text:
    FLOYD BURNETT v. STATE.
    No. A-8713.
    June 28, 1934.
    (34 Pac. [2d] 285.)
    Walter Mathews, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (Hester Atherton Gifford, of counsel), for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of keeping and maintaining a place where whisky, wine, beer, and other intoxicating liquor used as beverages were kept for the purpose of bartering, selling, giving away, and otherwise furnishing to others, and was sentenced to pay a fine of $50 and be imprisoned in the county jail for a period of 30 days.

' The testimony on behalf of the state shows that the officers went to defendant’s home with a search warrant and searched his residence and found two pints and two half-pints of whisky. The defendant testifying in his own behalf denied he had any whisky at his place for the purpose of bartering, selling, giving away, or otherwise furnishing to others. Defendant admitted he had a small quantity of whisky, but testified it was for his own use; that he occasionally took a drink.

The defendant in his, assignment of errors states the court erred in overruling his demurrer to the information; the court erred in overruling his motion for a new trial; the court erred in giving to- the jury instruction No. 8. The only error discussed by the defendant in his brief is that the court erred in giving instruction No. 8, which instruction is 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 also- instructed that if you should find beyond a reasonable doubt that on or about the 16th day of August, 1933, that the defendant Floyd Burnett had in excess of one quart of spirituous, vinous, fermented or malt liquors, that the possession of such liquor, 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.”

The defendant urges that the court should have instructed the jury under section 6985, C. O. S. 1921 (O. S. 1931, § 2625), which makes it a penalty to have or keep, at, in, or about his place of residence at any time, more than one gallon of spirituous or one gallon of vinous liquors.

In Ex parte Wilson, 6 Okla. Cr. 451, 109 Pac. 596, this court held section 6985 unconstitutional.

In Jenkins v. State, 28 Okla. Cr. 249, 230 Pac. 293, this court expressly states that section 6985, supra, was superseded by section 6999, C. O. S. 1921, as amended by chapter 123 of the Session Laws of 1923-24, which makes the keeping of more than one quart of intoxicating liquor at one’s private residence prima facie evidence of the unlawful intent to sell or otherwise dispose of the same.

Section 6999, C. O. S. 1921, as amended, is now section 2626, O. S. 1931, which section has since been amended by chapter 153, Session Laws 1933 (section 3.)

Considering the instruction complained of in connection with the other instructions given by the court, they correctly state the law applicable to the facts in this case. There is no error in the record.

The judgment of the trial court is affirmed.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    VAS GRIDER v. STATE.
    No. A-8727.
    June 28, 1934.
    (34 Pac. [2d] 607.)

      Morrill & Snodgrass, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Jackson county of a second and subsequent violation of the liquor law, and was sentenced to pay a fine of $250 and serve 30 days in the county jail.

The appeal is by transcript. Judgment was entered December 30th, and the appeal was lodged in this court April 29th. No briefs in support of the appeal have been filed. No reason for this court to interfere with the judgment appears.

The case is affirmed.


author: EDWARDS, P. J.

text:
    E. P. MERRICK v. STATE.
    No. A-8653.
    June 8, 1934.
    Rehearing Denied July 12, 1934.
    (34 Pac. [2d] 281.)

      Freeling & Box, for plaintiff in error.
    J. Berry King, Atty. Gen. and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of manslaughter in the first degree and his punishment fixed at five years in the state penitentiary. The defendant contends: First, that the evidence does not sustain the verdict; second, that defendant at the time of the shooting was insane; third, prejudicial errors in the instructions: fourth, error in overruling motion for new trial. These assignments will be considered in the order presented.

At the time charged, at a filling station just north of the State Capitol, defendant shot one Henry Downs, inflicting wounds which resulted in death two days later. Five shots were fired, two of them through the door of the ladies toilet; deceased fell inside this toilet. A brief summary of the evidence leading up to and concerning the homicide is about as follows:

On the preceding day deceased, a young man about twenty-five years of ag,e, with a brother of defendant, arrivéd at Oklahoma City. There the brother arranged to take deceased to the home of defendant where they had supper and planned to spend the night. Some time after supper they went away and were gone several hours and later in the night returned and retired. Deceased and young Merrick were assigned a front room. Defendant and another brother were to sleep in a back bedroom, the Avife of defendant and a small daughter were in another bed in the same room, about three feet from that occupied by defendant. About 4:30 in the morning defendant Avas Avakened by an outcry from his wife. The light Avas turned on and deceased was discovered on or about the wife’s bed. She then told defendant that deceased had been in the bed with her and had made advances. The brothers of defendant took deceased out of the room while defendant threatened to kill him, and attempted to do so, but ended up by ordering him off the premises and to leave town Avith the threat to kill him if he did not do' so. The shooting occurred about 3 p. m. the following day. Defendant was out of the city in the forenoon. He returned about 1:30 p. m. and was informed deceased had not left town. He took his wife in an automobile, drove to the station where he had been told deceased was about an hour before. So far there is no material conflict in the testimony. As to Avhat took place at and immediately folloAving the shooting, there is some conflict. Defendant testified he Avent into the filling station for the purpose of using the toilet. He found some one in the men’s side and turned around and discovered deceased near the entrance of the ladies’ side; that deceased made a “slurring grin” and that he threatened to “stomp hell” out of him; that deceased then struck at him and he struck back and deceased then kicked at him — that he pulled his gun intending to knock deceased down but did not intend to shoot, that in striking he lost his balance and Avas about to fall backAvard and fired as deceased Avas again about to kick him.

The witness Crowe, for the state, testified in substance he was at the filling station at the time of the shooting; that he went into the men’s toilet to wash and change shirts; that defendant came to the door and upon discovering him there, stepped away and in a few seconds he heard several shots; that he then came out, saw defendant and on this point, testified: “Q. What did he say? A. He says, I will' learn the son of a bitch how to try to rape my wife.”

The witness Abernathy, a deputy sheriff, who arrested defendant a few minutes after the shooting, testified:

“Q. When you went up there did you have a conversation with Mr. Merrick, the defendant? A. Yes. Q. What did he say? A. Mr. Sanders and I went in the station, seen what had happened, and I asked where the man was that did the shooting. Mr. Merrick stepped up and said he had, and handed me the gun and the clip. * * * Q. I will ask you to state whether or not Mr. Merrick gave any reason for the shooting. A, Yes. Q. What was it? A. Says, ‘I caught this man in bed with my wife.’ Q. Did he say anything else in regard to that? A. Says, T told him to leave town, and I caught him over here in his brother’s station.’ ”

The witness Montcrief, for the state, attendant at the station, on this point testified:

“Q. What was Henry Downs doing then? A. He was sitting there with a paper in his hand. * * * Q. Sitting there with a paper in his hand? A. Yes sir. Q. All right. What did Mr. Merrick do’ then? * * * A. Slapped the paper with his left hand, or grabbed it, I don’t know which, hit it down with his right hand. Q. That is this defendant? A. Yes, sir. Q. Did he say anything when he did that? A. Yes, sir. Q. What did he say? A. iSays, “God damn, you will try to break up my home.’ Q. All right. Then what was the next thing that you saw? A. When he struck at Downs, Downs jumped to Ms feet and I thought struck at Merrick. * * * Q. All right. Then what was the next thing you saw? A. Mr. Merrick threw up his left hand, I suppose to guard the lick off, and reached for his gun. * * * A. He jerked the gun out of his way (illustrating) and as he did so I grabbed his arm. Q. What, did Merrick do? A. Kind of whirled around, not completely around but gave me a shove like that, shoved me back a step or two. I went right on out the door. * * * Q. How many shots did you hear? A. I heard five. * * * Q. (By Mr. Morris) Well, did Downs have a weapon in his hand? A. Not that I saw. * * * Q. Did you see Henry Downs? * * * A. I saw him later, yes, sir. Q. Where was he? A. He was in the ladies’ toilet.”

The witness Myers, for the state, testified:

“Q. What were you doing there? A. Henry had just bought a newspaper and we had divided it and I was reading half of it and he ivas reading half. * * * Q. Were you standing in the door when you first saw the defendant? A. Yes, sir, I was in the door. * * * Q. Then what happened? A. The next thing I heard, I turned around and the men were in a scuffle. * * * Q. All right. And what were they doing? A. And their hands were in the air, kind of in a scuffle, and a gun was in the air. Q. Who had the gun? A. Mr. Merrick. * * * Q. Now, when you started to leave what was Mr. Downs doing? A. I took a step forward, to leave the station and as I did I hesitated and looking back I saw Mr. Downs had made a step towards the ladies’ rest room. * * * Q. Did you hear a shot? A. I heard two shots before I was off of the drive; that was the filling station drive. Q. Did you hear any more? A. Then there was a pause and I heard three more shots. By that time I had crossed' the street and was over at the other filling station. * * * Q. Did you go back after the ambulance had arrived? A. Yes, sir. Q. Where was he? A. The first time I saw Mr. Downs, he was in the ladies’ dressing room.”

The state argues that deceased did not attempt any liberties with the wife of defendant but advances the theory that being in a strange house, sleepy, and exhausted, he went from his bed to the toilet and in attempting to return stumbled into the wife’s bed. It further contends that whatever may be the truth of that circumstance the shooting was an act of vengeance for a wrong committed or supposed to have been committed by deceased. The above resume of the evidence disposes of the contention that the verdict is not supported, for it is clear there is ample testimony from which the jury could logically and reasonably conclude that defendant, on learning deceased had not left the city as he had ordered on the preceding night, sought him out, provoked the difficulty, and killed him as deceased attempted to' escape by going into the ladies’ toilet.

