text:
    LUTHER BURROWS v. STATE.
    No. A-8857.
    June 21, 1935.
    (46 Pac. [2d] 575.)
    Williams, Cowan & Benedum, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst., Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, for convenience hereinafter referred to as the defendant, was convicted of the crime of transporting intoxicating liquor, and sentenced to pay a fine of flOO and to be confined in the county jail for 60 days.

C. A. Arter, who was riding in the car with the defendant, testified on behalf of the state: I went with the defendant to McClain county, about three or four miles from the Canadian river, where the defendant bought a gallon and a quart of whisky; we were returning home, and while crossing the bridge saw the officers of Cleveland county; when the officers started to follow the car in which we were riding the witness says, “We speeded up the car and just before the officers caught up with us I broke the jars and let the whisky run out through the bottom of the car.” Arter says the defendant asked him to go with him, and the defendant says Arter hired him to drive him over there, and that the whisky belonged to' Arter and not to him; that he had no interest in the whisky whatever. There is a direct conflict in the testimony of C. A. Arter and the defendant.

The state, in rebuttal, called witnesses to show that the reputation of the defendant in the community in which he lived for truth and veracity was bad. When the state closed its testimony, the defendant called EL D. Adams as a witness, and when the witness was asked his name, the court asked, “What are you going to prove by the witness?” Defendant’s counsel advised the court they wanted to' rebat the testimony as to the truth and veracity of the defendant. By the Court: “You can’t do that. I will let you prove his general good reputation.” The defendant asked permission and stated he offered to prove by certain witnesses, naming them, that the reputation of the defendant in the community in which he lived for truth and veracity was good. The offer of the defendant was denied, overruled, and exceptions saved.

The defendant has assigned several errors. In the view we take of this record it is only necessary to consider assignment No. 2, which goes to the ruling of the court refusing to' let the defendant offer surrebuttal evidence as to his truth and veracity in the community in which he lived; the state having directly assailed the veracity of the defendant.

In Davis v. State, 38 Md. 15, 18, the Supreme Court of that state said:

“That as the purpose of the state was to discredit the witness H. by disproving material facts testified to by him, it was competent for the prisoner to sustain the witness by proof of his general character for veracity; and as the credit of the witnesses H. and S. was fairly put in issue, it was equally competent for the state under such circumstances to support the general character of its witness S. for veracity.”

In Smith v. State, 20 Okla. Cr. 362, 202 Pac. 1046, this court, in the second paragraph of the syllabus, said:

“Where the veracity of the defendant who is a witness in his own behalf is called in question, his general reputation for truth may be sustained by character witnesses who know that reputation, and the refusal of the court to permit such reputation to be shown is error.”

Judge Elliott, in his Works on Evidence, vol. 2, § 995, in part says:

“When the reputation of a witness for truth has been impeached, the party calling a witness has a right to call other witnesses to prove that his reputation is good.”

It has been held by a majority of the courts that in order to render the testimony of good character competent and admissible in support of the witness, an attack must necessarily have been made on his character for truth and veracity.

In this case the state did not rely upon the question of the conflict in the testimony of the state and defendant, but directly assailed the truth and veracity of the defendant, and the court erred when it refused to permit the defendant to show by his witnesses that his reputation for truth and veracity in the community in which he lived was good.

For the reasons stated, the case is reversed.

DOYLE, J., concurs. EDWARDS, J., not participating.


source: Caselaw Access Project

author: DAVENPORT, P. J.

license: Public Domain

text:
    CHARLES GATEWOOD v. STATE.
    No. A-8853.
    June 21, 1935.
    (46 Pac. [2d] 962.)

      Kenneth Reed and J. W. Colley, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was charged with the crime of possession of intoxicating liquors, waived a jury and was tried by the court, found guilty and sentenced to be confined in the county jail for sixty days, and to pay a fine of $200 and costs.

The testimony on behalf of the state shows the officers went to the home of the defendant about 10 o’clock p. m. The defendant was sleeping on the porch and his wife in their home. The first thing defendant knew he was aroused and one of the officers was sitting on the porch near where he was sleeping.

Section 2639, O. S. 1931, provides:

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

The search of a private residence without complying with the provisions of the statute, supra, is illegal. Cosby v. State, 30 Okla. Cr. 405, 236 Pac. 906; McClure v. State, 31 Okla. Cr. 60, 237 Pac. 145; Dibrell v. State, 36 Okla. Cr. 177, 253 Pac. 108.

The officers admit they went to defendant’s home for the purpose of searching for whisky; they had no search warrant, and no sworn complaint had been filed for a search warrant. They admit they drove into the driveway at defendant’s home, got out of the car going around to the porch, one officer getting on the porch. They tried to justify their action by saying they holloed and some one inside the house said to go around to the porch, and when they went around the house they found the defendant sleeping on the porch.

A motion was made to suppress the testimony on the ground that it was secured by an illegal search of the cur-tilage and home of the defendant. This question has been before this court so often that it seems useless to even mention the fact that the statute requires an affidavit to be made showing that the defendant’s home or some part of it was used as a store, boarding house, or place of public resort before the officers have authority to issue a search warrant.

In this instance it is not contended any effort was made to secure a search warrant. Under the testimony in this case from the moment the officers entered the driveway on the curtilage of the defendant until the moment they left they were trespassers committing an unlawful act that ought to be condemned by all law-abiding, citizens of the country. Their actions are not justified under the law and such conduct as they were guilty of at defendant’s home is what often brings on serious difficulties. Officers of the law have no right to violate the law in order to try to secure evidence against a man who may be violating the law. The defendant in this case may be guilty of having possession of intoxicating liquors, and of a greater amount than he was entitled to have under the law, but before the sacred rights of his domicile can be violated by officers of the law there are certain requirements of the law that must be complied with and followed.

The motion of the defendant to suppress the evidence was well taken and should have been sustained. There being no competent evidence, the judgment is reversed with directions to the lower court to dismiss the case.

DOYLE, J., concurs. EDWARDS, J., not participating.


author: DOYLE. J.

text:
    PAUL BRADY v. STATE.
    No. A-8856.
    June 21, 1935.
    (46 Pac. [2d] 963.)
    Meacham, Meacham & Meacham, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE. J.

Plaintiff in error, Paul Brady, was tried and convicted on an information charging that in Washita county, September 8, 1933, he did have in his possession about one-half gallon of whisky with the unlawful intent to sell the same. The jury failed to agree upon the punishment.

Motion for new trial was duly filed and denied. November 24, 1934, the court sentenced him to pay a fine of $250 and to be confined in the county jail for 30 days. To reverse the judgment he appeals.

The errors assigned and argued are that the evidence is insufficient to sustain the verdict and judgment and that the county attorney was guilty of conduct prejudicial to the rights of the defendant.

Perry S. Sullins, deputy sheriff, testified that he, in company with W. H. Dean, passed the defendant’s filling station and he “saw Paul go up' that way and get something there close to the road,” and after they returned to Cordell he obtained a search warrant and returned to' the defendant’s filling station and found one-half gallon of whisky 15 or 20 steps north of the station under a Russian thistle in John Bollinger’s field.

Mr. Dean, under sheriff, testified that he was with witness .Sullins and after serving the search warrant Sullins found a half gallon of whisky up the fence row north of the station; that he did not see him pick it up and could not tell how far north he found the whisky.

The defendant testified that he lives a little less than a mile east of Bessie on highway 14 and runs a Conoco filling station there; that he has lived in Washita county 24 years, is married, and has two' children; that he never owned and never did have in his possession the whisky Perry Sullins testified that he found; that the first time he ever saw the jar, introduced in evidence, was the day the warrant was served on him and he saw Perry Sullins about 300 yards north of the station when he picked up the whisky.

We quote the following cross-examination:

“Q. What other business do you run there besides running a filling station? A. Nothing.
“Q. You bootleg up there all the time, don’t you? A. I do not.
“Q. Do you sell whisky? A. No, sir.
“The Court: Objection sustained.
“Counsel for state: Exceptions.”

At the close of the testimony the defendant moved the court to instruct the jury to acquit the defendant for the reason that the evidence is insufficient to sustain a verdict of guilty. Motion overruled. Exception reserved.

It is made the duty of the trial court, in a criminal case, where he deems the evidence insufficient to warrant a conviction, to advise the jury to acquit. Section B.090, St. 1931.

The facts and circumstances in evidence in the case are wholly circumstantial and did not show the actual or constructive possession of intoxicating liquor.

The general rule is, where evidence is circumstantial, the facts shown must not only be consistent with and point to the guilt of the defendant, but must be inconsistent with his innocence. Carefully considering the competent testimony in the case, we are clearly of the opinion that the verdict is contrary to law and the evidence, and for that reason the trial court should have sustained the motion of the defendant for acquittal. The judgment therefore is reversed.

DAVENPORT, P. J., concurs. EDWARDS, J., absent.


author: DOYLE, J.

text:
    BEAMIS CLINE et al. v. STATE.
    No. A-8858.
    June 28, 1935.
    (47 Pac. [2d] 191.)
    Williams, Cowan & Benedum, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (Paul W. Updegraff, of counsel), for the State.
   DOYLE, J.

The plaintiffs, Beamis Cline and Mary Cline, were jointly tried and convicted in the county court of Cleveland county upon an information charging that on the 24th day of March, 1934, they did in said county have in their possession about six pints of whisky with the unlawful intent to sell the same. The jury by their verdict found the defendants guilty as charged, but were unable to agree on their punishment.

