text:
    STATE v. CECIL GRAGG.
    No. A-9680.
    Feb. 6, 1941.
    (110 P. 2d 321.)

      Mac Q. Williamson, Atty. Gen., and Lewis R. Morris, Co'. Atty., and Phil E. Daugherty, Asst. Co. Atty., both of Oklahoma City, for the State.
    James B. Barnett and Dave Tant, both of Oklahoma City, for defendant.
   BAREFOOT, P. J.

Cecil Gragg, defendant, was charged in the court of common pleas of Oklahoma county with the crime of unlawful possession of intoxicating liquor, was tried before the court without a jury. A demurrer was sustained by the court, and defendant was discharged. From the ruling of the court the state has appealed on a reserved question of law.

In Oklahoma Statutes 1931, section 3191, O. S. A. title 22, sec. 1053, it is provided:

“Appeals to the Criminal Court of Appeals may be taken by the State in the following cases and no other:
“1. Upon judgment for the defendant on quashing or setting aside an indictment or information.
“2. Upon an order of the court arresting the judgment.
“3. Upon a question reserved by the state.”

It is under section 3 of the above statute that the state has appealed, contending, that the court erred in its ruling in sustaining the demurrer of the defendant to the evidence and discharging the defendant.

The facts were that defendant was arrested by Police Officers P. L. Borden and J. G. Muse of Oklahoma City, on the 20th day of August, 1937, in possession of 14 pints of tax-paid liquor at a public parking station in Oklahoma City. The officers had procured a search warrant for the purpose of searching defendant’s truck. They had been watching the same before the securing of such warrant. When they approached the truck with the search warrant they found the defendant, Cecil Gragg, in possession of six pints of whisky which he had just taken from the truck, and eight additional pints were found in the truck. The officers testified that it was tax-paid liquor, manufactured by a standard distillery and bore federal revenue stamps across the top which were unbroken. The defendant was arrested and the liquor was. turned over to a police lieutenant, G. G. Kelley, and it was destroyed by virtue of an order issued by Judge Merrel Siler, police judge, as had been the custom prior to the decision of this court in the case of Doss Grimes v. State, 65 Okla. Cr. 99, 83 P. 2d 410. Officers Kelley and Muse corroborated the evidence of Officer Borden.

Mr. Kelley testified that he destroyed the liquor; that the bottles were labeled whisky; that it had the government stamps on it, which were unbroken; that it smelled like whisky when the bottles were broken. A copy of the order for the destruction of the liquor was introduced in evidence. With the introduction of this evidence the state rested, and the court sustained the demurrer to the evidence of the state and discharged the defendant for the reason that the “intoxicating liquor set forth in the information has not been produced as requested by the defendant, and for the further reason that the arrest and its inception is illegally made.”

The assistant county attorney, Mr. Daugherty, stated:

“We want to take an exception, first, to sustaining the demurrer, and then also an exception to dismissing the case and discharging the defendant; and then we want to move the court to retain the defendant under bond, and we give notice of appeal.”

In the judgment rendered by the court the following appears:

“Thereupon the defendant herein demurs to the evidence offered by the state, and moves that the case be dismissed and the defendant discharged; and the court, having heard the argument of counsel, and having heard the evidence, and being fully advised, finds that the fourteen (14) pints of tax-paid liquor involved in the action was not available for evidence at the trial, and therefore finds, and so orders, that the demurrer should be sustained, and the case dismissed, and the defendant discharged; to which finding, order and ruling of the court the State of Oklahoma at the time excepts and exceptions Avere allowed, as to the sustaining of the demurrer to the evidence, and also to the dismissing of the case and discharging the defendant, and moves that the court retain the defendant under bond.
“And it is further ordered and adjudged by the court that the sureties on the bail bond of the defendant, Cecil Gragg, be, and they are, hereby exonerated and discharged from further liability by reason of their undertaking herein, but that said defendant, Cecil Gragg, be not discharged pending the appeal and determination of this cause by the Criminal Court of Appeals of the State of Oklahoma, but that he be enlarged and placed at liberty upon his own recognizance during, the pendency of said appeal.”

In the Grimes Case, supra [65 Okla. Cr. 99, 83 P. 2d 419], we held that the police court of Oklahoma City did not have the authority to- confiscate liquor which had been procured by a search of the officers, but that the same should be delivered “before the court or judge having jurisdiction in the premises.” The different statutes involved are cited and set forth in that case, and it is unnecessary to here repeat them. In the Grimes Case it was stated:

“It is contended by defendant that this case should be reversed for the reason that the liquor was destroyed by the police judge and was not produced at the trial for inspection by the defendant, and that there was no proof that it contained a per cent of alcohol of more than 3.2 per cent. The record does not show any request on the part of the defendant or his counsel for permission to introduce in evidence any of the whisky taken from the possession of the defendant. It does not show that he even requested to be introduced the pint of whisky which the officer testified had been labeled and marked for evidence. Nor does it show any exception taken to the failure to introduce any of the liquor seized. The proof revealed that defendant was in possession of 20 pints of whisky. This court has often held that it will take judicial notice that alcohol and whisky are intoxicating and that it is unnecessary to prove the alcoholic content of the same. Moss v. State, 4 Okla. Cr. 247, 111 P. 950; Skelton v. State, 31 Okla. Cr. 343, 239 P. 189; Richardson v. State, 21 Okla. Cr. 393, 208 P. 1052.”

It will be noted that the question here raised by the state was not raised in the Grimes Case. We have carefully considered that question and have come to the conclusion that the court- erred in sustaining the demurrer to the evidence of the state in this case on the ground that the state failed to produce the identical liquor as alleged in the information, because the same had been destroyed by order of the police judge. No doubt the court based his decision upon the construction placed by him on the Grimes Case. We do not think that such construction is justified. We do not think that by reason of the fact that the liquor has been destroyed, even though it be by an illegal order, the state is bound to produce in court the original liquor in order to sustain the allegation that the defendant was in possession of intoxicating liquor..

The question of possession is a matter of proof, and the evidence in this case was amply sufficient to prove that the defendant had possession of intoxicating liquor without the identical liquor being offered in evidence. The officers testified that it was labeled whisky, that it bore the government seal, which was unbroken at the time it was confiscated, that it smelled like whisky. This was! certainly sufficient proof as against a demurrer to. the evidence.

We can readily realize that a question of fact might arise in a given case as to whether the liquid was intoxicating liquor which would justify the jury in passing upon that issue under a proper instruction from the court, but the decisions of this court are that the court will take judicial knowledge that whisky, alcohol, etc., are intoxicating, and it is not necessary to prove the alcoholic content by analysis.

In the case of Youngblood v. State, 32 Okla. Cr. 336, 240 P. 1100, 1101, this court in construing section 2642 of Oklahoma Statutes 1931, Oklahoma Statutes Annotated, title 22, section 1261, says:

“It is. not, however, always essential that the intoxicating liquor used in the violation of the law be introduced in evidence, but the wisdom of the statute referred to is manifest in a case of this kind, where the proof is of an inconclusive and unsatisfactory character.”

In that case the evidence of the guilt of the defendant was very unsatisfactory. The bottle had been broken. It was a catsup bottle. None of the contents remained. Witnesses testified that they had tasted the same and that it was not fit to drink. The defendant’s possession of the same was explained. The case was reversed.

In the instant case the evidence was much stronger. It showed conclusively that it was. tax-paid whisky and. bore the government seal, which was unbroken. Certainly this, coupled with the holdings of this court that judicial notice will be taken of whisky and alcohol, was sufficient evidence to warrant the court in finding, the defendant was in the possession of intoxicating liquor, and he should have decided this question, the case having been submitted to him without the intervention of a jury. We can surmise many instances when it would, he impossible to present the identical liquor to the jury in liquor cases, and we do' not think it was the intention of the Legislature in the enactment of the statute above cited that it should be so construed that it was necessary for the identical liquor to be produced in evidence before the court or jury. In many cases barrels of mash are taken. The possession of mash, under Oklahoma Statutes 1931, section 2607, Oklahoma Statutes Annotated, title 37, section 51, is a violation of the law. The production of these barrels of mash before the jury would be almost impossible, yet their possession may be proved by competent evidence.

The statutes also make the possession of a still a violation of the law. Oklahoma Statutes 1931, section 2608, Oklahoma Statutes Annotated, title 37, section 52. In many cases it would be not only inconvenient but practically impossible to present the still in evidence before the court or jury. In many instances the liquor is destroyed by breaking the same or by pouring it out. When this is done it then becomes a question of fact for the determination of the court or jury as to whether the defendant had possession of the liquor for the purpose of violating the prohibitory liquor laws of this state. The fact that the liquor had been destroyed, even though by an illegal order, and cannot be produced, is not a sufficient reason for sustaining a demurrer to the evidence because it was not so produced.

