text:
    STEVE LOTTA v. STATE.
    No. A-4742.
    Opinion Filed April 16, 1925.
    (235 Pac. 245.)
    (Syllabus.)
    1, Trial — Continuance—Right oí Accused to be Represented, by Counsel — Refusal to Continue Case Because of Temporary Absence of Counsel Held Reversible Error. It is a fundamental right of a person accused of crime to be represented by counsel. This right may be waived by the defendant, but it cannot be denied by the court. In this case the action of the trial court in refusing to continue the case, by reason of the temporary absence of the defendant’s counsel, and in appointing counsel to represent the defendant, held reversible error.
    2. Intoxicating Liquors — Evidence of Reputation of Accused’s Home as to Sale of Liquor, Admissible When. In a prosecution for possession of intoxicating liquor, with the intent to violate the prohibitory liquor law, evidence of the general reputation of defendant’s home as being a place where intoxicating liquors were sold is admissible only upon tbe laying of a proper predicate showing that his home was a place of general resort.
    Appeal from Superior- Court, O'kmulgee County; J. H. Swan, Judge.
    Steve Lotta was convicted of illegal possession of intoxicating liquor, and he appeals.
    Reversed and remanded.
    H. R. Christopher, for plaintiff in error.
    George F. Short, Atty. Gen., and Chas. :Htill Johns, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case, filed in the superior court of Okmulgee county, Henryetta division, January 15, 1923, charges that the said Steve Lotta on the 14th day of January, 1923, did knowingly and unlawfully “have the possession of a certain quantity of intoxicating, fermented, and malt liquor, to wit, 2114 gallons of Choctaw beer,” with the intention of selling the same. 0n the 28th day of February, 1923, a trial was had thereunder. The defendant was found “guilty of unlawful possession of Choctaw beer, as charged in the information,” and his punishment fixed at a fine of $100 and imprisonment in the county jail for six months, and thereafter on the same day the court pronounced judgment and sentence in accordance with the verdict. To reverse the judgment he appeals.

The material facts in this case as disclosed by the record are that the complaining witness, Homer Pene-quine, in company with S. A. Hamil, both deputy sheriffs, without a search warrant, searched the defendant’s house and found a 16-gallon keg partly full of a liquid, which they designated as Choctaw beer, also a 5-gallon keg with some liquid therein. Both officers stated that in their opinion the Choctaw beer was intoxicating. No-objection was made or exception taken by counsel for the defendant to the admission of this evidence.

The witness Penequine was asked and answered as follows:

“Q. How long have you known the defendant? A. Well, since between the 1st — well the 1st and 5th of January, 1923.
“Q. I wijl ask you if you, as an officer, have received complaints relative to this man’s residence? A. Yes, sir, I have; I don’t believe there was a week passed since the 1st day of January, 1923, that some one didn’t complain to me about this place.”

Cross-examination by Mr. Ashmore:

“Q. Who made these complaints, Mr. Penequine, you refer to?
“Mr. Williams: We object for the reason that the makers of these complaints go directly to the officers, and they don’t want to be known as making these complaints, and I may state that the officers told them that their names wouldn’t be given. It suffices the court and jury to know that complaints have been made.
“The Court: I shall have to sustain the objection, Mr. Ashmore. (Exception).”

S. A. Hamil was asked and answered the following questions.

“Q. I will ask you this: Do you know the general reputation of the defendant’s place?
“By Mr. Ashmore: We object to that, not proper.
“The Court: We ought to know what he knows.
“Q. I will ask you now if complaints have been made to you about defendant’s residence?

Mr. Ashmore: Objects as incompetent, irrelevant, and immaterial.

“By the Court: Overruled.
“A. Yes, sir.
“Q. I will .ask you how many times you have been called upon to search this man’s premises?
“A. I searched it once before myself, I know once, possibly twice'; I am not positive, but sure of one time.”

It appears from the testimony of the defendant on his own behalf that he is a native of Poland, in this country about four years, his wife and two children remaining in Poland; that he owned and lived in a two-room house near the smelting plant and worked at the smelter every day; that he had about 9 gallons of beer in the 16-gallon keg; that he made it for his own use with meal, hops and sugar; that the 5-gallon keg contained some dill pickles and brine; that Penequine broke up both kegs with a hatchet; that he had never been convicted of crime.

One of the grounds for new trial, and now urged for a reversal of the judgment, is that the trial court erred in denying defendant’s application for a postponement of the trial, and in appointing an attorney to represent the defendant in the trial.

It appears that defendant employed and paid one J. V. Long, an attorney of Henryetta, to represent him in this case, and upon his arraignment, February 20th, this attorney appeared for him. Oh the 28th day of February, the case was called for trial and the defendant asked that the case be continued until the return of his attorney, J. V. Long, who was out of town and unable to be present at this time. The application was overruled, thereupon the court, against the objection of the defendant, appointed D. E. Ashmore, one of the attorneys of the court, to represent him. Said attorney announced ready for trial and a jury was called and sworn.

The services of present counsel were secured only after the case was submitted to the jury. The record shows that the trial, the verdict in the case, the motion for new trial, and the judgment, all followed in rapid succession on the same day.

It is well settled that applications for continuance are addressed to the discretion of the trial court, and its decision will not be disturbed on appeal, unless it appears that there has been an abuse of such discretion. Absence of counsel is not made one of the statutory grounds for a continuance. If, however, the trial court’s decision in overruling an application on this ground resulted in depriving the defendant of the benefit of counsel, a new trial should be granted. Anderson v. State, 21 Okla. Cr. 193, 207 P. 977.

It is urged that the action of the court deprived the defendant of his right of representation by counsel of his own choosing, and that the defendant did not have a fair and impartial trial by reason of the inefficiency of counsel appointed by the court.

The Bill of Rights provides that in all criminal prosecutions the accused “shall have the right to be heard by himself and counsel.” Const, art. 2, §20.

In order that the accused may have the full benefit of this fundamental right, it is provided by statute:

“Where it is satisfactorily shown to the court that the defendant has no means, and is unable to employ counsel, the court shall, in all such cases, where counsel is appointed and assigned for defense, allow and direct to be paid by the county in which such trial is had, a reasonable and just compensation to the attorney or attorneys so assigned for such"'services as they may render: Provided, however, that such attorney shall not be paid a sum to exceed twenty-five dollars in any one case." Section 2929, C. S. 1921.

In our. opinion the trial court exceeded its authority in appointing counsel for the defendant in this case. We know of no law authorizing such procedure and none has been called to our attention. An examination of the authorities will show that the appointment by the courts of attorneys to defend indigent persons accused of crime, who are without counsel and without the means of employing legal assistance, is not, properly speaking, the exercise of a fundamental fight or power inherent in the court, and the only statutory authority is found in the foregoing section.

It appears that, after the jury was impaneled, the prosecuting attorney announced that the original im formation had been misplaced and asked permission of the court to read to the jury a copy of the information.

“The Court: Better call your witnesses first and have them sworn."

No further order was entered.

In Bland v. State, 18 Okla. Cr. 514, 196 P. 732, the county attorney was permitted by the trial court to file a substituted information, which was identical in substance and form with the original information, except that the same was not verified, and the trial court then permitted the same person to verify the substituted copy who had verified the original information; and it was held, that, where the information is lost, a court of record had inherent power to preserve and protect its own records and to substitute copies of lost records. In the present case no order was entered permitting the filing of the copy of the lost information that was read to the jury. However, no objection was made or exception taken.

The testimony of the witnesses for the state was incompetent and inadmissible as having been obtained on search of the defendant’s home without a search warrant, but no objections were made or exceptions taken.

It is true, as to the testimony of the state’s witnesses, that complaints against the defendant’s place were made to them, as officers, was properly objected to, which objections should have been sustained. No proper predicate having been made that the defendant’s home was one of general resort, evidence of the general reputation was inadmissible. For this and other obvious reasons the objections thereto should have been sustained.

Other alleged errors are assigned and argued in the brief, but it does not seem necessary that we should extend this opinion by reference thereto. As shown by the record and for the reasons stated we think the defendant did not have that fair and impartial trial to which he was. entitled by the laws of our state.

The judgment of the lower court is accordingly reversed and the cause remanded.

BESSEY, P. J., and EDWARDS, J., concur.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    DOC SMITH v. STATE.
    No. A-4955.
    Opinion Filed April 16, 1925.
    (235 Pac. 552.)
    (Syllabus.)
    1. Intoxicating Liquors — Unlawful Sale — Evidence Insufficient. In a prosecution for tbe sale of “Choctaw beer” alleged to be intoxicating liquor, evidence held insufficient to sustain a conviction.
    2. Same — Proof Necessary that Liquor Sold Intoxicating. In a prosecution for selling “Choctaw beer,” the proof should establish the fact that such beer is intoxicating in addition to the other essential facts; otherwise a judgment of conviction will be reversed.
    ■ Appeal from County Court, Carter County; H,. A. Hardy, Judge.
    . Doc Smith was convicted of selling intoxicating liquor, and he appeals.
    Reversed.
    R. C. Roland, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charged that on the 13th day of July, 1923, “Doc Smith did willfully and unlawfully sell intoxicating liquor, to wit, Choctaw beer to . Shelton, for the sum of $1 for a quart.” The trial resulted in a verdict of guilty, and punishment fixed at a fine of $50, and confinement for 30 days. From the judgment on the verdict, he appeals. The errors assigned question the sufficiency of the evidence to support the verdict.

Wallace Shelton testified that he stopped his car near the defendant’s place and went into the house and paid a dollar for a bottle of Choctaw beer; that it was in the dark, and he did not know the party that handed it to him, but thought it was a man. When he returned to his car where his wife was, John Ginn took the bottle from him.

John W. Ginn testified that he saw Shelton get out of his car and go to the defendant’s house, and come back with a quart bottle, which he handed to his wife, and she handed the bottle to witness; that he went into the-house and found Doc Smith’ and his wife there and Doc said “that guy wanted to buy a nickel’s worth of ice to cool a bottle of beer that he held in his hand”; that he had the contents of the bottle analyzed’ at the Hardy Sanatorium.

When the state rested, the defendant moved for a directed verdict in the form of a demurrer to the .evidence, for the reason that there was no proof that the contents of the bottle was intoxicating liquor. Objection overruled. Exception.

