text:
    CHARLES SAUNDERS v. STATE.
    No. A-6700.
    Opinion Filed August 3, 1929.
    Rehearing Denied August 24, 1929.
    (279 Pac. 908.)

      W. K. Withington, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Canadian county on a charge of stealing chickens in the nighttime, and his punishment fixed at imprisonment in the state penitentiary for a period of 18 months.

This is the second appeal of this case. The first appeal was numbered A-5319, and at the first trial the defendant was sentenced to a term of four years. The cause was reversed for errors occurring at the first trial, and is again before this, court on appeal from a second conviction. For statement of facts in the case see Saunders v. State, 33 Okla. Cr. 336, 244 Pac. 55. Two juries having heard the evidence and having found the defendant guilty thereon, and the trial court having twice overruled the motion for a new trial on the ground of insufficiency of the evidence, we are constrained to hold that the evidence is sufficient to support the verdict of the jury, and the cause must be affirmed, unless the errors complained of by the defendant are sufficient to require the court to reverse the case.

It is first contended that the trial court erred in admitting evidence of the former conviction of this defendant in another chicken stealing case, which was also appealed to this court; the judgment in that case having been reversed on October 16, 1926 (35 Okla. Cr. 203, 249 Pac. 1117). The trial in this case began on October 18, 1926, and for that reason it is contended that, the conviction in the former case having been reversed two days before the commencement of the trial in this case, there was no conviction of record, and proof of the fact that defendant had been convicted by the jury in the former case was erroneous, in that said conviction had been held void by this court. The rule is:

“Where the character or reputation of the accused is not an element of the crime charged, the prosecution cannot put it in issue by offering evidence of his bad character or reputation.”

There is, however, an exception to that rule. If the defendant offers evidence as to his good character, then the prosecution may rebut it by evidence of bad character.

The defendant, testifying in his own behalf on direct examination, testified as follows:

“Q. Now., prior to this time, Mr. Saunders, have you ever had any trouble? A. No.
“Q. Beside this affair? A. Outside of this charge they got against me now.
“Q. You got into trouble at Oklahoma City a short time ago, you were arrested for some whisky? A. Little whisky; pint of whisky, is all. That ain’t much trouble.
“Q. And that case is pending against you now? A. Yes, sir.
“Mr. Withington: That is the only trouble you ever had. That’s all. Cross-examine.
“By Mr. Morrison (county attorney) : Q. You say there is a case pending against you in Oklahoma City, liquor charge? A. Liquor charge, yes.
“Q. Oh, I see. Just a pint of whisky or so. A. Yes, pint.
“Q. You state you have been in no other trouble besides this charge here? A. This trouble I am into right now.
“Q. Weren’t you convicted for another, crime of stealing chickens in the nighttime? A. No, sir.
“Q. You have been convicted on another charge of stealing chickens, in this court, other than this charge, ' have you not? A. Well, it was all the same time.
. “Q. Well, but that was another charge, was it not? other than this charge? A. Yes.
“Q. You were convicted of stealing some chickens from another individual, were you not? A. Yes.”

The following authorities support the rule that, when a defendant offers evidence of his good character, the state may rebut the same with evidence of bad character. Pitman v. State, 33 Okla. Cr. 165, 242 Pac. 288; Harris v. State, 39 Okla. Cr. 4, 262 Pac. 700; Morris v. State, 26 Okla. Cr. 399, 244 Pac. 377.

In the case of Alexander v. State, 35 Okla. Cr. 89, 248 Pac. 873, this court in the body of the opinion on page 874 says:

“It is next argued that the state was permitted to prove the reputation of the defendant as a person engaged in the selling of Choctaw beer. The record upon this point shows that defendant first opened up this line of evidence, over the objection of the state. Having gone into the matter of reputation, it was the right of the state to rebut.”

The defendant having taken the stand as a witness in his own behalf, and having put his good character and reputation in issue by testifying that he had not had’ any other trouble except the case then on trial and a whisky case, it was not error for the court to permit the county attorney in cross-examination to ask the defendant if he had not been in other trouble and had not been convicted in another case of stealing chickens in the nighttime, even though such case had been reversed by this court.

The defendant next contends that the court erred in admitting in evidence the testimony of J. J. Cantley, the manager of the produce company, to. the effect that the co defendant, Jim Hulls, who was traveling under the alias of C. H. Woods, told him. (Cantley) at the time he sold these stolen chickens to the produce company that his name was C. H. Woods, and that he was operating a produce company at Mustang. This testimony was clearly competent as against Woods in order to show that such a subterfuge was used to induce the produce company to buy the stolen chickens. It was also competent as against this defendant, for the reason that it was made in pursuance of the conspiracy not only to steal the chickens but to sell the same and to divide the proceeds among the participants of the theft, to wit, Hulls, Kennedy, and this defendant.

In the case of Holmes v. State, 6 Okla. Cr. 541, 119 Pac. 439, this court said:

“When a conspiracy is entered into to do any unlawful act, all persons who engage therein are responsible for all that is done in pursuance of such conspiracy by any of their co-conspirators until the purpose for which such conspiracy was entered into has been fully accomplished.
“The responsibility of co-conspirators is not confined to the accomplishment of the common purpose for which the conspiracy was entered into, but extends to and includes all collateral acts incident to and growing out of the common design.
“Where parties enter into a conspiracy for the purpose of committing a robbery and dividing the proceeds of such robbery among themselves, such conspiracy continues and such parties are responsible for the acts of their co-conspirators incident to or growing out of such conspiracy and done in pursuance thereof, until they have divided the proceeds of such robbery.”

The evidence being sufficient to support the verdict of the jury and the errors of law complained of being without merit, the cause is affirmed.

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


source: Caselaw Access Project

author: CHAPPELL, J.

license: Public Domain

text:
    WILSON HILBERT v. STATE.
    No. A-6473.
    Opinion Filed August 3, 1929.
    (279 Pac. 910.)

      Clark & Clark, for plaintiff in error.
    W. Lee Johnson, Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Pawnee county on a charge of maintaining a liquor nuisance — that is, a place where intoxicating liquor was sold, and where people congregated and resorted for the purpose of drinking intoxicating liquors — and his punishment was fixed at 30 days in jail and that he pay a fine of $100.

The defendant orally argued, the case in this case, and took the position that there was no evidence in the record supporting the verdict of the jury, and has ably presented this contention in his brief.

The following witnesses testified for the state: Allen N. Jones, Dan Lancaster, L. R. Richardson, E. O. Hart-wick, Wilson Plumlee, and Glen Livesay. It will serve no good purpose to set out the evidence of these witnesses. If the jury believed the evidence offered by the state, it was sufficient to establish that defendant’s place bore the general reputation of being a place where intoxicating liquors were' sold. It showed specific sale; it showed the presence of liquor containers and paraphernalia for selling liquor; it showed the class of people who frequented the place; it showed that drinking people congregated there for the purpose of drinking intoxicating liquor; it showed that the defendant himself was present, that he was intoxicated, and that there was a strong smell of liquor upon and about him, that his place had frequently been raided, and that as fast as one individual would be arrested for selling liquor there that another would take his place. The evidence was that the defendant knew of the violations of law taking place on his premises.

Defendant was prosecuted under section 7002, Comp. St. 1921, on a charge of keeping a place where intoxicating liquor was sold, and where people congregated and resorted for the purpose of drinking intoxicating liquor. Under a charge of this kind it is not necessary to prove that the defendant himself actually sold liquor; it is only necessary to prove that the defendant was in charge of the premises and that the people congregated at the place, the sales were made, and the liquor drank, with the knowledge and consent of the defendant.

In the case of Cameron et al. v. State, 13 Okla. Cr. 692, 167 Pac. 339, this court said:

“Where, defendants are charged with maintaining a liquor nuisance, evidence of the general reputation of the place, as to its being a place where intoxicating liquors were kept for sale, and where people congregated to drink the same, is admissiblé.”

In the case of Ostendorf v. State, 8 Okla. Cr. 362, 128 Pac. 143, this court said:

“Where a defendant is charged with keeping and maintaining a place at which intoxicating liquors are sold or illegally disposed of, it is. competent for the state to prove the general reputation of such place in such community touching this matter, and that it was a place where persons who were in the habit of drinking intoxicating liquors congregated during the week and on Sundays.”

The evidence being sufficient to support the verdict of the jury, and the errors of law complained of not being fundamental, the cause is affirmed.

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


text:
    H. V. STITES et al. v. STATE.
    No. A-6506.
    Opinion Filed August 3, 1929.
    (279 Pac. 911.)
    Clay Snodgrass, for plaintiff in error.

      L. B. Yates, Co. A tty., for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the connty court of Jackson county on a charge of having unlawful possession of intoxicating liquor, and the defendant H. Y. Stites’ punishment was fixed at a fine of $250 and to be confined in the county jail for a period of 60 days.

Since the filing of the appeal in this case, the defendant I. Stites has died, and the cause has been abated as to him. The defendant H. B. Stites first complains that the trial court erred in overruling the motion of the defendant for a directed verdict at the close of the state’s ease. The defendants were charged with the transportation of intoxicating liquor. The evidence offered by the state was sufficient to support the verdict of the jury, and the court committed no error in refusing to advise the jury to return a verdict of not guilty.