October 1, 1934, the court rendered judgment and sentenced the defendant Beamis Cline to pay a fine of $200 and be confined in the county jail for 90 days, and sentenced the defendant Mary Cline to pay a fine of $50 and be confined in the county jail for 30 days.

From the judgments rendered upon the verdict they appeal.

It appears from the record that the home of the plaintiffs in error was a house in the residence section of the city of Lexington. There they had lived for more than five years. On the morning of March 24th Ivan Kennedy, undersheriff, and C. I. Adams and G. P. L. McKinney, deputy sheriffs, entered the house through the back door and found Mr. Cline sitting in the kitchen, an open jar about half full of whisky on a table near by, and found another jar under the icebox. Mrs. Cline was somewhere about the place. Mr. Cline later lost a leg and a. day or tAvo before the trial fell and injured his back. He was brought to the county seat in an ambulance and into court on a stretcher.

G. P. L. McKinney, the complaining witness, testified that a little after 6 o’clock the morning of March 24th they went to the back door and stepped in; that they had a search warrant; that an open jar about half full of whis-ky was sitting on the table; that they searched the place thoroughly and found another jar about half full of whisky under the icebox. The jars were introduced in evidence.

The testimony of the other two officers was in substance to the same effect.

The state rested, and counsel for the defendants moved the court to instruct the jury to return a verdict of acquittal for the reason that a complete defense is disclosed by the testimony of the state’s witnesses and the same is insufficient to support a verdict of guilty.

Beamis Cline as a witness in his own behalf testified that the house where the officers found the whisky was the private residence of himself and wife. No one else lived there; that he had the whisky for his own use and told the officers so- at the time; that he did not know that the other jar was under the icebox.

Cross-examination by the county attorney;

“Q. What business are you engaged in? A. I have farmed all my life. Q. You make your living down there selling whisky? A. No, sir. Q. You sell more whisky in the city of Lexington than any other three or four bootleggers down there? A. No, sir. By the Court: Objection sustained. Q. You made your living the last five years selling whisky? By the Court: Objection overruled. You can ask him that. Q. What money you made in the last two years you made selling whisky. • A. No-, sir. Q. What else have you been doing down there? A. I sold cars. I draw compensation from the govemnment, $13 a month. Q. You have been convicted down there in the city court of being drunk several times. By the Court: Objection sustained. Q. I will ask you if you wasn’t convicted in the county court of Cleveland county on November 8, 1933, for being drunk in a public place in Lexington. By the Court: Objection overruled. And paid a fine-of $52.30 into Cleveland county. A. Yes. Q. I will ask you to- state if you haven’t been convicted of being drunk in a public place several times in the city of Lexington? By the Court: Objection overruled. A. No, sir. Q. How many fines have you paid down there? A. Not any. Q. Paid fines for being drunk? A. No, sir, fighting. By the Court: You will not consider the evidence offered about the fighting or whether he paid any other fine, the only thing in this case, he has been convicted of the violation of the law in the city court, that is, a violation of the city ' law, the county attorney can ask him that. Q. You kept whisky at your house and kept it for the purpose of sale, you sold in half gallon or gallon lots to anyone that wanted to buy it? By the Court: Objection overruled. Q. Isn’t that time? A. No, sir, it is not. Q. Isn’t it a fact your place is known in the city of Lexington as being a place where anybody can buy liquor at any time, day or night? By the Court: Objection sustained. Q. You know it’s a violation of law to have in your possession more than one quart of whisky? By the Court: Objection sustained. Q. How did you come to Norman today? A. In an ambulance.”

Mrs. Mary Cline as a witness in her own behalf testified that she is the wife of Beamis Cline; had lived with, her husband in the house where they now live five years;; that when the officers came there she was out seeing after her chickens; came back in after the officers, and the jar was open when they came in; that her husband used whisky more or less all the time; that the jar the officers found under the icebox was placed there by her; that she had hid it there from him.

Cross-examination:

“Q. Beamis the past five years hasn’t had any known occupation down there, either farming or anything else, since you married, outside of bootlegging? By the Court: Objection sustained. Q. Fact of the matter is, he has made all his money the last two and half years selling whisky to people around Lexington? By the Court: Overruled. A. No, sir, he hasn’t sold any whisky. Q. What else does he do besides sell whisky? A. At this time he isn’t able to do anything. Q. What did he used to do? A. He sold cars. Q. Whisky and what else? He didn’t sell any whisky. Q. You never knew him to be guilty of selling any whisky? A. No. By the Court: Objections overruled. Q. I will ask you if on the 29th day of August 1931, Beamis Cline didn’t sell a pint of whisky to George McKinney and a man by the name of Jim McMullins down there late at night? A. Not that I know of. By the Court: Objection sustained. The question and answer will be stricken. Q. After you made a sale of whisky down there you generally poured it out of the jar under the icebox? A. No, sir. Q. When Beamis wasn’t present at your house and happened to be up town, you sold the whisky as much as he did, didn’t you? A. No. Q. You have poured out and sold to people down there in the neighboring community just about as much whisky as Beamis sold them? A. No, I haven’t sold whisky. Q. Do you generally call for Beamis when they want to- buy whisky or what do- you do? A. I don’t know anything about it. We don’t have whisky. Q. Where did you send them when they came down there to buy whisky? By the Court: Objection sustained. Q. Beamis sells more whisky than anybody else in Lexington, doesn’t he? By the Court: Objection sustained.”

In rebuttal the state called Bud Jennings, sheriff. He Avas asked and answered as follows:

“Q. How long have you been acquainted with the defendant? A. Ten or twelve years. Q. Are you acquainted with his reputation down there in the city of Lexington for being a bootlegger? By the Court: Objection sustained.” C. I. Adams, deputy sheriff, recalled, testified: “Q. Are you acquainted with Beamis Cline? A. Yes, sir. Q. Are you acquainted with Beamis Cline’s reputation down there in that community as being a bootlegger? • A. He has a reputation of selling whisky. By the Court: Objection sustained.” The record shows that in his closing argument the county attorney made the following remarks: “Beamis Cline had that whisky in my opinion for the purpose of selling it. By Mr. Cowan: I object to that remark as improper and highly prejudicial. By the Court: .He said, fin his opinion.’ The officers don’t go around and arrest anybody that don’t intend to sell it. By the Court: Objection overruled.”

At the close of all the evidence there was a motion for a directed verdict of acquittal for the reason that the evidence wholly fails to establish the offense charged.

It also appears that before the trial there was a motion to suppress the evidence on the ground that the same was obtained by an illegal search of the private residence of the defendants. But no evidence was offered in support of this motion.

Several errors are argued, among them being that the evidence is insufficient to sustain the verdict and judgments rendered thereon, and that the county attorney trying the case was guilty of conduct prejudicial to the rights of the defendants.

The flagrant impropriety of the cross-examination óf the defendants is self-evident. That its effects upon the jury would be prejudicial is self-evident. That it was not inadvertent but was purposeful is apparent, and it would be discreditable to counsel’s competency as county attorney to impute to him lack of knowledge of the impropriety of the questions asked on his cross-examination of the defendants. Also misconduct in calling witnesses as to the reputation of the defendants for being bootleggers.

It is a fundamental principle of criminal law that the character of the defendant cannot be impeached or attacked by the state, unless he puts his character in issue by introducing evidence of good character. Kirk v. State, 11 Okla. Cr. 203, 145 Pac. 307.

We have repeatedly condemned this practice.

In Vickers v. United States, 1 Okla. Cr. 452, 98 Pac. 467, 473, this court said:

“A public prosecutor is presumed to act impartially in the interest only of justice. If he lays aside the impartiality that should characterize his official action, to become a heated partisan, and by vituperation of the prisoner, and appeals to prejudice, seeks to procure a conviction at all hazards, he ceases to properly represent the public interest, which demands no- victim, and seeks no conviction through the aid of passion, sympathy, or resentment. The only way to secure fair trials is to- set aside the verdicts so procured.”

In Watson v. State, 7 Okla. Cr. 590, 124 Pac. 1101, this court in the syllabus held:

“The repeated asking of incompetent questions, which clearly have for their purpose the intimation of something to the jury that is either not true or not capable of being proven if true, is wrong, and such conduct of counsel is not cured because the court sustains objections to the questions.”

In Hager v. State, 10 Okla. Cr. 9, 133 Pac. 263, the court says:

“Police court methods in the examination of witnesses in courts of record in Oklahoma will not be tolerated.”

Our statute provides (section 268, St. 1931) that a witness may be discredited by showing on cross-examination his conviction of a criminal offense, and (section 3069, St. 1931) provides that:

“The rules of evidence in civil cases are applicable also in criminal cases.”

■This proof may be made either by the record or by cross-examination of the defendant. And cross-examination as! to other separate and distinct transactions and offenses is not permissible, unless such testimony tends to* prove the offense charged, and should in general be limited to matters pertinent to the issue, or such as may be proved by other witnesses. Smith v. State, 14 Okla. Cr. 348, 171 Pac. 341.

In the case of Brokhaus v. State, 11 Okla. Cr. 625, 150 Pac. 510, the court held:

“Upon a trial on an information charging that the defendant did have the possession of intoxicating liquors Avith the intent to sell the same, evidence of the general reputation of his home was incompetent to' prove the charge.”

In Thompson v. State, 9 Okla. Cr. 525, 132 Pac. 695, 698, it is said:

“A man cannot be condemned on what a few of his unfriendly neighbors say of him or of his home in cases lilte this. Such evidence is merely hearsay, and its admission Avas prejudicial to the defendant.”