The second and third assignments of error which are directed to the question of insanity and the instructions are discussed together. Defendant introduced evidence that he was insane at the time of the shooting. Dr. Werner, an expert, testified defendant was a psychopathic, emotionally unstable, and mentally unbalanced. This witness, however, was considerably shaken on cross-examination and admitted defendant may have known right from wrong at the time, would not say he did not, but that he did not have the will power to resist — that any man who kills another over family trouble is insane, although he may know the nature and consequences of his act.

Defendant requested several instructions on insanity. Generally these are argumentative or amount to a comment on the testimony and suggest the defense of temporary or emotional insanity. The court gave the usual instructions which have been several times approved by this court. Emotional or temporary insanity is the term applied to a mental state whereby an accused seeks to avoid responsibility for a homicide on the ground that, while knowing the wrongfulness of his act, he is without the will power to restrain himself from doing the act which constitutes the crime. This doctrine finds support in the early case of Adair v. State, 6 Okla. Cr. 284, 118 Pac. 416, 44 L. R. A. (N. S.) 119, but the doctrine there announced has been repudiated by this court and the Adair Case criticized and overruled in several cases. Roe v. State, 17 Okla. Cr. 599, 191 Pac. 1048; Tittle v. State, 44 Okla. Cr. 287, 280 Pac. 865; Arms v. State, 49 Okla. Cr. 34, 292 Pac. 76; Carrick v. State, 49 Okla. Cr. 65, 292 Pac. 1053. Under these later cases defendant’s contention is untenable. The instructions are free from material error.

Finally complaint is made that one Clifton, who served on the jury, was prejudiced against defendant by reason of a controversy some twelve months previously between the juror and defendant. Defendant asserts that in June, 1932, he was working for the state highway department, checking violations of traffic laws; that he discovered the juror Clifton with a, truck without the proper license tag and that he detained the truck for a time until Clifton satisfied him he had a proper tag; that Clifton became angry; that at the time the jurors were examined defendant did not recognize him. The voir dire examination is not in the record but on motion for new trial this juror testified he did not know defendant, never hfid any business transaction with him, and had no bias or prejudice against him at any time; that his verdict was the result solely of the evidence at the trial. After a full hearing on this point, the trial judge overruled the motion. He was fully warranted in his conclusion on this point. ■

Upon a careful consideration of the entire record we find no material error. The case is affirmed.

CHAPPELL, J., concurs. DAVENPORT, J., absent, not participating.


author: CHAPPELL, J.

text:
    ROY PETERS v. STATE.
    No. A-8715.
    June 28, 1934.
    (34 Pac. [2d] 286.)
    J. F. Murray and Henry S. Johnston, for plaintiff in error.
    J. Berry King, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter referred. to as defendant, was convicted in the county court of Kay county, of violation of article 3, chapter 24, Oklahoma Statutes 1931, as amended by chapter 60, Session Laws 1933, prohibiting the operation of barber shops or employment therein without first having submitted to a physical examination by the proper medical authorities, obtaining a license, and paying the fee fixed by said law, and his punishment fixed at a fine of $1 and the costs of the action.

In the county court a jury was waived and the cause submitted to the court on an agreed statement of facts.

Defendant contends the act under which he was prosecuted is unconstitutional:

1. In that it creates a department of state and seeks to vest in it power to> collect an undetermined amount of money from the barbers of the state and to pay out the same as it sees fit, without any check or balance on said fund and without depositing same with the state treasurer, to be paid out as required by law.

2. That said act is discriminatory because it applies only to barbers operating in incorporated towns.

Section 1 of the act (O. S. 1931, § 4325) creates a State Board of Barber Examiners, consisting of four members, three of whom must be learned in the barber trade and the fourth a medical doctor appointed by the Commissioner of Health, the medical member of the board having no voice in the organization of the board (section 3 [O. .S. 1931, § 4327]).

Section 4 (O. S. 1931, § 4328) requires each member of the board to take the constitutional oath of office and in addition to make an oath that he has been engaged in the active and continuous practice of the barber trade in this state for a period of more than five years next preceding his appointment. The act also provides for the election of a president, a secretary, and a treasurer of the board, and requires the treasurer to give a bond in the sum of $10,000 (section 5 [O. S. 1931, § 4329]).

Section 6 (O. S. 1931, §;• 4330) requires the board to keep a record of its proceedings.

Section 7 (O. S. 1931, § 4331) provides for regular meetings every three months to consider applications.

Section 9 (O. S. 1931, § 4333), under which defendant was convicted, provides:

“Any persons practicing the trade of barber or apprentice barber, without having at the time a valid unrevoked certificate, as provided in this act, shall be deemed guilty of a misdemeanor, and shall, upon conviction, be fined not to exceed one hundred dollars ($100.00), and each day’s practice shall constitute a separate offense. All fines under the provisions of this section shall be paid into a common school fund of the county wherein the conviction is had.”

Section 13 (St. 1931, § 4337), as amended by chapter 60, § 3, Session Laws 1933, provides for the issuing of certificates upon examination, and requires, payment of a $2 fee after the applicant has passed the required medical examination. The act further provides (section 25 [O. S. 1931, § 4349, as amended by Laws 1933, c. 60, §8]) :

“It is hereby expressly provided that the provisions of this act shall not apply to barber shops not in incorporated cities and towns of this state.”

The act further requires the board to submit an annual report to the Governor, containing a full statement of its receipts and expenditures and a review of its work, and requires the treasurer to pay into the general fund of the state 10 per cent, of the gross fees charged, collected, and received by the board.

Section 28 (O. S. 1931, § 4352) is a saving clause which provides that if any part of the act is declared unconstitutional, it shall not affect the other parts of the act which may be valid.

The primary rule of construction of statutes to be followed in considering the objections to the constitutionality of this law is that which declares the constitutionality of a statute is the strongest presumption known to the courts and that no law will be declared unconstitutional unless its unconstitutionality clearly appears beyond any reasonable doubt. State v. Wheatley, 20 Okla. Cr. 28, 200 Pac. 1004; Bishop v. City of Tulsa, 21 Okla. Cr. 457, 209 Pac. 228, 27 A. L. R. 1008.

Under defendant’s first proposition it is contended the act violates section 55, art. 5, of the state Constitution, in that it does not require the money collected to be paid to the State Treasurer and after appropriation, paid out by him upon proper warrants, but makes the board sole custodian of the funds collected and gives it authority to pay out such funds as it sees fit, without any supervision or interference of any kind by any! official of the state.

Section 55, art. 5, of the Constitution of Oklahoma, provides:

“No money shall ever be paid out of the treasury of this state, nor any of its funds, nor any of the funds under its management, except in pursuance of an appropriation by law, nor unless such payments be made within two and one-half years after the passage of such appropriation act, and every such law making a new appropriation, or continuing or reviving an appropriation, shall distinctly specify the sum appropriated and the object to which it is to be applied, and it shall not be sufficient for such law to refer to any other law to fix such sum.”

The State Barber Act provides that one of its members shall be elected treasurer of the board, shall give bond of $10,000 to be approved by the Governor and filed with the Secretary of State, and shall receive and care for all money paid to him by the secretary and pay out the same upon written orders of the secretary, countersigned by the president (section 5í [O. S. 1981, § 4329]). Here, then, we have the creation of a treasury for this special fund; a bonding of the officer who is made the¡ custodian of the fund; and the creation of a form of order, amounting to a warrant, to pay such funds from its treasury.

We are at once confronted with the question: Does section 55, article 5, require all funds of this character to be paid into the state treasury, or does the Legislature have constitutional authority to deal with such funds and provide for their expenditure in the manner set forth in this act?

It appears from an examination of the Constitution that the framers realized there would be funds of the state the Legislature would have to deal with that would not, and under some circumstances could not, necessarily be deposited in the state treasury. Therefore, in order to safeguard such funds, section 55, article 5, provided as to them that before they might be expended there must be an appropriation from the fund, not from the state treasury.

The act creating the State Board of Barber Examiners, together with chapter 60, Session Laws 1933, appropriates for the purpose of the act itself 90 per cent, of the gross receipts obtained from fees collected for examinations, issuance of registration certificates, etc., and requires the other 10 per cent, to be paid to the State Treasurer. The amount appropriated may be determined from the amount collected.

In Edwards v. Childers, State Auditor, et al., 102 Okla. 158, 228 Pac. 472, 473, the Supreme Court held:

“The appropriation of money is the setting it apart formally or officially for a special use or purpose, and, where that is done by the Legislature in clear and unequivocal terms in a duly enacted law, it is an ‘appropriation.’ ”

In Reeves v. State, 36 Okla. Cr. 186, 253 Pac. 510, this court had under consideration the constitutionality of the Medical Practice Act (Laws 1923, c. 59), and there held a statute similar to the one in controversy in the case at bar as within the legislative power and therefore constitutional.

In State Board of Dental Examiners v. Pollock, 125 Okla. 170, 256 Pac. 927, the Dental Act (Comp. St. 1921, §§8701-8727), was challenged on 11 different grounds, the last being that the act was unconstitutional because no fund had been specifically appropriated by the Legislature for thé operation and maintenance of this board. The Supreme Court held this objection not tenable and the act constitutional.

Certainly the Legislature, under the police power of the state, had authority to regulate the practice of barbering in this state and to place certain safeguards around such practice, and to provide for the licensing and physical examination of those engaged in such practice, to prevent the spread of contagious and infectious diseases. The penal provisions of this act are clearly within the scope of the state’s police power.