For the defense Donie Clemons testified that she remembered when Mr. Ginn and Mr. Simpson came to Mr. Smith’s house and that, just before they came, a man called and said he wanted some ice to cool a bottle of beer; Mr.. Smith said that he had the ice but did not have a bucket to put it in.

Mrs. Smith testified that a man came to the door and asked if they had a bucket and ice, saying that he had found a bottle of Choc and wanted some ice to cool it; that she told them that she had the ice, but did not have a bucket; and he thanked them and went away.

Nowhere in the record is there any evidence tending to show that the contents of the bottle was intoxicating liquor.

The witness Ginn stated that he had the contents analyzed at the Hardy Sanatorium, but there is no testimony showing the result of the analysis.

In the case of Estes v. State, 13 Okla. Cr. 604, 166 P. 77, 4 A. L. R. 1135, it was held:

“ ‘Intoxicating liquor,’ as this phrase is used in the prohibitory liquor statutes of this state, is an alcoholic liquor, and in order to come under the ban of the law such liquor must either contain more than one-half of 1 per cent, of alcohol, or a sufficient quantity of it in a liquor or compound, capable of being used as a beverage, to intoxicate a human being.”

Upon the record in this case, we are of the opinion that the evidence is wholly insufficient to warrant a ver-diet of guilty, and that the court erred in overruling the defendant’s motion for a directed verdict of acquittal.

The judgment of the lower court is reversed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    DOCK SMITH v. STATE.
    No. A-4952.
    Opinion Filed April 18, 1925.
    (235 Pac. 554)
    (Syllabus.)
    Intoxicating Liquors — Unlawful Possession — Evidence Sufficient. In a prosecution for unlawful possession of intoxicating liquor, evidence held to warrant a conviction.
    Appeal from County Court, Carter County; M. F. Winfrey, Judge.
    Dock Smith was convicted of unlawful possession of intoxicating liquor, and he appeals.
    Affirmed.
    R. C. Roland, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charged that Dock Smith on March 2, 1923, did have in his possession two pints of whisky with the unlawful intent to sell, barter, give away, and otherwise furnish the same to others. The trial resulted in a verdict of guilty, and punishment fixed at a fine of $50 and confinement in the jail for 60 days. He has appealed from the judgment, but no brief has been filed and no appearance made on behalf of plaintiff in error in this court.

The errors assigned question the sufficiency of the evidence to sustain the verdict. The evidence shows that •Hale Dunn, a policeman in the city of Ardmore, arrested the defendant, found two pints of whisky and a six-shooter in his pockets.

Hale Dunn testified that, when he found the whisky, the defendant said that he went and got it for somebody else, and that they made up the money to get it. For the defense Dan Miller testified that Dock Smith, Elmer Hayes, and himself made up some money to buy whisky to drink that night and sent Dock Smith for the whisky, and when he returned to the dance with the whisky the officers arrested him. The defendant did not testify.

An examination of the record discloses no prejudicial error, and we think the verdict was as favorable to the defendant as the law and the testimony warranted.

The judgment of the lower court is therefore affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


author: EDWARDS, J.

text:
    KATE WESTFALL v. STATE.
    No. A-5024.
    Opinion Filed April 18, 1925.
    (235 Pac. 270.)
    (Syllabus.)
    Intoxicating liquors — Unlawful Sale — Proof of Reputation of Accused’s Residence not Admissible. Where, on a charge of selling intoxicating liquors at the place of residence of the defendant, proof on the part of the state that the general reputation of the residence as being a place where intoxicating liquors are sold is bad is not admissible.
    Appeal and Error — Trial—Expression or Intimation of Court’s Opinion as to Weight to be Given Testimony, or Guilt of Accused, Prejudicial Error. It is the duty of a trial court in mating any order or ruling in the presence of the jury to refrain from intimating or expressing an opinion as to credibility of the witnesses, the weight and value to be given to their testimony, the facts proved, or the guilt of the defendant, and the expression or intimation of such opinion is prejudicial error.

      Appeal from Superior Court, Okmulgee County; J. H. Swan, Judge.
    Kate Westfall was convicted of selling intoxicating liquors, and appeals.
    Reversed and remanded.
    Don Cameron and D. E. Ashmore, for plaintiff in error,
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error was convicted of selling intoxicating liquors and sentenced to pay a fine of $300, and to serve a term of imprisonment in the county jail of four months.

Among other assignments of error, it is contended that in the trial of the case the court, over the objection of the plaintiff in error, admitted evidence that the place of residence of the plaintiff in error, where the sale is alleged to have taken place, had the reputation of being a place where intoxicating liquors were sold, and it is contended that this constitutes prejudicial error.. It has been held by this court that where a person is prosecuted on a charge of having possession of liquor with the intent to sell and the proper predicate is laid, the general reputation of the place where the liquors are found is competent and admissible. Davis v. State, 16 Okla. Cr. 372, 182 P. 908; Bland v. State, 18 Okla. Cr. 514, 196 P. 732.

This line of evidence is admitted in that class of cases as tending to prove the intent with which the intoxicating liquors are kept, but where a single sale is charged the intent is not an ingredient of the offense, and the reason for admitting evidence of reputation does riot apply. It follows that the admission of such evidence is erroneous.

At the conclusion of the evidence for the state, the plaintiff in error interposed a demurrer to the evidence. Whereupon the court in the presence of the jury commented upon the weight of the evidence and overruled the demurrer. The plaintiff in error then excepted to the ruling, but did not specifically except to the language of the court, but apparently it was intended that the exception should apply, and we shall treat the exception taken as going both to the ruling and remarks of the court.

In the trial of criminal cases, the judge of the court occupying as he does a position of authority, jurors ordinarily give great weight to the attitude and opinion of the judge, if by chance this comes to their knowledge. A judge should therefore exercise great caution in his remarks in the presence of the jury and, in making any ruling, refrain from any expression or intimation of his opinion as to the guilt or innocence of the defendant, or as to the weight or credibility of the evidence or the facts proven. Reed v. State, 5 Okla. Cr. 365, 114 P. 1114; Talliaferro v. State, 20 Okla. Cr. 57, 200 P. 1068.

The language of the court in this case, omitting the introduction, is as follows:

“This man testifies — I have to go by the evidence introduced. This man testified he went down there and bought three drinks of whisky and paid for it. If that does not make out a case, I don’t know what will.”

This, we think, clearly is a comment on the weight and credibility of the evidence and an intimation of the opinion of the court, and is prejudicial.

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

BESSEY, P. J., and DOYLE, J., concur.


text:
    HOMER WEAR v. STATE.
    No. A-5167.
    Opinion Filed April 18, 1925.
    (235 Pac. 271.)
    (Syllabus.)
    1. Indictment and Information — Information in Words of Statute, When Insufficient. Where an offense is created by statute, unless all the elements necessary to constitute the offense are used in the statute defining the offense, an information based on such statute in the language of the statute is not sufficient, but in is necessary in such case that the information go beyond the statute and allege every element constituting the offense.
    2. Same — Same Act Constituting Different Offenses — Setting out in Separate Counts in Information. An information must charge but one offense, and, where the same act may constitute different offenses, the different offenses may be set out in separate counts in the same information, and in such case the information must show on its face that the separate counts are all based on one and the same act or transaction.
    3. Samei — Information, Showing on Face that Offenses not Based on Same Transaction Duplicitous. Where, upon the face of the information, it conclusively appears that the offense sought to be charged in the separate counts are not based on the same act or transaction, the information is duplicitous, although the information may contain the allegation that the different counts are based on the same act or transaction.
    Appeal from District Court, Ottawa County; J. 3.. Smith, Judge.
    Homer Wear was convicted of criminal syndicalism, .and appeals.
    Reversed and remanded.
    John J. Carney, for plaintiff in error.
   EDWARDS, J.

For brevity the plaintiff in error will be referred to as defendant, as in the lower court.

The defendant was convicted in the district court of Ottawa county upon the charge of criminal syndicalism, and sentenced to serve a term of five years in the penitentiary. The information in this case contains two counts. The first count charges:

“ * * * That Homer Wear did in said county and state on or about the 8th day of June in the year of our Lord, one thousand nine hundred and twenty-three, and anterior to the presentment hereof, commit the crime of criminal syndicalism in manner and form as follows, to wit:
“Said defendant, then and there being, did then and there on or about said day and date, willfully, unlawfully and feloniously organize and assist in organizing and knowingly become a member of an organization, society, club, or assembage of persons known as Industrial Workers of the World, sometimes known as the I. W. W., which said Industrial Workers of the World, otherwise known as the I. W. W., were then and there organized for ■the purpose of defending, advocating, teaching, aiding, and abetting criminal syndicalism, sabotage, violence, and unlawful methods of terrorism as a means of accomplishing a change in industrial ownership and affecting political changes.”

The second count begins by alleging that it is a different statement of the offense set out in the first count, then charges that the defendant did willfully, unlawfully and feloniously, by joining and becoming a member of said organization, affirmatively, by writings, advocate the duty, necessity, and propriety of committing the crime of criminal syndicalism, etc, and as a part of such scheme did issue, distribute, circulate, etc., books, papers, etc., teaching and advismg criminal syndicalism, setting out extracts from various printed matter, and further alleging that the defendant distributed, and caused to be distributed, various items of such printed matter. The defendant demurred to the information on all statutory grounds, which was denied. Objection was also made to the introduction of any evidence for the reasons assigned in the demurrer and motion,. During the trial the state elected to proceed, on the first count of the information, but did not dismiss and strike out the second count.

The defendant presents his contentions as follows': First, that the first count of the information is not sufficiently specific and certain to charge any offense against the defendant; second, that evidence obtained by an unlawful search was admitted in evidence against the defendant, over his objection; third, that the evidence is insufficient to prove the commission of any offense; fourth, that the •information is duplicitous.

Upon the first assignment above stated it will be observed that the offense sought to be charged is stated substantially in the words of the statute. As a general rule this is sufficient, but there are well-recognized exceptions to it. One of the exceptions is that, where an offense is created by statute, unless all the elements necessary to constitute the offense are used in the statute in defining the offense, it is necessary in an information to go beyond the statute and allege every element constituting the offense. Bishop’s New 'Criminal Procedure, vol. 1, par. 625; Wharton’s Criminal Pleading and Practice, § 220; Petitti v. State, 7 Okla. Cr. 12, 121 P. 278; Simpson v. State, 5 Okla. Cr. 57, 113 P. 549; Porter v. State, 4 Okla. Cr. 654, 111 P. 1023; Armstead v. State, 11 Okla. Cr. 649, 150 P. 511; Wilcox v. State, 13 Okla. Cr. 599, 166 P. 74.