The defendant next complains that the trial court erred in giving to the jury the following instruction:

“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 6th day of January, 1926, that the defendants, H. V. Stites and I. Stites, had in excess of one quart of spirituous, vinous, fermented, or malt liquors, that the possession of such liquor,, if you should find that the defendants had the possession of the same, would be sufficient to establish an unlawful intent, unless rebutted or the contrary proved, yet it does not make it obligatory upon you to convict after the presentation of such proof, but such evidence is competent and sufficient to justify you finding the defendants guilty, provided you are satisfied from all the evidence that they,are guilty beyond a reasonable doubt.”

The defendant relies on the cases of Wilson v. State, 11 Okla. Cr. 510, 148 Pac. 823; Sellers v. State, 11 Okla. Cr. 588, 149 Pac. 1071; Beal v. State, 12 Okla. Cr. 157, 152 Pac. 808; Huff v. State, 12 Okla. Cr. 138, 152 Pac. 464; Roberts v. State, 29 Okla. Cr. 147, 232 Pac. 861. These cases, however, are not in point in the case at bar. The instructions held bad in the cases relied on by defendant are not the same as the instruction in this case. In the cases cited by defendant the court stopped with the language, “would be sufficient to establish an unlawful intent, unless rebutted or the contrary proved.” Such an instruction was held bad, because it made the presumption arising from the possession of more than a quart of liquor one of law, and not of fact, and because such instruction in effect told the jury that it was their duty to convict the defendant, unless the presumption was rebutted or the contrary proved by the' defendant. In the case at bar the trial court apparently prepared this instruction from the fourth and fifth paragraphs of the syllabus in the case of Caffee v. State, 11 Okla. Cr. 486, 148 Pac. 680. The court advised the jury:

“It does not make it obligatory upon you to convict after presentation of such proof, but such evidence is competent and sufficient to justify you in finding defendants guilty, provided you are satisfied from all the evidence that they are guilty beyond a reasonable doubt.”

The instruction complained of is not a model one, bat it does fairly state the law as applicable to the facts in this case, and the court did not, therefore, err in giving the same.

For the reasons stated, the cause is affirmed.

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


author: DAVENPORT, J.

text:
    JOHN BAILEY v. STATE.
    No. A-6478.
    Opinion Filed August 3, 1929.
    (279 Pac. 914.)
    Jesse H. Dunn, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter Called the defendant, was convicted of transporting intoxicating liquor and was sentenced to pay a fine of $100 and be imprisoned in the county jail for a period of 60 days. Motion for new trial was filed and overruled, and the case appealed to this court.

Briefly the testimony on the part of the state is that the officer saw the defendant on the street in the city of Davis, Murray county, Oklahoma; he stated he suspic-ioned the defendant had whisky, and, without any warrant for the arrest of the defendant, or to search his person, the officer searched him and claims to have found, a pint of whisky on his person. The officer admitted that he did not see the whisky, but saw the print of something, and that the defendant was walking along the street without interfering with any one. The state further introduced testimony tending to show that, after the defendant was searched and arrested on the street, the officer procured a search warrant and went to the room of the defendant and searched it and found some whisky in his room. This testimony was objected to by the defendant, his objection was overruled, and defendant duly excepted.

The defendant objected to the introduction of the testimony of the officer who searched his person on the street without a search warrant, which objection was overruled, and the defendant duly excepted. The defendant was tried for transporting intoxicating liquor, which is a separate and distinct charge to that of having intoxicating liquor in his possession. All of the testimony with reference to the searching of defendant’s room, after his person had been searched by the officer on the street and defendant placed under arrest, was incompetent and immaterial, where the defendant was being tried for a single violation of our statute for transporting intoxicating liquor.

We do not deem it necessary to further discuss the question raised by the defendant, that the court erred in permitting the testimony procured as it was to be introduced, and the defendant’s motion for a new trial. We hold that the objection of the defendant was well taken and the testimony procured by the officer was unlawfully admitted. This question has been before this court often, and the court has held that the officer was without authority to search the person of defendant on suspicion of the commission of a misdemeanor without a search warrant. Crossman v. State, 28 Okla. Cr. 198, 280 Pac. 291; Keith v. State, 30 Okla. Cr. 168, 235 Pac. 631.

In view of the facts contained in the record, and the decisions of this court upon the questions involved, the objections of the defendant were well taken, and the defendant’s conviction, having no sufficient evidence to support it without the use of the evidence that was unlawfully obtained, should be reversed.

The case is reversed.

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


text:
    JOHN SHERWOOD v. STATE.
    No. A-6666.
    Opinion Filed August 3, 1929.
    (279 Pac. 916.)
    A. V. Dinwiddie, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of the crime of selling one pint of spirituous liquor, and was sentenced to pay a fine of f 150 and be imprisoned in the county jail for a period of 30 days. Motion for new trial was filed, considered, and overruled, and defendant bas appealed to this court.

J. H. Harden, a witness on behalf of the state, testified he lived at Wichita, Kansas, that on the 30th day of July, 1926, he met the defendant and tried to buy some whisky, and he would not let him have any; on the 31st day of July he saw defendant again and told him he found where he could get some choc,

“And I don’t need your whisky and defendant said he had some now and for me to go west to the monument and to go to the first crossroads south and he would get out there in about 30 minutes; I went to the city hall and got R. J. Smith, A. E. Smith, and R. I. Wood, and went out there, and the three men hid in the brush or weeds, and I waited on the bridge. When the defendant came, he flashed a light in the car; he had a gun in one hand and a flashlight in the other; he looked me over and said, “Are you sure you are all right?’ and I said, ‘Sure;’ and he said, ‘If you ain’t I will make you all right;’ and I said, ‘Well, look me over.’ He gave me the pint of whisky, and I paid him four silver dollars; the other parties who came out in the car with me was about 10 feet, maybe farther, maybe less, from me.”

R. J. Smith and A. E. Smith testified to seeing the defendant deliver the bottle of whisky to the witness, J. H. Harden, and that they heard the sound of silver dollars as they were counted out in the hands of the defendant.

The state witnesses admitted they were hired by the county of Payne, and were receiving f 10 per day and their expenses to go around and catch law violators; and admitted they had applied to- this defendant prior to the time they bought this pint of whisky from him to buy whisky. They are what you would call professional witnesses.

The defendant denied he sold the whisky to J. H. Harden, and testified two of the witnesses came to his place of business on more than one occasion trying to buy whisky from him; he did not sell them any whisky, and denied he had gone out on the road and delivered the whisky to witness Harden and received any money for it. It was brought out on cross-examination that in 1918 the defendant had been fined for a violation of the prohibitory laws. This is, in substance, all of the testimony.

The defendant has assigned several errors alleged to have been committed by the trial court, but upon examination of the record they are of not sufficient merit to justify a reversal of this case.

The court properly instructed the jury as to the law. This court has repeatedly held that, where there was any competent testimony to sustain the verdict, even though the testimony was conflicting it would not disturb the verdict of the jury. The testimony in this case, if believed by the jury, is sufficient to sustain the judgment. This court realizes that it becomes necessary for an officer of the law to secure evidence men to assist in securing evidence in order to sustain a conviction, but it does not look with favor upon officers, who are charged with the duty of seeing that the law is enforced, going out and appealing to parties trying to induce them to violate the law by misrepresentation and misstatements as to the position they occupy. In this case the testimony shows that the main prosecuting witness had prior to the date of the alleged sale gone to the defendant and tried to buy whisky from him, and that the defendant told him he did not have any whisky for sale, and was not in the business of selling whisky; that he returned the following day, and finally, according to his testimony, the defendant agreed to sell him a pint of whisky, and the defendant then met him out on the road and delivered him the pint of whisky, for which the witness paid $4. If the testimony of the state is to be believed, an officer of the law suggested a criminal act and lured the accused into the commission of said act.

In view of the fact that the record in this case shows that the only evidence in this case against the defendant, is the evidence of witnesses, who are nonresidents of the state, who admitted they were hired to detect or induce men to violate the law; and in view of the further fact that they appealed to the defendant prior to the date of the alleged sale and tried to buy whisky from him, and he told them he was not in the business, we believe that the ends of justice will be properly met by a modification of the sentence in this case from a fine of $150 and 30 days in jail, to a fine of $50 and 30 days in jail.

Finding no prejudicial errors in the record, the judgment as modified is affirmed.

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


author: CHAPPELL;, J.

text:
    LONNIE PELTIER v. STATE.
    No. A-6694.
    Opinion Filed August 3, 1929.
    (279 Pac. 919.)
    Tom W. Cheatwood, for plaintiff in error.
    J. D. Grigsby, Jr., Co. Atty., for the State.
   CHAPPELL;, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Cleveland county on a charge of having possession of intoxicating liquor, and his punishment fixed at a fine of $50 and to be imprisoned in the county jail for 30 days.

