text:
    Ex parte KERMIT SNOW.
    No. A-10854.
    July 30, 1947.
    (183 P. 2d 588.)

      Hubert Hargrave, of Wewoka, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for respondent.
   BRETT, J.

He specifically alleges that the cause thereof is a judgment, sentence and commitment issued by Honorable John L. Norman, who was then district judge of Okfuskee county, Okemah, Okla., on the 26th day of August 1932. He contends said judgment, sentence, and commitment are null and void, for the reason that the court lost jurisdiction to pronounce judgment and impose sentence and order him committed to the penitentiary because of the denial of the petitioner’s constitutional rights.

The foregoing contention is based upon the following allegations, to wit: That at the time of his arrest he was a minor of the age of 19 years, an ignorant farm boy with only a third grade education, barely able to read and write, never having been any distance from home, and wholly without experience in court. He further alleges that within an hour after said criminal charge was lodged against him, on August 22, 1932, he was taken before the justice of the peace, without being permitted to talk to an attorney; that he did not know he was waiving a right to counsel, and was not represented by an attorney at said preliminary examination.

That he was thereupon placed in jail where he continued in confinement until August 26th when he was brought before the district court, Judge John L. Norman presiding, and informed that he was charged by information with robbery with firearms; that the court advised him he was entitled to counsel but did not advise him that counsel would be furnished without cost to him. Moreover, he complains that he was not advised of his right to trial by jury, and that the jury had the right to fix the penalty in the event of a finding of guilt. Finally, he says, by reason of the foregoing allegations, the court lost jurisdiction to pronounce judgment and sentence against him.

In support of the petition he attaches thereto a copy of the original complaint, filed in the justice of the peace court which shows the defendants waived their right to a preliminary examination. Moreover, he attaches a copy of the information filed in the district court, and a copy of Avhat he designates the minutes of the court but which in fact are not the court minutes, but a copy of the appearance docket in said case. Also attached to the petition is a transcript of evidence taken before Honorable W. A. Lackey, judge of the district court of Pittsburg county, Okla., to whom said petition was first presented, and after hearing thereon, denied. In this record, the defendant testified in such manner as to support the allegations of his petition. In addition thereto, he gave testimony to the effect that the assistant county attorney, Mr. C. C. Counts, advised him it would be easier for him if he would plead guilty, and allegedly stating that he had five other charges against him if he took his case to court. (This is specifically denied by Mr. C. 0. Counts in his affidavit, reference to which will be hereinafter made.) He admitted that the court may have told him he was entitled to an attorney and that they read off something to him; that he did not know he had a right to have his sentence delayed for two days. He said that someone was making a record of what was said and done. He further testified that thereafter he was sentenced by the court to 25 years in the penitentiary. On cross-examination, he admitted that Governor Marland granted him a parole on March 28, 1938. He admitted that while he was out on parole he was sentenced to six years in the penitentiary from Seminole county for another offense. The fact is, he was convicted of manslaughter for the death of a five-year old girl whom he ran down while driving an automobile in an intoxicated condition. He admitted that the state now has a hold-over placed against him which he must satisfy when the sentence he is now serving for 25 years is completed.

The petitioner’s mother, Mrs. Minnie Snow, testified that she and her husband went to see their son on Wednesday and the county authorities would not let them see him because it was not “visiting day” and she returned home. She said she tried to get him a lawyer on Thursday and when she came back later, her boy was gone. She further testified she did not think his father got to see him. (These statements are controverted in the affidavit of Mr. C. C. Counts, reference to which will be hereinafter made.)

To the petition, a rule to show cause was issued. To the rule to show cause the state filed its response, alleging that the petitioner was held under a valid judgment and sentence for the crime of robbery with firearms for which he was sentenced to 25 years, and further alleging that the court had jurisdiction to enter said judgment and sentence against the petitioner and that the judgment and sentence was unsatisfied. Moreover, alleging that the petition did not state facts sufficient to warrant the granting of the writ. In support thereof, the state submits the affidavit of John L. Norman, trial judge, the pertinent portions of which, given under oath, are as follows, to wit:

“That he was from 1905 until 1935 a resident of Ok-fuskee County, State of Oklahoma; that he is now and has been since January, 1935, a practicing attorney and residing at Okmulgee, Oklahoma; that he was from 1921 to 1935 continuously one of the District Judges of the 22nd. Judicial District of Oklahoma, composed of Creek, Okmulgee and Okfuskee Counties; that he personally remembers the fact that one Kermit Snow plead guilty before him as such District Judge in the District Court of Okfuskee County, Oklahoma, at Okemah, to the crime of robbery with fire arms and that on such plea affiant sentenced him to a term in the state penitentiary; affiant does not personally remember the date of such plea and sentence but is informed that it was on the 26th. day of August, 1932; that after such a lapse of time affiant does not remember the details surrounding said plea of guilty and sentence, but he does distinctly know that it was affiant’s invariable practice while serving in such capacity as District Judge upon' the appearance of any defendant for arraignment upon any criminal charge before him to inquire of the defendant before arraignment if he had any counsel (unless counsel appeared with him) and if he said he did not, that affiant then advised him before formal arraignment that he was entitled to the benefit of counsel before arraignment and plea and inquired if he desired the aid of counsel and if so and he was unable to employ counsel the court would appoint counsel for him; and if the defendant expressed a desire to plead guilty to the charge he was always informed by affiant of all his constitutional rights and that affiant never in any case accepted a plea of guilty from any defendant without first advising him fully as to his right to counsel, if he had none, and all of his constitutional rights; and never in any case did affiant accept a plea of guilty from a defendant on any criminal charge where the defendant was not represented by counsel until after he had fully informed the defendant of his right to counsel before arraignment and plea and the defendant had then informed him that he did not desire counsel and desired to plead guilty.”

The state, likewise, submitted the affidavit of Honorable C. C. Counts, assistant county attorney of Okfuskee county, Okla., the pertinent part of which reads as follows, to wit:

“Affiant remembers talking to the defendant Snow in the jail but denies Snow’s testimony to the effect that af-fiant told him he would file four or five more charges against him if he did not plead guilty or made any promises or threats against him.
“Snow and Martin were taken before Justice of the Peace O. P. Nash and waived preliminary hearing. They were not represented by counsel.
“On August 26, 1932, Snow and Martin were arraigned before John L. Norman, District Judge. Affiant was present representing the State. Neither of the defendants had an attorney. Affiant got the impression from talking to them and their folks that they were too poor to employ lawyers and were guilty and might as well plead guilty and throw themselves on the mercy of the court and get the business over with.”

The statements contained in the foregoing affidavit of Honorable John L. Norman are substantiated by a certified copy of the court’s minutes in case No. 1248, styled, State of Oklahoma v. Hermit Snow and George Morgan, as the same appeared in the Okfuskee county district court as of August 25, 1932, and reads as follows, to wit:

“District Court having been opened in due form this, the 25th day of August, 1932, Judge John L. Norman, Presiding, the following among other proceedings were had and entered, to wit:
“No. 1248
“State of Oklahoma
vs.
“Hermit Snow and George Morgan
“Robbery with Firearms
“Case called for arraignment. State present by County Attorney. Defendants each present in person, but without counsel, and each defendant informed by the court of their right to counsel before arraignment, whereupon defendant Snow informs the court that he is negotiating for counsel, but could not be ready for arraignment today; and defendant Morgan informs the court that he does not desire counsel, but desires to wait until August 26, 1932 for arraignment and plea; whereupon the court passed arraignment of both defendants till August 26, 1932 at 10 O’Clock A. M., and remanded defendants to the custody of the Sheriff.”

We note here that the defendant not only knew of his right to counsel but advised the court that his mother was negotiating for counsel. His mother’s testimony here-inbefore referred to leads us to believe that she had talked to her son about a lawyer. Further, the minutes of the court as of August 26, 1932, reads as follows, to wit:

“District Court having been opened in due form this the 26th day of August, 1932, Judge John L. Norman, Presiding, the following among other proceedings were had and entered, to wit:
“No. 1248
“State of Oklahoma
vs.
“Kermit Snow and George Morgan.
“Robbery with Fire Arms
“Case called for arraignment. State present by County Attorney. Defendants each present in person, but each without counsel. The Court again' informs defendants of their right to counsel and each of the defendants inform the court that they do not desire counsel. Defendant Kermit Snow arraigned and disclosed his true name to be Kermit Snow. Information read to defendant Snow in open court by the County Attorney at the Court’s direction ; whereupon the Court asks defendant if he is ready to plead at this time or desired time to plead, whereupon defendant informed the court that he waived time to plead and was ready to plead at this time and now enters his plea of guilty to the charge laid against him in the Information herein, to-wit: Robbery with Fire Arms; whereupon the Court asks defendant if he was ready for Judgment and Sentence at this time or if he desired time therefor; whereupon defendant stated that he waived time for Judgment and Sentence and asked that same be pronounced at this time. Defendant George Morgan is arraigned and discloses his true name to be George Morgan. Information is read to defendant George Morgan in open court by the County Attorney at the Court’s direction; whereupon the court asks defendant if he is ready to plead at this time or desired time to plead, whereupon defendant informed the court that he waived time to plead and was ready to plead at this time and now enters his plea of guilty to the charge laid against him in the Information herein, to-wit: Robbery with Fire Arms; whereupon the Court asked defendant if he was ready for Judgment and Sentence at this time or if he desired time therefor; Whereupon defendant stated that he waived time for Judgment and Sentence and asked that same be pronounced at this time. It is the Judgment and Sentence of the Court that defendant Kermit Snow be imprisoned in the State Reformatory at Granite, Oklahoma, for a ierm of twenty-five (25) years from the date of his reception at said in.stitution and pay one half of the costs of this prosecution. Defendant remanded to the custody of the Sheriff to be forthwith transported to said institution and delivered to the warden thereof to serve said Judgment and Sentence. Defendant advised of his right of appeal, and appeal bond fixed in the sum of $25,000.00. It is the Judgment and Sentence of the Court that defendant George Morgan be imprisoned in the State penitentiary at McAlester, Oklahoma, for a term of twenty-five years from the date of his reception at said institution and pay one half of the costs of this prosecution. Defendant remanded to the custody of the Sheriff to be forthwith transported to said institution and delivered to the warden thereof to serve said Judgment and Sentence. Defendant advised of Ms right of appeal, and appeal bond fixed in the sum of $25,000.00.”