Defendant relies upon Ex parte Pope, 33 Okla. Cr. 5, 242 Pac. 290, where this court held the act creating the State Real Estate Board unconstitutional and void. Drastic distinctions, however, may be noted between the act of the Legislature of 1925 (Laws 1925, c. 129) and the act here under consideration. The Real Estate Commission Act did not fix the maximum limit of the salaries of the members of the commission, but left them wholly to the discretion of the commission. In this act the maximum salary of each member of the Board of Barber Examiners is fixed at a definite amount. The Real Estate Act provided for no treasurer and created no special and distinct fund; whereas the act in the case at bar creates the office of treasurer, requires a bond, prohibits the expenditure of the funds except upon properly drawn orders or warrants on this treasurer. The Real Estate Act made no provision for reports to the Governor or an accounting to any department other than themselves, and made no requirement that any part of the funds collected should he paid into the state treasury, whereas the Barber Act requires full, itemized reports to be filed annually with the Governor and Secretary of State, requires an accounting of all funds received and a showing of what the expenditures were and to whom they were made, and the payment of 10 per cent, of all funds collected into the general fund of the state treasury.

Ex parte Pope, supra, is not in point in this controversy because none of the grounds upon which the Real Estate Act was declared unconstitutional exist in this act.

Under the authorities heretofore cited the act is within the police power of the state, makes a valid appropriation of the funds collected, and authorized the board to expend the same according to the provisions of the act.

It is next contended the act is unconstitutional because it' applies only to barbers operating in incorporated towns, and therefore discriminates against them and in favor of barbers in unincorporated towns and communities.

Counsel for defendant cite no authorities in support of this contention.

Under the act in question the Legislature has seen fit to place the barber shops of this state in two classes: (a) Those in cities and incorporated towns; (b) those not in cities and incorporated towns. Did such a classification destroy uniformity of operation of the law? The law acts uniformly throughout the state on all barber shops within class A and likewise operates alike on all those barber shops coming within class B.

Uniformity of operation as used in section 59, art. 5, Oklahoma Constitution, requires that laws shall have uniformity of operation throughout the state, but does not require “universality of operation”; the former relating to similarity of conditions affecting subjects or localities of the state that are appropriately classified; the latter relating to the whole and every part of the state.

For a law to be general in its nature and to have a uniform operation, it is not necessary that it shall operate upon every person and every locality of the state. Burks v. Walker, 25 Okla. 353, 109 Pac. 544; Pointer v. Town of Chelsea, 1.25 Okla. 278, 257 Pac. 785; Hover v. Oklahoma City, 133 Okla, 71, 271 Pac. 162; Butcher Packing Co. v. Langston, 154 Okla. 280, 7 Pac. (2d) 631.

In Barbier v. Connolly, 113 U. S. 27, 5 S. Ct. 357, 360, 28 L. Ed. 923, the Supreme Court of the United States said:

“Class legislation, discriminating against some and favoring others, is prohibited; but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment.”

The highest courts of other states have held a barber act similar to the one in controversy here constitutional and within the police power of the state. Cooper v. Rollins, 152 Ga. 588, 110 S. E. 726, 20 A. L. R. 1105; Ex parte Lucas, 160 Mo. 218, 61 S. W. 218, 219.

These authorities cite numerous cases from other states.

Under these authorities there is no merit in defendant’s contention that the act violates section 59, art. 5, of the Oklahoma Constitution.

No fundamental error appearing, the cause is affirmed.

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


text:
    GEORGE SMITH v. STATE.
    No. A-8671.
    June 19, 1934.
    Rehearing Denied July 12, 1934.
    (34 Pac. [2d] 280.)

      E. Y. Gregory and Morrison, Morrison & Morrison, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and J. H. Lawson, for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Canadian county of having unlawful possession of intoxicating liquor, and was sentenced to pay a fine of f 100 and serve 30 days in the county jail.

At the time charged, officers, with a search warrant, made a search of defendant’s residence and discovered six pints of alcohol, diluted about one-half with water. They arrested defendant and started to the police station; he suggested they go in his car, which they did. On reaching the police station, they searched the car and discovered two one-gallon cans of alcohol. The charge is for the possession of this alcohol.

The principal contention is that the search warrant was based on an insufficient affidavit and is void, the arrest illegal, and the search of the car incident to the arrest likewise illegal. The trial judge held the search warrant invalid and struck out the testimony in reference to the alcohol found in the residence, but overruled objections to that found in the car. The objection to the search warrant is that the affidavit does not contain a description of the premises searched. The affidavit is very poorly drawn, but it contains the essentials and is a sufficient showing of probable cause to authorize the search warrant. It begins with the usual caption of county and state; is entitled “In the Justice Court”; states it is in the matter of the search of the premises, setting out a correct description by house number, street, and city, which is also in the search' warrant. Following this is the statement of the affiant of the facts showing probable cause. The affidavit contains no further description of the premises, except in one instance it uses the term “the following premises”; in two others it refers to the place as “said premises”; and in another as “the above described premises.”

It is the duty of this court to fully uphold section 30, art. 2, of the Constitution, forbidding unlawful searches, and sections 2638 and 2639, Okla. Stat. 1931, limiting and restricting the issuance of search warrants and requiring a showing of probable cause by affidavit as a necessary requisite for search warrant. The affidavit and warrant under these provisions of the Constitution and the law, however, should be construed reasonably and not narrowly and technically. So construed in the instant case, they are valid.

Since this is the only material contention, the appeal is without merit; The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


author: DAVENPORT, J.

text:
    W. H. HARRIS v. STATE.
    No. A-8690.
    June 8, 1934.
    Rehearing Denied July 12, 1934.
    (34 Pac. [2d] 289.)

      C. H. Madden, for plaintiff in error.
    J. Berry King, Att-y. Gen., and Smith C. Matson, Asst. Atty. Gen.. (J. H. Lawson, of counsel), for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of having possession of intoxicating liquor with intent to barter, sell, give away, and otherwise furnish, and sentenced to pay a fine of $75, and to be imprisoned in the county jail for 50 days.

The evidence shows the officers went to defendant’s workshop with a search warrant to search his shop; the floor of the shop was covered with shavings; they found a well bucket buried in a hole in the shape of a cistern; they found nine one-half gallons of whisky.

At the close of the state’s testimony the defendant demurred to the same, which demurrer was overruled, and exceptions saved. No evidence was introduced by the defendant.

The only question argued by the defendant is the question of the affidavit for the search warrant being insufficient to warrant the officers in searching his place, and he urges the testimony secured by reason of the search warrant was inadmissible. Otto H. Harris signed the affidavit for the search warrant, and the statement in the affidavit is positive that the defendant was violating the prohibition laws in a frame building used by the defendant as a workshop, located on lot 1, block 2, of Hollis addition to the city of Hollis, Harmon county, Okla.

To sustain his contention defendant cites McClure v. State, 31 Okla. Cr. 60, 237 Pac. 145. In the McClure Case the affidavit was made on information and belief, which this court has repeatedly held insufficient authority for issuing a search warrant. In this case an examination of the affidavit shows that it states positively that defendant was violating the prohibition laws in his workshop.

In Cahill v. State, 38 Okla. Cr. 236, 260 Pac. 91, in the second paragraph of the syllabus, this court said:

“Where an affidavit is filed before a proper officer, positive in form, setting out facts justifying the issuance of a search warrant, the search warrant issued on such affidavit may not be rendered invalid by evidence attacking the truth of the statements in the affidavit, nor is the admissibility of the evidence obtained by such search warrant affected by proof that the facts therein positively stated were in reality stated upon information and belief.”

The affidavit stated facts sufficient to authorize the officers to issue the search warrant, and the testimony procured by the search is sufficient to sustain the conviction. The demurrer to the evidence was properly overruled. Finding no errors in the record, the judgment of the lower court is affirmed.

ED WARDS, P. J., and CHAPPELL, J., concur.


text:
    CURTIS NEIGHBORS v. STATE.
    No. A-8643.
    June 19, 1934.
    Rehearing Denied July 12, 1934.
    (34 Pac. [2d] 290.)
    W. N. Redwine, M. O. Counts, George L. Hill, and E. P. Hill, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson and J. H. Lawson, Asst. Attys. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Pittsburg county of manslaughter in the first degree in the killing of his wife, Lucile Neighbors, and his punishment fixed by the jury at imprisonment in the state penitentary for a period of 21 years.

Plaintiff in error in his brief says:

“Many grounds are set out in the petition in error herein for a reversal of the verdict in the trial court, but we desire to urge particularly upon this; court that, if for no other reason, the defendant is entitled to a reversal of said conviction on account of the misconduct of the jury in the manner in which they arrived at the verdict returned in the trial court.”

After the verdict was returned and received in open court, and the jury had been polled and discharged, defendant filed his motion for a new trial upon the ground of misconduct of the jury in fixing, the punishment and attached to the motion the following affidavit :

“George Beams, who after being duly sworn deposes and says: That he sat as a juror in the trial of the aforesaid action on the 29th day of March, 1933. Said trial ending, on the 31st! day of March, 1933, and the jury rendered a verdict thereon, on that date.
“Affiant states: After the jurors went to the jury room and was organized, and when the first ballot was taken, some voted guilty, and some, not guilty. Thereafter, all the jurymen agreed on a verdict of guilty of manslaughter in the first degree, however the number of years of punishment to be given defendant varied among the various jurymen, and said jury in order to reach a verdict agreed that they would add the number of years that each juryman thought defendant ought to receive on said judgment and add the same together and divide by 12 which was done and this was the basis of their verdict, and the way said verdict, was reached.
“[Signed] Geo. W. Beams.”

This objection raises the question of the right of a juror to impeach his verdict by affidavit on account of misconduct.