It is contended by the state that if this case is reversed, the defendant should again be placed on trial for the offense charged. This contention cannot be sustained.

Oklahoma Statutes 1931, section 3191, Oklahoma Statutes Annotated, Title 22, section 1053, heretofore quoted, provides the manner of taking appeals by the state. This statute should be construed in connection with Oklahoma Statutes 1931, sections 2952, 2953, 2954, 2676, 2677, and 2678, Oklahoma Statutes Annotated, title 22, sections 508, 509, 510, 520, 521, and 522, which are as follows:

(1) “If the demurrer is sustained, the judgment is final upon the indictment or information demurred to, and is a bar to another prosecution for the same offense, unless the court, being of opinion that the objection on which the demurrer is sustained may be avoided in a new indictment or information, direct the case to be resubmitted to the same or another grand jury, or that a new information be filed.”

(2) “If the court do not direct the case to be further prosecuted, the defendant, if in custody, must be discharged, or if admitted to bail, his bail is exonerated, or if he have deposited money instead of bail, the money must be refunded to him.”

(3) “If the court direct that the case be further prosecuted, the same proceedings must be had thereon as are prescribed in this article.”

(4) “If the defendant was formally acquitted on the ground of variance between the indictment or information and proof, or the indictment or information was dismissed upon an objection to its form or substance, or in order to' hold the defendant for a higher offense, without a judgment of acquittal, it is not an acquittal of the same offense.”

(5) “When, however, he was acquitted on the merits, he is deemed acquitted of the same offense, notwithstanding a defect in form or substance in the indictment or information on which he was acquitted.”

(6) “When the defendant shall have been convicted or acquitted upon an indictment or information, the conviction or acquittal is a bar to another indictment or information for the offense charged in the former, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that, indictment or information.”

In the instant ease the -defendant was charged in a court of competent jurisdiction by an information sufficient to- sustain a conviction. The court was not called upon to quash or set aside the information, but after the state had introduced its testimony and rested, a demurrer was interposed by the defendant and this demurrer was sustained by the court-, and the defendant discharged and his bondsmen exonerated. It is true that after this order was made, it was further ordered:

“That said defendant, Cecil Gragg, be not discharged, pending the appeal and determination of this cause by the Criminal Court of Appeals of the State of Oklahoma, but that he be enlarged and placed at liberty upon his own recognizance during the pendency of said appeal.”

This was evidently an attempt to comply with sections 2952, 2953, and 2954, Oklahoma Statutes 1931, Oklahoma Statutes Annotated, title 22, sections 508, 509, and 510. But these statutes apply only where a demurrer to the indictment or information has been sustained. They do not apply where a defendant was charged in a court of competent jurisdiction by a valid information and a jury has been empaneled and sworn to try the case, or the defendant has waived a jury and agreed to try the same before the court, and after the state had introduced its evidence and rested, and a demurrer was sustained to- the evidence and the defendant discharged, and his bondsmen exonerated.

This question was before this court in the case of State v. Skelton, 36 Okla. Cr. 377, 254 P. 754, 755, and the court said:

“There having been a judgment of acquittal entered by the court, such judgment is final, and the defendants may not now be subjected to further prosecution in this case, no-r to another prosecution for the same offense.”

The facts in this ease are almost identical with the facts in the case at -bar. See also State v. Hunt, 43 Okla. Cr. 376, 279 P. 519; State v. Robertson, 28 Okla. Cr. 234, 230 P. 932; State v. Dennis, 28 Okla. Cr. 312, 230 P. 935 ; Davenport v. State, 20 Okla. Cr. 253, 202 P. 18.

This case is remanded with the direction that the order be entered upon the minutes of the court of common pleas of Oklahoma county, and the defendant be discharged.

JONES and DOYLE, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    J. S. MARSH v. STATE.
    No. A-9798.
    Feb. 6, 1941.
    (110 P. 2d 326.)
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
    John Barry, of Oklahoma City, for defendant.
   PER CURIAM.

The defendant, J. S. Marsh, was convicted of the crime of embezzlement in the district court of Oklahoma county, and his punishment assessed at imprisonment in the State Penitentiary for one year, from which judgment and sentence he appealed to this court on the 9th day of January, 1940.

Since this appeal was taken the defendant departed this life, as shown by death certificate filed in this court on the 29th day of January, 1941.

In a criminal prosecution the purpose of proceedings being to punish the accused, the action must necessarily abate upon his death, and, where it is made to appear that defendant has died pending the determination of the appeal, the cause will be abated.

It is therefore considered, ordered, adjudged and decreed that the proceedings in the above-entitled cause do abate, and the cause is remanded to the trial court to enter its appropriate order to that effect.


author: JONES, J.

text:
    CHARLES A. COUCH v. STATE.
    No. A-9702.
    Feb. 12, 1941.
    (110 P. 2d 613.)

      Glen 0. Morris, Jack Tellegen, and Charles W. Moss, all of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Att-y. Gen., for defendant in error.
   JONES, J.

The defendant was charged in the common, pleas court of Oklahoma county with the offense of operating- a slot machine, jury was waived, the defendant was tried, convicted, and sentenced to pay a fine of $50 and costs, and has appealed to this court.

The information, omitting the formal parts, filed against- the defendant is as follows:

“On the 20th day of June, A. D. 1939, in Oklahoma County, State of Oklahoma, Charles A. Couch whose more full and correct name is to your informant unknown, then and there being did then and there willfully, unlawfully and wrongfully commit the crime of operating a slot machine in the manner and form as follows, to wit:
“That is to- say, the said defendant in the county and state aforesaid, and on the day and year aforesaid, then and there being, did then and there willfully, unlawfully, and wrongfully set up, operate, conduct and permit to- be set up, operated and conducted in and about his place of business, to wit:
“John Brown’s Cafe at 909 North Eastern in Oklahoma City, said county and state, he the said defendant then and there being the operator of said John Brown’s Cafe, a certain slot machine, to- wit:
“A Five Ball Marble Board Slot Machine No. 4742 for the purpose of having and allowing the same to be played by others for money, property, tangible or intangible, coin, currency, checks, chips, tokens, credit, amusement and representatives of value, or thing of value, contrary to the form of the statutes in such case made and provided against the peace and dignity of the State of Oklahoma.”

The evidence introduced by both the state and the defendant was uncontradicted, and in brief was as follows : The defendant was, and had been for sometime prior to June 20, 1939, the owner and operator of a cafe in Oklahoma City; that at the time involved, and for some period prior thereto, the defendant owned a five ball marble board machine, which was located in his said cafe. That on the date in question one H. E. Shepherd came into the cafe while two- officers were there and inquired of the defendant as to- whether he could receive anything' for playing the marble machine, to- which the defendant replied that the machine was for amusement only, and that no- tokens, merchandise, or anything else would be paid by the defendant to induce the playing, of said machine; that the said Shepherd did at that time place a nickel in the slot of said machine and did operate and play said machine by shooting five steel balls.

A picture of the machine was identified and attached to the case-made as an exhibit. The officers testified that the machine was operated on the same principle as any other marble board which they had seen. That it was equipped to operate electrically; and that when the steel balls, which were shot with a plunger, came in contact with certain spools, an electrical flash resulted, and a corresponding rabbit or duck at the back board would fall. In order to operate the machine, you place a nickel in the slot, push a plunger, and five steel balls come up in a chute on the side of the board. There was a pin on the machine which, if struck, would give a free game or one ball, but the mechanism to that pin was not connected; that when the steel ball is shot, it may bounce off on one pin and hit another or run down the board without hitting anything. That the number of ducks or rabbits which are knocked down depends some upon skill, but mostly upon chance.

The statute under which this action was commenced is House Bill No. 125, chap. 15, art. 3, p. 8, Session Laws of Oklahoma, 1939, 21 Okla. St. Ann. § 961 et seq., enacted by the Seventeenth Legislature. This statute was before this court for consideration, and was discussed at length and thoroughly analyzed in an opinion by Judge Doyle in the case of Ex parte Davis, 66 Okla. Cr. 271, 91 P. 2d 799.

Said act provides:

“Section 1. That, for the purpose of this Act, ‘slot machine’ is defined to be:
“First: Any machine, instrument, mechanism or device that operates or may be operated or played mechanically, electrically, automatically or manually, and which can be played or operated by any person by inserting in any manner into said machine, instrument, mechanism or device, a coin, chip, token, check, credit, money, representative of value, or a thing of value, and by which play or operation such person will stand to win or lose, whether by skill or chance, or by both, a thing of value; and
“Second: Any machine, instrument, mechanism or device that operates or may be played or operated mechanically, electrically, automatically, or manually, and which •can be played or operated by any person by paying, ü> or depositing with any person, or by depositing with or in any cache, receptacle, slot, or place a coin, chip, token, check, credit, money, representative of value, or a thing of value, and by which play or operation such person will stand to win or lose, whether by skill or chance, or by both, a thing of value.
“Section 2. That for the purposes of this Act, ‘a thing of value’ is defined to be any money, coin, currency, check, chip, token, credit, property, tangible or intangible, amusement or any representative of value or any other thing, tangible or intangible, calculated or intended to serve as an inducement for anyone to operate or play any slot machine or punch board.”