We are of the opinion that that part of section 2221, Comp. St. 1921, making it a crime to organize, help to organize, or become a member of, or voluntarily assemble with, any society or assembly of persons teaching, advocating, or affirmatively suggesting syndicalism, upon which the first count of the information is based, in defining the offense, does not contain all the elements necessary to constitute an offense. An information based on this part of the section must be extended beyond the statutory words and state the facts essential to constitute the crime. The first count of the information is therefore insufficient. Upon the second assignment, that the evidence introduced was procured by an unlawful search, we are not able to ascertain from the record presented that the search was unlawful. The defendant was arrested upon a charge of felony, whether with or without a warrant does not appear. No question appears to be raised as to the legality of the arrest of the defendant, and, where a defendant is arrested, it is proper for the officer to search the person and immediate surroundings of the person arrested and to take possession of anything necessary for the safety of the officer or the public safety, or that may be used in the commission of crime. Berg v. State, 29 Okla. Cr. 112, 233: P. 497; Davis v. State, 30 Okla. Cr. 61, 234 P. 787. Under the right given by these authorities it is not made to affirmatively appear that any unlawful search was made as contended.

Upon the third assignment, the insufficiency of the evidence, this being primarily a question for the jury, and as the case may again be tried, we do not hold that sufficient evidence might not be introduced to sustain a proper information.

The fourth assignment, that the information is duplicitous, we believe is well taken. The charge of organizing and knowingly becoming a member of the prohibited organization charged in the first count of the information is not the same offense as the issuing, distributing, and circulating of books, papers, etc., as charged in the second count of the information. The indictment or information must charge but one offense, and the term “same offense’ means, not the same class or kind, eo nomine, but means an offense committed by the same act, transaction, or omission. Section 2558, Comp. St. 1921; 1 Bishop’s New C. L. par. 1050; Estep v. State, 11 Okla. Cr. 103, 143 P. 64; Grant v. State, 6 Okla. Cr. 172, 117 P. 1100; Williams v. State, 16 Okla. Cr. 54, 180 P. 559; Berg v. State, supra.

Where an information contains two or more, counts which are based on the same transaction, it is necessary to allege such fact. But, where an offense is sought to be charged in the different counts which are not in fact based on the same act or transaction, the allegation that they are based on the same act will not suffice. While in this case the second count alleges that the offense sought to be charged therein is a different statement of the offense stated in the first count, an examination of the offense sought to be charged in the two counts conclusively shows that they are not the same, and the allegation is not sufficient to satisfy the statute. Bonitzer v. State, 4 Okla. Cr. 354, 111 P. 980.

Where different offenses- are charged in separate counts, an election to try on one count does not cure the defect and render the information any the less duplicitous. It was error to overrule the demurrer on the ground of duplicity, unless the other count is dismissed.

For the reasons assigned the case is reversed and remanded.

BESSEY, P. J., and DOYLE, J., concur.


author: DOYLE, J,

text:
    DOCK SMITH v. STATE.
    No. A-4954.
    Opinion Filed April 18, 1925.
    (235 Pac. 554.)
    (Syllabus.)
    Intoxicating Liquors — Evidence Supporting Conviction for Unlawful Possession^ In a prosecution for tbe unlawful possession of intoxicating liquor, evidence lield to sustain a conviction.
    Appeal from County Court, Carter County; M. F,. Winfrey, Judge.
    Dock Smith was convicted of unlawful possession of intoxicating liquor, and he appeals.
    Affirmed.

      R. C. Roland, for plaintiff in error;
    The Attorney General, for the State.
   DOYLE, J,

Plaintiff in error, Dock Smith, was convicted under an information charging that on July 14, 1923, hei did have possession of two pints of corn whisky, with the unlawful intent to sell the same, and his punishment fixed at a fine of $250 and confinement in the county jail for 90 days. He appeals from the judgment rendered on the verdict. The only ground relied on for a reversal is that the verdict is not sustained by sufficient evidence.

It appears that Jesse Dunn and John W. Ginn, deputy sheriffs, in executing a search warrant, the validity of which was not questioned, visitéd the defendant’s home; the defendant was not at home, but his wife was. The officers found two pints of corn whisky in a box under the floor at a place where a square holei had been sawed in the floor. They testified that the defendant’s place was a place of public resort, and that they knew its general reputation as to being a place where intoxicating liquors were sold and that reputation was bad.

Dock Smith testified that he had the whisky for his personal use; that the plant arranged under the floor was there when he bought' the property, and that he had to hide the whisky under the floor to save it.

The sufficiency of the evidence to support the verdict was questioned for the first time in the motion for new trial. It is obvious that the case was qne for the consideration of the jury. The trial was in all respects fair, and we are unable to find anything in the record sufficient to create a doubt as to the correctness of the result, or to warrant us in interfering with the verdict. The judgment of the lower court is accordingly affirmed.

BESSEY, P. J., and EDWARDS, J., concur. •


text:
    DOCK SMITH v. STATE.
    No. A-4953.
    Opinion Filed April 20, 1925.
    (235 Pac. 555.)
    (Syllabus.)
    Intoxicating' liquors — Evidence not Supporting Conviction for Unlawful Possession. In a prosecution for unlawful possession of intoxicating liquor, evidence held insufficient to support conviction.
    Appeal from County Court, Carter County; M. F. Winfrey, Judge.
    Dock Smith, was convicted of unlawful possession of intoxicating liquor, and he appeals.
    Reversed.
    R. C. Roland, for. plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charged that on the 5th day of April, 1923, Dock Smith did have in his possession one-half gallon and three pints of whisky with the unlawful intent to sell the same. On the trial the jury returned a verdict finding him guilty, and fixing his punishment at a fine of $50 and confinement in the county jail for 30 days. He has appealed from the judgment rendered on the verdict. A number of errors are assigned, but we deem it only necessary to discuss the one that the verdict is not sustained by sufficient evidence.

The evidence shows that E. G. London, sheriff, accompanied by Deputy Sheriffs Ginn and Dunn, in executing a search warrant searched the defendant's house and found a pint bottle in the kitchen about half full of com whisky. They further testified that they searched another house about 70 feet from the defendant’s house which seemed to be vacant, and found above the ceiling a half gallon jar of corn whisky and two pint bottles of whisky; that there was a bicycle, quilts, and boxes in the house.

At the close of the state’s evidence there was a motion by the defendant for a directed verdict on the ground that the evidence is insufficient to connect him with the alleged offense, because there was no evidence tending to show that he had possession of the vacant house. The motion was denied.

The testimony of the defendant in his own behalf is as follows: That he owned the house he lived in, and for about two years O. M. Redfield owned the vacant house east from his place; that he did not know anything about the whisky in the vacant house; that he did not have control or possession in any way of the vacant house, and did not know anything about the whisky found there by the officers; that Harvey Giles had lived there, and previous to that Addie Kyles and some other lady lived there; that the bottle found in his house contained about one drink of whisky that he had brought from Ada the day before, and that the officers did not have a search warrant. Mrs. Smith, wife of the defendant, testified in substance to the same facts as did her husband, and further that they did not own any of the plunder found in the vacant house.

From our examination of the record, we are impressed with the legal insufficiency of the facts in this case to warrant a verdict of guilty.

Because the evidence is insufficient to support the verdict, the judgment of conviction is reversed.

BESSEY, P. J.. and EDWARDS, J., concur.


author: DOY'LE, J.

text:
    JOHN MARTIN v. STATE.
    No. A-4970.
    Opinion Filed April 26, 1925.
    (235 Pac. 556.)
    (Syllabus.)
    Intoxicating liquors — Evidence not Sustaining Conviction for Unlawful Possession. In a prosecution for unlawful possession of intoxicating liquor evidence considered, and held insufficient to sustain conviction.
    Appeal from County Court, Okfuskee County; Wm. Seawell, Judge.
    John' Martin was convicted of the unlawful possession of intoxicating liquor, and he appeals.
    Reversed.
    Guy L. Trimble and J, Hugh Nolan, for plaintiff in error.
    George F. Short, Atty. Gen., and Charles Hill Johns, Asst. Atty. Gen., for the State.
   DOY'LE, J.

The information in this case charged that John Martin, on the 29th day of August, 1923, did have in his possession intoxicating liquor, to wit, one-half gallon of whisky, with the unlawful intent to sell the same. The jury returned a verdict finding him guilty as charged in the information, and fixing his punishment at a fine of $50 and 30 days confinement in the county jail.

It is contended that the evidence is insufficient to sustain the verdict, and that the court erreid in admitting incompetent evidence.

The evidence shows that R. H. McKinnon, sheriff, in company with Sam P. Foster, undersheriff, and J. L. McAlester, deputy sheriff, searched the defendant’s home in Okemah, in the absence of the defendant, and found a half-gallon fruit jar partly full of whisky, which was introduced in evidence.

The sheriff testified, “We had a search warrant.” Asked what court it was out of, answered, “I don’t know; I guess the justice court.”

The defendant objected to the*testimony given by the witnesses for the state as incompetent, for the reason that the officers had no proper search warrant at the. time the search was made of his home, which was overruled. At thei close of the state’s evidence defendant made a motion to strike all the evidence on the ground that the search was made in violation of his constitutional rights. The motion was denied.

William Martin, son of the defendant, testified that he was present when the search was made; that he knew his father had some whisky, not quite half a gallon; that 3 or 4 days before the officers made the search his aunt and sister were out in a car, and when they came in .they said they saw a man hiding something in the weeds. His father went out and was gone a little while and brought the jar of whisky back with him.

As a witness in his own behalf, the defendant testified that with his wife and 10 children he had lived in the Okemah community 18 years, farming most of the time, and at present running a filling station and garage across the street from his home; that the girls came in one evening and told him that they saw a fellow hiding something in a nearby corn ' 'Id and thought it was whisky; that he went over there, hun'ed around, and found a fruit jar of whisky which he brought home.

At the close of the evidence, the defendant moved the court for a directed verdict on the ground that there is no evidence to show an intention to sell. The motion was denied.