In the case of Spencer v. State, 5 Okla. Cr. 11, 113 Pac. 224, 226, this court said:

“Jurors cannot be heard to impeach their verdict unless expressly authorized to do so by statute, and then only in the manner provided by statute. When jurors are impaneled, they are sworn to decide the case submitted to them according to the law and the evidence. For a juror to make an affidavit that he has violated his oath and rendered a verdict upon any other ground than the sworn evidence in a case places him in contempt of court.”

To the same effect are Vanderburg v. State, 6 Okla. Cr. 485, 120 Pac. 301; Keith v. State, 7 Okla. Cr. 156, 123 Pac. 172; Newcomb v. State, 23 Okla. Cr. 172, 213 Pac. 900; Hayes v. State, 35 Okla. Cr. 19, 247 Pac. 111; Revis v. State, 42 Okla. Cr. 198, 275 Pac. 351.

In Frye v. State, 25 Okla. Cr. 273, 219 Pac. 722, 723, this court' said:

“A verdict in a criminal ease, assessing the punishment at a certain number of years’ imprisonment, will not be set aside upon proof that each member of the jury wrote down the number of years which he thought proper, and that the several numbers thus written down were added up and the sum divided by 12, where there is no proof that the jurors agreed beforehand to be bound by the result thus obtained.”

It will be noted that the affidavit of the juror Beams says nothing about the jurors having agreed to be bound by the result of striking an average by the method alleged in the affidavit, and. neither does it say that the verdict reached was the number of years that was shown in striking an average.

Section 3103, Oklahoma Statutes 1931, provides for the reception of the verdict of the jury by the court. It is evident from the record that, regardless of how the jury arrived at its verdict, it was indeed the verdict of the jury, and under the authorities above cited the verdict could not be later impeached by the affidavit of a juror.

Defendant relies upon a large number of authorities from other states upon holdings of the Supreme Court of this state that verdicts might be ihus impeached, but, whatever may have been those holdings, this court has consistently held from the beginning that in criminal cases a juror would not be permitted to impeach the verdict by affidavit of misconduct after the verdict has been' rendered.

No fundamental error appearing, the cause is affirmed.

EDWARDS, P. J., concurs. DAVENPORT, J., not participating.


text:
    TOM BOWERS v. STATE.
    No. A-8684.
    June 19, 1934.
    Rehearing- Denied July 12, 1934.
    (34 Pac. [2d] 292.)

      John L. Ward and Wayne C. Evans, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and J. H. Lawson, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of the crime of manslaughter in the first degree in the killing of O. L. Chancellor, and his punishment fixed by the jury at confinement in the state penitentiary for a term of four years.

The evidence of the state was that the deceased was the owner of 160 acres of oil land not far from the city of Tulsa; that this land was being operated by a company with headquarters in Tulsa, and that defendant was a pumper and in charge of the lease; that, on the morning of the homicide, E. J. Chancellor, a brother of the deceased, was sent on the premises by his brother to burn some dry grass; that this fire escaped and burned a pump jack of the operating company; that defendant accused Chancellor of setting it on fire and attempted to assault him; that Chancellor fled, and defendant followed him with a shovel; that Chancellor suddenly stopped, and defendant fell over him, and that Chancellor by fleeing in the opposite direction escaped; that defendant called his employer and later left the lease, went to his home, and procured the pistol used in the killing, purchased some shells for it, and returned to the lease and continued his work; that, in the evening when deceased returned to his home, Chancellor told him about the damage done by the fire and the difficulty with defendant, and that thereupon deceased proposed that they go down where defendant was and have a talk with him and settle with him; that deceased was willing to pay for any damage which had been done; that, when defendant saw deceased and his brother approaching, he went to his car and took something out of it and stood waiting; that, when some distance from the car, deceased saluted defendant and made some inquiry as to the damage; that defendant said he was “plenty mad and would burn them down,” and began shooting, firing five shots into deceased, one of which proved to be fatal; that thereupon he turned the gun on the brother and shot him, but this wound was not fatal; that, when the body of deceased was searched, a pistol was found in his hip pocket.

Defendant, testifying for himself, claimed that deceased had made threats against him, was trying to run him off the lease, and that deceased approached him at the time of the homicide, cursing him and with a pistol in his hand, and that he shot in self-defense.

It is first contended the court erred in the admission of incompetent, irrelevant, and immaterial evidence over the objection of defendant; the particular contention being that the court erred in permitting the witness Knarr, who was an officer of the United States Weather Bureau at Tulsa, to refresh his memory from the official records in his office and testify without introducing the records themselves in evidence.

The witness testified that these records were either made by himself or kept under his supervision, and refreshed his memory from that record, which he held in his hand, and testified as to the velocity and direction of the wind on the day of the homicide. This character of testimony was undoubtedly admissible.

The case was hotly contested, and the record is voluminous. It would serve no good purpose to set out the evidence complained of, but it is sufficient to say that there is no fundamental error in the admission of any of the testimony complained of.

It is next contended the trial court committed reversible error in rejecting competent, material, and relevant evidence and testimony offered by defendant; the particular contention under this assignment being that the court erred in refusing to permit defendant to say that, at the time he armed himself with the pistol and went upon the lease, the only intention he had was to protect himself by the use of it.

The trial court had already permitted defendant to testify that deceased had threatened him; that he got his pistol, bought the shells, and thus went on the lease armed, with the intention of defending himself in case he was attacked.

This evidence ivas admissible, but, since the court had permitted defendant to go into all the details and explain the why of his arming himself and being at the place he was at the time of the difficulty, and the court havng instructed the jury that he had a right to be armed and had a right to be at the place and had a right to shoot to kill if it reasonably appeared to him that his life was in danger, the refusal of the court to permit him to say what other intention he might have had was not such error as would require a reversal of the case.

We have carefully examined all of the other evidence rejected and find no fundamental error in the ruling of the court thereon.

It is next contended the court erred in its instructions to the jury.

It appears from the record that defendant filed the following written exception to the court’s instructions:

“Exceptions to Instructions.
“Comes now the defendant and excepts to each and every instruction about to be given to the jury in this case.
“John L. Ward.
“Attorney for Defendant.
“Harry L. S. Halley,
“District Judge.”

This court in a number of cases has held that general exceptions to instructions given will not be considered unless the instructions are fundamentally erroneous, and that counsel should point out to the trial court the particular instruction to which they desire to except, in order that he may have an opportunity to correct the error therein, if any. Summers v. State, 7 Okla. Cr. 10, 120 Pac. 1031; Star v. State, 9 Okla. Cr. 210, 131 Pac. 542, 543; Maddox v. State, 12 Okla. Cr. 462, 158 Pac. 883.

In the case at bar, the instructions contain no fundamental error.

Before this court can reverse a conviction upon the ground the trial court erred in the admission or rejection of evidence or in its instructions to the jury, it must first find from an inspection of the entire record that appellant was injured thereby and to determine the question of appellant’s guilt or innocence of the offense charged. Fowler v. State, 8 Okla. Cr. 130, 126 Pac. 831; Ostendorf v. State, 8 Okla. Cr. 362, 128 Pac. 143; Bishop v. State, 9 Okla. Cr. 175, 130 Pac. 1173.

In cases of this character, where hotly contested, it is impossible to prevent minor errors from creeping in. The evidence of the state being sufficient to support a verdict of murder, and the jury only finding defendant guilty of manslaughter in the first degree and fixing his punishment at the minimum of four years, it is evident that none of the errors complained of were prejudicial to him.

The cause is therefore affirmed.

EDWARDS, P. J., concurs. DAVENPORT, J., absent, not participating.


text:
    GEORGE T. BONSTEIN v. STATE.
    No. A-8744.
    July 12, 1934.
    (34 Pac. [2d] 1081.)
    . Wm. O. Garrick (George T. Bonstein, on the brief), for plaintiff in error.
    J. Berry King, Atty. Gen,, and Smith O. Matson, Asst. Atty. Gen. (J. H. Lawson, of counsel), for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of the offense of embezzlement, and his punishment fixed by the jury at imprisonment in the state penitentiary for three years.

The evidence of the state was that defendant was an attorney engaged in the practice of law in the city of Tulsa; that he was employed by the Gatzert Company to make collections on certain securities held by such company; that these securities had been placed in a bank in Tulsa; that defendant was, after collection, to pay the funds to the bank and receive the evidence of indebtedness; that Fred Glendinning, who was indebted to the Gatzert Company in the sum of $66.32, paid same to defendant’s secretary; that defendant received this money; and that the same was not paid to the Gatzert Company.

It is first contended the court erred in refusing to permit defendant to argue to the jury the existence of the relation of debtor and creditor, and in telling the jury that there was no evidence in support of such an issue.

The evidence of the state supports its contention that the relation of attorney and client existed. The opening statement of defendant to the jury and his evidence are to the same effect. Defendant admitted he was short about $3,000 in his accounts with the Gatzert Company, and that, finding himself unable to make good this shortage, he fled and was later arrested in California and brought back for trial. It was not error, therefore, for the trial court to tell the jury there was no evidence to support the issue of debtor and creditor.

It is next contended the court erred in its judgment in fixing defendant’s punishment at three years in the penitentiary.

Section 2750, C. O. S. 1921 (O. S. 1931, sec. 3107), provides:

“In all cases of a verdict of conviction for any offense against any of the laws of the state of Oklahoma, the jury may, and shall upon the request of the defendant, assess and declare the punishment in their verdict within the limitations fixed by law, and the court shall render a judgment according to such verdict.”

Section 3139, O. ,S. 1931, provides:

“In cases where convicts are sentenced to be imprisoned in the penitentiary for a longer period than one year, it is the duty of the court before which the conviction is had to limit the time of sentence, so that it will expire between the month of March and the month of November, unless the exact period of the sentence is fixed by law.”