The petitioner testified in the hearing upon his petition in the district court that someone was making a record of what the judge was reading to him and what took place in the courtroom. These minutes support the petitioner’s testimony in this regard.

The minutes, the affidavit of Judge Norman, the applicable portion of the affidavit of Mr. C. C. Counts refute the substantial allegations of the petitioner’s petition and the testimony of himself and his mother that he was denied the right to counsel, time to plead and the time allowed by statute before sentence was pronounced against him, and the implication that he was without the aid or assistance of his parents. The minutes are much more complete than the ordinary court minutes. We are inclined to take judicial notice that even though the minutes in the case at bar are full and complete, they only substantially reflect what actually took place in the courtroom.

Under the holdings of this court, special weight should be given to the minutes. The recorded record is not nearly so unreliable as faulty memory, even though memory may be buttressed about by the best of intentions. Suffice it to say, that is one of the principal reasons for having written records, and providing for their preservation. Interested parties, years later, may retire to the written record for a confirmation of what happened at a given time and place. Where the record was properly recorded as in the case at bar, this court will give great weight thereto in the settlement of disputed questions based thereon. In Ex parte Meadows, 70 Okla. Cr. 304, 106 P. 2d 139, 141, this court said:

“Where a disputed question arises as to what occurred upon arraignment of one accused of a crime, this court will give great weight to the recitation in the minutes of the court proceedings as to what occurred.”

In Ex parte Barnett, 67 Okla. Cr. 300, 94 P. 2d 18, and in the Meadows case, supra, certain well-defined principles were set forth governing cases of this character, such as the following:

“ ‘Under Bill of Rights, Sec. 20, Okla. St. Ann. Const.,, an accused has the right to consult with counsel and to be fully advised as to his rights, and as to the consequences of his act before entering his plea to the indictment or information.’
“ ‘A plea of guilty should be entirely voluntary, and should be made by one competent to know the consequences thereof and should not be accepted until after the defendant has been fully advised by the court of his rights and the consequences of his plea.’ * * *
“ ‘A person prosecuted for a crime may waive the rights guaranteed to him by Bill of Rights, relating to trial by jury, right to be heard by counsel, etc.’
“ ‘Courts indulge every reasonable presumption against a waiver of fundamental constitutional rights, and do not presume acquiescence in their loss.’
“ ‘Whether one accused of crime has waived his right to the assistance of counsel for his defense must depend in each case upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ ”

In Johnson v. Zerbst, 304 U. S. 458, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461, 146 A. L. R. 357, the United States Supreme Court said:

“The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts, and circumstances surrounding that case, including the background, experience, and conduct of the accused.”

Viewing this case upon its own merits, certain conclusions appear definite and certain. The minutes disclose the petitioner was advised of his rights. Moreover, we believe the petitioner knew of his right to aid of counsel or his parents would not have considered the matter of obtaining counsel and the petitioner would not have advised the court that they were negotiating for counsel. Moreover, we believe that the petitioner knew of his right to trial by jury or he would not have sought the aid of counsel to try his case before a jury. Moreover, we believe in light of the affidavit of Mr. C. C. Counts that the petitioner, after consulting with his parents relative to the matter of counsel, determined that they did not care to employ counsel. We do not believe he was denied counsel by the court, but was persuaded by his parents against getting counsel. This conclusion is confirmed by the affidavit of Mr. C. C. Counts. At the time he was arraigned in district court we believe that he effectively waived the right to counsel and to a trial by jury, and the other rights which he complains he was denied, in his petition. In Re Stevens, 81 Okla. Cr. 65, 160 P. 2d 415, 418, this court said:

“In Ex parte Meadows, supra, and Ex parte Barnett, 67 Okla. Cr. 300, 94 P. 2d 18, this court followed the opinion of the Supreme Court of the United States in the case of Johnson v. Zerbst, 304 U. S. 458, 56 S. Ct. 1019, 1024, 82 L. Ed. 1461, 146 A. L. R. 357, in which it is stated: When this right (to counsel) is properly waived, the assistance of counsel is no longer a necessary element of the court’s jurisdiction to proceed to conviction and sentence. * *

We are convinced that petitioner was not rushed as appeared to be the case in Ex parte Meadows, supra, upon which he relies.

If the foregoing facts and conclusions were not sufficient grounds upon which to deny a writ of habeas corpus, we do not believe that we would be justified in granting the writ in any event, due to the lapse of 15 years of time. Under such circumstances, we are not unmindful, as Judge Jones so aptly put it in Ex parte Meadows, supra, that, “a great proportion of those incarcerated in the Penitentiary would be willing to swear to almost anything to secure their release.” Timely relief, however, should be given to a right timely asserted but when permitted to become clouded by time, with attendant lapse of memory, dislocation of witnesses, the loss of records and the grim hand of death, justice may require the denial of such rights; because, under such circumstances, the rights sought to be asserted may become mere matters of speculation based upon faulty recollection or figments of imagination, if not outright falsification. For that reason, the doctrine of laches should apply to one who thus delays the assertion of his rights. See, in this connection, 39 C. J. S., Habeas Corpus, § 76, page 620, wherein it is said:

“* * * where as a result of such delay the judge who presided at the trial has no recollection of what occurred with respect to the relators representation by counsel, and witnesses for the prosecution are either dead or not to be found, and there are no notes of the testimony, it has been held that a petitioner will be barred from seeking discharge from imprisonment by habeas corpus on the ground that he was not informed of his right to have counsel and was not so represented.”

In Commonwealth ex rel. Quinn v. Smith, 144 Pa. Super. 160, 19 A. 2d 504, 506, it is said:

“But in any event, we are of the opinion that his delay in making this application until such a great length of time had elapsed that the judge who presided at the trial has no recollection of what occurred there, as respects the relator being represented by counsel, or requesting the appointment of counsel, or refusing or waiving the appointment of counsel for him, and five of the six witnesses for the prosecution at the trial have died or cannot be found, and the sixth has no recollection of the trial of the case, there being no stenographic notes or notes of testimony of the trial, convicts him of such laches as to call for a refusal of the prayer of his petition, and prevents his discharge from confinement.”

To say the least, we are of the opinion that after 15 years’ delay, such a case, to form a basis for relief by habeas corpus must be founded upon proof that is clear and convincing. The evidence in support of the petition, in the case at bar, when considered in light of the minutes and the supporting affidavits, offered by the state, does not present a situation, clear and convincing, such as to entitle the petitioner to relief by habeas corpus.

Moreover, the petitioner now stands committed on the judgment and sentence on the charge and conviction of manslaughter from Seminole county. Under the authority of Ex parte Baldridge, 81 Okla. Cr. 300, 164 P. 2d 253, 254, we would not be justified in granting his release under the circumstances herein involved, as was said in that case:

“Where petitioner stands committed on unsatisfied judgments, other than the one upon which he is seeking his release on habeas corpus, the writ of habeas corpus will be denied.”

Eor the foregoing reasons, the writ is denied.

BAREFOOT, P. J., concurs. JONES, J., disqualified and not participating.


source: Caselaw Access Project

author: BAREFOOT, P. J.

license: Public Domain

text:
    Ex parte JAKE HINLEY.
    No. A-10823.
    July 30, 1947.
    (183 P. 2d 602.)
    George Hill, of McAlester, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   BAREFOOT, P. J.

This is an original proceeding in habeas corpus, instituted by Jake Hinley, to secure his release from confinement in the State Penitentiary.

This same petitioner has heretofore in a similar proceeding sought his release, which petition was denied. Ex parte Jake Hinley, 79 Okla. Cr. 382, 155 P. 2d 265. There-áfter he filed a petition for writ of habeas corpus in the district court of Pittsburg county, which was denied, and now brings this proceeding.

The petition now before the court was prepared by petitioner himself, and without the assistance of counsel. An order to show cause was entered, and the case was set for hearing on March 5, 1947, a regular day for hearing cases on oral argument in this court. Petitioner then employed counsel, who requested time to investigate the case and prepare for oral argument, and the case was stricken from the assignment, and reset for April 23, 1947. At that time counsel for petitioner appeared, and the case was submitted.

It is a rule of this court that where the Criminal Court of Appeals has denied an application for writ of habeas corpus, it will not ordinarily entertain a subsequent application for such writ on the same grounds or facts existing when the first application was made, whether then presented or not. Ex parte Gray, 74 Okla. Cr. 200, 124 P. 2d 430; Ex parte Davis, 74 Okla. Cr. 75, 123 P. 2d 300; Ex parte Edwards, 79 Okla. Cr. 259, 154 P. 2d 105.

This petitioner was sentenced in Jefferson county on November 27, 1938, to a term of life imprisonment for the crime of rape. A complete copy of the evidence introduced at the trial of defendant was attached to the former petition filed in this court.

There was no attack on the jurisdiction of the court in the former petition, or in the present one. The petitioner contends that he was not given a fair and impartial trial; that the verdict was rendered without competent evidence; that the evidence presented at the trial was not true, and that he did not have an opportunity to secure witnesses to testify in his behalf. No appeal was taken from the judgment and sentence. There is not a copy of the judgment and sentence in the record, and nothing to show that the judgment rendered was void. There is a conflict in'the testimony of the petitioner and the prosecuting witness, who was his daughter.

It has often been held by this court that the writ of habeas corpus cannot be substituted for an appeal. Ex parte Wright, 78 Okla. Cr. 157, 145 P. 2d 772; Ex parte Cannes, 77 Okla. Cr. 71, 138 P. 2d 561; Ex parte Sullivan, 82 Okla. Cr. 364, 170 P. 2d 260; Ex parte Hinley, 79 Okla. Cr. 382, 155 P. 2d 265, and numerous other cases.

The only relief for this petitioner would be through an application for pardon or parole, before the State Pardon and Parole Board.

For the reasons stated, the petition for writ of ha-beas corpus is denied.

JONES and BRETT, JJ., concur.


author: JONES, J.

text:
    Ex parte BEN B. GEE.
    No. A-10851.
    July 30, 1947.
    (183 P. 2d 603.)

      Ben B. Gee, pro se.
    Mac Q. Williamson, Atty. Gen., for respondent.
   JONES, J.