After a careful consideration of the evidence, we are of the opinion that the action of the officers in searching the defendant’s home and in seizing the liquor was an unjustifiable trespass, and in violation of the defendant’s constitutional and statutory rights. It follows that the trial court was in error in admitting the jar and its contents in evidence.

The statute then in force (section 6999, C. S. 1921) provided that the keeping in excess of one gallon of spirituous liquors shall be prima facie evidence of an intention to convey, sell, or otherwise dispose of such liquors. The amount seized was less than half a gallon, and the evidence is insufficient to show that the liquor was in defendant’s possession with an intention to sell the samei For this reason the court erred in denying the defendant’s motion for a directed verdict of acquittal.

Because the evidence is insufficient to sustain the verdict of conviction, the judgment of the lower court is reversed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    J. L. LEWIS v. STATE.
    No. A-4816.
    Opinion Filed April 18, 1925.
    (235 Pac. 557.)
    (Syllabus.)
    1. Intoxicating Liquors — Manufacturing Liquor — Evidence Sufficient. Evidence examined and found to sustain tbe judgment and sentence.
    2. New Trial — Motion on Ground of Newly Discovered Evidence— Affidavits Insufficient. It is not error to overrule a motion for new trial on tbe ground of newly discovered evidence, where the affidavits in support thereof state no fact, but merely a conclusion.
    Appeal from 'County Court, Kay County; J. L Roberson, Judgei.
    J. L. Lewis was convicted in the County Court of Kay County on a charge' of manufacturing whisky, and he appeals.
    Affirmed.
    David L. Carter, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   EDWARDS, J.

Several assignments of error are set out, but the argument is directed to but two. First: That the evidence is insufficient to sustain the judgment and sentence; second, that the court erred in overruling the motion of the plaintiff in error for a new trial on the ground of newly discovered evidence.

Upon the first assignment, an examination of the record discloses that the plaintiff in error resided upon a rented farm. That the sheriff and his deputy, with a search warrant, went to the farm and made a search, the plaintiff in error at the time being absent. In the search they found some two or three bottles of whisky in the house, a 50-gallon barrel of mash hid in a corn shock some 200 yards from the house, and not a great ways from it a still, and near the still indications of where a fire had been made, and between the mash and still a number of empty jugs, and in the granary, covered up in the corn, 4 or 5 gallons of whisky; also the top and worm to the still. This was the main evidence against the plaintiff in error. It is purely circumstantial, and while the plaintiff in error denied knowledgei of the still, worm, and whisky in the granary, and testified that the whisky in the house was for his own use, yet we cannot say that the evidence is not sufficient to sustain the verdict. Its weight was for the jury.

Upon the second assignment that the court erred in overruling the application of the plaintiff in error for a new trial on the ground of newly discovered evidence, the defense was based on the contention that one Jack Gentry, who had been interested in the' lease of the farm with plaintiff in error and had moved away only a short time before the search, was the real cúlprit. In the course of the trial, the plaintiff in error sought to show that Gentry had been convicted of a violation of thei liquor law, and that the still and whisky was probaby his. The motion for a new trial filed by the plaintiff in error, among other things, set up the ground of newly discovered evidence, and in support thereof filed three affidavits of Edgar Riggle, Mrs. Edgar Riggle, and Elizabeth Benton, all being identical in language, as follows:

“That during the year 1922 the said Jack Gentry was engaged in farming and the dairy business and a cotenant with one J. L. Lewis; that to affiant’s own certain personal knowledge the said Jack Gentry while so engaged did make and manufacture intoxicating liquor, to wit, whisky, and did have in his possession and control distilling apparatus for the purpose of manufacturing whisky.”

The plaintiff in error sets out that he did not learn of this evidence until after the trial, and that said witnesses have assured him that if a new trial is granted they would appear and testify. It will be observed, however, that the affidavits state no fact and are only a conclusion. It is not stated that the persons making the affidavits were at the premises in question, nor saw Gentry when in the possession of any still, whisky, or distilling apparatus, or where they saw him, if at all. Under such state of the record, we think no weight or consideration should be given to these affidavits.

No exceptions were taken to the instructions, and we find no error in the record that would warrant a reversal of this case.

The judgment and sentence are affirmed.

BESSEY, P. J., and DOYLE, J., concur.


author: PEE CURIAM.

text:
    In re A. B. FORREST.
    No. A-5496.
    Opinion Filed April 21, 1925.
    (235 Pac. 263.)
    (Syllabus.)
    Bail — Evidence Showing Person Accused of Murder Entitled to Bail as Matter of Legal Bight. In an application for bail in a capital case, evidence reviewed, and held to show that petitioner is entitled to bail as a matter of legal right
    Application of A. B. Forrest for habeas corpus to obtain bail.
    Bail allowed.
    Matson & Mathers, for petitioner.
    The Attorney General, for the State.
   PEE CURIAM.

The petition filed on behalf of A. B. Forrest, March 28, 1925, for writ of habeas corpus to be admitted to bail, discloses that he was committed by the county judge of 'Cotton county, after a preliminary examination and without bail, to answer to the district court of that county upon a complaint wherein petitioner and his wife were jointly charged with the murder of one George Hicks, on the 4th day of February, 1925.

It appears that an application for bail in the district court of Cotton county, before A. S. Wells, judge, was heard and denied on March 14, 1925.

It is averred that the proof of his guilt is not evident, nor the presumption thereof great; which will appear from a transcript of the testimony taken upon said preliminary examination, attached to said petition.

The undisputed facts, as shown by the testimony, are that George Hicks, about 23 years of age, eloped with petitioner’s daughter, a school girl of 15 years of age, at tending school at Walters, and a few months later returned to the home of petitioner, and was there shot and killed by petitioner’s wife. Petitioner was down on the streets at the time of the killing. There was some testimony tending to show that petitioner had made threats against the deceased.

By numerous decisions of this court it is held that, under the constitutional provision (article 2, § 8), one charged with a capital offense is entitled to bail as an absolute right, unless the proof of guilt is evident, or the presumption thereof is great, and, in case proof of guilt is evident or the¡ presumption thereof great, the granting or refusing of bail is a matter of judicial discretion.

Upon a careful examination and consideration of the testimony, we are of the opinion that petitioner herein is entitled to be admitted to bail as a matter of legal right.

It is therefore adjudged and ordered that said petitioner be admitted to bail upon the charge of murder now pending against him, and that his bail be, and the same is hereby, fixed in the sum of $15,000; bond to be conditioned as required by law, the same to be approved by the court clerk of said county.


text:
    JESSE MOSLEY v. STATE.
    No. A-4931.
    Opinion Filed April 23, 1925.
    (235 Pac. 260.)
    (Syllabus.)
    Intoxicating liquors — Evidence Sustaining Conviction for Unlawful Possession, In a prosecution for unlawful possession of intoxicating liquor, evidence held to sustain a conviction, and that no material error was committed on the trial.
    Appeal from County Court, Tulsa County; John P. Boyd, Judge.
    Jesse Mosley was convicted of unlawful possession of intoxicating liquor. He appeals.
    Affirmed.
    Coffey & Grove, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

Plaintiff in error,. Jesse Mosley, was convicted under an information charging that on May 26, 1923, he did “have in his possession certain intoxicating liquors, to wit, 40 gallons of Choctaw beer, then and there containing more than one-half of 1 per cent, of alcohol, measured by volume and capable of being used as a beverage, with the unlawful intent,” to sell the same, and in accordance with the verdict of the jury he was sentenced to be confined in the county jail for a period of 120 days and to pay a fine of $300. He has appealed from the judgment and assigns as error that the verdict is not sustained by sufficient evidence, and that the court erred in admitting incompetent evidence.

The defendant is not represented by counsel in this court, and no brief in support of the assignments of error has been filed.

It appears that J. H. Smitherman, deputy sheriff, under authority of a search warrant visited and searched the premises occupied by the defendant, where he found and seized about 40 gallons of Choctaw beer; that he saved some of it, which he gave to Mr. H. R. Rowe, of the Tulsa Laboratories, for analysis; that defendant’s place was a place where people congregated to drink “'Choc”; and that he knew the general reputation of the place, as to whether or not intoxicating liquors were kept in violation of the prohibitory law of the state, and that reputation was bad.

H. R. Rowe testified that he was a chemist, and that an examination of the Choctaw beer received from Smither-man found that it contained 5.98 alcohol, measured by volume,

Without the aid of oral argument or a printed brief, we have examined the record and are satisfied that the defendant had a fair and impartial trial.

Finding the evidence sufficient, and no prejudicial error of law occurring at the trial, the judgment of the lower court is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


author: DOY(LE, J.

text:
    E. T. PIQUET v. STATE.
    No. A-4915.
    Opinion Filed April 23, 1925.
    (235 Pac. 257.)
    (Syllabus.)
    Intoxicating Liquors — Evidence Sustaining Conviction for Unlawful Possession. In a prosecution for unlawful possession of intoxicating liquor, evidence held to sustain a conviction.
    Appeal from County Court, Tulsa County; John P. Boyd, Judge.
    , E.. T. Piquet, convicted of unlawful possession of intoxicating liquor, appeals.
    Affirmed.
    Ed Crossland, for plaintiff in error,.
    The Attorney General, for the 'State.
   DOY(LE, J.

The information in this case charged that E. T. Piquet, April 30, 1923', did have in his possession one gallon and one pint of corn whisky with thei unlawful intent to sell the same, and in accordance with the verdict of the jury he was sentenced to be confined in the county jail for a period of 100 days and pay a fine of $100. From the judgment he appeals.

The only ground assigned for a reversal is that the verdict is not sustained by sufficient evidence.

The defendant is not represented by counsel in this court, and no brief in support of the assignments of error has been filed.

The evidence shows that under authority of a search warrant, three deputy sheriffs' visited the premises occupied by the defendant, where they found and seized one gallon and a pint bottle of corn whisky and some smaller bottles partly full.

At the close of the state’s evidence there was a motion by the defendant for a directed verdict on the ground that there is not sufficient evidence on which to sustain a conviction, which was overruled; exception allowed.

There was no testimony offered on the part of the defense.