The defendant was charged with the possession of three quarts of whisky with intent to sell the same. The state called as its only witness C. I. Adams, deputy sheriff of Cleveland county, who testified that he found three quarts of whisky about 6 o’clock in the evening on the Pete Decker place, and that Henry Richardson lived on the place at that time; that the place where he found the whisky was about 6 miles from the residence of the defendant ; that the witness moved the whisky about 10 feet from where he found it, and that about 8 o’clock in the evening, the defendant, with one Pete Butler, came to the place where the whisky had been hid, apparently looking for the same; that the defendant remarked, “It was right here,” looking about in the pumpkin vines where the whis-ky was. The witness testified he then arrested the defendant and told him he had the whisky. The witness claimed the defendant told him that he had come out there after a drink. On cross-examination the witness was asked if the defendant was ever in possession of the liquor, and he said, “No.” He was asked if he knew who put the whisky there, and he said, “No”. ■

That was all the evidence. The defendant moved the court to advise the jury to return a verdict of not guilty, which motion was overruled. We are of the opinion that it was error for the court to permit the case to go to the jury.

There being no evidence in the record to support the verdict of the jury, the cause is reversed.


text:
    FRANK DUNKIN v. STATE.
    No. A-6674.
    Opinion Filed August 3, 1929.
    (279 Pac. 923.)
    Brown Moore and Guy L. Horton, for plaintiff in error.
    C. C. Suman, Co. Atty., for tbe State.
   CHAPPELL, J.

Tbe plaintiff in error, hereinafter called defendant, was convicted in tbe county court of Payne county on a charge of selling intoxicating liquor, and bis punishment fixed at a fine of $200 and to be confined in the county jail for a period of 30 days.

On tbe 15th day of February, 1927, tbe defendant made application to tbe trial court for an order that witnesses out of tbe state be examined on a commission. The application was in proper form, complying in every particular with sections 2853-2856, Comp. St. 1921. Tbe state made a counter showing that the witnesses would not testify to the facts stated in the application of the defendant, but made no effort to show that the evidence was not material to the defendant, and did not offer to permit the application to be read to the jury as the evidence of the absent witnesses.

Section 2857, Comp. St. 1921, provides as follows:

“If the court or the judge to whom the application ifiy made, is satisfied of the truth of the facts stated and that the examination of the witness is necessary to the attainment of justice, an order must be made that a commission be issued to take his testimony, and the court or judge may insert in the order a direction that the trial be stayed for a specified time reasonably sufficient for the execution of the commission and return thereof, or the case may be continued.”

The question to be determined in this case under the law is, Was it an abuse of discretion for the court to refuse to issue a commission directed to a proper person to take depositions of the witnesses stated in defendant’s application? This court has frequently had this question under consideration, and it is no longer an open one.

In Ennis v. State, 13 Okla. Cr. 675, 167 Pac. 229, L. R. A. 1918A, 312, this court said:

“When an application for continuance for sufficient time to take the depositions of nonresident witnesses is made in accordance with these provisions, it is error to deny the same if the showing made discloses the materiality of the testimony and the necessity of the same to fairly present the defense of the accused, unless on appeal it appears from the record that the facts sought to be established were available from other witnesses within the jurisdiction of the court, or that the application was intended merely to delay the proceedings and not in order that justice may be done.”
“When an application for continuance to take depositions complies in all particulars with the statute and when the showing made clearly entitles the accused to take the depositions and no issue is made by the state that the testimony is not essentially material to the defense of the accused, a postponement or a continuance should be allowed, and proper orders made by the court for the taking of the depositions as provided unless counsel for the state offer to admit that the absent witnesses would testify to the facts set out in the application, and that such application could be read in evidence in lieu of the depositions sought.”

The rule laid down in the above case has been followed in Biley v. State, 40 Okla. Cr. 369, 269 Pac. 377; Russell v. State, 41 Okla. Cr. 71, 270 Pac. 339, par. 3 of the opinion; Sullivan v. State, 41 Okla. Cr. 371, 273 Pac. 372.

The application to take depositions in this case, being in proper form and being made in time, should have been granted by the trial court. The witnesses testifying against the defendant were nonresidents of the state. The defendant in his application alleged that the reputation of such witnesses for truth and veracity was bad in the community where they resided, and that he desired to take depositions for the purpose of proving that their reputation for truth and veracity was bad in that community. This evidence was material to the defense of the defendant, and the opportunity to prove the reputation of such witness was bad was a right belonging to the defendant which the court could not arbitrarily deny him.

For the reasons stated, the cause is reversed.

EDWABDS, P. J., and DAVENPOBT, J., concur.


text:
    CLAUDE E. DELAY et al. v. STATE.
    No. A-6670.
    Opinion Filed August 3, 1929.
    (279 Pac. 925.)
    Brown Moore and Guy L. Horton, for plaintiff in error.
    C. C. Suman, Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Payne county on a charge of manufacturing whisky, and his punishment fixed at a fine of $300 and to be confined in the county jail for a period of 60 days.

This case is substantially the same as the case of Frank Dunkin v. State, 44 Okla. 102, 279 Pac. 923, decided at this sitting of the court. The defendant Frank Dunkin, was charged with selling, while this defendant is charged with manufacturing, whisky. The defendant in this case presents the same assignments of error on appeal to this court as were presented in the Dunkin Case.

Therefore this case is reversed for the same reasons as stated and authorities cited in the opinion rendered in the case of Frank Dunkin v. State.

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


text:
    WALTER R. PERRY v. STATE.
    No. A-6671.
    Opinion Filed August 3, 1929.
    (279 Pac. 924.)
    Brown Moore and Guy L. Horton, for plaintiff in error.
    C. C. Suman, Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Payne county on a charge of selling intoxicating liquor, and his punishment fixed at a fine of $200 and to be confined in the county jail for a period of 30 days.

This case is substantially the same as the case of Frank Dunkin v. State, 44 Okla. Cr. 102, 279 Pac. 923, decided at this sitting of the court. Both defendants are charged with the same crime, both received the same sentence, and both defendants present the same assignments of error on appeal to this court.

This case is therefore reversed for the same reasons stated and authorities cited in the opinion rendered in the case of Frank Dunkin v. State.

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


text:
    J. S. COOPER v. STATE.
    No. A-6693.
    Opinion Filed August 3, 1929.
    (279 Pac. 936.)
    Tom W. Cheatwood, for plaintiff in error.
    J. D. Holland, Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Cleveland county on a charge of having possession of mash, wort, and wash fit for distillation and manufacture of intoxicating liquor, and his punishment fixed at a fine of $50 and to be imprisoned in the county jail for 30 days.

The only question raised by the defendant is that the evidence is insufficient to support the verdict of the jury. W. W. Jennings, undersheriff, and C. I. Adams, deputy sheriff, testified that they searched the premises of the defendant under a search warrant; that they found a 50-gallon barrel of mash fit for distillation buried in the garden at one side of defendant’s barn; that they found a still and a gallon jug with about one-half pint of whisky in it in the granary of the defendant; that on the way back to town they overtook the defendant and arrested him. In a conversation with the officers the defendant said that he wanted to give bond, get his crops laid by, and plead guilty to the charge of having possession of the articles found under the search warrant. The defendant did not testify and offered no evidence. Defendant cites no authorities in his brief.

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

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


text:
    J. R. WATSON v. STATE.
    No. A-6689.
    Opinion Filed August 3, 1929.
    (279 Pac. 934.)
    Sam S. Gill, for plaintiff in error.

      Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted on a charge of unlawfully, wrongfully, and knowingly maintaining a nuisance by maintaining a place where intoxicating liquor, to wit, whisky, was kept, bartered, sold, given away, and otherwise furnished, and was sentenced to pay a fine of $50, and be confined in the county jail for a period of 30 days. The defendant has appealed from the judgment of the trial court.

The testimony in substance on behalf of the state shows that W. P. Lindsay went to the home of the defendant, and searched the home; about the time they got in the house they claim they saw the wife of defendant pour something out of a half-gallon fruit jar; they claim it smelled like whisky; they found a five-gallon jug containing about a drink of liquid which smelled like whisky. While they were searching the house, the defendant drove up, and had a lot of bottles in his car, but there was no whisky in the bottles. A number of questions were asked and objected to by the defendant, the objection overruled, and defendant excepted.

There is no testimony in the record showing any definite amount of whisky they claim they found at defendant’s home. In fact, the only testimony that indicates there was any whisky at all is the testimony of one of the witnesses saying they found about a drink in a jug, and another witness claims to have seen the wife of the defendant pouring something in the slop bucket from a half-gallon jar that smelled like whisky. Neither the contents of the slop bucket nor the drink they claim to have found in the jug was analyzed, nor is there any testimony showing that any one tasted it. The only testimony tending to show that there was any whisky found at defendant’s home was that it smelled like whisky, and there was no definite quantity claimed to have been found at this house.

All of the witnesses were asked, in substance, the following. questions, and were permitted to answer the same, over the objection of the defendant:

“Q. Do you know the general reputation of the Watson place, being located two and one-half miles east and one mile north of Edmond? A. It was three miles east. (This question was objected to on the ground that it was incompetent, irrelevant and immaterial. The objection overruled, and defendant excepted.)
“Q. Do you know that general reputation? A. Yes, sir.
“Q. Do you know the general reputation of that place as being a place where whisky is kept, bartered, sold, given away, or otherwise furnished to divers persons? A. Yes, sir.
“Q. Is that reputation good or bad? A. Bad.
“Q. Do you know the general reputation of that place where people were permitted to go and buy whisky? A. Yes, sir.
“Q. Was that general reputation good or bad? A. Bad.”