This is an original action in habeas corpus instituted by the petitioner, Ben B. Gee, for the purpose of securing his release from confinement in the State Penitentiary. The cause was submitted upon the demurrer to the petition filed by the Attorney General on behalf of the warden of the State Penitentiary.

The verified petition alleges that the petitioner was sentenced to serve three years in the State Penitentiary by the district court of McIntosh county on January 25, 1947, upon a plea of guilty to the crime of obtaining money under false pretense.

The petition contains a lengthy narrative detailing the age, size of family of petitioner, his former good reputation, and that he had borrowed the money involved in the alleged crime from the bank in good faith. The allegations of the petition are such that, if true, would justify the Governor in issuing executive clemency, but they are not sufficient to authorize this court to interfere by habeas corpus.

It is well settled that the Criminal Court of Appeals will not pass upon the question of the sufficiency of the evidence in a habeas corpus proceeding, but will limit their inquiry to the question as to whether the court which rendered the judgment was without jurisdiction. Ex parte Cameron, 78 Okla. Cr. 42, 143 P. 2d 164.

In Ex parte Wheeler et al., 65 Okla. Cr. 290, 85 P. 2d 434, it is stated: “The office of the writ of habeas corpus is not to determine the guilt or innocence of the prisoner, and the only issue which it presents is whether or not the prisoner is restrained of his liberty by due process of law.”

There being no allegations set forth in the petition from which this court could determine the judgment pronounced against the petitioner is void, or that petitioner is restrained of his liberty without due process of law, it follows that the demurrer of the respondent should be sustained, and that the petition for habeas corpus should be denied.

It is so ordered.

BAREFOOT, P. J., and BRETT, J., concur.


author: BRETT, J.

text:
    JOHN BROWN v. STATE.
    No. A-10710.
    Aug. 20, 1947.
    (184 P. 2d 120.)

      O. A. Brewer, of Hugo, for plaintiff in error.
    Mac Q. Williamson, 4-tty- Gen., for the State.
   BRETT, J.

This is an appeal from the county court of Choctaw county, Okla., wherein John Brown was charged, by information, on November 19, 1943, with the offense of unlawful possession of 47 half-pints tax-paid whisky, convicted, on a plea of guilty on February 29, 1944, and sentenced on September 15, 1945, to 30 days in jail and to pay a fine of $100.

No brief has been filed in this case and no appearance on behalf of the defendant made at the time said cause was set for hearing, November 13, 1946, or at any time subsequent thereto. Where the defendant appeals from a judgment of conviction, and neither any brief is filed nor appearance for oral argument made, we do not consider it the duty of this court to go into a careful examination of the evidence to determine whether or not the trial court erred in the admission or rejection of testimony. This court will examine the record for jurisdictional errors. If no fundamental error appears, the judgment will be affirmed. We have examined the record and find that the information is sufficient to charge the offense of unlawful possession of intoxicating liquor.

The defendant’s sole complaint is based on the contention that the court lost jurisdiction to pronounce judgment and sentence. This contention might have some merit in it if the delay had been for a long and unreasonable length of time; so long in fact as to prejudice the rights of the defendant. Whatever delay occurred in this case was due to the illness of Judge T. W. Hunter, who died on June 10, 1944, and due to the lack of familiarity of his successor, Honorable Eugene H. Ellis, with the trial docket. It is apparent that whatever delay occurred in pronouncing judgment and sentence was the result of an unavoidable casualty, not intentionally incurred, and was not for such unreasonable length of time as would tend to prejudice the defendant in his rights. Judge Ellis acted with dispatch in setting the matter for pronouncement of judgment and sentence. He did not delay an unreasonable length of time such as would tend to prejudice the defendant in his rights. On the record before us we have discovered no error which would warrant a reversal of the judgment of conviction and it appears that defendant was accorded a fair and impartial trial.

The judgment of the county court of Choctaw county is accordingly affirmed:

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


text:
    ALMA VIOLA SKAGGS v. STATE.
    No. A-10730.
    Aug. 20, 1947.
    (184 P. 2d 121.)

      Wimbish & Wimbish, of Ada, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Alma Viola Skaggs, was charged in the county court of Pontotoc county, with the offense of driving an automobile on a public highway while under the influence of intoxicating liquor. A jury was waived, the defendant was tried, convicted and sentenced to pay a fine of $50 and costs and has appealed.

There have been no briefs filed on the behalf of defendant and no appearance was made on behalf of the defendant at the time the case was set for oral argument.

In Johnson v. State, 70 Okla. Cr. 430, 107 P. 2d 365, it is stated:

“Where no briefs are filed and no appearance for oral argument made, this court will examine the record and the evidence, and if it is sufficient to sustain the verdict, and no fundamental error appears, the judgment will be affirmed.”

See, also, Ferguson v. State, 71 Okla. Cr. 50, 107 P. 2d 808; Bruner v. State, 69 Okla. Cr. 317, 102 P. 2d 945; Thompson v. State, 73 Okla. Cr. 243, 119 P. 2d 873.

We have carefully examined the record. Two highway patrolmen testified for the state that they saw the defendant driving an automoile just outside the city limits of Ada while she was drunk. No evidence was offered on behalf of defendant. There is no error in the record and it is apparent that the appeal is wholly without merit. The judgment and sentence of the county court of Pontotoc county is affirmed.

BAREFOOT, P. J., and BRETT, J., concur.


text:
    CECIL ALTON LONG v. STATE.
    No. A-10743.
    Aug. 20, 1947.
    (184 P. 2d 119.)
    Hughes & Hughes, of Hobart, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Cecil Alton Long, was charged by information filed in the county court of Kiowa county with the unlawful possession of intoxicating liquor, was tried, convicted, sentenced to serve 30 days in the county jail, pay a fine of $50 and costs, and has appealed.

The appeal has been pending in this court more than six months and no brief has been filed on behalf of defendant and no extension of time was given counsel for defendant in which to file a brief in his behalf.

At the time the case was assigned for oral argument, there was no appearance for the defendant.

In Ferguson v. State, 71 Okla. Cr. 50, 107 P. 2d 808, it is stated:

“Where no briefs are filed nor argument presented, this court will examine the evidence to ascertain if it sustains the judgment, and if the evidence is sufficient, and in the absence of apparent material error, will affirm the judgment.”

See, also, Johnson v. State, 70 Okla. Cr. 430, 107 P. 2d 365; Bruner v. State, 69 Okla. Cr. 317, 102 P. 2d 945; Thompson v. State, 73 Okla. Cr. 243, 119 P. 2d 873.

We have examined the record and the evidence is sufficient to sustain the conviction. No fundamental error is found. The judgment and sentence of the county court of Kiowa county is accordingly affirmed.

BAREFOOT, P. J., and BRETT, J., concur.


author: BABEFOOT, P. J.

text:
    Ex parte GEORGE BULLIE SMITH.
    No. A-10875.
    Aug. 20, 1947.
    (184 P. 2d 118.)

      George Bullie Smith, pro se.
    Mac Q. Williamson, Atty. Gen., for respondent.
   BABEFOOT, P. J.

Petitioner, George Bullie Smith, has filed petition for habeas corpus, seeking his release from the State Penitentiary at McAlester, where he is confined by reason of a judgment and sentence entered in the district court of Kay county, Okla., on April 2,1946, where he was convicted of the crime of attempt to murder, and sentenced to serve a term of 50 years in the State Penitentiary. Copies of the information, warrant and judgment and sentence are attached to his petition.

A rule to show cause was issued, and the hearing on the petition was set for June 11, 1947. No attorney appeared at such hearing, and no evidence was offered to sustain the petition filed in this case.

In the petition it is alleged that the petitioner was wrongfully convicted, and that he was forced to enter a plea of guilty.

We have carefully examined the petition and exhibits, and find nothing to show that the judgment and sentence entered was void, or that the court did not have full and .complete jurisdiction.

It has been held by this court that a writ of habeas corpus cannot be substituted for an appeal. Ex parte Mayfield, 84 Okla. Cr. 158, 179 P. 2d 934; Ex parte Walker, 84 Okla. Cr. 190, 180 P. 2d 670; Ex parte Mills, 81 Okla. Cr. 200, 162 P. 2d 334.

No attempt was made to appeal to this court from the judgment and sentence rendered in the district court of Kay county. No review of the evidence and the trial may be had in the habeas corpus hearing.

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

JONES and BRETT, JJ., concur.


text:
    Ex parte BASIL (BOY) HILL.
    No. A-10906.
    Aug. 27, 1947.
    (184 P. 2d 251.)

      Thad L. KTutts, David Tant, and George Miskovsky, all of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Warren H. Edwards, Co. Atty., and George Lipe, Asst. Co. Atty., both of Oklahoma City, for defendants in error.
   JONES, J.

This is an original action in habeas corpus instituted by the petitioner, Basil (Boy) Hill, for the purpose of being admitted to bail upon a charge of murder which Avas then pending against him on a complaint filed before a justice of peace of Oklahoma county.

The verified petition alleges, in substance, that the petitioner Avas charged by complaint filed in the justice of peace court of Evert Crismore on July 2, 1947, Avith the crime of murder in connection with the death of one William Turman, which allegedly occurred on June 30, 1947. That your petitioner was duly arraigned in said court before said justice of peace and entered his plea of not guilty to said charge and was remanded to the common jail of Oklahoma county without bail. That no preliminary examination has been had and no date yet been set for the holding of' a preliminary hearing for said petitioner on said charge.

That your petitioner filed his petition for Avrit of ha-beas corpus asking that he be granted bail before the Honorable Lewis R. Morris, district judge of Oklahoma county, but bail in said cause was denied.

The verified petition further alleges that the petitioner has been a resident of Oklahoma county for a long-period of time. That he is engaged in the grocery business and has a large amount of property in said county; that your petitioner is not guilty of the crime of murder or any other offense, and that the proof of your petitioner’s guilt is not evident nor the presumption thereof great. Attached to the petition and made a part thereof was a certified copy of the transcript of the proceedings had in the district court of Oklahoma county, upon the application for bail.

A response was filed on the behalf of the sheriff in which he stated that he was holding the petitioner pursuant to the commitment by the justice of peace pending a hearing before said justice of peace on a charge of murder pending in the justice of peace court against the petitioner.

