace place from the. Hugo Candy Company. The only language appearing in the search warrant to distinguish between them are the words “a frame building occupied by Ernest Wallace”. On these facts the search and seizure was made. It appears from the record, the officer under the description in the search warrant was compelled to resort to discretion as to whether he would search the frame building located on lots 1 and 2 on the west side of “A” street or the frame building located on lots 3 and 4 on the east side of “A” street. It is clear that in legal contemplation this warrant described more than one place since there were two frame buildings located on lots 1, 2, 3 and 4 as described in the warrant.

It is established law that a search warrant must so particularly describe the place to be searched that the officer to whom it is directed may determine the place from the warrant, leaving no discretion as to the place to be searched. Herrion v. State, 79 Okla. Cr. 48, 150 P. 2d 865; Young et al. v. State, 63 Okla. Cr. 196, 74 P. 2d 392; Weisband v. State, 69 Okla. Cr. 79, 100 P. 2d 297. In the Herrion case, supra, the land described was 80 acres on which was situated four cabins other than the one under the control of the defendant. Therein this court said: “In construing the above principle of law, this court has held that an affidavit for search warrant describing the premises to be searched as certain property is insufficient to furnish a particular description of the place to be searched where it is shown that the premises so designated were owned and occupied by several persons, so that it was in fact several places. Lucas v. State, 56 Okla. Cr. 413, 41 P. 2d 131; Young v. State, supra; Stouse v. State, 62 Okla. Cr. 46, 70 P. 2d 145.”

The search warrant herein described premises owned and occupied by persons other than that occupied by Ernest Wallace, so, in fact, it described two places calling for the exercise of discretion, which the law does not permit. Such is the situation in the case at bar.

This court has held that the test of the sufficiency of a search warrant is, whether an officer unfamiliar with the location of the defendant’s premises would have had difficulty in locating it from the descriptive averments contained in the warrant, without seeking aid from any other source than that set forth in the warrant. Kutz v. State, 83 Okla. Cr. 324, 177 P. 2d 139; Hughes v. State, 83 Okla. Cr. 16, 172 P. 2d 435, 436. In the latter case this court said:

“If the descriptions in search warrant are sufficient to enable officer executing the search warrant to locate the premises to be searched without aid of any other information save that contained in warrant, the warrant is sufficient.”

It is clearly established in this state that if the place to be searched cannot be so located the warrant is insufficient. Even though the search warrant herein involved named the defendant Ernest Wallace, under the foregoing tests of sufficiency that fact alone will not validate the warrant. The situation herein presents a blanket warrant describing premises on which are located more than one house occupied by persons other than Ernest Wallace. It is not like the case of Staley v. State, 73 Okla. Cr. 355, 121 P. 2d 324, wherein his house was the only house on the lots 12 to 19 even though lot 12 was vacant and belonged to another person. Under this record, from the warrant, the officer serving the same' could not tell whether Wallace lived in the frame house located on lots 1 and 2 or in the frame house located on lots 3 and 4, and would be compelled to resort to some other source of information than the descriptive information contained in the warrant in order to determine which of the houses was the Wallace premises. To sustain this search and seizure would constitute a violation of the defendant’s constitutional rights against unlawful searches and seizures. Bill of Bights § 30; Title 22 O. S. A. 1941 § 1226; Title 37 O. S. A. 1941 § 84.

There are other reversible errors contained in the record which we mention without discussion, such as the admission in evidence over defendant’s objection in the trial in chief of the affidavit and search warrant. Savalier v. State, 85 Okla. Cr. 87, 185 P. 2d 476, and numerous .authorities therein cited. Furthermore, the court misdirected the jury in instruction No. 2-E as to possession of an illegal amount of liquor constituting prima facie evidence of unlawful intent. The instruction given by the court followed the erroneous pattern condemned in Savalier v. State, supra, and in Hughes v. State, 85 Okla. Cr. 25, 184 P. 2d 625; Badgett v. State, 89 Okla. Okla. Cr. 268, 207 P. 2d 359. For all of the reasons here-inbefore set forth, the judgment and sentence herein involved should be and the same is hereby reversed and the defendant ordered discharged.