It is the contention of the defendant that the amusement referred to in section 2 of the above act as a thing of value must be given the same construction as the words “money”, “coins”, “checks”, etc., and that where it is shown by the evidence that the player secures the full value of amusement, in unvarying amounts, for the money he has invested in each play, it cannot be said that the “amusement” is a thing of value, won or lost, as defined in section 2 of said act.

The defendant insists that the rule of “ejusdem gen-eris” should apply in the construction of this statute; and several cases are cited in his brief to the effect that the meaning of a word used in a statute must be construed in connection with the words with which it is associated.

In the case of Wilkins v. State, 70 Okla. Cr. 1, 104 P. 2d 289, 299, it is stated:

“This case [Ingram v. State, 51 Okla. Cr. 143, 3 P. 2d 736] and all of the text-books and authorities which announce the doctrine of ‘ejusdem generis’, recognize it as a rule of construction, and that it should not be allowed to defeat the plain legislative intent. This is recognized in 59 Corpus Juris, sec. 581, cited in defendant’s brief, when it says: ‘The doctrine of ejusdem generis, however, is only a rule of construction, to be applied as an aid in ascertaining the legislative intent, and cannot control where the plain purpose and intent of the Legislature would thereby be hindered or defeated.’ * * *
“A primary rule of construction is that the intention of the Legislature is to be found in the ordinary meaning of the words of a statute in the connection in which they are used and in the light of the mischief to be remedied.”

It seems to us that the word “amusement” was inserted in this statute for the specific purpose of preventing the operation of these slot machine games, similar to the one in controversy, regardless of the name by which it may be called. The Legislature evidently thought that the installation and operation of these games would be detrimental to- the public morals; and we do' not find, under the facts, that this was an unreasonable application of the police power.

The Legislature under the police power has the right to determine what is dangerous and injurious to the public health, the public morals, and the public safety of its inhabitants. McCord v. State, 2 Okla. Cr. 214, 101 P. 280.

However, police power should not be invoked where the subject to which it is directed has no substantial relation to public health, morals, or welfare, or for a matter for which by law no person ought to be punished. Ex parte Davis, supra.

In Ex parte Davis, supra, the defendant was operating a marble board similar to1 the one in question. No cash, merchandise, checks, tokens, etc., were given or offered to induce the playing of that machine; but it was for amusement purposes only. The constitutionality of said act was upheld in that opinion. It was therein stated [66 Okla. Cr. 271, 91 P. 2d 807] :

“No ambiguity patent or latent appears to us in this section of the statute. The language is explicit; its meaning unmistakable. * * *
“It is to be observed that under the police power, every state has the right to determine what is dangerous and injurious to the public health, public morals, and the public welfare, of its inhabitants. However, the police power is not to be invoked where the subject to which it is directed has no substantial relation to those objects, or for a matter Avhich by law no person ought to be punished.
“It is generally held that a slot machine, which in return for a coin deposited therein, dispenses merchandise of the value of the coin, accompanied at occasional and uncertain intervals, by a varying amount of money, trade-checks, or coupons, is a gambling instrument. State v. Johnson, 15 Okla. Cr. 460, 177 P. 926; Nelson v. State, 37 Okla. Cr. 90, 256 P. 939.
“It is also generally held, that the name given a machine does not determine whether it comes under the statutory classification of a slot machine, but that is determined by the manner and result of its operation. Mackay v. State [65 Okla. Cr. 149], 83 P. 2d 611. * * *

“In the case of Harvie v. Heise, 150 S. C. 277, 148 S. E. 66, 69, it is said:

“ ‘ “In no field of reprehensible endeavor has the ingenuity of man been more exerted than in the invention of devices to comply with the letter but to do violence to the spirit and thwart the beneficent objects and purposes of the laws designed to suppress the vice of gambling. Be it said to the credit of the expounders of the law that such fruits of inventive genius have been allowed by the courts to accomplish no1 greater result than that of demonstrating the inaccuracy and insufficiency of some of the old definitions of gambling- that were made before the advent of the era of greatly expanded, diversified and cunning mechanical inventions.” (City of) Moberly v. Deskin, 169 Mo. App. 672, 155 S. W. 842.
“ ‘In addition to what has been said, even if it should be conceded that it is the sincere purpose of the owner, that the checks be played only for the amusement of the operator, we cannot say that they have no value whatever; for it must be that the amusement or entertainment furnished the player is worth something to- him if it constitutes the inducement for him to operate the machine. It is idle to argue that he would spend his money and time in operating the machine for the purpose of obtaining something that is of no- value to- him — unless we impute to him the lack of that common sense which he is presumed to have. Further, especially in view of the high cost of amusement or entertainment and the immense sums paid for it by people of all classes, it is reasonable to suppose that the owners of the machines, if they expect the amusement or entertainment furnished to' operate as an inducement to play, must consider it of some value to the operator.’
“And see Com. v. Bowman, 267 Ky. 602, 102 S. W. 2d 382.
“In the case of Colbert v. Superior Confection Co., 154 Okla. 28, 6 P. 2d 791, Syllabus No. 2, is as follows: ‘Nickel slot machine delivering package of mint of reasonable value of five cents and sometimes, in addition, checks usable for further playing of machine for amusement only, held prohibited.”
' “In the body of the opinion it is said:
“ ‘It is immaterial whether or not the playing of the slot machines amounts to- gambling. The act of playing the machines is prohibited, without regard to- whether or not the same amounts to gambling.
“ ‘The right of the state to legislate against this character of machine, without regard to whether or not the machines are kept or operated for gambling purposes, has been sustained by other courts. See 27 Corpus Juris 989; 12 R. C. L. 730, and cases therein cited.’ Citing and quoting from the opinion in State v. Woodman, 26 Mont. 348, 67 P. 1118, 1120, and Nelson v. State, 37 Okla. Cr. 90, 256 P. 939.
“And concludes as follows:
“ ‘If the act in question applied only to things of value, Ave think that the amusement held out as an inducement is a thing of value sufficient to bring these machines within the plain provisions of the act. We are of the opinion that the act is applicable without regard to the value of the things held out as an inducement to the playing of the machine.’ ”

As was stated in that opinion, there is no ambiguity in the act; it was the plain intention of the Legislature to prohibit the operation of slot machines of all kinds and character, whether they be denominated slot machines, marble boards, pin machines, or by what other name called. This was clearly a matter for the Legislature to' determine; and they have seen fit as part of the police power of the state to prohibit the maintenance and operation of machines similar in character to' the one involved herein.

It is not a matter for this court to say whether the Legislature acted Avisely or unwisely, so long as it confines its legislation to fields within the constitutional limitations placed upon it. If, as suggested by the petitioners, the act in question as construed by the court in Ex parte Davis, supra, and as we are construing it here, is too- harsh and severe, this is a matter to be submitted to the Legislature for their consideration and correction if they deem it necessary. This court cannot legislate; it is only for us to determine whether the Legislature exceeded the authority it has under the police power in the protection of the public welfare or whether its acts are repugnant to some constitutional provision.

There is no error in the record. The machine in question clearly comes within the terms of House Bill No. 125, supra, and the operation of said machine being contrary to the provisions of said act, the. lower court clearly ha.d no alternative than to find the defendant guilty.

The judgment is accordingly affirmed.

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


author: BAREFOOT, P. J.

text:
    BEULAH WARE v. STATE.
    No. A-9704.
    Feb. 12, 1941.
    (110 P. 2d 617.)
    Wm. H. Lewis, of Oklahoma City, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Walter Marlin, Asst. Co. Atty., of Oklahoma City, for the State.
   BAREFOOT, P. J.

Defendant, Beulah Ware, was charged with the crime of murder in Oklahoma county on the 9th day of May, 1938; was tried, convicted of manslaughter in the first degree and sentenced to serve a term, of 18 years in the penitentiary, and has appealed.

This charge arose from the killing of Elsie Taylor, a negro woman, by the defendant, Beulah Ware, in Oklahoma City, Oklahoma county, on the 9th day of May, 1938, by shooting her with a pistol.

The first specification of error is that the court erred in admitting incompetent, irrelevant, immaterial, and prejudicial testimony over the objection and exception of defendant.