At the hearing before this court, the petitioner testified at length concerning the alleged crime. In addition, he produced other witnesses to support his testimony. Counsel for petitioner also recalled for examination one of the witnesses used by the state who testified that prior to the fatal altercation, he had heard the deceased state that he was going to kill the defendant, Hill.

We do not deem it necessary to comment upon the weight of the evidence. It is our opinion, after a full consideration of all the evidence presented, both by the state and petitioner, that the petitioner has made a sufficient showing to be entitled to bail. Ex parte Centell, 88 Okla. Cr. 127, 259 P. 276; Ex parte Potter, 84 Okla. Cr. 345, 182 P. 2d 527.

At the time of said hearing an order was made admitting the petitioner to bail pending his preliminary examination in the reasonable snm of $20,000.

In conformity to said order, it is the judgment of this court that the petitioner be admitted to bail in the reasonable sum of $20,000, said bond to be conditioned as provided by law for his appearance at the preliminary examination, said bond to be approved by the justice of peace, Evert Crismore, of Oklahoma county, and that when said bond is given and approved that the petitioner be discharged from custody.

BAREFOOT, P. J., and BRETT, J., concur.


text:
    Ex parte PATRICK J. KELLY et al.
    No. A-10861.
    Aug. 27, 1947.
    (184 P. 2d 253.)
    Herbert K. Hyde and David Tant, both of Oklahoma City, for petitioner.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty, Gen., and Warren H. Edwards, County Atty., of Oklahoma City, for respondent.
   BAREFOOT, P. J.

Petitioner, Patrick J. Kelly and Charles Clifford Stanton, filed their petition for habeas corpus in this court in which they alleged that they were confined in the county jail of Oklahoma county, and had been tried in the district court of Oklahoma county, and convicted of the crime of kidnapping for the purpose of extortion in case No. 18087, Oklahoma county, and that their appeal bonds had been set at $2,500 each.

That they had also been charged with the same offense in another case in Oklahoma county, No. 18088, and that their bonds in that case had been set in the sum of $10,000 each.

Petitioners contended that the bonds set were excessive, and should be reduced.

Since the petition herein was filed in this court, the court has been informed that each of said petitioners has executed bonds, and been released from custody, and is not now being held in the county jail of Oklahoma county.

It is, therefore, ordered that the petition for writ of habeas corpus be and the same is hereby dismissed, for the reason that petitioners are not now confined in the county jail of Oklahoma county.


text:
    LEO WHITLOW v. STATE.
    No. A-10709.
    Aug. 27, 1947.
    (184 P. 2d 253.)

      Rhys Evans and Wilson Wallace, both of Ardmore, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   BRETT, J.

This is an appeal from the district court of Carter county, Okla., wherein Leo Whitlow was charged, by information, with the crime of murder on August 2, 1944, of one Titus Ross in Ardmore, Carter county, Okla. He was tried, by a jury, convicted of manslaughter in the first degree, and sentenced to four years in the penitentiary. A new trial having been denied, he appealed from the judgment by filing in this court, on January 9, 1946, a petition in error with case-made attached.

No brief has been filed in this case and no appearance on behalf of the defendant was made at the time said cause was set for hearing on the 13th day of November, 1948, or at any time subsequent thereto. Where the defendant appeals from a judgment of conviction and neither any brief is filed nor appearance for oral argument made, this court will examine the record and the evidence, and if no error prejudicial to the substantial rights of the defendant is apparent, will affirm the judgment; Smith v. State, 70 Okla. Cr. 81, 104 P. 2d 1009; Walker v. State, 60 Okla. Cr. 302, 64 P. 2d 935; Owens v. State, 60 Okla. Cr. 324, 64 P. 2d 1234. This court will examine the record for jurisdictional errors. If no fundamental error appears, the judgment will be affirmed.

We have carefully examined the record and find that the information is sufficient to support the conviction of first degree manslaughter.

On the record before us, we have discovered no error which would warrant a reversal of the judgment of convietion and it appears that the defendant was accorded a fair and impartial trial.

The judgment of the district court of Carter county is accordingly affirmed.

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


author: BEETT; J.

text:
    Ex parte JOHN R. CASSEL.
    No. A-10907.
    Sept. 3, 1947.
    (184 P. 2d 467.)

      Clay M. Eoper, of Oklahoma City, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for respondent.
   BEETT; J.

This is an original action instituted by John E. Cassel to secure a writ of habeas corpus, directed to L. J. Hilbert, Chief of Police of Oklahoma City, the petitioner alleging that he is being unlawfully restrained of his liberty in the city jail of Oklahoma City, Okla.

In his verified petition the petitioner alleges, in substance, that he is being unlawfully restrained of his liberty in the city jail of Oklahoma City under and by virtue of a warrant for his arrest and extradition issued by the Governor of the State of Oklahoma on July 9,1947, for his extradition to the State of California to answer a charge of first degree rape, pending against him in Los Angeles county, California.

Petitioner contends, in substance, that the complaint upon which he is being held is not verified as provided by law, in that evidence at the hearing disclosed it was sworn to on information and belief; that he has not committed any offense in the State of California and is therefore not a fugitive from justice; and that said prosecution is not in good faith and was instituted against him because of hatred and spite.

To the allegations of this petition, the Attorney General of the State of Oklahoma made a return to the rule to show cause in which he alleged, in substance, that the detention and imprisonment of John R. Cassel, by L. J. Hilbert, Chief of Police of Oklahoma City, is on account of a warrant of foreign requisition, signed by Roy J. Turner, Governor of the State of Oklahoma, on July 9, 1947. Further, the Attorney General alleged that the petition does not state facts sufficient to warrant the release and discharge of the petitioner, and, further, denied each and every material allegation made and contained in said petition, except those expressly admitted to be true.

We have carefully examined the proceeding upon which the Governor of the State of Oklahoma based his warrant for extradition. We find that it is predicated upon an affidavit of complaint, filed in the police court of the city of Englewood, county of Los Angeles, State of California, duly and properly sworn to by Richard A. Shoemaker before Lester O. Luce, judge of the police court of the city of Englewood, county of Los Angeles, State of California, which last said officer, under the statutes of the State of California, is defined as a magistrate. Code of Civil Procedure, § 2093. Further examination of said complaint discloses that it is positive and direct and does not appear to be based upon information and belief. The complaint charges statutory rape in four counts committed by John R. Cassel upon the person of one Norma Jo Perkins, she being a female person of the age of 14 years and not then and there the wife of said John R. Cassel. Upon said complaint it appears that a warrant for the arrest of John R. Cassel was issued out of police court by said judge, Lester O. Luce; said warrant was not served. Said proceedings in said court are duly certified and properly authenticated. Attached thereto is the affidavit of Norma Jo Perkins, the prosecuting witness, substantially detailing the dates and the acts complained of constituting the crimes alleged in said complaint. Also attached to said .proceedings is the affidavit of Annabelle Perkins, mother of Norma Jo Perkins, setting forth that at the time of the alleged offenses, Norma Jo Perkins was of the age of 14 years, and further alleging that Norma Jo Perkins had been examined by the juvenile bureau physicians, and from said examination it was revealed that she had apparently been raped. Also attached to said proceedings in the police court is the affidavit of Richard A. Shoemaker, in which he details the results of his investigation in said matter and sets forth what steps had been taken to ascertain the whereabouts of said John R. Cassel, and advice from the police department of Oklahoma City to the effect that John R. Cassel had been arrested and was held in custody in Oklahoma City under and by virtue of the authority of the proceedings, warrant, and communications had with the authorities in California. The foregoing instruments constitute the basis for the application to the Governor of the State of California as a predicate for a requisition to the Governor of the State of Oklahoma for an order of extradition. Based upon said proceedings, the Governor of California issued a requisition to the Governor of the State of Oklahoma for an order of extradition. From the record before us, it appears that the requisition issued by the Governor of the demanding state and the documents thereunto attached and certified by him were properly executed and authenticated, as was also the extradition warrant issued by the Governor of this, the surrendering state.

Under these conditions and contentions, what is the extent of our review of the action of the executive? First, this court has held that it may look into the papers before the Governor and determine whether upon their face a crime is charged and if they are found to be regular on their face and positive in their allegations, the court will not permit inquiry to go behind them to show that they are not what they appear to be; or, that the indictment or affidavit does not charge a criminal offense. These are questions of law. Second, this court has held it will permit the petitioner to show that he is not a fugitive from justice in that he was not in the demanding state at the time the crime was alleged to have been committed. This presents a question of fact. Third, this court has held that the petitioner will be permitted to show that the prosecution was not brought in good faith. This, also, is a question of fact. These conclusions are well grounded, since the statute covering extradition confers no authority upon the courts, and the authority which the court exercises is its general power to protect the individual. In re Gundy, 30 Okla. Cr. 390, 236 P. 440, 441. An examination of the Constitution and the statute and the cases construing the same supports these conclusions. The United States Constitution, Art. 4, § 1, provides:

“Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State. And the Congress may by general laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

Article 4, § 2, Cl. 2, provides:

“A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up to be removed to the State having Jurisdiction of the Crime.”

Section 5278, U. S., Rev. St., 18 U. S. C A. § 662, prescribes the procedure necessary to put into effect the poAver conferred by the Constitution, relating to extradition proceedings. It reads:

“Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded Avith having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from Avhence the person so charged has fled, it shall be. the duty of the executive authority of the State or Territory to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within six months from the time of the arrest, the prisoner may be discharged. All costs or, expenses incurred in the apprehending, securing, and transmitting such fugitive to the State or Territory making such demand, shall be paid by such State or Territory.”

In Re Gundy, supra, this court said:

“The rule appears to be that the courts may look into the papers before the Governor and determine whether upon their face a crime is charged; but beyond this the court cannot go in determining the fact of the petitioner’s guilt or innocence. Hurd, Habeas Corpus, § 621, Moore, Extradition, § 632.
“In Ex parte Offutt, 29 Okla. Cr. 401, 234 P. 222, it was held :
“ ‘The question as to whether the person demanded and detained on an extradition warrant is substantially charged with a crime is a question of law, which on the face of the papers is open to inquiry on writ of habeas corpus.’
“And further that—
“ ‘Unless the affidavit, complaint, or information charges the person sought with the commission of a crime, it is fatally defective, and a warrant for his extradition is unauthorized.’ Ex parte Wildman, 14 Okla. Cr. 150, 168 P. 246.”