JONES, P. J., and BABEFOOT, J., concur.


text:
    LLOYD TAYLOR v. STATE.
    No. A-11012.
    July 6, 1949.
    (208 P. 2d 185.)
    Welch, Bounds & Kile, of Hugo, and R. O. Swimmer, Oklahoma City, for plaintiff in error.
    Mac Q.a Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The defendant, Lloyd Taylor, was charged, tried and convicted in the county court of Choctaw county, Okla., of the offense of unlawful transporting of liquor, 24 cases of whisky, and sentenced to serve 30 days in the county jail and to pay a fine of $200. The offense was allegedly committed on September 5, 1947, by transporting said whisky from a point unknown to a point two miles east of Boswell, Okla., on IT. S. Highway 70. The defendant filed a motion to suppress the evidence, which was overruled. The principal contention of the defendant was that the search and seizure of the automobile containing' the liquor was illegal and the evidence therefore inadmissible.

The record discloses that Highway Patrolman Cecil Snapp had observed the automobile used in the transportation shortly prior to September 5, 1947, on the highways of Choctaw county and saw that -it was equipped with two tail exhaust pipes, window awnings and various other contraptions,- and black car, that at that time it had an Oklahoma license tag on it. But, on September 5, 1947, when he saw the automobile driving on the highway a mile west of Hugo, Okla., and a man and woman in it, it had a Louisiana tag on it, which aroused his suspicion and he turned and started pursuing it and never did catch up with it, and it got away. The defendant makes much of the fact of this part of the testimony of ¡Highway Patrolman Cecil Snapp in an effort to establish the proposition that the search and seizure was founded upon mere suspicion. But so far as this evidence is concerned it offers absolutely no basis whatsoever for the subsequent search, and for the purpose of this opinion it forms no essential part of the case leading up to the search and seizure. It is merely corroborative of facts developed during the search.

The record further discloses that thereafter Henry Caldwell, city marshal and deputy sheriff, at Boswell, Okla., was approached by a boy and two girls, while he was attending a night picture show. One of the girls was a Mrs. Vaughn’s daughter, who informed him that at the home of Mrs. Yaughn located two miles east of Boswell there was a stranger’s automobile, that contained whisky, parked back of the house. Thereupon, he went to Vaughn’s premises and found the automobile parked as he had been informed. He approached the automobile and flashed his flashlight through the left front door of the club coupe and the back seat was raised up and he could see that it contained lugs of whisky, and one of the lugs being torn exposed a bottle containing Avhisky. Thereafter he contacted Cecil Snapp and Ed Yandergrift, highway patrolmen, and Joe Rowton, constable of Hunter township, who came to the Vaughn’s premises and together they searched the automobile based upon what he had seen with the aid óf his flashlight. Therein they found 24 cases of whisky, advertising cards bearing a schedule of prices for whisky, and the Oklahoma license tag that Cecil Snapp had seen on the automobile prior to the time that he chased the occupants of the car which then bore a Louisana license tag. The evidence discloses that they took the liquor thus found to the sheriff’s vault and impounded the car in a garage in Hugo.

The record further discloses that nine days later the defendant Lloyd Taylor had a conversation with Cecil Snapp in which conversation defendant admitted to Snapp that he was driving the car, and the whisky belonged to him, and that after they abandoned the automobile behind Vaughn’s house defendant and his wife walked along the highway as the patrol car passed them. The defendant did not testify in his own behalf, but his wife Bettie Jean Taylor testified that she and her husband had made a trip to Shrevesport, La., and there they bought approximately 25 cases of whisky. She said that they were transporting the same through Choctaw county, and that something happened to the car and the pressure fell and the car got cold and finally it would not go and they pulled it out into the Vaughn’s farm yard back of the house. Thereafter, they left and started walking up the highway, caught a ride and went into the town of Boswell and then caught another ride and went into Durant, caught the bus and went into Oklahoma City. She said the reason they did not stay with the car was because they didn’t have any money to have it fixed and were going to Oklahoma City to get the money to try to get it fulled in or fixed, that they were “also kind of leary” because the car had whisky in it. On cross-examination she admitted that her husband’s business was •the whisky business. It is apparent that the state’s evidence was entirely sufficient to make out the charge as laid in the information of unlawful transportation of liquor as against a demurrer. The defendant did not testify but his wife did for him. Her testimony is tantamount to a plea of guilty for him to the charge as laid in the information. It corroborates Snapp’s testimony in relation to the admissions the defendant made to him nine days after the offense was committed, to the effect the car was driven by him and the whisky belonged to him. The evidence of his guilt is complete.