It is necessary to give a short statement of the facts as revealed by the record. The deceased, Elsie Taylor, in company with Steve Johnson, Cicero Gilliland, and Lettie Mae Fuller, on the night of May 8, 1938, were together and visited different beer parlors and restaurants in the colored section of Oklahoma City. They were drinking both beer and whisky, and about 1 a. m. they were all pretty drunk when they came to the “H & iS Smoker”, a restaurant, and were eating and drinking when the defendant, Beulah Ware, came inside the door and called for Steve Johnson and said to him twice, “Come on. Let’s go.” He was sitting at the counter beside the deceased Elsie Taylor, who was eating. He immediately got up and left with defendant, Beulah Ware. He roomed at her home and has since married the defendant. She had given him some money during the early part of the evening, and she testified it was to get this money that caused her to go to the restaurant.

Just after they had left the restaurant and were going across the street, the other three parties also left and were going up the street on the opposite side. When they reached Stiles avenue they started north and had gone only a short distance when they met the defendant and Steve Johnson.- There is a slight conflict in the evidence as to what happened at this time. Cicero- Gilliland testified that the first he saw was that the defendant, Beulah Ware, kicked the deceased Elsie Taylor and that she then hit the defendant with her fist, and the defendant, Beulah Ware, shot Elsie Taylor. She took the pistol from a purse which she was carrying, after opening the zipper. Immediately after the shooting, both parties ran north to an alley, but the deceased Elsie Taylor turned and came back and fell, being caught by a man by the name of R. A. Jones, who was present. She had been shot through the right breast and the bullet passed through her body coming out at the back. She was taken to- the hospital and soon died as a result of the gunshot wound.

The defendant ran down the alley and caught a cab and went to- Nichols Hills, where a friend lived, and the neott morning surrendered to the officers, and this charge was filed. Other witnesses testified for the state. They were some distance from the scene of the killing. The defendant and Steve Johnson testified that the deceased Elsie Taylor first struck the defendant some two- or three times before the defendant fired the shot that killed the deceased. The evidence of these witnesses was not such that would have justified the defendant in taking the life of the deceased under the law, and even under her own testimony, she would be guilty of manslaughter in the first degree. Hodges v. State, 65 Okla. Cr. 277, 85 P. 2d 443; Tyner v. United States, 2 Okla. Cr. 689, 103 P. 1057. There was no evidence to show that defendant was in danger of death, or serious bodily injury at the hands of deceased. The shooting was clearly unjustified.

In the case of Fixico v. State, 39 Okla. Cr. 95, 263 P. 171, 172, the true rule is stated:

“Assuming that the deceased was the aggressor, the rule is well settled that the bare belief of one assaulted that he is about to- suffer death or great personal injury will not, in itself, justify him in taking the life of his adversary. There must exist reasonable ground for such belief at the time of the killing, and the existence of such ground is a question of fact for the jury. Hunt v. State, 29 Okla. Cr. 255, 233 P. 506.
“The right to take another’s- life in self-defense is not to- be tested by the honesty or good faith of the defendant’s belief in the necessity of the killing, but by the fact whether he had reasonable grounds for such belief. Lee v. State, 33 Okla. Cr. 370, 244 P. 455.” See, also, Armstrong v. State, 68 Okla. Cr, 105, 95 P. 2d 919.

It it contended that the court erred in the admission of evidence of E. W. Brown, assistant county attorney of Oklahoma county. He testified with reference to a conversation he had with the defendant following the preliminary hearing. While testifying to a detailed conversation with defendant and to which no objection was made, he stated: “I asked her what she did with the gun and what possessed her to shoot the girl. She said it was God’s will, and she just shot her.” Counsel objected to this statement, and the court sustained the objection and instructed the jury not to- consider the testimony. We have carefully examined all the evidence given by this witness, and are of the opinion that it was not such that could in any way prejudice the defendant. After defendant had killed deceased, she made application to Assistant County Attorney Brown toi have Jimmy Daniels, her former husband, put under a peace bond. She testified with reference to this matter and Mr. Brown was called in rebuttal to testify to the statement she made. During his testimony he stated, “It was so obvious from her statement that it would be laying a predicate for the defense she has attempted here.” It is claimed that this statement was argumentative and a conclusion of the witness and not admissible. We do not think this statement was admissible, but the court sustained counsel’s objection to the same and then instructed the jury not to consider such testimony. Under all the circumstances, it does not occur to us that this was such error as to justify reversal of this case.

Defendant next complains of the giving and refusing tO' give certain instructions. The court charged the jury as to the alleged good reputation of the defendant. Evidence having been offered to that effect, instruction No. 19 was given by the court, which was as follows :

“Certain evidence has been introduced bearing upon the question as to- the general reputation of the defendant prior to the alleged offense as a peaceable, law-abiding citizen. Such evidence is proper for your consideration in connection with all the other evidence, facts and circumstances disclosed upon the trial, and given such weight, as in your judgment, it is entitled to in determining the question as to the defendant’s guilt of the ciime here charged' against her.”

The defendant’s requested instruction No'. 2 which was refused, and to which exception was taken, was as follows:

“Certain evidence has been introduced here tending to establish the good character and reputation of this defendant. It is your duty to consider this evidence, and if, upon a consideration of that evidence alone or that evidence taken in connection with the other evidence in the case you entertain a reasonable doubt of the defendant’s guilt, it is your duty to give her the benefit of that doubt and acquit her; but, notwithstanding this evidence as to her good reputation and character, if you are, nevertheless, satisfied by the evidence beyond a reasonable doubt, that the defendant is guilty as charged, then this evidence as to her good reputation and character constitutes no justification or defense.”

While instruction No>. 19 may not be as full and comprehensive as is sometimes given, no case is cited in which such an instruction has been disapproved. The requested instruction does not state the law. It is not the duty of the jury to acquit the defendant if, upon the consideration of the testimony as to the defendant’s good character and reputation “alone,” the jury has a reasonable doubt of the defendant’s guilt. This evidence should be taken into consideration with all the evidence offered in the trial of the case, and if, after a consideration of all the evidence, together with that of the good reputation and character of the defendant, the jury has a reasonable doubt of the guilt of the defendant, it is their duty to acquit him. This evidence should not be considered “alone.” This question has been discussed in the case of Wilson v. State, 3 Okla. Cr. 714, 109 P. 289.

It is next contended that the punishment assessed in this case of IS years in the penitentiary constituted cruel and unusual punishment under article 2, sec. 9, Oklahoma Constitution, Okla. St. Ann. We do not think the punishment assessed is cruel and unusual punishment as contemplated by the terms of the Constitution above cited. Williams v. State, 56 Okla. Cr. 245, 37 P. 2d 658; Ellis v. State, 54 Okla. Cr. 295, 19 P. 2d 972; Jones v. Territory, 4 Okla. 45, 43 P. 1072; Ex parte Meyers, 55 Okla. Cr. 75, 24 P. 2d 1011; Hendrix v. United States, 2 Okla. Cr. 240, 101 P. 125.

The number of years given the defendant might appeal to' this court, if the record in this case did not reveal that upon two previous occasions this defendant has had occasion to use a pistol in shooting at other parties. Upon one occasion in Oklahoma City she armed herself with a gun and went in search of her husband who was working, and fired at him as he was running down the streets of Oklahoma City. The bullet struck an innocent bystander. She was given only a six months’ sentence in the county jail in that case because the injured person was not badly hurt. She also, testified to- shooting a negro1 woman in the State of Arkansas prior to' coming to Oklahoma City. Under these circumstances we do not consider that the judgment and sentence in this case should be modified by this court.

It is next contended that the court erred in permitting, the examination of Sylvester McAfee, who testified for the state, for the reason that he remained in the courtroom after the rule was asked and the court had instructed the witnesses to' remain out of the courtroom. The record is wholly silent on this matter, and the question is first raised on the motion for new trial; and affidavit of another party is filed to support the motion. A violation of a rule of ¡court instructing witnesses to remain out of the. courtroom may, in the discretion of the trial court, be the basis of the court’s refusal to allow such witnesses to testify, or it may be used in cross-examination of the witness to affect his credibility, and the weight to be given to his testimony. Price v. United States, 1 Okla. Cr. 291, 97 P. 1056; Miller v. Territory, 15 Okla. Cr. 422, 85 P. 239; Kilgore v. State, 10 Okla. Cr. 446, 137 P. 364; McCarty v. State, 21 Okla. Cr. 365, 207 P. 1069. It does not occur to us that this is such as to- cause a reversal of the case and the facts here presented do not justify it.

Finding no error in the trial of this case, it is ordered that the judgment and sentence of the district court of Oklahoma county be affirmed, and it is so ordered.

JONES and DOYLE, JJ., concur.


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    J. C. EVANS v. STATE.
    No. A-9768.
    Feb. 12, 1941.
    (110 P. 2d 621.)

      Lewis T. Martin, and Robert H. Allen, both of Durant, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, J. C. Evans, was charged by information in the county court of McCurtain county, on November 23, 1938, with the unlawful transportation of whisky; was tried, convicted, and sentenced to' serve a term of 90 days in the county jail and to pay a fine of $250, from which judgment and sentence he appeals to this court.