We find the papers herein involved to be proper on their face. The affidavit of complaint sworn to by Richard A. Shoemaker does not appear to be based upon information and belief. Under these conditions, the papers are not open to inquiry and the petitioner will not be permitted to go behind the affidavit, regular on its face, and show that it was made on information and belief. Unless the affidavit is clearly void, its validity will be left by this court to the courts of the demanding state. Downey v. Hale, 1 Cir., 67 F. 2d 308, certiorari denied 291 U. S. 662, 54 S. Ct. 438, 78 L. Ed. 1053. In this connection, this court has held that a proceeding in habeas corpus to secure release from a warrant issued by the Governor is a summary one which must be kept within narrow bounds, both as a protection to the citizen and in the public interest; that when extradition papers required by the statute are in proper form, the only evidence sanctioned by this court is such as may tend to prove that the accused was not in the demanding state at the time the crime was alleged to have been committed (Ex parte Rabinwitz, 61 Okla. Cr. 83, 65 P. 2d 1236) ; and that the prosecution was not brought in good faith. Ex parte Welborn, 69 Okla. Cr. 282, 102 P. 2d 624; Ex parte Owens, 34 Okla. Cr. 128, 245 P. 68; Ex parte Offutt, supra. A more recent case is that of Ex parte Chase, 84 Okla. Cr. 159, 180 P. 2d 199, in which this court said:

“In extradition proceeding, warrant of Governor of surrendering state is sufficient prima facie to justify arrest of alleged fugitive and delivery to agent of demanding state.
“In extradition proceeding, decision of Governor of surrendering state on jurisdictional facts is presumptively correct.”

The contentions of the petitioner, relative to the sufficiency of the sworn affidavit of complaint for requisition, and the form of the application therefor, are therefore without merit.

The petitioner next contends that he committed no offense in the State of California and is therefore not a fugitive from justice. His own testimony, given at the hearing on the petition, refutes this contention. It therein appears that he admitted that he was within the State of California at the times alleged in three (3) of the said four (4) counts. His testimony is especially corroborative of the allegations contained in count two, alleging that on April 4,1947, he was within the county of Los Angeles, State of California, said corroboration being in the form of an admission that he registered in a certain hotel in said county and state on said date. Petitioner admitted that the registration was in his handwriting and that it appeared that he had registered with his wife and that two persons occupied the quarters designated on said registration record. Strengthening his admission in this regard is the affidavit of Norma Jo Perkins, made a part of the extradition papers, alleging that she was raped, by the petitioner, in a certain hotel in or near the city of Englewood, county of Los Angeles, State of California, on April 4, 1947. His admission that he was within the State of California on this and two other dates alleged in the complaint is the only evidence pertinent to a determination of this contention of the petitioner. In Ex parte George, 63 Okla. Cr. 115, 73 P. 2d 471, 474, it was said:

“To be a ‘fugitive from justice’ within the meaning of the federal law it is sufficient that person legally charged in the demanding state with the commission of a crime within said state, when sought to be subjected to its criminal process for said offense, has left its jurisdiction and is found within the jurisdiction of another state upon whose executive requisition is made. When it is shown that a person is in due and legal form charged with a crime in one state, and that he was corporeally present in that state at the time of the commission of the crime charged, it is then conclusively established that such person is a fugitive from justice within the meaning of the Constitution. In re Gundy [supra]; Ex parte Baker, 33 Okla Cr. 413, 244 P. 459; Ex parte Rabinwitz, 61 Okla. Cr. 83, 65 P. 2d 1236.”

Moreover, in said case it is further said:

“It is upon the petitioner under such circumstances to prove that he is not in fact a fugitive from justice, and the burden requires evidence which is practically conclusive. Ex parte Montgomery, D. C., 244 F. 967; Roberts v. Reilly, 116 U. S. 80, 6 S. Ct. 291, 29 L. Ed. 544.”

The complaint being sufficient to charge the crime of rape in the first degree and it appearing that the petitioner was within the State of California, at the time or times alleged, his second contention that he is not a fugitive from justice is wholly without merit. Ex parte Ryan, 75 Okla. Cr. 144, 129 P. 2d 204.

In relation to the petitioner’s third contention that the prosecution, in California, was not brought in good faith, it has been held by this court in Ex parte Welborn, 69 Okla. Cr. 282, 102 P. 2d 624, 625, quoting the court:

“The presumption is that the prosecution is in good faith; and in order to overcome this presumption, * * * the petitioner must introduce facts which are clear, convincing, and without doubt that the prosecution in the demanding state is in bad faith.”

Prom what we have said hereinbefore, it is apparent that this contention is without merit.

Moreover, “the action of the Governor in issuing his warrant [on extradition] should not be nullified by the courts, unless it conclusively appears that the accused is not a fugitive from justice and that the issuance of the warrant was in plain contravention of law.” Ex parte Foster, 60 Okla. Cr. 50, 61 P. 2d 37, 41. Also, see Appleyard v. State of Massachusetts, 203 U. S. 222, 27 S. Ct. 122, 51 L. Ed. 161, 7 Ann. Cas. 1073; Compton v. State of Alabama, 214 U. S. 1, 29 S. Ct. 605, 53 L. Ed. 885, 16 Ann. Cas. 1098; Commonwealth v. Superintendent of Philadelphia County Prison, 220 Pa. 401, 69 A. 916, 21 L. R. A., N. S., 939.

No such situation confronts us in the case at bar. Upon careful consideration of the facts in this case, we are of the opinion that: (1) The petitioner is properly charged with the crime of first degree rape; (2) that the application for requisition and the warrant for extradition are in proper form; (3) that the petitioner is a fugitive from justice from the State of California; (4) that the prosecution is brought in good faith; and (5) that the petitioner’s arrest and detention is not unlawful.

The writ of habeas corpus is accordingly denied and the respondent, L. J. Hilbert, Chief of Police of Oklahoma City, Oklahoma, is directed to surrender the petitioner John R. Cassel unto the custody of the agent of the State of California, in execution of the Governor’s warrant on foreign requisition.

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


text:
    SAUL BUNN v. STATE.
    No. A-10725.
    Sept. 3, 1947.
    (184 P. 2d 621.)

      Morton Perry, Bruce & Rowan, and Robert O. Swimmer, all of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Saul Bunn, was charged by information filed in the district court of Oklahoma county with the crime of indecent exposure, was tried to a jury who returned a verdict of guilty, but left the punishment to be assessed to the discretion of the trial court. The defendant was thereupon sentenced to serve a term of five years imprisonment in the State Penitentiary and has appealed.

The principal assignment of error presented by counsel for defendant is their contention that the court erred in admitting in evidence over objections of the defendant other alleged acts of indecent exposure committed by defendant at times and places other than that alleged in the information.

The information charged the defendant with committing the crime of indecent exposure on June 25, 1945, on the front porch of the building occupied by the State Health Department, at 3400 North Eastern Avenue in Oklahoma City. During the trial of the case, the state was allowed to introduce evidence over objection of defendant’s counsel by the testimony of parties other than the prosecuting witness which allegedly showed that the defendant committed the crime of indecent exposure at the railway shelter just east of the State Capitol building about June 19, 1945, and in the early part of May, 1945.

On behalf of defendant, the proof showed that defendant stopped at the building occupied by State Health Department on his way to the county for the purpose of using the men’s toilet, and that if he exposed himself in any ivay, it was not with intention of being seen by anyone. He denied ever being at the other places where it is alleged he illegally exposed himself on occasions other than the one alleged in the information. In support of his defense against the other alleged offenses, he introduced in evidence records from Armour & Company, in Oklahoma City, to show that on the date and hour testified to by the witnesses for the state, he was working at the Armour Plant several miles from the place where he allegedly exposed himself. Several witnesses testified on behalf of defendant to his good reputation in the community where he resided as a law-abiding citizen and a person of good moral character.

In Michelin v. State, 66 Okla. Cr. 241, 90 P. 2d 1081, the law relative to the admission of other crimes is stated in the first syllabus as follows:

“The general rule is, evidence of other offenses, though of the same nature, is not admissible for the purpose of showing that the defendant is guilty of the particular offense charged. To this general rule there are, however, well recognized exceptions, which are as well embedded in the law as the rule itself. Some of those exceptions as presented by the record in this case are:
“(a) Evidence of other offenses similar to that charged is relevant and admissible, when it tends to prove some element of the one charged, as where it shows or tends to show guilty knowledge or intent in the commission of the offense charged.
“(b) Evidence is not inadmissible when it tends directly to prove the defendant’s guilt, though it may prove or tend to prove him guilty of another offense.
“(c) When the evidence is so closely linked that in the proof of one the other forms a part of the res gestae.
“(d) When the proof establishes a systematic scheme or plan embracing the commission of two or more offenses so related to each other that proof of one tends to establish the other, or to connect the defendant with the commission of the offense charged.”

The case of Davidson v. State, 20 Okla. Cr. 368, 209 P. 779, is similar in many aspects to the instant case. The: defendant Davidson was there charged with the indecent exposure of Ms person. In the information, he was alleged to have exposed his private parts on the public highway to a great number of female school children on March 22, 1918. At the time of the trial, evidence was admitted as to several alleged indecent exposures at the same place at other times. In disposing of that question, it is held (second syllabus) :

“Where, on the trial of one charged with lewd conduct, the court permitted the introduction of testimony tending to show that the defendant may have been guilty of other like offenses about that time, it was error, under the circumstances in this case.
“a. Under such circumstances no one could say whether all the jurors concurred in the guilt of the defendant as to the particular offense charged.”

In the body of the opinion it is stated:

“Furthermore, the defendant had. a right to the concurrence of at least five jurors in any verdict rendered in this case. Under the evidence here one or more jurors may have believed him guilty of one offense and innocent of the others. Other jurors may have believed the defendant guilty of still another offense. Under such a state of the testimony, this court cannot say whether there was a concurrent verdict on the offense charged. True, there were no objections interposed to the • testimony tending to show other offenses about that time, but we think the error fundamental under the circumstances. There was indefinite testimony to the effect that several offenses were committed; who, then, can tell on which offense the verdict was in fact based? Persons accused of an offense should not be convicted on general accusations; the evidence should be confined to the specific crime charged.
“The evidence of the other alleged offenses did not tend to explain any motive of the defendant, nor to show that the offense was a part of a system, or otherwise explain or elucidate the crime charged, so as to come within the general rule under which evidence of other alleged crimes can be introduced. Miller v. State, 9 Okla. Cr. 255, 131 P. 717, L. R. A. 1915A, 1088; Littrell v. State [21 Okla. Cr. 466], 208 P. 1048, [Id., 22 Okla. Cr. 1] 209 P. 184.”