All of the questions as to the reputation of the place were objected to by the defendant, his objection overruled, and defendant duly excepted. At the close of the state’s testimony, the defendant made the following motion:

“Comes now the defendant at the conclusion of the state’s testimony, and moves the court to instruct the jury to return a verdict of not guilty. Which motion was overruled and defendant duly excepted.”

The defendant urges several grounds for reversal in this case; the first being that the trial court erred in overruling plaintiff in error’s motion for a new trial; fourth, the verdict of the jury is contrary to the law and evidence, and not responsive to the charge laid in the information; eighth, the trial court erred in permitting, the county attorney to ask improper questions and trying to prove the reputation of defendant’s home; ninth, the trial court erred in refusing to direct the jury to return a verdict of not guilty.

There is no testimony in the record to show the sale of any whisky by the defendant, or that a sufficient quantity of whisky was found in the possession of the defendant to raise the presumption of the intention of the defendant to sell whisky. From a careful examination of the record in this case, we hold that the testimony is insufficient to sustain the judgment.

The defendant urges that the court erred in permitting the state, over the objection of the defendant, to go into the reputation of the defendant’s home as being a place where intoxicating liquor, to wit, whisky, was kept, bartered, sold, given away, and otherwise furnished to divers persons, without having first shown that the place itself was a place where whisky was kept to sell, barter, give away, or otherwise furnish to others, not merely that it bore such reputation. Welch v. State, 35 Okla. Cr. 2, 246 Pac. 1113; Yakum v. State, 30 Okla. Cr. 184, 235 Pac. 253; Conley v. State, 40 Okla. Cr. 128, 267 Pac. 491.

The defendant insists that the testimony does not sustain the allegations in the information, and that, if the court had excluded from the consideration of the jury the evidence as to the general reputation of his home, the jury would not have rendered a verdict of guilty on the testimony of the state witnesses.

It is further urged by the defendant that the state offered no testimony to show that the home of the defendant was a place of public resort. If the testimony of the witness, admitted over the objection of the defendant, showing the general reputation of defendant’s home as being a place where intoxicating liquor was kept for the purpose of sale, had been excluded from the jury, no one can tell what the verdict of the jury would have been. This court has repeatedly held that, before evidence on behalf of the state would be admitted to show the general reputation of the defendant’s home, it must be shown that the place itself was a place of public resort, not merely that it bore such reputation. We think the state failed, first, to offer testimony sufficient to sustain the allegations in the information, and, second, that the objections of the defendant to the testimony of the state upon the question of the reputation of his home were well taken, and that the court erred in not sustaining the same. Leigh v. State, 41 Okla. Cr. 332, 273 Pac. 280.

There are other errors assigned and urged by the defendant, but, in the view we take of this record, it is not necessary to consider them. For the reasons herein stated, the case is reversed.

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


author: EDWARDS, P. J.

text:
    ANDREW (RED) JOHNSON v. STATE.
    No. A-7133.
    Opinion Filed August 3, 1929.
    (279 Pac. 933.)
    Joe S. Eaton, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the superior court of Okmulgee county on a charge of robbery with firearms, and was sentenced to- serve a term of 15 years in the state penitentiary.

The evidence for the state tends to show that at the time charged one H. Lipschnitz was held up and robbed, about 2 or 2:30 a. m., on a highway bridge near Okmulgee. The only person identifying defendant as the person who committed the robbery is Lipschnitz. His testimony is positive. The defense was alibi, testified to by defendant and several witnesses, who tend to corroborate him. While the evidence is sharply conflicting, there is testimony amply sufficient to sustain the verdict.

The principal contention is that the court admitted incompetent and hearsay testimony, which affected the verdict and deprived defendant of a fair trial. Complaint is made of the manner in which the witness Lipschnitz identified defendant after his arrest. This was done by calling the witness to the city jail, and by bringing defendant alone before him to be identified. Upon this point the witness, in answer to a question, testified:

“A. Yes, sir; the officer told me to g,o up to that cell, and look for- ‘Red’ Johnson, and ‘see if that is him.’ I was afraid to go too- far; I came back, told him I didn’t see anybody. I hollered for ‘Red’ Johnson. He said, ‘Wait a minute,’ and took me into a little room, and brought this man in. The minute he brought him in, I said, ‘He is the man’.”

This is not an identification of the defendant as the one who committed the robbery, but testimony of an “extrajudicial identification,” improperly suggested. In the case of State v. Evans, 98 Or. 234, 192 Pac. 1062, 1068, 193 Pac. 927, the court, in passing upon this character of testimony, said:

“The issue was whether the defendant robbed the prosecuting witness. Applicable to that issue was the question whether at the trial the prosecuting witness could identify the defendant as the man who committed the crime. Whether he identified him at any other time or place, either before or after the trial, would be immaterial, and in a sense a self-serving declaration. It ought not to have been admitted in the first place, although no objection was made to it.”

One Charley Kelly, a witness for the state, was permitted to testify that, soon after the robbery, he was given a description of defendant by Lipschnitz, and upon this description alone he identified defendant. It can hardly be contended but that this is rank hearsay. In the case of Com. v. Fagan et al., 108 Mass. 471, 472, under a somewhat similar state of facts, it was said:

“At the trial, it was not denied that the robbery had been committed. The only matter really controverted was the question whether the defendants were sufficiently identified as the robbers. The person who had been robbed was permitted to testify that he gave to the police officers a description of the persons who assaulted him, and the officers were also permitted to testify,, in substance, that by means of that description they recognized the defendants as the assailants. According to the decision in Com. v. Moulton, 4 Gray [Mass.] 39, it would have been improper to have asked the first witness what he said to the officers. Nothing that he could have so said, in the absence of the defendants, would have been admissible as evidence against them.”

In Warren v. State, 103 Ark. 105, 146 S. W. 477, 479, Ann. Cas. 1914B, 698, the court said:

“It is next insisted that the court erred in refusing to exclude the testimony of the two officers as to the identification of defendant. This character of proof is referred to in the books as ‘extrajudicial identification,’ and is generallv held to be inadmissible. Reddick v. State, 35 Tex. Cr. R. 466, 34 S.W.274, 60 Am. St Rep. 56; Murphy v. State, 41 Tex. Cr. R. 120, 51 S. W. 940; State v. Egbert, 125 Iowa, 443, 101 N. W. 191; State v. Houghton, 43 Or. 125, 71 Pac. 982; People v. Johnson, 91 Cal. 265, 27 Pac. 663; People v. McNamara, 94 Cal. 509, 29 Pac. 953. Prof. Wigmore says that such testimony is admissible for the purpose of restoring the credit of an impeached identifying witness; that is to say, where the witness is impeached by proof of prior contradictory statements showing that the identification is' a recent contrivance. 2 Wigmore, 1129, 1130. His views on this subject are not in accord with the weight of authority, as we attempted to show in Burks v. State, 78 Ark. 271, 93 S. W. 983, 8 Ann. Cas. 476, and we there declined to follow them. But nowhere, so far as we can ascertain, has it ever been held that a so-called ‘extrajudicial identification’ is admissible as original testimony; and it was therefore, in any view of the case, inadmissible, for there was no attempt to impeach the witness by contradictory statements, or otherwise. The testimony was introduced as original evidence, and it was clearly inadmissible, for it was not competent to corroborate the identifying witness by proof of former identification.”

The admitting of this incompetent evidence, under the record before us, may well have influenced the verdict and have deprived the defendant of a fair trial.

The case is reversed and remanded.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    STATE v. M. L. HARRIS.
    No. A-6765.
    Opinion Filed July 13, 1929.
    Rehearing Denied August 3, 1929.
    (279 Pac. 925.)

      Edwin Dabney, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Toby Morris, Co. Atty., for the State.
    Wm. T. Powell, for defendant in error.
   CHAPPELL, J.

This is an appeal by the state of Oklahoma from an order of the district court of Cotton county sustaining a motion to set aside an information and discharging the defendant from prosecution, for the reason that the evidence taken at the preliminary hearing was insufficient upon which to base any information charging the defendant with the crime charged in this cause or any other crime, and was wholly insufficient to authorize the state to proceed with the prosecution of the defendant.

Plaintiff and defendant agree that there is only one matter to be considered by this court on this appeal; that being, Did the district court in quashing the information as shown by the record abuse its discretion in so doing? The defendant admits in his brief that the state made a sufficient showing at the preliminary hearing that the crime charged in the information had been committed. The only question left, therefore, in the case for this court to'determine is, Did the evidence offered by the state show sufficient cause to believe that the defendant was guilty of the crime charged? It would serve no good purpose to set the evidence out in this record, but it is sufficient to say that the evidence shows, first, a motive for the defendant to commit the crime.