It is improper for a prosecuting attorney to state his opinion as to the defendant’s guilt, or to' state facts not proven by the evidence, or otherwise to get before the jury that Avhich amounts to his own testimony. But he may state his opinion as to the defendant’s guilt when he also states that this opinion is based upon the evidence in the case. Williams v. State, 4 Okla. Cr. 523, 524, 114 Pac. 1114, 1115.

A fair and impartial trial is guaranteed to all persons, whether innocent or guilty, and it is the duty of the trial court to uphold this guaranty.

The mere possession of intoxicating liquor, Avithout intention to violate the law, is not a crime.

The statute (section 2626, Harlow’s Supp. 1934) provides that the keeping in excess of one quart of intoxicating liquor “shall he prima facie evidence of an intention to convey, sell or otherwise dispose of such liquors.”

A private residence, occupied as such, is immune from search, unless it, or some part of it, is used as a store, shop, hotel, boarding bouse, or place for storage, or unless it is a place of public resort. Section 2639, St. 1931. It is undisputed that the bouse of these defendants was exclusively used as their private residence, and the testimony on the part of the state is not sufficiently certain to show possession of more than one quart of whisky by each defendant.

The defendants were entitled to the full benefit of the legal presumption of innocence, and could not properly be convicted unless the evidence established their guilt beyond a reasonable doubt.

We think that under the circumstances in this case the trial court should have sustained the defendants’ motion for a directed verdict of acquittal.

For the reasons stated the judgments appealed from are reversed.

DAVENPORT, P. J., concurs.

■EDWARDS, J., concurs in the conclusion as to a reversal, but dissents from the conclusion that the court should have directed an acquittal.


author: EDWARDS, J.

text:
    CHAS. C. DIAMOND v. STATE.
    No. A-8809.
    June 7, 1935.
    Rehearing Denied June 28, 1935.
    (46 Pac. [2d] 966.)

      Orr & Woodford, for plaintiff in error.
    ■ J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court, Oklahoma county, of forgery in the second degree and was sentenced to a term of five years in the state penitentiary. The appeal is by transcript. The information in substance alleges that defendant “ * * * did then and there, willfully, unlawfully, wrongfully, knowingly and feloniously forge a certain pecuniary demand and obligation, being and purporting to be the act of another person, to wit, Morton R. Harrison, which is in words and figures as follows, to wit: (Here is set out a combined claim of several persons, aggregating $242.00, against the Soldiers Relief Commission, bearing among other endorsements, that of Morton R. Harrison, Chairman of the Soldiers Relief Commission of the State of Oklahoma) * * * with the unlawful, willful, fraudulent, and felonious intent of him the said defendant * * * to then and there defraud the State of Oklahoma of the sum of $242.00. * *

Defendant was arraigned October 28, 1931, entered a plea of not guilty, and was enlarged on bond. Thereafter, on July 6, 1932, defendant withdrew his plea of not guilty and entered a plea of guilty. The passing sentence was deferred at his request at various times until March 10,1934. Then defendant filed Ms application to withdraw plea, stating it was inadvertently made and that he had just discovered the information was not signed by the county attorney;, that he had not waived jurisdiction. He also filed a motion to dismiss on the same grounds and a motion in arrest of judgment, alleging the information was insufficient, also a motion for new trial, all of which were denied. On that date defendant was sentenced as stated.

Both the name of the county attorney and the assistant county attorney appear on the information in typewriting. Section 2829, O. S. 1931, in part provides:

“The county attorney shall subscribe his name to in-formations filed in the county, superior or district court and indorse thereon the names of the witnesses known to him at the time of filing the same. * *

Section 2937, O. S. 1931, in part provides:

“The indictment or information must be set aside by the court, in which the defendant is arraigned, and upon his motion in any of the following- cases: First. When it is not found, indorsed, presented or filed, as prescribed by the statutes. * ':i *”

Defendant contends that under these provisions of the statute the information is insufficient to> confer jurisdiction, citing: Fullingim v. State, 7 Okla. Cr. 333, 123 Pac. 558; McGarrah v. State, 10 Okla. Cr. 21, 133 Pac. 260; Viers v. State, 10 Okla. Cr. 28, 134 Pac. 80; White v. State, 15 Okla. Cr. 674, 177 Pac. 550; Johns v. State, 15 Okla. Cr. 630, 179 Pac. 941; Radford v. State, 23 Okla. Cr. 407, 215 Pac. 218; Ex parte Long, 26 Okla. Cr. 259, 223 Pac. 710; Tiller v. State, 35 Okla. Cr. 31, 247 Pac. 421; Ex parte Kelly, 45 Okla. 577, 146 Pac. 444; Heintz v State, 49 Okla. Cr. 148, 195 Pac. 402.

These different cases touch the question of the subscription of the name of the county attorney and the manner of raising, objections thereto-. As we said in Tiller v. State, supra, the purpose of the requirement that the properly constituted prosecuting authority shall subscribe to the information is to give an official character to the prosecution and to prevent initiation of a criminal prosecution by private persons. An absolute lack of a signature on any part of the information deprives it of that official character necessary to support a conviction. Language has been used in some of the opinions from which it is argued that a failure of the county attorney to literally subscribe is jurisdictional, but on a review of the decisions as a whole, their purport and effect is that when the name of the county attorney is subscribed either as a signature or in typewriting by himself or his legally appointed assistant, on the face or the back of the information, it is sufficient compliance with the statute, since it satisfies the purpose of identifying the information as the official act of the county attorney.

It is not sufficient that the information bear the name of the county attorney, placed thereon by an unauthorized person- (McGararh v. State; Viers v. State, supra), or that it be subscribed by a duly authorized assistant county attorney and omit the name of the county attorney. Heintz v. State, supra. In no case heretofore presented to this court has both the name of the county attorney and the assistant county attorney appeared in typewriting. This is an irregularity, which would have warranted the trial court in setting aside the information on timely motion. It does not, however, result in an entire lack of jurisdiction, but is an irregularity that may be waived and is waived unless timely objection is made. In addition to the cases above cited from this court, see State v. McCullough, 101 Kan. 52, 165 Pac. 644; State v. Wilkins, 118 Kan. 160, 234 Pac. 45; District of Columbia v. Washington Gas Light Co., 3 Mackey (14 D. C.) 343.

Defendant next arguesi the information does not state sufficient facts to constitute an offense. No demurrer was ever filed, but in his motion in. arrest of judgment he asserts the facts alleged are insufficient to charge a crime. An objection on this particular ground may be first raised in this manner. Section 2956, Okla. Stat. 1931. When objection to an information is first made by such motion, the court will indulge all reasonable intendments and inferences in construing the information in support of its sufficiency. The information sets out the instrument alleged to have been forged. This instrument is a pecuniary demand on the state against the Soldiers’ Relief Funds appropriated by chapter 233, Session Laws 1929 (Sp. Sess.).

Section 3546, Okla. Stat. 1931, provides the manner in which claims against the state shall be itemized, verified, and approved. Morton R. Harrison was chairman of the Oklahoma Soldiers’ Relief Commission, and as such he was the head of the department to which the appropriation was made. Under section 3546, supra, it Avas his duty to approve claims against said appropriation, and no claim would be valid without his approval, and this court takes judicial notice of the law and of this requirement. While the claim was made by defendant, it was for the benefit of certain disabled soldiers whose names were set out in the demand, and the amount of whose claim was set opposite the name of each particular soldier who was in fact the claimant. The defendant was nothing more than the agent or trustee for these particular ex-soldiers. Considering the information as a whole, we are satisfied it informs the accused of the crime charged so particularly and definitely as to enable Mm to prepare Ms defense and to protect Mm from jeopardy against any further prosecution arising from the transaction. We find no material error.

The case is affirmed.

DAVENPORT, P. J., and DOYLE, J., concur.


author: PER CURIAM.

text:
    CHAS. C. DIAMOND v. STATE.
    No. A-8810.
    June 7, 1935.
    Rehearing Denied June 28, 1935.
    (46 Pac. [2d] 918.)
    Orr & Woodford, for plaintiff in error.,
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.. ■
   PER CURIAM.

This is a companion case to- No. A-8809, 57 Okla. Cr. 214, 46 Pac. (2d) 966, just decided, involving the same defendant and the same charge except for a different transaction. The same questions are raised, and plaintiff in error’s brief differing from that filed in A-8809 only in referring to page numbers of the record; the state’s brief setting, up no additional matter and referring to its former brief.

Under the rule there laid down, the case is affirmed.


text:
    OSTER JOHNSON v. STATE.
    No. A-8932.
    June 28, 1935.
    (46 Pac. [2d] 964.)
    J. H. Warren, for petitioner.
    The Attorney General and Ralph K. Jenner, Co. Atty., for the State.
   DOYLE, J.

This is an application for a writ of ha-beas corpus on the part of Oster Johnson confined in the county jail of Choctaw county by Cap Duncan, sheriff, under commitment from the district court of said county issued upon a judgment and sentence rendered by said court in accordance with the verdict of the jury finding the defendant guilty of forgery in the second degree, and fixing his punishment at confinement in the penitentiary for a term of two years.

It is alleged “that said restraint is illegal because the information on which this prosecution is based does not state facts sufficient to constitute the crime of forgery,” therefore the trial, conviction, and sentence under which he is held were illegal, null, and void.