In the case of Quinn v. State, 54 Okla. Cr. 179, 16 P. 2d 591, the defendant was charged with the crime of murder, allegedly committed on one Jessie Griffith at a certain place on the highway near Tonkawa. During the trial of the case, the court admitted the evidence of one Myrtle Patton, that about 30 days prior to the commission of the crime for which defendant was on trial, he stopped the car of said Myrtle Patton and compelled her to go with him and committed rape upon her at or near the place where the Griffith sisters were alleged to have been raped and killed. This court held the admission of this evidence was reversible error.

This syllabus of the case is as follows:

“Where defendant is on trial for a single offense, evidence of unrelated offenses is not admissible, unless relevant to the issue, and both are so closely linked and connected as to form a part to the res gestae, or tending to establish a systematic scheme or plan embracing the commission of two or more offenses so related to each other that proof of one tends to establish the other, or tending to show motive or intent.”

In the case of Nemecek v. State, 72 Okla. Cr. 195, 114 P. 2d 492, 498, 135 A. L. R. 1149, it is stated:

“The general rule is that, when a defendant is put upon trial for one offense, he should be convicted, if at all, by evidence which shows that he is guilty of that offense alone; and evidence which in any manner shows, or tends to show, that he has committed another crime, wholly independent, even though it be a crime of the same sort, is irrelevant and inadmissible. Miller v. State, 13 Okla. Cr. 176, 163 P. 131, L. R. A. 1917D, 383.
“As an exception to this general rule, evidence of other offenses recently committed, similar to that charged, is admissible when it tends to establish a common scheme or plan, embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, or when it shows or tends to show guilty knowledge or intent in the commission of the offense charged. State v. Rule, 11 Okla. Cr. 237, 144 P. 807; Boyer v. State, 68 Okla. Cr. 220, 97 P. 2d 779.
“In any prosecution, when the state offers to prove other alleged offenses for the purpose of showing a common scheme, plan or intent, the proof must clearly come within the exception to the general rule; and where they are distinct and unrelated offenses, or remote as to time, an objection by the defendant to this proof should be sustained. Perdue v. State, 40 Okla. Cr. 9, 266 P. 514; Ricker v. State, 39 Okla. Cr. 58, 263 P. 160; Stanfield v. State, 30 Okla. Cr. 82, 235 P. 256.”

This court has often stated that where the evidence of other alleged offenses is offered by the state for the purpose of showing a common scheme, plan or unlawful intent, the proof must clearly bring such other alleged offenses within the exception to the general rule.

The language used by this court in the recent case of Byers v. State, 78 Okla. Cr. 267, 147 P. 2d 185, 188, is applicable to this case. It was there stated:

“The general rule is that in a prosecution for one crime it is not proper to admit testimony against the defendant tending to connect him with the commission of other offenses for the purpose of establishing the guilt of the offense charged. However, there is an exception to the general rule that such evidence is competent when it tends to establish a systematic scheme or plan so related to each other that the proof of one tends to establish the other. Such instances often arise in cases of embezzlement, forgery and obtaining money under false pretenses. Boyer v. State, 68 Okla. Cr. 220, 97 P. 2d 779; Chappell v. State, 74 Okla. Cr. 213, 124 P. 2d 742.

There have been many instances of abuse of this exception to the general rule above noted. The abuse of this rule has caused the reversal of more cases on appeal to this court in recent years than that of any other one matter.

“We have said that in order for other offenses to be admissible against the accused to show a common scheme or plan or intent that they must not be remote as to time and there must be a visible connection between the crimes. Nemecek v. State, 72 Okla. Cr. 195, 114 P. 2d 492, 135 A. L. R. 1149; Pressley et al. v. State, 71 Okla. Cr. 436, 112 P. 2d 809; Landon v. State, 77 Okla. Cr. 190, 140 P. 2d 242; Herren v. State, 75 Okla. Cr. 251, 130 P. 2d 325.
“The fact that one person may commit similar crimes does not justify the admission of the other identical offenses if they are independent of each other. Where the trial court cannot clearly see a visible connection between the alleged other offenses to the one charged, he should refuse to admit the other offenses in evidence. If the trial court is uncertain as to the admissibility of such evidence, he should give the benefit of such doubt to the defendant as it is manifestly unfair to the accused to force him to prepare to defend himself against any collateral crime other than the one charged against him in the information. Juries are too prone, when such other offenses are admitted in evidence, to find an accused guilty of the crime charged merely because he might have committed some other offense.”

In Landon v. State, 77 Okla. Cr. 190, 140 P. 2d 242, the defendant was charged with the crime of rape committed against his daughter. The case was reversed because of the admission in evidence of alleged acts of sexual intercourse committed with another daughter at about the same time as the act alleged in the information.

It takes a strained construction of the law to find some theory which would make the other alleged offenses admissible in evidence against the defendant. When objection was first made to the admission of these other alleged offenses, the objection was sustained, but after some argument the court withdrew its ruling and allowed the evidence of such other alleged offenses to be admitted. The trial court’s first impression of the law was correct. The benefit of the doubt as to whether such other alleged offenses were admissible should have been given to the defendant in accordance with the rule announced in the above cases.

Because of the error in admitting the evidence of other alleged offenses than the one charged against the defendant in the information, the judgment and sentence of the district court of Oklahoma county is vacated, the conviction is reversed and the cause is remanded with instructions to grant the defendant a new trial.

BAREFOOT, P. J., and BRETT, J., concur.


text:
    JIM HOWE v. STATE.
    No. A-10720.
    Oct. 1, 1947.
    (185 P. 2d 481.)
    For former opinion, see 84 Okla. Cr. 279, 181 P. 2d 571.
    Walter C. Henneberry, of Tulsa, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for defendant in error.
   BAREFOOT, P. J.

We have re-examined the record and briefs on rehearing of this case.

It is strenuously insisted by the plaintiff in error that it was error to hold that an automobile could be lawfully searched under the terms of Tit. 37 O. S. 1941 § 84; and that a search warrant should have been issued under the general search warrant statute, Tit. 22 O. S. 1941 § 1221.

As stated in the original opinion [84 Okla. Cr. 279, 181 P. 2d 571]:

“We have often held that the search of an automobile was proper under the terms of this statute.” Tit. 37 O. S. 1941 § 84; White v. State, 33 Okla. Cr. 428, 244 P. 450; Fowler v. State, 80 Okla. Cr. 80, 157 P. 2d 223; Morris v. State, 66 Okla. Cr. 358, 92 P. 2d 603; Bowdry v. State, 82 Okla. Cr. 119, 166 P. 2d 1018; Boardwine v. State, 64 Okla. Cr. 49, 76 P. 2d 1081.

Other states with similar statutes have often held that the search of automobiles Avas proper. The citation of authorities is unnecessary.

In the case of Milwaukee Beer Co. v. State, 55 Okla. 181, 155 P. 200, the Supreme Court of this state, in construing the search warrant statute which is now Tit. 37 O. S. 1941 § 84, says:

This section, and sections 85 and 87 of this title, “in reference to search warrants, should receive a broader and more liberal construction than the general statutes in reference to common-law search warrants, and it is not necessary in the complaint or warrant to describe the liquor or property to be searched for, * * * with that degree of particularity and nicety that is required for common-law search warrants.”

The right to search and seize an automobile under the above statute has often been upheld by the Supreme Court of this state in civil cases. One Chevrolet Coach Automobile v. State, 171 Okla. 545, 43 P. 2d 774; Hoskins v. State, 82 Okla. 200, 200 P. 168; One Hodge Touring Car v. State, 97 Okla. 21, 222 P. 662; Hatley v. State, 72 Okla. Cr. 69, 113 P. 2d 396; Boardwine v. State, 64 Okla. Cr. 49, 76 P. 2d 1081.

In Title 37 O. S. 1941 § 84, the word “premises” is 'used, and in Title 22 O. S. 1941 § 1225, the word “place” is used. The right to seach an automobile under the terms of each of these statutes has often been recognized as above stated. We do not believe that it would be improper to say that either the word “premises” or “place” would include an automobile where liquor was found therein and the facts justified one to believe that it was so possessed for the purpose of violating the laws of the state; and especially where the automobile is specifically described in the search warrant.

The Federal courts have upheld the search of an automobile under the Federal statutes; Lafazia v. United States, 1 Cir., 4 F. 2d 817; Altshuler v. United States, 3 Cir., 3 F. 2d 791; Boyd v. United States, 4 Cir., 286 F. 930; Tit. 18 U. S. C. A § 612

The Federal statutes provide:

“In which case it may be taken on the warrant from any house or other place in which it is concealed * * *.” Title 18 U. S. C. A. § 616.

We are of tbe opinion that the conclusion reached in the original opinion was correct, and that the petition for rehearing should be denied. It is so ordered.

JONES and BRETT, JJ., concur.


text:
    CARL HUGHES v. STATE.
    No. A-10748.
    Sept. 3, 1947.
    (184 P. 2d 625.)

      A. E. Pearson, of Oklahoma City for plaintiff in error.
    Mac Q. Williamson. Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Warren H. Edwards, Co. Atty., of Oklahoma City, for defendant in error.
   BAREFOOT, P. J.

Defendant, Carl Hughes, was charged in the court of common pleas of Oklahoma county with the crime of having unlawful possession, on May 19, 1945, of intoxicating liquor, to-wit: “Fifty-one pints and twelve 4/5ths bottles of tax paid liquor, to wit: whisky.” He was tried, convicted and sentenced by the court to pay a fine of $350, and to serve a term of 90 days in the county jail, and has appealed.

For a reversal of this case, it is first contended :

“Under the undisputed evidence in this case, the place searched was the. residence of the defendant, Carl Hughes, and the state failed to prove or show any search warrant, but the search warrant, if any, is not sufficient to search the defendant’s home.”

It is revealed by the record that a motion to suppress the evidence was filed by the defendant. A hearing was had upon this motion, and the defendant offered in evidence the affidavit and the search warrant. Under these circumstances, it was of coarse unnecessary for the state to introduce these instruments.