The only assignment of error made by the defendant is that the evidence of the state was inadmissible because it was procured by an unlawful search and seizure.

Two deputy sheriffs, Roundtree and Butler, testified that they had been informed by an officer from Texas that he had seen the defendant getting a carload of whisky from a whisky house in Arkansas, and had followed the car to the state line. The deputy sheriffs commenced a watch of the streets of Idabel for the car to appear. The officers testified that the defendant had slowed down to' 10 or 12 miles per hour as he was going through the streets of Ida-bel, and that they drove up beside him and jumped on the runningboard of the defendant’s car.

The state admits that they had no warrant for the arrest of the defendant, had no' search warrant to search his automobile, and that no offense was being committed by the defendant in the presence of the officers which would justify his arrest and the search of his automobile.

The state evidently relies upon a certain statement alleged to have been made by the defendant at the time his car was stopped by the officers as constituting a waiver of his constitutional right to immunity against an unlawful search of his person or effects.

In this regard, Officer Roundtree testified:

“We pulled up out on the other side and I was on the running board of our car and I stepped off on to his, and I said, ‘We got information you were coming through with a load of whisky;’ he didn’t make any remarks that I remember of at the time, and I went around, and I think Mr. Butler got out and went behind the car, and he said, ‘Well, looks like you got me,’ or ‘caught me,’ or something like that, and I got in and I said, ‘Let’s drive back behind the courthouse,’ and he said, ‘Which way?’ and I told him, so- when we got around here I kinder stayed with him and kept him in charge and the other boys took charge of the whisky.”

Officer Butler testified that he did not hear the defendant say anything, as he was on the opposite side of the car from Roundtree.

The defendant took the witness stand and denied making any statement- to Roundtree such as was quoted by Roundtree as having been made by the defendant.

After the defendant drove his automobile to the courthouse as directed by the officers, a .search was made by unlocking the turtleback of the defendant’s car, where there was found, concealed, approximately 20 cases of whisky.

We have held that if a suspected person informs an officer that he is engaged in the commission of a misdemeanor, although the visual, auditory, or olfactory proof is not evident, the officer is justified in acting on the information of the person suspected, although he cannot have the right to- act on the information of any other person. The information by the person amounts to an admission or to a waiver of knowledge derived through the ordinary senses. Miles v. State, 31 Okla. Cr. 4, 236 P. 907; McAfee v. State, 65 Okla. Cr. 65, 82 P. 2d 1006.

In the case of Hoppes v. State, 70 Okla. Cr. 179, 105 P. 2d 433, 438, it is stated:

“In 6 C. J. S., Arrest, § 5, it is said:
“ ‘As a rule two elements must concur to- constitute an offense in the presence of the officer: (1) The facts or elements constituting the offense must he revealed in the presence of the officer. (2) The officer must perceive and have knowledge that such offense is being committed. As here used, even though an offense is actually being committed in the officer’s immediate vicinity, the offense is not in his “presence,” so as to justify an arrest without a warrant, if he does not know of its commission. Accordingly, where the officer does not know of the commission of an offense in his immediate vicinity until after a search, the offense is not in his “presence” so as to justify an arrest without a warrant. * * *
“ ‘An offense is committed in the presence or view of an officer, within the meaning of the rule authorizing an arrest without a warrant when the officer receives knowledge of the commission of an offense in his presence through any of his senses, or by inferences properly to be drawn from the testimony of the senses, and he is not limited to information derived through the sense of sight. Accordingly, where through the sense of sight, or smell, or hearing, the officer receives knowledge that an offense is being committed in his presence he may arrest the offender without a warrant. * * *
“ ‘An arrest is also< justified where the officer, by virtue of a verbal admission made by the offender before his arrest, knows that an offense is being committed in his presence, as for example, where the offender admits to' the officer that he is violating the laws relating to the possession, the manufacture, or the transportation of intoxicating liquor. * * *
“ ‘Where an officer, after lawfully stopping or restraining a person, becomes aware that an offense is being committed, or is about to be committed in his presence, he may lawfully arrest the offender without a warrant; but where the officer becomes aware of the facts constituting the offense after making an unlawful arrest, the arrest cannot be justified as being for an offense committed in his presence.’ ”

The defendant, under the testimony of Eoundtree, made no statement of any kind until after the officers had forced him to stop his automobile, and they had walked around behind the defendant’s car. The defendant was then under actual physical restraint by the officers. One of the officers did not hear the defendant make any statement; and the testimony of the other officer that the defendant said, “Well, looks like you got me,” or “caught me,” or “something like that,” certainly would not be sufficient to constitute a waiver of the defendant’s immunity to an unreasonable search.

Assuming that the defendant made this statement, the same cannot be construed as being an implied invitation to the officers to search the car. It is more of an ■ announcement by the defendant that he considered himself under arrest by the officer, and that he was submitting in consequence thereof.

In the case of Buddie Barnett v. State, 71 Okla. Cr. 118, 109 P. 2d 243, we stated that where the proof shows that policemen, being suspicious of the defendant violating the prohibitory law, arrest the defendant, take him to the police station, search him, unlock the turtleback of his automobile, and find whisky therein, all of said activities on the part of the officers being done without a warrant, the search is unlawful, and the evidence obtained thereby is inadmissible.

In Gower v. State, 34 Okla. Cr. 149, 245 P. 67, the court set out:

“The fact that defendant was conveying liquor, not being discoverable without a search, the offense of conveying was not committed in the presence of the officers, and they bad no authority to. arrest him therefor without a warrant, and the search of his person and of his car was unlawful, because made without a search warrant and not as an incident to a lawful arrest.” Sowards v. State, 37 Okla. Cr. 431, 259 P. 157; Whitford v. State, 35 Okla. Cr. 22, 247 P. 424; Leary v. State, 61 Okla, Cr. 298, 67 P. 972; Wells v. State, 37 Okla. Cr. 305, 258 P. 285.

In this case the officers’ suspicions were well founded, but that will not justify the unlawful search or purge it of its illegality. Evans v. State, 34 Okla. Cr. 173, 245 P. 912.

It is established law of this state that officers have no right to search an automobile without a warrant merely because they suspect that liquor is stored therein. This court has never held nor inferred in any decision that an automobile is such an agency that officers may search such vehicle at any time or place merely because they have suspicion that liquor is stored therein; and a search is illegal unless the officer procures a search warrant for said vehicle or an offense is being committed in the presence of the officer that would justify the arrest of the person in the possession of the automobile.

As was stated by Chief Justice Taft in the case of Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 285, 288, 69 L. Ed. 543, 39 A. L. R. 790:

“It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor, and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search.”

Upon a consideration of the entire record, we are convinced that the arrest of the defendant was without authority of law. The search of the automobile not being incidental to lawful arrest, tbe evidence obtained thereby was inadmissible.

This case is accordingly reversed, and the defendant ordered discharged.

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


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    Ex parte JOHN and LeROY CLEMENT (two cases).
    Nos. A-10006, 10007.
    Feb. 12, 1941.
    (110 P. 2d 920.)
    John Clement, in pro. per.
   PER CURIAM.

The petitioners, John Clement and; LeRoy Clement, now confined in the State Penitentiary, mailed to the clerk of this court their verified petitions, each alleging that he is unlawfully imprisoned and restrained of his liberty by the warden of the State Penitentiary at McAlester.

It appears that the petitions were filed on February 6,1941.

The Attorney General has filed a demurrer to each petition and for grounds therefor alleges that said petition fails to state facts sufficient to constitute a cause of action in favor of said petitioner and against respondent.

It is merely alleged in each petition:

“That the petitioner was sentenced in open district court without an attorney to defend him, and the court in which he was being held did refuse to appoint an attorney to defend him.”

Each petition is silent as to the court wherein petitioner was tried, or of the crime of which he was convicted.

Where the facts stated in a petition for a writ of habeas corpus fail to set forth the alleged cause of, and authority for, such detention and does not state facts which show that the writ demanded ought to issue, the demurrer thereto' will be sustained and the writ denied.

For the reasons stated, the demurrers to said petitions are sustained and the writs denied.


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    J. P. STONE v. STATE.
    No. A-9760.
    Feb. 19, 1941.
    (110 P. 2d 920.)
    James W. Flinn, of Oklahoma City, for plaintiff in error.
    •Mac Q. Williamson, Atty. Gen., for defendant in error.
   PER CURIAM.

The defendant, J. P. Stone, was by information charged on May 7, 1938, in the district court of Oklahoma county, Okla., with the offense of manslaughter in the first degree, was tried, convicted of manslaughter in the second degree, sentenced to serve two years in the State Penitentiary, and has appealed to this court.