That the matter involved in the petition has been presented to George It. Childress, judge of the district court of Choctaw county, by demurrer, by objection to' the introduction of evidence, and by motions for a new trial and in arrest of judgment.

Attached to the petition is a copy of the information which, omitting formal parts, charges:

“That Oster Johnson did in Choctaw county, state of Oklahoma, on or about the 20th day of April, 1934, commit the crime of forgery in the second degree, in the manner and form as follows, to wit: That he the said defendant then and there being, the guardian of Agnes Johnson, a minor, who had guardianship funds in the National Bank of Commerce at Hugo, Oklahoma., deposited with the agreement that said funds could not be withdrawn except on the joint signature of T. W. Hunter, county judge, and Oster Johnson, guardian; that said Oster Johnson did willfully, wrongfully, unlawfully, fraudulently and feloniously make and draw a certain check in words and figures as follows: Hugo, Oklahoma, April 20, 1934, The National Bank of Commerce at Hugo' Pay to Lester Johnson or order $5.00 Five Dollars Oster Johnson, guardian of Agnes Johnson, minor by then and there endorsing on said check on the face thereof the purported signature of T. W. Hunter, county judge, knowingly forging said name of the said county judge as a true signature of the said judge, with a wrongful and felonious intent to cheat and defraud the said Lester Johnson to whom the said Oster Johnson uttered it and Carl Schuessler, to whom it was subsequently uttered and the said estate of the said minor of the said sum of $5.00, contrary to the form of the statutes, in such cases made and provided, and against the peace and dignity of the state.
“Balph K. Jenner, County Attorney.”

It is assumed by counsel for petitioner, in argument, upon the principle announced in Territory v. Delana, 3 Okla. 573, 41 Pac. 618, and Title Guaranty & Surety Co. v. Foster, 84 Okla. 291, 203 Pac. 231, 232, that this conviction is invalid because the instrument which petitioner is charged with uttering was not legally susceptible of forgery.

In the Delana Case, the Supreme Court of the Territory held, “An indictment setting forth the forgery of a juror’s certificate issued by the clerk of a district court does not state a public offense, and a demurrer thereto should be sustained,” and that, “It is a general rule that if an instrument is void or invalid upon its face, and cannot be made good by averment, the crime of forgery cannot be predicated upon it.”

In the other case cited, the Supreme Court of this state held:

“An infant is not bound by a stipulation of his guardian waiving a substantial legal right; it appearing that the guardian’s stipulation was evidently founded on a mistake of law.”

We do not think the cases cited by counsel for petitioner are in point in a habeas corpus proceeding.

An uttering a forged instrument, under the statute (Penal Code [section 2125, St. 1931]) is the knowingly passing as true, or attempting to pass as true, such forged instrument with the intent to cheat and defraud.

The foregoing section sets forth the offense sought to be charged by the information in this case; and by this section, the gravamen of the offense is the sale, exchange, or delivery of the instrument for a consideration, knowing it to be forged or counterfeited.

Generally speaking, if an instrument is invalid and is void on its face, it cannot be the subject of forgery, for it can then have no legal tendency to effect a fraud. If its invalidity, however, is to be made out by extrinsic facts, it may be legally capable of effecting a fraud.

It is obvious that the check in question, if genuine, would found a liability, and would be an engagement for the payment of money.

The writ of habeas corpus which has for centuries been esteemed the best and only sufficient defense of personal freedom has for its object the speedy release by judicial decree of persons illegally restrained of their liberty.

It is not a mere corrective remedy and is not to be employed as a writ of quo warranto, nor as a writ of certi-orari, nor permitted to perform the functions of an appeal.

“Proceedings of habeas corpus to obtain release from custody under final judgment being in the nature of a collateral attack, the writ deals only with such radical defects as render the proceeding or judgment absolutely void.” 12 R. C. L. 1192.

In the case Ex parte Grant, 32 Okla. Cr. 217, 240 Pac. 759, 760, it is said:

“The office of the writ of habeas corpus is to afford the citizen a speedy and effective method of securing his release when illegally restrained of his liberty. Its scope, when directed to an inquiry into the cause of imprisonment in judicial proceedings, extends to questions affecting the jurisdiction of the court and the sufficiency in point of law of the proceedings. Mere errors or irregularities in a judgment or proceeding of a court under and by virtue of which a person is imprisoned, which are not of such a character as to render the proceedings void, cannot be reviewed on an application for a writ of habeas corpus. Where a prisoner in custody under sentence of conviction seeks to be discharged on habeas corpus, the inquiry is limited to the questions whether the court in which the prisoner was convicted had jurisdiction of the person of the defendant and of the crime charged, and did the court have jurisdiction to render the particular judgment.”

It is elementary that the writ of habeas corpus cannot be used to perform the function of an appeal, or used to review errors that do not go to’ the jurisdiction of the court to issue the commitment..

It follows from these views that the petition is insufficient to show that the petitioner is entitled to have the writ issued.

The demurrer thereto is sustained, and the writ denied.

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


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    GENERAL KIZZIAR v. STATE.
    No. A-8850.
    June 28, 1935.
    (47 Pac. [2d] 198.)
    James E. Grigsby, for plaintiff in error.
    The Attorney General and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

On information charging that in Marshall county September 14, 1934, General Kizziar, the defendant, did then and there have possession of intoxicating liquor with intent to violate the prohibitory law, he was tried and convicted, and, in accordance with the verdict of the jury, was on December 5, 1934, sentenced to confinement in the county jail for 60 days and to pay a fine of $100 and all costs.

From the judgment, he ‘appeals and assigns as error that the evidence is insufficient to sustain the verdict and judgment.

The state relied for this conviction on the testimony of Harmon Spicer and Joe Everett, deputy sheriffs. Their testimony shows that they were following the defendant on the highway and were delayed for a few minutes on a high center. Shortly after they came upon the defendant as he was coming out of a ditch by the side of the road; that he then lowered the turtlebaclc of his car, jumped in, and drove away. The officers stopped where the defendant got out of his car and there in the ditch found about twenty gallons of whisky in one keg and several fruit jars. They also found fresh tracks from the point where defendant’s car stopped to where they found the whisky.

There was no testimony on the part of the defense.

Under the statute, questions of fact are to be decided by the jury (section 3062, ,St. 1931), and, where competent evidence has been introduced tending to prove the material allegations of the information, its weight and sufficiency to sustain the conviction is for the jury.

The judgment and sentence appealed from is therefore affirmed.

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


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    ABE JARMAN v. STATE.
    No. A-8855.
    June 28, 1935.
    (47 Pac. [2d] 220.)
    Reuel W. Little, for plaintiff in error. .
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

Abe Jarman was convicted in the county court of Marshall county upon an information charging that in said county, February 9, 1984, he did “commit the crime of unlawful possession of still, intoxicating liquor, and mash in this,” as alleged in three counts. The verdict of the jury finds “the defendant, Abe Jarman, guilty on all three counts as charged in the information herein and assess bis punishment as a fine of $100.00 and 60 days in the county jail.” Motions for new trial and in arrest of judgment were duly filed and overruled. From the judgment entered November 22, in pursuance of the verdict, he appeals.

The only witness in this case was Joe Everett, deputy sheriff. He testified that on the date alleged he made a trip to Abe Jarman’s, seven miles west of Marietta on the McMillan highway; that the sheriff was with him.

“We hunted around his premises on the outside in some pasture. We went across the pasture following foot tracks from the house and then it played out, when we got. to the rocky place there was not any trail and we looked around about the pasture and about 50 yards we found another path that led down to the branch and to the still. It was about a quarter of a mile from the defendant’s house. It was in the same inclosure as the defendant’s house. We found about eighteen gallons of whisky and eleven barrels of mash and a still.”

On cross-examination he stated that the house where Clay Eoss lives was just as close, if not a little closer; that the Billingsly’s house was just about as close as the defendant’s house; that Ernest Lynn’s house was just a little bit east; that they talked to Mr. Lynn, and he said Abe Jarman had his car and went to Ardmore. Asked who had possession of this land, he said: “All I know is it was in the same inclosure”; that there were some other houses just as close as Mr.' Jarman’s.

The state rested, and the defendant interposed a demurrer to the evidence on the grounds that the same was insufficient to sustain a conviction.

The demurrer was overruled and exception reserved.

The sufficiency of the evidence to show the commission of the crime and the guilt of the defendant is not a question in the discretion of the court. If there is any evidence tending to prove that the defendant had committed the crime charged in the information, it is not error for the court to overrule a demurrer thereto or to deny the defendant’s request to advise the jury to' acquit on the ground that the evidence is insufficient to warrant a conviction. Caido v. State, 7 Okla. Cr. 139, 122 Pac. 734.

The record shows that, after delivering the instructions to the jury, the court made the following remarks:

“By the Court: I call your attention to the fact that the defendant’s attorney did not offer any evidence to sustain the statements made by him in his opening statement. By Mr. Little: The defendant desires an exception to- your statement to the jury. By the Court: The defense wants to save an exception relative to- opening statement not being sustained by evidence. Exception allowed.”

Counsel contends that the remarks of the trial court were prejudicial and were in effect comments upon the failure of the defendant to testify and were comments upon the weight of the evidence in the case, citing and quoting from the case of Weinberger v. State, 8 Okla. Cr. 441, 128 Pac. 160, 161, wherein this court said:

“The statute is in accordance with the constitutional guaranty that ‘no- person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided.’ The clear intent of the statute is that the jury in determining their verdict shall entirely exclude from their consideration the fact that the defendant did not elect to testify, and any reference by the prosecuting, attorney in his address to the jury to the fact that the defendant did not testify constitutes misconduct, and, under the terms of the statute, the trial court has no- discretion, but must grant a new trial.”