Counsel for defendant then attempted to go behind the affidavit for the search warrant and show that the officer did not have sufficient knowledge of the charges alleged in the affidavit. We have repeatedly held that this cannot be done. Phillips v. State, 34 Okla. Cr. 52, 244 P. 451; Harris v. State, 56 Okla. Cr. 105, 34 P. 2d 289; Young v. State, 74 Okla. Cr. 64, 123 P. 2d 294; Hudgens v. State, 74 Okla. Cr. 56, 122 P. 2d 815; Luther v. State, 80 Okla. Cr. 252, 158 P. 2d 481; Medley v. State, 81 Okla. Cr. 242, 162 P. 2d 881; Linde v. State, 83 Okla. Cr. 268, 175 P. 2d 370; Workman v. State, 83 Okla. Cr. 245, 175 P. 2d 381. The affidavit in the instant case contained positive statements of facts as to the illegal possession of intoxicating liquor.

The contention that one of the witnesses for the state was a city policeman who accompanied the deputy sheriff Avho executed the warrant and searched the premises, and that his testimony is inadmissible because the search Avas conducted outside the city limits, is Avholly without merit. The warrant was not secured by this officer, nor was it executed by him. He accompanied the deputy sheriff and testified to the facts which he saw and observed at the time of the search. The contention that the affidavit signed for the purpose of securing the search warrant was not sufficient to search the defendant’s home cannot be sustained.

It is provided by Tit. 37 O. S. 1941 § 84 as follows:

“If it shall be made to appear to any judge of any court of record or any justice of the peace that there is probable cause to believe that liquor, the sale of which is prohibited by this act, is being manufactured, sold, bartered, given away, or otherwise furnished, or is being kept for the purpose of being sold, bartered, given away, or otherwise furnished in violation of this act, such judge or magistrate shall, with or without any endorsement of such complaint by the county attorney, issue a warrant, directed to any peace officer, in the county, whom the complainant may designate, commanding him to search the premises described and designated in such complaint and warrant and to seize all such liquor there found, together with the vessels in which it is contained, and all implements, furniture and fixtures used or kept for such illegal manufacture, selling, bartering, giving away or otherwise furnishing of such liquor, and safely keep the same, and to make return of said warrant within three days, showing all acts and things done thereunder, with a particular statement of all property and things seized, of the person or persons in whose possession the same were found, if any, and if no person be found in the possession of said property and things, his return shall so state. 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, 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.”

And it is provided by section 87 of'the same Title:

“No such warrant shall issue but upon probable cause, supported by oath or affirmation describing as particularly as may be the place to be searched, and the person or thing to be seized.”

And by section 88:

“No warrant shall be issued to search a private residence, occupied as such, unless it, or some part of it, is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort.”

The affidavit in evidence states:

“Affiant further states that the above described premises is a place of public resort where divers persons congregate for the purpose of buying, selling, drinking and offering for sale intoxicating liquor and where intoxicating liquors are manufactured, bartered, stored and given away, in violation of the prohibition laws of the state of Oklahoma, and constitutes a public nuisance.”

This allegation is sufficient, under the statutes above quoted.

It is also contended that the state did not prove that the bottles found contained intoxicating liquor.

The witnesses, in describing the liquid seized by the officers, testified that it was whisky, described the quantity that was seized, and further swore that it was tax-paid liquor. Counsel for defendant in his questioning of the witnesses referred to the liquor seized as whisky. The identical liquor was brought into court, exhibited before the jury, and identified by the officers, but there seems to be some question as to whether or not the assistant county attorney actually introduced it in evidence.

We are of the opinion that under the decisions of this court, this evidence was sufficient to prove the liquor was intoxicating. We have often held that the court will take judicial knowledge that whisky is intoxicating liquor. The evidence here shows that the whisky was “tax-paid.” Defendant did not request or offer to open the bottles, or to examine their contents. No evidence was offered by defendant. Patton v. State, 20 Okla. Cr. 52, 200 P. 878; Crouse v. State, 39 Okla. Cr. 127, 263 P. 681; Crouse v. State, 69 Okla Cr. 24, 100 P. 2d 467; Johnson v. United States, 6 Cir., 46 F. 2d 7.

The most serious question presented by this appeal is the giving by the court of instruction No. 8, which was excepted to by defendant. This instruction was as follows:

“You are instructed that the keeping, at, in or about a place of residence, at any one time, of more than one quart of spirituous, vinous, fermented or malt liquors, or any imitation thereof, or substitute therefor, or any imitation thereof, or substitute therefor, or any liquors or compounds of any kind or description whatsoever, whether medicated or not, which contain more than three and two-tenths per cent of alcohol, measured by weight, and which is capable of being used as a beverage, is prima facie evidence of an intention to barter, sell or otherwise dispose of the same contrary to law.
“But while this is prima facie evidence of an intent on the part of the defendant to barter, sell or otherwise dispose of the same contrary to law, it is a rebuttable presumption and can be removed by proof to the contrary.”

This provision of the statute (Tit. 37 O. S. 1941 § 82) has been before this court upon numerous occasions. Wilson v. State, 11 Okla. Cr. 510, 148 P. 823; Caffee v. State, 11 Okla. Cr. 485, 148 P. 680; Sellers v. State, 11 Okla. Cr. 588, 149 P. 1071; Huff v. State, 12 Okla. Cr. 138, 152 P. 464; Beal v. State, 12 Okla. Cr. 157, 152 P. 808; Langham v. State, 25 Okla. Cr. 33, 218 P. 897; Stites v. State, 44 Okla. Cr. 92, 279 P. 911; Walton v. State, 53 Okla. Cr. 24, 3 P. 2d 212.

The objection offered to the above instruction is to the last paragraph. It is contended that this part of the instruction did not properly' interpret the statute (Tit. 37, O. S. 1941 § 82), but that it shifted the burden from the state to prove defendant’s guilt beyond a reasonable doubt, and placed the burden upon defendant to prove Ms innocence.

We have examined all of the above cases, and in every case where the court gave an instruction similar to the one above quoted, this court has reversed the case by reason thereof. We have examined all of these cases carefully, and have been unable to find that any of them have the identical instruction as above quoted. In most of the cases, the court gave instructions which are more liberal than those given in the instant case, yet, the court reversed the case. In a number of the cases, in defining “prima facie” as used in this statute, the jury was instructed that it was not obligatory upon the jury to convict, but that they must believe the defendant guilty from all of the evidence introduced, beyond a reasonable doubt. No such clause appears in the instruction in this case. The fact that the court in other instructions instructed the jury that it was necessary to find defendant guilty beyond a reasonable doubt did not protect defendant’s rights in this instruction, which clearly places the burden upon the defendant of producing witnesses to prove his innocence.

All of the cases above cited were reversed, with the exception of the case of Stites v. State, supra [44 Okla. Cr. 92, 279 P. 912], Judge Chappell distinguished that case from the other cases heretofore cited. In the Stites case the instruction given by the court was as follows:

“You are further instructed that the having and keeping in excess of one quart of any spirituous, vinous, fermented, or malt liquors shall be deemed prima facie evidence of an intention to convey, sell, or otherwise dispose of said liquor, and you are instructed that if you should find beyond a reasonable doubt that on or about the 6th day of January, 1926, that the defendants, H. Y. Stites and I. Stites, had in excess of one quart of spirit-nous, vinous, fermented, or malt liquors, that the possession of such liquor, if you should find that the defendants had the possession of the same, would be sufficient to establish an unlawful intent, unless rebutted or the contrary proved, yet it does not make it obligatory upon you to convict after the presentation of such proof, but such evidence is competent and sufficient to justify you finding the defendants guilty, provided you are satisfied from all the evidence that they are guilty beyond a reasonable doubt.”

The court said:

“The defendant relies on the cases of Wilson v. State, 11 Okla. Cr. 510, 148 P. 823; Sellers v. State, 11 Okla. Cr. 588, 149 P. 1071; Beal v. State, 12 Okla. Cr. 157, 152 P. 808; Huff v. State, 12 Okla. Cr. 138, 152 P. 464; Roberts v. State, 29 Okla. Cr. 147, 232 P. 861. These cases, however, are not in point in the case at bar. The instructions held bad in the cases relied on by defendant are not the same as the instruction in this case. In the cases cited by defendant the court stopped with the language, ‘would be sufficient to establish an unlawful intent, unless rebutted or the contrary proved.’ Such an instruction was held bad, because it made the presumption arising from the possession of more than a quart of liquor one of law, and not of fact, and because such instruction in effect told the jury that it was their duty to convict the defendant, unless the presumption was rebutted or the contrary proved by the defendant. In the case at bar, the trial court apparently prepared this instruction from the fourth and fifth paragraphs of the syllabus in the case of Caffee v. State, 11 Okla. Cr. [485], 486, 148 P. 680. The court advised the jury:
“ ‘It does not make it obligatory upon you to convict after presentation of such proof, but such evidence is competent and sufficient to justify you in finding defendants guilty, provided you are satisfied from all the evidence that they are guilty beyond a reasonable doubt.’
“The instruction complained of is not a model one, but it does fairly state the law as applicable to the facts in this case, and the court did not, therefore, err in giving the same.”

It will be noted that this case even disapproves an instruction such as was given in the instant case.

The Assistant Attorney General, in his brief, states:

“More comparable than those to which counsel makes reference are the instructions involved in the cases of Committi v. State, 28 Okla. Cr. [380] 381, 231 P. 316; Brickey v. State, 55 Okla. Cr. 451, 32 P. 2d 743; and Farrow v. State, 64 Okla. Cr. 460, 82 P. 2d 244.”

In the Oommitti case, [28 Okla. Cr. 380, 231 P. 317], the instruction given by the trial court was as follows:

“You are instructed, gentlemen of the jury, that the keeping in excess of one gallon of whisky, or one gallon of wine, or one cask of beer in any private residence by any person is prima facie evidence of an intention to convey, sell, or otherwise dispose of such liquors, and in this connection you are instructed that the term ‘prima facie,’ as used herein, means that it is such evidence as in the judgment of the law is sufficient to establish the fact of unlawful intent, if it be credited by the jury, unless rebutted and the contrary proved, and remains sufficient to establish the unlawful intent.”