Judgment and sentence was rendered on April 18, 1939; and on the same day a motion for a new trial was filed, by the court overruled, and the defendant gave notice in open court of his intention to appeal; whereupon, he was allowed 60 days to make and serve a case-made. On June 17, 1939, the defendant was given an extension of time until the 17th of July to prepare and serve a case-made. On October 18’, 1939, without any further extension of time having been given to prepare and serve a case-made, a hearing was had upon defendant’s application for a case-made at the expense of Oklahoma county. Said application was denied; and on the same date, the last day upon which the defendant could have appealed to this court within the time allowed by statute, sec. 3192, O. S. 1931, 22 Okla. St. Ann. § 1054, a transcript of the proceedings was filed with the Clerk of the Criminal Court of Appeals.

There is no application before this court for a case-made to be prepared at the expense of Oklahoma county.

No briefs have been filed and no oral argument has been made herein.

Where an appeal is made by transcript and no briefs are filed nor oral argument made, this court will examine the information, instructions excepted to, and the judgment, and will affirm the case if no error is apparent. Huffman v. State, 28 Okla. Cr. 280, 230 P. 296; Grider v. State, 56 Okla. Cr. 87, 34 P. 2d 607.

Finding no apparent error, this case is accordingly affirmed.


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    FLORENCE GILL v. STATE.
    No. A-9748.
    Feb. 19, 1941.
    (110 P. 2d 926.)

      J. F. Thomas, of Lawton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Florence Gill, was bv information charged in the county court of Comanche county, Okla., on April 8, 1939, with unlawful possession of intoxicating liquor, waived a jury, was tried, convicted, and sentenced to serve a term of 30 days in the county jail and to pay a fine of $50 and costs, and has appealed to this court.

The defendant contends that the search warrant was insufficient because the building searched, in which she made her home, had no street number and that there were other occupants of the building besides herself.

The search warrant states that “on the 7th day of April, 1939, John Doe, whose more full, true and correct name is unknown, in a certain building and on a certain premises described as follows, to wit: A said two story brick building located 413 1/2 C St. City of Lawton, Okla., Comanche Co.,' in said County and State, did then and there unlawfully have in his possession * * * Beer, gin, wine and whisky * *

The testimony of the state showed that four officers went to the premises of the defendant described in the search warrant, served the warrant on the defendant, searched her apartment, and found 112 pints of whisky and gin. No one was at the place at the time of the search except the defendant and a boy who stated that he delivered for the defendant.

The defendant testified on the motion to suppress the evidence, but did not testify in the trial of the case.

The defendant was the only witness in support of her motion to suppress the evidence. Her testimony is- short, and we herewith quote the same in its entirety:

“Q. You are the defendant in this case? A. Yes. Q. You were occupying the upper floor of the building described in the information as the building at 41B ‘C’ Avenue? A. Yes. Q. On the 7th day of April, 1939? A. Yes. Q. How many rooms are upstairs in that building? A. Six. Q. Was anybody else occupying, any rooms in that building? A. My niece. Q. Is she married? A. Yes. Q. Was her husband occupying the room, also? A. Yes.”

Cross-examination: part of your family? A. They had this back bedroom. Q. There in your house? A. Yes.”

“Q. You occupied the whole upstairs? A. Yes. Q. You didn’t live doAvnstairs ? A. No. Q. The upstairs is described as 413% ‘C’? A. Yes. Q. And downstairs as 413 'O’? A. Yes. Q. You say there is six rooms upstairs? A. Yes. Q. Your niece was living with you? A. Yes. Q. She and her husband were living there? A. Yes. Q. You pay the rent on the whole upstairs? A. Yes. Q. You pay the light and gas bill? A. Yes. Q1. All water bills? A. Yes. Q. They were just staying there with you? A. Yes. Q. They rented then from you? A. She worked for me for her room. Q. She and her husband just lived with you asi

The defendant admitted that 413% C street is the correct street address of the upstairs portion of the buildings, the part searched; 413 C street is the address of the downstairs portion. That there is no legend on the outside of the building, which shows its number, is the contention of the defendant. This court stated in Key v. State, 69 Okla. Cr. 71, 100 P. 2d 291, that the purpose of article 2, section 30, of our Constitution, Okla. St. Ann., is not to make it impossible for officers of the law to make searches of places where they have good reason to believe that liquor is being kept in violation of the law. The address named in the warrant is the correct address. If any other address had been given, it would have been the wrong address. To sustain the defendant’s contention would prevent any search from ever being made on these premises.

In the cases of Myer v. State, 34 Okla. Cr. 421, 246 P. 1105, and Linthicum v. State, 66 Okla, Cr. 327, 92 P. 2d 381, this court held that where the place to be searched, is described in the search warrant by a single street number without naming the owner or any of the occupants, and it is shown that two or more families reside in separate apartments, a search warrant directing the officers to search the premises designated by such single number is void because in legal contemplation it describes more than one “place”.

In Jackson v. State, 69 Okla. Cr. 48, 99 P. 2d 908, 909, this court further held that a search warrant which stated that in a certain county of this state, on a given date, “John Doe, whose full and more correct name is to' af-fiant unknown, in a one story frame building,” located at a single street number, in a certain town, had possession of liquor, etc., was sufficiently descriptive and that the ■motion to suppress the evidence was properly overruled, even though it was shown that a man, not a member of the defendant’s family, rented a room in the defendant’s home at the address given in the search warrant.

From the above cases, we conclude that a John Doe search warrant, designating the place to be searched by a single street address, describes more than one “place” and is insufficient where two or more separate family establishments are maintained at the same address; only one “place” is described and the warrant is sufficient where, at a single street address, the occupants reside as one family, even though rooms are rented and the tenants of such rooms are not, under the circumstances, shown to be keeping separate establishments within the home of said occupants.

The only other persons contended to' have lived at the premises searched in this case were the niece of defendant, who worked for the defendant for her room, and her husband. Under the testimony of the defendant, as above set forth, we conclude that these were not two separate family establishments at this address, as contemplated by our law, and that the court did not err in overruling the motion to suppress the evidence.

In her defense, the defendant offered the testimony of only one witness, who was her father and who lived in another part of town.

The defendant further contends that the court erred in sustaining objections to the testimony of this witness, S. A. Newsom, and refusing to permit said witness to testify that other persons resided at the premises and in the building, upstairs and down, where and at the time said liquor was alleged to have been found and when said search was made, specifically, that the liquor was found in a room occupied by the niece of the defendant, a certain Dorothy Rogers, and her husband.

There is no showing that the witness was present at the time of the search.

This case was tried to the court without a jury. The trial court evidently gave the defendant the benefit of all these circumstances, as he only assessed the minimum punishment. The proof of guilt was conclusive.

This court held in Davis v. State, 30 Okla. Cr. 61, 234 P. 787:

“Where the relevancy and probative force of proffered testimony is vague, remote, and of doubtful value, its exclusion is not error.”

The court did not err in excluding this testimony.

The case is accordingly affirmed.

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


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    FRANK STOUT v. STATE.
    No. A-9927.
    Feb. 19, 1941.
    (110 P. 2d. 925.)
    Harrod & Harrod, of Oklahoma City, and Frank Seay, of Seminole, for defendant.
    Mac Q. Williamson, Atty. Gen., and Lewis R. Morris, Co: Atty., of Oklahoma City, for the State.
   PER CURIAM.

The defendant Frank Stout was on the 15th day of April, 1940, convicted in the court of common pleas of Oklahoma county of the crime of illegal possession of intoxicating liquor, and his punishment assessed at a fine of $50 and 30 days’ imprisonment in the county jail, from which judgment and sentence he appealed on the 30th day of August, 1940.

Since this appeal was taken, defendant, Frank Stout, departed this life on the 27th day of January, 1941, as shown by affidavit filed in this court on the 19th day of February, 1941.

In a criminal prosecution, the purpose of proceedings being to punish the accused, the action must necessarily abate upon his death, and where it is made to appear that defendant has died pending the determination of the appeal, the cause will be abated.

It is therefore considered, ordered, adjudged, and decreed that the proceedings in the above entitled cause do abate, and the cause is remanded to' the trial court to enter its appropriate order to that effect.


text:
    JUANITA DEAN v. STATE.
    No. A-9747.
    Feb. 19, 1941.
    (110 P. 2d 921.)

      Wayne E. Wheeling, of Oklahoma City, for defendant.
    Mac Q. Williamson, Atty. Gen., and Phil E. Daugherty, Asst. Co. Atty., of Oklahoma City, for the State.
   BAREFOOT, P. J.

Defendant Juanita Dean was charged in the court of common pleas of Oklahoma county with the unlawful possession of intoxicating liquor, was tided before the court and found guilty. Her punishment was assessed at a fine of §50 and imprisonment in the county jail for 30 days, and she has appealed. This charge was filed by reason of a search of defendant’s home at 712 West Grand, Oklahoma City, Oklahoma county, on the 25th day of January, 1939, by three deputy sheriffs of Oklahoma county. As a result of this search, nine pints and one quart of tax-paid liquor were found in different parts of the defendant’s home. Part of it was found in clothes closets and part behind the icebox and other portions of the house.