We have examined the record and are satisfied that the defendant had a fair and impartial trial. Finding the evidence sufficient and no prejudicial error of law occurring at the trial, the judgment of thei lower court is affirmed.


text:
    CLAUDE DODSON v. STATE.
    No. A-4862.
    Opinion Filed April 23, 1925.
    (235 Pac. 268.)
    (Syllabus.)
    1. Indictment and Information — State’s Right to Rely on Any Specific Act of Intercourse Within Three Years Previous to Prosecution for Stautory Rape. Where an information charging statutory rape alleged the crime to have been committed “on or about the 30th day of November, 1918,” the state is not required to prove said crime as committed on' the date alleged, but may rely upon any specific act of sexual intercourse committed within three years previous to the date of the commencement of the action.
    2. Rape — “Of Previous Chaste and Virtuous Character” Defined. The phrase “of previous chaste and virtuous! character,” as used in the statute (section 1834, C. S. 1921), means in law as in morals a female who has never voluntarily indulged, out of wedlock, in sexual intercourse.
    3. Same — Necessary Allegation and Proof as to Previous Chaste •Character of Female. In a prosecution for statutory rape, where the. previous chastity of the female is an essential element of the offense as defined by the statute, it cannot be said that the law presumes that the female was not of chaste character when the act was committed, although such chaste character must be -alleged, and the burden is on the. state to prove beyond a reasonable doubt that she was of previous chaste and virtuous character.
    4. Trial — Election Between Repeated Offenses Constituting Statutory Rap© — Duty of Court on Motion to Require Election. It ds the established practice to require the. state to elect, and when the defendant fails to request election by the state between repeated offenses, as shown by thei evidence, it is proper for the court, upon its own motion, to require the state to elect.
    5. Evidence — Judicial Notice of Boundaries of State and Counties, and Location of Cities and Towns. The courts take judicial notice of the boundaries of the state and counties therein, and the geographical location of cities and towns within the state.
    6. Same — Fact that Point 12 Miles Northwest from County Seat is Within County Judicially Noticed. The boundaries of Greer county, as well as the fact that a point 12 miles northwest from Mangum, the county seat, is within Greer county may be judicially noticed.
    7. Trial — Rape—Credibility of Prosecutrix for Jury. Credibility of of the prosecutrix in a prosecution for statutory rape is for the jury.
    8. Rape — Evidence Sustaining Conviction for Statutory Rape, in a prosecution for statutory rape, evidence held to warrant a conviction.
    Appeal from District Court, Greer County; T. P. Clay, Judge.
    Claude Dodson was convicted of rape in the second degree, and he appeals.
    Affirmed.
    A. R. Garrett, for plaintiff in error.
    George F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error, Claude Dodson, was charged with the crime of rape, alleged to have been committed on or about the 30th day of November, 1918, by having sexual intercourse with one Gertrude Keesee, a female over the age of 16 years and under the age of 18 years, of previous chaste and virtuous character, and not the wife of the defendant.

On the trial the jury returned a verdict finding him guilty of rape in thei second degree and fixing his punishment at confinement in the penitentiary for a term of five .years. He has appealed from the judgment rendered on the verdict

It is assigned as error that the verdict is not sustained by the evidence. The material and undisputed facts in the case as disclosed by the record are substantially as follows:

The prosecutrix was born on the 4th day of March, 1901; she lived with her parents on a farm about 12 miles northwest of Mangum; that she gavei birth to a child at the home of her parents, August 28, 1919. In June, 1919, the defendant went to Texas and was gone for about two years.

The prosecutrix testified that the defendant, Claude Dodson, had kept company with her for about three years, and they were engaged to be married; that he first had sexual intercourse with her going home from church at Wesley Chapel; that she could not remember how many times after that they had sexual intercourse; that she never liad sexual intercourse with any other man; that the defendant was the first person she told about being in a family way and after he left the country she told the defendant’s sister.

She was then asked the question and answered as follows:

“Q. State in what county and statei he had intercourse ? A. State of Oklahoma, Greer county.”

Martha Keesee, an elder sister, testified that the defendant visited their home nearly every Sunday, always in a buggy; that they would have singing on Sunday nights and parties during the week, and the defendant always "took her sister, Gertrude, to these parties.

The prosecutrix, recalled, testified that the first intercourse the defendant had with her was in March, 1918; that the last time the defendant had intercourse with her was along about the last of November, 1918; that in June, 1919, was the last time she saw the defendant for two years.

William Keesee, father of 'Gertrude, testified that she was born March 4, 1901; that the defendant began to visit his daughter Gertrude in thei early part of the year 1918; that her child, a baby girl, was born on the 28th day of August, 1919; that he did not see the defendant after June, 1919, for about two years.

When the state rested, the court required the state to elect upon which one of the acts of sexual intercourse related by the prosecutrix it would rely on for a conviction. The state elected March, 1918,

For the defense, Chas. A. Francis testified that the defendant was his first cousin; that in 1918 he lived about a mile from Mr. Keesee’s home, and his daughter, Miss Gertrude, visited his wife some time in July, 1918, and that evening while hei was lying down on the bed out in the yard Miss Gertrude came and laid down on the bed with him and fumbled over him, and he felt of her legs; then he had to get up and get away from her to keep down trouble; that Miss Gertrude stayed there that night with his wife.

Bill Francis testified that he was a first cousin of the defendant; that he was acquainted with Miss Gertrude Keesee, and took her home from a dance at Lewis Allen’s, about three quarters of a mile, some time in the latter part of the winter of 1918, and on the way hugged her and kissetd her and talked with her about having intercourse and she refused and said to wait until somei other time.

The defendant did not testify. The record shows that the sufficiency of the evidence to sustain a conviction was questioned for the first timei in the defendant’s motion for a new trial.

It is urged by counsel for the defendant that the evidence is insufficient to show that the prosecutrix was under the age of 18 in the month of March, 1918. This argument is predicated upon the alleged contradictions and inconsistencies of the testimony of the prosecutrix.

There was some confusion of dates in the testimony of the prosecutrix as to her age and the date as to when the first act occurred. However, mistakes in dates are easily made, and in cases of this character the prosecutrix is usually under great embarrassment and confusion of mind. The testimony of her father that she was born on March 4, 1901, was positive and without any qualification whatever.

It goes without saying that the credibility of the witnesses was for the jury. It is also urged that there was no proof of venue. To use the language of counsel in his brief, “There is not one word in that evidence as to what county or state it occurred in * * * or that the act of sexual intercourse complained of by the prosecutrix as having occurred in March, 1918, occurred in Greer county, Okla. ”

The prosecutrix testified that the defendant had intercourse with her in Greer county. It was shown by the testimony of all the witnesses that the parties concerned lived about 12 miles northwest of Mangum, which is almost the geographic center of Greer county.

Courts of the state take judicial notice of the boundaries of the state and the counties of the state, and also the geographical location of cities and towns within the state. Goben v. State, 20 Okla. Cr. 220, 201 P. 812.

In State v. Skibiski, 245 Mo. 459, 150 S. W. 1038, it was held that a place eight miles from a named county seat was judicially known to be within the county. And- see Forehand v. State, 53 Ark. 46, 13 S. W. 728.

It is also urged that thq evidence is insufficient to show that the prosecutrix was a female of previous chaste and virtuous character.

While it cannot be said that the law presumes girls over 16 and under 18 years of age are not of chaste character, however, on a trial for statutory rape on a girl over 16 and under 18 years of age, the previous chaste character of the prosecutrix is a material element of the offense, and must be alleged and the burden is on the state to prove beyond a reasonable doubt that she was of previous chaste character. Davis v. State, 17 Okla. Cr. 604, 191 P. 1044.

“A female of previous chaste character” is one who has not had sexual intercourse, unlawfully, out of wedlock, knowingly and voluntarily. Castleberry v. State, 10 Okla. Cr. 504, 139 P. 132.

The proof that the prosecutrix was a female of previous chaste character need not be made by evidence directly upon the point other than the testimony of the prosecu-trix, but may be shown prima facie by presumptions from other facts.

The prosecutrix testified that she had not had sexual intercourse with any other man, and the evidence shows that she had always resided with her parents and went in such society as the neighborhood afforded. This was competent evidence that she was of previous chaste character. While the witness Francis testified that the prosecu-trix had tried to seduce him, and that he emulated the example of Joseph of old and escaped from her, however, we are inclined to think that neither his testimony, nor that of his brother, scarcely rises to the dignity of evidence.

Complaint is made that the court erred in requiring an election by the state. It appears from the evidence that the defendant’s offense was repeated a number of times between March and November in the year 1918. The defendant was entitled to require an election by the state, but he made no such request at the close of the evidence for the state. Thereupon the court did, upon its own motion, require the state to elect. It is the established practice under our statute to require the state to eilect. Montour v. State, 11 Okla. Cr. 376, 145 P. 811; Taylor v. State, 14 Okla. Cr. 400, 171 P. 739.

Complaint is made of several instructions, but no authority is cited in support of the criticisms made.

We find that the instructions fully and fairly covered the law of the case.

In conclusion, we simply add that we see no reason to doubt that this conviction was warranted by the evidence and, finding no error prejudicial to the defendant, the judgment of conviction is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    JACK COOK v. STATE.
    No. A-4960.
    Opinion Filed April 23, 1925.
    (235 Pac. 552.)
    (Syllabus.)
    Intoxicating Liquors — Evidence not Sustaining Conviction for Selling Liquor. In a prosecution for selling intoxicating liquor, evidence held insufficient to sustain a conviction.
    Appeal from County Court, Okfuskee County; William L. Seawell, Judge.
    Jack Cook was convicted of selling intoxicating liquor, and appeals.
    Reversed.
    E. Huser, for plaintiff in error.
    George F. Short, Atty. Gen., and J, Roy Orr, Asst. Atty. Gen., for the State..
   DOYLE, J.

The information in this case charged that in Okfuskee county, on the 2d day of August, 1923, Jack Cook did “unlawfully, sell four pints of spirituous, vinous,. malt, fermented, and intoxicating liquor to one Bud Hendrix.” He appeals from the judgment entered on the verdict finding him guilty as charged in the information and fixing his punishment at a fine of $150 and confinement in jail for 60 days.

The only ground relied on for a reversal is that the verdict is not sustained by sufficient evidence.