This case was reversed by reason of the giving of this instruction, which is very similar in expression to the instruction given in the instant case. Judge Doyle, in rendering the opinion, said:

“The instruction given by the court in connection with the statutory definition given of ‘prima facie evidence’ is faulty, in that it places on the defendant the burden of rebutting the unlawful intent.”

In the Brickey case [55 Okla. Cr. 451, 32 P. 2d 744], the judgment of the court was affirmed, but the instruction considered contained this provision:

“* * * would be sufficient to establish an unlawful intent, unless rebutted or the contrary proved, yet it does not make it obligatory upon you to convict after the presentation of such proof, but such evidence is competent and sufficient to justify you finding the defendant guilty, provided you are satisfied from all the evidence that the defendant is guilty, beyond a reasonable doubt.”

No such instruction was given in the instant case.

In the Farrow case, the judgment was affirmed, but the instruction given was identical with the instruction given in the Brickey case.

It is therefore noted that these cases do not sustain the giving of the instructions as above quoted.

The trial court gave instruction No. 9 in the instant case which had reference to Tit. 37, O. S. 1941 § 81, which provides that the possession of a Federal liquor license shall be deemed prima facie evidence of an intention to violate the prohibitory liquor laws of the state, the same as the statute under consideration. Instruction No. 9 is as follows:

“* * * Plowever, you are further instructed that the payment of such special tax by the defendant, if you should so find, does not make it obligatory upon you to convict him of the crime charged in the information, for it is a rebuttable presumption and can be removed or overcome by any competent evidence to the contrary.”

This instruction is not altogether a proper one, but it does instruct the jury that it “does not make it obligatory upon you to convict him of the crime charged in the information.” Lo such saying clause appears in instruction No. 8, hereinbefore quoted.

With all of the cases heretofore cited, from the early days of this coxirt to the present time, construing the statute herein quoted, we are at a loss to understand why instruction No. 8 should have been given in the form here presented. It clearly places a burden upon the defendant which the law does not require or contemplate.

The records of this court and of this case reveal that this defendant has been a persistent violator of the prohibition laws of this state, but notwithstanding this, he is entitled to a fair and impartial trial under the laws and Constitution of this state.

For the reasons above stated, the judgment of the court of common pleas of Oklahoma county is reversed, and the case remanded, with instructions to again try this defendant on this charge.

JONES and BRETT, JJ., concur.


text:
    CARL HUGHES v. STATE.
    No. A-10749.
    Sept. 3, 1947.
    (184 P. 2d 630.)

      A. E. Pearson, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Warren H. Edwards, Co. Atty., of Oklahoma City, for defendant in error.
   BAREFOOT, P. J.

Defendant, Carl Hughes, was charged in the court of common pleas of Oklahoma county with the crime of unlawful possession of intoxicating liquor on April 17, 1945. to wit: Eighty-three four-fifths quart bottles of tax-paid whisky. He was tried, convicted, and fined |50 and sentenced to serve a term of 30 days in the county jail, and has appealed.

This case involves the same questions of law presented by the case of Hughes v. State of Oklahoma, 85 Okla. Cr. 25, 184 P. 2d 625, decided by this court. The identical instruction which caused the reversal in that case was given, and excepted to, in this case.

For the reasons stated in the case of Hughes v. State, 85 Okla. Cr. 25, 184 P. 2d 625, the judgment of the court of common pleas of Oklahoma county is reversed, and the case remanded, with instructions to try this defendant again on this charge.

JONES and BRETT, JJ., concur.


text:
    CARL HUGHES v. STATE.
    No. A-10750.
    Sept. 10, 1947.
    (185 P. 2d 236.)

      A. E. Pearson, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Warren H. Edwards, Co. Atty., of Oklahoma City, for defendant in error.
   BAREFOOT, P. J.

Defendant, Carl Hughes, was charged in the court of common pleas of Oklahoma county with the crime of unlawful possession of intoxicating liquor on July 8, 1945, to wit: “Thirty-five pint bottles of tax-paid liquor, to-wit: whisky.” He was tried, convicted, and sentenced to pay a fine of $50 and to serve 30 days in the county jail, and has appealed.

This case involves the same questions of law presented by the case of Hughes v. State of Oklahoma, 85 Okla. Cr. 25, 184 P. 2d 625. The identical instruction which caused a reversal in that case was given in this case, and an exception saved.

For the reasons stated in the case of Hughes v. State, 85 Okla. Cr. 25, 184 P. 2d 625, the judgment of the court of common pleas of Oklahoma county is reversed, and the case remanded, with instructions to again try this defendant on this charge.

JONES and BRETT, JJ., concur.


text:
    CARL HUGHES v. STATE.
    No. A-10751.
    Sept. 10, 1947.
    (185 P. 2d 238.)

      A. E. Pearson, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Warren H. Edwards, Co. Atty., of Oklahoma City, for defendant in error.
   BAREFOOT, P. J.

Defendant, Carl Hughes, was charged in the court of common pleas of Oklahoma county with the crime of unlawful possession of intoxicating liquor on April 29, 1945, to wit: “Forty-nine and three-fourths (49%) pints of tax-paid intoxicating liquor, to wit: whisky.” He was tried, convicted, and sentenced to pay a fine of $50 and to serve 30 days in the county jail, and has appealed.

This case involves the same questions of law presented by the case of Hughes v. State of Oklahoma, 85 Okla. Cr. 25, 184 P. 2d 625. The identical instruction which caused a reversal in that case was given in this case, and excepted to by the defendant.

For the reasons stated in the case of Hughes v. State, 85 Okla. Cr. 25, 184 P. 2d 625, the judgment of the court of common pleas of Oklahoma county is reversed, and the case remanded, with instructions to again try this defendant on this charge.

JONES and BRETT, JJ., concur.


text:
    Ex parte JIM ANDERSON.
    No. A-10797.
    Sept. 10, 1947.
    (184 P. 2d 632.)

      Sid White, of Oklahoma City, for petitioner.
    A. L. Jeffrey, Municipal Counselor and P. J. Demopolos, Asst. Municipal Counselor, both of Oklahoma City, for respondent.
   JONES, J.

This is an original action in habeas corpus by the petitioner, Jim Anderson, in which he seeks to secure his release from confinement in the city jail of Oklahoma City.

By this action the petitioner seeks to test the validity of a city ordinance of Oklahoma City making it unlawful to operate a travel bureau within the limits of Oklahoma City, and providing a penalty for its violation.

The petitioner was arrested and charged by complaint filed before the police court of Oklahoma City, with a violation of said Ordinance No. 5653.

A rule to show cause was issued and a response was filed by the Chief of Police of Oklahoma City, in which he alleged that the petitioner, Jim Anderson, had been lawfully arrested and charged with operating a travel bureau in violation of Ordinance No. 5653, of Oklahoma City, and had been committed to the city jail pending his trial upon said charge. A copy of the ordinance was attached to the response and made a part thereof.

A hearing was had before this court at which time testimony was introduced pertaining to the nature of the operation of the business conducted by the petitioner which proof was given to show: First, that the petitioner in the operation of his business did not come within the provisions of the ordinance under which the charge was filed against him; and secondly, that if the petitioner’s business was prohibited by the ordinance that said ordinance was unconstitutional for certain reasons set forth in the brief of the petitioner. At the close of the hearing, the case was taken under advisement for the purpose of preparing an opinion of this court on the issues involved.

Shortly thereafter, a motion to dismiss the action was filed by the respondent in which it is alleged:

“1. That the petitioner, Jim Anderson, has been held in constructive custody by the Police Department of the City of Oklahoma City, having been charged with four offenses, in that he operated a Travel Bureau, contrary to the ordinances of the City of Oklahoma City. Respondent states that these causes, respectively, are Case No. 15695 filed November 6, 1946; Case No. 15638 filed November 5, 1946; Case No. 15763 filed November 7, 1946; and Case No. 15817 filed November 8, 1946, all in 'the Police Court of the City of Oklahoma City.”
“2. Respondent further states that on the 13th day of March 1947, all the above styled and numbered cases were dismissed in the Municipal Court of Oklahoma City, and no charge is now pending against petitioner.”
“3. Respondent further states that by reason of such dismissal this Court has no jurisdiction to try this matter of habeas corpus.”

The counsel for petitioner have insisted that we proceed to determine the constitutional questions involved and alleges that the petitioner will continue to operate his business in the manner in which it has been conducted in the past and that a decision of this court is necessary to prevent a further harassment of the petitioner in the operation of his business.

In view of the fact that the city has voluntarily dismissed the four actions filed against the petitioner, it is unlikely that any further prosecution will be begun against him, unless the petitioner changes the method of the operation of his business or a new ordinance is prepared which will avoid the alleged defects pointed out by counsel for the petitioner, but irrespective of that, this court has consistently followed the rule that where a petition for writ of habeas corpus is filed and it is subsequently shown that the petitioner is not restrained of his liberty, the action will be dismissed on the ground that the issues are moot. Ex parte Davis, 11 Okla. Cr. 403, 146 P. 1085; In re Whisenhunt, 75 Okla. Cr. 313, 131 P. 2d 134; Ex parte Bennett, 81 Okla. Cr. 224, 162 P. 2d 588.

In the case of In re Whisenhunt, supra [75 Okla. Cr. 313, 131 P. 2d 135], it is held:

“The object of the writ of habeas corpus being to relieve a person from illegal restraint, where it is shown that subsequent to the filing of a petition for a writ of habeas corpus petitioner is granted clemency by Governor and released from imprisonment, the petition will be dismissed.”

In Ex parte Davis, supra, this court stated:

“The object of the writ of habeas corpus is to relieve the petitioner from illegal restraint or unlawful imprisonment, and if this release is accomplished, and the petitioner is not held in actual custody at the time of the hearing, there is nothing for the court to adjudicate.”

In Ex parte Bennett, supra [81 Okla. Cr. 224, 162 P. 2d 589], it is said:

“The question herein involved is moot, because the defendant was released from custody prior to the hearing.”

By reason of the fact that the actions filed against the petitioner in the police court of the city of Oklahoma City have been dismissed and the petitioner no longer charged with an offense nor restrained of his liberty, the questions raised in the petition are moot, and there is nothing for this court to adjudicate.

It is therefore ordered that this action be and the same is hereby dismissed.

BAREFOOT, P. J., and BRETT, J., concur.