In regard to the court’s failure to sustain the motion to suppress, it is apparent that the pursuit by Patrolman Cecil Snapp forms no basis whatsoever for the contention that the search and seizure of the liquor in the automobile was based upon suspicion. It forms a separate and distinct transaction from the facts surrounding the search and seizure. It is apparent that Mrs. Vaughn’s daughter, on whose private premises the automobile was parked, had seen and observed the whisky contained in the car and that she reported it to Officer Caldwell for the purpose of having it removed. It is clear that Officer Caldwell came upon the private premises of the Yaughns at their request and invitation. It is further clear that Officer Caldwell discovered that the whisky was in the automobile by the aid of his flashlight and his sense of sight before any search of the same was commenced. Under such conditions this court has repeatedly held that whether a search of an automobile without a warrant is unreasonable is a judicial question to be determined in view of all the facts and circumstances under which it is made. Matthews v. State, 67 Okla. Cr. 203, 93 P. 2d 549; Farmer v. State, 86 Okla. Cr. 308, 192 P. 2d 716. Moreover, this court on numerous occasions had passed upon the question of the search of automobiles without a search warrant, where as here such automobile is being used in transporting intoxicating liquor in violation of law, and wherein the liquor can be discovered by means of the sense of sight and without the aid of a search warrant. One of the early cases involving such a situation is Sands v. State, 36 Okla. Cr. 55, 252 P. 72, wherein the court said:

“The mere looking into an automobile and there seeing intoxicating liquor, which is not concealed, and which requires no search to discover, is not an illegal search within the meaning of the law and Constitution making illegal a search without a valid search warrant.”

For other cases in point, see also Matthews v. State, supra; Davenport v. State, 71 Okla. Cr. 91, 109 P. 2d 549; and Nott v. State, 70 Okla. Cr. 432, 107 P. 2d 366, 367, wherein the court said:

“An offense is committed or attempted Tn the presence of an officer’, within meaning of the statute providing that a peace officer may, without a warrant, arrest a person for a public offense, committed or attempted in his presence, where such officer is apprised by any of his senses that a misdemeanor is being committed by the person arrested prior to the arrest.”

In Matthews v. State, supra, the officers looked through the car window of the automobile, therein involved, and saw a carton on the floor of the car labeled Paul Jones whisky, and also saw a bottle in the car. Further in Nott v. State, supra, the court said:

“The constitutional provision against unreasonable searches and seizures does not preclude the making of a seizure, without a warrant previously procured, of intoxicating liquor, where there is no need of a search for the liquor because the liquor is fully disclosed to the eye.”

Such is the situation involved in the case at bar. The officer by aid of his search light could detect the presence of whisky in the automobile without ever undertaking to make a search. When he did detect the whisky in the automobile, it was then his duty as such officer to search the automobile, impound it and seize the liquor.

The defendant cites in support of his theory of the case the cases of Black v. State, 63 Okla. Cr. 317, 74 P. 2d 1172; Morris v. State, 66 Okla. Cr. 358, 92 P. 2d 603; Barnett v. State, 71 Okla. Cr. 118, 109 P. 2d 243; O’Dell v. State, 80 Okla. Cr. 194, 158 P. 2d 180; Evans v. State, 71 Okla. Cr. 239, 110 P. 2d 521; Rausch v. State, 75 Okla. Cr. 310, 131 P. 2d 133. These cases are not in point with the situation at bar. They are cases that involve a search and seizure predicated entirely upon suspicion which led to the discovery of liquor. Those cases involved searches unlawful from the beginning, while in the case at bar, the discovery of the liquor was made through the sense of sight before the search was undertaken. Therein lies the distinction between the cases relied upon by the defendant and those relied upon by the state. The defendant has failed to sustain the burden of showing that the search and seizure in the case at bar was unlawful. The court correctly ruled, in refusing to sustain the motion to suppress the evidence.