The evidence on the part of the state revealed that the search was made in the nighttime; that the officers had a search warrant which was known as a “John Doe search warrant.” It was not introduced in evidence, either by the state or the defendant, and no question is raised as to its sufficiency. However, we again reiterate that it is the best practice for officers to- give the name of the party whose premises are to be searched where the name of such party is known, and a copy of the search warrant should be introduced in evidence so- that the court may determine whether the law has been complied with in order to constitute a valid search warrant. The issuance of what is known as a “John Doe search warrant” for the purpose of naming whoever may be found at the premises is bad practice, and should not be followed by officers in the future.

This case was tried before the court, and the presumption is that the court examined the affidavit and search warrant and found them sufficient, in the absence of proof to the contrary. No question is here properly raised as to the sufficiency or validity of the search warrant.

The evidence revealed the defendant was not present at her home at the time the search was made. Her children were there. She was not living with her husband. A young girl about 16 years of age had been employed by her to stay with her children during her absence for a few days in Anadarko', according to her testimony. Some young man was present at the time the search was made who was calling upon the young lady. Defendant did not return, according to her testimony, to Oklahoma City until the morning after the search was made, and upon hearing of the search she -went to the courthouse and made bond for her appearance.

It is insisted that, by reason of the fact that defendant was not present at the time of the search, the evidence is insufficient to find her guilty beyond a reasonable doubt. We do not think this contention can be sustained. It doesi not seem probable that a young girl 16 years of age who was employed to stay with the children of defendant while she had gone to Anadarko for a few days would have brought whisky to her premises and begun the sale thereof. The fact that the whisky was found concealed in different clothes closets and behind the icebox, and that the officers testified that the premises had a bad reputation as a place where people congregated for the purpose of buying intoxicating liquor, and that the place had been searched 15 or 20 times by the officers, and that while the officers Avere there parties would call over the telephone and ask for the delivery of whisky, that the defendant admitted while on the witness stand she had been convicted on two1 previous occasions of violations of the prohibitory liquor laws, were sufficient facts for the court to. find her guilty in the instant case.

We have carefully examined the cases relied upon by defendant to sustain her contention. They are Owens v. State, 11 Okla. Cr. 113, 143 P. 204; Taggart v. State, 58 Okla. Cr. 183, 50 P. 2d 1134, 52 P. 2d 102; Eastridge v. State, 57 Okla. Cr. 323, 48 P. 2d 869. A careful reading of these cases reveals that the facts are very different from the facts in the instant case. It is not necessary to quote from them. Defendant cites the case of Strong v. State, 63 Okla. Cr. 184, 73 P. 2d 876. This case does not substantiate the contention of the defendant, but the decision in that case is authority for upholding the decision in this case. It is contended in the brief of the defendant that proof of the reputation of defendant’s place is not admissible because she was not charged with maintaining a nuisance. She is charged with the unlaAvful possession of intoxicating liquor. Evidence of the reputation of one’s place may be proved in an unlawful possession case the same as in a nuisance case. It is true that this court has often held that evidence of the general reputation of one’s home as being a place where intoxicating liquors are sold is admissible only upon the laying of a proper predicate showing that his home was a place of public resort.

In the case of Strong v. State, 63 Okla. Cr. 184, 73 P. 2d 876, 878, Judge Doyle, in discussing this question, after reviewing the facts in that case, which were somewhat similar to the facts as shown by the record here, said:

“It follows from tbe foregoing review that the objection to' the sufficiency of the evidence to show that the defendant’s home was a place of public resort is not tenable.
“In Lumpkins v. State, supra [36 Okla. Cr. 256, 253 P. 909], we said:
“ ‘This court has repeatedly held that evidence of the general reputation of defendant’s home as being a place where intoxicating liquors are sold is admissible only upon the laying of the proper predicate, showing that his home was a place of general resort. Lotta v. State, 30 Okla. Cr. 105, 235 P. 245; Yakum v. State, 30 Okla. Cr. 184, 235 P. 253; Mockabee v. State, 28 Okla. Cr. 167, 229 P. 1094; Welch v. State, 35 Okla. Cr. 2, 246 P. 1113.
“We have also. repeatedly held that, in a prosecution for possession of intoxicating liquors, with intent to sell, the reputation of the defendant’s home or premises is generally inadmissible, unless the place be one resorted to by the public; such evidence is then admissible on the question of intent. Ward v. State, 15 Okla. Cr. 150, 175 P. 557; Dunbar v. State, 15 Okla. Cr. 513, 178 P. 699; Caffee v. State, 11 Okla. Cr. 263, 145 P. 499; Felas v. State, 16 Okla. Cr. 631, 185 P. 839; Friedman v. State, 19 Okla. Cr. 124, 198 P. 350.”

But when the predicate is properly laid, then in unlawful possession cases it becomes admissible on the question of intent. Such was the holding in the Strong Case, which was affirmed. So, in this case, we think the evidence, as shown by the record, was sufficient to permit the introduction of this evidence, and that the court did not err in permitting the same to be introduced.

Finding no' error in the record, the judgment and sentence of the court of common pleas of Oklahoma county is affirmed.

JONES and DOYLE, JJ., concur.


text:
    WILLIE JACKSON v. STATE.
    No. A-9765.
    Feb. 19, 1941.
    (110 P. 2d 929.)
    Glen O. Morris, of Oklahoma City, for. plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty., for defendant in error.
   JONES, J.

The defendant, Willie Jackson, with one Jack Mann, ivas jointly charged in the district court of Oklahoma county with the crime of conducting a gambling game, was tried, convicted, his punishment left to the court, who thereupon sentenced him to serve 18 months in the penitentiary, and he has appealed to this court.

The defendant makes two assignments of error, to wit:

(1) That the conrt erred in overruling his demurrer to the indictment.

(2) The court erred in overruling his demurrer to the evidence of the state at the close of the state’s case, and in refusing to sustain his motion for an instructed verdict.

The first assignment is without merit. The defendant did not demur to' the indictment when he was arraigned ; but the minutes of the court show that he waived reading of the indictment and entered a plea of not guilty. No plea in writing or demurrer was ever filed; but the record discloses that at the beginning of the trial the defendant’s attorney, without asking leave to withdraw his plea of not guilty for the purpose of interposing a demurrer and without such permission being granted, dictated a demurrer into the record on the sole ground that the information charged two offenses. The plea of not guilty entered by the defendant waived the question of the duplicity of charges in the indictment. Hagerty v. State, 22 Okla. Cr. 136, 210 P. 300; Childs v. State, 4 Okla. Cr. 474, 113 P. 545, 33 L. R. A., N. S., 563.

The plea of not guilty entered by defendant waived all defects, except that the court had no jurisdiction of the subject matter or that the indictment stated no public offense, which matter may be raised at the trial or in arrest of judgment. § 2956, O. S. 1931, 22 Okla. St. Ann. § 512.

Furthermore, we have examined the indictment and find it is not duplicitous, but clearly sets forth the offense of conducting a gambling game under the provisions of § 2190, O. S. 1931, 21 Okla. St. Ann. § 941.

The state introduced evidence of three deputy sheriffs who made a raid on a building in Oklahoma City on June 4, 1938. About 20 or 30 negroes were found congregated around a long table in the rear of the building*. Among the negroes there was the defendant Willie Jackson. Most of the testimony of the state was directed at the codefend-ant, Jack Mann, who the state contended was the principal person in charge of the operations. Very little evidence ivas introduced against the defendant Willie Jackson. After the court overruled the demurrer of the defendant to the state’s evidence, the defendant Jackson testified that he had rented the building from one L. E. Williams and was selling hamburgers, soda pop, and running a domino parlor there, but no gambling'.

The defendant Mann did not testify.

If defendant Jackson had not .testified that he had rented the place of business where the negroes were congregated, it is evident that he would not have been convicted. However, in determining whether1 or not the court erred in overruling the demurrer to the state’s evidence, only the evidence introduced by the state in its case in chief may be considered. The state by its own proof must make a prima facie case. Thomas v. State, 70 Okla. Cr. 404, 106 P. 2d 836.

In determining* this question, we herewith quote all of the evidence of the state which in any way connects the defendant Jackson.

The witness Olint Johnson deputy sheriff, after testifying to going, to the particular building with several other deputies and finding 20 or 30 negroes in the rear of the place around the table, testified as follows:

“Q. All right. Were they all standing when you came in? A. Willie Jackson was sitting down, I believe. Q. That is this defendant here? A. Yes. Q. Where was he sitting with reference to the table? A. With reference to the- north side of the table he was about in the middle. Q. And you say the others were standing about one step back from the table? A. Yes, sir. * * * Q. Do you know what deputy brought Willie Jackson in? A. No, I don’t.”