Section 9215, C. O. S. 1921 (O. S. 1931, sec. 5312), authorizes the state board of prison control to require able-bodied prisoners to labor and sets up a table of allowances for such labor performed and for time off for good behavior, and vests in the warden and the board of control discretion in the allowance or granting of such good time off from sentences.

These sections of the statute must all be considered together.

Since the jury is authorized to fix the punishment and the court must pronounce judgment in conformity to the verdict and since the board of prison control and the warden are vested with discretion in allowance for labor and granting time off for good behavior and since by law the defendant is entitled to appeal and to be enlarged on bond pending such appeal, it would be impossible for the trial court to fix the time of the beginning or ending of a judgment and sentence at the time judgment and sentence is pronounced.

This court has uniformly held that the court must pronounce judgment in conformity with the verdict. Schriebar v. State, 6 Okla. Cr. 119, 116 Pac. 348; White v. State, 42 Okla. Cr. 50, 275 Pac. 1067.

When the sections of the statute and the authorities herein cited are all considered together, it is evident that section 3139, supra, has no application to any case where the jury fixes the punishment.

Other errors are complained of, hut they are not of sufficient importance to require' a discussion in this opinion.

No fundamental error appearing, the cause is affirmed.

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


text:
    GEORGE E. BOGGS v. STATE.
    No. A-8705.
    July 12, 1934.
    (34 Pac. [2d] 1078.)
    Williams & Martin and W. L. Chase, for plaintiff in error.

      J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.-
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Adair county of the crime of manslaughter* in the first degree in the killing of Vergil Ray, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of 20 years.

The evidence of the state was that defendant shot deceased while he was in his farm wagon, dressed in his farm clothes, and attending to his ordinary farm work; that defendant went to the place where deceased was removing a partition fence, carrying a pistol; that he had just borrowed the pistol from a neighbor; that deceased was from 10 to 30 steps distant from defendant when defendant began firing upon him; that defendant saw no weapon, but claimed deceased made a move which led him to believe that he was armed and was going to shoot him.

The court instructed on the law of self-defense and covered that issue in a manner favorable to defendant.

Any conflict in the evidence was for the jury. They had a right to disbelieve defendant’s testimony, even if uncontradicted, if they believed it was unreasonable. Powell v. State, 11 Okla. Cr. 615,150 Pac. 92.

The homicide beng admitted, the burden was on defendant to raise a reasonable doubt of his guilt. This he did not do. Under all the facts and circumstances, 20 years’ imprisonment in the penitentiary is not unreasonable or excessive punishment, considering the circumstances under which defendant took the life of his neighbor.

It is next contended the court had no jurisdiction to try. defendant, because he had not had nor waived a preliminary examination.

This question was raised by a timely' motion to quash the information and was submitted upon an agreed statement of facts. It appears from this stipulation that the justice of the peace was in undisputed possession of the office and exercising all. the functions thereof and that by reason thereof he was at least a de facto officer.

A person in undisputed possession of the office of the justice of the peace and exercising all the functions belonging thereto under color of title to such office is a de facto justice of the peace, and his official acts are binding on the public and third persons. Ex parte Hand, 13 Okla. Cr. 614, 164 Pac. 449; Bay v. State, 43 Okla. Cr. 1, 276 Pac. 785.

It was not error, therefore, for the trial court to overrule the motion to quash the information.

No fundamental error appearing, the cause is affirmed.

EDWAEDS, P. J., and DAYENPOET, J., concur.


author: DAVENPOBT, J.

text:
    JOHN RE v. STATE.
    No. A-8724.
    July 12, 1934.
    (34 Pac. [2d] 1084.)

      J. L. Gowdy and Joe Adwon, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPOBT, J.

The plaintiff in error, for convenience hereinafter referred to as the defendant, was by information jointly charged Avith Mrs. John Be and W. F. Gorman of the crime of operating a public nuisance, was convicted, and sentenced to pay a fine of $150 and to be confined in the county jail for a period of 90 days.

The testimony on behalf of the state is in substance as follows: The officers, armed with a search warrant, went to a certain building to search the northeast room on the second floor of said building, located at 121 South Harvey, Oklahoma City, Oklahoma county, Okla., and searched the room occupied by the defendant. The defendant and his wife were found in the room. The officers state that in other parts of the hotel, and other rooms in the building, they found a quantity of whisky and beer.

The proof shows conclusively that the building in which the defendant had a room rented, and being the room the officers had the search warrant for, is known as the Albany Hotel, run by Mr. Gorman. The proof also shows that no whisky, beer, or any intoxicant of any kind was found in his room, nor were there any drunks in or around the room, or disorderly conduct shown by the state witnesses. The proof further shows that the defendant had nothing, to do with the managing or occupancy of any of the rooms except the room occupied by himself and his wife. The testimony as to what the officers found in the hotel rooms other than the room occupied by the defendant was inadmissible.

The court, over the objection of the defendant, permitted one of the state witnesses to detail a conversation he heard over the phone while he was in the defendant’s room; that is, the witness claimed that some one called over the phone and wanted to malte an order for some whisky. This is in substance the testimony offered. The defendant did not offer any testimony.

Several errors have been- assigned by the defendant as grounds for reversal of this case. All the errors alleged to have been committed by the court are embraced in the first assignment, which is as follows:

“Said court erred in overraling motion of plaintiff in error for a new trial.”

Embraced in this assignment is the question as to whether or not there is sufficient testimony in the record to sustain a conviction of maintaining a pubic nuisance by the defendant, or whether or not the court erred in admitting, over the objection of the defendant, certain statements of one of the state witnesses as to a telephone conversation while in defendant’s room. This is not a new question. In Cumpton v. City of Muskogee, 23 Okla. Cr. 412, 225 Pac. 562, 565, this court said:

“Finally, it is urged that the court erred in admitting in evideneé a telephone conversation had in the presence of the defendant, which came about in this wise: A few minutes after the arrest of the defendant the landlady announced to the officers that the defendant was wanted at the telephone. The officer said to her that he would answer the telephone for him. Thereupon he went to the phone and announced to the party who was calling that he was Pete Cumpton and asked what was wanted. The reply was ‘Bring it down right away, I am dry as h — .’ The officer then turned to the defendant and said to him, ‘One of your customers wants you to bring him down a couple of pints.’
“We have come to the conclusion that this telephone conversation was both incompetent and prejudicial. It was not a spontaneous declaration of a participant or bystander, or an integral part of the crime charged, so as to be a part of the res gestae. It was not even explanatory of the constituent conditions and circumstances of the crime, except by an uncertain inference from an unknown source. Neither was it an accusation or declaration that the accused, under the circumstances, was bound to answer or explain. The accused cannot be compelled to testify against himself, directly or indirectly. Even if the source of the telephone conversation was known, the defendant could have remained silent, and his silence, under the circumstances, should not be disclosed to the jury to his prejudice. The jury may have believed, and probably did believe, that the statement of the officer that ‘one of your customers wants a couple of pints’ was competent proof that the person telephoning was a customer of the accused. This fact, if it was a fact, cannot be established in this manner, by the declaration of a third person.”

Said conversation as detailed by the witness in this case as having been received over the phone is inadmissible.

It is further urged there is not sufficient competent testimony to sustain a conviction. With this contention we fully agree. Excluding the conversation alleged to have been held by one of the state witnesses over the telephone, and the incompetent testimony as to what was found by the officers in the other rooms in the hotel, which was clearly inadmissible, there is no competent testimony to show the guilt of the defendant.

There being no competent evidence to sustain the judgment, the case is reversed.

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


text:
    W. D. CLARK v. STATE.
    No. A-8714.
    Aug. 3, 1934.
    (34 Pac. [2d] 1078.)
    C. H. Madden, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and J. H. Lawson, for the State.
   PER CURIAM.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Harmon county of illegal possession of intoxicating liquor, and his punishment fixed at a fine of $75 and imprisonment in the county jail for a term of 50 days.

Judgment was rendered December 12 and motion for new. trial was overruled and judgment entered December 16, at which time defendant was given 60 days in which to make and serve case-made • 10 days to suggest amendments, to be settled upon 5 days’ notice. On February 6, defendant was given 40 additional days to make, serve, and file case-made. The case-made was not filed in this court until April 4, being 9 days beyond the time originally granted and the 40 days’ extension. See section 3192, Okla. St. 1931. This court held in the case of Drake v. State, 7 Okla. Cr. 315, 123 Pac. 568:

“It is the duty of counsel appealing cases to this court from the trial courts to perfect the appeals in the manner provided by the statute, the provisions of which are plain and simple, and when not complied with this court does not acquire jurisdiction to review a cause on the merits.”

For the reasons herein stated, this court is without jurisdiction and the appeal is dismissed.


text:
    TOM SKINNER et al. v. STATE.
    No. A-8698.
    Aug. 3, 1934.
    (34 Pac. [2d] 1079.)
    Mathers & Mathers, for plaintiffs in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiffs in error, hereinafter referred to as defendants, were convicted in the district court of Jefferson county of the crime of larceny of domestic fowls, and their punishment fixed by the jury at imprisonment, in the state penitentiary for a period of three years for each of the defendants.

Defendant Willis Skinner contends the court erred in overruling his motion to dismiss the case as against him, because the evidence showed' that he was a resident of the state of Texas and if any offense was committed it was in Téxas, and therefore the trial court had no jurisdiction over his person or the offense.

The evidence of the state was that this defendant resided just across the river in Texas; that the stolen turkeys were found in his possession a short time after the theft; that he was advised by the sheriff that he could not be taken back to Oklahoma without requisition unless he consented; and that he did consent.