Also, in Brooks v. State, 33 Okla. Cr. 296, 243 Pac. 998, the syllabus reads:

“A trial court, during the course of the trial, should refrain from any expression of opinion as to' the guilt or innocence of the defendant or the facts proven, and to express such opinion, is reversible error.”

Ordinarily improper remarks of the trial judge during the course of the trial will not be ground for reversal, where no prejudice arises therefrom. The Constitution of ther-state declares that “no person will be compelled to give evidence which will tend to* incriminate him.” Article 2, § 21. The state, unaided by the accused, assumes the burden of producing sufficient evidence to overcome the presumption of innocence. A defendant has the right to testify in his own behalf to disprove the charge against him. If he elects not to be a witness, he cannot be compelled to testify, and no inference prejudicial to him is to be drawn by his silence. If the trial judge or prosecutor be per-\ mitted to comment upon the failure of a defendant to testi-1 fy, the foregoing provision of the Constitution would be meaningless.

On the record before us, we think the remarks of the trial judge may have improperly influenced the defendant’s case before the jury and comes within the rule laid down in the cases cited.

Jurors are easily influenced by the remarks of a trial judge, and the greater care should be observed that nothing be said that can by any possibility be construed as an expression of the tidal judge’s views respecting the merits of a criminal case. Courts cannot be too circumspect in this regard. Pilgrim v. State, 3 Okla. Cr. 49, 104 Pac. 383; Shepherd v. State, 17 Okla. Cr. 630, 192 Pac. 238.

It is also1 contended that the court erred in the instruction given on the law of circumstantial evidence. The record shows that no objections were made or exceptions taken to the instructions given by the court. This court has repeatedly called attention of counsel to the necessity of making timely objection to and request for instruction, if review is to be had in this court, otherwise the error, if any, will be considered waived, unless fundamental.

The information in this case is duplicitous, in that more than one offense is charged. The record does not show that a demurrer to the information was ever filed, and an objection that an information is duplicitous must be raised by demurrer in the trial court. Roebuck v. State, 14 Okla. Cr. 241, 170 Pac. 277.

For the reason stated, the judgment is reversed, and the defendant granted a new trial.

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


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    HAROLD GARRISON v. STATE.
    No. A-8831.
    July 5, 1935.
    (47 Pac. [2d] 224.)

      D. P. Hervey, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for tbe State.
   DOYLE, J.

Harold Garrison was convicted in tbe district court for Payne county of rape upon tbe person of Alma Haskins, a girl under tbe age of 16 years and not tbe wife of tbe defendant, and in accordance with tbe verdict of tbe jury be was sentenced to' serve a term of 2% years in tbe penitentiary. From tbe judgment be appeals.

Tbe charge is, and the evidence shows, that tbe offense was committed June 5, 1933; the prosecuting witness attained tbe age of 14 years May 13, 1933; she gave birth to a fully developed child on March 3,1934.

That some one bad sexual intercourse with tbe complaining witness is indisputable; that such intercourse occurred at a time when she Avas under tbe age of consent is ■undisputed; whether it was committed on the occasion testified to by the prosecuting witness and was committed by the defendant is the only question of controversy.

Many errors are assigned, most of which relate to the rulings of the court upon the admission of evidence. The rulings of the trial court upon the admission of evidence were extremely fair to the defendant, and we find few assignments meriting consideration.

The refusal of the court to grant a continuance on the ground that the defendant’s counsel appointed by the court had been unable for want of time to prepare for the trial is assigned as error.

The case of Noel v. State, 17 Okla. Cr. 308, 188 P. 688, cited in support of the assignment, was a. capital case, and only two' days intervened between the defendant’s arraignment and his trial. The record here shows the defendant was arraigned ten days before the trial, at which time he was represented by counsel chosen by himself.

When an application for a continuance has been denied, this court will look to the entire record with a view of determining Avhether or not an abuse of discretion is shown.

In Hall v. State, 11 Okla. Cr. 57, 142 P. 1044, 1045, it is said:

“When an application for continuance has been overruled by a trial court, this court will look to the entire record with a view of determining whether or not an injustice has been done, and when it clearly appears from the testimony introduced at the trial, and especially the testimony of the accused himself, that he has no defense, and that the conviction was just and proper, a. judgment will not be reversed, in the absence of fundamental error.”

On the record before us, no abuse of discretion appears.

Alma Haskins testified that she had lived nearly all her life in Stillwater; that with Jessie Lakey she went to the fair grounds; there met Harold Garrison and his brother, Dallas. Harold sent his brother home for cards to play strip poker; he returned with the cards and they all played strip poker; that she lost her hairpins, her belt, and footwear, then quit, and, going up on a little bridge near by, she saw officers coming, and went back where they were still playing to tell them; that Jessie was stripped and did not have on anything; that Jessie slipped on what she could, and they ran across a plowed field. It was then after 1 o’clock in the afternoon. Not long after the boys met them on the road and they went up by the fair grounds and again played strip poker; that she lost her clothes as far down as her underwear; that, when Jessie and Dallas left, she found her dress behind a bush where Dallas put it; that Harold then had intercourse with her. They then went back, and met Jessie and his brother near one of the barns and they went on home; that Harold Garrison is the father of her baby born March 3d.

As a part of her' cross-examination she testified that she had sexual intercourse about a year before; that she did not have any act of sexual intercourse in April and May of 1933; that she never had sexual intercourse with Bud Lakey at any time; that she did not complain until she was in the hospital because Harold Garrison had threatened her and she was afraid to ; that some time in July she was out with a party of six or seven boys and girls one night, and she had intercourse with one of the boys; that before noon that day, June 5, with Jessie she registered at the high school.

Valla Lee Cawley testified that she lived at the Rex 'Hotel and the defendant and his wife were living there; that in a conversation with Harold Garrison the day the baby was born she asked him if he was responsible for this or if he was at the place they had the strip poker game, and he said “yes he was present and he said she was menstruating that day.”

Dr. Paul Friedeman testified that he is a physician and surgeon; that on the 3d day of March he brought Alma Haskins to the hospital, and, with Dr. Whittenberg assisting, delivered her child; that it was a forceps delivery; that it was a nine months’ baby boy and weighed eight pounds.

Harold Garrison, as witness on his own behalf, testified : That with his brother he went to the Fair Grounds that day and these girls came along. The Lakey girl had a bathing suit. He asked them where they were going. They said, “Swimming down on Stillwater creek.” Some one suggested that they have a game of strip poker, and he sent his brother back to the house after a deck of cards. Then they went east of the Fair Grounds down by the creek and played strip poker. That, after playing a few minutes, Alma Haskins got up and started toward the Fair Grounds, the cops came along in a car and she came back. Then the girls went west across a cotton field. Then he came back and up the road, saw Alma talking across the fence to Orin Pringle, and he left Jessie and Alma talking to Pringle and with his brother went on to town. He denied any act of sexual intercourse.

On cross-examination he stated that “Jessie lost part of her clothes but did not pull them off.”

Jessie Lakey testified:

“We went down there to go swimming and met the boys; then we went clown to the creek, were not there over 15 minutes. We came back to the cow barn and Alma was talking to some guy chopping cotton.” That she waited till she got through talking. “The boys were sitting down by the side of the barn and they said they were going home, and we all went home.” That Harold and Dallas lived next door to her but she did not have a date to meet them there that day. That she did not know what she did lose in the strip poker game except her shoes, and all Alma lost was her shoes. That she did not remember the time, but thought it was late in June. That about the 1st of May or last of April she went with Alma to a dance and the car broke down about four miles this side of Glenco. That there were seven or eight in the party, and the boys could not fix the car, and with Lenora Bales she went and hid. from the boys, and that Alma slept with the boys that night. That witness took her dress off during the game, but had on a bathing suit under it. That all Alma took off was her shoes and hat and maybe her stockings.

A part of her cross-examination is as follows:

“Q. Do you remember the day that Harold Garrison was arrested, I had you brought to my office and I asked you some questions? A. Yes, but I forgot what they was. I didn’t pay no attention to them. Q. You have forgotten the answers to them? A. Well, I just told you anything but didn’t swear to it. Q. You remember my stenographer took them down? A. Yes, someone did. Q. Didn’t you make answers when I asked you some questions as follows: ‘Q. Who were playing, the last time you played poker? and you made the answer A. Just us two couples. Q. You and Dallas and Harold and Alma? A. Yes, sir. Q. How many clothes did you girls have to take off? A. I just lost my shoes and stockings. Harold would make her bet him, she didn’t know what she was doing. ‘Q. You were not drinking? A. The two boys were almost drunk. Yes, they were drinking. ‘Q. How many clothes did Alma lose during this second session? A. All hut her pants. She lost her dress and Dallas took it and laid it on a limb. ‘Q. Following that, yon and Dallas left? A. Yes, sir.’ Q. Do yon remember making that answer? A. No, sir. Q. ‘You left her and Harold alone.’ Do yon remember that answer? A. No, sir. Q. ‘When was that? A. About sundown.’ Do you remember that? A. No, sir. Q. Do you remember me asking you these questions and do you remember them being written down? A. Yes, but I didn’t swear to it, did I?”