Don Stone, deputy sheriff, testified that it was prearranged that he should take Jack Mann, the codefendant, into custody, while the other deputy sheriffs raided the game; that Jack Mann was a.t, the front of the building, and he took him into custody; and Mann stated that he was just trying to make a living running that game. Stone testified as to the following as concerns the defendant Willie Jackson:

“Q. Did you see Willie Jackson there? A. Yes. Q. Where was Willie? A. I first saw him in the back room. Q. Was he sitting down or standing up? A. He was standing up then. They were all standing up at that time. Q. They were all standing up when you went back there? A. Yes.'”

Bob Turner testified that he was one of the deputy sheriffs who made the raid at 305 N. Stiles on June 4, 1938; that he saw a bunch of negroes in the back end of a building around a long table, and a big negro trying to make a “4” with some dice; that there was $4.10 on the table. With reference to the defendant Jackson, he testified:

“Q. Did you preserve the dice and money? A. Yes. Q. Do you have that Avith you now? A. I have it here. The money is in my pocket. Q. Where was this chalk? A. Willie Jackson had it. Q. Those are the dice you got there? A. Yes. * * * Q. Were there a number of colored people around there? A. I would say 20 or 30 were standing around the room gambling. Q. You brought them, most of them, in did you? A. Yes, six*. Q. Do you know who brought defendant Willie Jackson in? A. No, I don’t remember. Q. But you do know he got to the jail? A. I hauled some of them in my car and we just loaded them up.”

The rest of this witness’ testimony was directed to the defendant Jack Mann in an attempt to prove that he was in charge of the place. This was all of the evidence on behalf of the state that in any way connected the defendant Jackson. There is no proof which, by any reasonable inference, could sustain this charge.

The court erred in not sustaining the demurrer of the defendant to the state’s evidence and advising the jury to return a verdict of not guilty as requested by defendant at the close of the state’s case.

The judgment of the district court of Oklahoma county is reversed, and the defendant ordered discharged.

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


text:
    WYATT HAGAN et al. v. STATE.
    No. A-9901.
    Feb. 19, 1941.
    (110 P. 2d 928.)
    C. B. Leedy, of Arnett, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and O. E. Enfield, Co. Atty., of Arnett, for the ,Sta.te.
   PER CURIAM.

Defendants Wyatt Hagan and Esther Bender were on the 9th day of April, 1940, convicted in the district court of Ellis county of the crime of open and notorious adultery, and their punishment was assessed at a fine of $500 for defendant Wyatt Hagan and a fine of $200 for defendant Esther Bender, from which judgment and sentence they appealed to this court on the 17th day of July, 1940.

Since this appeal was taken, defendant Wyatt Hagan departed this life on the 10th day of February, 1941, as shown by affidavit of death filed in this court on February 17, 1941.

In a criminal prosecution, the purpose of proceedings being to punish the accused, the action must necessarily abate upon his death, and where it is made to appear that a defendant has died pending the determination of his appeal, the cause will be abated as to such defendant.

It is therefore considered, ordered, adjudged, and decreed that the proceedings in the above-entitled cause do abate as to defendant Wyatt Hagan, and the trial court is directed to enter its appropriate order to' that effect.


text:
    Ex parte PAUL PENNINGTON.
    No. A-9982.
    Feb. 26, 1941.
    (110 P. 2d 923.)

      Streeter Speakman, of Sapulpa., for petitioner.
    Mac Q. Williamson, Atty. Gen., for respondent.
   JONES, J.

This is an original proceeding in habeas corpus in which the petitioner seeks his release from the State Reformatory at Granite.

The verified petition filed herein alleges in substance:

“That on the 15 th day of August, 1938, the petitioner stood charged by information in the District Court of Creek County with the offense of second degree burglary in case No. 3963. That the petitioner was seventeen years of age, without education and with no understanding of law.
“That on said date, the petitioner entered his plea of guilty to the said charge with the agreement and understanding that the judgment and sentence in said case should be suspended during his good behavior, all of which was accordingly done.
“That thereafter, on the 14th day of November, 1938, the petitioner was again charged by information in the District Court of Creek County with the offense of second degree forgery in case No. 3990.
“That at said time, the petitioner appeared before the district judge alone, without the aid and advice of counsel. That at said time the county attorney represented to him, which agreement was acquiesced in by the trial judge, that if the said petitioner would enter his plea of guilty to the charge of forgery in the second degree, a sentence of three and one-half years in the penitentiary would be assessed therefor; that the judgment suspending the sentence in the burglary case would be set aside and a sentence in said cause imposed of two years in the State Penitentiary, and that both said judgments would be so entered, worded, and executed that the sentences should and would run concurrently.
“That the petitioner relied upon said representation of the county attorney and the trial judge, did enter his plea of guilty in said cause No. 3990, and did receive a sentence of three and one-half years in the State Penitentiary therefor. That thereupon and on the same date, the district judge did make an order in cause No. 3963, revoking the suspended sentence and committing the defendant to' the Warden of the State Penitentiary to serve said judgment and sentence, and providing in the orders entered in each of said cases that the sentences imposed should run concurrently with each other.
“That the petitioner has completed serving three and one-half years in said penitentiary, but the warden of said institution is holding the petitioner to serve an additional two years, and is refusing to recognize the order of the court providing that the sentences run concurrently.
“That the petitioner alleges that the judgment and sentence issued against the petitioner in cause No: 3990 is void for the reason that the accused, without the aid and advice of counsel, was misinformed as to his constitutional and statutory rights by the county attorney and by the trial court before entering his plea to the information in said case, and prays that- he be discharged immediately from snch unlawful imprisonment.”

Upon the filing of this petition, the writ of habeas corpus was issued, and said matter was set for hearing for January 7, 1941. No response has been filed to' the petition; but at the hearing of said matter, the assistant county attorney of Creek county appeared before this court and stated to the court that the facts set forth in the petition and testified to by the petitioner in open court were true and correct, and that he, as assistant county attorney of Creek county, did make the representations to the petitioner as set forth in said petition.

The district court of Creek county was without authority to adjudge that the sentences run concurrently. Ex parte Hudson, 44 Okla. Cr. 14, 279 P. 711.

In Ex parte Barnett, 67 Okla. Cr. 300, 94 P. 2d 18, 19, this court held:

“The scope of review on habeas corpus is limited to an examination of the jurisdiction of the court whose judgment of conviction is challenged. * * *
“The remedy of habeas corpus is available wherever it is found that the court in which the petitioner was tried had no' jurisdiction to' try him, or that in its proceedings his constitutional rights were denied. * * *
“Under Bill of Rights, sec. 20, Okla. St. Ann. Const., an accused has the right to' consult with counsel and toi be fully advised as to' his rights, and as to the consequences of his act before entering his plea to the indictment or information.”

See, also, Ex parte Meadows, 70 Okla. Cr. 304, 106 P. 2d 139.

The facts in this case are very similar to the facts in the case of Ex parte Robnett, 69 Okla. Cr. 235, 101 P. 2d 645, 647.

In Ex parte Robnett, supra, after reviewing the various authorities touching upon this question, this court concluded :

“Clearly, if it is the duty of the court to advise the defendant of the consequences of his plea and the court accordingly makes certain promises which cannot lawfully be carried into execution, a plea of guilty thus obtained is contrary to the spirit of the Bill of Rights of our Constitution. The petitioner was young, ignorant, and inexperienced; he had a right to rely upon the representation made to him by the county attorney and concurred in by the trial judge. Under such circumstances it is our opinion that the judgment and sentence pronounced * * is null and void, and that the petitioner is unlawfully restrained of his liberty and imprisoned by reason thereof without due process of law.
“A void judgment may be vacated in a habeas corpus proceeding. When the judgment is thus vacated, the proceedings should be remanded to the trial court where the defendant may be tried on the merits of the case pending against him. If the defendant’s rights have been prejudiced to such an extent that he cannot have a fair trial by reason of disclosures made at the first hearing or for any other reason, this court may order his release from custody.”

On the date of the hearing before this court, a written order was issued, directed to the warden of the State Reformatory at Granite, directing the release of the petitioner upon his own recognizance; said petitioner to return to his home in Greek county to await the formal opinion of this court. Under the admitted facts in this case, we conclude that the judgment and sentence pronounced in cause No. 3990 in the district court in and for Greek county is void and should be vacated.

It is therefore ordered that the judgment and sentence pronounced in cause No. 3990 in the district court in and for Greek county, Okla., be, and the same is hereby, vacated and set aside.

It is further ordered that the district court of Creek county, Okla., proceed with the disposition of cause No. 3990 in the district court of said county the same as if m> arraignment had been ever held in said case, and the said petitioner is ordered forthwith to report to the district court of said county for arraignment upon said charge.

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