The state used but one witness, W. E. Hendrix, who testified that he was a taxi driver; that he saw Jack Cook one time at a joint north of Springhill; that he drove up, got out, and walked to the front door and called for four bottles of beer; that Jack 'Cook and some other men’were behind the bar; that he looked around in the crowd that was in the house, and when he walked back to the door there were four bottles setting there, and he laid down $2, picked up the bottles, and walked out; that he drank one bottle of the beer. Asked, was it intoxicating, answered: “I didn’t get drunk. If you drank enough of it, you could get drunk on it.”

When the state rested, the defendant moved for a directed verdict of acquittal in the form of a demurrer to the testimony, on the ground that the same was insufficient to show the commission of an offense.

The court directed the jury to retire, and after hearing the agument of counsel overruled the motion.

The testimony of the defendant in his own behalf was as follows:

“I live at Springhill. About that time I had been sick, and I would walk up to the joint to pass the time away. It was operated by a man called Dago. I don’t know what his name is. I saw Bud Hendrix come into the house. There was a crowd there. I was standing at the south end of the bar talking to Dago, the proprietor. Hendrix called for four bottles of beer, and Dago put them on the counter. I didn’t see any money pass between them. I never worked there.”

To warrant or sustain a conviction, there must be evidence sufficient to prove that an offense was committed, and also to inculpate the defendant in its commission.

Upon the record in this case, we are of the opinion that the evidence is wholly insufficient to warrant the verdict of the jury. It follows that thei court erred in overruling the defendant’s motion for a directed verdict of acquittal.

The judgment of the lower court is reversed.

BESSEY, P. J., and EDWARDS, J., concur.


author: PER CURIAM.

text:
    L. C. BLEDSOE v. STATE.
    No. A-4946.
    Opinion Filed April 25, 1925.
    (235 Pac. 267.)
    (Syllabus.)
    Appeal and Error — Conviction not Disturbed on Appeal, in View of Sufficient Evidence. Record examined, and beld, that the proceedings are regular, and that the judgment and sentence is amply warranted toy the evidence.
    Appeal from Municipal Criminal Court, City of Tulsa; G. Ev Warren, Judge.
    L. C. Bleidsoe, on conviction in the municipal criminal court of the city of Tulsa on a charge of unlawfully transporting whisky, was sentenced to pay a fine of $100 and to be confined in the county jail for 30 days, and appeals.
    Affirmed.
    Ed Crossland, for plaintiff in error.
   PER CURIAM.

No briefs have been filed for either the plaintiff in error or the state, but we have examined the record and find that the proceedings were regular. The information states a cause of action, and the plaintiff in error in writing waived his right to a trial by jury, and asked the court to try said cause. The evidence amply sustains the court in finding the plaintiff in error guilty, and there is no reason for disturbing the judgment and sentence. The case is affirmed.


author: BESSEY, P. J.

text:
    J. SMITH v. STATE.
    No. A-5467.
    Opinion Filed April 25, 1925.
    (235 Pac. 273.)
    (Syllabus.)
    1. Appeal and Error — Statute Authorizing Appeal on Question of Law Reserved by State Constitutional. There is no constitutional limitation in this state in conflict with our statute authorizing an appeal on a question of law reserved by the state, including cases in which the accused may have been acquitted or discharged.
    2. Intoxicating Liquors — Affidavit for Warrant to Search for Liquor Held Sufficient. Affidavits for search warrants compared and distinguished.
    3. Searches and Seizures — Evidence Necessary to Show Probable Cause to Issue Search Warrant. A search warrant must be based upon evidential facts, but the quantum of evidence necessary to show probable cause may be quite insufficient to support a verdict of guilty.
    Appeal from County Court, Tulsa County; W. L. Coffey, Judge pro tern.
    J. Smith was acquitted of having illegal possession of intoxicating liquor, and the state appeals upon a reserved question of law.
    Question decided in favor of the State.
    John M. Goldesberry, Co. Atty., and the Attorney General, for the State.
    R. M. Dick, for defendant in error.
   BESSEY, P. J.

This is an appeal by the state upon a reserved question of law, as provided by section 2807, Compiled Oklahoma Statutes 1921, which provides that the-state may appeal (1) upon a judgment for the defendant quashing or setting aside an information; (2) upon an order of the court arresting the judgment; and (3) upon a question reserved by the state. Appeals being of statutory origin, an appeal by the state cannot be taken in any casei, except as above stated. The question of law reserved by the state herein arose in this wise:

The defendant in error, defendant in the trial court, was charged with the illegal possession of intoxicating liquor. The evidence tending to support the accusation was obtained by a search warrant issued upon the following affidavit:

“J. H. Smitherman, being first duly sworn upon oath deposes and says: That certain intoxicating liquor is being manufactured, sold, bartered, given away, and otherwise furnished, and is being kept for the purpose of being sold, bartered, given away, and otherwise furnished, in violation of the prohibitory law of thei state of Oklahoma, the kind and description of said liquor being as follows, to wit: Wine, beer, whisky, and other intoxicating liquor, and imitations thereof and substitutes therefor, the exact quantity thereof being unknown to affiant That said liquor is being disposed of and kept in the manner aforesaid by one John Doe, whose real name is unknown to informant, on the following described premises, situate in Tulsa county, Oklahoma, within said county and state, to wit: One certain one-story frame house located as follows: Fifth house east from coal chute in the West Tulsa Frisco yards, and north of Frisco railway, in the county of Tulsa, together with the curtilage thereof and appurtenances thereto. That said building is a private residence, and is used as a place of. public resort, and for the storage and furnishing of intoxicating liquor.”

In executing the search warrant predicated upon this affidavit, the officers at thei house described found and seized three gallons of choc beer, which the defendant acknowledged belonged to him. A sample of this beeir was analyzed by a chemist and found to contain 5.6 per cent, of alcohol by volume. The affidavit and the search warrant were introduced in evidence to show the authority of the officers to make the seizure; also a sample of the liquor seized, and evidence concerning thei incidents connected with the seizure.

At the close of the testimony the defendant made a motion to suppress thei evidence obtained by means of the search warrant and to withdraw the same from the consideration of the jury, on the ground that the search and seizure were illegal, because thei affidavit for the search warrant was insufficient, being a mere statement of conclusions, and not containing statements of fact sufficient to show probable cause for the issuance of the search warrant; that the search was therefore void, and that all evidence obtained thereby was incompetent and inadmissible.

This motion was by the court sustained and the evidence so obtained was withdrawn from the consideration of the jury. The defendant then moved that the jury be instructed to return a verdict of acquittal. This motion was likewise by the court sustained, and the jury was so instructed, and thereupon rendered its verdict of acquittal accordingly. From these rulings of the court, and from the verdict of acquittal, the state, through the county attorney, prayed and was granted an appeal upon the questions of law so reserved.

Since the defendant was acquitted by verdict of a jury, this case as to him is at an end. He was in jeopardy by being put on trial and having the issues submitted to and determined by a jury. In some jurisdictions, where a defendant in a criminal case has been so eliminated from the controversy, the state is powerless to appeal on a mere naked question of law. But that is because of some constitutional inhibition or limitation. State v. Kelsey (N. D.) 190 N. W. 817; State v. Hazledahl, 2 N. D. 521, 52 N. W. 315, 16 L. E. A. 150. But there is no constitutional limitation in this state in conflict with our statute authorizing an appeal on a question of law reserved by the state, including cases where the accused may have been acquitted or. discharged. State v. Frisbeee, 8 Okla. Cr. 406, 127 P. 1091; State v. Rule, 11 Okla. Cr. 237, 144 P. 807; State v. Vaughn, 15 Okla. Cr. 187, 175 P. 731; State v. Tibbetts, 21 Okla. Cr. 158, 205 P. 776; State v. Robertson, 28 Okla. Cr. 234, 230 P. 932. In the Frisbee Case the first syllabus reads as follows:

“The state has a right to prosecute an appeal to this court upon any question of law reserved by the state during the trial of a criminal case. The fact that the defendant may have been acquitted and could not again be tried for the same offense will not in any way interfere with the right of the state to appeal and have the question so reserved settled.”

In the instant case the trial court doubtless ordered the testimony obtained by means of the search warránt to be withdrawn from the consideration of the jury, and instructed the jury to bring in a verdict of acquittal on authority of the recent holdings of this court in the case of Hannan v. State, 29 Okla. Cr. 203, 233 P. 249. In the Han-nan Case the affidavit upon which the search warrant was based was as follows:

“* * * That intoxicating liquors are being kept by John Doe. and in the said John Doe’s possession, in a certain building situated at 616-618 E avenue in the city of Lawton, county of Comanche, and state of Oklahoma, for the purpose and with the intent of the said John Doe to sell the same in violation of the law, and for the purpose of committing a public offense.”

Whether an affidavit for a search warrant states evidential facts or mere conclusions is sometimes difficult to determine. In this regard it seiems to us that the affidavit in the Hannan Case is on one edge of the twilight zone, and the affidavit here under consideration is on the other edge. It will be observed that the affidavit in the Hannan Case did not state that “John Doe” was a fictitious name, or that the real name of “John Doe” was unknown to the affiant. The affidavits did not describe or designate the kind of liquor. The statement that “intoxicating liquors are being kept” was a mere indefinite conclusion. The allegation that this undescribed person had this undescribed liquor for the purpose of illegal sale was likewise a conclusion. Neither did the affidavit state that the place described was occupied as a private residence and was a place of public resort, as required by section 7013, Comp. Stat. 1921.

Now let us see how the affidavit in the case here under consideration differs from the one in the Hannan Case. The affidavit in thei instant case shows that “John Doe” was a fictitious name, and that the offender’s real name was unknown-to affiant. It also states that the.place described was a place of public resort, the fifth house (presumably a residence) east of the coal chute, and that it was a place where wine, beer, and whisky were being kept. All these statements, considered together, reasonably implied that the liquor described was being kept for an illegal purpose.

While we do not wish to hold that the affidavit in the case here under consideration is a model in form and substance, wei do hold that there were some facts stated sufficient to warrant the magistrate in making a finding of probable cause. While a search warrant must be based upon evidentiary facts, the quantum of evidence necessary to show probable cause may be quite insufficient to support a verdict of guilty.

The two affidavits differ materially in three vital particulars : First, in ■ naming and describing the persons; second, in naming and describing the intoxicating liquors; and, third, in describing the character of the place where the liquors were being kept. In the Hannan Case nothing is stated but naked conclusions; in the instant case there are some facts stated designating the person in possession, the kind of liquor, and the character of the placei where it was being kept.