The evidence of the state further shows that the turkeys were seen on the farm of Tom Skinner in the afternoon before the theft; that he left his home suddenly on the night the turkeys were taken, and the next day he was seen in the town of Nacona, Tex., where the defendant Willis Skinner resided; that a few days thereafter the stolen turkeys were found on the Willis Skinner farm; that Tom Skinner brought back with him from Texas some turkeys, which circumstance tends to establish a system of stealing turkeys in Oklahoma and Texas and exchanging them for the purpose of concealing them.

No question of jurisdiction was raised before the examining magistrate, nor was any objection made or question raised as to jurisdiction in the district court, and no attempt was made to have the defendant discharged nntil after the state had' introduced its evidence and rested.

Under the facts as disclosed by the record, the defendant was properly in custody and the trial court had jurisdiction over his person as well as of the offense.

It is next contended the evidence is insufficient to support the verdict of the jury.

The evidence is voluminous and sharply, conflicting. It is sufficient to say the evidence of the state directly connects defendant Willis Skinner with possession of the stolen property recently after it was stolen, and all the circumstances of the case connect him and the defendant Tom Skinner with the actual taking, of the property. Defendant Willis Skinner explained his possession by saying he had raised these turkeys; but considering the marks of identification on the turkeys and the changes made in those marks after they passed into his possession with the admissions and contradictory statements of defendants, the jury were justified in refusing to believe the explanations.

This court has held that possession of recently stolen property is not of itself sufficient to authorize conviction of the accused for the. crime of larceny, but that possession of recently stolen property creates an inference of fact which, together with other incriminating circumstances, is sufficient to sustain a conviction. Bidwell v. State, 28 Okla. Cr. 1, 228 Pac. 614.

This court has also held that the onus is on defendant toi explain his possession of recently stolen property. Whitten v. State, 25 Okla. Cr. 447, 221 Pac. 115; Buford v. State, 27 Okla. Cr. 138, 225 Pac. 568; Foust v. State, 36 Okla. Cr. 390, 254 Pac. 982.

This court has affirmed other cases on evidence no stronger than that in the case at bar. West v. State, 19 Okla, Cr. 355, 198 Pac. 99; Chrisman v. State, 22 Okla. Cr. 52, 209 Pac. 656; Halbert v. State, 35 Okla. Cr. 329, 250 Pac. 436; Brinkley v. State, 37 Okla. Cr. 362, 258 Pac. 1071; Halsey v. State, 42 Okla. Cr. 221, 275 Pae. 405.

The presumption arising from the possession of recently stolen property is one of fact and not of law, and the weight, value, and probative effect of such evidence is exclusively for the jury.

Under the rule laid down in' the foregoing decisions of this court, the evidence is amply sufficient to sustain the verdict and judgment.

For the reasons stated, the cause is affirmed.

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


text:
    JOE S. GUEST v. STATE.
    No. A-8718.
    Aug. 3, 1934.
    (34 Pac. [2d] 1082.)

      Melton & Melton, for plaintiff in error.
    J. Berry King, Atty. Gen. (Smith C. Matson, Asst. Atty. Gen., and Hester Atherton Gifford, of counsel), for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Grady county of manslaughter in the first degree and was sentenced to serve a term of four years in the state penitentiary.

At the time charged defendant struck one Worsham with a knife, severing his jugular vein. Defendant operated a store at Rush Springs. On the day preceding the homicide the town constable notified defendant to appear at the city hall the following day to answer to a charge of immoral conduct. Apparently this charge was predicated on complaint made by deceased, the woman involved being his niece. Defendant was angry that such a charge had been made and insisted to the town constable it be withdrawn. Late in the day defendant saw the constable on the opposite side of the street. He crossed diagonally; the constable and deceased were talking. Defendant came up, applied a vile epithet to deceased, put his left hand in his face, and struck with his right. The constable interposed and then discovered deceased had been cut, from which he died in a few minutes. The constable and several witnesses testified substantially to this state of facts. The defense of self-defense was made, defendant testifying in substance that deceased had made threats against bina on several occasions just prior to the homicide and on the day preceding it; that he approached the constable for the purpose of asking that the charge against him be withdrawn and then discovered the presence of deceased, who reached for his pocket with his right hand; that he then applied the epithet to deceased and struck under the apprehension that his life was in danger and, as he believed, in his necessary self-defense. Under all the testimony, including that of defendant, we are satisfied the jury was extremely lenient in finding defendant guilty of manslaughter in the first degree. The testimony would have justified a more severe verdict.

■ The first contention is that there was prejudicial error in the opening statement of the county attorney in which he said the evidence would show an act of intercourse between defendant and the woman involved in the charge of immoral conduct. At the time this statement was made counsel objected and the court overruled the objection and said to the jury the opening statement was not evidence. It is often said that the issue in a criminal case is single and a defendant is to be convicted, if at all, on the charge for which he is on trial and not by proof of some other offense. Here, however, the charge which led to the homicide might tend to throw some light on the motives and conduct of defendant at and immediately preceding the homicide. The fact of the charge was material for that purpose, but its truth or falsity and the details and circumstances were not material. The opening statement of counsel was improper, but it would be unusual for the opening statement of counsel to be so prejudicial as to require a reversal, especially when the jury is informed by the court that the opening statement is not evidence. Sturgis v. State, 2 Okla. Cr. 363, 102 Pac. 57; Shacklett v. State, 23 Okla. Cr. 4, 211 Pac. 1063. See, also, Berrie v. State, 55 Okla. Cr. 302, 29 Pac. (2d) 979; 16 C. J. § 2225 f.

Closely allied with the assignment just discussed is the contention that the court erred in permitting Constable Williamson to testify he had arrested defendant on a charge of immoral conduct. The fact that a charge had been entered and an arrest made had some connection with the homicide and to some extent tended to show a motive for it. That fact was admissible under the well-settled rule that where evidence has some logical connection with the crime charged it is not inadmissible because it may tend to show an accused guilty of some other crime. Harrell v. State, 43 Okla. Cr. 278, 278 Pac. 404; Ellis v. State, 54 Okla. Cr. 295, 19 Pac. (2d) 972.

Further complaint made is that the court erred in sustaining an objection to an interrogatory on cross-examination propounded by defendant’s counsel to the witness Williamson. This occurred:

“By Mr. Melton: Q. Oh, you are the same fellow that killed old man Lee, the blacksmith, are you not? County Attorney: We object to that. The Court: Sustained. Mr. Melton: Exception.”

The witness was not asked concerning any conviction, but as to a specific act in no wise connected with the case on trial — a matter entirely collateral — a witness cannot be impeached in this manner. The ruling of the trial court was proper.

Upon a consideration of the entire record we find no material error.

The case is affirmed.

DÁVENPOBT and CHAPPELL, JJ., concur.


text:
    H. S. CAPPS v. STATE.
    No. A-8717.
    Aug. 3, 1934.
    (34 Pac. [2d] 1084.)
    Ed Crossland and Frank Hickman, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error was convicted in the district court of Tulsa county on a charge of arson, and was sentenced to serve a term of 18 months in the state penitentiary.

The judgment of conviction was rendered November 25, 1933, and the appeal was lodged in this court on April 10, 1934. No briefs, in support of the appeal have been filed and no appearance for oral argument was made at the time the case was submitted.

Where an appeal from a conviction for a felony is prosecuted to this court and no briefs in support of it are filed nor oral argument made, this court will not search the record tó discover some error upon which to predicate a reversal, but will examine the record for jurisdictional or fundamental, errors and. to ascertain if the evidence reasonably supports the verdict and judgment. In this case we have examined the record with care and have read closely the testimony., We find no jurisdictional or fundamental errors, and find ample evidence to sustain the verdict and judgment. The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    OVA CONNARD v. STATE.
    No. A-8659.
    Aug. 3, 1934.
    (35 Pac. [2d] 278.)

    Stevens & Cline and J. P. Thomas, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith O. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Comanche county of extortion and was sentenced to serve a term of five years in the state penitentiary. Defendant was charged jointly with his wife, Mrs. Ova Connard, and one Carter Waid with extorting a cashier’s check in the sum of $1,500 from one Eugene Barrow. The evidence is that those charged procured from Barrow a cashier’s check and other property by working the old “badger game”; that Barrow called at defendant’s home by appointment with him to find the defendant absent with his codefendant, Waid, only the codefendant, the wife of defendant, was at the residence, and with some feminine blandishment she engaged Barrow into a serious indiscretion in which he was not entirely reluctant. The victim, Barrow, did not spare himself in his testimony and neither defendant nor his codefendants testified. The first question argued is that the information is fatally defective. This challenge was first made by demurrer and was followed up by the introduction of testimony and by the motion in arrest of judgment. The information is under sections 2073, 2074, Okla. Stat. 1931, as follows:

“Extortion is the obtaining of property from another with his consent, induced by a wrongful use of force or fear, or under color of official right.
“Fear such as will constitute extortion, may be induced by a threat, either:
“First. To do an unlawful injury to the person or property of the individual threatened, or to any relative of his or member of his family.”

The charging part of the information is:

“* * * That at and within said county and state * * * Ova Connard, Mrs. Ova Connard and Carter Waid, while acting jointly and together, then and there being did then and there, wilfully, unlawfully, wrongfully and feloniously extort from one Eugene Barrow, one cashier’s check of cash value of $1,500, said cashier’s check being issued by the American National Bank of the City of Lawton, said extortion being accomplished by putting the said Eugene Barrow in fear of receiving great bodily harm at the hands of the defendants and said defendants threatening to take the life of the said Eugene Barrow, contrary, etc. * * *>?