Next the defendant contends that he was prejudiced by irrelevant and incompetent questions propounded to his wife Bettie Jean Taylor on the cross-examination of her relative to whether or not she and her husband had been divorced. Such examination was irrelevant and incompetent, but since the answer was in the negative, and to the effect that they had never even been separated, the same certainly could not be prejudicial.

Further he contends that the county attorney committed prejudicial error in said examination where in the presence of the jury he asked “Where is that ‘rap sheet’, I thought I had it right here”; and then in asking Mrs. Taylor “How many times has Mr. Taylor been arrested for selling intoxicating liquor * * *?” This was certainly prejudicial to the defendant, particularly in view of the fact that the defendant had not taken the witness stand in his own behalf and his character and reputation was not in issue. As was said in Kirk v. State, 11 Okla. Cr. 203, 145 P. 307:

“ ‘It is a fundamental principle of criminal law that the character of the defendant cannot be impeached or attacked by the state, unless he puts his character in issue by introducing evidence of good character.’ ”

Such was the holding in Smith v. State, 75 Okla. Cr. 55, 128 P. 2d 250; Pitcher v. State, 32 Okla. Cr. 322, 241 P. 199, and numerous other cases. The trial court should have sustained the objection to the foregoing evidence and admonished the jury, but it did not do so. However, a review of the entire record convinces us that the jury was clearly justified in finding the defendant guilty, and when weighed in light of the re-direct examination of Mrs. Taylor by the defendant’s own counsel wherein she was asked what was “her husband’s occupation at this time”, her answer was “whisky business”, we believe that the cross-examination by the county attorney, while improper, would not warrant a reversal of this case on that ground. Such is the case, particularly in view of the fact that the evidence of the defendant’s guilt is so clear and convincing, even in light of his wife’s testimony offered in his behalf. Here the error complained of certainly did not result in a miscarriage of justice. At most it was technical and harmless, and not grounds for reversal. Title 22 O.S.A. 1941 § 1068.

Finally, the defendant complains of instruction 2D. It is contended that said instruction was misleading. Instruction 2D must be construed in light of all the instructions. Burroughs v. State, 80 Okla. Cr. 271, 158 P. 2d 723. We have examined the instructions as a whole and while, they are far from being model instructions, we find that they state the law, and that instruction 2D in light of all the instructions could not have been misconstrued or misinterpreted in the manner contended for by the defendant. Instruction 2D was most poorly worded, but under the conditions herewith presented, in the absence of being misleading to the jury, it does not constitute reversible error. Burroughs v. State, supra. Under these conditions the objection to the instruction is without merit. Lamb v. State, 70 Okla. Cr. 236, 105 P. 2d 700. Moreover, in Burns v. State, 72 Okla. Cr. 409, 117 P. 2d 144, 146, in syllabus 9 it was held:

“Where the guilt of the defendant is conclusive, instructions which are substantially correct and which do not apparently serve to mislead the jury will not be grounds for reversal, although such instructions may have technical flaws in them.”

We are convinced a re-trial of this case would only result in another jury finding the defendant guilty and that the errors complained of did not affect the results of such finding. They may, however, have influenced the jury in assessing the penalty and provoked it to impose a more severe sentence than would have otherwise been returned. In view of this fact and under the provisions of Title 22 O.S.A. 1941 § 1066, we are of the opinion that the judgment and sentence herein imposed should be and accordingly is modified to 30 days in jail and $100 fine, and as so modified is affirmed.

JONES, P. J., concurs.


text:
    ESTELL DEWEY FREEMAN v. STATE.
    No. A-10999.
    July 6, 1949.
    (208 P. 2d 192.)