The property burned was a toll bridge. A free bridge was being built not very far from the location of the defendant’s bridge. The building of this free bridge would practically wipe out defendant’s investment. The defendant had 120,000 worth of insurance. The state next showed that the defendant was seen near the place where the fire started about sundown on the evening of the fire. Defendant first denied being at the bridge between 8 a. m. and 11 p. m. of that day, but later admitted that he was near the bridge at or about sundown. The defendant cursed and abused one witness he knew would testify to seeing him near the bridge, and tried to intimidate the witness. Defendant claimed to have seen the glare of the fire from the Texas side of the river, and phoned his wife that his bridge was on fire, although it was impossible for the defendant from the distance where he claimed to telephone to be able to tell whether it was his bridge or the railroad bridge burning.

The defendant, instead of wading the river, as it appears from the evidence he easily could have done, after discovering the fire, went around by the way of Burk-burnett, went out of his way two miles and one-half to get some whisky, stopped at Devol for water in his radiator and air in his tires, and leisurely reached the scene of the crime after the fire had practically been put out by his neighbors. Arriving at the scene of the fire, the defendant said, ‘Whoever burned this bridge did a good jobthat he had about enough insurance to pay for the nails in the bridge; that he would rather have the rest of the bridge burn. Defendant spent the rest of the night on the part of the bridge not burned before his return. During the night the remaining part of the bridge caught fire in several places. The defendant called no one to help him, and said he did not know how the balance of the bridge caught fire. The defendant admitted that coal oil cans found near the bridge were his, but later denied that they were. Waste saturated with oil was found on the stringers and various parts of the bridge. The state showed other circumstances tending to connect the defendant with the commission of this crime. The defendant did not take the stand, and made no explanation of his conduct, statements, or whereabouts.

In the case of State v. Bell, 13 Okla. Cr. 664, 166 Pac. 451, this court said:

“A motion to set aside an information on the ground that the proof offered at the examining trial is insufficient to establish the commission of the crime charged is addressed to the sound discretion of the trial court. On appeal by the state, therefore, this court will examine carefully all the facts and circumstances disclosed at the hearing on the motion, and determine whether or not the court abused his discretion. If not, the judgment of the trial court will be affirmed; if so, the judgment will be reversed, and the cause remanded for trial.”

In the case of McCurdy v. State, 39 Okla. Cr. 310, 264 Pac. 925, 925, this court said:

“A preliminary examination, under the provisions of section 17, art. 2, of the state Constitution, is analogous to an investigation by a grand jury. The grand jury upon an investigation has authority to return an indictment which becomes the basis for a prosecution. The magistrate upon a preliminary examination has authority to hold an accused for trial, and when so held for trial and a transcript of his order is filed in the district court, the county attorney is authorized to file an information charging the offense for which accused is held by the committing magistrate. The information so filed then becomes a basis of the prosecution in all respects similar to a charge by indictment. It is subject to attack in the same manner as an indictment' by motion to quash or by demurrer. An investigation by a grand jury or a preliminary examination by a magistrate is not a trial, and the rules) of evidence are not applied as rigidly as in the trial of a case before the court. * * *
“In order to warrant the magistrate in holding defendant for the action of the district court, it is only required that it appear that a public offense has been committed, and that there was sufficient cause to believe defendant guilty of an offense. Section 2495, Comp. St. 1921.”

This court, in Ex parte Miller, 29 Okla. Cr. 301, 233 Pac. 775, quoted 1 Burr’s Trial:

“In an examination of a complaint against Aaron Burr before Chief Justice Marshall, sitting as a committing magistrate, he said: ‘On an application of this kind,, I certainly should not require that proof which would be necessary to convict the person to be committed, on a trial in chief; nor should I even require that which should absolutely convince my own mind of the guilt of the accused, but I ought to require, and I should require, that probable cause be shown; and I understand probable cause to be a case made out by proof furnishing good reason to believe that the crime alleged has been committed by the person charged with having committed it.’ I Burr’s Trial, 12 [25] Fed. Cas. [page 2] No. 14692a.”

The proof offered by the state being sufficient to establish probable cause that defendant committed the crime charged, it follows that the judgment of the district court of Cotton county setting aside the information should be reversed, and this cause remanded with directions to overrule the motion to set aside the information and proceed with the trial of this cause. It is so ordered.

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


text:
    G. L. GAMBLE et al. v. STATE.
    No. A-6773.
    Opinion Filed August 8, 1929.
    (279 Pac. 982.)
    Glaseo & Glaseo, for plaintiffs in error.
    W. B. M. Mitchell, Co. Atty., for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of McClain county on a charge of selling intoxicating liquor, and their punishment fixed at a fine of $50 each,, each to be confined in the county jail for a period of 30 days.

This court, in an opinion filed on the 22d day of June, 1929, 43 Okla. Cr. 317, 278 Pac. 665, dismissed the appeal for the reason that the same had not been filed within the 60 days prescribed by statute. The defendants filed a petition for rehearing upon the ground that the trial court had granted an extension of time in which to file the appeal and that the appeal had been filed within the time fixed by the trial court.

It appearing to the court from a re-examination of the record that the appeal was filed in time, the order dismissing the appeal is vacated and set aside, and the appeal reinstated. The evidence being sufficient to support the verdict of the jury and no fundamental errors of law appearing upon the record, the cause is affirmed. The mandate having heretofore issued and the defendants having been taken into custody and having served a part of their sentence in the county jail, it is ordered that no new mandate issue, but that judgment he executed on the original mandate issued on the 31st day of July, 1929.

EDWARDS, P. J., concurs.

DAVENPORT, J., absent.


text:
    GEORGE BELL v. STATE.
    No. A-6703.
    Opinion Filed August 10, 1929.
    (279 Pac. 930.)
    L. A. Wallace, for plaintiff in error.

      A. N. Boatman, Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Okmulgee county on a charge of having unlawful possession of intoxicating liquors, and his punishment fixed at a fine of $150 and imprisonment in the county jail for a period of 60 days.

Defendant complains, first, that the evidence is insufficient to support the verdict of the jury. This court has many times said that it will not grant a new trial on the ground of insufficient evidence, where there is any competent evidence in the record to support the verdict, if the jury believed the testimony offered by the state. The credibility of the witnesses and the weight and value to be given their testimony is for the determination of the jury. Burrows v. State, 43 Okla. Cr. 256, 277 Pac. 685; Jackson v. State, 42 Okla. Cr. 86, 274 Pac. 696; Nichols v. State, 43 Okla. Cr. 52, 277 Pac. 263; Halsey v. State, 42 Okla. Cr. 221, 275 Pac. 405.

The defendant next complains that the court erred in its instruction to the jury. In the case of Guerin v. State, 43 Okla. Cr. 172, 277 Pac. 601, this court said:

“The instructions must be considered as a whole, and when considered all together, if they fairly and correctly state the law applicable to the case, they will be sufficient.”

All the facts and circumstances introduced by the state were sufficient to justify the jury in returning a verdict of guilty. The errors of law complained of not being fundamental, the cause is affirmed.

EDWARDS, P. J., concurs.

DAVENPORT, J., not participating.


text:
    JOE BUTCHER v. STATE.
    No. A-6665.
    Opinion Filed August 10, 1929.
    Rehearing Denied August 31, 1929.
    (279 Pac. 973.)
    Eaton, Burroughs & Cavanaugh, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, Joe Butcher, hereinafter referred to as defendant, was convicted in the district court of Okmulgee county of the crime of receiving stolen property, and his punishment fixed at imprisonment in the state penitentiary for a term of two years.

Succinctly stated, the proof on the part of the state is substantially as follows: Joe Butcher was operating a garage in the town of Beggs. He had working for him his half-brother, Sam Mizer, and his wife’s cousin, George Ranney, boys respectively of the ages of 18 and 20. A part of Butcher’s business was the dealing in of secondhand parts for automobiles. These parts were used both for repair work in the garage and were sold to the public. Mizer and Banney both testified that defendant told them he would handle all the secondhand parts they brought in.

It was pursuant to such understanding that Mizer and Ranney proceeded to embark on the wholesale stealing of automobile parts from the owners of automobiles in that neighborhood. Their scheme of operation seemed to be this: They would go out at night and dismantle an automobile, and haul the stolen parts to the defendant’s garage, where the same were either used or stored for future use or sale. This was an every-night diversion for these boys. Among the parts stolen from various automobile owners were the casings, generators, etc., taken from Paul Styles, and Gr. W. Styles, which defendant was charged with receiving in this case.

Mizer and Ranney both testified for the state, and, while they were evidently unwilling witnesses, the county attorney, as well as counsel for the defendant, succeeded in drawing from them ample evidence to sustain this conviction. While the defendant denies receiving this stolen property, although some of it was found attached to an automobile he owned, it is practically inconceivable that any sane man could have been wholly ignorant of the nightly operations of these two miscreants, much less of the presence of this large quantity of stolen property upon his premises, ■ especially property of the kind that he had daily use for in his business.

The defendant first complains that the evidence is insufficient to support the judgment. In support of this the defendant urges that there is a failure of proof as to the value of the property. The statute defining the offense reads as follows :

“Any pérson who buys or receives, in any manner, upon any consideration, any personal property of any value whatsoever, that has been stolen from any other, knowing the same to have been stolen, is punishable by imprisonment in the penitentiary not exceeding five years, or in the county jail not exceeding six months, or by a fine not exceeding two hundred and fifty dollars, or by both such fine and imprisonment.” Section 2113, C. O. S. 1921.