This information attempts to charge extortion by putting in fear by threat to take the life of Barrow. It •wholly lacks any allegation that the property was ob? tained from prosecuting witness with his consent. That the property was obtained with the consent of the prosecuting witness is an essential allegation, since consent ís one of the elements of the crime. Section 2073, supra. One of the distinguishing features between extortion by threats and robbery is that of consent or against the will. Section 2542, Okla. Stat. 1931.

This court follows the liberal rule of pleading in criminal cases and has many times held that words used in a statute to define a public offense need not be strictly pursued in an information. Martin v. State, 35 Okla. Cr. 248, 250 Pac. 552. It is generally said that an information which states the facts in ordinary and concise language and in such a manner as to enable a person of ordinary understanding to know what it intended is sufficient. Scott v. State, 40 Okla. Cr. 296, 268 Pac. 312, and Garner v. State, 51 Okla. Cr. 368, 1 Pac. (2d) 787. But this rule does not permit the omission of allegations of the essential elements of the crime, either in terms of the statute or by words of similar import. Buffo v. State, 4 Okla. Cr. 516, 113 Pac. 233; Petitti v. State, 7 Okla. Cr. 12, 121 Pac. 278; Saddler v. State, 36 Okla. Cr. 412, 255 Pac. 719; Pettibone v. United States, 148 U. S. 197, 13 S. Ct. 542, 37 L. Ed. 419. In the latter case Chief Justice Fuller stated the rule as follows:

“The general rule in reference to an indictment is that all the material facts and circumstances embraced in the definition, of the offense must be stated, and that, if any essential element of the crime is omitted, such omission cannot be supplied by intendment or implication.”

The contention is also made that the court erred in permitting- the state to prove a similar offense at the same place, committed in the same way about a year before upon another person. The parties, the place where committed, the manner in which it was committed, and the circumstances are such that- it falls under the exception allowing proof of other offenses to show scheme of criminal action.

Since the information fails to allege an essential element of the crime sought to be chárged, it is insufficient and the court erred in overruling the demurrer.

The case is reversed.

DAVENPORT, J., concurs. CHAPPELL, J., dissents.


text:
    MRS. OVA CONNARD v. STATE.
    No. A-8667.
    Aug. 3, 1934.
    (35 Pac. [2d] 280.)
    iStevens & Cline and J. F. Thomas, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

This is a companion case to Ova Connard v. State of Oklahoma, 56 Okla. Cr. 134, 35 Pac. (2d) 278, just decided.

Defendant is jointly charged with the defendant in that case, and the judgment rests on the same information and state of facts and is controlled by the decision in that case.

The case is reversed.

DAVENPORT, J., concurs. CHAPPELL, J., dissents.


text:
    CARTER WAID v. STATE.
    No. A-8662.
    Aug. 3, 1934.
    (35 Pac. [2d] 280.)
    Stevens & Cline and J. F. Thomas, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

This is a companion case to Ova Connard v. State of Oklahoma, 56 Okla. Cr. 134, 35 Pac. (2d) 278, just decided.

Defendant is jointly charged with the defendant in that case, and the judgment rests on the same information and state of facts and is controlled by the decision in that casa

The case is reversed.

DAVENPORT, J., concurs. CHAPPELL, J., dissents.


text:
    Ex parte NEWT BAKER.
    No. A-8729.
    Aug. 10, 1934.
    (35 Pac. [2d] 285.)
    Newt Baker, in pro. per.
    Tbe Attorney General, for the ¡State.
   CHAPPELL, J.

Newt Baker filed bis petition in this court for a writ of habeas corpus, alleging he was illegally restrained of his liberty by S. E. Brown, warden of the Oklahoma State Penitentiary at McAlester.

Petitioner alleges he pleaded guilty to tbe charge of possession of morphine, and was sentenced upon such plea to serve a term of three years in the state penitentiary; to pay a fine of $500 and costs of $50.90; and that upon failure of petitioner to pay the costs that he be confined in the state penitentiary one day for each dollar of the costs unpaid.

Petitioner further alleges that he has served the time required by law to complete his sentence of three years and has served one day additional for each dollar of costs, but alleges that, since the commitment does not command him to be imprisoned at the rate of $1 per day until the fine has been thus paid, he is therefore entitled to be discharged without serving time for the fine.

Petitioner attached to his application a copy of the commitment, which contains the following language:

“It is therefore considered, ordered, adjudged and decreed by the court that you, the said Newt Baker, are guilty of the crime of possession of morphine and that you be committed to be imprisoned in the state penitentiary at McAlester, in the State of Oklahoma, and be confined in said penitentiary for a term of three years and fine- of $500, at hard labor for said offense of possession of morphine.”

A judgment by a court of competent jurisdiction valid on its face is an unanswerable return to a writ of habeas corpus issued for the release of a prisoner imprisoned by order of said judgment. Ex parte Caveness, 3 Okla. Cr. 205, 105 Pac. 184; Ex parte Hanners, 28 Okla. Cr. 203, 230 Pac. 281.

The language in the commitment, a copy of which is attached to petitioner’s application, is that defendant be committed “for a term of three years and fine of $500,” which is broad enough to require his commitment until the fine is paid.

The writ is therefore denied.

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


text:
    JOE WISDOM v. STATE.
    No. A-8691.
    Aug. 10, 1934.
    Withdrawn, Corrected, Refiled, and Petition for Rehearing- Denied Sept. 14, 1934.
    (36 Pac. [2d] 514.)

      Williams, Cowan & Benedum, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Paul Updegraff, Co. Atty., for the State.
   DAVENPORT, J.

The plaintiff in error, for convenience hereinafter referred to as the defendant, was by information charged and jointly tried with Roy Conley, was convicted of grand larceny, and sentenced to imprisonment in the state penitentiary for one year.

An abstract of the evidence on behalf of the state is, in substance, as follows: On the night of March 3, 1932, the premises of George Stillman was entered and a set of harness taken from the barn. When the harness was missed, Stillman called the officers, and they made an investigation which showed that two men had parked a truck about one hundred yards from the Stillman barn and walked to the bam, took the harness, and circled back to where the truck was parked;' one of the collars was dropped where the truck was parked.

The testimony further shows that a field near the barn had been freshly cultivated, and the parties taking the harness had crossed a portion of the field, leaving a fresh clear imprint of their shoes upon the soil. These tracks were measured and the measures preserved by the deputy sheriff. On Saturday evening Joe Wisdom was arrested in Maud, Okla. At the time the defendant was arrested he refused to talk or discuss the question of the stolen harness. On Monday morning, March 8, 1932, the defendant told the officers he had had the harness about a week; that he purchased them from a trader at Wanette for $30.

After the defendant was arrested, the deputy sheriff measured the bootees worn by him and testified the heel and foot tracks of the bootees were identical in size and shape of the tracks measured in the field.

The defendant testifying in his own behalf stated that on the night of Thursday, March 3, 1932, the night of the alleged larceny, he was at home with his wife, daughter, W. F. Northcross, and a Mrs. McDaniels, and they each knew he was there.

Defendant further stated he bought the harness in question in Wanette, in a trade yard where they have a sales day the first Monday in each month. The defendant called witnesses who testified they saw him buy a set of harness from a man in the sales yard in the town of Wanette on Saturday prior to the regular-sales day on the first Monday in March, 1932. He had tried to find the man from whom he bought the harness but had been unable to locate him. Several witnesses testified the defendant was at home the night of the alleged larceny. The defendant’s testimony shows that he was not away from home on the night of the alleged larceny, and that he came into possession of the harness by a lawful purchase.

The state’s testimony shows the harness was stolen, and when found was in possession of the defendant; that the tracks at the scene of the larceny were the same as the bootees worn by the defendant. The state’s testimony as to the taking of the harness is circumstantial, and is in conflict with the testimony of the defendant.

Several errors have been assigned by the defendant as grounds for reversal. The ninth assignment of the defendant is:

“That the court erred in overruling the motion of plaintiff in error for a new trial, to which the plaintiff in error excepted at the time. Exceptions by the court were allowed.”

The motion for a new trial includes the other assignments of the defendant, and for that reason all of the arguments presented by the defendant will be considered under his ninth assignment.

The defendant has ably and at length argued the question of the insufficiency of the evidence to sustain the judgment and set out an abstract of the testimony in order to show that the judgment is not sustained by competent evidence, and has cited in support of his contention Shaw v. State, 13 Okla. Cr. 511, 165 Pac. 617, in which this court said the possession of recently stolen property is not sufficient proof alone to warrant a conviction of the crime of larceny, which is a correct statement of the law, but possession of property stolen at a time not too long after the stealing is a circumstance for the jury to consider and weigh in connection with all the other facts in the case.

Its significance will vary with the other facts in the case, among which to be considered by the jury are the nearness or remoteness of the proven possession of the stolen property and the nature of the property as passing readily from hand to hand, together with such other facts and circumstances as would reasonably influence an opinion of the jurors as to the guilt or innocence of the defendant.

The question of the conflict in the testimony was under proper instructions of the court submitted to the jury, and the jury found against the defendant. This court has repeatedly held that conflicting issues of fact are for the sole determination of the jury. A conviction will not be disturbed on appeal because of a sharp conflict in the evidence, if the evidence adduced reasonably tends to support the verdict and judgment. Cole v. State, 18 Okla. Cr. 430, 195 Pac. 901; Smith v. State, 18 Okla. Cr. 519, 196 Pac. 734; Adeaholt v. State, 19 Okla. Cr. 122, 198 Pac. 351; Campbell v. State, 23 Okla. Cr. 250, 214 Pac. 738; Mayse v. State, 38 Okla. Cr. 144, 259 Pac. 277.