      Clarence W. Myers, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Estell Dewey Freeman, was charged by information filed in the district court of Oklahoma county with the crime of embezzlement, was tried, convicted by a jury who left the punishment to be assessed by the court. Thereafter, the defendant was sentenced to serve two years imprisonment in the penitentiary, and has appealed.

All cases appealed to the Criminal Court of Appeals under the rules of this court are assigned for oral argument. On the date this case was set for oral argument, there was no appearance by any counsel in defendant’s behalf; and although the appeal has been lodged here for about a year, no brief has been filed. In such a case, we do not feel it the duty of this court to check the record to try to ascertain any errors that may have been committed. However, we do read the record for the purpose of ascertaining whether there is competent evidence of guilt, whether the information correctly charges an offense and whether the judgment pronounced is within the jurisdiction of the court.

The record here correctly charges the crime of embezzlement to have been committed. The record discloses that the defendant came into possession of a |500 bill belonging to John J. Conner and embezzled and appropriated the same to his own use.

There are no errors apparent in the record and the judgment and sentence of the district court of Oklahoma county is affirmed.

BRETT, J., concurs.


text:
    Ex parte JUNIOR COLE.
    No. A-11199.
    July 13, 1949.
    (208 P. 2d 193.)
    Junior Cole, pro se.
    Mac Q. Williamson, Atty. Gen., for respondent.
   JONES, P. J.

This is an original action in habeas corpus instituted by the petitioner, Junior Cole, in which he alleges that his imprisonment in the State Penitentiary at McAlester is illegal.

The verified petition alleges that the petitioner entered a plea of guilty on November 4, 1933, to the crime of manslaughter in the first degree in the district court of Muskogee county, and was sentenced to serve 25 years’ imprisonment in the State Penitentiary; that thereafter, on March 5, 1943, it being satisfactorily established that the prisoner was suffering from active tuberculosis, the Governor of the State of Oklahoma issued a temporary parole so that said prisoner could be transferred to a suitable climate for his health. Under the terms of the parole, the prisoner was obligated to return to the penitentiary on September 6, 1943.

Thereafter, the petitioner entered a plea of guilty in tibe district court of Tulsa county on May 19, 1943, to the crime of robbery and was sentenced to serve 10 years’ imprisonment in the penitentiary. Immediately after the judgment was pronounced in the district court of Tulsa county, the prisoner was committed to the State Penitentiary and he was enrolled on the records of the institution to commence serving the Tulsa county sentence. The temporary parole was revoked by the Governor on June 18, 1943.

The petitioner contends that the warden of the penitentiary illegally booked him on the Tulsa county conviction when under the law he should have been booked for the sentence from Muskogee county for which he had been given a parole.

In the prayer of the petition, the petitioner asserts that he will be eligible for a discharge in 1950, and for that reason he does not want the judgment vacated and a new hearing ordered; but that he requests the Criminal Court of Appeals, after a consideration of all the facts, .to issue an order modifying and reducing petitioner’s term of imprisonment to the time which he has already served.

The Criminal Court of Appeals is not authorized on habeas corpus to modify or reduce the sentence which has been pronounced against one convicted of crime. Ex parte Wright, 73 Okla. Cr. 167, 119 P. 2d 97; Ex parte Cassidy, 83 Okla. Cr. 159, 174 P. 2d 271.

In Ex parte Tillman, 81 Okla. Cr. 332, 164 P. 2d 649, and in Ex parte Pierce, 88 Okla. Cr. 150, 200 P. 2d 777, this court fully discussed the statute pertaining to the duties of the prison officials in making an entry on their records as to the crime for which the prisoner is committed where he has two or more unsatisfied judgments.

Some complaint is also made in the petition that at the time' the petitioner entered his plea of guilty to the crime of manslaughter in the district court of Muskogee county, he was not represented by counsel and did not fully understand the nature of the proceedings against him. No proof was offered at the hearing to support this allegation. In addition to that, such question could not be presented at this time because of the laches of the petitioner. See Ex parte Matthews, 85 Okla. Cr. 173, 186 P. 2d 840, and related cases.

The writ of habeas corpus is denied.