Without receding from any of the conclusions announced in the Hannan 'Case, we hold that the court erred in this case in suppressing the evidence obtained by means of the seiareh warrant, and erred in instructing the jury to render a verdict of acquittal.

DOYLE and EDWARDS, JJ., concur.


text:
    Ex parte POLLY WALKER et al.
    No. A-5534.
    Opinion Filed April 25, 1925.

    (235 Pac. 266.)
    Application of Polly Walker and Susie Thomas for writs of habeas corpus.
    Writs allowed.
    Morris & Tant, for petitioners.
    The Attorney General and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

In this application for writs of habeas corpus it is stated that both petitioners, Polly Walker and Susie Thomas, at the times herein mentioned were under the age of 16 years; that on the 14th day of November, 1921, they were arrested at El Reno, in Canadian county, and lodged in jail, charged with conjoint robbery; that on the 18th day of November the petitioners were advised by certain peace officers that it would be to their best interest and advantage to plead guilty to this charge. Acting upon such advice, having on this same day been brought by one of these officers into the county court of Canadian county they both, without the advice of counsel, friend, or parent, and without the knowledge of their parents, waived preliminary hearing and were by the county court held to answer the charge before the district court of said county. On the same day a final information was filed in the district court of Canadian county, charging the petitioners with conjoint robbery; the petitioners were forthwith taken into the district court where they entered their pleas of guilty, again without the advice of counsel, parent, guardian, or friend. Thereupon the district court, on the same day, to wit, November 18, 1925, sentenced each of the petitioners to confinement in the penitentiary for a term of 50 years, where they havei since been, and now are incarcerated pursuant to the judgment so rendered.

The petitioners say that in truth and in fact they werei not guilty of conjoint robbery; that at the time they entered their pleas they did not, by reason of youth and want of understanding, comprehend the nature and consequences of thei pleas or of the waivers of their statutory and constitutional rights in connection therewith; that both petitioners at that time were under the age of 16 years; and that no proceedings of any kind were had in the juvenile court to determine the intelligence and criminal responsibility of these petitioners, or to fix their status as juvenile offenders, if indeed they were such, as contemplated by law.

Petitioners say that for these reasons the district court of Canadian county was without jurisdiction to entertain any waiver of their constitutional or statutory rights, or to entertain their pleas of guilty, or to render and pronounce any judgment of conviction thereon, and that their consequent incarceration in the penitentiary is therefore without legal authority.

Upon a hearing had upon the application for these writs, it was shown by oral and documentary evidence of a positive and conclusive nature that, at the time of the proceedings had in the county and district courts of Canadian county, the petitioners were in fact under the age of 16 years, and that no prior investigation had been had in the juvenile court, as contemplated by law. Upon consideration of the testimony and documentary evidence adduced, this court holds that thei prayer of the petitioners should be granted; that the district court of Canadian county was without jurisdiction to render the judgment imposed against the petitioners, and each of them; and that the consequent restraint and confinement of the petitioners in the penitentiary is without legal authority. Ex parte Pyzer, 29 Okla. Cr. 156, 232 P. 962; In re Powell, 6 Okla. Cr. 495, 120 P. 1022; Ex parte Hightower, 13 Okla Cr. 472, 165 P. 624; Ex parte Parnell, 19 Okla. Cr. 273, 200 P. 456.

The petition for the writs of habeas corpus is sustained as to both petitioners, and the petitioners ordered discharged.

DOYLE and EDWARDS, JJ., concur.


text:
    J. K. MAPLES v. STATE.
    No. A-4793.
    Opinion Filed April 25, 1925.
    (235 Pac. 264.)
    (Syllabus.)
    1. Indictment and Information — Information Sufficiently Certain. When an information clearly and distinctly states the facts in ordinary and concise language, which, construed under the ordinary rules of construction of the English language, would enable a person of common understanding to know what is meant, and sufficiently certain to enable a defendant to prepare his defense, and to plead a judgment of acquittal or conviction in bar to a subsequent prosecution for the same offense, it is sufficient.
    2. Same — Rape—Information for Assault with Intent to Commit Rape Sufficient. The exact words of the statute defining a crime need not be used in the information charging it, but any words which intelligently apprise the defendant of the exact nature of the offense with which he is charged are sufficient. . (a) Held, that the information in this case is sufficiently , definite to charge the crime of assault with intent to commit rape.
    Continuance — Ground of Absentl Witnesses — Insufficient Showing. Where, an application for a continuance does not set out the facts constituting due diligence or does not show the place of residence of the absent witnesses, nor the probability of procuring their evidence if the case should be continued, it is sufficient.
    4. Same — Evidence—Evidence of Witnesses Attached to Application for Continuance not Competent on Trial of Case. When an application for a continuance by a defendant on the ground of absent witnesses is properly overruled, the alleged evidence of the witnesses attached to the application is not competent evidence on/ the trial of the case.
    5. Trial — Evidence of Intoxication Insufficient to Warrant Instruction as to Inability to Entertain Intent. Evidence examined, and held, that there is no sufficient showing of intoxication to entitle the defendant to an instruction of inability to entertain an intent by reason thereof.
    Appeal from District Court, Pottawatomie County; C. C. Smith, Judge.
    J. K. Maples was convicted on a charge of assault with intent to rapei, and appeals.
    Affirmed.
    W. N. Maben and S. R. Pitman, for plaintiff in error.
    'George F,. Short, Atty. Gen., and Charles Hill Johns, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error was informed against in the district court of Pottawatomie county on a charge of assault with intent to commit rape upon the person of one Cleo Sampier. An examination of the record shows a state of facts about as follows:

The evidence of the state shows that the plaintiff in error, J. K. Maples, took the prosecutrix for an automobile ride. The plaintiff in error was driving the automobile, and they drove around for an hour or so, and the plaintiff in error, against the wishes of the prosecutrix, drove out towards the Country Club. Thei plaintiff in error had been drinking. The prosecutrix testified that the plaintiff in error struck, beat, and choked her, and dragged her from the car and across the road, using extreme force and violence in endeavoring to have sexual intercourse with her. It was shown by several physicians that she was bruised and her body was scratched in numerous places.

The state introduced as an exhibit the clothes which the prosecutrix wore on the night of the alleged assault. They were badly torn. The witness Edmondson, a farmer living near the scene of the assault, testified to a statement made by the plaintiff in error to him at the place where the alleged assault took place, which amounted to a confession.

Mrs. J. E\. Hughes testified that the prosecutrix lived with her as a servant; that on the night that these alleged acts took place the witness Edmondson brought the prosecu-trix home; that she was in a very nervous and excited condition, her hair was disheveled, her clothes were in disorder, one eye was bleeding, and the marks of violence were apparent all over her body, and she was very hysterical.

Upon the trial the jury returned its verdict finding plaintiff in error guilty and fixing his punishment at imprisonment in the state penitentiary for a term of four years. He has appealed to this court, and as grounds therefor makes various assignments of error: First, that the information on which plaintiff in error was tried is insufficient; second, error of the court in overruling his applica- ' tion for a continuance; third, error of the court in excluding evidence offered in his defense; fourth, error of the court in the giving of certain instructions; fifth, error of the court in failing to give requested instruction on intent.

Considering first the objection to the information, the charging part is as follows:

“That the said J. K. Maples did then and there, by means of force and threats and violence, unlawfully, intentionally, wrongfully, and feloniously make an assault upon a certain female person, to wit, Cleo Sampier, with the unlawful and felonious intent of the said J. K. Maples then and there to have and accomplish an act of unlawful sexual intercourse with her, the said Cleo Sampier, to rape, ravish, and carnally know her, the said Cleo Sampier, by attempting to then and there overcome all resistance of the said Cleo Sampier; she the said Cleo Sampier not then and there the wife of said J. K. Maples.”

The plaintiff in error contends that this information is defective for two reasons: First, that it does not charge that the plaintiff in error committed the assault with the felonious intent to have sexual intercourse with the assaulted female by force or violence sufficient to overcome any resistance she might make; second, that the information does not allege the acts done toward the commission of the crime charged.

The information here is not a model by any means, but if it contains a statement of the acts constituting the offense in ordinary and' concise language, in such a manner as to enable a person of ordinary understanding to know what is intended, it is sufficient. Section 2555, Comp. St. 1921; Star v. State, 9 Okla. Cr. 210, 131 P. 542. It appears to us that, construing this information under the ordinary rules of construction, any person of common understanding would know that the plaintiff in error was being charged with an assault upon the person of Cleo Sampier with the felonious intent to commit a rape upon her person. It would carry no other meaning, and while it is not arranged and stated as simply and clearly as it might be, yet it does state the charge with such particularity as to clearly enable the accused to identify the offense with which he is charged, and sufficiently to enable him to defend himself in case he should again be informed against for the same offense, and when this is true the information is sufficient. Smith v. State, 2 Okla. Cr. 286, 101 P. 611, 139 Am. St. Rep. 918; Price v. State, 9 Okla. Cr. 359, 131 P. 1102; Deen v. State, 7 Okla. Cr. 150, 122 P. 941; Bowes v. State, 8 Okla. Cr. 277, 127 P. 883.

This court, in the case of Williams v. State, 10 Okla. Cr. 336, 136 P. 599, had under consideration an information, the charging part of which is as follows:

“One James Williams, then and there being, did then and there intentionally, unlawfully, willfully, and feloniously make an assault upon one Mrs. W. W. Hyden, a female person over the age of 18 years, and of previous chaste and virtuous character, with an intent heir, the said Mrs. W. W. Hyden, unlawfully and feloniously to rape, ravish, and carnally know, and he, the said James Williams, did then and there attempt to unlawfully and feloniously rape, ravish, and carnally know the said Mrs. W. W. Hyden; thei said Mrs. W. W. Hyden not being the wife of the said James Williams,”

—and held that this was insufficient to charge an attempt to commit a rape, as not setting out the acts done, but held that it was sufficient to charge the crime of assault with intent to rape, under section 1758, Compiled St. 1921, which is the section under which the information in this case is filed and all the proceedings had, and on the authority of that case, as well as the general rule announced, the information is sufficient. It the case of Williams v. State, supra, this court further modified the rule announced in the cases of Young v. Ter., 8 Okla. Cr. 525, 58 P. 724, and Rector v. State, 9 Okla. Cr. 530, 60 P. 275. See Castleberry v. State, 10 Okla. Cr. 504, 139 P. 132.