This section provides, in substance, “Any person who buys or receives, * * * any personal property, of any value whatsoever, * * * is guilty of the offense.” It is only necessary that the property have some value, the amount of value being immaterial. The offense of receiving stolen property is not distinguished into grades or degrees, according to the value of the property received, such as larceny, either grand or petit, according to the value of the property taken. The proof here according to the state’s evidence showed the unlawful receiving of certain automobile casings, tubes, generators, and a klaxon horn by this defendant. There was no showing in dollars and cents of the value of this property, but this court will take judicial notice of the fact that this property is of some value. What is within the common knowledge of the people generally is within the jtidicial knowledge of the courts. The court would not take judicial notice of the market value of an automobile casing, but would know judicially that it was an article of some value. Greenwald v. Yazoo & M. V. R. R. Co., 115 Miss. 598, 76 So. 557; Lindsey v. Hewitt, 42 Ind. App. 573, 86 N. E. 446.

It is also contended that the proof fails, in that there is a fatal variance between the allegations of the information and the proof adduced at the trial, in this,, to wit; that the information charges the receiving of certain personal property alleged to have been stolen from joint owners, while the proof discloses that a part of this stolen property was owned by one person, and other parts by another person, and none of it by both of said persons.

In the case of White v. State, 23 Okla. Cr. 198, 214 P. 202, 203, this court said:

“Averments necessary to charge larceny are not essential in an information charging the felonious receiving of stolen property, based on section 2113, Comp. St. 1921. In such an information it is not necessary to state the ownership of the property.”

In the body of the opinion in above case it is said:

“It is claimed that the amended information is further insufficient, because it did not contain all the essential averments necessary to charge larceny. It has been held that averments necessary to charge larceny are not essential in an information charging the felonious receiving of stolen property, based on section 2113, Comp. Stat. 1921. In such an information it is not necessary to state the ownership of the property. Hartgraves v. State, 5 Okla. Cr. 266, 114 Pac. 346, 33 L. R. A. (N. S.) 568, Ann. Cas. 1912D, 180; McGill v. State, 6 Okla. Cr. 512, 120 Pac. 297; Webb v. State, 19 Okla. Cr. 450, 200 Pac. 719; 17 R. C. L. 87; State v. Sakowski, 191 Mo. 635, 90 S. W. 435, 4 Ann. Cas. 751.”

The White Case effectually disposes of this contention of defendant’s counsel. The allegation as to ownership being immaterial, there could be no material variance of proof.

Counsel also contended that the state failed to fasten guilty knowledge of the fact that the goods alleged to have been received by defendant were known by Mm to have been stolen. This raises a question of veracity between the witnesses Mizer and Ranney, on the one side, and the defendant, on the other. Mizer and Ranney are corroborated by the fact that the goods were stolen at the time and from the persons they testified they had stolen the goods from, and a portion of the goods at least were found at the defendant’s place of business. Mizer and Ranney were further corroborated by the fact that the defendant was engaged in the business of handling the same kind of articles they had stolen, and had a daily use and sale for the same. At least one of the stolen articles was found on the defendant’s car. The jury settled this issue of fact in favor of the state.

The defendant further complains that he could not be convicted of receiving stolen property on proof of a conspiracy or agreement to steal property generally. It is a sufficient answer to say that the evidence here relied upon by the state for a conviction is that defendant’s part of the unlawful agreement was to buy and receive the property, provided the other parties stole it.

In the case, of Price v. State, 9 Okla. Cr. 370-373, 131 Pac. 1102, 1106, this court said:

“It is urged on behalf of appellant that the trial court erred in not advising the jury to acquit appellant upon the ground that the evidence showed that appellant was guilty of the crime of grand larceny, in that he was a party to the original taking. We believe that appellant might have been convicted for grand larceny on the evidence in this case, but it does not necessarily follow that the evidence does not also' sustain a verdict for knowingly receiving stolen property. It is the privilege of the county attorney to charge in an indictment the highest possible offense constituted by any act committed; but, if he sees fit to charge a lower ofíense which is sustained by the evidence and which calls for the infliction of a less degree of punishment, a defendant cannot be heard to complain that he should have been charged with and convicted of the higher offense included in the same acts, because the error of the county attorney inured to his benefit and he is bound thereby.” Howard v. State, 9 Okla. Cr. 337, 131 Pac. 1100; McGill v. State, 6 Okla. Cr. 512, 120 Pac. 297; Anthony v. State, 44 Fla. 2, 32 So. 819; Sisk v. State (Tex. Cr. App.), 42 S. W. 985.

This court has repeatedly held that it will not reverse cases because of technical errors committed by the trial court. The evidence is sufficient to support the verdict of the jury, and, the errors of law complained of being without merit, the cause is affirmed.

EDWARDS, P. J., concurs.

DAVENPORT, J., absent.


text:
    F. B. McNEW v. STATE.
    No. A-6709.
    Opinion Filed August 10, 1929.
    (279 Pac. 978.)

      Paul R. Haunstein, for plaintiff in error.
    Dan Mitchell, Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Garfield county on a charge of having possession of intoxicating liquor, and his punishment fixed at a fine of $150 and to be confined in the county jail for 60 days.

Under a search warrant issued by D. Fogelsong, a justice of the peace of the city of Enid, a search was made of the premises described in syllabus 2 of this case. The front part of the building was used as a store building in which was kept a grocery store and a drug store. In the rear of the storeroom was a kitchen, a living roon, and two smaller rooms. In the first room back of the store was found three or four glasses with a small amount of whisky in each of them and a five-gallon jug, with a small amount of whisky in it. In the kitchen was found an ice box with flat top and sliding doors with a trick door held in place with nails sticking out a short distance, and in an air chamber around the ice container they found eighteen pints of whisky. The defendant admitted the ownership of the whisky but. later denied that it was being kept for unlawful purposes and claimed it was being used solely for the defendant’s own use.

Only one question is presented, and that is that the evidence obtained under the search warrant was inadmissible for the reason that'the affidavit for the search warrant was insufficient to authorize the search of that part of the premises used as a dwelling house. The defendant filed a motion to suppress the evidence taken under the search warrant, for the reason that the facts alleged in the affidavit were not made upon actual knowledge, but upon information and belief, and that the statement set forth in the affidavit for search warrant was untrue and false and was known to be untrue and false at the time the affidavit was made; also because the return of the officer to the search warrant was not signed, although the trial court allowed the officer to sign his return in open court when the objection was made; also that the evidence was obtained in violation of the Bill of Bights of the Constitution of the state of Oklahoma.

The defendant cites the case of Gore v. State, 24 Okla. Cr. 394, 218 Pac. 545, in support of his contention that the affidavit for the search warrant is insufficient.

In the later case of Phillips v. State, 34 Okla. Cr. 52, 244 Pac. 451, 452, this court said:

“The sufficiency in form or substance of the affidavit for search warrant and the search warrant itself may be challenged by a motion to suppress evidence or by an objection to the admission of evidence. Such challenge is to be determined by the trial court. It is never a question for the jury. The purpose of the verified complaint for search warrant is to invoke the judicial power of the magistrate, and, when filed, it is the duty of the magistrate to determine judicially if there is probable cause for believing the existence of the things stated in the affidavit. In so determining the magistrate exercises a judicial function. Whether or not he errs in his conclusion or whether or not the affidavit upon which the search warrant is obtained is true is not an issue under the trial of a case predicated upon evidence obtained by such search warrant.”

In the case of Ray v. State, 43 Okla. Cr. 1, 276 Pac. 785, recently decided, this court said:

“The finding of probable cause, as well as the issuing of the search warrant, is a judicial function, to be exercised by the magistrate alone, upon the sufficiency of the facts stated in the affidavit, which should have the force and effect of evidence, as distinguished from the mere conclusions of the affiant. * * * Where the affidavit and search warrant are sufficient on their face, the evidence obtained by the search is admissible, and the court will not permit the accused, after the warrant has been executed, to show that the statements in the affidavit are not true, or to raise any question as to the accuracy or source of the affiant’s information or the means by which it was obtained.”

These two cases state the true rule for testing the sufficiency of affidavits for search warrants. Under these authorities the affidavit in the case at bar is sufficient upon its face to authorize the issuance of the search warrant complained of. The search warrant contains, in addition to the usual recitals in such warrants, the following statement:

“* * * And I find from the affidavit filed and from the evidence of witnesses sworn and examined that there is probable cause to believe, that malt, spirituous, vinous and fermented liquors are kept for sale and being unlawfully sold in a one story frame building located in the southeast comer of the southeast quarter of section 14, twp. 22, range 4, W. I. M., and known as Jennie Hall’s booze joint, in Garfield county, Oklahoma, and that the above described property is being used as a place of storage for such liquors, and is a public resort maintained for the illegal sale and distribution of such liquors.”

The warrant states that the magistrate issuing the same had before him, not only the affidavit for the search warrant, but that witnesses were sworn and examined before him, and he found from the affidavit and from the testimony of the witnesses sworn and examined that -there was probable cause to believe that liquor was being kept at the premises described. This showing was sufficient to show probable cause, and that is all that is required to authorize the issuance of the search warrant.