James Lakey, commonly known as Bud Lakey, testified:

“Q. How old are you? A. I am 18 now. Q. Did you ever have sexual intercourse with Alma Haskins? A. Yes, sir. ■ Q. When? A. About a year ago last April. Q. Could it have been in May? A. I don’t think so. Q. About how long before? A. A week or ten days.”

On cross-examination he stated that he was under 18 years of age when it happened; that he is a brother of the witness Jessie Lakey; that the intercourse occurred down at the fair grounds.

Frank Garrison testified that he was Harold’s father and visited Alma at the hospital a few days after the baby was bom and was present when Mr. Horton asked her whose baby it was, and she said Harold Garrison was the father of her child.

It follows from the foregoing review that the objection to the sufficiency of the evidence to support a conviction is untenable. Its credibility was for the jury.

It is also contended that the court erred in giving instruction Nov 5 as follows:

“You are further instructed that certain evidence has been permitted to go to you tending to show that the prose-cubing witness, Alma Haskins at or about the date set forth in the information, that is, June 5th, 1933, had accomplished an act or acts of sexual intercourse with others than the defendant. And in this connection, you are instructed that such evidence has been permitted to go to you only for the purpose of tending to' explain the theory of the prosecution that the defendant is the father of the child proven to have been born to the prosecuting witness on March 3rd, 1934, upon some other hypothesis than that he is the father of such child, and shall be considered by you for no other purpose.
“It is no defense under the law that said prosecuting witness, if under sixteen years of age, had accomplished acts of intercourse with others than the defendant. It is sufficient if you find and believe from all the evidence, facts and circumstances in proof in the case beyond a reasonable doubt that the defendant had such act of intercourse with her on or about the time alleged in the information; and if you so find, it is your duty to return a verdict of guilty in this case, even though you fail to find that he is the father of said child.
“Given by the court and excepted to by defendant.
“Freeman E. Miller, Judge.”

This instruction is consonant with the holding of this court in Chandler v. State, 31 Okla. Cr. 26, 236 Pac. 917, and is a correct limitation of the purpose of the introduction of the evidence covered by the instruction. It therefore presents no error.

Certain misconduct on the part of the county attorney in making prejudicial remarks in his closing argument to the jury is also complained of. The only showing of any such remarks is by affidavit in support of the motion for a new trial; and for that reason cannot be reviewed.

By numerous decisions of this court the rule is well settled that exceptions must be saved to alleged improper remarks of the prosecuting attorney in bis argument to the jury, and such remarles can only be shown by being properly incorporated in the case-made, or by bill of exceptions duly allowed, and, when not so preserved in the record, cannot be shown by affidavit or mere recitals in a motion for new trial. Therefore the assignment cannot be considered. Quitman v. State, 35 Okla. Cr. 245, 250 Pac. 441.

The motion for a new trial was properly denied.

While there is some conflict in the testimony, it strongly tends to show the defendant’s guilt, and we find little in the case to make us look in favor upon the mere technical objections raised by the defendant. The trial was eminently a fair one.

The judgment appealed from is therefore affirmed.

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


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    F. E. ROBERTS v. STATE.
    No. A-8851.
    July 12, 1935.
    (47 Pac. [2d] 604.)
    C. H. Madden, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Harmon county of second-degree burglary and Ms punishment fixed at 2 years in the state penitentiary.

On the date charged, defendant, with two companions, stole about sixteen bushels of wheat from the barn of one Yates. The car used by defendant and his companions was parked some distance from the house; it was watched by the sheriff and a deputy; when defendant and his companions returned to the car with the wheat, in sacks, they were arrested.

Defendant’s only contention is that there is no' proof of a breaking, that the evidence shows no more than petit larceny. Defendant testified and admitted stealing the wheat, but insisted he took it through an open window. He introduced other witnesses who testified as to tracks, spilled wheat, etc., indicating that the wheat was taken through the window. The state’s evidence is to the effect that entry was gained through a latched door. The court properly instructed the jury on the question of burglary.

This court will not disturb the finding of the jury where there is any competent evidence reasonably tending to support the finding of the jury.

We find no substantial error. The case is affirmed.


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    WILLIE JOHNSON v. STATE.
    No. A-8820.
    July 12, 1935.
    (47 Pac. [2d] 605.)

      Billingsly & Kennerly, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Sp. Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, for convenience hereinafter referred to as the defendant, was by information charged with the crime of murder; tried and convicted of manslaughter in the first degree, and sentenced to imprisonment in the state penitentiary for a term of four years.

Lucy Buck, a witness for the state, testified in substance as follows:

“I am the wife of Marchie Buck, the deceased, and am the sister of the defendant; on the 2d day of December, 1933, I had taken my three children and gone to the home of the defendant; deceased came over there about nine o’clock that night; all the people in the house had retired; when Marchie Buck came to the porch I went out and talked with him; the defendant came out and got a drink of water; he did not say anything to Marchie, but Marchie asked him why he came out; the defendant went back into the house and shortly came out again, and Marchie asked him if he did not have his gun, and the defendant said he did not have his gun; Marchie then said, ‘I want to die anyway; tbe defendant told him not to talk that way. Marchie then came up on the porch and had hold of my hand and defendant fired a shot; Marchie jumped off the porch and started down in the yard and defendant followed him a short distance, and fired another shot. Marchie died in a field east of the house about 15 minutes after the shot was fired. It struck him in the front of the body near the . stomach. Marchie was drinking when he came to the house.”

The defnedant admitted the killing, and in his own defense testified in substance as ■ follows: “About eleven o’clock the night of December 2d, I was awakened by the deceased coming to my home where Lucy, my sister, had come earlier in the evening to spend the night. The deceased was drinking and was fussing with my sister, on the porch; I went out on the porch and got a drink of water and went back to bed I again came out on the porch when deceased continued fussing with Lucy; Lucy told him she did not want to go home with him until morning because the baby was sick and he was drinking.”

Defendant further stated when “I asked the deceased not to use profane language, the deceased told me, ‘ I am going to shoot you, I am going to shoot you, and I have a pistol and I will show you I have one’;” at the time deceased stepped up on the porch the defendant states deceased reached as though to get his gun and he shot him; that he fired the shot for the reason he was afraid the deceased would shoot him or Lucy; the deceased jumped from the porch and ran into the yard; “I followed about twenty yards and returned to the house; I fired one shot after the deceased left the porch but not at him; I knew the deceased carried a pistol,”

The foregoing is the substance of the testimony. The defendant and wife of the deceased were the only parties present when the trouble occurred; tbe other parties in the house of the defendant were in bed and only heard the shots and knew nothing about the circumstances that brought on the difficulty.

In the six assignments of error the defendant has filed he only argues, the question of the verdict of the jury being contrary to the law and the evidence; and the error of the court in refusing to' sustain plaintiff in error’s demurrer to the state’s evidence, at the close of the state’s case, which was duly excepted to ; and the error of the court in overruling defendant’s motion for a new trial.

These assignments will all be considered together, as they relate only to the question of the sufficiency of the evidence to sustain the verdict. The defendant in his brief relies upon Newman v. State, 44 Okla. Cr. 137, 279 Pac. 980, 981, to sustain his contention that the verdict is contrary to the law and the evidence. In this case, in the third paragraph of the syllabus, this court said:

“A conviction will he reversed on the ground of insufficient evidence only where it is not supported by substantial evidence from which the jury may reasonably and logically find the defendant guilty, or where it is so insufficient that the court can say that the jury must have acted from partiality, passion, or prejudice.”

A careful examination of the record fails to show that the jury, in arriving at its verdict, acted from partiality, passion, or prejudice.

In this case the only question to be considered is the question: Is the evidence sufficient to sustain the verdict? The defendant stated he thought his brother-in-law might have a pistol, and he made a play like he was going to draw a pistol, and he fired the shot that took the life of the deceased. No pistol was found upon the body of the deceased, and no one who' testified saw a pistol.

In Nutt v. State, 8 Okla. Cr. 266, 128 Pac. 165, this court said:

“To constitute the defense of ‘justification’ where a homicide has been committed, the apprehension of danger must be founded on sufficient circumstances, real or apparent, to authorize the opinion that the felonious design then existed.”

In Hunt v. State, 29 Okla. Cr. 255, 233 Pac. 506, this court stated:

“The bare belief of one assaulted that he is about to suffer death or great personal injury will not of itself justify him in taking the life of his adversary. There must exist reasonable ground for such belief at the time of the killing, and the existence of such ground is a question of fact for the jury.”

The evidence shows that when deceased came to defendant’s home and called his wife and she went out on the porch, the defendant went out and got him a drink, and then went back in the house; he said he had his gun on him when he first went out. Suffice it to say, that shortly after he went back in the house he went back to the porch, and had his gun and fired the fatal shot on the belief, as he states, that the deceased was about to shoot him or to do him great bodily harm or to injure deceased’s Avife, defendant’s sister.

In Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352, this court held:

“Where the evidence and the reasonable and logical inferences and deductions to be drawn from it are sufficient to convince the jury beyond a reasonable doubt of the guilt of a defendant, this court will not disturb the verdict for insufficiency.”

In Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360, this court stated:

“Where there is competent evidence which reasonably sustains the verdict and judgment, a conviction will not be reversed, although the evidence may be conflicting or different inferences may be drawn from it.”

In considering the sufficiency of the evidence, the function of this court is limited to ascertaining whether there is a basis in the evidence on which the jury could reasonably conclude that the defendant is guilty as charged, and where there is a basis the case will not be reversed for the insufficiency of the evidence.