The. next assignment is that the court erred in overruling the application of plaintiff in error for a continuance. There is no abuse of discretion shown. The application did riot set out the diligence used to procure the witnesses, nor show date on which subpoenas were issued for thei witnesses, nor show the whereabouts of the witnesses, except the witness Beatrice Maples, wife of the plaintiff in error, who. was shown to be ill. But no reason is shown why her deposition was not had, and no certificate or evidence from any physician as to her inability to be present at the trial. This is an insufficient showing. Boswell v. State, 8 Okla. Cr. 156, 126 P. 826; Petty v. State, 11 Okla. Cr. 438, 147 P. 782; Jones v. State, 8 Okla. Cr. 576, 129 P. 446; Ryal v. State, 16 Okla. Cr. 266, 182 P. 253; Bryan v. State, 5 Okla. Cr. 542, 115 P. 619; Edwards v. State, 9 Okla. Cr. 306, 131 P. 956, 44 L. R. A. (N. S.) 701; McCarter v. State, 14 Okla. Cr. 305, 170 P. 712.

Attached to the application for a continuance was what purported to be testimony of the absent witnesses, and in the course of the trial plaintiff in error offered in evidence this purported testimony as a deposition, which was by the court excluded, and such ruling assigned as error. There was no error in this ruling.

It is argueid that the court erred in refusing to give plaintiff in error’s request for an instruction to the effect that if, at the time of the offense charged, the plaintiff in error was so intoxicated that he was incapable of forming an intent, he should be acquitted. The plaintiff in error, when on the stand, testified that he was drinking on the occasion in question, but testified fully as to the occurrence, and made no contention that he was so intoxicated that he did not understand the nature and consequences of his act, or that his recollection or mentality was in any manner impaired, and none of the other witnesses at the scene of the offense sustained this contention. The requested instruction was not warranted by the evidence. See Cheadle v. State, 11 Okla. Cr. 566, 149 P. 919, L. R. A. 1915E, 1031, and McCarter v. State, supra.

Complaint is also made of instructions Nos. 5, 6, 7, and 11 of the court’s charge. We have examined the charge of the court with care. Thei instructions given were more favorable to the plaintiff in error than the law requires. The evidence shows the guilt of plaintiff in error.

There is no substantial error in the record such as would warrant a reversal of this case, and it is therefore affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    H. A. SADDLER v. CRUMP, District Court Judge.
    No. A-5536.
    Opinion Filed April 25, 1925.
    (235 Pac. 263.)
    (Syllabus.)
    Judges — Personal Prejudice of Judge Entitling Defendant to Change Judge. Where a presiding judge entertains a personal prejudice against a defendant, such fact will entitle the. defendant to a change of judge under section 6, art. 2, of the state Constitution ; but such prejudice must be shown as a matter of fact, and not as a mere matter of opinion of the defendant or any other person.
    Petition by H. A. Saddler for writ of mandamus to be directed by Hon. Geo. C. Crump, Judge of the District Court in and for Hughes County.
    Petition denied.
    O. G. Rollins, for petitioner.
    Tom H. Fancher and S. P. Freeling, for respondent.
   EDWARDS, J.

This is a proceeding by the petitioner for a writ of mandamus to require Honorable George C. Crump, judge of the district court of Hughes county, to certify his disqualification to try petitioner on a charge of criminal contempt, pending in the district court of Hughes county; the petitioner alleging that the said judge entertains prejudice against him, and that prior to the filing of said petition the petitioner had made application to the court to certify his disqualification, which had been overruled by the said court, and praying that an alternative writ issue and that a hearing be had thereon. This is proper practice under the provisions of section 2633, Comp. St. 1921, and the holding of this court. McLeod v. Graham, 6 Okla. Cr. 197, 118 P. 160; Brown v. State, 6 Okla. Cr. 442, 119 P. 447; Long v. Allen, 10 Okla. Cr. 182, 135 P. 443; Kelly v. Ferguson, 5 Okla. Cr. 316, 114 P. 631; Lewis v. Russell, 4 Okla. Cr. 130, 111 P. 819.

The Constitution (article 2, § 6) guarantees to every person charged with an offense a trial without “prejudice.” As applied to a judge, this is properly construed to mean personal prejudice or bias on the part of the judge against the defendant. It does not mean that the judge may not have an opinion of the guilt or innocence of a defendant or may not be prejudiced against the crime with which he is charged, but shall not entertain a personal prejudice against him. In order to disqualify, it must be shown as a matter of fact, and not as a conclusion, that the judge does entertain such personal prejudice. Lewis v. Russell, Judge, supra; State ex rel., etc., v. Lockridge, Judge, 6 Okla. Cr. 216, 118 P. 152, 45 L. R. A. (N. S.) 525, Ann. Cas. 1913C, 251; State v. Brown, Judge, 8 Okla. Cr. 40, 126 P. 245, Ann. Cas. 1914C, 394.

Upon the filing of said petition, an alternative writ issued, requiring the respondent to show cause for his refusal to disqualify in said cause. To said alternative writ the defendant has filed his response, admitting that he is judge of said district court, and that said action for contempt is pending, as alleged, but denying that he entertains any prejudice toward said petitioner or that he is disqualified to preside in the hearing of said case, and further alleging that, if upon the hearing this court should be of the opinion that respondent cannot give the petitioner a fair and impartial trial, he would gladly certify his disqualification.

Upon the issues thus formed, the petitioner offered evidence by affidavit, and the respondent offered evidence by affidavit and oral testimony.

Upon the consideration of the entire record, including the evidence introduced in court both by affidavits and oral testimony, we are clearly of the opinion that the allegation of prejudice is not sustained, and that the petitioner is not entitled to the writ as prayed for.

The petition is denied.

BESSEY, P. J., and DOYLE, J., concur.


text:
    LEWIS WALLACE v. STATE.
    No. A-4943.
    Opinion Filed April 25, 1925.
    (234 Pac. 1118.)
    Appeal from County Court, Carter County; M. F. Winfrey, Judge.
    Lewis Wallace was convicted of unlawful possession of intoxicating liquors, and appeals.
    Affirmed.
    Pardue & Davis, for plaintiff in error.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Carter county on a charge of unlawful, possession of intoxicating liquor with intent to sell. The case was tried to a jury, which returned its verdict finding the defendant guilty, and fixing punishment at a fine of $50 and imprisonment for 30 days in the county jail. No briefs have been filed by either the plaintiff in error or the state, but we have examined the record and find no substantial error. The evidence is sufficient to sustain the judgment and sentence, and the case is affirmed.


author: PER C'URIAM.

text:
    Ex parte HARRY SLEDGE.
    No. A-5547.
    Opinion Filed April 25, 1925.
    (234 Pac. 1117.)
    In re application of Harry Sledge for writ of habeas corpus to bei let to bail.
    Writ allowed.
    Womack, Brown & Cund and Sandlin & Winans, for petitioner.
    The Attorney General and-Long, Co. Atty., for the State.
   PER C'URIAM.

This is an application by habeas corpus on the part of the petitioner, Harry ¡Sledgei, to be let to bail upon a charge of rape in the first degree, pending in the district court of Jefferson county, on a change of venue from the district court of Stephens county. The cause has been submitted on the petition, affidavits, and on a certified transcript of the record taken at the preliminary hearing. The case was set down for oral argument, and has been fully presented to the court on the part of both the petitioner and the state. Since the argument this court has examined the record of the testimony taken at the preliminary, and is of the opinion that the petitioner should bei admitted to bail in the sum of $25,000, with good and sufficient surety, to be approved by the court clerk of Stephens county.


author: PER CURIAM..

text:
    CARL MISSEL et al. v. STATE.
    No. A-4934.
    Opinion Filed April 25, 1925.
    (234 Pac. 1117.)
    Appeal from County Court, Kay County; J. L. Roberson, Judge.
    Carl Missel and Mrs. Carl Missel were convicted of unlawful possession of intoxicating liquor, and appeal.
    Affirmed.

      B. C. Wieck, for plaintiff in error.
   PER CURIAM..

The plaintiffs in error were convicted in the county court of Kay county on a charge of unlawful possession of intoxicating liquor with intent to sell. The case was tried to a jury, which returned its verdict finding the defendant guilty and fixing punishment at a fine of $100 and imprisonment for 30 days in the county jail. No briefs have beien filed by either the plaintiffs in error or the state, but we have examined the record and find no substantial error. The evidence is sufficient to sustain the judgment and sentence, and the case is affirmed.


text:
    In re JACK ROBERT DAVIS.
    No. A-4801.
    Opinion Filed April 14, 1925.
    (234 Pac. 1116.)
    Application of Jack Robert Davis for a writ of habeas corpus to obtain bail.
    Bail allowed.
    David L. Carter, for petitioner.
    The Attorney General, for respondent.
   PER CURIAM.

In this proceeding it appears that petitioner was committed by the county judge of Kay county, after a preliminary examination, to answer to the district court of that county upon a charge of robbery, and was admitted to bail by consent of the county attorney in the sum of $1,500; that thereafter the judge of the county court vacated said order, admitting petitioner to bail, and ordering that petitioner be held without bail. A rule to show cause was entered and issued, returnable on the 14th day of August, 1923, at the district court room in the city of Guthrie, before Hon. C. C. Smith, District Judge, to hear the same and make return to this court. On a hearing had bail was allowed to petitioner in the sum of $1,500.


author: PER CURIAM .

text:
    W. H. ELWOOD v. STATE.
    No. A-4839.
    Opinion Filed April 25, 1925.
    (234 Pac. 1118.)
    Appeal from County Court, Oklahoma County; James C. Cheek, Judge.
    Thei plaintiff in error was convicted in the county court of Oklahoma county of the possession of intoxicating liquors with intent to sell, and sentenced to pay a fine of $250 and to serve 90 days in the county jail, and appeals.
    Reversed and remanded.
    E. J. Giddings, for plaintiff in error.
   PER CURIAM .

The petition in error assigns various grounds for reversal — among others, insufficiency of the evidence. We have; examined the record, and believe that the evidence is wholly insufficient to sustain the judgment and sentence. The case is therefore reversed and remanded.