In the second paragraph of the syllabus, in Blumhoff v. State, 29 Okla. Cr. 97, 232 Pac. 862, this court said:

“The truthfulness of an explanation of possession of stolen property, although uncontradicted, must be determined by the jury.”
In Shields v. State, 32 Okla. Cr. 344, 240 Pac. 661, in the third paragraph of the syllabus, this court said:
“The presumption arising from the possession of recently stolen property is one of fact and not of law, and •the weight, value, and probative effect of such evidence is exclusively for the jury.”
In Kirk v. State, 32 Okla, Cr. 361, 241 Pac. 205, this court said:
“The jury are the exclusive judges of the credibility of the witnesses and the weight and value of the evidence, and may find a defendant guilty from the inferences arising from circumstantial evidence and disbelieve positive evidence to the contrary. In such case, where from the evidence different inferences may be drawn, this court will not substitute its judgment for that of the jury and reverse the judgment.”

Considering the facts and circumstances as shown by the record, we hold that the evidence is sufficient to sustain the judgment.

The next question argued by the defendant is the question of misconduct of the county attorney in his closing argument to the jury, referring to the witness Hubert Hudson, wherein he stated:

“You; don’t know whether he is a man of good character. You don’t know whether he is an habitual drunkard or not. You don’t know whether he has been convicted of a crime or not.”

The record shows that objections were interposed by the defendant to the argument of the county attorney quoted above, and the court immediately sustained the objections and instructed the jury not to consider the remarks of counsel.

In this case the entire argument of counsel is not shown, only that part relating to the witness Hubert Hudson. From the argument in defendant’s brief, the defendant lays great stress on the evidence of Hubert Hudson, who testified that traders met in the sales yard a,t Wanette the first Monday in each month, and that he saw the defendant purchase a set of harness on Saturday before the first Monday in March, 1932, in the trade yard at Wanette; that he was talking trade for them and defendant came up and bought them. The remarks of the county attorney which were excluded from the jury by the court were probably in reply to the argument that had been presented by the defendant, in urging the positiveness of the testimony of the witness Hubert Hudson.

In Jones v. State, 20 Okla. Cr. 233, 202 Pac. 187, this court said:

“So long as the prosecuting attorney’s argument to the jury is supported by the evidence, he may comment upon the conduct of the witnesses upon the stand and state his own conclusions drawn from the evidence.”

In Murray v. State, 24 Okla. Cr. 113, 217 Pac. 891, this court said:

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

In Carmichael v. State, 44 Okla. Cr. 160, 279 Pac. 515, this court held that the right to argument contemplates a liberal freedom of speech and the range of discussion, illustration, and argumentation is wide. Counsel have the right to fully discuss from their standpoint, the evidence, and the inferences and deductions arising from it. It is only when argument is grossly improper and unwarranted upon some point which may have affected the defendant’s rights that a reversal can be based on improper argument.

In view of the fact that the court directed the jury to disregard the remarks of the county attorney complained of by the defendant, we hold that the defendant’s rights were not prejudiced by the argument of the county attorney.

The record has been carefully considered by this court. There is no error in the record warranting a reversal. The instructions of the court correctly stated the law applicable to the facts. The defendant was accorded a fair and impartial trial.

The judgment of the trial court is affirmed.

CHAPPELL, J., concurs. EDWARDS, P. J., not participating.


text:
    RAY WILLIAMS v. STATE.
    No. A-8639.
    Aug. 10, 1934.
    (35 Pac. [2d] 282.)
    Blanton, Curtis & Blanton, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of the crime of manslaughter in the first degree, and sentenced to serve a term of four years in the state penitentiary a,t McAlester.

The testimony on behalf of the state in substance is as follows: The defendant and Jack Johnson attended. a dance and supper at the home of C. Shearley, east of Tatum, in Carter county, Okla.; the dance had been going on some time and things to eat were being served; about 3 or 4 o’clock in the morning, the defendant came into- the room and walked up to the door leading from the main room to the kitchen, which door was closed; defendant kicked the door and it did not open, and he pulled his pistol and fired, the bullet striking Jack Johnson, from the effects of which Johnson died a few hours thereafter.

It is further, shown by the state that the deceased and defendant were related, and were good friends. The testimony of the defendant is that he had taken several drinks the night of the shooting, and he could not tell whether Jack Johnson had been drinking with him, as there was a bunch of them together that took a drink, the defendant stating he took seven or eight drinks before the shooting; that he was not drunk but ivas feeling good. The defendant further stated that the pistol was in his car and after he got to the dance he put it on his person to keep it from being stolen; that when he went to the door and kicked on it the gun was slipping, down and he caught it in his hand and kept walking" trying to replace it; that it hung in his clothing and he pulled it out, and about the time he pulled it out it fired; at the time he pulled it out he had his finger on the trigger; when they went in the house Josh Davis went in front of him.

The only dispute in the testimony is as to' whether or not the defendant was trying to replace the pistol in his clothing and accidentally discharged it, or that he voluntarily pulled the pistol out of his clothing and fired the same. The testimony on behalf of the state shows conclusively that after he kicked the door he pulled the pistol out of his clothing and pointed it and fired. The defendant denies that he did this, but insists the pistol was accidentally pulled off when he was trying to arrange it in his clothing:

The defendant has assigned 19 errors alleged to have been committed by the court as grounds for reversal. This court holds that the first assignment covers all the questions raised by the defendant and is the only assignment necessary to be considered, which assignment is:

“That the court erred in overruling and denying the motion for a new trial filed by the plaintiff in error herein, over the objection and exceptions of the plaintiff in error.”

The defendant in his brief has discussed his assignments of error under one head, and urges that the verdict is not sustained by sufficient evidence, and the misdirections of the court in matters of law on the trial of the case, and failure of the court to properly instruct the jury. It is not necessary in this opinion to quote the statute as to the definition of manslaughter in the first or second degree. The facts in this case show that when the defendant came into the room with the pistol on his person and kicked on the door, he then drew his pistol and voluntarily fired it; the voluntary discharge of that pistol being the direct and proximate cause of the death of the deceased, Jack Johnson. The intentional discharge of the pistol in this public place was a misdemeanor.

It cannot be disputed that if the state’s testimony is correct when the defendant discharged the pistol he was committing a misdemeanor, and the discharge of the pistol by the defendant was the direct and proximate cause of the death of Jack Johnson. On the other hand, it is conceded that if the theory of the defendant’s defense is correct, the discharge of the pistol was an accident. The question of the conflict in the testimony was under proper instructions of the court submitted to the jury, and the jury found against the defendant. This court has repeatedly held that conflicting issues of fact are for the sole determination of the jury. The conviction will not be disturbed on appeal because of sharp conflict in the evidence, if the evidence adduced reasonably tends to support the verdict and judgment. Cole v. State, 18 Okla. Cr. 480,195 Pac. 901; Smith v. State, 18 Okla. Cr. 519, 196 Pac. 734; Adeaholt v. State, 19 Okla. Cr. 122, 198 Pac. 351; Campbell v. State, 23 Okla. Cr. 250, 214 Pac. 738; Mayse v. State, 38 Okla. Cr. 144, 259 Pac. 277.

The defendant insists that the court- erred in refusing to- instruct the jury on manslaughter in the second degree, contending that the pistol was discharged while he was trying to adjust it and he had his finger on the trigger and it was discharged accidentally. This contention, we think, is absolutely refuted by the testimony which shows that at the time the shot was fired the deceased was about three feet'from the defendant; that the bullet struck the deceased in the right side, showing that the gun had been raised at the time it was discharged. If, as contended by the defendant, the gun was pulled off while trying to adjust it in his clothes, it would not have been as high as the waist of the deceased.

Where the testimony of the defendant upon any point is so completely refuted by physical facts as to render it utterly unreasonable, the court is not required to instruct in conformity to the defendant’s theory so contradicted by physical facts. The requested instruction of the defendant on the question of second degree manslaughter was properly refused. Clark v. State, 12 Okla. Cr. 415, 157 Pac. 1188; Coffey v. State, 38 Okla. Cr. 91, 258 Pac. 923.

In Williams v. State, 12 Okla. Cr. 39, 151 Pac. 900, this court said:

“In a prosecution for murder where the evidence for the state tends to support the judgment and there is no evidence tending to support the lower degree of the crime, but the evidence of the defendant tends to prove excusable homicide on the ground of accident without negligence or fault on his part, it is not necessary for the court to' instruct the jury upon the law of manslaughter in either degree.”

In Newby v. State, 17 Okla. Cr. 291, 188 Pac. 124, in the second paragraph of the syllabus, this court said:

“The trial court is not required, however, to delve into the realms of conjecture or speculation in order to. instruct upon some' chimerical theory of the law of the case not reasonably supported by the evidence.”

Under the provisions of section 2595, O. S. 1981, it is a misdemeanor for any person to willfully discharge any species of firearms, air-gun, or other weapon or throw any missile in any public place, or any place where there is any person to be endangered thereby, although no injury toi any person shall ensue.

In Blalock v., State, 40 Tex. Cr. R. 154, 49 S. W. 100, the Texas court held:

“Where a husband believes that his wife was trying to kill herself with a gun he is not negligent in trying to take it from her; although the muzzle is pointed toward her at the time, and therefore, if she is killed in the scuffle he is not entitled to' instruction on negligent homicide.”

The record has been carefully studied. The instructions of the court, considered in their entirety, correctly and fairly stated the law applicable to the facts. The defendant was accorded a fair and impartial trial. There are no errors in the record warranting a reversal.

The judgment is affirmed.

EDWAKDS, P. J., and CHAPPELL, J., concur.