BRETT, J., concurs.


text:
    J. W. (WESS) THOMPSON v. STATE.
    No. A-11017.
    July 13, 1949.
    (208 P. 2d 584.)

      Jack Bradley, Hugo, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The defendant J. W. (Wess) Thompson was charged in the county court of Choctaw county, Okla., with the unlawful possession of intoxicating liquor, was tried, convicted and sentenced to served 30 days in jail and to pay a fine of $50.

The record discloses that defendant was in possession of some 16 pints of whisky. From the judgment and sentence herein imposed the defendant perfects this appeal. At the outset let us observe the defendant offered no evidence in his behalf designed to prove his innocence of the-charge against him. He makes several assignments of error which we will consider in the order of their presentment.

The first contention is that the trial court erred in not granting his motion for a continuance requested by reason of the absence of R. L. Page, deputy sheriff, who was confined' in the hospital. It was alleged if he were present he would. testify that the search began before the warrant was served. In addition thereto, the court heard evidence on the motion. Thus the court knew in substance what the absent witness would testify to if he were present. The record herein, as to service of the warrant, completely refutes the allegation as to what the officer would have testified to. It shows the warrant was ■served on an 18-year old boy who was in charge of the premises. It further discloses when it was found the defendant was on the premises in bed, a copy of the warrant was then served on him in person. Upon the hearing of this evidence the court refused a continuance. In so holding the court properly ruled. Title 37, § 84, O. S. A. 1941, reads in part as follows:

“A copy of said warrant shall be served upon the person or persons found in possession of any such liquor, furniture or fixtures so seized, * *

This section would indicate that it would be required if a person was present and in possession of the liquor contraband a copy of .the warrant should be served upon such person. The record herein clearly supports a compliance of the statute in this regard. Under the defendant’s theory the search could not be had in absence of service of the warrant. Hence the request for a continuance to obtain the testimony of B. L. Page. Such a contention is clearly not within the contemplation of the provisions of the statute. The foregoing section of the statute further reads:

“* * * and if no person be found in the possession thereof, a copy of said warrant shall be posted on the door of the building or room wherein the same are found.”

It thus appears that it is within the contemplation of the statute that a search may be commenced and completed without personal service of- a copy of the warrant if no person is on the premises at said time and in charge of the liquor. It is within the contemplation of the statute that the search may be commenced and service of a copy of the warrant be had upon the appearance of a person in charge of the premises after the search is commenced or service of the warrant may be made by posting the same on the door of the building or room in the absence of any one in possession. Roe v. State, 32 Okla. Cr. 113, 240 P. 140. But there are cases where to require service of the warrant even when one was in possession of the liquor sought to be seized would defeat the ends of justice. Roberts et al. v. State, 53 Okla. Cr. 409, 12 P. 2d 253, is a case very similar to the one at bar, wherein the court held neither the law nor common sense requires an officer under such circumstances to serve a search warrant before seizing the whisky. Thigpen v. State, 51 Okla. Cr. 28, 299 P. 230; United States v. Camarota, D. C., 278 F. 388. While ordinarily the law contemplates if some person is present and in possession of the place to be searched the warrant will be served, before the search is commenced, but it is not always essential to a valid search, for it is not always possible so to do in the enforcement of the law. It is therefore apparent that personal service of the warrant before search is commenced is not essential to a valid search and seizure. In view of the foregoing conclusions we are of the opinion the evidence of R. L. Page would therefore have been immaterial, particularly when this record shows service of the wararnt as required by law. The denial of the continuance was a matter within the court’s sound discretion, and the evidence amply supports his denial of the same. Murphy v. State, 72 Okla. Cr. 1, 112 P. 2d 438; Hiatt v. State, 67 Okla. Cr. 372, 94 P. 2d 262. Quite clearly he did not abuse his discretion. The motion for continuance was therefore properly overruled.

He next contends that the evidence was insufficient to sustain the conviction. This assignment is wholly without merit. The finding of the quantity of liquor in the case at bar in the defendant’s presence, standing alone, was sufficient to justify the verdict of the jury if from all the evidence it believed possession of the liquor was for an unlawful purpose; Whitwell v. State, 72 Okla. Cr. 192, 114 P. 2d 489. From their verdict they found that he was in possession of the liquor for an unlawful purpose.