In the case of Ray v. State, supra, this court said:

“The burden of proving the invalidity of the search rested on the defendant and not on the state. The trial court permitted the defendant to cross-examine the witness who made the affidavit for the search warrant as to his knowledge and information upon which the affidavit was based, although the affidavit on its face purported to be sworn to as to some allegations on personal kuowledge and as to others on information on facts therein stated, and the affidavit was positively sworn to. * * * The sufficiency of the affidavit in this case must therefore be tested from the affidavit itself and not by reason of any extraneous testimony of the person sworn. It was improper for the court to permit the defendant to cross-examine Hill, who made the affidavit for the search warrant. * * * The function of the search and seizure proceeding is to aid the proper officers in procuring evidence to be used by the state in prosecuting the defendant, which evidence could not be secured without the aid of a search warrant. Being a preliminary proceeding to the main case, it is only necessary that the affidavit should show probable cause as in a preliminary hearing. The same degree of proof not being, required in a preliminary hearing as in a trial, so the same degree of proof should not be required in procuring a search warrant as would be required in securing a conviction in a trial. Tested by the authorities cited in this opinion, the affidavit was sufficient to authorize the issuance of a search warrant, and the evidence obtained by means of the search was properly admitted.”

The fact that a portion of the building to be searched might have been occupied by the defendant as a residence, although he only testified that he boarded there with another family, is immaterial in this case. The information upon which the search warrant was issued complied with the provisions of section 7013, C. O. S. 1921, and the search of the rooms in the rear of the store building was proper and was legally made. The liquor seized under the search was therefore admissible in evidence against the defendant.

The motion to suppress the evidence was properly overruled. The other errors complained of by the defendant being without merit, the cause is affirmed.

EDWARDS, P. J., concurs.

DAVENPORT, J., absent.


text:
    GARRISON MAYBERRY v. STATE.
    No. A-6681.
    Opinion Filed August 10, 1929.
    (279 Pac. 934.)

      Tom W. Cheatwood, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Cleveland county of assault with intent to rape, and was sentenced to serve a term of two years in the state penitentiary.

Defendant was charged with an assault with intent to rape a young girl of the age of 6 years. He was at the time 18 years old. The evidence is insufficient to sustain the judgment. It wholly fails to show an assault with intent to have sexual intercourse. To the contrary, it shows an intent to take indecent liberties with the person.

Instruction No. 9 of the court invades the province of the jury, and is erroneous; but, from the view we take of the entire case, it is unnecessary to discuss it. The record makes out a case of aggravated assault and battery. Under authority of the ease of Lebo v. State, 40 Okla. Cr. 116, 267 Pac. 288, the judgment is reduced from an assault with intent to rape to an assault and battery, and the judgment fixed at the maximum fine of $100 and 30 days in the county jail.

As so modified, the case is affirmed.

CHAPPELL, J., concurs.

DAVENPORT, J., absent, not participating.


text:
    WINSTON MERRIWEATHER v. STATE.
    No. A-6633.
    Opinion Filed August 10, 1929.
    (279 Pac. 976.)
    See, also, 42 Okla. Cr. 362, 276 Pac. 239.
    J. ■ G. Harley, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court. of McIntosh county of a second and subsequent violation of the prohibitory liquor law, and was sentenced to serve a term of six months in the state penitentiary and to pay a fine of $50.

The case was tried in December, 1926, and the appeal was lodged in this court in May, 1927. No briefs in support of the appeal have been filed.

Where an appeal is prosecuted to this court upon a. conviction for a felony, and no briefs in support are filed, this court will not search for some error upon which to predicate a reversal, but will examine the record for jurisdictional or fundamental errors, and, if none appear, and the evidence reasonably supports the verdict, the judgment will be affirmed. We have examined the record and find no jurisdictional or fundamental error. The evidence sustains the verdict.

The case is affirmed.

CHAPPELL, J., concurs.

DAVENPORT, J., absent, not participating.


text:
    JACK NEWMAN v. STATE.
    No. A-6680.
    Opinion Filed August 17, 1929.
    (279 Pac. 980.)

      H. S. Braucht and Jack Newman, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for tbe State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Kay county on a charge of robbery with firearms, and his punishment fixed at confinement in the state penitentiary for a term of 25 years.

Briefly stated, the record discloses that, on the day charged, the Uncas State Bank was entered by two men, who with firearms held up the employees and robbed the bank of something over $1,300. Later one William Mack Garden was apprehended and pleaded guilty to the robbery and was sentenced to a term of 25 years in the state penitentiary. In this case he testified for the state. The substance of his testimony is that he (the defendant) and one Floyd Jarrett committed the robbery, that defendant drove the car, and that he and Jarrett entered the bank and committed the actual robbery. His testimony further gives details of the planning of the robbery, the going to the scene, and the escape after the robbery. The other evidence tending to connect defendant is that of Frank Frick, who testified, in substance, that he was across the street from the bank at the time of the.robbery, saw a car drive up and two men get out and enter the bank and one remain in the car. He could not identify defendant other than that he looked like one of the men. Earl Anderson, another witness, testified that immediately after the robbery he saw a Ford car come down the street with three men in it. He identified defendant as one of the men be saw in tbe car. Defendant did not take tbe stand, but introduced several witnesses in support of bis defense of alibi.

Tbe first contention made is that tbe information is insufficient. A demurrer was interposed and an objection made to tbe introduction of evidence. Tbe information properly charges tbe robbery of tbe Uncas State Bank by defendant, but it is argued that tbe charge is defective in not setting out tbe connection of Carden with tbe robbery, who is shown to be an accomplice. We know of no law or rule of pleading which would prevent tbe state from charging tbe crime of robbery against one participant in a conjoint robbery without alleging tbe connection of tbe other. No authority in support is called to our. attention. Where an information alleges every element essential to charge the crime pleaded in plain, concise, and intelligible language, sufficient to apprise tbe defendant of tbe offense of which be is accused and what be must be prepared to meet, it is not defective for failure to allege tbe connection of some other person with tbe offense charged. There was no error in the overruling of tbe demurrer and the objection to the introduction of evidence.

Next it is claimed there was misconduct of the county attorney in asking improper questions and in bis argument. Several decisions of this court are cited in support of tbe contention. Defendant’s counsel state, however, that this misconduct is ’not assigned in tbe petition in error and is not properly before tbe court, but insist that counsel for tbe state so grossly disregarded tbe rule that this court should consider the contention although not assigned as error. We adhere to the rule frequently announced, that the county attorney should conform to the issue as laid, that it is highly improper for him to persist in attempting to get before the jury inadmissible matters which might prejudice the jury against an accused, or in stating facts not in issue, or in arguing matters outside the record. A conviction will be set aside where the prosecuting attorney without reprimand persists in such tactics. We do not approve of all the things done by the county attorney in the record before us, but find no such flagrant deviation from the rule as would require a reversal, even if the error complained of were properly assigned in the petition in error. It is well settled, however, that an appeal is not a continuation of the old case, but is in the nature of a new suit brought in the appellate court to determine the issues raised in the petition in error, which is the pleading in the case and of which the transcript or case-made is the proof; that is, the petition in error is a formal written request addressed to the appellate court asking it to review alleged errors specifically pointed out, and the court is authorized to consider and determine only such questions as are presented by the petition, unless they are fundamental or jurisdictional. Morrison v. State, 7 Okla. Cr. 243, 123 Pac. 169; Dew v. State, 11 Okla. Cr. 581, 149 Pac. 917; Cardwell v. State, 20 Okla. Cr. 178, 201 Pac. 817; Signs v. State, 35 Okla. Cr. 410, 250 Pac. 938.

Lastly, complaint is made that the judgment is contrary to, and not supported by, the evidence, and that there is not sufficient corroboration of the testimony of Carden, the accomplice. The testimony is conflicting, as it generally is in the trial of a criminal case, but a conviction is to be reversed as not supported by sufficient evidence only in those cases where there is no substantial evidence from which the jury may reasonably and logically find the defendant guilty, or where the evidence is so weak and uncertain that it conclusively appears to tlxe court that the jury must have acted from partiality, passion, or prejudice. On the other hand, where the evidence is such that, if believed by the jury, they could reasonably find the guilt of the accused, this court will not disturb the judgment on the ground of insufficiency of the evidence. The statement of facts above set out, if believed by the jury, as it must have been, is amply sufficient to sustain the verdict and judgment.

The case is affirmed.

CHAPPELL, J., concurs.

DAVENPORT, J., absent, not participating.


text:
    A. P. DAVIS v. STATE.
    No. A-6659.
    Opinion Filed August 17, 1929.
    (279 Pac. 976.)

      Charles Skalnik and L. O. Todd, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Rogers county of manslaughter in the second degree, and his punishment fixed at confinement in the state penitentiary for a term of 2 years and a fine of $500.

This is a companion case to that of Young v. State, 41 Okla. Cr. 226, 271 Pac. 426. Defendant, Young, and two others were charged with the killing of Homer McMillan. The facts were set out somewhat fully in the Young Case, and we deem it unnecessary to repeat them here. Among the assignments of error argued is that the court erred in refusing to dismiss the case on the ground that defendant was not given a speedy trial. Section 2913, Comp. Stat. 1921. This contention was disposed of in a mandamus proceeding, brought by defendant in this court to require the trial court to dismiss. State ex rel. Davis v. Bayless, 38 Okla. Cr. 129, 259 Pac. 606.