The defendant was accorded a fair and. impartial trial. The evidence is sufficient to sustain the verdict and judgment. There are no errors in the record warranting a reversal.

The judgment is affirmed.

EDWARDS and DOYLE, JJ., concur.


text:
    M. D. ROBERTS v. STATE.
    No. A-8819.
    July 12, 1935.
    (47 Pac. [2d] 607.)

      Wimbish & Wimbish and King & Crawford, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson," Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, hereinafter referred to as defendant, was convicted in the district court of Ponto-toc county upon an information charging him with having committed the crime of sodomy on or about the 29th day of November, 1933, upon the person of Dora McNeil, and in accordance with the verdict of the jury he was sentenced to imprisonment in the penitentiary for the term of ten years. To reverse the judgment, he appeals.

The record shows that the defendant is a man of 69 years of age and has been blind for the past 12 years; that he has lived in Ada for more than 28 years, and for the past three years conducted a small store in a building 10 x 16 on 6th street near the Irwin school.

The complaining witness, Dora McNeil, a girl nine years of age, testified that some time in November defendant in the back part of his store, behind the counter, licked her private parts witli his tongue; that she does not remember what time of day it was, whether in the morning going to school or coming from school; that at the time another school girl, Lenora Curtis, eight years old, was with her and defendant performed a similar act with the Curtis girl just before he committed the act with her; that he said “he would give us some candy if we would let him lick us”; that each watched the other when the act was committed; that there were no other persons in the store except the defendant and “us” girls; that they went to the store often, and she went to the store nearly every day, and continued Im go until the complaint was filed; and that was the only time he ever did that.

Lenora Curtis testified that she was there with Dora and defendant licked her, in the back of the store, while Dora was standing in the store; then Dora went back there with him and she stood by the door and did not see him lick Dora; that an old man whose name was Van Curon was in the front part of the store sitting, by the stove.

On cross-examination she stated that she did not tell anybody about it until Miss Bonnie, her teacher, asked her and she told her nothing like that took place; that she did not tell her father until her father threatened to' whip her.

Will McNeil, father of Dora, testified over objections of defendant that his daughter told him about it a few days after it happened.

As a witness, in his own behalf, defendant testified that he has lived in Ada 28 years, has been employed by the cement plant, ice plant, Frisco Railway, and the Choctaw Cotton Oil Company; that he lost his sight 12 years ago, but had continued to make a living and had never asked for charity; that he had heard the testimony of the two girls; that their statements were absolutely untrue; that his store building was 10 x 16, one room, with a counter crossways and a little gate between the front and rear, with a stove in the front; that he was tried on a similar charge last week; that old man Yan Cur on, age 89 years, Avas present and testified; that he had never been convicted of any crime. Over objection he then offered to show that he was never charged with any crime and was never before arrested.

On cross-examination he stated that Lenora Curtis came into the store one day and said: “Mr. Roberts this is my birthday, I am eight years old today,” and he just spanked her nine times and gave her some mints for a birthday present; asked:

“Q. Have you ever had your hands on Dora McNeil? A.' I may have had my hands on her, I don’t remember. I am liable to place my hands on anybody to see how large they are. Q. Did you ever place your hands on her private parts? A. Certainly not. Nothing like that eA-er happened.”

He further stated that these little girls were in the store several times together; that he reared a family here in Ada, three girls and a boy all living in Ada and vicinity; that his wife had been dead six years.

A number of witnesses were called and asked if they kneAv defendant’s general reputation as to being an honest, upright, law-abiding citizen in the community, or otherwise; each answered “Yes, for more than 25 years”; ashed:

“Is that reputation good or bad? A. Good.”

The transcript of the testimony of Dora McNeil given at the preliminary hearing was read to the jury. The following is an excerpt:

“Q. You all go down there nearly every day? A. Yes, sir. Q. You get candy there? A. Yes, sir. Q. That is the only time he ever bothered you? A. Yes, sir. Q. Who did you first tell that he did you this way? A. I didn’t tell anybody but Miss Allen. Q. You didn’t tell Miss Allen about it until she asked you? A. Yes, sir. Q. You didn’t tell anybody about it until they asked you? A. No, sir. Q. You told her nothing like that took place? A. Yes, sir. Q. Who was the next person you told about it? A. The law asked me. Q. Who-, Pete Woods? A. I don’t know which one. Q. You first told him that nothing like that happened? A. Yes, sir. Q. Who was the one that told you that you must tell something did happen? A. Miss Allen did. Q. Just what did Miss Allen say? A. She just asked me if he licked me or anything. Q. And you first told her he didn’t? A. The first time. Q. How come you to tell her he did? A. I don’t know. Q. Why did you tell her that? A. I don’t know.”

By agreement the reporter read Lenora Curtis’s testimony in the case tried March 27th. It was in part as follows:

“Q. Was Dora there when he licked you? A. No, Ma’am. Q. Were you there when he did something to Dora? A. Yes. Q. What did he do to Dora? A. He kissed her. Q. Kissed her and what else? A. Nothing. Q. Was there another man in there? A. Yes. Q. Who was the man? A. I don’t know. Q. Was it the old man you saw in the hall one day when you came up here before? A. Yes. Q. Is his name Van Curon? A. Yes, ma’am. Q. What did he do, Hun? A. He didn’t do anything that day. Q. Were you standing up or lying down? A. Standing up. Q. What did Mr. Boberts give you for you letting him lick you? A. A Baby Buth.”

Cross-examination:

“Q. Now, when you went down there, Dora was with you, wasn’t she? A. Yes, ma’am. Q. And Mr. Van Curon was in the store too? A. Yes, ma’am. Q. Mr. Boberts is blind, isn’t he? A. Yes, ma’am. Q. Now, what was Dora doing? A. Dora wasn’t there that time. Q. Wasn’t Mr. Van Curon there? A. Yes, nobody else. Q. Well, what did you do when you got back there, you and Dora? A. Dora —I don’t know what Dora did. I didn’t do anything. Q. He didn’t lick you that day? Did he? A. No. Q. Didn’t you tell Judge Willoughby that you and Dora were down there and that Mr. Boberts licked you behind the counter and that Mr. Van Curon licked Dora in front of the counter? A. He didn’t lick Dora. Q. I mean Mr. Van Cur-on? A. He didn’t lick Dora either. Q. Did you tell Judge Willoughby that? A. No. Q. Did you see Mr. Boberts when he licked Dora? A. He didn’t lick Dora; Q. Did Mr. Van Curon lick you? A. No. Q. Didn’t you testify in this case that Mr. Van Curon licked you too, before Judge Willoughby? A. Well, Mr. Boberts was the only one that licked me. Q. Little girl, haven’t you forgotten, don’t you remember that you were out there with Mr. Harrison in the hall and you pointed Mr. Van Curon out and told him that he licked you too and they had him put in jail? Do you remember that? A. Yes, ma’am. Q. And did you tell Mr. Harrison that Mr. Van Curon had licked you? A. Yes, ma’am. Q. And you told Judge Willoughby that when you testified before here? A. Yes, ma’am. Q. And you went and pointed the old man out? A. Yes, ma’am. Q. And they took him and put him in jail? A. Yes, ma’am. Q. You have been going to the store nearly every day, hadn’t you? A. Yes, ma’am. Q. You have been getting candy down there? A. Yes, ma’am. Q. And after this happened you continued to go there? A. Yes. Q. And I will ask you if your daddy didn’t tell you if you didn’t tell this he would whip you? A. Yes, ma’am. Q. And you told your daddy it wasn’t so, didn’t you? A. Yes, ma’am. Q. And your daddy told you if you didn’t say it was so be would whip you, didn’t he? A. Yes, ma’am.”

Redirect:

“Q. Did you talk to your school teacher, Miss Allen? A. Yes. Q. And then you told your daddy the truth about it? A. Yes, not that day. I told him the day after that. Q. You didn’t tell me before that Dora was there one time and watched Mr. Roberts lick you? A. Dora wasn’t there that day. Q. Was she ever there when he licked you? A. No, ma’am. Q. Were you ever there when he licked her? A. No, ma’am.”

As reasons for reversal, many errors are assigned.

Upon arraignment defendant demurred to the information on the grounds that it does not state facts sufficient to charge an offense and that it is uncertain and insufficient in not alleging the particular circumstances of the offense sought to be charged. The demurrer was overruled.

The charging words are that the defendant did “unlawfully and feloniously make an assault in and upon one * * clicL “unlawfully annd feloniously and against the order of nature have a venereal affair with the said Dora McNeil and did commit the abominable and detestable crime against nature.”

Our Penal Code, section 2553, St. 1931, gives no definition of the crime which the law with due regard to the sentiments of decent humanity has always treated as one not fit to be named.

The offense consists in a carnal knowledge, committed against the order of nature, with mankind or with a beast. Borden v. State, 36 Okla. Cr. 69, 252 Pac. 446; Ex parte De Ford, 14 Okla. Cr. 133, 168 Pac. 58.

The information is sufficient and the demurrer thereto was properly overruled.