Further, he contends that the court erred in giving instructions No. 2-A and 2-B. No objection or exception was saved in the trial to the giving of these instructions. No specific mention of these instructions is made at any stage of the proceedings until the question is presented on brief in this court. When a general reference to the instructions appears for the first time in the petition in error, such objections come too late in the absence of fundamental error. Bowers v. State, 56 Okla. Cr. 111, 34 P. 2d 292; Green v. State, 70 Okla. Cr. 228, 105 P. 2d 795; Gentry v. State, 86 Okla. Cr. 92, 189 P. 2d 626. The instructions complained of were in some respects similar to that given in Hughes v. State, 85 Okla. Cr. 25, 184 P. 2d 625, cited by the defendant. The similarity arises in the fact that the trial court herein did not define prima facie evidence. There the similarity ends, for the trial court herein did not shift the burden of proof to the defendant as was done in Hughes v. State, supra. In the Hughes case, supra, as pointed out in Gentry v. State, supra, specific objection was made to the instruction and an exception saved to the giving of the same. Such is not the case here. This court has repeatedly held that the giving of an instruction will not be considered as error in absence of exception thereto, unless it is so fundamentally erroneous as to mislead the jury and thus deprive defendant of his constitutional right to a fair and impartial trial. Storer v. State, 84 Okla. Cr. 176, 180 P. 2d 202; Fields v. State, 85 Okla. Cr. 439, 188 P. 2d 231; Wingfield v. State, 89 Okla. Cr. 45, 205 P. 2d 320. This contention is therefore without merit.

Finally, the defendant questions the venue of the trial court. He says that the evidence is entirely insufficient to prove venue. The record in this regard supports this contention. The Attorney General in his brief concedes that there is no clear showing as to venue. He says the record discloses that the sheriff testified that after getting the search warrant for the premises of the defendant, he went out on Jackson street to defendant’s place, that the property was located out “toward Holton’s sale barn”, that there was a filling station between the property and the sale barn. There was a 17 or 18 year old boy at the place. On cross-examination by counsel for the defendant, this boy was identified as a nephew of the defendant, the son of Zeno Thompson. The sheriff testified that Zeno Thompson lived on “West Main, I think”. Whereupon, counsel for the defendant asked “The father of the boy does live here in town”, to which the sheriff replied “Yes, sir”. The foregoing evidence is entirely insufficient to meet the requirements of the law in a criminal case that the venue must be proved as laid in the information; and where there is no evidence of venue in the record a conviction will be reversed. Mullikin v. State, 13 Okla. Cr. 261, 163 P. 1113. To the same effect see O’Neal v. State, 17 Okla. Cr. 386, 188 P. 1092. It has been held that the proper practice for the state to prove venue is by direct and positive evidence, yet the essential test is whether or not venue has in some way been proven, and that venue may be established by circumstantial evidence. Fannin v. State, 65 Okla. Cr. 444, 88 P. 2d 671; McColloch v. State, 45 Okla. Cr. 442, 283 P. 1026. The foregoing evidence as to venue in the case at bar does not meet the requirements of the law as to either direct or circumstantial proof of venue. The court will take judicial notice of the boundaries of the state and the counties of the state and also the geographical locations of the cities and towns within the state. Fannin v. State, supra; Dodson v. State, 30 Okla. Cr. 135, 235 P. 268, 269; Goben v. State, 20 Okla. Cr. 220, 201 P. 812. But the courts will not take judicial notice of streets and buildings where there is no evidence to show in what town or city the same are located. The record in this ease- is entirely silent as to where the offense occurred, whether it occurred in Choctaw county, the city of Hugo, in the State of Oklahoma, or some place else. Under these conditions the proof does not support the venue as alleged in the information, and venue of the offense must be proved as charged. O’Neal v. State, supra. Therefore, for failure to prove venue, an essential element of the charge laid in the information, this case is accordingly reversed.

JONES, P. J., concurs.