It is next urged that the trial court erred in overruling defendant’s demurrer to the information. The information charges, in substance, that the homicide was committed, by defendant and three codefendants named, by shooting with a gun then and there held in the hands of them, the defendant and his named codefendants. Defendant insists that this allegation is not direct and certain as required by section 2556, Comp. Stat. 1921, but that the information should definitely allege which of the four persons named held and discharged the gun. This contention is not tenable. The distinction between accessories and principals having been abolished by statute, no additional facts need be alleged against an accessory than are required against his principal. Section 2574, Comp. Stat. 1921; Sanditen v. State, 22 Okla. Cr. 14, 208 Pac. 1040.

Complaint is next made of the action of the court in overruling challenges for cause of defendant to jurors who had heard or read of the case, or of the. trial of the codefendant Young. The record discloses that defendant did not exercise all his peremptory challenges. This court has several times held that, where an accused does not exhaust his peremptory challenges, he is not in a position to complain that disqualified persons were permitted to sit on the jury. Pitman v. State, 33 Okla. Cr. 165, 242 Pac. 288; Treadway v. State, 30 Okla. Cr. 239, 235 Pac. 929. If there was any error in the action of the trial court in overruling these challenges for cause, which we think is extremely doubtful, such error was waived by defendant in failing to exhaust all his peremptory challenges.

Some claim of error is made in the overruling of defendant’s application for a continuance. This application is based on the absence of two witnesses, I. L. Huff, court reporter who took the record in the Young Case, and Mrs. Opal Tatum, who was a member of defendant’s! party at the time of the homicide. A stipulation was made as to the witness Huff which rendered his presence unnecessary, and the transcript of the testimony taken in the case of Young v. State, transcribed by him, was agreed to be correct, so no injury could have resulted from his absence. As to the witness Opal Tatum, at the time of the homicide she was the wife of a son of the co-defendant Young, and was an eyewitness to the fatal difficulty. Later she married Tatum, and at the time of the trial had left the state of Oklahoma. A subpoena was issued for her, and the return of the officer stated she resided at" Whitenburg, Texas. Defendant alleges he had attempted to communicate with her but had received no response. The application does not state when the witness removed from the state nor when defendant learned of such fact. From his relations with the family of Young, it would appear that he should have known the whereabouts of this witness continuously, and, if she had been out of the state for any considerable time, diligence required that he take her deposition. Further, it is evident that the testimony of this witness would be cumulative to the testimony of Mrs. C. E. Young, who testified for defendant, as well as to the testimony of other witnesses. This court has several times held that it is not error to deny a continuance on the ground of absent witnesses where their testimony would be cumulative. Seigler v. State, 11 Okla. Cr. 131, 145 Pac. 308; Petty v. State, 11 Okla. Cr. 438, 147 Pac. 782.

It is further urged that under the provisions of section 1751, Comp. Stat. 1921, the punishment for manslaughter in the second degree may be imprisonment in the penitentiary not less than two nor more than four years, or imprisonment in the county jail not exceeding one year, or by a fine not exceeding, $1,000, or by both fine and imprisonment, but that the statute does not authorize the court or jury to assess a term in the peni: tentiary and a fine; that a fine can only be assessed alone or with a jail sentence. Counsel for defendant has overlooked section 2306, Comp. Stat. 1921, which provides that, upon a conviction for any crime punishable by imprisonment in any jail'or prison, in relation to which no fine is prescribed, the court may impose a fine not exceeding $200 in addition to the imprisonment prescribed. Murnand v. State, 18 Okla. Cr. 426, 195 Pac. 787. This section of the statute, however, if applicable, was not relied upon, since it does not authorize a fine in excess of $200. The punishment is excessive to the extent of the fine assessed. The judgment should be modified by striking out that part of it assessing a fine of $500.

Some other contentions are made, but none of them are of sufficient importance to require special discussion. Upon a consideration of the entire record, we are clearly of the opinion that the judgment should be modified by striking out the fine of $500, and, as thus modified, the case is affirmed.

CETAPPELU, J., concurs.

DAVENPORT, J., absent, not participating.


author: EDWABDS, P. J.

text:
    MRS. P. W. POPP v. STATE.
    No. A-6726.
    Opinion Filed August 17, 1929.
    (279 Pac. 975.)

      Crowe & Crowe, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWABDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Garfield county on a charge of selling intoxicating liquor, and was sentenced to pay a fine of $500 and to serve 6 months in the county jail.

The testimony on the part of the state is that at the time charged the defendant sold a half gallon of whisky to J. H. Harden, an undercover man, employed by the chief of police, who was accompanied by one Smith, also an undercover man. Defendant denies that she sold the whisky, and offered several witnesses, members of her family, in support of her testimony. The evidence is conflicting, presenting a question for the jury, which by their verdict they have found against defendant.

The only contention in this appeal having any merit is that there is no proof of venue. The two principal witnesses for the state testified that at the time charged they were coming from Stillwater to Enid and stopped at the Popp farm and bought a half gallon of whisky; this being the transaction upon which the charge is predicated. There is no testimony whatever as to where the Popp farm is located, how far from Enid or any other city or place. So far as the record is concerned it may be in either Payne, Noble, or Garfield county. Neither does the testimony of any of the witnesses for defendant fix the location of the Popp farm, its distance from any town, place, or geographical object. Certainly we cannot take judicial notice that the Popp farm is in Garfield county. Venue or proof of venue has been considered by this court in numerous decisions. It is well settled that it need not be proven beyond a reasonable doubt, and may be shown by circumstantial evidence, or by reference to the location of some town, stream, boundary, or natural object, of the location or venue of which the court takes judicial knowledge. We have adopted a rule as liberal as the law will permit. There must, however, be some proof of venue. It cannot be established without any proof whatever or upon a mere conjecture or suspicion, and, where there is no proof of venue, the case must be reversed. Litchfield v. State, 8 Okla. Cr. 164, 126 Pac. 707, 45 L. R. A. (N. S.) 158; O’Neal v. State, 17 Okla. Cr. 386, 188 Pac. 1092; Young v. State, 29 Okla. Cr. 60, 232 Pac. 447.

For the reason assigned, the case is reversed and remanded.

CHAPPELL, J., concurs.

DAVENPORT, J., absent, not participating.


text:
    BOB MILLER v. STATE.
    No. A-6783.
    Opinion Filed August 17, 1929.
    (279 Pac. 986.)

      H. E. Chandler, for plaintiff in error.
    A. L. Commons, Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Ottawa county on a charge of having unlawful possession of intoxicating liquor, and his punishment fixed at a fine of $50 and imprisonment in the county jail for 80 days.

The defendant filed his timely motion to suppress the evidence secured under the search warrant, for the reason that the search warrant was wholly insufficient to authorize the search of the premises of the defendant. The search warrant reads as follows:

“Before I. W. Testerman, Justice of the Peace of Fairland Township in Said County.
“State of Oklahoma v. Robert Miller.
“State of Oklahoma, to any Sheriff, Constable, Marshal or Policeman in this State — Greeting:
“Proof by affidavit having this day been made before me by John Faristine that (2) Robert Miller is located on south end of Maple street to left on lot No. 75. You are therefore, in the name and by the authority of the state of Oklahoma, hereby commanded, that taking all necessary assistance, you immediately, in the, (b) make diligent search of the above described premises, and if any or all of the above described property be found upon said premises, or upon the person of the said Robert Miller that you take the same into custody, and forthwith arrest the said Robert Miller and bring him, together with said property, forthwith before me at my office in Fairland in said county, then and there to be dealt with according to law.
“Witness my hand this 12 day of February, A. D. 1927.
“I. W. Testerman, Justice of the Peace.”

The trial court overruled the motion to suppress. During the progress of the trial the defendant objected to the introduction of any evidence secured under the search warrant, for the reason that the affidavit was wholly insufficient to authorize the issuance of the search warrant. The affidavit reads as follows:

“Before I. W. Testerman, a Justice of the Peace, in Fair-land Justice District, Ottawa County, State of Oklahoma.
“State of Oklahoma, Ottawa County:
“John Faristine being duly sworn says: That he has probable cause to believe, and does believe, that intoxicating liquors are being sold, bartered, given away or otherwise furnished, or are being kept for purposes of selling, bartering, giving away or otherwise furnishing, in violation of law, in a certain building in Ottawa county, state of Oklahoma, at Maple street, now used and occupied by Robert Miller at south end of Maple street to left on lot No. 75.
“John Feuerstine.
“Subscribed and sworn to before me this 12 day of February, 1927.
“I. W. Testerman, Justice of the peace.”

The trial court should have sustained the defendant’s motion to suppress the evidence, and his objection to the introduction of any of the evidence taken under the search warrant, for the reason that both the affidavit and the warrant were wholly insufficient to authorize the search.

County attorneys and trial courts should not try cases of this character, where the only evidence to be introduced in the case is secured upon void affidavits and search warrants. It would save the state money and this court time needed for the consideration of other matters to have such cases as this one disposed of by the trial court.

For the reasons stated, the cause is reversed.

EDWARDS, P. J., concurs.

DAVENPORT, J., absent.