The next contention is that the trial court erred in overruling* defendant’s motion for a continuance. The record shows that on the 3d day of April defendant entered his plea of not guilty. On that day the case was called for trial and defendant presented his motion for a continuance duly verified. It is in part as follows :

“That he cannot safely go to trial at this term of court for the want of testimony of one-Van Cur on; that on the 29th day of March, 1934, he filed with the court clerk his praecipe for subpoena, for said witness and that on the same day and date subpoena was issued for said witness and delivered to the sheriff of Pontotoc county. That on the 3rd day of April, 1934, sheriff returned said subpoena with the notation thereon that said witness could not be found in Pontotoc county; that said witness lives in Pontotoc county; that he makes his home either with a son-in-law who lives in North Ada, or a son who lives in North Ada, or a son who lives near Lovelady School House, about eight miles east of the city of Ada; that this defendant has done and performed all acts in his power to secure said witness, but has been unable to secure the attendance of said witness, and that the attendance of said witness can be procured at the next term of this court.
“That by this witness this defendant expects to prove and can prove, that one of the prosecuting witnesses has testified at the preliminary hearing, that the act complained of and charged in the information was committed in the same room in which said witness was present; that said prosecuting witness testified that said witness was present and that he, the witness, participated in the act complained of in the information; that this defendant can prove by said witness, and expects to prove by him, on the trial of this cause, that no such act or acts as charged in the information were committed in the room while he was present and that had such act taken place in the room as testified by the state’s witness, that he could have and would have known such act or acts took place.
“That the testimony of said witness, Van Curon, is true, and that this defendant knows that the same is true, and that he can prove the same, and expects to prove same by said witness; that he cannot prove said facts by any other witness. That said witness is not absent with the procurement of the defendant.
“That this application for continuance is not made for delay, but made in good faith, in order that justice may be done.”

The record recites:

“The state being present by its attorneys, Truman Harrison, county attorney, Vol Crawford, assistant county attorney and D. I). Brunson, special prosecuting attorney, and the defendant being present in person and by his attorneys, Wimbish & Wimbish, and King & Crawford; and thereupon the said motion wa,s read to the court by Mr. Wimbish, Sr.,and thereupon proceedings were had as follows, to wit:
“ ‘By Mr. Wimbish: Supplemental t<> the facts as stated in the sworn affidavit, the defendant says that a companion case was set for trial in this court on the 27th day of March, 1934, that prior to that time he had caused a subpcena to issue for this witness and that there was no return filed by the officer and that he was forced to procure the witness himself by sending his son-in-law out and bringing the witness into court; and that said witness, Van Curon, testified on said trial substantially to the facts as set out in the application for a continuance herein; that the witness Van Curon is about 89 years old and has lived in Pontotoc county for 25 years, bears an excellent reputation and that his testimony is such that this defendant believes that any jury will give full faith and credence to any testimony he might give in this case. And I want to add this: They told me they were not going to try this case and I couldn’t get any satisfaction out of the county attorney, even up until this date, and that subpoena issued on that date.
“ ‘By Mr. King: I was under the impression that the case would be continued from the statement of the county attorney on yesterday. He suggested to me that “Let’s continue this case” and that he didn’t want to try it and I thought it would be done.
“ ‘By Mr. Harrison: We would like for the record to show that the trial docket was set twelve days before the beginning of this term of court, to wit, the 26th day of March. The state does not believe that due diligence has been used or exercised in procuring the attendance of said witness, and the state for said reason resists the motion of the defendant for a continuance.
“ ‘By the Court: The motion for continuance is overruled. Exception reserved.’ ”

After the introduction of evidence on the part of the defendant, he requested the court for permission to offer proof supplemental to the evidence offered in support of his motion for a continuance and asked that the jury be withdrawn.

In the absence of the jury Clarence Oliver testified that he knew Mr. Van Curon who had testified for the defendant in the previous case, and that he knew Mrs. Lou Houston, daughter of Mr. Van Curon; that she had told •him that the county attorney had been telling all winter if the old man Van Curon did not leave here he was going to send him to Norman; and that Charley Curtis, the father of Lenora, had said they had enough against the old man if he did not leave they would stick him too.

Mrs. Lou Houston, daughter of the witness Mr. J. M. Van Curon, testified that her father lived with her except three years he had spent at Ardmore in the Confederate Soldiers Home; that he now had been back about two years. About 4 o’clock yesterday be went away; that a friend came out and told her the county attorney said that if my father was in town yesterday, that if another party did not swear out a warrant for dad’s arrest he would; that he had plenty of evidence against him.

Cross-examination by Mr. Harrison:

“Q. Whoi told you that, Mrs. Houston? A. Bill Wiggins was the man that came out there and told that. Q. You don’t, contend that I did malte that statement, you just say that is what they told you? A. That is what they told me. Q. And that was Bill Wiggins. Did he say that I said that or tell you that Charley Curtis said he was going to< attempt to get a warrant sworn out for him? A. The way I understand it, it was told to me, he said he told him that you said if he didn’t swear out a warrant for him yesterday that you would. I reckon you are Truman Harrison, I don’t know. Q. Wha did Bill Wiggins say told him all this? A. Charley Curtis.”

Now comes defendant and moves for a mistrial and to continue the case because of the absence of the witness Van Curon.

The granting or refusal of a continuance rests in the sound discretion of the trial court, however, the discretion which the trial court exercises must be judicial, not arbitrary, and must be exercised in conformity with the law of the state.

Continuances should always be granted, when from the showing justice requires it, to' enable the accused to procure all legal and competent evidence for a fair presentation of the defense, where due diligence to obtain the same has been shown.

We are of the opinion that under the peculiar circumstances surrounding this case that the refusal of the trial court to continue the case at least to another day in the term was manifestly an abuse of judicial discretion.

The application conforms, to. the requirements of the statute and the diligence to procure the attendance of the absent witness Van Curon was unquestionably sufficient. The testimony of the absent witness was material to his defense, and it reasonably appears that the attendance of this witness could be secured by a continuance.

.Speedy trials and the prompt enforcement of the criminal laws, however desirable, should only obtain with due regard for the rights of the accused to enable him to have a fair trial.

Under the assignment that the verdict is contrary to law and the evidence, it is urged that the testimony of the complaining witness Dora and the Avitness Lenora is too contradictory, inconsistent, and weak to. support the verdict, therefore the court erred in overruling defendant’s motion for a directed verdict of acquittal on the ground that the evidence was insufficient to warrant a conviction.

After a careful examination of the entire record, we are unable to reconcile the conflicting testimony, on the part of the state. It is undisputed that the complaining witness never made a voluntary complaint. She denied, Avhen asked by her teacher, that any such lewd act ever occurred and made the same denial to her parent. Both these Avitnesses testified that they were threatened with whipping unless they admitted it and it was only after these threats that they consented to. charge defendant with having committed such acts. Also, there is a direct contradiction in the testimony of the two- witnesses as to whether defendant committed the act charged.

With these facts before us, we are inclined to think that the testimony of these two witnesses was more a matter of imagination than memory, or that the same was maliciously inspired

The defendant testifying' in his own behalf denied the charge and produced a number of witnesses as to his good character.

The crime charged belongs to that class of offenses of which it has been often said, the charge is easily made, hard to prove, and still harder to disprove. In such cases jurors are sometimes moved by abhorrence of the offense to convict upon slight evidence; therefore, the court will carefully examine the record to see that there was some substantial evidence to warrant a verdict of guilty.

Carefully considering the testimony in this case, it is difficult to see upon what ground the jury could return a verdict of guilty and assess the maximum punishment.

The defendant was entitled to the full benefit of the legal presumption of innocence and could not properly be convicted unless the evidence established his guilt beyond a reasonable doubt.

Upon the whole case, we are convinced that the verdict was more the result of prejudice and partiality than the calm and dispassionate conclusion of the jury upon the facts in evidence, and we find that the evidence is not sufficient to sustain the conviction.

For the reasons stated, the judgment of the trial court is reversed.

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


text:
    CLEVE CLAY et al. v. STATE.
    No. A-8779.
    July 12, 1935.
    (47 Pac. [2d] 1119.)
    E. E. Glaseo-, for plaintiffs in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiffs in error, hereinafter called defendants, were convicted of transporting intoxicating liquor, and each was sentenced to pay a fine of $100 and to serve sixty days in the county jail.

The record was filed in this court August 1, 1934; no brief in support of the appeal has been filed.

A careful examination of the record fails to disclose any fundamental errors. The evidence is sufficient to support the verdict.

The case is affirmed.


author: EDWARDS, ,J.

text:
    Ex parte T. J. BELL.
    No. A-8960.
    July 18, 1935.
    (47 Pac. [2d] 886.)

      T. J. Bell, pro se.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for resondent.
   EDWARDS, ,J.

This is an original proceeding in habeas corpus. Petitioner alleges be is unlawfully restrained by tbe warden of the state penitentiary. That on tbe 27th day of February, 1929, be was convicted in tbe district court of Choctaw county, on bis plea of guilty of theft of domestic fowls, and was sentenced to serve a term of two years in tbe state penitentiary. That at the time he was under twenty-one years of age, and under the authority of sections 2803 and 2804 C. O. S. 1921, his sentence was suspended by the trial judge. That thereafter, on the 11th day of April, 1934, the district judge of said Choctaw county made an order attempting to revoke the suspended sentence made at the time of said sentence, and ordering petitioner to- serve said sentence.

This court in the case of Ex parte King, 40 Okla. Cr. 21, 266 Pac. 511, and in other cases has held that suspended sentences can be revoked only during the term of said sentence ; that after tbe expiration of the term tbe sentence is discharged and the district court is without power to revoke.

It follows that the writ should be granted and the petitioner discharged. It is so ordered.

DAVENPORT, P. J., and DOYLE, J., concur.